still be one for the jury under all the circumstances of the case. Therefore the instruction in that form was erroneous, and the court properly refused it. Instruction No. 8 on the measure of damages was correct, and should have been given. It stated the converse of instruction No. 3, erroneously given by the court at defendant's request. It is unnecessary to discuss other instructions given and refused, for it is believed that what has been said will afford sufficient guide in the next trial of the cause. For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. (133 Ark. 599) FARRIS v. STATE. (No. 269.) (Supreme Court of Arkansas. April 8, 1918.) 1. CRIMINAL LAW 511(2)-EVIDENCE-SUFFICIENCY OF CORROBORATION OF ACCOM PLICE. In a prosecution for larceny, evidence held sufficient to corroborate the testimony of an accomplice as to defendant's participation in the crime. 2. CRIMINAL LAW 508(1)-ADMISSIBILITY • OF TESTIMONY OF ACCOMPLICE. It is proper for court to admit the testimony of an accomplice under appropriate instructions to the jury as to necessity for corroboration of such testimony. 3. CRIMINAL LAW 511(1)-SUFFICIENCY OF CORROBORATION OF ACCOMPLICE. The corroboration of the testimony of an accomplice is sufficient if it tends to connect accused with the commission of the crime, and need not, in itself, be sufficient to support conviction. en from the cotton yard at McNeil, Columbia county, Ark., on a certain Sunday night in October, 1916, and three persons, Carl Mitchell, Floyd Starnes, and appellant, were jointly charged with having committed the offense. The bales of cotton were found in the barn of Gorver Jarvis a short time later, and he, too, was indicted for complicity in the commission of the crime. The state relied, for conviction, mainly on the testimony of Mitchell, and the questions involved in this appeal are concerning the sufficiency of the corroborating evidence and the correctness of the court's submission of the issues to the jury. According to the testimony of Mitchell, he and Starnes and appellant planned to steal the bales of cotton on the Sunday night in question, and on the preceding Saturday night procured a push car from the railroad section house with which to move the cotton from the public cotton yard, which adjoined the railroad track. The parties loaded the two bales of cotton on the push car shortly after midnight and carried it down the track to a creek about midway between McNeil and Waldo, where they unloaded it and carried the push car back to McNeil that night. On Monday night they went back to the place where they had left the cotton and loaded it on a wagon and carried it over into an adjoining county, a distance of 12 or 15 miles. Mitchell and appellant took the cotton away, and in doing so used appellant's wagon and team. Tuesday morning appellant left Mitchell in charge of the wagon and team and cotton and went to Rosston, a village a few miles away, and spent the greater portion of the day there trying to get into communication with Jarvis, who had gone to Prescott. He finally got into communication with Jarvis by telephone and asked him to come home, stating that he wanted to see him on business, and when Jarvis returned appellant spoke to him about buying a drove of horses. Jarvis replied that he had bought all the horses he wanted to buy. Appellant then went back to the place where he had left Mitchell, and they carried the cotton up to Jarvis' house and put it in the latter's barn. That was on Tuesday night. Early Wednesday morning they drove back up to Jarvis' house, and appellant went to the house, leavAppeal from Circuit Court, Columbia Coun- ing Mitchell with the wagon and team a short distance over the hill, and told Jarvis that ty; Chas. W. Smith, Judge. 4. CRIMINAL LAW 763, 764(1) TRIAL-INSTRUCTIONS-WEIGHT OF EVIDENCE. In a prosecution for larceny, based principally upon the testimony of an accomplice, the reference, by the court in his instructions, to such witness as an accomplice, does not necessarily imply that he was an accomplice of defendants, and is not improper as a remark on the weight of the evidence. 5. CRIMINAL LAW 696(5)-OBJECTIONS TO EVIDENCE-FAILURE TO OBJECT. Where an attorney, cross-examining a witness, does not object to certain testimony at the time it is given, there is no abuse of discretion by the court to refuse to strike out such testimony at the close of the examination, after attorney objecting to the testimony had observed its effect upon the jury. J. E. Farris was convicted of grand lar- Mitchell wanted to see him. Jarvis walked ceny, and he appeals. Affirmed. Stevens & Stevens, of Magnolia, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. MCCULLOCH, C. J. This is an appeal from a judgment of appellant's conviction of the crime of grand larceny alleged to have been committed by stealing one bale of cotton, the property of B. F. Runyan. Two bales of cotton, the property of Mr. Runyan, were stol over the hill to see Mitchell, and Mitchell told him about leaving the cotton in the barn, and instructed him to turn it over to one Fincher. Jarvis testified that he did not know that the cotton was in his barn until Mitchell told him about it Wednesday morning. Appellant denied that he was concerned in stealing the cotton, or knew anything about it until some time afterwards. He testified that on Sunday afternoon he was driving through McNeil with his wagon and team returning from that it told the jury that Mitchell was an accomplice. The proof was undisputed that Mitchell was a participant in the crime, and it was not proper to leave that issue open in the instruction. The reference in the instruction to Mitchell as an accomplice did not necessarily imply that he was an accomplice with appellant, and, therefore, did not constitute a charge upon the weight of the evidence. a trip to find a lost mule, and that Mitchell | charges to the jury is assailed on the ground came to him at McNeil and wanted to borrow his wagon and team to haul a load of junk. He testified that he agreed to let Mitchell have the wagon and team, and agreed to take it out to an old mill a few miles from McNeil and leave it there, which he did. He testified that he was not with Mitchell during Monday, but remained at home at work, and he undertook to account for his being with Mitchell up at Rosston by stating that Mitchell had kept the team overtime, and that he went up there to hunt Mitchell and the team, and to see Jarvis about buying a drove of stock. [1] It is earnestly insisted that there is not legally sufficient testimony to corroborate the testimony of Mitchell, the accomplice, but we are of the opinion that the testimony is abundantly sufficient. The conduct of appellant in his association with Mitchell and his unsatisfactory explanation of that association was sufficient to constitute corroborating evidence tending to establish his complicity in the commission of the crime. Appellant denied that he had anything to do with hauling the cotton or placing it in Jarvis' barn, but the fact that he was in that locality the night that the cotton was placed in the barn, a distance of 12 or 15 miles from McNeil, where he lived, and that he was present the next morning and delivered Mitchell's message to Jarvis when they had their conversation concerning the sale of the cotton, a very suspicious circumstance to say the least of it, and the jury doubtless considered appellant's explanation of his presence there, and his conduct on that occasion, as unsatisfactory. According to the testimony of still another witness, Mr. Luck, appellant, in conversation with the witness about the time the cotton was found in Jarvis' barn, made a statement which showed that he knew the particular night on which the cotton was stolen. At least, the jury might have found from the statement of Luck that he knew more about the time of the commission of the offense than was consistent with his en [5] An exception was saved to the ruling of the court in permitting witness Mitchell to testify, in response to a question propounded by the prosecuting attorney, that he had been offered money by "this crowd" to run away and not appear at the trial. The statement of the witness in the way in which it was given might have been understood to have reference to appellant as one of the "crowd," but later on cross-examination the witness stated that the offer was made by Starnes. Appellant offered no objection to the testimony of the witness concerning the offer made by Starnes, but at the close of the examination of the witness appellant's attorney moved the court to exclude that evidence. The statement of the witness was drawn out on cross-examination by appellant's counsel, and no objection was offered to it, or motion to exclude it at the time, and it was too late to ask for its exclusion at the close of the testimony. There was no abuse by the court of discretion in refusing to exclude the testimony after appellant had speculated upon its effect before the jury. The issues were submitted to the jury upon correct instructions, and the evidence was abundantly sufficient to sustain the conviction. Judgment affirmed. (133 Ark. 567) HORN v. BRAND. (No. 311.) (Supreme Court of Arkansas. April 22, 1918.) "CONDITION 1. BILLS AND NOTES 132 SUBSEQUENT." A condition in a contract, the happening of which will defeat a note given pursuant thereto, is a "condition subsequent." and Phrases, First and Second Series, Condi[Ed. Note.-For other definitions, see Words tion Subsequent.] 2. BILLS AND NOTES 491-ACTION - BURDEN OF PROOF--CONDITION SUBSEQUENT. tire innocence of being a party to the theft. 109 S. W. 1024. The burden of proof of a condition subsequent, the happening of which will defeat the cause of action sued on, a note, is on defendant. Appeal from Circuit Court, Perry County; G. W. Hendricks, Judge. Action by D. A. Brand against U. G. Horn. Judgment for plaintiff, and defendant D. A. Brand sued U. G. Horn on a prom [4] The correctness of one of the court's issory note for $324.14. The note was given For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for the purchase, by Horn, of a claim held by | of action, the burden of proof rests on the Brand against the Bank of Casa, and was executed under the following contract: "Be it remembered that on this 28th day of January, 1916, I, D. A. Brand, hereinafter known as the party of the first part, and U. G. Horn, hereinafter known as the party of the second part, witnesseth: That the said second party has this day purchased from the said first party his claim against the Bank of Casa, Casa, Ark., and gave his note for same due in ten months from date, and the said first party has assigned his claim to the said second party. Now, if the said second party fails to get possession of all the claims against the Bank of Casa, Casa, Ark., and is not placed in charge of the liquidation of the affairs of the Bank of Casa, Casa, Ark., then the above note shall be null and void and shall be given back to the said second party without cost and the said second party agrees to deliver the above claim to the party of the first part on receipt of the above note, otherwise to remain in full force. D. A. Brand, Party of the First Part. U. G. Horn, Party of the Second Part." defendant. 13 C. J. 764, § 957. In the case of Thayer v. Connor, 5 Allen (Mass.) 25, the court held (quoting from syllabus): "If a written promise to pay money is given with a condition providing that it shall be void upon the happening of a certain event, the burden of proof, in an action against the maker, is upon the defendant to show that the event has happened." The record does not show that the defendant offered to prove that he failed to get possession of the claims against the Bank of Casa, and that he was not placed in charge of the liquidation of its affairs. It follows that the judgment must be affirmed. (134 Ark. 23) WESCO SUPPLY CO. v. SMITH. (Nos. 306, 337.) The following agreed statement of facts (Supreme Court of Arkansas. April 22, 1918.) was also introduced in evidence: "It is agreed that the contract attached to the pleadings in this cause was executed and delivered. The defendant admits that at no time he demanded his note or offered to return the assignment to the plaintiff. Plaintiff admits that at no time did he demand the return of the assignment or offer to return the note in suit." The case was tried before the court sitting as a jury. The court found in favor of the plaintiff, and judgment was rendered accordingly for the balance due on the promissory note. The defendant has appealed. Sellers & Sellers, of Morrilton, for appel lant. HART, J. (after stating the facts as above). The note sued on was introduced in evidence, and shows that the defendant owed the amount for which judgment was rendered if the note was a valid obligation. The note was executed pursuant to the terms of the contract, and this brings us to the question of whether or not the condition in the contract was a condition precedent or a condition subsequent. In the case of Cooper v. Green, 28 Ark. 48, the court, speaking with reference to a deed, said: 1. PARTNERSHIP 41-DE FACTO CORPORATION-LIABILITY OF STOCKHOLDER AS PART The Arkansas Public Service Company was organized by U. S. Bratton and others. It was their intention to have the same incorporated. The proposed articles of incor "Conditions precedent are, as the term implies, such as must happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as, when they do happen, defeat an estate already vest-poration were filed with the county clerk of ed." [1] A condition subsequent in the law of contracts is one which, if performed or violated, as the case may be, defeats the contract. 13 C. J. 565. Tested by this rule we are of the opinion that the condition in the contract in the present case was a condition subsequent. Neither of the parties offered any evidence in the court below as to whether or not the defendant was placed in charge of the liquidation of the affairs of the Bank of Casa. [2] In the case of a condition subsequent, the happening of which is to defeat the cause Pulaski county on April 3, 1913, but the incorporation was never completed by filing the articles with the secretary of state and procuring a certificate to do business. Bratton was the principal owner of the proposed corporation, and W. F. Bratton and wife, O. S. Bratton, and Guy Bratton had some shares. The purpose of the incorporation, as set forth in the articles, was the maintaining of a water, light, and ice plant in Augusta, Ark. On May 4, 1913, Bratton sold to Peyton Smith practically a half interest in the concern for $20,500, to be paid at various times was executed that Smith went to Augusta and took active charge of the business, and remained there for some two months or better. He was made manager because of the fact that he was equally interested with the witness, and they had an understanding when Smith went to Augusta that he was to be the manager; Smith was not on a salary because he was one of the owners. Witness and Smith were the principal owners, and they drew no salary, but did the work generally for the whole concern. Smith testified that he had no relation to the Service Company, except the purchase of the stock from Bratton. He made a contract for the purchase of the stock, but the stock was never delivered to him. He had no agreement with Bratton to go to Augusta and take charge of the property, but did agree with Bratton that he would go over to Augusta and erect an ice plant for $100 thereafter, with the provision that the first $7,000 was to be deposited to the credit of the Arkansas Public Service Company, to be used . by the company in meeting its obligations, and in making improvements contemplated by the organization. On June 16, 1913, the Arkansas Public Service Company executed two notes to the Wesco Supply Company for $410.05 and $455.52, respectively. These notes were for machinery purchased between June 2 and October 3, 1913. The Arkansas Public Service Company, hereafter called the Service Company, purchased of the Wesco Supply Company, hereafter called Supply Company, machinery of aggregate value of $1,008.64. The Service Company having failed to pay these sums when due and after demand the Supply Company instituted this action against U. S. Bratton and Peyton Smith, and alleged that they were individually liable for the debts of the Service Company because of the fact that the incorpora- a month. He never ordered any goods in tion of that company had never been completed. Bratton answered setting up his discharge in bankruptcy, and for that reason he passes out of the case. Smith answered, denying all the material allegations of the complaint, and denied that he had executed the notes, or had incurred the indebtedness evidenced by the open account sued on. Smith set up that the notes were executed in the name of the Service Company, and were the notes of Bratton, and that he (Smith) had no connection, whatever, with the transaction mentioned in the complaint. The appellant introduced the notes, evidencing the indebtedness mentioned as covered by the notes, signed Arkansas Public Service Company, by U. S. Bratton, President, and also proved the amount of its account. The appellant also adduced evidence tending to prove that Bratton told Smith the name of the Service Company, and did not pay for anything that was ordered by others. In December, 1913, he first learned that the company had never been incorporated. He had no control over the management of the property of the Service Company. He had no knowledge that the Supply Company had sold the Service Company any machinery at any time. Upon substantially the above facts the court instructed the jury to return a verdict in favor of Smith, and refused to grant the Supply Company's prayers for instructions telling the jury to return a verdict in its favor. From a judgment dismissing the complaint of the Supply Company and for costs in favor of appellee is this appeal. Milton B. Rose, of Memphis, Tenn., and Powell Clayton, of Little Rock, for appellant. Manning, Emerson & Donham, of Little Rock, for appellee. that he had never filed the articles of incorporation with the secretary of state, the reason being that the expenses of the repairs, WOOD, J. (after stating the facts as above). that were being made at Augusta, were heavier than he had expected, and consumed Appellant seeks to hold appellee liable "not as a promoter, incorporator, or stockholder in all the money that he had expected to apply to the expense of incorporation. Brat- a corporation," but because of the fact that he became in the language of the witness ton stated that at the time he entered into Bratton "one of the principal owners of the the contract with Smith for the sale of stock thing," and for a time in active charge and that he told Smith that he (Bratton) intend- management of the business conducted by ed to go ahead and complete the organiza- the Service Company. Appellant relies uption out of the $7,000 that he (Smith) was on Garnett et al. v. Richardson et al., 35 to pay. Smith was a little slow in making | Ark. 144. In that case one Garnett, Huffthe first payment of $2,000, and by that man, and Beaty signed articles of associatime some of the bills were due and they tion for the incorporation of the Hot Springs were demanding payment. Bratton told Ice Company, which were filed in the office Smith that the bills were pressing, and so of the clerk of the county court of Garland far as he was concerned the completion of county. After the articles were filed in the the incorporation by filing the articles with office of the county clerk the parties named the secretary of state did not make any dif- as the incorporators were associated togethference, and Smith made no objection to er in business known as the Hot Springs Ice that; said "it was all right." Bratton tes- Company, and while thus transacting busitified that soon after the contract between ness incurred the indebtedness for which him and Smith for the purchase of stock they were held liable. They afterwards fil In Bank of Midland v. Harris, 114 Ark. 344-358, 170 S. W. 67, 72 (Ann. Cas. 1916B, 1255), speaking of the case of Garnett v. Richardson, supra, we said: "That decision seems to be against the weight of modern authority, and the doctrine of it should not be extended any further." [1] The facts set forth in the statement constituted the Supply Company a de facto corporation. Bratton and his associates signed the articles and filed the same in the office of the county clerk, intending after wards to also file the same with the secretary of state, but neglected to do so, and Bratton said that he did not care to do so. But in the meantime the Service Company continued to conduct business in the name of the proposed corporation, as set forth in its articles. The notes in suit were signed in the name of the Service Company by Bratton, as its president, and to all intents and purposes it held itself out to the world as a corporation, and the appellant transacted its business with it as a corporation. Mr. Cook says: "The corporation is a de facto corporation where there is a law authorizing such a corporation, and where the company has made an effort to organize under the law, and has transacted business under a corporate name." He further says: "The great weight of authority has clearly established the rule that where a supposed corporation is doing business as a de facto corporation, the stockholders cannot be held liable as partners, although there have been irregularities, omissions, or mistakes in incorporating or organizing the company." Cook on Corporations, vol. 1, § 234; Rainwater v. Childress, 121 Ark. 541, 182 S. W. 280. The undisputed facts here show that appellant dealt with the Service Company as a corporation. Such being the case, there is no good reason why the appellant should be permitted to hold the appellee individually liable as a partner for the debts of the Service Company. Appellant did not deal with the appellee, but dealt with the corporation, and appellant would get all that it was entitled to in justice according to its contract, if it maintained a liability against the corporation or its individual stockholders. Appellee under the evidence was certainly not one of the original incorporators, and did not undertake by his supposed purchase of stock to become liable as a partner for the debts of the corporation, nor assume any other liability than would be incumbent upon him as a shareholder in proportion to his interest. [2, 3] Appellant would be estopped from attempting to hold appellee in any other ca 6062; 1 Cook on Corp., supra. In Bank of Midland v. Harris, supra, we said: "It does not follow that the corporation it self would not also be liable as a de facto corporation, nor that statutory liability of incorporators would be unenforceable." But neither does it follow that because the incorporators or the individual stockholders mights be liable under a given state of facts, that one who had contracted for the purchase of stock, but to whom no stock in ble as a partner. fact had been transferred, would also be lia Here the undisputed evidence shows that Smith was not an original incorporator, and that he had in fact only entered into a contract for the purchase of stock. It would be greatly extending, and without reason, the doctrine of Garnett v. Richardson, supra, to hold him liable as a partner under the facts of this record. The ruling of the court in refusing to do so was correct, and its judgment is therefore affirmed. MCCULLOCH, C. J. (dissenting). The Arkansas Public Service Company was doubtedly a de facto corporation, according to the great weight of modern authority. So was the concern dealt with in the case of Garnett v. Richardson, 35 Ark. 144. The facts in the two cases are identical so far as concerns the ineffectual attempt to organize a corporation. The principle which formed the basis of the decision in Garnett v. Richardson is that participation in the operation of a business under corporate name without completion of the organization, so as to constitute a corporation de jure, makes such participants copartners in the business, and renders them liable for the debts of the concern. The facts in Garnett v. Richardson were that the defendants were original organizers of the incomplete corporation, but it was their participation in the business which rendered them liable for the debts of the concern. This was made plain in the case of Breitzke v. Tucker, 129 Ark. 401, 196 S. W. 462, where we said that: "To hold persons attempting to incorporate liable as partners, there must not only be an also have been an attempt, after the failure to abortive attempt to incorporate, but there must incorporate, to conduct the business for which the corporation was intended." In the present case the party sought to be held liable for the debts was not an original incorporator, but he purchased stock in the corporation and actually participated in the operation of the business as an interested party-not as a mere employé. He was just as much a participant in the operation of the business as if he had been an original stockholder, and the fact that the stock had not actually been transferred to him is not important. He was the real owner of the stock, and participated in the operation of the business as one interested in the results of the operations. This brings him clearly |