The fact that a note bears after the name of the payee letters shown to indicate the title of the payee's office in a beneficial association does not render the note payable to the payee, other than in his own right.

2. APPEAL-TRIAL TO THE COURT-QUESTIONS FOR REVIEW.

Where a cause was tried by the court without a jury, and the court was not asked to make any declarations of law, the only question on appeal was whether the evidence supported the finding and judgment.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Action by D. A. Robinson against Bryant Luster. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

In 1893 D. A. Robinson was a member of an incorporated society known as the United Brothers of Friendship and Sisters of the Mysterious Ten. He held the office of grand master for Arkansas in that society. While he held this office, J. T. Thompson, Bryant Luster, and John Veverly executed to him a promissory note in words and figures as follows: "Ninety days after date we promise to pay to the order of D. A. Robinson, G. M. U. B. F. & S. M. T., fifty dollars for value received, negotiable and payable without defalcation or discount at the office of the Citizens' Bank of Little Rock, Ark., with interest from date at the rate of ten per cent. per annum from date until paid." Robinson brought suit on this note against the defendants, who were duly summoned, and judgment by default was rendered against them by T. W. Wilson, justice of the peace, for the amount of the note and interest. The judg ment commences by reciting that "on April 20, 1894, the plaintiff, D. A. Robinson, as G. M. U. B. F. S. M. T., heretofore filed his complaint against the defendants," etc. It then recites that the defendants came not, but made default, and that the action was founded on a promissory note, which is set out in full in the judgment. The judgment then proceeds as follows: "Whereupon it is considered, ordered, and adjudged by the court that the plaintiff have and recover of and from the defendants the sum of fifty dollars for the principal debt, and the further sum of two dollars interest to this debt, and all costs herein expended, and have execution therefor; this judgment to bear interest at the rate of ten per cent. per annum until paid." In March, 1903, Robinson brought suit on this judgment against Bryant Luster.

On the trial the defendant set up that the note upon which this judgment was based was executed to Robinson, as grand master of the United Brothers of Friendship and Sisters of the Mysterious Ten, in payment of a debt which J. T. Thompson owed to that society, and that Robinson had no personal interest in the note, or in the judgment based thereon; that afterwards the defendant compromised and paid off the judgment to the successor of Robinson in the office of grand master. Robinson claimed that the note was executed for an individual debt, in which the society had no interest. The justice found in favor of plaintiff, and in a trial de novo in the circuit court the same judgment was rendered, from which the defendant appealed.

L. J. Brown, for appellant. Marshall & Coffman, for appellees.

RIDDICK, J. (after stating the facts). This is an appeal from a judgment of the circuit court in a case tried before the judge of that court without a jury. The court was not asked to make any declarations of law, and the only question presented by the ap peal is whether the evidence is sufficient to support the finding and judgment of the court in favor of plaintiff. The note upon which the judgment sued on was based was made payable to "D. A. Robinson, G. M. U. B. F. & S. M. T." The evidence shows that these letters stand for "Grand Master United Brothers of Friendship and Sisters of the Mysterious Ten." But this title following the name of the payee in the note was only a designation of the person to whom it was to be paid, and shows that the note was to Robinson in his own right. The suit in which the first judgment on this note was rendered was brought before a justice of the peace, and no complaint was filed except the note itself. The note shows on its face that it was due to Robinson in his own right, and not as the representative of the society, and was set out in full in the judgment. Where the judgment, as a whole, is considered, we do not think that it shows that it was rendered in favor of Robinson in his representative capacity. The evidence as to whether the plaintiff or the society was the real owner of this judgment was conflicting, and the finding of the court that he was the owner has evidence to support it.

Though the case is a close one on the evidence, the finding of the circuit court settles the case so far as the facts are concerned, and, as no error of law appears, the judgment must be affirmed. It is so ordered.

MOUNTAIN PARK TERMINAL RY. CO. v. FIELD et al.

(Supreme Court of Arkansas. July 1, 1905.) EMINENT DOMAIN-RIGHT TO EXERCISE POWER-JURISDICTION OF COURT.

Since Kirby's Dig. §§ 2947, 2952, 2954, 2955, providing for the condemnation of land by a railroad company for its right of way, and for the impaneling of a jury to ascertain the compensation by proceedings as in civil cases, etc., assume that a railroad company filing a petition is entitled to the right of way on making compensation, the court, on the hearing of such a petition, cannot try issues raised by an answer alleging that petitioner was not organized to build a railroad, but to carry out the private enterprise of an individual, and that the purpose was merely to construct a switch to reach the individual's business establishment, but should permit the owner to amend by praying for equitable relief, and then transfer the cause to the chancery court.

Appeal from Circuit Court, Pulaski County; Edward W. Winfield, Judge.

Condemnation proceedings by the Mountain Park Terminal Railway Company against W. H. Field and others. From a judgment dismissing the petition, petitioner appeals. Reversed.

H. M. Armistead and John McClure, for appellant. Rose, Hemingway & Rose, and J. W. & M. House, for appellees.

BATTLE, J. On the 20th of April, 1904, the Mountain Park Terminal Railway Company filed a petition for condemnation of a right of way through certain lands of W. H. Field and others. "The petition, in the usual form, alleges the incorporation of the railroad company; the route of said railroad; that its road is surveyed and located in Pulaski county; that the defendants are the owners of certain lands which are described; that said lands are unimproved; that it has failed to obtain the right of way over the said land by agreement with the owners thereof; that it is desirous of beginning work on its railroad; asks the court to designate a sum of money to be deposited by plaintiff for the purpose of making compensation, etc., and that a jury be impaneled to ascertain the amount of compensation to which the owners of said land may be entitled; and that an appropriate order and judgment be entered, vesting the petitioner with a right of way one hundred feet in width through said land, etc.

"Notice was duly served on the defendants, notifying them that on a certain date the plaintiff would apply to the judge of the second division of the Pulaski circuit court for an order fixing the amount of the possible damages that would result from the construction of said railroad over the land of the defendants."

On the 7th day of May, 1904, the defendants filed an answer as follows:

"The defendants deny the right of the plaintiff to maintain this condemnation proceeding, and say that the plaintiff was not

88 S.W.-57

organized in good faith for the purpose of building a railroad, nor for any public purpose, but is organized solely to carry out the private enterprise of one Charles M. Newton, who has subscribed for substantially all of the stock of said company. The fact is that on the south side of the Choctaw, Oklahoma & Gulf Railroad, along where the line of plaintiff is sought to be constructed, there is a high hill, composed entirely of stone, that is valuable for crushing into small fragments of stone, suitable for ballasting railroads, making macadam highways, the construction of concrete, and other like purposes. The front of these hills cannot be utilized, because any rock blasted from them would fall upon the track of the Choctaw, Oklahoma & Gulf Railroad; but at a point where the plaintiff seeks to condemn there is a narrow gorge, penetrating said hill, up which a railroad track can be built for a short distance. But the part of said hill adjacent to the right of way of said railroad belongs to defendants, who contemplate the erection of a crushing plant in said gorge. A part more remote, and further up said gorge, belongs to said Newton, who also desires to put in a crusher; but said gorge is so narrow that, if a railroad track is constructed up said gorge so as to reach the property of said Newton, it will preclude these defendants from the erection of any crusher for their own use, and will also destroy the value of the great rock deposits which they may possess in that vicinity. The sole purpose of said Newton in seeking to condemn a right of way is merely to traverse the defendant's land in order to get to a crusher of his own at the sacrifice of the property of these defendants. It is impossible to build said railroad as laid out, because the grade up to the said property, known as 'Mountain Park,' is so steep that no railroad train could be run upon any railroad that might be built. The said Newton has caused a railroad to be surveyed only for a distance of about 1,700 feet-just far enough to bring it to the site of his proposed crusher-and at this point the railroad survey sinks to a depth of twelve feet into the hill, and further progress is impossible. Defendants deny that said plaintiff ever contemplates building any further, or doing more than to construct a switch to reach a crusher of said Newton, and they deny that any public purpose will be subserved by the building of the proposed railroad. The railroad of the plaintiff is laid out to run from the city of Little Rock to said Mountain Park, but these defendants say this is merely a pretense, and a scheme to perpetrate a fraud upon the law and upon this honorable court, and that the plaintiff has taken no steps to acquire the right of way, save the few feet that are necessary to reach from the Choctaw, Oklahoma & Gulf Railroad to the site of the proposed crusher of the said Newton."

Plaintiff filed a motion to strike the answer from the files of the court, and on the 21st of May, 1904, the court overruled the same. After hearing the evidence the court found that the proposed construction is for private purposes, and the right of eminent domain does not exist in this case, and dismissed the petition.

Did the court err in overruling the motion to strike the answer from the files?

The proceeding prescribed by statute for the condemnation of land for right of way for a railroad is special. Section 2947 of Kirby's Digest provides: "Any railroad company organized under the laws of this state, after having surveyed and located its lines of railroad, shall in all cases where such company fails to obtain, by agreement, with the owner of the property, through which said lines of railroad may be located the right of way over the same, apply to the circuit court of the county, in which said property is situated, to have the damages for such right of way assessed, giving the owner of such property at least two days' notice, in writing, of the time and place where such petition will be heard." Section 2952 provides: "It shall be the duty of the court, to empanel a jury of twelve men, as in civil cases, to ascertain the amount of compensation which such company shall pay, and the matter shall proceed and be determined, as in other civil causes." Section 2955 provides: "When the determination of the question in controversy in such proceeding is likely to retard the progress of the work on, or the business of such railroad company, the court, or judge, in vacation, shall designate an amount of money to be deposited by the company." Section 2954 provides: "In all cases where damages for the right of way for the use of any railroad company have been assessed in the manner hereinbefore provided, it shall be the duty of such railroad company to deposit with the court or to pay to the owners the amount so assessed, and pay such costs as may, in the discretion of the court, be adjudged against it, within thirty days after such assessment; whereupon it shall, and may be lawful for such railroad company to enter upon, use and have the right of way over such lands forever." From these statutes it appears that the sole object of the proceedings provided for by them is to ascertain the damages that the railroad company shall pay for right of way. They seem to assume that the railroad company is entitled to the right of way upon making compensation for same.

In Niemeyer & Darragh v. Little Rock Junction Railway et al., 43 Ark. 111, the appellants sought to enjoin the railroad company from building its road along a certain alley and taking certain lots; alleging in their complaint "that the organization of the company was a fraud upon the state, in this: that it was not a bona fide company organ

ized to build and operate a railroad company as pretended, but in effect a bridge company, taking the guise and semblance of a railroad company for the purpose of building, using, and deriving service from the bridge, with the exemption from taxation accorded by statutes to the bridges of railroads," etc. One of the questions in that case was, were not the appellants barred from maintaining their suit by the proceedings instituted by the railroad company for right of way? The court said: "Nor is it at all clear to our minds that the appellants have a full, complete remedy at law, to be obtained by way of defense to the special proceedings in the circuit court for condemnation. The junction company, in all purely legal aspects, is a proper corporation, clothed with franchise of eminent domain to the extent of its necessities. The proceeding under our statutes is a special one, directed solely to the object of determining the compensation to be paid the owner of property proposed to be taken. No provision is made for any issue upon the right to condemn. It could not there be proved that the junction company was not a corporation. To attack its existence collaterally is not permissible. A plea in the nature of nul tiel corporation would not be safe, in the face of complete articles of association. Besides, it is plain that the Legislature never contemplated any such defense as a want of right to condemn in the corporation. For, where the proceedings are liable to delay, it is made the duty of the court to fix a sum to be deposited by the company, and to allow the property to be taken and used in anticipation of the settlement of damages." See, also, Bentonville Railroad v. Stroud, 45 Ark. 280.

It follows, then, that the court erred in overruling plaintiff's motion and trying the issue presented by the defendants' answer.

But are the defendants without a remedy? Property cannot be taken from its owner without his consent, even under an act of the Legislature, and appropriated solely and exclusively to the private use of another person or corporation. Courts have the power to determine whether a particular use for which private property is authorized by the Legislature to be taken is in fact a public use. Shoemaker v. United States, 147 U. S. 298, 13 Sup. Ct. 361, 37 L. Ed. 170; Moore v. Sanford, 151 Mass. 285, 288, 24 N. E. 323, 7 L. R. A. 151; Welton v. Dickson (Neb.) 57 N. W. 559, 22 L. R. A. 496, 500, 501, 41 Am. St. Rep. 771; Chicago & Eastern Illinois Railroad Co. v. Wiltse, 116 Ill. 449, 6 N. E. 49; Cooley's Constitutional Limitations (7th Ed.) 774; 1 Lewis, Eminent Domain (2d Ed.) 158; 3 Elliott on Railroads, 962. As an incident to this power, in the absence of a statutory remedy, a court of equity has the power to restrain a railroad corporation from taking property for a private use.

In Niemeyer & Darragh v. Little Rock Junction Railway, 43 Ark. 120, the court

said: "Farther, with regard to corporations not acting under special charters of legislative grant, but voluntarily organized' under general laws, although their existence as corporations cannot be questioned collaterally, yet if they have resulted from fraudulent combinations of individuals to procure powers under circumstances and for purposes not within the scope and purpose of legislative intent, and the corporators, under shelter of their articles, are about to exercise powers oppressive to the individual, they may be restrained by private suit of those injured, or about to be. Fraud has no immunity anywhere, in any guise.

"This is the course that in this case has been pursued. We think the chancery court properly entertained the bill, and had jurisdiction to enjoin the company, if the merits of the case required that relief."

So individuals cannot combine as a railroad corporation and convert property of individuals solely and exclusively to their private use. That would be an abuse of the power to form such corporations under the statutes, and contrary to their spirit and intent, and "may be restrained by private suit by those injured, or about to be."

The judgment of the circuit court is reversed, and the cause is remanded, with leave to appellees to amend their answer so as to invoke equitable relief, and with directions to the court, when so amended, to transfer the cause to the proper chancery court.

Where an application for insurance was accompanied by a note for the premium, both of which were delivered in due form to the agent of the insurer, parol evidence was admissible in an action by the agent on the note to show that the plaintiff requested that defendants execute the note as evidence of their good faith, but not to be binding on them unless the policy, when it arrived, was satisfactory, and they accepted it.

Appeal from Circuit Court, Jackson County; Frederick D. Fulkerson, Judge.

Action by H. L. Remmel against H. C. Graham and others, doing business as Graham Bros. From a judgment in favor of plaintiff, defendants appeal. Reversed.

The following is a copy of the note referred to in the opinion: "Tuckerman, Ark., Feb. 27, 1902. On the delivery or thirty days thereafter, of a joint life policy in the sum of thirty-five thousand dollars ($35,000) on the ten year distribution plan in the Mutual Life Insurance Company of New York, on the lives of Henry C. Graham, J. R. Graham, T. J. Graham, Nimrod Graham, Nathan Graham, Josephus S. Graham and James Graham, known as the Graham Bros., we promise to pay to the order of H. L. Remmel the

sum of four thousand seven hundred and fifty-three and seventy-hundredths dollars ($4,753.70). Should the policy not be issued then this obligation to be null and void."

Jno. W. & Jos. M. Stayton and Morris M. Cohn, for appellants. Rose, Hemingway & Rose and S. D. Campbell, for appellee.

Mr.

HILL, C. J. In Jackson county there were seven brothers named Graham, engaged in mercantile pursuits and farming, and all in prosperous condition; and it developed in argument of the case at bar that they were each over six feet tall-fine specimens of Arkansas manhood. Mr. H. L. Remmel, the general manager of the state of one of the large insurance companies, knowing them, and recognizing the advantage to his company of securing a policy on the joint lives of these gentlemen, undertook personally to secure such a policy, and, to that end, visited them. The result was, an application was signed for a $35,000 policy on the lives of the seven Grahams, and a note for $4,753.71, payable to Mr. Remmel, was executed and delivered to him. Later a 10-year distribution plan policy for $35,000 was sent to the Grahams. It was not accepted, and negotiations were had between Mr. Remmel and some of them, looking to the securing of a different policy than the one sent. Remmel tried to get the one desired, and failed, and tendered a policy according to what he claims was the contract when the 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 reached when the application was signed and the note executed, and the policy tendered as in full and complete fulfillment of the contract as called for in the note, which will be set out in the statement of facts by the reporter. Mr. Remmel was supported in his statements by a letter written to him during the negotiations for the different policy, in which Graham Bros. stated: "Will say we are pleased with contract and have no objection whatever, but would like to have it changed to the five year distribution plan, as we have changed our minds on taking it on the plan applied for." They explain this letter by saying that it was dictated by Mr. Remmel himself to their attorney. This is admitted. And they further say it was written merely to facilitate Mr. Remmel in his effort to obtain from his company the policy they desired. The court excluded evidence offered by the appellants contradictory of Mr. Remmel's as to the execution of the note. The record reads as follows: "The defendants thereupon offered to prove by Thos. Graham that the plaintiff requested that they execute the note; that it might be necessary to attach the note to the application to show their good faith, but would not be binding upon them, except that if the policy, when it arrived, was satisfactory, and they accepted it

the note would be binding, otherwise it would be void. This was a condition which went with its execution. The evidence so offered having been ruled out, defendants excepted." Several other Grahams were offered on the same point. The court directed a verdict for Mr. Remmel on the note sued upon, judgment was rendered accordingly, and the Grahams have appealed.

The appellee relies upon Findley v. Means, 71 Ark. 289, 73 S. W. 101, and the authorities therein cited, to sustain the action of the circuit court in excluding this testimony. The syllabus of that case is as follows: "A deed, note, or other instrument of writing delivered to the grantee or obligee, to take effect when certain conditions are performed, becomes operative and binding from the time of delivery, though the conditions be not fulfilled." The authorities cited are Pope v. Latham, 1 Ark. 66; Inglish v. Breneman, 5 Ark. 377, 41 Am. Dec. 96; Scott v. State Bank, 9 Ark. 36; Chandler v. Chandler, 21 Ark. 95; Campbell v. Jones, 52 Ark. 493, 12 S. W. 1016, 6 L. R. A. 783. With the exception of Chandler v. Chandler, all these cases were cases of escrow, where the point decided was that there could be no delivery in escrow to the obligee of a bond, note, or other written instrument. Chandler v. Chandler holds that, where a bond or other writing is delivered conditionally to the obligee himself, it is operative and binding from the time of the delivery, though the conditions be never performed; and to the same effect is the ruling in Findley v. Means. The technical character of an escrow is not mentioned in these two cases. Where conditions subsequent are to be performed in order to render the note or bond operative, and when operative the written instrument is expressive of the entire contract, then it must be delivered to a third person, or the delivery to the obligee in escrow will be a good delivery, and the instrument cannot be contradicted by parol varying its terms. It is a completed contract, subject to conditions subsequent not in writing. But where the delivery would defeat the real contract between the parties, then it is competent to prove by parol (1) the whole contract, and that the writing was only part of the contract; or (2) to explain the consideration; or (3) to show that it was part of the contract that the writing was delivered, but not to become operative until another part of the contract-condition precedent-was fulfilled. Of the first class is Kelly v. Carter, 55 Ark. 112, 17 S. W. 706, where a deed did not evidence the entire contract, and parol evidence was admitted to show the entire contract; of the second class is the recent case of St. L. & N. A. Ry. v. Crandall (Ark.) 86 S. W. 855, where the authorities in this state are cited to show that the consideration is, under certain circumstances, open to parol proof, not to defeat, but effectuate, the real contract; and of the third class is State v. Wallis,

57 Ark. 64, 20 S. W. 811, and Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563, which is approved in State v. Wallis. In State v. Wallis, Mr. Justice Hemingway, speaking for the court, said: "Proof that such of the defendants as subscribed the bond did so upon the condition that other persons named in it as sureties would sign it was not incompetent. It was not designed to vary the terms of a written instrument, but to show that there never was a complete execution of such instrument. For this purpose it was competent. Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563.” In Ware v. Allen the Supreme Court of the United States held: "Parol evidence is ad missible in an action between the parties to show that a written instrument executed and delivered by the party obligor to the party obligee, absolute on its face, was conditional, and was not intended to take effect until another event should take place." Following Ware v. Allen, the Supreme Court of the United States, in Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698, carried the application of the dictum into a case identical in principle and analogous in fact with the one at bar. Mr. Justice Harlan, for the court, said: "And the evidence offered by the appellant and excluded by the court did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument was never in fact delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but was left in the hands of Dulaney, to become an absolute obligation of the maker in the event of his electing, upon examination or investigation, to take the stipulated interest in the property in question. In other words, according to the evidence offered and excluded, the written instrument upon which this suit is based was not except in a named contingencyto become a contract or promissory note which the payee could at any time rightfully transfer. Evidence of such an oral agreement would show that the contingency never happened, and would not be in contradiction of the writing. It would prove that there never was any concluded, binding contract, entitling the party who claimed the benefit of it to enforce its stipulations. The exclusion of parol evidence of such an agreement could be justified only upon the ground that the mere possession of a written instrument, in form a promissory note, by the person named in it as payee, is conclusive of his right to hold it as the absolute obligation of the maker. While such possession is undoubtedly-prima facie, indeed, should be deemed-strong evidence that the instrument came to the hands of the payee as an obligation of the maker, enforceable according to its legal import, it is open to the latter to prove the circumstances under which possession was acquired, and to show that there