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(248 S.W.) and still hold the consignor liable upon the 1949, 167 C. C. A. 241, is directly in point, and contract of shipment."

supports our conclusion in the instant case.

The only difference between the two cases is In this statement of the law the court man- that the consignment in the Wallingford ifestly used the words "consignor or owner” Case was under contract of sale to shipper's interchangeably as meaning the same unless own order with bill of lading attached to the consignor is a different person from the draft, and the purchaser paid the draft and owner, and made the contract of shipment received the bill of lading during transit, and as agent for the owner, in which case the then resold the goods and assigned the bills owner would be liable as an undisclosed prin- of lading to his purchaser. The court decipal.

cided that the first purchaser did not, by be[1] The determination of this case turns, coming the owners during a brief period durthen, on the question whether, under the ing transit, render themselves liable for the facts, the original vendors, as the consign- freight charges. There is no difference in ors under the recitals of the bills of lading, principle between the question of liability acted for themselves or as agents of the in that case and in the present case. fuel company. Under the contracts between Our conclusion also finds direct support in the vendors and the fuel company the de- the decision of a Texas Court of Civil Apliveries were to be made f. o. b. at point of peals in the case of Railroad V. Browne shipment, consigned to the quartermaster at Grain Co., 166'S. W. 40. The question of Camp Pike. The consignment was a part of liability for freight charges as between the the duty of the vendor in making delivery, quartermaster and the fuel company under and he was acting for himself, not as agent this contract of sale is not involved further for the fuel company. This is true, notwith- than is necessary to determine whether or standing the fact that under the contract of not the former received the consignment as sale the freight charges were to be paid by agent of the latter, and, as before stated, the purchaser at destination. The fuel com- there was sufficient evidence to show that pany was not the undisclosed consignor, for there was no agency. it did not make the consignment, either in The judgment is therefore affirmed, and its own name or through an agent. Nor was judgment absolute will be rendered here the fuel company the consignee, either in against the plaintiff's right to recover. name or undisclosed. There is evidence to show that the quartermaster was to receive SMITH, J., dissents. the goods and pay the freight, not as agent for the fuel company, but on his own behalf as purchaser and consignee.

[2] All that has been said thus far relates to the charges on the carloads other than the three which were consigned to the fuel

company at Little Rock and resold and di-

(No. 221.)
verted in transit. The question of liability
or nonliability for the charges on those three

(Supreme Court of Arkansas. March 12,

1923.) carloads rests on other grounds. It falls squarely within the principles announced in 1. Landlord and tenant en 245—Landlord, signRailroad v. Gramling, supra.

ing note as surety, held entitled to lien on The fuel company was originally the con crop. signee, and by acceptance of the goods at Under Crawford & Moses' Dig. 88 6889, destination would, by implied contract, have 6890, a landlord, who signed a note for his become liable for the freight charges. But tenant to procure bags to preserve their rice there was, with consent of the carrier, a di

crop, on which he was primarily liable, though version to another consignee at another des signing as a surety, was entitled to a lien ag tination, and the consignment thereby be

for supplies furnished. came, in effect, one from the original point of 2. Landlord and tenant au 262(V2)-Limita. origin to the last-named destination. It was tion of six months for continuance of land. & single consignment, and liability for the lord's lien after rent due held inapplicable entire charges could not be split. The fuel under evidence. company, or the last-named consignee, is An action was begun December 20, 1920, to

The fuel company was enjoin a tenant from selling a rice crop grown consignee only during a part of the period on plaintiff's land without paying rent, in which of transit, ceasing to be such before the a receiver was appointed to take charge of it transportation service was complete.

This for the court, and thereafter a mortgagee of does not make the fuel company liable for made a party to the action September 2, 1921,

the crop seized and sold it, and was thereafter the charges for service.

but claimed plaintiff had lost his lien by not The decision of the United States Circuit bringing suit within six months after the rent Court of Appeals for the Eighth Circuit in was due, and that it was due at the end of the case of Wallingford v. Bush, 255 Fed. 1920. Held, under the evidence, that the mort

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

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liable for all or none.

gagee's act in selling the rice was a conversion signature is, “G W. Botts, Surety." But the in the hands of the court, and the six-month plaintiff signed this note to procure some limitation was inapplicable.

sacks in which to put the rice after it was

thrashed. It was necessary to put the rice in Appeal from Arkansas Chancery Court; sacks to preserve it. The plaintiff in reality John M. Elliott, Chancellor.

furnished these sacks to Menard as supplies Suit by G. W. Botts against L. K. Menard to be used in gathering and preserving the and others, in which Bank of Gillett was rice crop. The plaintiff paid the note on made a party defendant. Judgment for June 1, 1921. The plaintiff's testimony in plaintiff, and defendant Bank of Gillett ap- this respect is corroborated by that of Menpeals. Affirmed.

ard. Menard did not pay the plaintiu any of

the rent, or any part of the amount of the On the 20th of December, 1920, G. W. Botts note given to procure money with which to brought this suit in equity against L. K.

purchase the rice bags. Menard to enjoin him from selling rice

According to the testimony of the Bank of grown by said Menard and his codefendants Gillett, it had a valid mortgage on Menard's on the land of the plaintiff without paying share of the rice, and nc part of the mortthe rent. The codefendants of Menard had

gage indebtedness had been paid. Menard previously filed suits in the justice court, gave the bank authority to take the rice, sell claiming a laborer's lien on said rice.

it at private sale, and apply the proceeds A temporary injunction was granted as towards the satisfaction of the mortgage. prayed for in the complaint, and Menard was the sale of the rice was made by the bank appointed receiver to take charge of the

more than six months after the 20th day of rice, and was directed to allow it to remain

December, 1920. in the Gillett warehouse until the further

The chancellor found the issues in favor of orders of the court. Subsequently the Bank the plaintiff, and a decree was accordingly of Gillett took charge of said rice without entered in his favor for the amount of the any order of the court, and sold it at private rent and supplies due him. sale for the purpose of satisfying a mortgage which it held on the rice crop grown by

T. J. Mober, of Gillett, for appellant. Menard.

Botts & O'Daniel, of De Witt, for appelL. K. Menard was a witness for the plain-lee. tiff. According to his testimony he grew a crop of rice on the land of the plaintiff in the Southern district of Arkansas county, Ark., HART, J. (after stating the facts as above). during the year 1920. The landlord was to [1] Section 6889 of Crawford & Moses' Direceive one-third of the rice for his rent. gest gives the landlord a lien upon the crop After the rice was thrashed it was stored in grown upon the demised premises in any the Gillett Warehouse Company. The Bank year for rent. of Gillett had a mortgage on Menard's share Section 6890 gives the landlord a lien for of the crop. The plaintiff did not waive his any necessary supplies, either of money, 'prolandlord's lien on the crop. The witness nev- visions, clothing, stock, or other necessary er gave the bank any authority to take charge articles advanced to the tenant with which to of the rice and sell it. The plaintiff never make and gather the crop. The section furgave Menard permission to authorize the ther provides that the lien shall have prefbank to take charge of the rice and sell it. erence over any mortgage of the crop made The rice had not been divided at the time the by the tenant. bank took charge of it and sold it.

The bank insists, however, that it is only G. W. Botts, the plaintiff, was a witness liable to the plaintiff for the amount of the for himself. According to his testimony he rent due him, and is not liable for the note was to receive one-third of the rice grown by signed by the plaintiff, because the plaintiff L. K. Menard as rent. The rice was grown signed the same as surety for the tenant. on the farm of the plaintiff by Menard, and Hence they claim that the case falls within delivered by the latter to the Gillett Ware- the doctrine of Kaufman v. Underwood, 83 house Company to be kept in storage. The Ark. 118, 102 S. W. 718, 119 Am. St. Rep. plaintiff never gave the Bank of Gillett au- 121, where it was held that the landlord may thority to take charge of the rice and sell it, not claim a lien as for supplies furnished to nor did he authorize Menard to do so. The his tenant, where the tenant purchased a plaintiff thought that the rice was being horse for whose purchase price the landlord held in the warehouse by Menard as receiver went security. in the suit filed by the plaintiff against Men On the other hand the plaintiff relies ard and others in the chancery court. Soon upon the case of Walker v. Rose, 153 Ark. after the plaintiff found that the bank had 599, 241 S. W. 19. In that case it was held disposed of the rice crop, he made it a party that, where a landlord directed a merchant defendant to the present action.

to furnish supplies to the tenant for which The plaintiff signed the note of Menard to the landlord agreed to pay, and subsequently

Va rice

( 248 S.W.) supplies to the tenant, and was entitled to a , tenant that no authority was given to the preference lien therefor. In that case, as bank to take charge of the rice and sell it here, a bank had a valid mortgage on the under its mortgage. The action of the bank, crop of the tenant, but knew that the tenant | therefore, amounted to a conversion of the was raising the crop on the land of the rice which was in the hands of the court. plaintiff. The landlord had also become re- Hence the limitation of six months provided sponsible to a mercantile company in the by the statute for the continuance of a landamount of certain advances made by it of lord's lien after the rent shall become due money and supplies which were used by the has no application. tenant in the cultivation of his crops. The It follows that the decree will be affirmed. court held that the facts justified a finding that the money and supplies furnished through the mercantile company were in reality furnished by the appellee. Hence it was held that it was not a case of a landlord FIRST NAT. BANK OF MANCHESTER, becoming a mere surety for his tenant, but

that the facts warranted the conclusion that

(No. 218.)
the landlord himself was primarily respon-
sible to the mercantile company.

(Supreme Court of Arkansas. March 12,

1923.) In the instant case, according to the testimony of the plaintiff, he in reality furnished 1. Judgment Cm 497(1)-Recitals showing nothe money to the tenant with which to buy tice on defendants taken as true unless conthe rice bags for the purpose of preserving tradicted by evidence. the rice. It was absolutely necessary to put Recitals in a judgment that defendants, the rice in bags after it was threshed in although having been duly served with sumorder to preserve it. Although the note mons in manner and form as provided by law, shows that Botts, the plaintiff, signed it as failed to appear, etc., were prima facie evisurety, yet under the attending circumstances dence of the facts stated, and must be taken the chancellor was warranted in finding that as true unless there is testimony to contradict

them or tending to show the contrary, under Botts was primarily liable for the money Crawford & Moses' Dig. § 6289, subd. 4. which was used in purchasing the rice bags to preserve the crop. The landlord paid the 2. Judgment oww 461(4)-One suing to set aside note at the bank, and the purchase of the

default judgment must show that he did not rice bags inured to the benefit not only of

know of proceeding in time to make defense;

absence of record entry as to service being the landlord, but his tenant, and to the

insufficient. bank, which was the tenant's mortgagee.

In an action to set aside a judgment by deThe banks knew that the rice was grown on fault on the grourd of fraud in that plaintiffs the land of the plaintiff, and therefore it is represented to the court that defendants had liable to the plaintiff for its value to the ex- been duly and legally served with summons tent of the landlord's lien for rent and the when in truth and fact neither defendant had supplies furnished by him, which was estab- been so served, the fact that there was no enlished by the proof.

try on the docket by the clerk showing service [2] It is next insisted that the judgment of summons as provided by Crawford & Moses' should be reversed because the suit was not in the sheriff's office showing a return, nor any

Dig. $ 1280, and no original summons found brought within six months after the rent was

return on the copies in evidence, would not due and payable. The bank was not made a sustain the cause of action in the absence of party to the suit until the 2d day of Septem- evidence that plaintiffs did not know of the ber, 1921, and it is insisted that the rent was proceedings in the original action in which at least due at the end of the year 1920. judgment was rendered against them in time

It will be remembered, however, that this to make a defense.
suit was commenced by the landlord against 3. Pleading ww374—Denied verified complaint
the tenant and some laborers who were at cannot be taken as true.
tempting to assert laborers' liens on the

Where a verified complaint is denied, its
rice crop. The object of the suit was to es- allegations are not testimony, and cannot be
tablish the landlord's lien as superior to accepted as facts proved.
that of the laborers for the rent, and also
the money advanced by him for supplies. Appeal from Lee Circuit Court; J. M. Jack-
Menard, the tenant, was appointed receiver son, Judge.
by the chancery court to take charge of the
rice and hold it in a designated warehouse the First National Bank of Manchester,

Action by A. Dalsheimer and others against until the further orders of the court.

It is true that the bank testified that it Iowa. From a judgment for plaintiffs, de took the rice from the warehouse and sold it

fendant appeals. Reversed and remanded. under authority given by the tenant. The Bogle & Sharp, of Brinkley, for appellant. curt was warranted, however, in finding

Jno. 1, Moore, of Helena, and Daggett & from the evidence of the plaintiff and the Daggett, of Marianna, for appellees.

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

WOOD, J. The appellant obtained judg., ed the process for service received by him ment in the circuit court of Lee county from the clerk of the circuit court for the against the appellees, which recites as period beginning November 15, 1920, and endfollows:

ing January 2, 1921. This record did not "Now on this the 11th day of April, 1921, show any receipt of summons in the original the same being a regular day of the April, 1921, action by the appellant against the appellees term of said court, this cause coming on to be in which the judgment here sought to be set heard, the plaintiff appeared by its attorneys, aside was rendered. Bogle & Sharp, and the defendants, although The appellees also introduced one Gallohaving been duly served with summons, in man- way who testified that he was the then sheriff ner and form as provided by law, failed to ap- of Lee county. He assumed the duties of the pear, plead, answer or demur, but wholly made office January 17, 1921. He did not until the default, whereupon the cause is submitted to the court upon the complaint and the original April term, 1921, serve a summons on the apnote sued upon, and, after being well and suffi- pellees in the original action by the appellant ciently advised in the premises, doth find that against them. He did not find the original plaintiff is entitled to recover on said notes summons in that case in his office, but a copy the sum of $2,498.23 from said defendants."

thereof, and there was no return service on

the copy. He did not know whether the sherThen follows the formal entry of the judg. iff who preceded him served the summons ment in favor of the appellant against the or not. appellees.

The appellant introduced one of its attorThe present action was instituted by the neys in the original action, who testified that appellees against the appellant to set aside on the day the judgment was taken, the court the above judgment. The appellees in their

was in session, and he asked the court for complaint set out the judgment and alleged judgment by default against the defendants that the same was obtained against them by in the original action and the court rendered the appellant through fraud, in that appel a judgment in accordance with his request, lant represented to the court in which the and he prepared the precedent of the judg. judgment was rendered “that due and legal ment as disclosed by the record. summons giving these plaintiffs, defendants

Upon the above facts the court found that in said suit, notice of the pendency of such the defendants in the original action were action, when as a matter of fact neither of not served with process and did not have said defendants in said action, plaintiffs notice of the pendency of that action. The here, were ever at any time served with proper summons or any notice whatever giv- court further found that the plaintiffs (appeling them notice of the pendency of such suit lees in the present action) had a meritorious

defense. against them on the part of the First Na

Thereupon the court entered a tional Bank of Manchester, Iowa, defendant judgment setting aside the judgment of April herein, but these plaintiffs now further aver 11, 1921, in favor of the appellant against the and allege that at no time was the notice of appellees rendered in the original action. the pendency of such suit given them in the The appellant duly prosecutes this appeal. manner provided by law, or in any other man

[1] This is a direct attack by the appelleeg ner.” Then follow allegations which it is upon the judgment of the circuit court renunnecessary to set forth at length, but which dered in favor of the appellant against the set out that the defendants had a meritor- appellees on April 11, 1921, under section ious defense to the action in which the judg- 6290 of Crawford & Moses' Digest, subd. 4. ment was rendered against them.

But the recitals in the judgment that the de The appellant, in its answer, admitted that fendants, “although having been duly served it obtained the judgment for the sum alleg- with summons in manner and form as proed. It denied that plaintiffs had no notice of vided by law, failed to appear," etc., were the pendency of the action and that no legal prima facie evidence of the facts stated, and service was had on them, and denied the must be taken as true unless there is testiother allegations of the complaint, and set up mony to contradict them, or tending to show that it was an innocent purchaser of the notes to the contrary. Section 6239, C. & M. Di. upon which the judgment in its favor was gest; White v. Smith, 63 Ark, 513, 39 S. W. rendered. The appellees introduced the orig. 555; Love v. Kaufman, 72 Ark. 265, 80 S. W. inal docket entries which show the following:


[2] The original docket entry in the case "Complaint filed and process issued 16th made by the clerk shows that the complaint day of November, 1920, service had day of 19—."

was filed and that process was issued on the

16th day of November, 1920. Section 1280 The sheriff of Lee county, Arthur Cotter, of Crawford & Moses' Digest provides thatat the time the original action of the appel

“The entry on the law docket shall also show lant against the appellees was instituted, whether or not the summons has been fully and whose duty it was to serve the summons, served in due time for trial, and whether or

(248 S.W.) There is no entry by the clerk showing that [3] The appellees alleged in their complaint the summons had been served in time for that trial. The absence of such entry by the clerk

"Neither of said defendants in said action on the law docket which he is required to

were ever at any time served with proper
keep, to be sure, is evidence to be considered summons, or any notice whatever giving them
in determining the issue as to whether or not notice of the pendency of such suit against
the summons was served on the appellees in them."
the original action in which judgment was
rendered against them. Likewise the fact that

And futber:
no original summons was found with the re-
turn of the sheriff showing service, nor any

"That at no time was notice of the pend-
return on the copies that were in evidence are ency of such suit given them in the manner
to be considered in determining the issue as provided by law, or in any other manner.”
to whether or not the defendants in the orig.
inal action were served with summons. Con The appellant specifically "denies that the
ceding, without deciding, that these facts, plaintiff had no notice of the pendency of the
with the presumptions attending them that action and that no legal service was had on
the officers had performed their statutory them.” It will be observed that the appel-
duty, might be sufficient, if there were noth- lants did not allege in their complaint that
ing else in the record, to sustain the finding of they did not know of the pendency of the ac-
the trial court that the appellees were not tion in which judgment was rendered against
serred with process in the original suit, nev-them in time to make a defense thereto, and
ertbeless appellees have failed to sustain their there is no testimony in the record to show
cause of action, because they have utterly that the appellees did not know of the pend-
failed to show that they did not know of the ency of the action and the proceedings that
proceedings in the original action in which

were had therein in time to make defense. judgment was rendered against them in time it is a very significant fact in this record

make a defense. This was essential. In that none of the appellees testified that they State v. Hill, 50 Ark. 458, 8 S. W. 402, Chief did not know that the action was pending Justice Cockrill, speaking for the court, and of the proceedings bad therein. Their

verified complaint was denied, and therefore “One who is aggrieved by a judgment render- its allegations are not testimony, and caned in his absence must show not only that he not be accepted as facts proved, even if it was not summoned, but also that he did not had been therein stated that the appellees know of the proceeding in time to make de- did not know of the pendency of the action. fense."

The findings and judgment of the circuit This language was also quoted by us in the court are therefore erroneous. The judgcase of Moore v. Price, 101 Ark, 142–145, 141 ment is reversed, and the cause remanded S. W. 501.

for a new trial. 248 S.W.-37

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