(248 S.W.)

"4. The man who would ravish his brother's wife and later murder him would fabricate a defense just like Charlie Spier had done."

that his failure to turn aside to some other without turning aside to some other road, and road would not deprive him of his rights under the law of self-defense."

father, knowing they would likely meet Arthur, may have been regarded as a ruse by the jury. They may have disbelieved the testimony and concluded that he took the The last three statements were expresgun for the purpose of engaging in a shootsions of opinions only and, therefore, proping fray with his brother. As they were about to meet he was watching his brother er argument. The first statement did not reand quickly warned him not to draw his sult in any prejudice to the cause of appelpistol. The jury may have drawn an infer-lant, because the court instructed the juryence from his conduct and statement that he "that he (appellant) had a right under the was prepared to prevent Arthur from draw-law to pursue his regular or intended course ing the pistol, or, to put it in common parlance, that appellant had beaten him to it. While appellant stated that Arthur was the aggressor, his father, the only eyewitness, stated that he did not know who fired first. [6] Appellant's fifth assignment of error The conflict in the evidence, and the rea- is that the court refused to give four of the sonable inferences that might be drawn instructions requested by him. We have extherefrom, warranted the submission of the amined the instructions carefully and, by charge of murder to the jury, and was suffi- comparison with other instructions given by cient to support the verdict and judgment. the court, find that the instructions request[2] Appellant's second assignment of er-ed were fully covered by other instructions, ror is that the court permitted the wife of except that part of appellant's request No. deceased to testify that about two years be-1, embraced in the first sentence thereof. The fore the tragedy appellant ravished ner. This was the cause of the trouble between the brothers. The quarrel growing out of the affair never abated but continued unti it culminated in the tragedy. Being the origin of the trouble, the testimony was clearly admissible.

[3] Appellant's third assignment of error is that the court admitted proof of the insanity proceeding against Arthur. No objection was made to the testimony of Mrs. Arthur Spier relating to the insanity proceeding, at the time it was introduced. The testimony of the other witnesses concerning the insanity proceeding was elicited by appellant from his own witnesses. We are unable to

court gave that part of appellant's request. The court fully and correctly instructed the jury upon every issue involved in the case. No error appearing, the judgment is affirmed.

BOAS et al. v. MISSOURI PAC. R. CO. (No. 211.)

(Supreme Court of Arkansas. March 5, 1923.) I. Limitation of actions 55 (7)-Suit to enjoin obstruction of creek barred three years after completion of construction.

A suit to enjoin a railroad from obstruct

see just how the introduction of the testing and diverting the natural flow of a creek mony prejudiced the rights of appellant, but,

even if it did, he is in no position to complain.

[4, 5] Appellant's fourth assignment of error is that counsel for the state, over the objection and exception of appellant, made the following statements in the course of argument:

"1. The defendant could have turned aside to another road when he saw he was going to meet the deceased, and, having failed to do so, he did not use all the means within his power consistent with his safety to avoid the difficulty. He was, therefore, not entitled to invoke the law of self-defense.

"2. The defendant shed more tears in the last 24 hours than he had shed for years prior to the trial; that he should have gone to the grave of his deceased brother at the time of his funeral and shed some tears; that the evidence showed that he did not shed any at that

time.

"3. When Charlie Spier ravished the wife of deceased he forfeited the right to live, under the law.

by filling in a trestle spanning it and digging

a ditch too small to accommodate the flow during heavy rains, thus causing water to back up over plaintiff's lands, is barred after three years from completion of the construction; the nuisance as well as the injuries being original and permanent.

2. Limitation of actions 55(7)-Suit to enjoin excessive discharge of water into ditch not barred after three years from construction thereof.

A suit to enjoin a railroad from discharging water in such quantities from its boilers and roundhouse into a ditch, dug by it along the side of its track to carry off water diverted from a creek, by so filling in a trestle spanning it that the water backed up on plaintiff's land and became stagnant, was not barred after three years from completion of the fill and ditch; such acts constituting a continuing nuisance and injury distinct from the original nuisance and injuries.

Appeal from Lawrence Chancery Court; L. F. Reeder, Chancellor.

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Suit by Mrs. Ida Boas and others against, lants were inundated and greatly damaged the Missouri Pacific Railroad Company. with backwater. From a decree dismissing the bill, plaintiffs appeal. Affirmed in part, and reversed and remanded, with directions in part.

W. A. Cunningham, of Walnut Ridge, for appellants.

Thos. B. Pryor, of Fort Smith, and Ponder & Gibson, of Walnut Ridge, for appellee.

[1] The nuisance complained of consisted in filling in the trestle which theretofore spanned Turkey creek so as to divert the water from the channel of the creek, and by digging a ditch too small to accommodate the flow of water during heavy rains. The decided weight of the testimony shows that before the trestle was filled and the ditch constructed the water had not backed up over any of appellants' lands, but immediately thereafter and since that time has backed up and seriously affected said lands. The nuisance, as well as the injuries, were original and permanent, and the rights of action to enjoin the nuisance or sue for damages on account of permanent injuries accrued when the construction was completed in 1902, and suits should have been instituted within three years after that time. This court said in the case of Turner v. Overton, 86 Ark. 406, 111 S. W. 270, 20 L. R. A. (N. S.) 894:

HUMPHREYS, J. Appellants, 28 in number, commenced this suit in the Eastern district of the Lawrence chancery court, to enjoin appellee from obstructing the natural flow of Turkey creek until it provides complete drainage to carry off the water and from discharging water from their boilers and roundhouse into the ditch, cut on the west side of its track to turn Turkey creek, which water backs up to and on the lands of appellant in such way as to stand and become stagnant. Appellee filed an answer, admitting that it obstructed the natural flow of Turkey creek by damming the channel or filling in the draw where the creek crossed "When a nuisance is of a permanent charthe roadbed east of the lands of appellants, acter, and its construction and continuance are and turning the water into a ditch on the necessarily an injury, the damage is original, west side of its track, but alleging that the and may be at once fully compensated, and the right of action, if any, was barred by the statute of limitations begins to run upon the three-year statute of limitation; and deny-construction of the nuisance." ing that it is discharging water from its

boilers and roundhouse into the ditch which [2] The facts in that case are quite similar backs up to and on the lands of appellants to the facts in the instant case, and the so as to stand and become stagnant. Other defenses were introduced, but the proof was largely directed to the defenses set out above, so we deem it unnecessary to set out the others. The court found that the cause of action was barred by the three-year statute of limitation, and dismissed the bill of appellants for want of equity. From the decree dismissing the bill an appeal has been prosecuted to this court.

rule announced therein is applicable and controlling here. Appellants are clearly barred from maintaining this suit to abate the original and permanent nuisance. The case, however, is different with reference to water being continually emptied into the ditch from the boilers and roundhouse. The weight of the testimony is to the effect that the water discharged from the roundhouse either passed through a sump into Appellants were owners of certain lands the ditch, or directly into it to such an exin the town of Hoxie immediately west and tent that it backs up two blocks in dry across appellee's railroad track from its weather and stands in a stagnant pool near terminal and switchyard. Originally Tur- or on said land. The act of appellee in key creek flowed down from the north part discharging this water into the ditch from of said property and passed under the main day to day is distinctively a continuing line of the railroad and thence in a souther- nuisance and injury. It is in no sense a ly direction along the east side of the road- part of the original nuisance and injuries. bed for a considerable distance before The action to abate it was not barred when crossing back to the west side thereof. In this suit was instituted. The court erred 1902 appellee filled in the gap of its roadbed in dismissing this, the second cause of apwhere the creek first crossed it, so as to pellee's action. obstruct the flow of water, and in order to The decree is affirmed as to the first carry it off dug a ditch in a southerly direc- cause of action, but reversed and remanded tion along the west side of the roadbed to as to the second, with directions to enjoin connect with Turkey creek where it crossed appellee from emptying water out of its the roadbed a second time. According to the boilers and roundhouse, directly or indirectweight of the evidence, the ditch was not ly, into the ditch or the bed of Turkey creek large enough to carry off the water, and north of the ditch, without preparing faduring the heavy rains the lands of appel-cilities for carrying the water off.

(248 S.W.)

WEBB et al. v. SPANN. (No. 193.)

(Supreme Court of Arkansas. Feb. 26, 1923.)

1. Appeal and error 1010(1)-Findings of trial court accepted on appeal if supported by testimony.

Findings of the trial court sitting as a jury must be accepted on appeal if testimony is legally sufficient to support them.

2. Limitation of actions 105(2)-Pendency of suit to quiet title held not to prevent limltation in later action in ejectment.

Where a suit to recover land and quiet title was begun within seven years after defendants took possession of plaintiff's land, the pendency of that suit would prevent running of limitations against it, but would not prevent limitation against an action of ejectment begun after expiration of the seven years where there was no connection between the two cases, and no nonsuit had been filed in the first one. 3. Limitation of actions 15-Agreement to abide decision of Department of Interior held to toll limitations.

Where, after suit to recover land within the meander line of a lake occupied by defendants in 1911, and to quiet title, was begun, the parties agreed to let the ownership abide the decision of the Department of the Interior, the agreement operated to prevent running of limitations till the character of the land had been determined by the Department, which made deeision in 1920, and plaintiff's later action in ejectment was not barred by the seven-year statute.

4. Ejectment —9(4)—Plaintiff in possession of land under color of title can maintain ejectment against mere trespassers.

Plaintiff, having possession of land under color of title, can maintain ejectment against mere trespassers.

township 14, range 12 east, and have been occupying and claiming the same since the year 1911, without color of title thereto.

"(2) That the lands occupied by them are situated within the meander line of what is known as Hudgen's Lake.

"(3) That the plaintiff had color of title to and was claiming, clearing up, and had actual possession of the lands occupied by the defendants at the time of and prior to the occupancy of the defendants.

session of said lands, and within seven years, "(4) That after the defendants took posthe plaintiff commenced an action in the chan

cery court of the Osceola district of Mississippi county, Ark., against them, to recover said land from them, and quiet his title thereto, which action is still pending and undetermined.

"(5) That, after said action was commenced by the plaintiff in the chancery court, and within seven years after defendant took possession of said lands, the plaintiff and defendants entered into an agreement, whereby plaintiff and defendants agreed to let the ownership of the land abide the decision of the Department of the Interior, the defendants agreeing, in case the Department of the Interior decided in faVor of the riparian owners, to vacate said lands immediately.

cided in the year 1920 that there was no error "(6) That the Department of the Interior dein the original survey of Hudgen's Lake, and including the lands claimed and occupied by the defendants, belonged to and were owned by the riparian owners, including the plaintiff."

[1] Inasmuch as the case was heard by the court sitting as a jury, these findings must be accepted if the testimony is legally sufficient to support them when given its highest probative value in appellee's favor, and we think it is sufficient for that purpose. It is undisputed that appellants were squatters, who entered upon and occupied the land on the theory that it was government land, and did not belong to the riparian owners. At the time of their entry it was insisted by them that the government Separate actions of ejectment by J. C. survey was in error in showing the land Spann against J. C. Webb and others. Cases which they entered upon to be a lake, and consolidated for trial. From a judgment the Government Land Office was induced for plaintiff, defendants appeal. Affirmed. to verify this survey. A finding was made T. J. Crowder, of Blytheville, for appel

Appeal from Circuit Court, Mississippi County; W. W. Bandy, Judge.

lants.

J. T. Coston, of Osceola, for appellee.

SMITH, J. Appellee brought separate suits in ejectment against appellants, to recover certain parcels of land situated in section 22, township 14 north, range 12 east. The cases are identical,, and were tried together and disposed of as a single case. The court made findings of fact on all the issues raised in appellee's favor, and the recital of these findings will explain and state the case. They were as follows:

"(1) That the defendants are living upon and occupying land in the W. 1⁄2 of section 24,

by the Department that no error had been made in the original survey. The Department of the Interior reviewed this finding, and affirmed it. The effect of that action was, of course, to conclusively determine the fact that at the time of the government survey the land in litigation was a lake, and was therefore owned by the riparian proprietors.

It is insisted by appellee that, if the lake bed was apportioned among the riparian proprietors in accordance with the rules for such apportionment, the land in litigation would fall within the boundaries of appellee's land; but the court made no finding to that effect, the finding being merely that the lands covered by Hudgen's Lake were

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owned by the riparian owners, including appellee, and we do not feel called upon to attempt to determine whether the land would fall to appellee in this apportionment. Indeed, the determination of that question would involve the validity of appellee's title as a riparian owner-a question which we do not decide, as the case must be affirmed upon other grounds. Appellee had color of title to the land in litigation, and we think the testimony shows he had actual possession thereof at the time appellants entered; in fact, he had cleared about 100 acres of land in the south half of the section, and had it about ready for the plow when appellants entered upon it.

them that, if the land was government land, he had no claim to it, and was willing for appellants to perfect their homestead claims, and with this understanding, and because of it, he did not press the suit until the character of the land had been finally determined by the federal government. This finding of the Department of the Interior was made on December 18, 1920; but appellants refused to vacate, and thereafter these suits were brought in the spring of 1921. We think this agreement, which the court found the parties had made, operated to prevent the running of the statute of limitations until the character of the land had been determined by the Depart[2] It is undisputed that after appellants ment of the Interior; and, with the period took possession of the land, and within of time covered by this agreement excluded, seven years appellee commenced an action the statute of limitations could not have in the chancery court to recover the land run against this suit. Shirey v. Whitlow, from them, and to quiet appellee's title 80 Ark. 444, 97 S. W. 444; Hudson v. Stillthereto, and this action is pending and un- well, 80 Ark. 575, 98 S. W. 356. determined. This was the court's fourth finding of fact, and it is insisted that it is conclusive of the case. We think, however, this fact is not of controlling importance, and would not operate to prevent the running of the statute of limitations against this suit, considered by itself; and, while the pendency of that suit would prevent the running of the statute of limitations against it, its pendency would not prevent the running of the statute of limitations against this one, as there was no connection between the two cases, and no nonsuit had been filed in the first one. Such is the effect of the holding of this court in the case. Factors 30-Guaranty that cotton be sold of Hill v. Pipkins, 72 Ark. 549, 81 S. W. 1216, and Wallace v. Swepston, 74 Ark. 520, 86 S. W. 398, 109 Am. St. Rep. 94.

In 25 Cyc. p. 1290, it is said: "The defense of the bar of the statute of limitations applies strictly to the particular action to which it is pleaded, and hence, if that suit be not brought within the statutory period, the bar of the statute cannot be avoided by showing that another action had been brought by plaintiff against defendant on the same cause of action within the period limited by the

statute."

[4] Appellee had possession under color of title. He was therefore entitled, as against appellants, who, under the facts of this record, were mere trespassers, to maintain this suit. Cotton v. White, 131 Ark. 273, 199 S. W. 116.

The judgment of the court below is therefore affirmed.

WYNNE, LOVE & CO. v. BUNCH. (No. 206.) (Supreme Court of Arkansas. March 5, 1923.)

for sum equaling advance, enforceable.

A guaranty that cotton shipped could and would be sold for a sum equaling the advance then made as a consideration for the shipment is enforceable. 2. Evidence 595-Inference of writing not dispositive instrument, offered to show intrinsic fact, is for jury.

Where a writing put in evidence is not a dispositive instrument, but merely offered for the purpose of showing an extrinsic fact, it is for the jury to say what inference of fact is to

be drawn from it.

Numerous cases are cited in support of 3. Factors 30-Factor held not liable for the text quoted, including the two cases from this court mentioned above. See, also, 2 Wood on Limitations (4th Ed.) p. 1197; 8 C. J. § 166.

guaranty in sale of cotton unless authorized to sell in good faith at best price obtainable. Where cotton was delivered to a cotton factor under an alleged agreement that it was to be shipped under the guaranty that it could and would be sold for a sum equaling the advance then made as a consideration for the shipment, the seller could not hold the factor on such guaranty unless the factor had authority to sell in good faith at the best price obtainable. 4. Factors 11-Duty of factor to exercise good faith, diligence, and ordinary discretion in sale of consigned goods.

[3] The fifth finding of fact is, however, decisive of the question of limitation; and we think there was testimony legally sufficient to support that finding. Appellee tes tified that, after the suit in chancery had been brought, he discussed the suit with appellants, who insisted that they made no claim to the land except that it was government land, and was subject to entry for homestead purposes, and appellee stated to to

A factor has the right, and it is his duty, exercise good faith, due diligence, and ordi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

(248 S.W.)

nary discretion in selling the goods consigned substantially corroborated by the testimony for sale. of one Kinmann, who accompanied him to appellant's office before the first shipment was made.

5. Factors 30-Material alteration in obligation assumed without assent of guarantor factor discharged him.

A material alteration in the obligation assumed by a factor who guaranteed price, made without his assent, discharged him.

The cotton was finally sold by appellant, and lacked $1,104.87 of bringing the amount of the advances; and appellee was sued for this difference.

Two defenses were set up: The first, that

Appeal from Circuit Court, Mississippi the cotton had been shipped under the guarCounty; W. W. Bandy, Judge.

Action by Wynne, Love & Co. against C. B. Bunch. From a verdict for defendant, plaintiff appeals. Reversed, and judgment for plaintiff.

V. G. Holland, of Blytheville, for appel

lant.

R. A. Nelson, of Blytheville, for appellee.

anty stated; and, the second, that appellant had negligently failed to sell the cotton when it could have been advantageously sold, and the loss incurred was a result of this negli

gence.

Both of these defenses were submitted to

the jury in a single instruction, and there was a verdict for appellee the defendant. It does not appear upon which defense the

SMITH, J. Appellant is a corporation do-jury found for the defendant; but it does

ing business as a cotton factor in Memphis, Tenn.; and appellee is a farmer residing in Mississippi county, Ark. During the season of 1920-21 appellee shipped to appellant 14 bales of cotton to be sold for appellee's account. There were three consignments of this cotton. There were 9 bales in the first

shipment, 2 in the second, and 3 in the third. Appellee and one Martin shipped a few bales of cotton later for their joint account, but that cotton is not involved in this litigation. Appellee testified that at the time of the first shipment he visited the office of appellant, and talked with Mr. Wynne, its president, and explained to him that he had taken the cotton over in settlement with his share

croppers, with whom he must settle for their interest, and that he explained to Wynne that, while he wanted the largest advance that could be made on the consignment, he did not want an advance which would exceed the price the cotton would bring. In other words, after settling with his share croppers, he did not want to be put in position where he would have to call on the share croppers to return money he had paid them for their

interest in the cotton.

Appellee testified that Wynne told him that advances of $125 per bale were being made on cotton at that time, and would be made on the 9 bales appellee had ready for shipment, and that Wynne also stated he would guarantee to sell the cotton for a sum not less than the amount advanced and that there would be money coming to appellée after the cotton was sold. He further testified that in reliance upon this guaranty the 9 bales were shipped, and an advance of $125 was made on each bale. When the next 2 bales were shipped, an advance of $100 per

bale was made; and when the last 3 were shipped an advance amounting to $250 was made, and appellee testified that he was told by Wynne that the same guaranty would apply to the remaining shipments. Appellee is

not appear to us that either defense was

established for the reasons hereinafter stated.

[1] Upon the defense of the guaranty-that appellant could, and would, sell the cotton thereon-it may be said that if, in fact, the cotton was shipped under the guaranty that it could, and would, be sold for a sum equaling the advance then to be made, as a consideration for the shipment, we know of no forced. Pugh v. Porter Bros. Co., 118 Cal. reason why that agreement should not be en628, 50 Pac. 772. But appellee's own testimony shows that he did not rely on this guaranty contract, and that he abrogated it.

for a sum not less than the advances made

Appellant insists, however, that the téstimony, in its entirety, shows that no such agreement was made, and that the cotton was shipped to it, to be sold by it as a cotton factor, in the usual and ordinary course of business; and it may be said that the correspondence between the parties strongly supports that view.

It is insisted that a particular letter from appellee is an admission of the indebtedness sued on, and constitutes an account stated. Appellant had sold, on May 18, 1920, six bales of the cotton for 16 cents a pound, and five bales for 20 cents. Appellee was notified of this sale in the usual manner, and declined to accept that price for his cotton. Appellant canceled the sale except as to one bale, which had brought 20 cents and had been prematurely delivered to the purchaser through erAfter appellee repudiated the sale, appellant wrote to appellee advising that it could not continue to carry this advance, and if the sale was not to be confirmed a deposit of $500 would be required to cover the decline in price, and an anticipated future decline.

ror.

In reply, appellee wrote appellant the following letter, dated May 27, 1920:

"I received your letter of 24th. I am not able to send you any money. I am expecting my cotton to pay itself out of debt. I saw in

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