"We met at 10 next morning at Peeples' office, Burgess being arrested the evening before. Powell said: 'Well, boys, I don't think that I would bother over the matter any more. Burgess has been arrested, and unless the Governor puts another man behind the bill you need not give yourself any uneasiness."" The above testimony of Burgess, to the effect that appellant claimed he had a man by the name of Peeples through whom he could get next to the people who were interested in the soft drink business, tends to prove that Peeples was appellant's agent. And the testimony of witness Leiser, to the effect that he told appellant that Peeples wanted to handle the bill and had told witness to see Powell, and that he (Powell) would handle the matter, and that upon communicating to appellant what Peeples said appellant replied, "Well, that's all right," tends to corroborate the testimony of Burgess. The testimony, all taken together, tends to prove that appellant designated Peeples as his emissary to those interested in the soft drink bills, and that he was authorized to speak for and represent appellant with these parties concerning his ability to defeat or kill legislation which was adverse to their interest. The ruling of the court, therefore, was correct in admitting the testimony tending to show the declarations of Peeples concerning Powell's connection with and interest in the pending soft drink bills. [9] The court instructed the jury at the request of the appellant that they were not authorized to find the existence of a conspiracy from anything that Peeples may have said or done in Powell's absence and without his knowledge. And, further, that unless Peeples was acting as an agent of and with the knowledge and consent of appellant and by his authority in making statements in the conversations testified to by witnesses Leiser, Bellingrath, and Scott, they could not consider any statement made by Peeples as evidence against appellant. There was no prejudicial error to appellant under the instruction of the court in admitting the testimony as to the declarations of Peeples. [10] Over the objection of the appellant the court permitted witnesses to testify that during the last Legislature liquor in large quantities was kept in rooms 404 and 406 Marion Hotel; that card games and crap games were played there. One witness testified that it was noisy, and that he stopped games in both rooms at different times. He listened at the door and heard chips rattling. Another witness testified that they kept from a quart to a barrel of beer all the time. One witness stated: "There was a great deal of time a card game, and most of the time a crap game, any amount from five cents to a hundred or two or three hundred dollars." The assistant manager of the Marion Hotel testified: That rooms 404 and 406 were connecting rooms, and that the rents for these rooms, during the sitting of the last Legislature, was paid by the appellant. Room 404 was rented for the use of the appellant and a close friend of his, and room 406 was occupied by three Senators. That the rooms were used interchangeably. Over the objection of the appellant, Burgess, among other things testified: "Appellant supported Senator Simms for President of the Senate; that Powell stated in his office in the State Bank building, in the presence of 14 or 15 Senators, that he had $500 for one vote for Senator Simms if they could get it." He further said that the crowd, if they would stick together, could pass or kill anything, and that he hoped they would pass drastic railroad and corporation legislation; that he expected to open rooms at the Marion Hotel in a few days where they could meet. Burgess further testified that the doors between rooms 404 and 406 were usually open. One of the Senators testified that: "Room 404 was just a wagon yard for anybody that wanted to come from anywhere in Arkansas. Visiting attorneys and constituents came there for any purpose, just made it their headquarters. Prominent lawyers from all over the state, as well as from Little Rock, came there." Powell in his testimony admitted that he had instructed his friend to rent a room at the Marion Hotel, the expenses of which were shared jointly, and stated that the room was intended as a place where they could meet their friends and members of the Legislature. He denied that there was any rough house there; said many of the visitors brought some liquor, which they drank, but that no one complained of any noise, and he never saw any gambling; would not have permitted it, and that the men who did drink a little whisky there were among the best men in the state. The state having adduced testimony tending to prove that Powell rented the rooms 404 and 406, and that he was maintaining the same as a lobby during the sitting of the Legislature for the purpose of influencing legislation, the testimony tending to show who occupied and visited the rooms and how the rooms were used and the manner and conduct of those who from time to time assembled there was competent. When the above testimony was offered, and objected to, the court expressly told the jury that the testimony was admitted for the purpose of showing the surroundings of defendant at the time and the associations he had with people who congregated there, "to show what kind of place it was, to shed light as to whether or not the charge made in this case was true." The court also in its instructions told the jury that the sole question for their consideration was as to appellant's guilt of the identical charge in this particular indictment; that it made no difference what opinion or suspicions the jury might have of other matters or charges brought out in the testimony which might or might not reflect upon Pow ell; that they could only consider this tes-1 members of the grand jury would testify to timony in so far as it reflected on the truth a different state of facts from that shown by or falsity of the charges made against him. the testimony of the grand juror already ad"Conspiracy," says 5 R. C. L. § 37, p. 1088, duced. True the court informed the attorney "need not be established by direct evidence, that there was no necessity of his making a but may and generally must be proved by a statement as to why he wanted the testinumber of indefinite acts, conditions, and cir- mony. But, notwithstanding this fact, if cumstances which vary according to the pur- appellant desired to challenge here the court's poses to be accomplished." The testimony ruling, he should have set forth and presenton behalf of the state would have warranted ed to the trial court what he expected to the inference that the suite of rooms at the prove by the other grand jurors. Even if apHotel Marion were maintained by appellant, pellant would have had the right to call the during the sitting of the Legislature, as a other grand jurors—which we do not decide rendezvous for legislators and others who he does not make it appear, in the absence might be concerned in bills that were to be in- of a showing that their testimony would troduced as a part of the general plan or have been in rebuttal of the testimony of the scheme of extorting money from certain per- grand juror already adduced, that he was sons or class of persons. If appellant and his prejudiced by the court's ruling. Every memalleged confederates designed to fleece certain ber of the grand jury, for aught that appears individuals or classes by proposing or enact- to the contrary, may have testified the same ing bills in the manner charged in the indict- as the juror whose testimony was admitted. ment, and the maintenance of a lobby at the Meisenheimer v. State, 73 Ark. 407, 84 S. W. Marion Hotel was considered by them as es- 494; Fowler v. State, 197, S. W. 568. sential to the consummation of their conspiracy, then the testimony tending to show the character of these rooms, their equipment, the liquors that were kept there, the games that were played, and all other contrivances that were designed for the purpose of inveigling intended victims into the meshes thus laid for them was certainly competent. Mr. Greenleaf says: "The evidence in proof of a conspiracy will generally, from the nature of the case, be circumstantial." 3 Greenleaf on Evidence, § 93, p. 101. [11] Likewise, the testimony was competent which tended to prove that appellant said he had $500 for one vote for Senator Simms for President of the Senate, and also the testimony that he said in the presence of 14 or 15 Senators that, if they would stick together, they could pass or kill anything, and he hoped that they would pass drastic railroad and corporation legislation. This testimony, in connection with the other evidence, tended to show that appellant was attempting thus early to try to lay the foundation for a program of proposed corrupt legislation which contemplated a saturnalia of extortion against railroads, other corporations, and classes of persons engaged in special lines of business. [12] IV. The state proved by one of the grand jurors, who was the clerk of that body, that the testimony before the grand jury disclosed that there were other persons connected with the conspiracy charged in the indictment whose names where unknown to the grand jury. Appellant's counsel asked the right to put every member of the grand jury on the witness stand. The court refused to grant the request. Appellant excepted to the ruling of the court in not allowing him to call another member of the grand jury. There was no error in this ruling of the court. Counsel for the appellant did not disclose to the court what he expected to prove by the other [13] V. The instructions of the court were correct. They fully covered every phase of the case presented by the evidence, and it would serve no useful purpose and would necessarily extend this opinion to great length to comment upon them in detail. The principal objection urged by appellant is to instructions 5 and 6, given at the request of the state, which in effect told the jury that, while it is necessary, in order to establish a conspiracy, to prove that there was a corrupt agreement as alleged in the indictment, yet it is not necessary that this be proved by direct or positive testimony, but that the same may be proved by circumstantial evidence, and that the jury may regard the same as proved if they believe beyond a reasonable doubt that the parties charged were actually pursuing in concert the unlawful object stated in the indictment, whether acting separately or together or by common or different means providing all were leading to the same unlawful results. These instructions conformed substantially to the law as announced by this court in Chapline v. State, 77 Ark. 444, 95 S. W. 477, where, quoting Mr. Underhill on Crim. Ev., we held: "Direct evidence is not essential to prove the conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds from the secrecy of the crime, usually must be, which is involved in a conspiracy may be, and inferred by the jury from the proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some compersons aimed by their acts toward the accomplete whole. If it is proved that two or more plishment of the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected and co-operative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred, though no actual meeting among them to concert means is proved." We find no reversible error in the record, (133 Ark. 547) TIONS-SETTING ASIDE, JUDGMENT. Where the attorneys were present and agreed to order setting aside decree, and further testimony was taken, it must be presumed that the agreement of the attorneys embodied one or more of the statutory grounds for setting aside decrees. 2. JUDGMENT 384-SETTING ASIDE FILING VERIFIED COMPLAINT WAIVER. Attorneys, by consenting to order setting aside decree, waived necessity of filing a verified complaint, setting up the statutory grounds relied on for setting aside decree. 3. JUDGMENT 846-RIGHTS OF PURCHASER. 4. JUDGMENT 846-RIGHTS OF PURCHASER. In suit to foreclose a chattel mortgage for an alleged balance due on account, held, under evidence, that the mortgaged property was taken over and sold with the understanding that it would settle the mortgage if sold for a certain amount. 6. ACCORD AND SATISFACTION 13- WHAT CONSTITUTES. Where pursuant to agreement mortgaged property was appropriated in full satisfaction of debt, there was an accord and satisfaction, although the note and mortgage were not returned and no receipt or release was issued. Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor. Suit by L. B. Berry, trustee, and John Cox against N. E. Verser and others. Cox died, and suit was revived in the name of E. O. Griffin, administrator, and Keller Lilly was made a party. A decree was entered against defendants and order made setting it aside and decree then rendered dismissing complaint of Berry, trustee, and E. O. Griffin, administrator, and thereafter Lilly petitioned to set aside order setting aside decree and decree dismissing complaint which petition was denied, and Berry, Griffin, and Lilly appeal. Affirmed. The land mortgage was executed to L. B. Berry, trustee for John Cox & Son. The business of John Cox & Son was managed by O. E. Griffin. In the fall of 1913, N. E. Verser owed Cox & Son $5,710.20, according to Cox's books. The 1913 rice crop brought $3,261.49, which was applied on the account, leaving a balance of $2,448.71, according to Cox's books. Verser kept no books. March, 1914, Verser, by agreement with Griffin, sold all the personal property covered In by chattel mortgage for $1,647, which amount was turned over to Griffin for John Cox & Son. On the 21st day of February, 1916, this suit was instituted in the Lonoke chancery court by L. B. Berry, trustee, and John Cox against N. E. Verser, Josie Verser, and E. E. Verser, to foreclose the real estate mortgage for an alleged balance of $902 due on the account. John Cox died, and the suit was revived in the name of E. O. Griffin, day of administrator. On or about the -- N. E. Verser and Keller Lilly bought 120 acres of the rice land from N. E. Verser, and in consideration agreed to pay off the $3,500 mortKeller Lilly went into gage on said lands. possession of the lands, and refused to pay the first mortgage because it was discovered by him that John Cox & Son held a second mortgage on same. his wife, Josie, filed answer, pleading accord and satisfaction, and that John Cox & Son had agreed, after a refusal to satisfy and surrender the mortgage, to satisfy it if the Versers would give them a mortgage on the other 80-acre tract not purchased by Keller Lilly, but had also refused to carry out that agreement, and asked that Keller Lilly be made a party to the suit, that his deed be canceled, and that he be required to surrender possession of said land. E. E. Verser filed separate answer, disclaiming any interest in the land, and alleging that if he signed the mortgage it was through mistake. The court heard the case upon the pleadings and evidence, and judgment was entered against N. E. Verser on the 6th day of October, 1916, for $932.80 which amount was declared a lien upon the real estate, and said lien was foreclosed, including the equity of redemption of Keller Lilly, and a sale was ordered. It is in dispute as to whether the judgment was entered through mistake. On December 7th, Keller Lilly purchased the judgment and HUMPHREYS, J. On January 17, 1913, took an assignment thereof. At the folJohn Cox & Son, who were merchants, had lowing March term, the decree rendered on a settlement with N. E. Verser, who was one the 6th day of October, 1916, was set aside of their customers. N. E. Verser owed Cox by the consent of the attorneys for L. B. $2,214, for which he gave his note, and he, Berry, trustee, and O. E. Griffin, administratogether with Josie Verser and E. E. Vers- tor, and for appellees, with permission to er, executed two mortgages to secure the take further proof in the case. Proof was indebtedness and future advances. One mort- taken, and the cause was again heard, and gage covered Verser's chattels and the other judgment rendered on May 21, 1917, dismisshis equity in 200 acres of land. There was ing the complaint of Berry, trustee, and a prior mortgage for $3,500 on said lands. Griffin, administrator, for the want of eqFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Geo. M. Chapline and W. A. Leach, both of Lonoke, for appellants. Dwight Savage, of Lonoke, Eugene Lankford, of De Valls Bluff, and W. H. Gregory and J. F. Holtzendorff, both of Hazen, for appellees. uity. On the 11th day of October following, | Verser reported he could not get the money, Keller Lilly filed a petition to vacate the he regarded and treated the $1,600 cash order setting aside the decree of October 6th, proposition at an end and applied the cash 1916, which he had purchased, and the de- and credit sales of the mortgaged property cree dismissing the complaint of Berry, trus- on the account, which left a balance due of tee, and Griffin, administrator. The court $902. denied Lilly's petition. Berry, trustee, and Griffin, administrator, for Cox's estate, and Keller Lilly have lodged an appeal in this court. [1, 2] It is first insisted that the court erred in setting aside the decree of date October 6, 1916, at a subsequent term of court. Appellants contend that the decree became final upon adjournment of the October term, and that the decree could not be set aside except on grounds and in manner provided by statute. It is recited in the order of March 27, 1917, vacating the decree of date October 6, 1916, that the attorneys were present and consented to the order. The parties took further evidence, briefed and submitted the case for trial on its merits on March 21, 1917. It must be presumed that the agreement of the attorneys embodied one or more of the statutory grounds for setting aside or vacating decrees, else the court would not have assumed to set the decree aside. The attorneys, by consenting, waived the necessity of filing a verified complaint, setting up the statutory grounds relied on for setting the judgment aside. [3, 4] But, it is insisted that Lilly purchased the judgment after the expiration of the term at which it was rendered, and that he had a right to rely upon its validity. A judgment is not a negotiable instrument, and there can be no innocent purchaser of it. The purchaser of a judgment takes it subject to cancellation at the instance of any one entitled to have it canceled. The purchaser succeeds to the rights of the judgment creditor by virtue of his purchase, but gets no higher rights than the judgment creditor had. [5] It is insisted that the court erred in finding that there had been an accord and satisfaction of the indebtedness. This must depend upon the facts. N. E. Verser, who was a rice farmer being carried and furnished by John Cox & Son, failed to raise enough rice in 1913 to liquidate his indebtedness. He was very much involved. John Cox & Son did not want to extend further credit to him, so proposed through their manager, Griffin, to take $1,600 in full satisfaction of the balance due the firm from Verser. The note, which had been executed at the time the mortgages were given, had been entered and carried in the account. The parties did not settle and strike a balance, but it was stated, when Griffin proposed to take $1,600 in full settlement of the balance due, that Verser owed Cox about $2,400. Verser accepted the proposition, and undertook to raise the money, but failed. N. E. Verser testified, in substance, that he told Griffin he was unable, to borrow the money, but he believed he could sell his horses, mules, cattle, etc., for as much as $1,600, and raise it in that way; that Griffin agreed that they together might do so, and helped him hunt up buyers for the property; that they fixed a day certain for the sale on the farm, which was attended by Griffin; that he and Griffin consulted and agreed on the sale price of everything that was sold; that Griffin did the collecting, and, so far as he knew, everything sold for cash; that he afterwards learned Griffin allowed some of their other customers to have a part of the property on credit and charged it to them; that Griffin took a part of the property to town and delivered it himself to the purchasers; that he requested both Griffin and Cox to return his note and mortgage, but they refused because all the property did not sell for cash; that some time after this transaction he had an opportunity to sell 120 acres of his land for enough to liquidate the first mortgage of $3,500 and interest to Keller Lilly, and, in order to effect the sale, he proposed to Griffin to give Cox a new mortgage on the remaining 80-acre tract to secure the balance on account, if he would surrender and release the mortgage on the 120-acre tract he desired to sell to Lilly; that Griffin agreed to do so, but, afterwards, on the advice of an attorney, refused to carry out the agreement; that Keller Lilly held possession of the 120-acre tract, and refused and failed to pay the first mortgage because the Cox mortgage was not satisfied of record. Griffin stated that he had no recollection of Verser demanding the original mortgage; that he did request him to take a new mortgage on the 80 acres to secure the balance and release the original mortgage on the 200-acre tract which he agreed to do, but that Verser never returned with the mortgage on said 80-acre tract. The testimony of E. O. Griffin was corroborated in part by that of R. A. Tippett, W. P. Fletcher, and John C. Bradford. The testimony of N. E. Verser was corroborated in part by that of E. E. Verser, Gaston Verser, L. Berry, and J. W. Nealeigh. J. W. Nealeigh was present at the sale of the stock, and gave the following testimony: "I was present at the sale. Well, Verser and brought $1,600, he would cancel the debt. Mr. Griffin were talking, and Griffin said if the stock Verser said: "That will give me my home farm. I will have my home farm left.' Mr. Griffin said if the stock brought $1,600, it would settle the mortgage." The testimony upon the whole is some of it, we are convinced that Griffin, in effect, took over and sold the mortgage property at private sale with the understanding that if it sold for $1,600 it would settle the mort gage. [6] It is insisted that because the note and mortgage were not returned, or because no receipt or release was issued, there was no accord and satisfaction, for the reason that under the rule announced in Dreyfus v. Roberts, 75 Ark. 354,1 it was necessary to issue a written receipt or release in addition to paying a smaller amount in satisfaction of a larger in order to constitute an accord and satisfaction. In the instant case, the payment and acceptance constituted an accord and satisfaction irrespective of whether the note and mortgage were surrendered or whether a written receipt or release was issued, because under the common law and American authorities property given and accepted in payment of a debt constituted an accord and satisfaction thereof. Pinnel's Case, 3 Coke, p. V, p. 117a; Pollock's Principles of Contract (1st Am. from 2d Eng. Ed.) p. 165; 1 Am. & Eng. Enc. of Law (2d Ed.) pp. 414-419. Cox & Son, through their manager, took over the mortgaged property, and sold it with the aid and consent of Verser upon understanding that if the property sold for $1,600 it would settle the debt. In other words, there was an appropriation of the mortgaged property in the value of $1,647 in full settlement of the debt. Cox & Son received the benefit of the services of N. E. Verser in hunting up buyers and assisting in selling the property, and also profited by saving the expense of a foreclosure. This court said in the case of Lamberton v. Harris, 112 Ark. 503, 166 S. W. 554, that: "The delivery of property to the creditor and the performance of services by the debtor for the creditor, which are received and accepted by the creditor in satisfaction of his debt, and which are of benefit to him, no matter how small the value may be, is a sufficient consideration to support an accord agreement." | tain to put the property owners on notice as to the land to be included, and by the aid of extrinsic evidence the location of the boundary points cannot be ascertained from such description, the statute is void. 3. LEVEES 2-IMPROVEMENT DISTRICT-DE SCRIPTION-CLERICAL ERROR. Where a levee improvement district act described a certain boundary point as the intersection of the west bank of the Red river with the southern boundary of section 20, and the government plats showed that the only section in the township whose southern boundary intersected the river was section 29, the mention of 20 instead of 29 was an obvious clerical error, and did not invalidate the act. 4. BOUNDARIES 33 - PRESUMPTION — GovERNMENT SUBDIVISIONS. townships and sections or subdivisions thereof Descriptive words in an instrument naming are presumed to have reference to government plats. 5. CONSTITUTIONAL LAW POWERS. 70(1) - JUDICIAL - district as set forth in a statute commences at Where the description of an improvement the intersection of a line of section 20 of a township with a named river, it is not an invasion of legislative power for the court to construe the only section in the township answering the destatute as intending to name section 29-the scription. 6. LEVEES 7 IMPROVEMENT DISTRICT CERTAINTY OF DESCRIPTION. A description, in an act creating an imline at the foot of the hills where the high land provement district, defining a boundary as the and overflow lands, or bottoms, join," held sufficiently certain where it was possible to approximately follow the line, even though lines run by surveyors according to description might vary 100 feet. 7. LEVEES 25-IMPROVEMENT DISTRICT -ASSESSMENT-LEGISLATIVE DETERMINATION. A statute authorizing the board of directors. of a levee improvement district to assess propshall appear each year upon the real estate aserty in the district "upon the valuation as it sessment book," held a legislative determination that benefits will accrue in proportion to the valuation of the land, and courts will respect such determination unless arbitrary and errone 8. LEVEES 25-IMPROVEMENT DISTRICT-AS SESSMENT. Where certain property in a levee improve No error appearing in the record, the de- ment district will not be relieved from overflow cree is affirmed. (136 Ark. 524) DORSEY LAND & LUMBER CO. v. BOARD OF DIRECTORS OF GARLAND LEVEE DIST. (No. 259.) (Supreme Court of Arkansas. April 1, 1918.) 1. LEVEES 2 IMPROVEMENT DISTRICT AMENDMENT OF STATUTE. Where Acts 1913, p. 1267, creating an improvement district, inaccurately describes the land, but the true boundaries can be ascertained from the act, an amendment by Acts 1917, p. 235, to make description certain, and resulting in a change of the boundaries, does not affect the validity of the district as originally formed, and the change of boundaries takes effect only from date of amendment. 2. LEVEES 2-CREATION OF IMPROVEMENT DISTRICT-CERTAINTY OF STATUTE. Where the description in an act creating a levee improvement district is not sufficiently cer to the same extent as other property in the district, the assessment of such property upon valuation, where such method is provided by statute, is not erroneous or arbitrary. Hart, J., dissenting in part. Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor. Action by the Board of Directors of Garland Levee District against the Dorsey Land & Lumber Company and others. Judgment for plaintiff, and defendant named appeals. Affirmed. W. H. Arnold, of Texarkana, for appellant. Moore, Burford & Moore, of Texarkana, for appellee. Rose, Hemingway, Cantrell, Loughborough & Miles, of Little Rock, amici curiæ. McCULLOCH, C. J. The General Assembly of 1913, by special statute duly enacted, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-3 187 S. W. 641, 69 L. R. A. 823, 112 Am. St. Rep. 67, 5 Ann. Cas. 521. |