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the lease when it was made, and cannot be pation of office case], as was held in Williams retrospectively made such when rights are v. Citizens, 40 Ark. 290.

No claim builded upon it which were enforceable be- for fees or emoluments was made by the tween the parties, and then valid. This is a plaintiff.” Wheat v. Smith, 50 Ark. 206, 7 statutory, not a common-law, right of forfei- S. W. 161. State v. Johnson, 26 Ark. 281, is ture at the instance of the state. Therefore one of the leading American authorities to the court erred in forfeiting the lease upon sustain the view that trial by jury was not a this ground.

right at common law on quo warranto pro3. The next ground of forfeiture which the ceedings to oust an alleged usurper from ofcourt sustained was a failure to furnish the fice. There is much conflict of authority on patrons of the road reasonable shipping ac- that question. It seems that the weight of commodations for freight. The evidence was authority is against that view, but the same insufficient to work a forfeiture on this rule is adhered to in Wheat v. State, since ground. There was not much evidence on the adoption of the Code, when no fees or this issue, most of it being directed to the emoluments are claimed, and merely the title passenger facilities; and what there was on to the office is in question. Whether Johnson the subject did not show sufficient failure in v. State is authority for the nature of the public duty to forfeit the franchise on this writ as an original proceeding under the pres. ground, and doubtless it would not have been ent Constitution is not a question in this case. forfeited upon it alone.

In the case of Taylor and Marshall v. Beck4. On the alleged failure to "maintain said han, 178 U. S. 548, 20 Sup. Ct. 1009, 44 L. property in good repair, so as to afford safe Ed. 1187, the Supreme Court of the United and reasonably prompt facilities of travel to States held that a public office was not propthe public," there is substantial evidence jus- erty, and this view will unquestionably lend tifying the court in finding that the appellant great weight to the line of authorities like had failed in its duty to the public in this State v. Johnson and Wheat v. Smith, denyregard. Although error was committed in ing trial by jury in usurpation of office proadjudging the forfeiture on the other grounds, | ceedings. Chief Justice Cockrill evidently the judgment must be affirmed, unless this had that distinction in mind in Wheat v. question of fact was one upon which the ap- Smith, when he called attention to the fact pellant had a constitutional right to trial by that fees and emoluments were not involved jury. The question in the first trial was sub- in that suit. When a franchise or charter is mitted to a jury, which disagreed; and on in issue, and the manifold contractual rights the second trial the court held that the appel- growing out of them, property, in its highest lant was not entitled to a jury trial, and sense, is involved. In quo warranto proceedheard the case before the court. The appel- | ings at common law, brought to vacate charlant demanded a trial by jury, and has pre- ters, trial by jury seems universally to have served proper exceptions to the action of the been accorded to determine the facts. In court in denying it. There was much ancient People v. Albany & Sus. R. Co., 57 N. Y. 161 learning on the subject of writs of quo war- -an action by the Attorney General, in the ranto and informations in the nature of quo nature of quo warranto, to try the title of warranto. A reference to the subject may be directors controlling a corporation—the court found in the recent case of Moody v. Lowri- said: “This issue, being strictly a legal issue more (Ark.) 86 S. W. 400, and the cases there in its character, is one in the trial of which, cited. Those questions are academic now. in the language of the Constitution, the trial While this court is clothed with jurisdiction by jury has been heretofore used. Such a to issue, hear, and determine the writ in aid trial was therefore the constitutional right of its appellate jurisdiction, the writ and in- of the parties.” The Supreme Court of Florformation, as an original proceeding, are ida said: "Our examination into the matter abolished by the Code. "Actions by proceed- has conducted us to the conclusion that at ings at law may be brought to vacate or re- the time of the Revolution the trial of pure peal charters and prevent the usurpation of questions of fact in such proceedings was by an office or franchise." And actions to repeal jury.” The court then proceeds to cite and or vacate a charter shall be in the name of quote from the common-law authorities showthe state, and brought and prosecuted by the ing that issues of fact were uniformly triable Attorney General, or under his sanction and by jury. The court proceeded: “In Rex v. direction. Kirby's Dig. 88 7981, 7982. In con- Bennett all the judges of England were equalsidering these Code changes, the court said, ly divided, the division being over the questhrough Chief Justice Cockrill: “But the con- tion whether a new trial could be granted stitutional right to trial by jury is confined after a verdict in favor of the defendant in to cases which by the common law were so such proceeding. The view that the suit was triable (citing authorities]; and it was de- criminal then widely prevailed, but this point cided in State v. Johnson, 26 Ark. 281, that was finally settled in favor of the view above the right did not extend at common law to a announced—that the action, though criminal civil proceeding in the nature of quo war- in form, was regarded as a civil suit for the ranto against a public officer. The statute purpose of trying the right to the franchise." does not enlarge the right, nor attempt to ex- Buckman v. State, 34 Fla. 48, 15 South, 697, tend it to cases of this or like nature [a usur- 24 L. R. A. 806. In Attorney General v. Sullivan, 163 Mass. 446, 40 N. E. 843, 28 L. R. A. 455, the Massachusetts court said: “Without considering whether a suit or information to declare forfeited the charter of a private corporation would not be held to be a controversy concerning property, within the meaning of this article, we are of the opinion that a public office, such as that of president of the common council of the city of Lowell, is not property, within the meaning of this article." The common-law authorities showing that issues of fact in quo warranto were triable by jury are collected in this case. The Indiana court said that the decided weight of authority was that issues of fact in quo warranto proceeding were triable by jury at the time the common law was inherited by the colonies, and cites the authorities on both sides of the question. Reynolds v. State, 61 Ind. 393. In Com. v. Delaware & Hudson Canal Co. et al., 43 Pa. 295-a proceeding by quo warranto to control the improper exercise of corporate powers, and oust the corpo ration from the excessive exercise of themthe court said: “It is a matter of no importance to the parties whether this authority is exercised in the common law or in equity form, provided the right of trial by jury is

tiff to disregard the contract, and sue on a quantum meruit for the lumber furnished under the contract.

Appeal from Circuit Court, Columbia County; Charles W. Smith, Judge.

Action by D. R. Smith against the Magnolia Compress Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was a suit brought by the appellee, D. R. Sinith, against the appellant, Magnolia Compress Company, for the recovery of the value of a lot of lumber furnished the appellant by the appellee. The complaint alleged that appellee furnished the appellant 40,000 feet of rough lumber, worth $9 per thousand feet, to wit, $360; that he also furnished defendant 44,000 feet dressed lumber, worth $10 per thousand feet, to wit, $440; that there has been paid on said amounts the sum of $630, and there is due plaintiff $170, now past due. Wherefore he asks judgment for said sum, costs, and other relief. The appellant answered, denying these allegations, and averring that the lumber furnished by appellee to appellant was on the following contract, to wit:

not "interfered with, this is a thot be furibis l'his agreement

made and entered into

case." See, further, People v. Doesburg, 16

this the third day of April, 1899, by and be Mich. 133; State v. Burnett, 2 Ala. 140; State

tween D. R. Smith and John Wilkerson, V. Allen, 5 Kan. 213. While some of the cases

parties of the first part, and the Magnolia referred to, and many reviewed in those cas

Compress Company, parties of the second es, are dealing with the question of public part, all of the county of Columbia, and office, and their conclusions are different

State of Arkansas, witnesseth: from the rulings of this court on the subject, "That the parties of the first part do hereyet it is thought that a consideration of them by agree and bind themselves to furnish to shows beyond question that, so far as fran- the parties of the second part, the following chises and corporate interests and property

bill, kind and quality of lumber, to wit: Two rights are concerned, it was thoroughly set

hundred nd eight (208) pieces of lumber, tled at common law that issues of fact were 6x8, sixteen feet in length. Eight hundred triable by jury. That being true, then that and sixteen (816) pieces 2x10, sixteen feet right is preserved to litigants by the Consti- in length, the same to be well sawed and tution. Therefore the court is of opinion that strictly all heart, but rough and undressed. in quo warranto proceedings in courts of Two thousand one hundred and fifty (2150) original jurisdiction, brought under the Code pieces of lumber, 2x8, 12, 14 and 16 feet in and statutory provisions, to annul, vacate, length, to be well sawed and sized, and and cancel a charter or franchise or any oth- strictly all heart. The same to be delivered er property right (not including title to pub- on the grounds of the said Magnolia Comlic office), the right of trial by jury of issues press Company, in the town of Magnolia, of fact is a constitutional right.

Arkansas, at and for the sum of Seven and The case is reversed, and the cause re- hall Dollars ($7.50) per thousand feet. The manded, with directions to try the issues of same to be delivered on or by the aforesaid fact by jury.

date, then they, the parties of the first part agree to pay the said parties of the second part $10.00 per day for each day after the

1st day of July, 1899, until said lumber aforeMAGNOLIA COMPRESS CO. V. SMITH. said is delivered. (Supreme Court of Arkansas. May 27, 1905.)

"And the said parties agree and bind them

selves in consideration of the aforesaid SEVERABLE CONTRACTS-CONSTRUCTION.

agreement of the said parties of the first Where a contract provided that plaintiff should furnish certain described lumber to de

part aforesaid, being well and fully perfendant at a certain price, and that plaintiff formed, to pay to the said parties of the should also have the bill for any other lumber first part, the sum of seven and half dollars defendant might need, the contract was severable; and a breach by defendant of the provi

($7.50) per thousand feet for said lumber desion that plaintiff should have the bill for any

scribed aforesaid. The price herein named other lumber it might need did not entitle plain- is for delivered lumber on the grounds of the

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Magnolia Compress Company; it is also construed as binding appellee to furnish the agreed that the parties of the first part shall lumber at the same price, or to furnish it at have the bill of any other lumber that the all. If appellant had called upon appellee to Compress Company may need in the build- furnish more lumber than that called for in ing, at the same price, $7.50 per thousand the first clause of the contract, at $7.50 per for rough lumber.

thousand, could appellee have been forced “In testimony whereof we hereunto set to furnish it? We think not. Could appel. our hands and seals, this first day of April, lant have refused to pay for lumber fur1899. D. R. Smith. John Wilkerson."

nished by appellee under the first clause, beThe appellant alleged that it had paid ap- cause of a failure upon the part of appellee pellee for all the lumber furnished according to have furnished any amount appellant to the terms of the contract $7.50 per thou- | might have needed and demanded under the sand feet. Appellant then set up a breach second clause? Certainly not. It is very of the contract on appellee's part, alleging clear from the language used in both clauses, “that the plaintiff failed to deliver said lum. that the parties did not intend that the enber on or by the 1st day of July, 1899, and forcement of the first clause of the contract never delivered same in full until about the should be conditioned upon the performance 1st of August, 1899; that, by the terms of of the second. We are of the opinion that said contract, said defendant is entitled to the contract is clearly severable, and that recover from the said plaintiff the sum of the failure of appellant to perform the sec$10 for each and every day that the plaintiff ond clause would not justify appellee in failed to deliver the said lumber in full after treating the contract as discharged and rethe 1st day of July, 1899; that by reason of scinded, and suing upon the quantum meruit. said failure said defendant was damaged in The utmost that could be claimed would be the sum of $250." And appellant asked judg. that the breach by appellant would be a parment against the appellee in that sum. The tial failure of performance on its part, that verdict was for appellee for $75, and judg. would give appellee the right to compensament entered for that amount.

tion in damages; the amount being the price Magale & McKay, for appellant.

designated for which the lumber was to be

paid by appellant in case any had been furWOOD, J. (after stating the facts). The

nished. The court erred in treating this as first question presented on this appeal is.

an entire contract, and in not granting apconceding that appellant violated the second | pellant's second request for instruction clause of the contract in evidence, by pur- (which reporter will set out in note).1 Lawchasing a car load of lumber from a third son on Con. $ 450; Jacob Weintz v. Hafner, party, which was used by appellant in erect

78 III. 27; 2 Parsons, Con. 672, note; Gatlin ing its building, did this give appellee the & Gibson v. Wilcox, 26 Ark. 309; Bertrand right to ignore the terms of the contract as v. Byrd, 5 Ark. 657. See E. A. H. F. Co. v. to the price of lumber which he had fur- Tanner, 67 Ark. 156, 53 S. W. 886. nished, and to sue appellant therefor upon

For this error the judgment is reversed, quantum meruit? The second clause reads: and the cause is remanded for new trial. "It is also agreed that the parties of the

1 The following is the request for an instrucfirst part shall have the bill of any other

tion by defendant referred to in the opinion : lumber that the Compress Company may “(2) The jury are instructed that if they find need in the building, at the same price $7.50 from the evidence that the compress company per thousand for rough lumber." This clause

agreed with the plaintiff to give him a bill for

any other lumber that it might need in the erecof the contract is wholly independent of the

tion of its compress, and which lumber is not first clause. There is nothing to indicate specified in the contract, and that the compress that it was a part of the inducement for the company failed to furnish the plaintiff with

a bill for any or all of the lumber used in the first clause. There are no reciprocal obli

erection of said compress, and not specified in gations in it. The compress company, under the contract, and purchased same from other it, is bound to give appellee the bill of any parties, that this will not constitute such a other lumber it may need in its building at

breach of the contract in this case as will en

title the plaintiff to recover the cash market the same price ($7.50 per thousand); but

value of the lumber at the time it was delivthere is nothing in the clause that can be ered."

MORRIS v. GREEN. (Supreme Court of Arkansas. May 27, 1905.) 1. CONTRACT-FORFEITURE-RELIEF.

Where an agreement secured is simply one for the payment of money, a forfeiture incurred by its nonperformance will be relieved against on payment of the debt, interest, and costs. 2. VENDOR AND PURCHASER CONTRACT OF SALE-VALIDITY.

A contract for the purchase of land providing for the payment of the price in installments, evidenced by notes, and also providing that on the payment of the notes, interest, and taxes, the vendor would execute a deed therefor to the vendee, and that, in case of default on the first payment, all the notes were to become due, and payments made on the purchase price were to be considered as rent, is valid. 3. SAME-FORFEITURE FOR NONPERFORMANCE -ESTOPPEL TO CLAIM.

Where the vendor, under the contract, permitted the vendee, who was an illiterate person, and who testified that he had no knowl. edge of the rent provision, to continuously and substantially improve the land after a forfeiture had been incurred by the strict letter of the contract, accepted the vendee's money, knowing that the vendee believed that each payment was reducing the debt on his land, and for over a year after the default retained the vendee's notes, which were negotiable, and on their face not due, and failed to notify the vendee that the contract was forfeited, he was estopped, in a court of equity, from insisting on the letter of the contract.

Appeal from Lonoke Chancery Court; John Fletcher, Special Chancellor.

Action by W. N. Morris against Eli Green for rent. From a judgment of a justice of the peace in favor of plaintiff, defendant appealed to the circuit court, and by consent the cause was transferred to equity, and consolidated with a suit by Green against Morris for specific performance of a contract for the purchase of the land in ques. tion. From a decree in favor of Green, Morris appeals. Affirmed.

Oliphint & Miles, for appellant. P. C. Dooley and Pugh & Wiley, for appellee.

made on the purchase price were to be considered as rent. The contract, on the face of it, was a valid one. Ish v. Morgan, 48 Ark. 413, 3 S. W. 440; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Block v. Smith, 61 Ark. 266, 32 S. W. 1070. Green was an ignorant negro, whose learning was limited to ability to sign his name. Morris was a business man. This contract was read over to Green and signed by him. The first note fell due two days after its date, and Morris admits that he knew Green could not pay it, and agreed to wait till the second became due before requiring payment of the balance of it; the $45 then being the only payment required. Green testified that úuder the original verbal contract, and the written contract as he understood it, he was to have four years to pay for the land, and, further, that he did not know of the rental provision in case of default. Conceding that his evidence is not sufficient to overcome the written contract (Goerke v. Rogers, 86 S. W. 837), pass to the subsequent conduct of the parties. In the fall of 1898 Green was owing, under the written contract, on the land, $195, and owing a store account to Morris of $169.05. To secure the latter, Morris had a crop mortgage. From the proceeds of his crop Green paid Morris in October $151.60. He says it was agreed that $100 should be paid on the land debt. Morris denies this, and asserts it was all paid on the store account. Morris says that Green then forfeited his contract, but fails to show any notice of such assertion of this claim to Green, beyond saying that he told his bookkeeper to tell Green.

Green says he was not so notified, and the bookkeeper was not called. Green made several payments after this alleged forfeiture. According to Morris' books, his total payments were $184.92, which would be $33.32 after the October payment, and which would discharge the store account due of that date, and leave $17.45 to apply on the land. The chancellor found—and there is evidence to sustain it—that Green made further payments, which are not entered on Morris' books. Morris entered upon his books a charge against Green for rent, but the date of the entry fails to appear on the books. Morris did not return the notes till 1901. In November 1899, Morris received an offer from a responsible party, acting as Green's attorney, to pay all Green owed, and asking a statement of his account. Green also made an arrangement with a bank in November, 1899, to secure the money to pay Morris; the bank only requiring that Morris furnish a statement of the amount. Green positively and circumstantially testified to repeated demands for a statement from Morris, and was always refused or postponed, and always assured, until October, 1899, that he had four years in which to pay out this land. In October, 1899, Morris claimed that the contract was forfeited; and it was short

HILL, C. J. Morris sold Eli Green a 40acre tract of land for $480. This agreement was verbal, made about March 1, 1897, and no written evidence of the contract was to be made until a payment on purchase price was made. Green went into possession at once, and commenced improving the land. On the 28th of October, 1897, Green paid Morris $45 on the purchase price, which payment was satisfactory to Morris, who then drew a written contract between them. This contract provided for the payment or the $480 in four equal, annual installments, evidenced by four notes executed by Green, due November 1, 1897, November 1, 1898, November 1, 1899, and November 1, 1900. The contract provided that on the payment of each of said notes, with accrued interest, and the taxes upon the land, Morris would execute a deed therefor to Green; and, in case of default upon the first payment, all the notes were to become due, and payments

ly after that that Green made the arrange a year after the alleged forfeiture; to fall ments to borrow the money to pay the bal- to notify him that the purchase contract ance, but could not secure a statement of it. was forfeited, and that all payments prior From the time he went into possession till and subsequent thereto were rent payments the alleged forfeiture, Green had put about —estops Morris, in a court of conscience, $350 worth of permanent improvements on from insisting upon the letter of his conthe land. In February, 1901, Morris at- tract. These facts, and more, are found in tached Green's crop for rent.

This case Green's evidence, which comes here acoriginated in justice court, and went to the credited by the chancellor, and is strongly circuit court on appeal; and in the circuit corroborated. In truth, the most of the escourt Green filed an answer and cross com- sential facts are admitted by Morris. plaint, averring that he had purchased the The decree is affirmed. land, improved it, and paid $240 on the purchase price, and had repeatedly offered to pay the balance, and that he was imposed BOYNTON et al. V. ASHABRANNER. upon in the written contract, etc., and asked (Supreme Court of Arkansas. May 27, 1905.) a transfer to equity, and prayed specific per- 1. EVIDENCE-BEST AND SECONDARY. formance of the original contract upon pay- Kirby's Dig. $ 3064, providing that a comment by him of balance due. This case was

missioner's transcript from the State Land Of

fice shall be evidence of the facts therein stated, transferred to the chancery court, and Mor

makes such certified copies of the records of ris filed an amended complaint, and alleged equal dignity with the originals. a misdescription of the land in the contract, [Ed. Note.-For cases in point, see vol. 20, and prayed a reformation of it, and that the Cent. Dig. Evidence, $8 1302-1314.] purchase contract be forfeited, and he have 2. PUBLIC LANDS-DEED BY STATE. judgment for rent. Green also brought suit

A subsequent deed by the state reciting that in chancery for specific performance, which

the land agent granted a patent certificate to

the grantee on a prior date, and that, the purwas consolidated with this transferred case.

chase money having been fully paid, the conThe chancellor found in favor of Green, as- veyance was made by the Auditor, was ineffectcertained the amount due on the purchase

ive to avoid a state deed to another on a prior

date, in the absence of proof rebutting the preprice, after all payments were credited, and sumption that the prior grantee had surrenderdecreed specific performance by directing ed a certificate prior to that of the subsequent Morris to make a deed upon the payment grantee, or made a valid assignment of such

certificate. of said amount. This decree is right.

3. CONSENT DECREE_VALIDITY. Morris testified that his intention in put

Where it appeared that a consent decree ting the forfeiture provision into the title was entered between two terms of court, it was bond was to secure the payment of the mon- a nullity. ey, and not to enable him to get the land 4. SAME. back. "It is well settled that, where the

A consent decree void because entered be

tween two terms of court was not cured by a agreement secured is simply one for pay

subsequent order, entered in term time. Du ment of money, a forfeiture either of land porting only to correct an error in the descripor chattels, etc., incurred by its nonperform- tion of one of the parties. ance, will be relieved against on payment of

5. ADVERSE POSSESSION.

A claim of ownership, payment of taxes, debt, interest, and costs.” Pomeroy, Eq. Jur.

and the exercise of fitful, disconnected acts of (2d Ed.) § 450. Moreover, the facts estop possession, and the cutting of timber and fireMorris from claiming a forfeiture of the wood, were insufficient to establish adverse pos

session. purchase contract. This court approved this

6. SAME-PAYMENT OF TAXES. thoroughly sound principle of equity juris

On an issue of title to property by adprudence: "If there has been a breach of

verse possession, a general statement of paythe agreement sufficient to cause a forfeiture, ment of taxes for 12 years is insufficient to overand the party entitled thereto either express

come evidence of a tax receipt produced for one

of such years by the opposite party. ly or by his conduct waives or acquiesces in

7. SAME. it, he will be precluded from enforcing the

Where certain tax receipts described the forfeiture, and equity will aid the defaulting land, by mistake, as the west half of the southparty by relieving him against it, if neces

east quarter of a certain section, instead of the

east half of such section, they were insufficient sary." Little Rock Granite Co. V. Shall,

to support a title by adverse possession, under 59 Ark. 405, 27 S. W. 562. In the first place, Kirby's Dig. $ 3057, providing that unimproved the default in the payment of the first note and uninclosed land shall be deemed to be in (due two days after its execution) was ad

possession of the person who pays the taxes

thereon, if he have color of title thereto, etc. mittedly waived when the note was ecuted, and the performance of the contract

Appeal from Mississippi Chancery Court, in regard to it was not expected or required.

Chickasawba District; Edward D. Robertl'ermitting this ignorant negro to continu- son, Chancellor. ously and substantially improve the land;

Action by C. D. Boynton and others to accept his money knowing that he be

against Thomas Asbabranner. From a judglieved, and with good reason, that each pay

ment for defendant, plaintiffs appeal. Rement was reducing the debt on his land; to

versed. retain his notes for the purchase price (ne- Driver & Harrison, for appellants. W. J. gotiable and on their face not due) for over Lamb and J. T. Caston, for appellee.

ex

*For supplemental opinion, see 88 S. W. 1011.

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