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if the stumps were removed during that year, at the end of the year it would be known exactly how much of the land was to be free from rent. There Was a Sharp conflict in the testimony between the plaintiffs and defendants as to how many acres of the land had been Cleared of Stumps during the year 1916; but this question was submitted, to the jury under the principles of law above announced. The jury returned the following Verdict. “We, the jury, find for the plaintiffs, and fix the Value of the corn to which plaintiffs are entitled in the sum of $200.” The court rendered judgment upon the verdict in the alternative. It adjudged that plaintiffs have and recover of the defendants the 225 bushels of corn sued for, or, in the event that Same is not delivered to plaintiffs, that they recover of the defendants the sum of $200. [2] It is insisted that this Was error beCauSe the Verdict of the jury might have been based upon a less number of bushels than 225, the amount Sued for. Appellants did not make this a ground of their motion for a new trial, and under our rules of practice cannot raise that issue on appeal. Moreover, there Was no dispute betWeen the parties as to the number of bushels of corn in the crib, and we think the form of the Verdict indicates that the jury found for the plaintiffs for the amount of the corn sued for, and fixed its value at $200. Therefore the judgment Will be affirmed.

(136 Ark. 517) PEOPLE'S BANK OF SEARCY V. BROWN. - (No. 342.)

(Supreme Court of Arkansas. May 6, 1918.)

1. APPEAL AND ERROR 6->1012(1)—REVIEWFINDING OF TRIAL COURT. . The finding of the circuit court sitting as a jury on an issue of fact will not be disturbed by the Supreme Court, where there is legally sufficient evidence to sustain it, even though the finding appears to be contrary to the preponderance of the evidence. 2. EIOMESTEAD &=>57(3)-CHARACTER OF LAND —SUFFICIENCY OF EVIDENCE. Evidence held sufficient to sustain the trial court's finding that certain land on which execution was levied was the homestead of the judgment debtor,

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Action by the People's Bank of Searcy against H. L. Brown, wherein plaintiff had judgment. On the issue of the homestead character Of land On Which execution Was levied, defendant secured judgment, and plaintiff appeals. Affirmed.

Brundidge & Neelly, of Searcy, for appel

lant. Emmet Vaughan, of Des Arc, for appellee. WOOD, J. The appellant had obtained

judgment against the appellee. Execution

Was issued and placed in the hands of the Sheriff who levied upon certain lots in the city of Searcy, Ark. Appellee claimed the property as his homestead. The appellee testified that the property was his homestead; that he was now living in Des Arc, where he moved in September, 1915; he lived on the place in Searcy from March, 1914, until September, 1915. Appellee Was a married man With One child. His Wife and child lived With him. He expected to return to the home in Searcy about October 1st Of the coming year. The property in Searcy was then occupied by One McCain. Appellee had expected to move about June 8th, and had notified his agent at Searcy to SO inform the tenant. Appellee had lived at Des Arc eight or ten years, then went to Searcy to work for Mr. Yarnell by the month. In three or four months after going out of business at Searcy he went back to Des Arc, Where he has been living ever Since. Appellee Was asked if he had not testified before the clerk with whom he had filed his schedule that he had moved back to Des Arc permanently with the intention of making that his future home, and he answered that he did not remember that he had SO testified. He Was asked what the truth Was concerning the matter, and anSWered that he did not know what he was going to do; that he wanted to get the judgment of the People's Bank against him and Yarnell straightened up in Some way. Appellee was asked if his wife did not own a home in Des Arc, and if he did not testify before the clerk that he went back to Des Arc and built a home there in his Wife's name, and he answered that his Wife OWned some property, and he did not build a home there in his wife's name; that his wife had bought a place in Des Arc Since she had been back there. Appellee prior to that time had conveyed all of his property in Des Arc to his Wife. He stated that his Wife had a home at Des Arc; that he had been living there about twelve months. He was asked if he did not testify before the clerk that he had no intention of Coming back to Searcy, and answered that he did not remember that he ever did. Appellee stated that he had been offering to sell his home at Searcy for $2,500, had advertised in the papers for sale, and would have sold it if he could have obtained that price, and bought another cheaper home; he was intending to move back to it if he could not sell it; if he could have sold the place he would have bought a cheaper home in Des Arc, and remained there, and he so testified While his Schedule Was pending before the clerk. Appellee testified that he had no intention for a year or more to move back to Searcy; did not know what business he was going into. Appellant introduced testimony tending to prove that after the execution had been issued and the lots in Controversy had been levied upon that appellee Wrote his agent at

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

Searcy that he intended to move back to Searcy. In One of his letters he said, “I have a serious notion of moving back to Searcy Some time in January next, but I cannot Say yet for Sure.” In another letter he stated, among other things, “I will wait until October 1st to move, but I am sure going to move then, as I think that I can get into something up there that I can make a living out of.” The agent of appellee testified that appellee had the property in controversy advertised for Sale until the time the execution Was levied upon it. The agent's underStanding with appellee was that he should sell the property if he could get as much as $2,500. The agent had an offer of $2,000 or $2,200, and the appellee declined to take it. The appellant also introduced testimony to contradict the testimony of the appellee and to the effect that the appellee testified before the clerk, when the schedule of exemption of his property Was pending before him, that he had no intention of making Searcy his home again, and that when he left Searcy he went to Des Arc with the intention of making it his permanent future home. The trial court upon substantially the above facts rendered judgment in favor of the appellee, from which is this appeal. [1] It is the well-established rule of this court that the finding of the circuit court, sitting as a jury, on an issue of fact Will not be disturbed where there is legally sufficient evidence to Sustain the Same, even though such finding appears to be contrary to the preponderance of the evidence. Harris V. Ray, 107 Ark. 281, 154 S. W. 499. [2] The finding here is Sustained by legally sufficient evidence, and the judgment is therefore affirmed. (134 Ark. 231)

MYERS V. LINEBARGER.

(Supreme Court of Arkansas.

(No. 351.) May 6, 1918.)

1. PRINCIPAL AND AGENT ©:71 - LIABILITY OF AGENT—FRAUD. The owner of hotel property, induced to exchange it for farm property by the fraud and deceit of her agent as to the improvements son the farm property, could recover from the agent damages sustained thereby.

2. PARTIES G->31 – NECESSARY PARTIES – ACTION FOR FRAUD. The owner of farm property, with whom the owner of hotel property was induced to exchange by the fraud and deceit of her agent as to the improvements on the farm property, was not a necessary party defendant to action by the owner of the hotel property against her agent to recover damages for the fraud.

3. PARTIES C231 – JOINT TORT-FEASORS JOINT OR SEVERAL SUITS.

If the owner of farm property, and the agent for the owner of hotel property who exchanged for the farm property, were both guilty of fraud and deceit on the owner of the hotel property in misrepresenting the improvements on the farm property, they can be sued either jointly or severally, like other joint tort-feasors.

Appeal from Circuit Court, Washington County; J. S. Maples, Judge.

Suit by Ellen A. Myers against Elmer Linebarger. From judgment of dismissal, plaintiff appeals. Reversed and remanded.

Walker & Walker, of Fayetteville, for appellant. H. L. Pearson, of Fayetteville, and W. N. Ivie, of Rogers, for appellee.

HUMPHREYS, J. Appellant instituted suit against appellee in the Washington chancery Court to impound and recover a collateral note of $1,000, executed by appellant to Rosa E. Trone, and by Rosa E. Trone assigned to appellee; and to recover $3,200 aS damageS, alleged to have been Sustained by appellant in an exchange Of lands between appellant and Rosa E. Trone, which exchange Was induced by alleged fraudulent misrepresentations and made by appellee concerning the land conveyed by Rosa E. Trone to appellant. The complaint, in substance, alleged: That appellant OWned a hotel situated upon two lots in Riviera, Tex., Of the Value of $5,000, and a dwelling situated upon lot 17, block 10, in Said town, of the value of $1,500. That appellee inspected the property and for a commission of $100 agreed to exchange the Texas property for farm property in Washington county, Ark. That at the time he was the agent for the Sale Or trade Of a 108-acre tract of land owned by Rosa E. Trone in said county and state, but concealed this fact from appellant. That appellee returned to Arkansas and, by letter, proposed trading the Trone property, falsely and fraudulently representing that the following inprovements were upon the Trone. place, to Wit: A Store building, 20 by 60 feet, which rented for $10 per month, when in fact the store building had no rental value; an evaporator, capacity 160 bushelS per day, when in fact the evaporator was located on a neighbor’s land; 60 acres in cultivation, when in fact only 37% acres were in cultivation; 500 grown apple trees in full bearing, when in fact there were only 285 bearing apple trees thereon, and that the farm was fenced and cross-fenced with hog Wire, When in fact it was not so fenced and CrOSS-fenced. That appellant, relying upon the representations of the Washington county land made by appellee, exchanged her property for the Washington county property, upon Which there Was a mortgage in favor of Mrs. W. N. Stewart, and obtained in the exchange the note of Rosa E. Trone, secured by Vendor's lien upon the Texas property, and transferred said note to appellee as collateral for his commission of $100 and for $400 advanced by him to her for the purpose of moving to the Arkansas lands. That appellee was entitled to a credit upon appellant's claim of damages for the $400 so adVanced.

Appellee filed a demurrer to the bill upon the following grounds: (1) That the court had no jurisdiction of the subject of the action; (2) that there was a defect of parties plaintiff; (3) that there was a defect of the parties defendant; (4) that the complaint did not state facts sufficient to constitute a cause of action. The Court treated the demurrer as a motion to transfer the cause to the law docket, and transferred it to the circuit court. [1] The demurrer was renewed and sustained in the circuit court, and the cause was dismissed at the cost of appellant, from which judgment of dismissal an appeal has been prosecuted to this court. Appellant insists that the complaint stated a cause of action, and that the court erred in Sustaining the demurrer and dismissing the complaint. Appellee insists that as a matter of law no right of action accrues to a principal against an agent on account of deceit and fraud where the principal retains possession of the property procured by the agent; and also contends that a suit instituted by the principal against the agent for such fraud and deceit is a ratification and approval Of the misconduct of the agent. We are unable to find any authorities in support of appellee's contention. On the contrary, it is Well settled in the law that a principal may recover damages from his agent sustained on account of fraud and deceit practiced by the agent, which induced the principal to part With his property. Growing out of the fiduciary relationship existing between the principal and agent, the law exacts loyalty and the utmost good faith from the agent toward the principal. The general principle announced in Corpus Juris is as follows:

“The relation of an agent to his principal is ordinarily that of a fiduciary, and as such it is his duty, in all dealings concerning or affecting the subject-matter of his agency, to act with the utmost good faith and loyalty for the furtherance and advancement of the interests of his principal. * * If the agent fails to exercise good faith and loyalty to his principal, and is guilty of misconduct which operates to his principal's disadvantage or injury, he is responsible to his principal for any loss resulting therefrom.” 2 C. J. § 353.

It is also laid down as a general principle

in Corpus Juris that:

“Loyalty to his principal's interests requires that an agent shall make known to his principal every material fact concerning his transactions and the subject-matter of his agency that comes to his knowledge, or is in his memory in the course of his agency; and if he fails to do so, he is liable in damages to his principal for any injury incurred or loss suffered in consequence of such failure. * * *” 2 C. J. § 369.

. These general principles are gleaned from a great number of cases cited in notes to sustain the text. Special reference is made to the following cases because they are so nearly in point: It was held in the case of McMurray V. Garnett (Mo. App.) 182 S. W. 128 (quoting fifth syllabus):

“In an action by the seller of a cigar stand against his agent to negotiate the sale, for his disloyalty in aiding the buyer to defraud the seller by inducing him to take, in payment, a note secured by a mortgage on a worthless lot of land, the seller could recover, although the agent made no positive misrepresentations, since such an action is based not only upon active representations, but also upon the agent's failure to reveal, and his concealment of, facts which he knows and which, he should disclose, an agent, who occupies a fiduciary relation, be: ing bound to act with loyalty and in good faith.” It was held in the case of Palmer v. Pirson, 4 Misc. Rep. 455, 24 N. Y. Supp. 333, that: “Where an agent fraudulently induces his principal to convey land in exchange for other land of less value than represented, the agent is liable for the damages thus sustained.” It WaS held in the Case Of Warner V. Interstate Exchange et al., 138 Iowa, 201, 115 N. W. 1111 (quoting syllabus 1) : “Where defendant, as plaintiff's agent in negotiating the exchange of a horse for certain land, expressly undertook that the title to the land which he was inducing his principal to receive in exchange for the horse was good, subject only, to a certain mortgage or trust deed on which no foreclosure proceedings had been instituted, defendant could be held to make good such representation, if it proved false to his principal's damage.” It seems that the authorities are practically unanimous on this point. The authorities cited and insisted upon by appellee have no application to executed contracts. [2, 3] It is insisted by appellee that the Court properly sustained the demurrer, because there is a defect of parties defendant. It is said that Rosa E. Trone is not only a proper, but a necessary, party. It is not alleged in the complaint that Rosa E. Trone actively participated in the fraud and deceit. The fraud and deceit alleged as grounds for recovery were fraud and deceit practiced by appellant's agent, which induced her to exchange her Texas property for the Arkansas land. Therefore it is apparent that Rosa E. Trone is not a necessary party under the allegations of the complaint. Even if there had been an allegation that she participated in the fraud, they would have both been Wrongdoers under the allegation, and could have been sued either jointly or severally like other joint tort-feasors. 2 C. J. § 607. For the error indicated, the judgment is reversed and remanded for proceedings not inconsistent With this opinion.

(134 Ark. 218) INDIANA SILO CO. v. HARRIS. (No. 343.)

(Supreme Court of Arkansas. May 6, 1918.)

1. SALES @:285(2)—PROVISIONS AS TO CLAIM FOR DEFECTS-BINDING FORCE.

In an action for the price of a silo, wherein defendant counterclaimed for damages, a proVision of the contract of sale that all claims for shortage, and damaged or defective parts, must be made by the purchaser within 10 days of the receipt of the silo was not binding on de

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

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fendant, where there was no shortage, and no damaged or defective parts, which he discovered or could have discovered by the exercise of any ordinary care within 10 days. 2. SALES @:261(1)—WARRANTY OF SILO. Provisions in the contract covering sale of a silo that it was guaranteed according to the current catalogue, and the provisions in the seller's catalogue that they guaranteed the long leaf yellow pine silos, properly roofed and painted, to last and give good satisfaction for 20 years, constituted an express warranty that the silo would preserve ensilage, and was fit for the purposes for which it was manufactured and sold. 3. SALES @:273(1)–SALE OF SILO-IMPLIED WARRANTY. In the absence of express warranty, the seller of a silo was liable on an implied warranty that it would preserve ensilage and was fit for #" for which it was manufactured and SO101. 4. SALEs (3:446(1)—BREACH OF WARRANTYINSTRUCTIONS. In an action for the price of a silo sold, the buyer counterclaiming for damage, in the absence of conflict between the expressed and implied warranty of fitness from the buyer's viewpoint of the evidence, he had the right to have the issue presented from his viewpoint. 5. APPEAL AND ERROR 3:216(1) — INSTRUCTIONS—SUBMISSION OF ISSUE-DUTY TO REQUEST. In an action for the price of a silo, the buyer counterclaiming for damages, where the seller did not request an instruction presenting the issue whether the damage, if any, to the buyer, resulted from his own failure to construct the silo properly, rather than from defective material, the seller cannot complain that the theory of damages was not made an issue.

Appeal from Circuit Court, Perry County; G. W. Hendricks, Judge.

Action by the Indiana Silo Company against N. C. Harris, wherein defendant filed cross-complaint. From judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.

The appellant brought this action against the appellee to recover a balance of $237.58 due on a promissory note executed for the purchase price of a wood stave silo which was bought of the appellant under the following contract:

“Indiana Silo Company, Kansas City, Missouri. “Date, March 12th, 1914.

“Please ship me on or before May 1st, 1914, or at your earliest convenience, to town of Bigelow, county of Perry, state of Arkansas, the following described silo at prices f. O. b. Kansas City, Mo.; this order being subject to approval of the Indiana, Silo Company at Kansas City, Mo., 20¢ freight allowed.

I'. Height. Kind of Wood. | Price. 2pc. Yellow Pi s' pc. Yellow L'Ine 1–14 30 Less 5% discount $237.50

“On receipt of the above I will pay to the Silo Company, or its order, $237.50, payable at Morrilton, Bank of Morrilton, Ark., as follows, to wit: Payable on or before December 1st, 1914, with privilege with longer time if wanted with 8% from September 1st, 1914.

“It is understood that the silo above ordered is guaranteed according to current catalogue, and all Staves are to be tongued and grooved. All silos furnished with continuous door frame and doors, rafters, Wood rim and anchors. All claims for shortage, damaged or defective parts, must be made by purchaser within ten days from time of receiving silo. In the event shortage exists or parts are to be replaced purchaser shall render all friendly and necessary assistance free of charge and shall return broken or defective parts to railroad station and shall consign them to the Indiana Silo Company and furnish said company with a bill of lading as evidence of his claim. The Indiana Silo Company agrees to pay all freight charges in making exchange or replacing shortage. All settlements to be made at time of delivery of silo, either in cash or bankable notes bearing current rates on interest. It is expressly agreed that the silo above ordered shall be and remain the exclusive property of said Indiana Silo Company, and that the title thereto shall not vest in the purchaser until the purchase price thereof or any note or security given therefor shall have been paid in full in cash, and the acceptance of notes or other security shall not act as a waiver of this condition. This order embodies all and is the only agreement between the parties hereto. [Sign here] N. C. Harris.

“P. O., Bigelow, Ark., R. F. D. “Witness: F. H. Lillick, Agent.”

The plaintiff alleged that it sold and delivered the silo under the above contract, which it set up, and which was also introduced in evidence. . It also set out the notes, alleging that no part thereof had been paid, except what was credited thereon, and alleged that it had a lien on the silo, and prayed for judgment for the balance due and for an order directing attachment of the property, described in the complaint.

The appellee answered, admitting the execution of the notes and the contract set forth in the complaint, which he alleged constituted One transaction. He set up as a part of the same transaction, and as part consideration of the purchase of the silo, that he was made agent of the plaintiff for the sale of silos and was to be allowed a certain commission; that he had earned under his agency contract enough commissions, together with the check he had sent to plaintiff, to pay off the notes, except the sum of $71.03. He alleged that the silo purchased by him of plaintiff was “of rotten material, same being knotty, and when filled with ensilage permitted the ensilage to freeze and spoil. He alleged that the Silo was purchased according to current catalogue, copy of which was furnished the defendant, with the guaranty and description of the Silo marked by the agent; that when the silo was put up and filled with ensilage it was found to be worthless and unfit for the purpose for Which it was purchased; that he had put up the silo as directed by the plaintiff and in a proper manner; that the defendant, by reason of the failure of the plaintiff to furnish a silo as represented and according to the contract, had lost about 20 tons Of enSilage, of the Value of $300, and also the Value of the material and the Work which the defendant had furnished in the sum of $50, and damages which the defendant had sustained by reason of the attachment in the sum of $50. The defendant prayed by way of cross-complaint that he be allowed to recoVer the Sum Of $338.97, being the amount of his damages, less the balance due upon the notes as mentioned, and for costs. The plaintiff answered the cross-complaint, denying its allegations, and alleging that defendant had never notified plaintiff of any defect in the material Of which the silo was COnStructed until after the commencement of the suit. Plaintiff, therefore, pleaded such failure to notify as a Waiver. Plaintiff also alleged that the defendant had an opportunity of inspecting the material of which the Silo WaS COnStructed Several months after its delivery, and to ascertain whatever defects there were, if any, in such material. It pleaded that the defendant Was estopped by his COnduct from claiming damages on account of such defect, if any. Plaintiff alleged that, if any damages resulted from the loSS of ensilage, it was the direct result of improper and negligent construction of the silo and the careless methods of defendant in attempting to preserve the ensilage. Plaintiff, therefore, prayed that the crosscomplaint be dismissed. The undisputed testimony shows that the defendant purchased of the plaintiff, through one of its agents, a Silo under the contract Set forth in the complaint, and executed his notes therefor as the complaint alleged. At the time of the purchase the agent of the plaintiff showed the defendant “the current catalogue” referred to in the complaint and read to him certain paragraphs, among which was the following: “We guarantee our long leaf yellow pine silos when properly roofed and painted to last and

give good satisfaction for a period of twenty years.”

The silo purchased was to be of long leaf yellow pine. Testimony on behalf of the appellee tended to prove that the material Of which the Silo Was constructed WaS StaVes of long leaf yellow pine and bands, which was shipped by appellant to appellee in a knocked-down condition. Appellant furnished appellee with plans for building the same and appellee constructed the silo according to these plans. The material was received by appellee in May, and the silo was erected about the last of the following July. Appellee, a month or so afterwards, filled the silo with ensilage, placing therein about 80 tons. The agent of appellant saw the silo before he put it up and instructed the appellee to go ahead and put it up, that the material Was all right. This was appellee's first experience with Silos; he had no occasion to know anything about What it took for Staves to make a silo. He was no judge of the material, and from the looks of it could not tell Wheth

er defective or not; but it turned out that it was. He put up the silo according to the advice Of the agent of the plaintiff, relying on his judgment that the staves were suitable. Appellee had noticed that Some of the Staves were not hard lumber, and had called plaintiff’s agent's attention to that fact, and he said that the Silo Was all right and to put it up. THe stated to go ahead and use it, and that the plaintiff would pay the damages, if there were any loss. Appellee did not notify the plaintiff of any defects in the Silo until after the commencement of the Suit, except to call the agent's attention to it. Appellee discovered, when he began to take the ensilage off the top, that it was spoiled all the way down from the top to the bottom. The bottom of the Silo Was all rotten. The lower ends Of the StaVeS Were rotten five or six inches up. In laying the foundation the appellee followed the instructions of appellant's agent and the plat and form appellant furnished him. A witness who assisted appellee in putting up the silo corroborated the testimony of the appellee. He stated that the Silo was erected by an experienced contractor and carpenter. The material Of Which it was constructed rotted and molded, and permitted the ensilage to seep between and through the sides. The silo was properly roofed and painted. There was testimony on behalf of the appellant tending to prove that the defective condition of the silo was caused by failure on the part of the appellee to build the same according to the instructions that were furnished him. These instructions called for a cement rim to be run up at least Six inches On the inside Of the base Of the Staves. The purpose of the cement rim on the inside was to prevent the air from coming in under the base of the Staves and holding the base of the silo firmly on its foundation. The cement base was built contrary to the inStructions. The rim of concrete was put on the Outside, and built up against the Staves. The effect of it was to catch the Water as it rained, and hold it, and it rotted the bottom end of the Staves. The defective condition of the staves was caused entirely by a failure to properly build the concrete rim at the bottom of the silo. This failure caused Cracks at the bottom and produced the decayed condition of the silo. The court, among others, at the request of the appellee granted the following prayers:

“(3) If the plaintiff warrants the silo to be reasonably fit for the purposes for which it was sold to the defendant, and if you find that said silo was not of quality warranted and was not fit for such use, defendant has the right to recover on his counterclaim all such damages as you find from the proof he has sustained by reason of such unfitness.”

“(4) If you find that the plaintiff was engaged in making silos and selling silos to purchasers for their own use, and made and sold the silo to the defendant for his use, it as matter of law warranted that it was reasonably fit for the use for which it was intended.”

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