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Action by Arthur R. Smith against the , 305; Porter v. Mutual Life Ins. Co. of N. Jefferson Standard Life Insurance Company. Y., 70 Vt. 504, 41 Atl. 970. Judgment for plaintiff, and defendant ap [2] But inasmuch as the insured died bepeals. Reversed and remanded.

fore the year had expired, the incontestable Fuhr & Futrell, of Paragould, for appel- suit was not brought until after the first an

clause did not apply, and the fact that the lant. Jeff Bratton, of Paragould, for appellee.

niversary of the policy is unimportant, for, as we have said, the rights and liabilities of

the parties under the insurance contract had SMITH, J. On April 15, 1920, the appel- been fixed by the death of the insured. lant insurance company issued and delivered

The court should not, therefore, have dito appellee Smith, as beneficiary, a policy rected a verdict, but should have submitted of insurance for $1,000 on the life of Smith's the question of the alleged breach of the warwife. The application for the policy of in- anty, the law of which question has been surance contained certain answers to ques- announced in many cases. tions which, by the recitals of the applica For the error indicated, the judgment is tion, were declared to be material by the reversed, and the cause remanded for a new company in determining whether or not a trial. policy would issue, and, among others, that the applicant had never suffered from any ailment or disease of the skin. The policy, when issued, contained an incontestable oneyear clause reading as follows:

WILSON V. OVERTURF. (No. 204.) "After this policy shall be in force for one (Supreme Court of Arkansas. March 5, 1923. full year from the date hereof it shall be in

Rehearing Denied April 2, 1923.) contestable for any cause except for nonpayment of premiums."

1. Garnishment om 178, 181 - Final judgment

may be rendered against garnishee upon deThe insured died on March 5, 1921, and on fault or on trial when indebted to defendant April 13, 1921, the company brought suit in in original judgment. the chancery court to cancel the policy on Under Crawford & Moses' Dig. $ 4916, final the ground that its issuance had been pro-judgment may be rendered against a garnishee cured by the fraud of the insured, in that upon default made by him, or when on trial she had suffered from a disease of the skin, the court finds that he is indebted to defendant to wit, pellagra, but had falsely and fraudu-l in the original judgment. lently denied that fact in her application. 2. Garnishment Omall 19 No special form of It will be observed that the suit to cancel

pleading required. was brought two days before the expiration

There is no special form of pleading reof the year after the issuance of the policy, quired in garnishment proceedings. but slightly more than a month after the death of the insured, as the suit on the pol- 3. Judgment w 18(2)-Decree based on comicy was commenced June 30, 1921.

plaint not stating good cause of action er. The chancery court transferred the suit to cancel to the circuit court over the com

A decree in a garnishment proceeding upon pany's objection, and it was there consoli- a complaint alleging that plaintiffs are informed dated with the suit on the policy, to which fendant in a certain sum, and that he has mon

and believe that garnishee is indebted to de. action the company also objected and ex

ey, property, and effects belonging to defendcepted.

ant, is not based upon a complaint which shows At the trial of the cause conflicting tes- a good cause of action under Crawford & timony was offered as to whether Mrs. Smith Moses' Dig. 8 1187, and is therefore erroneous. had pellagra, and as to her answers made to the examining physician in regard there- | 4. Judgment 101(1)—Judgment.rendered by

default on insufficient pleading reversed. to; but at the conclusion of all the testi

A default after due service of summons admony the court directed the jury to return mits only the allegations of the complaint, and, a verdict for the beneficiary, on the ground if they are insufficient to support the judgment, that a year had expired before the suit there it will be reversed. on was brought. Judgment was rendered accordingly, and the company has appealed.

Appeal from Crittenden Chancery Court; [1] Instead of transferring the suit to can

Archer Wheatley, Chancellor. cel the policy to the circuit court, that suit should have been dismissed, for the reason Suit by H, C. Overturf, trustee, against N. that the death of the insured fixed the rights C. Wilson, administrator, substituted for and liabilities of both the insurer and the B. W. McCulloch, deceased. From a decree insured. Joyce on Insurance, § 1650b; Ameri- by default against deceased as garnishee, can Employers' Liability Ins. Co. v. Fordyce, the substituted defendant appeals. Reversed 62 Ark. 562, 36 S. W. 1051, 54 Am. St. Rep.' and remanded.

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(248 S.W.) This is an appeal by a garnishee from a | the interrogatories exhibited against him, decree by default against him. H. C. Over- the court before whom the matter is pendturf, trustee, for the use and benefit of Aar- ing shall enter judgment against such garon McMullin, brought suit in equity against nishee for the full amount specified in the Mrs. Charles Eddins Owen and Mrs. I. I. plaintiff's judgment against the original de Biles to foreclose a deed of trust on certain fendant, together with costs. Under this Tands in Crittenden county, Ark., given by act final judgment may be rendered against Mrs. I. I. Biles to secure an indebtedness a garnishee upon default made by him, or of $7,000 owed by her to Aaron McMullin. when on trial the court finds that he is inThe complaint alleges that Mrs. I. I. Biles debted to the defendant in the original judgsold the mortgaged land to Mrs. Charles ment. Norman v. Poole, 70 Ark. 128, 66 S. Eddins Owen, and that the latter is now W. 433; Tiger v. Rogers Cotton Cleaner & in possession of it; that she is allowing Gin Co., 96 Ark. 1, 130 S. W. 585, 30 L, R. the land to grow up in noxious weeds and A. (N. S.) 694, Ann. Cas. 1912B, 488. undergrowth, and that there has been a In the instant case judgment by default failure to pay the mortgage indebtedness was rendered against the garnishee. The or any part thereof. The complaint also con- | only question raised by the appeal is whether tains allegations as follows:

the allegations of the complaint are suffi"Plaintiffs are informed and believe that B. ) cient to support the decree entered upon the W. McCulloch is indebted to the defendant Mrs. default of the garnishee. Koons v. Markle, I. I. Biles and Mrs. Charles Eddins Owen in 94 Ark. 572, 127 S. W. 959, and cases cited. the sum of $11,775; that he has money, prop- It is claimed by counsel for the garnishee erty, or effects belonging to the defendant Mrs. that the complaint is defective in that it did I. I. Biles of the value of $11.775; and plaintiffs not charge as a fact that McCulloch was inpropound to the said B. W. McCulloch the fol- debted to the defendants. lowing interrogatories, to wit:

[2] It will be noted from our statement of "First. Are you indebted to Mrs. I, I. Biles facts that the complaint only alleges that of Memphis, Tenn., and Mrs. Charles Eddins Owen, and, if so, state the amount of such in- plaintiff is informed and believes that B. w. debtedness, the nature thereof, whether evi- McCulloch is indebted to the defendants in denced by a promissory note, and, if so, wheth- the sum of $11,775. We think the defect is er said notes are secured by mortgage or deeds fatal unless this form of pleading is allowof trust? State fully.

ed by our Code. There is no special form of “Second. Have you in your possession or un- pleading required in garnishment proceedder your control any moneys, goods, chattels, ings, and we must therefore look to our or effects of Mrs. I. I. Biles of Memphis, Tenn., general Code provisions on the question. and Mrs. Charles Eddins Owen, and, if so, state the nature of the same and the value thereof." Moses Digest the complaint must contain a

[3] Under Section 1187 of Crawford & The complaint prays for a foreclosure of statement in ordinary and concise language, the mortgage, and also for a writ of garnish- without repetition of the facts constituting ment against B. W. McCulloch. A writ of the plaintiff's cause of action.

This progarnishment was duly issued and personal vision requires that the facts relied upon service was duly had upon B. W. McCulloch. should be directly and positively alleged, On final hearing of the case there was a de- and not stated by way of argument, infercree of foreclosure in behalf of the plain- ence, or belief. The statute requires the tiff against Mrs. I. I. Biles and Mrs. Charles facts to be alleged so that an issue may be Eddins Owen, and a personal judgment was made thereon. The statement in the pleadrendered against them for the amount of ings should be made in direct and positive the mortgage indebtedness. A decree by | terms, so that, if it be necessary for the default against B. W. McCulloch as gar- other party to respond to them, he may be nishee was also entered in the sum of $8,014.- able to do so in terms equally direct and 30, being the amount for which judgment was positive. The issue tendered by the comrendered against Mrs. I, I. Biles and Mrs. plaint is not as to the existence of the fact Charles Eddins Owen. Subsequent to the of whether or not the garnishee was indebtrendition of the decree B. W. McCulloch ed to the defendant, but as to the plaintiff's died intestate, and an appeal to this court information and belief on this matter. Therehas been duly prosecuted by the adminis-fore the decree was not based upon a comtrator of his estate.

plaint which showed a good cause of action, Berry & Wheeler, of Marion, for appel- and was erroneous. lant.

[4] A default after due service of sumJ. F. Gautney, of Jonesboro, for appellee.mous admits only the allegations of the com

plaint, and, if they are insufficient to supHART. J. (after stating the facts as port the judgment, it will be reversed. Chafabove).

[1] Section 4916 of Crawford & tin v. McFadden, 41 Ark. 42; Benton v. Moses' Digest in effect provides that, if any Holliday, 44 Ark. 56; American Freehold garnishee upon whom personal service has Land Mortgage Co. v. McManus, 68 Ark. been bad shall neglect or refuse to answer | 263, 58 S. W. 250.

As supporting the views herein expressed, 14. Brokers Ow88(10) - Instruction ignoring see, also, Nichols & Sheppard Co. v. Hubert, claim of plaintiff for commissions if sale made 150 Mo. 620, 51 S. W. 1031, where the Su

through subagent properly refused. preme Court of Missouri held that a peti In an action wherein plaintiffs claimed tion in a creditor's suit, which avers that that a commission was to be paid, not merely plaintiff is informed and believes certain if they found and introduced a purchaser to facts thereafter recited, which are essential

whom a sale was made, but was also to be paid

if to plaintiff's case, is demurrable, as it does chaser with whom defendants traded, it was

one of plaintiffs' subagents found a purnot allege the existence of the facts.

proper to refuse defendants' instruction that, It follows that the decree must be revers- if defendant listed land with plaintiffs for sale ed, and the cause remanded for further pro- or exchange, he would not be precluded from ceedings in accordance with the principles making a direct sale nor liable to them for a of equity, and not inconsistent with this commission therefor unless they, by finding and opinion.

introducing a purchaser to whom sale was made, were the procuring cause of the sale.

Appeal from Circuit Court, Benton Coun

ty; W. A. Dickson, Judge. GILLETTE & ENGLISH V. CARROLL & HO. GAN. (No. 223.),

Action by Carroll & Hogan, partners,

against Gillette & English. Judgment for (Supreme Court of Arkansas. March 12, plaintiffs, and defendants appeal. Revers1923.)

ed and remanded. 1. Brokers 55(1)-Refusal of instruction

McGill & McGill, of Bentonville, for apthat broker could not be considered procuring pellants. cause of exchange negotiated by another held

Lee Seamster, of Fayetteville, for appelerror.

lees. In action for commissions for procuring an exchange of defendant's land, it was error to SMITH, J. Gillette and English owned a refuse an instruction that, if it was found that ranch in the state of Oklahoma, with certain defendants mailed description of the land to personal property thereon, which they deplaintiffs, and plaintiffs mailed copies thereof cided to sell or exchange, and with that purto other agents, among them L., to find who might have property and through them make pose in view they prepared a circular letter an exchange, and explained the arrangement to

descriptive of their property, which they defendants, and thereafter L. notified plaintiffs mailed to a large number of real estate that he had certain property of another for agents.

One of these letters was received exchange, and plaintiffs took one of the defend- by Carroll and Hogan, partners as Carroll ants to L. to make the exchange, and plain & Hogan, residing at Bentonville, in this tiff's then, representing defendants, endeavored state, and engaged there in the real estate to make an exchange, but the sale was not business. made, and L. told such defendant he would Gillette represented himself and English try to get other property to exchange, and aft- in the transaction out of which this litigaerwards procured other property which was tion arose; and Carroll represented himself subsequently exchanged for defendants' while L.

and Hogan. was acting as agent for the other owner, and that neither L. nor plaintiffs notified defendants

Carroll testified that he and Gillette met that plaintiffs were having anything to do with and discussed the letter, and Gillette listed bringing about the exchange, and plaintiffs only the ranch with him to be sold or exchanged; kept informed through L. as to its progress, and he told Gillette that he would list the plaintiffs could not be considered as the procur- ranch with a number of subagents who were ing cause of the exchange, and were not enti- co-operating with him in selling and in extled to a commission.

changing lands, and that if he, or any of 2. Brokers 55(1), 65(4)-One entitled to those subagents, negotiated a sale or an exknow which principal agent professes to rep. change of the ranch, he would expect a resent.

commission of 242 per cent., and Gillette asOne is entitled to know who his agent is, sented and agreed to pay the commission. and who is the procuring cause in a sale or Among the other real estate brokers notiexchange of property, and, if there is a divided fied by Carroll of this arrangement was R. allegiance, he is entitled to know which prin- C. Leeper, of Springdale, Ark., who agreed cipal the agent professes to represent. to find a purchaser or some one with whom 3. Brokers Aw65(4)—Agent representing two, an exchange could be made, and Carroll ac

principals compensated only after full disclo companied Gillette to Springdale and insure to each.

troduced him to Leeper as a man who would An agent who represents an adversary prin- negotiate a sale or exchange, and some time cipal also can recover compensation for serv- thereafter, and pursuant to this understandices only when there has been a full disclosure ing, Leeper found one McClinton, with whom to each of all the facts.

Gillette made an exchange for the property

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(248 S.W.) of McClinton, and a commission is claimed himself took charge of the negotiations, and on the theory that, by virtue of the intro- thereafter no one acted for either Gillette duction of Gillette to Leeper, Carroll & Ho- or McClinton; but, when the exchange began thereby became the procuring cause of tween them was closed, McClinton paid him any sale or exchange of the ranch to any the agent's commission agreed upon. customer Leeper might find and himself rep Gillette testified that Carroll was never resent in making a purebase or exchange at any time his agent, and had no more right for the ranch, although Carroll & Hogan to claim a commission than any one of the might have nothing else to do towards other hundred or more real estate brokers to bringing about the sale or exchange. The whom he sent his circular letter, which was theory of the case was that Leeper could be, nothing more than an inquiry whether any and was to be, the agent of Carroll & Hogan ( of the persons to whom the circular was to procure a purchaser for Gillette, and also sent had a customer who might become into be the agent of such purchaser in making terested in purchasing or trading for the an exchange with Gillette.

ranch. He testified that for a period of sev. Shortly before the consummation of the eral months negotiations proceeded between exchange with MoClinton, Carroll wrote to himself and Leeper, and, so far from ever Gillette that, if he (Gillette) traded with Mc- being advised that Leeper was his agent and Clinton, a commission would be expected on was attempting to procure him a purchaser, the theory stated above. The deal with Mc- he at all times regarded Leeper as his adClinton was closed, and Gillette refused to versary, with whom he was trading at arm's pay a commission, and this suit was brought length. He denied that Leeper told him that to recover it, and there was a judgment as Carroll was expecting a commission if the prayed from which is this appeal,

McClinton deal went through. He admitted Carroll did not claim to have an exclusive receiving the letter fom Carroll & Hogan in agency, or any agency for any given time, which they stated they would expect a comand the right of Gillette to make the sale mission if the McClinton deal was made; was not questioned. The insistence is that but he dismissed it from consideration on Gillette promised to pay a commission if the ground that there was no agreement to Carroll & Hogan themselves, or if they support the claim. through one of their subagents, negotiated [1] An instruction pumbered 2 was asked a sale or an exchange; and this latter thing by the defendants, which, in our opinion, they did through Leeper.

should have been given, but which the court The court submitted the case to the jury refused. It reads as follows: under instructions to find for the plaintiffs if the facts were found to be as contended by "If you find from the evidence that defendCarroll; and we think no error was commit- ants mailed a description of their property to

plaintiffs for sale or exchange, and tbat the ted in so doing, as one may agree to pay com- plaintiffs thereupon made out copies of such missions for services of almost any char-description and mailed them to other real esacter. At least, there is no legal objection tate agents in Benton county and other counto bis doing so. It is insisted, however, that ties, and, among others, R. C. Leeper, a real the instructions did not properly present the estate agent at Springdale, Ark., for the pur. theory of Gillett's defense; and we think pose of finding other agents who might have that contention is well taken.

property of others for sale or exchange and to

enable them in that way to exchange defendThe testimony shows that Carroll accom- ant's property through a deal with such other panied Gillette to Springdale and introduced real estate agents for property which they Leeper and Gillette, and Carroll endeavored might have for exchange, in which case each to exchange the ranch for a hotel owned by agent would collect the commission from his a customer of Leeper, but this deal failed; own client, and that plaintiffs explained this and thereafter Carroll admittedly did noth- arrangement to the defendants, and thereafter

said Leeper notified plaintiffs that he had cer. ing further towards selling or exchanging tain property of one Hart in Springdale for exthe ranch except in so far as Leeper repre- change, and that plaintiffs thereupon took desented the firm of which Carroll was a mem-fendant Gillette to Springdale for the purpose ber.

of endeavoring to make such exchange, and inLeeper testified on behalf of the plaintiffs; (troduced him to Leeper, and that plaintiffs then and it is quite obvious from a reading of representing the defendants endeavored to his testimony that he was highly friendly make an exchange of their property, but that to the plaintiffs. He testified that he told the sale was never consummated, and that Gillette that Carroll would expect a com- Leeper then told Gillette he would endeavor mission if the McClinton deal was consum

to get other property for exchange for his mated; yet he admitted that in all his nego- had the property of one McClinton for ex

ranch, and afterwards notified Gillette that he tiations with Gillette he was representing change for other property and to come down to McClinton, and that Gillette was without Springdale, and that Gillette went down to representation. He further testified that Springdale, and Leeper introduced him to Mcthe McClinton deal hung fire for a period Clinton and entered into negotiations with him of several months, and finally McClinton as McClinton's agent for the exchange of Me

an

Clinton's property for the ranch of defendants,, compensation for such services when there and that Leeper and McClinton finally carried has been a full disclosure to each principal through a deal with Gillette for the ranch of of all the facts. Murphy v. Willis, 143 Ark, defendants, that neither Leeper nor plaintiffs 1, 219 S. W. 776; Featherston v. Trone, 82 notified defendants that plaintiffs were having Ark. 381, 102 S. W. 196; Taylor v. Godbold, anything to do with the negotiations for said 76 Ark. 395, 88 S. W. 959. deal, and that plaintiffs did not, in fact, do or offer to do anything whatever toward bringing

We conclude, therefore, that the instrucabout or procuring the exchange for McClin- tion set out above should have been given. ton's property, but only kept informed through [4] An instruction numbered 1 was reLeeper of the progress of the deal, of which quested by the defendants, which reads as fact defendants were not notified, then I charge follows: you that plaintiffs could not be considered in law as the procuring cause of the exchange

"If you find from the evidence that defendwhich was finally consummated by Gillette him- ants listed their ranch with plaintiff's for sale self with Leeper and McClinton, and plaintiffs or exchange, this would not preclude the defendwould not be entitled to a commission, and you ants from making a sale or exchange of the will find for the defendants."

property themselves, and they would not be liable to plaintiffs for a commission if they made

such sale, unless plaintiffs by finding and intro. This instruction is open to the objection ducing a purchaser to whom the sale was made that it is rather long; but it is not at all ob- were the procuring cause of the sale." scure and is a concrete statement of the defendants' contention, and we think should

This instruction would be a correct dechave been given.

laration of the law except for the fact that It is true Leeper's testimony connects with it leaves out of account the contention of the that of Carroll and corroborates Carroll's plaintiffs that a commission was to be paid contention that a commission was promised not merely if plaintiffs found and introduced and would be expected if he (Leeper) was instrumental in closing the McClinton deal; a commission was also to be paid if one of

a purchaser to whom a sale was made, but and we know of no legal reason why a plaintiffs' subagents found a purchaser with property owner should not be held bound by whom defendants traded; and for that reaagreement of that character, if he

son it was properly refused. made it. But this instruction declares the law to tion No. 2, set out above, the judgment is

For the error in refusing to give instrucbe that Gillette was entitled to know who reversed, and the cause remanded. was assuming to act for him, or who his agents were, and that he would not be bound unless he was so advised.

Here, according to plaintiffs' contention, Leeper was acting in a dual capacity. He was McClinton's agent without question; GURLEY V, STATE. (No. 209.) and, according to Leeper's own testimony, was assuming to act for no one else. As such, (Supreme Court of Arkansas. March 5, 1923. Leeper no doubt talked up McClinton's prop Rehearing Denied April 2, 1923.) erty, and talked down that of Gillette. Certainly loyalty to McClinton required him to 1. Embezzlement w35Indictment and proof endeavor to induce Gillette to make the con

held not at variance. cessions necessary to get the parties togeth Where the indictment charged embezzleer on a trade. As we have said, Gillette had ment of “$800 gold, silver and paper money the legal right to contract to pay a commis- of the value of $800, property of said E. T. F.," sion for the service of having an adversary and the proof showed that the company which in a trade produced with whom he might $800 in the form of a check for E. T. F., re

accused owned and managed had collected make a trade, and under the case of Meyerceived credit therefor at the bank, and exv. Holland, 116 Ark. 271, 171 S. W. 893, a pended same for private uses, held, that there person is liable who does so contract when was not a variance between the indictment and a purchaser is produced.

proof. [2] But, we say again, one is entitled to know who his agent is, and who is the pro

2. Criminal law 304(2)—Common knowledge curing cause in a sale or an exchange of

banks deal in money only when giving deposi.

tors credit, property; and, if there is divided allegiance, he is also entitled to know which principal

It is common knowledge that banks deal in the agent is professing to serve.

money only when giving credit to their deposi. [3] The law does not look with favor upon contracts of agency where one a gent as- 3. Embezzlement 44(2)-Evidence held suf. sumed to represent the adversary principal ficient to establish felonious intent. in a contract of any kind, and only permits Evidence in an embezzlement prosecution an agent who has done so to recover his held sufficient to establish felonious intent.

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