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On the trial the defendant set up that the LUSTER V. ROBINSON.

note upon which this judgment was based

was executed to Robinson, as grand master (Supreme Court of Arkansas. July 1, 1905.)

of the United Brothers of Friendship and 1. NOTES-PAYEE DESCRIPTION INDIVID

Sisters of the Mysterious Ten, in payment of UAL RIGHT. The fact that a note bears after the name

a debt which J. T. Thompson owed to that of the payee letters shown to indicate the title society, and that Robinson had no personal of the payee's office in a beneficial association interest in the note, or in the judgment based does not render the note payable to the payee, other than in his own right.

thereon; that afterwards the defendant com2. APPEAL-TRIAL TO THE COUBT-QUESTIONS

promised and paid off the judgment to the FOR REVIEW.

successor of Robinson in the office of grand Where a was tried by the court

master. Robinson claimed that the note was without a jury, and the court was not asked

executed for an individual debt, in which to make any declarations of law, the only question on appeal was whether the evidence sup- the society had no interest. The justice ported the finding and judgment.

found in favor of plaintiff, and in a trial de

novo in the circuit court the same judgment Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

was rendered, from which the defendant apAction by D. A. Robinson against Bryant

pealed. Luster. From a judgment in favor of plain- L. J. Brown, for appellant. Marshall & tiff, defendant appeals. Affirmed.

Coffman, for appellees. In 1893 D. A. Robinson was a member of an incorporated society known as the United RIDDICK, J. (after stating the facts). Brothers of Friendship and Sisters of the This is an appeal from a judgment of the Mysterious Ten. He held the office of grand circuit court in a case tried before the judge master for Arkansas in that society. While of that court without a jury. The court was he held this office, J. T. Thompson, Bryant not asked to make any declarations of law, Luster, and John Veverly executed to him and the only question presented by the apa promissory note in words and figures as peal is whether the evidence is sufficient to follows: "Ninety days after date we promise support the finding and judgment of the to pay to the order of D. A. Robinson, G. M. court in favor of plaintiff. The note upon U. B. F. & S. M. T., fifty dollars for value which the judgment sued on was based was received, negotiable and payable without de- made payable to “D. A. Robinson, G. M. U. B. falcation or discount at the office of the Oiti. F. & S. M. T." The evidence shows that zens' Bank of Little Rock, Ark., with interest these letters stand for “Grand Master United from date at the rate of ten per cent, per Brothers of Friendship and Sisters of the annum from date until paid." Robinson Mysterious Ten." But this title following brought suit on this note against the defend- the name of the payee in the note was only ants, who were duly summoned, and judg. a designation of the person to whom it was ment by default was rendered against them to be paid, and shows that the note was to by T. W. Wilson, justice of the peace, for the Robinson in his own right. The suit in amount of the note and interest. The judg. which the first judgment on this note was ment commences by reciting that “on April rendered was brought before a justice of the 20, 1894, the plaintiff, D. A. Robinson, as G. peace, and no complaint was filed except the M. U. B. F. S. M. T., heretofore filed his note itself. The note shows on its face that complaint against the defendants," etc. It it was due to Robinson in his own right, then recites that the defendants came not, and not as the representative of the society, but made default, and that the action was and was set out in full in the judgment. founded on a promissory note, which is set Where the judgment, as a whole, is considout in full in the judgment. The judgment ered, we do not think that it shows that it then proceeds as follows: "Whereupon it is was rendered in favor of Robinson in his considered, ordered, and adjudged by the representative capacity. The evidence as court that the plaintiff have and recover of to whether the plaintiff or the society was and from the defendants the sum of fifty dol- the real owner of this judgment was conlars for the principal debt, and the further flicting, and the finding of the court that he sum of two dollars interest to this debt, and was the owner has evidence to support it. all costs herein expended, and have execution Though the case is a close one on the evtherefor; this judgment to bear interest at idence, the finding of the circuit court settles the rate of ten per cent. per annum until the case so far as the facts are concerned, paid.”. In March, 1903, Robinson brought and, as no error of law appears, the judg. suit on this judgment against Bryant Luster. ment must be affirmed. It is so ordered.

organized in good faith for the purpose of MOUNTAIN PARK TERMINAL RY. CO. v. building a railroad, nor for any public purFIELD et al.

pose, but is organized solely to carry out the (Supreme Court of Arkansas. July 1, 1905.) private enterprise of one Charles M. NewEMINENT DOMAIN_RIGHT TO EXERCISE Pow

ton, who has subscribed for substantially all ER-JURISDICTION OF COURT.

of the stock of said company. The fact is Since Kirby's Dig. 88 2947, 2952, 2954, that on the south side of the Choctaw, Ok2955, providing for the condemnation of land by a railroad company for its right of way, and for lahoma & Gulf Railroad, along where the the impaneling of a jury to ascertain the com

line of plaintiff is sought to be constructed, pensation by proceedings as in civil cases, etc., there is a high hill, composed entirely of assume that a railroad company filing a peti

stone, that is valuable for crushing into tion is entitled to the right of way on making compensation, the court, on the hearing of such

small fragments of stone, suitable for bala petition, cannot try issues raised by an an- la sting railroads, making macadam highways, swer alleging that petitioner was not organ- the construction of concrete, and other like ized to build a railroad, but to carry out the

purposes. The front of these hills cannot private enterprise of an individual, and that the purpose was merely to construct a switch be utilized, because any rock blasted from to reach the individual's business establishment, them would fall upon the track of the Chocbut should permit the owner to amend by pray- taw, Oklahoma & Gulf Railroad; but at a ing for equitable relief, and then transfer the cause to the chancery court.

point where the plaintiff seeks to condemn

there is a narrow gorge, penetrating said Appeal from Circuit Court, Pulaski Coun

hill, up which a railroad track can be built ty; Edward W. Winfield, Judge.

for a short distance. But the part of said Condemnation proceedings by the Moun

hill adjacent to the right of way of said railtain Park Terminal Railway Company

road belongs to defendants, who contemplate against W. H. Field and others.

From a

the erection of a crushing plant in said gorge. judgment dismissing the petition, petitioner

A part more remote, and further up said appeals. Reversed.

gorge, belongs to said Newton, who also deH. M. Armistead and John McClure, for sires to put in a crusher; but said gorge is appellant. Rose, Hemingway & Rose, and J. so narrow that, if a railroad track is conW. & M. House, for appellees.

structed up said gorge so as to reach the

property of said Newton, it will preclude BATTLE, J. On the 20th of April, 1904, these defendants from the erection of any the Mountain Park Terminal Railway Com- crusher for their own use, and will also depany filed a petition for condemnation of a stroy the value of the great rock deposits right of way through certain lands of W. which they may possess in that vicinity. H. Field and others. “The petition, in the The sole purpose of said Newton in seeking usual form, alleges the incorporation of the to condemn a right of way is merely to travrailroad company; the route of said railroad; erse the defendant's land in order to get to that its road is surveyed and located in Pu- a crusher of his own at the sacrifice of the laski county; that the defendants are the property of these defendants. It is imposowners of certain lands which are described; sible to build said railroad as laid out, bethat said lands are unimproved; that it has cause the grade up to the said property, failed to obtain the right of way over the known as “Mountain Park,' is so steep that said land by agreement with the owners no railroad train could be run upon any railthereof; that it is desirous of beginning work road that might be built. The said Newton on its railroad; asks the court to designate has caused a railroad to be surveyed only a sum of money to be deposited by plaintiff for a distance of about 1,700 feet-just far for the purpose of making compensation, etc., enough to bring it to the site of his proposed and that a jury be impaneled to ascertain crusher-and at this point the railroad surthe amount of compensation to which the vey sinks to a depth of twelve feet into the wners of said land may be entitled; and hill, and further progress is impossible. Dethat an appropriate order and judgment be fendants deny that said plaintiff ever contementered, vesting the petitioner with a right plates building any further, or doing more of way one hundred feet in width through than to construct a switch to reach a crushsaid land, etc.

er of said Newton, and they deny that any "Notice was duly served on the defend

public purpose will be subserved by the ants, notifying them that on a certain date building of the proposed railroad. The railthe plaintiff would apply to the judge of the road of the plaintiff is laid out to run from second division of the Pulaski circuit court the city of Little Rock to said Mountain for an order fixing the amount of the pos- Park, but these defendants say this is meresible damages that would result from the ly a pretense, and a scheme to perpetrate a construction of said railroad over the land fraud upon the law and upon this honorable of the defendants."

court, and that the plaintiff has taken no On the 7th day of May, 1904, the defend- steps to acquire the right of way, save the ants filed an answer as follows:

few feet that are necessary to reach from “The defendants deny the right of the the Choctaw, Oklahoma & Gulf Railroad to plaintiff to maintain this condemnation pro- the site of the proposed crusher of the said ceeding, and say that the plaintiff was not Newton."

88 S.W.-57

same,

Plaintiff filed a motion to strike the an- ized to build and operate a railroad comswer from the files of the court, and on the pany as pretended, but in effect a bridge 21st of May, 1904, the court overruled the company, taking the guise and semblance of

After hearing the evidence the court a railroad company for the purpose of buildfound that the proposed construction is for ing, using, and deriving service from the private purposes, and the right of eminent bridge, with the exemption from taxation domain does not exist in this case, and dis- accorded by statutes to the bridges of railmissed the petition.

roads," etc. One of the questions in that Did the court err in overruling the motion case was, were not the appellants barred from to strike the answer from the files?

maintaining their suit by the proceedings inThe proceeding prescribed by statute for stituted by the railroad company for right of the condemnation of land for right of way way? The court said: "Nor is it at all for a railroad is special. Section 2947 of clear to our minds that the appellants have Kirby's Digest provides: "Any railroad a full, complete remedy at law, to be obtaincompany organized under the laws of this ed by way of defense to the special proceedstate, after having surveyed and located its ings in the circuit court for condemnation. lines of railroad, shall in all cases where The junction company, in all purely legal assuch company fails to obtain, by agreement, pects, is a proper corporation, clothed with with the owner of the property, through franchise of eminent domain to the extent which said lines of railroad may be located of its necessities. The proceeding under our the right of way over the same, apply to the statutes is a special one, directed solely to circuit court of the county, in which said the object of determining the compensation property is situated, to have the damages to be paid the owner of property proposed to for such right of way assessed, giving the be taken. No provision is made for any isowner of such property at least two days' sue upon the right to condemn. It could not notice, in writing, of the time and place there be proved that the junction company where such petition will be heard.” Section was not a corporation. To attack its exist2952 provides: "It shall be the duty of the ence collaterally is not permissible. A plea court, to empanel a jury of twelve men, as in in the nature of nul tiel corporation would civil cases, to ascertain the amount of com- not be safe, in the face of complete articles pensation which such company shall pay, of association. Besides, it is plain that the and the matter shall proceed and be deter- Legislature never contemplated any such de mined, as in other civil causes." Section fense as a want of right to condemn in the 2955 provides: "When the determination of corporation. For, where the proceedings are the question in controversy in such proceed- liable to delay, it is made the duty of the ing is likely to retard the progress of the court to fix a sum to be deposited by the work on, or the business of such railroad company, and to allow the property to be company, the court, or judge, in vacation, taken and used in anticipation of the settleshall designate an amount of money to be ment of dam es." ee, also, Bentonville deposited by the company." Section 2954 Railroad v. Stroud, 45 Ark. 280. provides: "In all cases wbere damages for It follows, then, that the court erred in the right of way for the use of any rail- overruling plaintiff's motion and trying the road company have been assessed in the issue presented by the defendants' answer. manner hereinbefore provided, it shall be But are the defendants without a remedy? the duty of such railroad company to deposit Property cannot be taken from its owner with the court or to pay to the owners the without his consent, even under an act of amount so assessed, and pay such costs as the Legislature, and appropriated solely and may, in the discretion of the court, be ad- exclusively to the private use of another perjudged against it, within thirty days after son or corporation. Courts have the power such assessment whereupon it shall, and to determine whether a particular use for may be lawful for such railroad company to which private property is authorized by the enter upon, use and have the right of way Legislature to be taken is in fact a public over such lands forever.” From these stat

Shoemaker v. United States, 147 U. S. utes it appears that the sole object of the 298, 13 Sup. Ct. 361, 37 L. Ed. 170; Moore proceedings provided for by them is to as- v. Sanford, 151 Mass, 283, 288, 24 N. E. 323, certain the damages that the railroad com- 7 L. R. A. 151; Welton v. Dickson (Xeb.) 57 pany shall pay for right of way. They seem N. W. 559, 22 L. R. A. 496, 500, 501, 41 Am. to assume that the railroad company is en- St. Rep. 771; Chicago & Eastern Illinois titled to the right of way upon making com- Railroad Co. v. Wiltse, 116 Ill. 449, 6 N. E. pensation for same.

49; Cooley's Constitutional Limitations (7th In Nier yer & Darragh v. Little Rock Ed.) 774; 1 Lewis, Eminent Domain (2d Ed.) Junction Railway et al., 43 Ark. 111, the ap- 158; 3 Elliott on Railroads, 962. As an inpellants sought to enjoin the railroad com- cident to this power, in the absence of a statpany from building its road along a certain utory remedy, a court of equity has the powalley and taking certain lots; alleging in er to restrain a railroad corporation from their complaint "that the organization of the taking property for a private use. company was a fraud upon the state, in this: In Niemeyer & Darragh v. Little Rock that it was not a bona fide company organ- Junction Railway, 43 Ark. 120, the court

use.

said: “Farther, with regard to corporations sum of four thousand seven hundred and not acting under special charters of legisla- fifty-three and seventy-hundredths dollars tive grant, but voluntarily organized under ($4,753.70). Should the policy not be issued general laws, although their existence as cor- then this obligation to be null and void.” porations cannot be questioned collaterally,

Jno. W. & Jos. M. Stayton and Morris M. yet if they have resulted from fraudulent

Cohn, for appellants. Rose, Hemingway & combinations of individuals to procure powe

Rose and S. D. Campbell, for appellee. ers under circumstances and for purposes not within the scope and purpose of legisla- HILL, C. J. In Jackson county there were tive intent, and the corporators, under shel- seven brothers named Graham, engaged in ter of their articles, are about to exercise mercantile pursuits and farming, and all in powers oppressive to the individual, they

prosperous condition; and it developed in may be restrained by private suit of those argument of the case at bar that they were injured, or about to be. Fraud has no im- each over six feet tall-fine specimens of munity anywhere, in any guise.

Arkansas manhood. Mr. H. L. Remmel, the "This is the course that in this case has general manager of the state of one of the been pursued. We think the chancery court

large insurance companies, knowing them, properly entertained the bill, and had juris- and recognizing the advantage to his comdiction to enjoin the company, if the merits pany of securing a policy on the joint lives of the case required that relief."

of these gentlemen, undertook personally to So individuals cannot combine as a rail- secure such a policy, and, to that end, visited road corporation and convert property of in- them. The result was, an application was dividuals solely and exclusively to their pri- signed for a $35,000 policy on the lives of the vate use. That would be an abuse of the seven Grahams, and a note for $4,753.71, paypower to form such corporations under the able to Mr. Remmel, was executed and destatutes, and contrary to their spirit and in- livered to him. Later a 10-year distribution tent, and “may be restrained by private suit plan policy for $35,000 was sent to the Graby those injured, or about to be."

hams. It was not accepted, and negotiaThe judgment of the circuit court is re- tions were had between Mr. Remmel and versed, and the cause is remanded, with some of them, looking to the securing of a leave to appellees to amend their answer so different policy than the one sent. Mr. as to invoke equitable relief, and with direc- Remmel tried to get the one desired, and tions to the court, when so amended, to failed, and tendered a policy according to transfer the cause to the proper chancery what he claims was the contract when the court

note was executed; and, on the refusal of the Grahams to accept it, he brought suit on the note. The testimony of Mr. Remmel is to the

effect that an absolute agreement was reachGRAHAM et al. v. REMMEL.

ed when the application was signed and the (Supreme Court of Arkansas. June 24, 1905.)

note executed, and the policy tendered as in ACTION ON NOTE-PAROL EVIDENCE AD

full and complete fulfillment of the contract MISSIBILITY. Where an application for insurance was

as called for in the note, which will be set accompanied by a note for the premium, both out in the statement of facts by the reporter. of which were delivered in due form to the Mr. Remmel was supported in his statements agent of the insurer, parol evidence was admissible in an action by the agent on the note

by a letter written to him during the negoto show that the plaintiff requested that de

tiations for the different policy, in which fendants execute the note as evidence of their Graham Bros. stated: “Will say we are good faith, but not to be binding on them un

pleased with contract and have no objection less the policy, when it arrived, was satisfactory, and they accepted it.

whatever, but would like to have it changed

to the five year distribution plan, as we have Appeal from Circuit Court, Jackson Coun

changed our minds on taking it on the plan ty; Frederick D. Fulkerson, Judge.

applied for." They explain this letter by Action by H. L. Remmel against H. C.

saying that it was dictated by Mr. Remmel Grabam and others, doing business as Gra

himself to their attorney. This is admitted, ham Bros. From a judgment in favor of

And they further say it was written merely plaintiff, defendants appeal. Reversed.

to facilitate Mr. Remmel in his effort to The following is a copy of the note referred obtain from his company the policy they deto in the opinion: “Tuckerman, Ark., Feb. sired. The court excluded evidence offered 27, 1902. On the delivery or thirty days | by the appellants contradictory of Mr. Remthereafter, of a joint life policy in the sum mel's as to the execution of the note. The of thirty-five thousand dollars ($35,000) on record reads as follows: "The defendants the ten year distribution plan in the Mutual thereupon offered to prove by Thos. Graham Life Insurance Company of New York, on the that the plaintiff requested that they execute lives of Henry C. Graham, J. R. Graham, T. the note; that it might be necessary to atJ. Graham, Nimrod Graham, Nathan Gra- tach the note to the application to show their ham, Josephus S. Graham and James Gra- good faith, but would not be binding upon ham, known as the Graham Bros., we prom- them, except that if the policy, when it arise to pay to the order of H. L. Remmel the rived, was satisfactory, and they accepted ** the note would be binding, otherwise it would 57 Ark. 64, 20 S. W. 811, and Ware v. Albe void. This was a condition which went | len, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. with its execution. The evidence so offered 563, which is approved in State v. Wallis. having been ruled out, defendants excepted." In State V. Wallis, Mr. Justice Heming. Several other Grabams were offered on the way, speaking for the court, said: “Proof same point. The court directed a verdict that such of the defendants as subscribed the for Mr. Remmel on the note sued upon, judg. bond did so upon the condition that other ment was rendered accordingly, and the persons named in it as sureties would sign Grahams have appealed.

it was not incompetent. It was not designed The appellee relies upon Findley v. Means, to vary the terms of a written instrument, 71 Ark. 289, 73 S. W. 101, and the authorities but to show that there never was a comtherein cited, to sustain the action of the plete execution of such instrument. For this circuit court in excluding this testimony. purpose it was competent. Ware v. Allen, The syllabus of that case is as follows: "A 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563." deed, note, or other instrument of writing In Ware v. Allen the Supreme Court of the delivered to the grantee or obligee, to take United States held: "Parol evidence is ad. effect when certain conditions are performed, missible in an action between the parties becomes operative and binding from the time to show that a written instrument executed of delivery, though the conditions be not ful- and delivered by the party obligor to the filled." The authorities cited are Pope v. party obligee, absolute on its face, was conLatham, 1 Ark. 66; Inglish v. Breneman, 5 ditional, and was not intended to take effect Ark. 377, 41 Am. Dec. 96; Scott v. State until another event should take place." FolBank, 9 Ark. 36; Chandler v. Chandler, 21 lowing Ware v. Allen, the Supreme Court of Ark. 95; Campbell v. Jones, 52 Ark. 493, 12 the United States, in Burke v. Dulaney, 153 S. W. 1016, 6 L. R. A. 783. With the excep- U. S. 228, 14 Sup. Ct. 816, 38 L Ed. 698, cartion of Chandler v. Chandler, all these cases ried the application of the dictum into a case were cases of escrow, where the point decid- identical in principle and analogous in fact ed was that there could be no delivery in with the one at bar. Mr. Justice Harlan, for escrow to the obligee of a bond, note, or other the court, said: “And the evidence offered by written instrument. Chandler v. Chandler the appellant and excluded by the court did holds that, where a bond or other writing is not in any true sense contradict the terms of delivered conditionally to the obligee him- | the writing in suit, nor vary their legal imself, it is operative and binding from the port, but tended to show that the written time of the delivery, though the conditions instrument was never in fact delivered as be never performed; and to the same effect a present contract, unconditionally binding is the ruling in Findley v. Means. The tech- upon the obligor according to its terms from nical character of an escrow is not mentioned the time of such delivery, but was left in the in these two cases. Where conditions subse- | hands of Dulaney, to become an absolute obquent are to be performed in order to render ligation of the maker in the event of his the note or bond operative, and when oper- electing, upon examination or investigation, ative the written instrument is expressive to take the stipulated interest in the property of the entire contract, then it must be de- in question. In other words, according to livered to a third person, or the delivery to the evidence offered and excluded, the writthe obligee in escrow will be a good delivery, ten instrument upon which this suit is based and the instrument cannot be contradicted was not-except in a named contingencyby parol varying its terms. It is a completed to become a contract or promissory note contract, subject to conditions subsequent which the payee could at any time rightfully not in writing. But where the delivery would transfer. Evidence of such an oral agreedefeat the real contract between the parties, ment would show that the contingency never then it is competent to prove by parol (1) the happened, and would not be in contradiction whole contract, and that the writing was of the writing. It would prove that there only part of the contract; or (2) to explain never was any concluded, binding contract, the consideration; or (3) to show that it entitling the party who claimed the benefit was part of the contract that the writing was of it to enforce its stipulations. The excludelivered, but not to become operative until sion of parol evidence of such an agreement another part of the contract-condition pre could be justified only upon the ground that cedent-was fulfilled. Of the first class is the mere possession of a written instrument, Kelly v. Carter, 55 Ark. 112, 17 S. W. 706, in form a promissory note, by the person where a deed did not evidence the entire named in it as payee, is conclusive of his contract, and parol evidence was admitted to right to hold it as the absolute obligation of show the entire contract; of the second class the maker. While such possession is unis the recent case of St. L. & N. A. Ry. v. doubtedly-prima facie, indeed, should be Crandall (Ark.) 86 S. W. 855, where the deemed-strong evidence that the instrument authorities in this state are cited to show came to the hands of the payee as an obligathat the consideration is, under certain cir- tion of the maker, enforceable according to cumstances, open to parol proof, not to its legal import, it is open to the latter to defeat, but effectuate, the real contract; prove the circumstances under which posand of the third class is State V. Wallis, session was acquired, and to show that there

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