under the new contract justified the refusal of further performance by the company, since under the provision for security the defendant was entitled to the continuation of the bond as first executed, and had the right to require further security upon such refusal.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. 303.]

Appeal from Circuit Court, Randolph County; J. B. Baker, Judge.

Action by T. C. Haynes against the J. R. Watkins Medical Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause dismissed.

and the same is hereby ratified, and in all things declared to be binding, and the said bond of the said Haynes is declared to be to the said company acceptable, and the said Haynes will not be required to make any new or additional bond, or give any additional bondsmen during the life of the said contract; and the said company agree that they will not permit one Glasco, who has heretofore had a contract for the said territory, to have any contract for any portion of said territory during the life of the said Haynes contract, nor to permit any one else to have contract for the said territory, nor any porthe said Haynes contract." tion thereof during such unexpired term of

the

The appellee testified about the making of the contract, the execution of the bond, with T. W. Campbell and C. A. Going as sureties, which was accepted by the company, breach of the contract, the suit for damages and compromise thereof, and the stipulation for the further performance of the contract. He stated, also, that the company thereafter refused to send medicines and goods ordered in accordance with the contract, and read in accordance with the contract, and read their letter of May 16, 1914, as follows:

ship the sample case to you at Pocahontas, Ark. "We have yours of the 14th, asking that we We are, however, unable to comply with your request, as we are in receipt of a communication from our Winona office, to the effect that contract. Of course, until that matter has been one of your bondsmen has withdrawn from your straightened out, we will be unable to make you any further shipments."

This is a suit for damages for breach of the contract entered into between the parties thereto, for the alleged refusal of the appellant company to furnish medicines to be sold by the appellee in the prescribed terbe sold by the appellee in the prescribed territory, at the price designated and in accordance with the provisions of the contract. On February 27, 1914, the parties entered into a written contract, giving the appellee the exclusive right to sell the medicines and manufactured articles of the appellant company, in a designated portion of Randolph pany, in a designated portion of Randolph county, agreeing to fill all orders of appellee for medicines, etc. In March, the medical company attempted to cancel said contract and assigned the territory to another person. Appellee thereupon brought suit for breach of the contract, which was compromised and dismissed upon the payment by the medical company of the sum of $275, "and the further promise," as alleged in the complaint, "on the part of appellant, that the contract that had been entered into between them on the 27th of February, 1914, should again be"I am in receipt of a letter from your Memcome effective, and that appellant would not phis office, stating that you will not ship me require of appellee any other bond or bonds- any sample case until things were straightened men, and that appellee was to have said back on me. Now it was distinctly agreed beout, saying that one of my bondsmen had gone territory mentioned in said original contract, tween us that I was not to be required to make all of which was to be effective and binding any further or additional bond, nor give any adon the parties from the said 28th day of ditional bondsmen, during the life of my year's contract. Now I am depending upon your comApril, 1914, to the 1st of March, 1915." And plying with your contract in this particular. I it also alleged that appellant notified ap-ordered a sample case from you on the 29th day pellee that one of his bondsmen had withdrawn from the bond, and by reason thereof it could ship him no further goods until he executed a new bond, which he refused to do, and thereupon appellant refused to ship him any more goods or merchandise in accordance with the contract, which action constituted a breach thereof, for which damages were prayed. Appellee answered, denying the allegations of the complaint relative to breach of the contract.

The agreement of compromise was reduced to writing, and stipulates, after reciting the making of the first contract and the giving of the bond required by it, with certain sureties, naming them, the breach thereof and the amount paid in the compromise of the suit therefor; "and as a further condition and consideration of said compromise it is agreed that said contract entered into by and between said parties on February 27, 1914, be

He replied to this letter on March 23d, as follows:

of April, and cannot, of course, go to work without the case. So I am waiting for you to ship this to me. Please let me know what you are going to do about it."

He admitted receiving their letter of May 21st, informing him of the receipt of a letter further bound by the bond executed, as the from his surety, C. A. Going, declining to be contract later entered into between the medical company and Haynes was a new one, executed without his knowledge or consent, and stating he would not be bound by anything further that should take place between the company and Haynes. This letter also states:

be further bound under the contract he executed "You will observe that Mr. Going refuses to as surety for you, which you will appreciate makes it necessary for you to arrange for a new contract before we can fill any more orders. Mr. Going's notice would release him from any obligation to pay for any goods furnished subsequent to the time it was received by us.

Please let us hear from you promptly as to what to be sold, the giving of the bond "in supyou wish to do in the matter." port of said contract," with the sureties, naming them, etc.

He testified, further, that he refused to furnish any additional bondsmen; that he was unable to do any business whatever under the contract, because the company refused to send him the medicines ordered and the goods to be sold in accordance with its terms; that he was ready at all times to carry out the contract on his part, but was prevented by the company from doing so. He admitted that Mr. Going, his surety, had come to him and told him that he was released from the bond. The remainder of his testimony relates to his probable profits, and there was other testimony relative thereto. The court instructed the jury, refusing to give appellant's instruction numbered 3, as requested, as follows, and struck out the last half thereof, over its objection:

The stipulation in effect provided for a continuance of the first contract, under the terms of the bond by it required and executed, as though there had been no breach thereof, nor compromise of suit for damages. It was never contemplated that the contract should be made and performed, except in accordance with its terms and under the obligation of the bond required to be, and which was, executed by appellee, with the two sureties. There was no agreement to furnish any medicines or manufactured articles without bond, and the second writing merely declares that the old contract shall be continued with the bond as already executed. It was admitted that one of the sureties afterwards claimed to be released because the compromise agreement was executed without his knowledge or consent, and notified the medical company that he would no longer be bound upon the bond. It immediately informed appellee of this fact, and requested that he should furnish another surety, which he refused to do, claiming that it had no right to demand any other bond or surety under the terms of the compromise agreement. Of course, if appellee's contention had been correct, he was entitled to have the company continue to sup

"You are further instructed that in the contract sued on in this action, the words, 'said Haynes will not be required to make any new or additional bond, or give any additional bondsmen during the life of this contract,' refer to the bond as then existing, with all sureties on same intact. "Therefore, should you find from the evidence in this case that, subsequently to the execution of the contract sued on, one of the sureties on said bond withdrew as such, then and in that event the defendant would have a right to require plaintiff to execute a new bond, and upon the failure of the plaintiff to do so, the defendant would have a right to refuse to ship goods to plaintiff until such new bond had been ex-ply him with medicines and manufactured ecuted."

The court also told the jury, if they should find that appellee agreed with the medical company "not to require a new bond or bondsmen during the life of the contract sued upon in this case, that the Medical Company would be estopped from pleading that one of the sureties had withdrawn from the bond."

S. A. D. Eaton, of Pocahontas, for appellant. T. W. Campbell, of Pocahontas, for appellee.

KIRBY, J. (after stating the facts as above). The court erred in not giving the instruction as requested. The writing between the parties was unambiguous, and clearly expressed the terms of their contract, and they were bound by the stipulation of the compromise agreement relative to the continued performance of the contract after the compromise of the suit for the breach thereof. It expressly recognized the existence of the old contract as binding, and provided: "The said bond bond of of the said Haynes is declared to be to the said company acceptable, and the said Haynes will not be required to make any new bond or additional bond, or give any additional bondsmen, during the life of the said contract," after reciting the execution of the first contract for a period expiring March 1, 1915, the designation of the territory in which the

articles without the giving of other bond or surety; but, as already said, the stipulation of the compromise agreement is not susceptible to any such construction, and his contention cannot be sustained.

It was not contemplated that the medicines and manufactured articles should be furnished him without the bond given required by the terms of the contract, and while the medical company was willing to continue to perform the contract and rely upon the bond as first executed, and not to demand any other bond or security, the condition was immediately changed when the surety on this bond declined to be further bound and notified said company of that fact. It then had the right to require appellee to give further security, since that accepted by it had failed through no fault on its part, and it was never the intention of the parties that the medicine should be furnished without the security of a bond, and the writing clearly shows that it was the intention to retain such security, and only that no other would be required, so long as that furnished and accepted remained in force. In other words, the agreement, as clearly expressed in the language thereof, was that the old bond was satisfactory to the company, and no other would be required or demanded so long as it was effective. The company had the right, the surety thereon having refused to be further bound for

demand other security; and appellee, having refused to furnish it, was not in a position to recover damages for the failure of the company to furnish medicines and manufactured articles, which it had never agreed to

do without a bond. The written contract being unambiguous, it was the court's duty to construe it, and the court erred in refusing

appellant's said requested instruction numbered 3, a correct construction of the contract, which in effect asked a directed verdict. The testimony is undisputed, and the court should have directed a verdict in appellant's favor.

Clarke Yancey was convicted of murder in the second degree, and he appeals. Affirmed. Wallace Davis, Atty. Gen., and John P. Andrews & Burke, of Helena, for appellant. Streepey, Asst. Atty. Gen., for the State.

murder in the first degree, charged to have HART, J. Clarke Yancey was indicted for

been committed by shooting Luther Surman. He was tried, was convicted of murder in the second degree, and his punishment was fixed by the jury at imprisonment in the penFrom the judgitentiary for seven years.

The judgment is reversed, and the causement of conviction, he has duly prosecuted The facts are as an appeal to this court. follows:

dismissed.

YANCEY v. STATE. (No. 158.) (Supreme Court of Arkansas. Oct. 11, 1915.) 1. HOMICIDE 300-INSTRUCTIONS- SELFDEFENSE.

On the 27th day of February, 1915, Clarke Yancey shot Luther Surman at a dance at Trenton, in Phillips county, Ark. One shot entered just below the point of the shoulder blade and a little to the right side of it; and the other shot was lower down, just below the last rib. Surman died the day after the shooting as a result of his wounds.

On a trial for homicide, the evidence for the state tended to show that defendant was drunk and threw or dropped his pistol on the floor; that S. threw defendant down, and drew the [1] The circumstances attending the shootcartridges out of the pistol; that later defend- ing, as testified to by witnesses for the state, ant demanded the pistol, and, S. having denied having it, defendant precipitated a fight with are that the defendant Clarke Yancey came him; that they were separated, and defendant into the dance hall drunk, went into a room and his friends left the house; that S. became adjacent thereto, pulled out, his pistol, and angry and followed with a chair in his hand; either threw or dropped it on the floor. Lubut that, if he started in the direction of defendant at all, he had changed his direction and ther Surman then came in and threw the dewas going away from him when shot. Defend- fendant down on the floor. He then threw ant's evidence tended to show that S. began the the cartridges out of the gun onto the floor fight when he requested his pistol, and that aft- and handed the pistol to some lady present. er he had left the house S. followed, and was advancing on him with a chair and attempting Then he let the defendant up, and both of to strike him when he fired. The court charged them went out of the room. A short time that, if defendant provoked or voluntarily enter- afterwards the defendant came to Surman in ed into the difficulty, or was the aggressor, he the dance hall and demanded his pistol of could not plead self-defense. Held, that this presented the state's theory of the case, and was him. Surman denied having the pistol, and not erroneous because of the failure to charge the defendant precipitated a fight with him. that, if defendant in good faith sought to retire Surman got him down and was on top of from the scene of the difficulty, and if deceased followed him out of the house and assaulted him, and some of the defendant's friends him, he would have a right to kill deceased, de- then got on top of Surman. Other persons fendant having made no specific objection spe- separated them, and the defendant and his cifically calling the court's attention to this defect, and the court having fully and fairly sub-friends went out of the house. Surman bemitted defendant's theory in instructions pre-came angry, and finally followed them out, pared by his own counsel.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. 300.]

2. CRIMINAL LAW 720 PROSECUTING ATTORNEY.

ARGUMENT OF Where on a trial for homicide it appeared that defendant went home after shooting deceased, that he was given a check by his father, which he cashed with a neighbor the next morning without saying anything to the neighbor about having shot deceased, and that he at once left the country, the prosecuting attorney's statement in his argument that, no doubt, when defendant reached home after committing the murder, he was given a check by his father and advised by him that other climes would be more healthful for him, was justified.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. 720.]

with a chair in his hand raised over his head. Some of the witnesses for the state testified that Surman was going in the direction of the defendant, and that the defendant snapped his pistol at him, and that when the pistol snapped Surman turned and started away from him. They stated that the defendant kept on snapping his pistol, and that after it snapped three times it began to fire; two bullets entering the body of Surman and resulting in his death. Other witnesses for the state testified that when Surman came out of doors with the uplifted chair he did not go in the direction of the defendant, but that, when the defendant saw him come around the house with the chair, going away from him, he immediately began to snap his pistol, and that after it snapped three times

Appeal from Circuit Court, Phillips Coun- it fired twice; both bullets entering the ty; J. M. Jackson, Judge.

body of Surman.

[2] It is next contended by counsel for the defendant that the judgment should be reversed because the prosecuting attorney in his closing argument to the jury used the following language:

According to the testimony of the defend-[ seen, it covered the defendant's theory of ant and his witnesses, the defendant, when the case fully by instructions asked for by he first went into the room adjoining the him. Arnott v. State, 109 Ark. 378, 159 S. W. dance hall, pulled his handkerchief out of 1105; Bruder v. State, 110 Ark. 402, 161 S. his pocket, and in doing so accidentally W. 1067. threw his pistol on the floor; that Surman then threw him down and took the pistol away from him; that a little later the defendant requested Surman to give the pistol back to him; and that Surman then began a second fight. They testified that after they had been separated the second time the defendant left the house, and, with some boys who had come to the dance with him, started home, and that Surman then followed him out of the house, and was advancing on him with a chair and was attempting to strike him with the chair at the time he fired the

fatal shots.

At the request of the state the court gave the following instruction:

"If you find from the evidence in this case that the defendant provoked or voluntarily entered into this difficulty with the deceased, then he cannot plead self-defense in justification of his acts; in other words, if you find from the evidence that the defendant was the aggressor, or that he voluntarily entered into the difficulty, then he cannot plead self-defense."

"No doubt, when this young man reached home after committing this murder, he was givhim that other climes would be more healthful en a check by his father, and was advised by for him."

We do not think counsel are correct in their contention in regard to this language. The record shows that the defendant went home after his difficulty with the deceased; that he was given a check by his father, which he cashed with a neighbor the next morning; that he did not say anything to the neighbor about having shot the deceased; and that he at once left the country. Under this state of the record the attorney for the state was justified in using the language in his argument to the jury.

We find no prejudicial error in the record, and the judgment will be affirmed.

CO. (No. 163.)

It is contended by counsel for the defendant that the court committed a reversible error in giving this instruction, on the ground that it was not justified by the facts. They ROSS & ROSS v. ST. LOUIS, I. M. & S. R. contend further that the instruction was misleading, on the ground that the court did not tell the jury that, if they found from the evidence that the defendant in good faith sought to retire from the scene of the difficulty, and that the deceased followed him out of the house and assaulted him, he would have a right to kill deceased in his own defense.

According to the testimony of the state, the defendant was the aggressor throughout the difficulty; and according to the testimony of the defendant and his witnesses, the defendant had left the house to avoid further difficulty with the deceased, and was followed out of the house by the deceased, who attempted to strike the defendant with a chair, and the defendant then, in order to save his own life, shot the deceased.

(Supreme Court of Arkansas. Oct. 11, 1915.) 1. DAMAGES 108-MEASURE OF DAMAGESLoss oF USE OF PROPERTY.

burning cotton into a pool belonging to plainWhere defendant railway company dumped tiffs, used to supply water for their cotton gin mill, and thereby damaged the pool, plaintiffs' measure of damages was not the depreciation in value of the plant, but the cost of restoring the plant to its former condition, together with the usable value during the time they were deprived of the use of it.

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 273; Dec. Dig. 108.] 2. DAMAGES

AGES.

62-DUTY TO MINIMIZE Dam

Where the proper measure of damages for injury to a pool used by plaintiffs to supply their cotton gin with water is the loss of use of the pool and the cost of restoring it to its former condition, plaintiffs' action is not defeated by failure to restore the pool, for they were entitled to compensation for the injurious use of the pool, whether it was restored or not, and although they subsequently sold their plant, including the pool.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. 62.]

Appeal from Circuit Court, Clark County; Geo. R. Haynie, Judge.

Action by Ross & Ross against the St.

The defendant's theory of the case was fully and fairly submitted to the jury in instructions prepared by his own counsel. The instruction as given by the court presented the state's theory of the case. It is not always practicable that a judge should attempt to so frame each paragraph of his charge to the jury as to make it cover all the elements of the evidence. If the defendant thought the instruction as given was misleading, because it did not contain the qualification now in sisted upon, he should have made a specific objection to the instruction and have thus specifically called the court's attention to the At the trial of this cause in the court bedefect in it. If he had done so the court low appellants offered evidence tending to doubtless would have added the qualification show that they were the owners of a large requested by him; for, as we have already pool near the appellee's station at Okolona. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

This pool was about 75 feet wide and 125 [to the jury upon the theory that appellee feet long, and of a depth ranging from 2 feet had used appellants' property and had damto 5 feet. This pool was used by appellants aged it in its use. The measure of such as the source of water supply in the opera- damages, however, would not be the deprecition of their gin. On the 9th of March, 1913, ated value of the property, but would be the the cotton on the platform at appellee's sta- cost of restoring the property to its former tion caught fire, and about 80 or 90 bales condition, together with compensation for which had been lying on this platform were the usable value during the time appellants carried and thrown into appellants' pool. were deprived of its use, and if the proof upAppellee had given bills of lading for all of on a trial anew does not show that appellants the cotton carried and thrown into this pool, were deprived of the use of the pool, then except 3 bales which were owned by appel- their recovery should be measured by the lants. The cotton covered by the bills of cost of restoring the pool to its condition belading was thrown into the pool upon the di- fore the cotton was placed in it. Cavanagh rection of the roadmaster of the railroad v. Durgin, 156 Mass. 466, 31 N. E. 643. company in charge of that division, and there was also proof that appellee's station agent was present and assisted in directing the removal of the cotton. The cotton ignited on Monday, and continued to burn for some days notwithstanding the fact that it had been thrown into the pool, and on Wednesday following the fire the appellee's district claim agent appeared on the scene and requested appellants to permit the cotton to remain in the pool, and stated that the railroad company would be willing to pay a good rental for the use of the ground and damage to the pool, and that, when the fire had been extinguished, the railroad would clean up the premises and pay any damages that had been sustained. The cotton was allowed to remain in the pool for three weeks, at the end of which time the portions of it which had not burned were taken out and the burned portions, together with the bagging and ties, were left in the pool.

company

[2] It is now urged by appellee that no recovery should be permitted in this case because appellants did not clear out the pool and incurred no expense on that account, as they sold the entire property before the pool had been cleared out, and that any expense in that connection was incurred after the sale of the property by them. But we do not think that appellants' right of recovery can be defeated on that account. They were entitled to compensation for the use of the pool, whether they cleaned it out or not, and their right of recovery cannot be defeated because they did not incur this expense.

According to the evidence of appellants, they made a deduction in the purchase price of the property which far exceeded the cost of repairs, but they would have the right of recovery whether this was true or not, and the judgment of the court below will therefore be reversed, and the cause remanded for a new trial.

(No. 154.)

(Supreme Court of Arkansas. Oct. 11, 1915.) 1. EMINENT DOMAIN 75-COMPENSATION— CONSTITUTIONAL PROVISIONS.

Before the beginning of the next ginning season appellants sold their gin plant, which BARTON v. EDWARDS, County Judge, et al. included the pool, and one of the appellants testified that the price received was $500 less than would have been asked but for the damage done the pool, although he admitted that in making the trade nothing was said about the damaged condition of the pool. Appellants prayed judgment for this depreciation in the value of their plant. When appellants rested their case, the court gave a direction to the jury to return a verdict in appellee's favor, and this appeal has been prosecuted from the judgment of the court pronounced thereon.

McMillan & McMillan, of Arkadelphia, for appellants. E. B. Kinsworthy, R. E. Wiley, and T. D. Crawford, all of Little Rock, for appellee.

SMITH, J. (after stating the facts as above). [1] The court below did not consider the question of the measure of damages, as under its view there was no liability. But the right to recover damages, if such a right exists, cannot be defeated because appellants sought to apply an erroneous measure. We think this cause should have been submitted

Const. art. 12, § 9, providing that no property or right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner "in money" or first secured to him by a deposit of money, applies only to the exercise of the right of eminent domain by private corporations, and has no application to the exercise of that power by the state or subdivisions thereof.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 198, 199; Dec. Dig. 75.]

2. EMINENT DOMAIN 75-COMPENSATION—

CONSTITUTIONAL PROVISIONS.

Declaration of Rights, § 22, providing that private property shall not be taken, appropriated, or damaged for public use without just compensation therefor, does not require actual payment in money before the state or a county or municipality can exercise the right of eminent domain, especially as it does not employ the emphatic language used in article 12, § 9, relative to the exercise of such power by private corporations, that property shall not be appropriated until full compensation is made "in money," and payment in county warrants is a compliance with the Constitution, though such warrants are depreciated in value, as the Constitu