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“(5), The provision in the contract by which defendant was to notify plaintiff of defective parts in ten days of their arrival do not bind the defendant in this case. The ten days mentioned in this contract will not apply in this case, because the damages for which he sues was a resulting damage for a defect that had resulted after the ten days had expired.”

The jury returned the following verdict:

“We, the jury, find for the plaintiff in the sum of $237.58, and find for the defendant on his counterclaim in the sum of $368.”

The court rendered judgment in favor of the appellee in the sum of $130.42, the difference between the two sums above. From that judgment is this appeal.

Joseph Loeb, of Little Rock, and Hutton, Davis, Nourse & Bell, of Kansas City, Mo., for appellant. J. H. Bowen, of Perryville, and Sellers & Sellers, of Morrilton, for appellee.

WOOD, J. (after stating the facts as above). [1] The contract provides that:

“All claims for shortage, damaged or defective parts, must be made by purchaser within 10 days from time of receiving silo.”

The court did not err in instructing the jury that this provision of the contract was not binding upon the appellee, because under the undisputed evidence there Was no Shortage, no damaged or defective parts, which the appellee discovered, or by the exercise of any ordinary care could have discovered Within 10 days after the silo was received. Appellee testified COncerning this that he Was inexperienced in the building of silos, and was no judge of the material of which they were constructed, and from the looks Of the material he could not tell Whether it Was defective or not; furthermore, that the agent, through Whom the appellee purchased the Silo, Saw the material before it was put up, and instructed appellee to go ahead and put it up; and that he relied upon the agent's judgment. The testimony on behalf of the appellant was to the effect that there was no shortage, and that the material of which the silo was constructed was entirely free from damaged or defective parts. There was no testimony to ShOW that the defectS Were Obvious to One Of appellee's experience. The court was fully justified in not allowing any issue to go to the jury as to Whether or not the appellee was estopped from claiming damages by a failure to comply With the 10-day clause of the contract.

[2] The provisions in the contract, “that the silo above Ordered is guaranteed according to the current catalogue,” and the provisions in the current catalogue, “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,” constitute an express Warranty that the Silo would preserve the ensilage and was fit for

the purposes for Which it was manufactured and SOld. [3] Appellee's prayer No. 3 would have been a correct instruction, if based on the proviSions of expressed warranty, and if the case had been presented to the jury on that theoTy, aS it Should have been. Even if there had been no express warranty, the appellant was liable upon an implied warranty, and the Court did not err in submitting that issue to the jury as it did in appellee's prayer No. 4. Appellant made no specific objection to this prayer, and did not itself offer any prayer for instruction Submitting the issue as to Whether or not the damage of appellee arose from a defective cohstruction caused by him, and not from any Shortage or defect in material of which the silo was constructed. [4] The testimony on behalf of the appellee tended to prove that the Silo was constructed precisely in the manner directed by the appellant. Appellee, therefore, had the right to insist that the Silo, when so constructed, would be useful for the purpose for which it was intended. There is no conflict between the expressed and implied warranty from appellee's viewpoint of the evidence, and he had a right to have the issue presented from his viewpoint. See Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548. [5] The appellant is not in an attitude to complain that its theory that the damages, if any, to appellee resulted from his own failure to construct the silo properly, rather than from any defective material, was not made an issue before the jury, for the reason that appellant presented no Such request. Appellant made no complaint as to the amount of the damages. The judgment is therefore correct, and is in all things affirmed.

(134, Ark. 241) BUNCH et al. v. CROWE. (No. 340.) (Supreme Court of Arkansas. May 6, 1918.)

1. MORTGAGES 3:48(2) — DESCRIPTIONS VAGUENESS—EFFECT. Mortgage describing land as residue of W. 1% S. W. 14 Sec. 4, Tp. 2 N., R. 2 E., containing 78 acres, more or less, was too vague and indefinite to identify the land, and was void.

2. APPEAL AND ERROR 3:2931(1)–SCOPE—PRESUMPTIONS. Where there were only two issues, and the chancellor made only a general finding, the court on appeal should indulge presumption, if there was sufficient evidence on either issue to support the finding that the decree was based on that finding. 3. VENDOR AND PURCHASER C2242 – BONA FIDE PURCHASERS – RECORD - BURDEN OF PROOF. Where undisputed evidence showed that plaintiff purchased for value, holder of mortgage containing indefinite description had burden of showing that plaintiff purchased with notice of the mortgage.

4. VENDOR AND PURCHASER 6:231(14)—BONA FIDE PURCHASERS-RECORD-NOTICE-VOID DESCRIPTION. Recording of mortgage containing void description was not constructive notice to subsequent purchasers for Value. 5. FRAUDULENT CONVEYANCES @:278(2) TRANSACTIONS BETWEEN HUSBAND AND WIFE-BURDEN OF PROOF. Where husband was insolvent, and wife paid amount of his and her joint mortgage, taking assignment thereof, she had the burden of proving that the transaction was a bona fide purchase of the mortgage with her own funds, and not a fraud upon the husband's creditors. 6. FRAUDULENT CONVEYANCES @:104(2) TRANSACTIONS BETWEEN HUSBAND AND WIFE-BURDEN OF PROOF. Transactions between husband and wife, affecting rights of creditors, especially where the husband is insolvent at the time of the occurrence, are to be scrutinized with care in passing upon the question of good faith.

Appeal from Lee Chancery Court; Edward D. Robertson, Chancellor.

Suit by S. H. Crowe against Mrs. Addie K. Bunch and Others. From the decree rendered, defendants appeal. Affirmed.

H. F. Roleson, of Marianna, and C. W. Norton, of Forrest City, for appellants. Daggett & Daggett, of Marianna, for appellee.

McCULLOCH, C. J. The subject-matter of the present controversy is a tract of land in Lee county, described as the west half of the southwest quarter of section 4, in to Wnship 2 north, range 2 east, except 2 acres in the Southwest corner thereof owned and OCcupied by a certain school district. The parties to the controversy claim title to the land from a common source, to wit, Henry Bunch, a former owner. Appellant Addie K. Bunch is the wife of Henry Bunch, and aSSertS a lien On the land under a mortgage executed by her husband, in which the land is described in the following language, to Wit.: “Residue of the west half of the southwest quarter of section 4, township 2 north, range 2 east, containing seventy-eight acres, more or less (Res. W. 1% S. W. 34, Sec. 4, 2 N., 2 E., 78 acres).” The mortage was executed by Henry Bunch to W. B. Bunch as guardian of certain children to Secure a loan of money in the Sum of $600, as evidenced by a negotiable promissory note. Mrs. Bunch, the appellant, joined her husband in the conveyance. She claims that before the maturity Of the note she purchased it from W. B. Bunch, guardian, and that the latter assigned the note to her. Henry Bunch was subsequently adjudged bankrupt in the District Court of the United States for the Eastern Division of the Eastern District of Arkansas, at Helena, and appellee, Crowe, claimed title under a Sale and conveyance made by the trustee Of the bankrupt's eState. bankruptcy sold and conveyed the land by proper description to the People's Savings

The trustee in

Bank & Trust Company, a banking corporation doing business at Marianna, and Said banking corporation sold and conveyed the land to appellee. There was an effort to f0reClOSe the mortgage Or deed of trust under which Mrs. Bunch asserts a lien, the land having been advertised for sale by the trustee under a correct description, and appellee instituted this action in the chancery court of Lee county to prevent the sale of the land, alleging that the Sale of the land under a proper description Would constitute a cloud On appellee's title. [1] The language in the mortgage describing the land was too vague and indefinite to identify the land, and the mortgage was for that reason Void. Hornor V. Jarrett, 99 Ark. 154, 137 S. W. 820; Scott V. Dunkel Box & Lumber Co., 106 Ark. 83, 152 S. W. 1025. [2] The evidence was sufficient to justify a Court Of equity in decreeing a reformation of the deed so as to describe the land correctly, aS against the mortgager and subsequent purchasers with notice. The chancellor before whom the case was tried did not make any Special findings of fact, but merely made a general finding in favor of appellee. There Were tWO issueS of fact in the Case, and if there is evidence sufficient to support the finding of the chancellor on either of these isSues, We Should indulge the presumption that the decree was based on that finding. We are of the opinion that the finding of the Chancellor On either of the iSSueS Was not against the preponderance of the evidence. [3,4] One of the issues in the case was whether or not appellee was an innocent purChaser, and the evidence shows that he had no actual notice of the existence of the mortgage under Which Mrs. Bunch asserts a lien. Appellee testified that he had no information on that subject, and the testimony of other Witnesses tends to support him in that contention. There is no direct evidence that he had information sufficient to put him upon notice as to the existence of the mortgage. It being established by undisputed evidence that appellee was a purchaser for value, the burden was on appellants to show that appellee purchased with notice of the existence of the mortgage. Osceola Land Co. v. Chicago Mill & Lumber Co., 84 Ark. 1, 103 S. W. 609. The recording of the mortgage containing the void description did not constitute . Constructive notice to Subsequent purchasers for value. Adams v. Edgerton, 48 Ark. 419, 3 S. W. 628; Neas v. Whitener-London Realty Co., 119 Ark. 301, 178 S. W. 390, L. R. A. 1916a, 525, Ann. Cas. 1917B, 780; Evans V. Russ, 198 S. W. 518. The other issue of fact in the case was whether there was a payment of the note Secured by the mortgage, Or Whether it WaS purchased by Mrs. Bunch from the payee, W. B. Bunch, guardian. Mrs. Bunch testified

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

that she purchased the note from W. B. Bunch and paid him the interest on the note, amounting to about $48, and that she paid the principal by paying the sum of $600 to the firm of Lewis & Bunch, of which her husband was a member, and to whom the guardian owed that sum of money for supplies furnished to his wards. The note was introduced in evidence showing an assignment by the payee to Mrs. Bunch, and W. B. Bunch, the payee, also testified that he sold and assigned the note to Mrs. Bunch. Mrs. Bunch also testified that in paying for the note she used actual cash which she had in her posSession at her home, ten miles in the country out from Marianna.

[5,6] Considering the relations between the parties, that is to say between Mrs. Bunch and her husband, the maker of the note, and the peculiar way in which the money was paid in the purchase of the note, and the condition of the accounts of the firm of Lewis & Bunch against the wards of W. B. Bunch, we cannot say that the chancellor was not justified in refusing to accept as true the contention of appellant that she had purchased the note and paid for the same. Transactions between husband and wife, affecting rights of creditors, especially where the husband is insolvent at the time of the occurrence, are to be scrutinized with care in passing upon the question of good faith, and the burden is upon the wife to prove that she purchased the note and paid the account of the wards of the payee out of her OWn funds, and that the transfer of the note was not a cloak to conceal the payment thereof, and to apparently preserve the lien for the purpose of defrauding creditors of her husband.

The decree is therefore affirmed.

(134 Ark. 92)

LA COST v. CHICAGO, R. I. & P. RY. CO.
(No. 352.)
(Supreme Court of Arkansas. May 6, 1918.)

1. EVIDENCE &73—PRESUMPTION–COMPLIANCE WITH STATUTE. A railroad company, engaged in the business of transmitting messages by telegraph in the state of Arkansas, will be presumed to have complied with Kirby's Dig. § 7949, providing that any railroad company operating in the state by filing its assent in the office of the secretary of state may do a telephone or telegraph business. 2. COMMERCE (3:28–RAILROAD TRANSMITTING TELEGRAPH MESSAGES. An interstate railway company doing a telegraph business is as much within U. S. £ St. 1916, § 8563, and the rulings and regulations of the Interstate Commerce Commission, as if it were a telegraph or telephone company, so that a message received in one state to be delivered in another by it can be classified as interstate. 3. COMMERCE &28—INTERSTATE TELEGRAPH MESSAGE—‘‘INTERSTATE COMMERCE.” Under the rulings of the Interstate Commerce Commission, the initial carrier of tele

graph messages whose line is wholly within a state does not come within U. S. Comp. St. 1916, § 8563, by receiving an interstate message and delivering it to an interstate carrier of messages, unless it has an arrangement with the interstate company and its connection for through continuous transmission. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 4. COMMERCE &28 – TELEGRAPH MESSAGE FROM ONE STATE TO ANOTHER—“INTERSTATE COMMERCE.” A telegram delivered to an interstate carrier of messages at Indiana for delivery to the sendee in Arkansas over a railroad's Arkansas telegraph line came within Interstate Commerce Rulings, Division C, Bulletin 7, p. 94, providing that if two or more lines are connected so that a message is transmitted directly from a point within a state, territory, or district to a point without it, the transmission constitutes interstate commerce, and brings all the participating lines within the purview of the Interstate Commerce Act, so that transmission of the interstate message was interstate comInerce. 5. COMMERCE (3~28—INTERSTATE MESSAGE. A telegram delivered to a telegraph company in Indiana for delivery to the sendee in Arkansas over the telegraph company's line and the telegraph line of a connecting railroad was an interstate message, and remained so until it was delivered to the sendee, and his suit to recover for mental anguish caused by failure to deliver the message after it was received at the place of delivery, as authorized by Kirby's Dig. § 7917, was not maintainable.

Appeal from Prairie County Circuit Court; Thos. C. Trimble, Judge.

Suit by Angeline La Cost against the Chicago, Rock Island & Pacific Railway Company. Judgment dismissing the confplaint, and plaintiff appeals. Affirmed.

Emmet Vaughan, of Des Arc, for appellant. Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellee.

HUMPHREYS, J. This suit was institutéd in the Prairie circuit court by appellant against appellee, to recover damages in the Sum Of $1,000 for failure to deliver a telegram, announcing the death of her sister, until 5 o'clock p. m., on the 17th day of January, 1916, which had been sent to her from Vincennes, Ind., the day before. It was alleged that appellee was a railroad company doing a telegraph business over its line extending from Searcy to De Valls Bluff, and that its charge for the message from De Walls Bluff to Des Arc Was 25 cents; that the message was delivered to the Western Union Telegraph Company in Vincennes, Indu, On the 16th day of January, 1916, by Louis Moyes, brother-in-law of appellant, who paid the Western Union the regular tariff rate, plus 25 cents for delivery to appellant at Des Arc, Ark.; that the message was received at De Valls Bluff at 3 p. m. On Said day, and immediately transmitted over appellee's local line to Des Arc, where it remained, and was not delivered until 5 O'Clock p. m. On the 17th; that had the telegram been delivered

promptly, appellant would have gone to Vin

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Cennes to See her sister before burial, but due to the carelessness of appellee in failing to promptly deliver the message, she was deprived of that privilege, and on that account suffered great pain and anguish of mind, which resulted in complete prostration for many days, to her damage in Said Sum. A general demurrer Was filed to the complaint. The demurrer was sustained and the complaint dismissed, from which judgment of dismissal, an appeal has been prosecuted to this court. [1-4] It is insisted by appellant that Section 8563 of the United States Compiled Statutes of 1916, and the Interstate Commerce Rulings of November 1, 1917, bulletin 7, page 94, do not apply to interstate railroad companies; but that under the act and rulings messages received in one state to be delivered in another can only be classified as interstate if received and transmitted by telegraph, telephone, or cable companies. This Contention is made because railroad COmpanies are not mentioned in the act or rulings. Practically the same question was before this court in the COnStruction Of Section 7947, Kirby's Digest, known as the “mental anguish statute.” It was urged upon the court that, because the mental anguish Statute did not Specifically designate railroad companies, such companies, though engaged in receiving and transmitting messages, Were not included in the act. In construing the statute, this court said: “It is manifest that the Legislature did not use the term “telegraph companies in any technical sense, but intended to apply to any corporation or association doing a public telegraph business.” | The two statutes are very much alike, and it Would be inconsistent for this court to construe the Statutes differently. Furthermore, it is provided by section 7949 of Kirby's Digest that any railroad company operating in this state may, by filing its asSent in the Office of the Secretary Of State, do a telephone or telegraph business. Appellee is correct in the suggestion that a railroad Company engaged in Such business in the state of Arkansas Will be presumed to have complied With the Statute. We think an interstate railway Company doing a telegraph business comes as clearly within the purview of Section 8563, United States Compiled Statutes and the Rulings and Regulations of the Interstate Commerce Commission, as if it were a telegraph or telephone company. Under the rulings of the InterState Commerce Commission, the initial car

rier of messages, whose line is wholly within the state, does not come within the purview of section 8563, United States Compiled Statutes, by receiving an interstate message and the delivery of same to an interState carrier of messages, unless it has an arrangement with the interstate company and its connection for through, continuous transmisSion of the message. This ruling has no application to the message in the instant case, because appellee did not receive the message in Arkansas to be delivered through an interstate carrier of messages and its connection to appellee in another state, under arrangement between the carriers for a through, continuous transmission of the mesSage. The message in the instant Case Was delivered to an interstate carrier of meSSages at Vincennes, Ind., for delivery to appellee in Des Arc, Ark., and comes clearly within division C of Interstate Commerce Rulings, bulletin 7, page 94, which is as follows:

“If two or more lines are connected so that a person within one state, territory or district of the United States, talks with a person, at a point within said state, territory or district of the United States, or so that a message is transmitted directly from a point within the State, territory or district of the United States to a point without the same, the transmission of mesSages in this manner constitutes interState Commerce and brings all the participating lines within the purview of the act.”

[5] The message was paid for by the Sender, and delivered to the Western Union Telegraph Company at Vincennes, Ind., and addressed to appellant at Des Arc. It was to be delivered by the Western Union Telegraph Company to the addressee at Des Arc over its own, and through connecting lines. It was strictly a message to be directly transmitted from a point in the state of Indiana to a point in Arkansas, or from a point Within a state to a point Without the State. The message in character Was interstate, and, being interstate, is controlled by the rule announced on rehearing in Western Union Telegraph Company W. Compton, 114 Ark. 200, 169 S.W. 946. We cannot follow appellant in her contention that the suit is for a tort committed by failing to deliver the message after it was received in Des Arc, Ark. The message did not reach its destination within the meaning of the law until it was delivered to the addressee. The ruling of the lower court, to the effect that the message was interstate, and that section 7947, Kirby's Digest, was inoperative as a basis for damages, was correct, and the judgment dismissing the Complaint is therefore affirmed.

(134 Ark. 265) EDWARDS v. ST. LOUIS SOUTHWESTERN RY. CO. (No. 345.)

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

1. CARRIERS Q->272 – CARRIAGE OF PASSENGERS-ANNOUNCEMENT OF STATIONS.

Though a railroad carrying passengers must have the names of the stations announced on arrival long enough to enable a passenger to get off safely, and is liable for loss or injury reSulting to a passenger from violation of the duty, after properly announcing the name of a Station, the railroad is not bound to give perSonal notice to a passenger on an ordinary passenger train that his station has been reached.

2. CARRIERS <>276(1) – CARRIAGE OF PASSENGERS-NEGLIGENCE—BURDEN OF PROOF. In an action against a railroad for injuries sustained by plaintiff passenger when carried by his destination and forced to walk back in the nighttime, the burden was on plaintiff to show that his injuries were sustained by reason of the railroad's negligence.

3. CARRIERS @:276(1)—CARRIAGE OF PASSENGERS-NEGLIGENCE—EVIDENCE. The burden to prove the railroad's negligence being on plaintiff passenger suing it for injuries caused by carrying him past his station, he could not discharge it by negative testimony that he took the first seat in the car, so that he would be more likely to hear his station called, and that the conductor did not take up his ticket until after the train had passed his Station. Appeal from Circuit Court, Prairie County; Thos. C. Trimble, Judge. Action by R. S. Edwards against the St. Louis Southwestern Railway Company. From judgment for defendant, plaintiff appeals. Affirmed. R. S. Edwards sued the St. Louis Southwestern Railway Company to recover damages which he alleges he sustained by reason of the negligence of the railroad company's servants in not giving him notice when the passenger train on which he was riding reached his destination. According to the testimony of the plaintiff, he sat up with his wife who was sick, until after midnight. He bought a ticket from Brinkley to Clarendon, and embarked on one of the company's passenger trains for his destination. He Was very tired and Sleepy, and on that account took a seat in the first chair in the coach, and placed his ticket in his hatband, so that he would be either awakened by the train officer's touching him to take up his ticket, or he would hear the station announced when the door was opened for that purpose. Clarendon is only a Short distance from Brinkley. The conductor did not take up his ticket until he had passed Clarendon. The plaintiff got off at the next station, and had to walk back to Clarendon in order to be there in time to go to work. He had to walk a trestle three miles long, and his exposure caused him to have a Spell of sickness. According to the testimony of the conductor, he took up the plaintiff's ticket between Brinkley and Clarendon. He announced the

station before the train reached Clarendon by calling it aloud in the car in Which the plaintiff Was riding. Three or four passengers got off the train at Clarendon. The conductor did not know that plaintiff had failed to get off of the train until after it had crossed the bridge of White River below Clarendon. The plaintiff got off at the next StOp.

The court directed a verdict for the defendant railway company, and the plaintiff has appealed.

Emmett Vaughan, of Des Arc, for appellant. Daniel Upthegrove and J. R. Turney, both of St. Louis, Mo., and Hawthorne & Hawthorne, of Jonesboro, for appellee.

HART, J. (after stating the facts as above.) [1] It is Well settled that a railroad company carrying passengers, in order to afford them an opportunity to leave the train at their place of destination, is bound to have the names Of the different Stations announced, upon the arrival of the trains, for a sufficient length of time to enable a passenger to get off with safety, and that a railroad company is liable for a loss or injury which may result to a passenger from a violation of this duty. After properly announcing the name of a Station, however, the Carrier is not bound to go further, and give personal notice to a passenger traveling on an ordinary passenger train that his station has been reached. The Carrier is not required to go through the train and see that every person has safely passed out of the cars. The reaSOn is the passengers entered the Cars of their own volition to travel to a particular place, and it is presumed that they will leave the Car When their Station is called and the train stops there. Fetter on Carriers of Passengers, vol. 1, § 301; Hutchinson on Carriers (3d Ed.) Vol. 2, § 1121; Mitchie on Carriers, Vol. 2, par. 2475; 6 Cyc. 587; Seaboard Air Line Railway v. Rainey, 122 Ga. 307, 50 S. E. 88, 106 Am. St. Rep. 134, 2 Ann. Cas. 675, and note; Southern Railroad Co. v. Kendrick, 40 Miss. 374, 90 Am. Dec. 332; Gilkerson V. Atlantic Coast Line Railroad Co., 99 S. C. 426, 83 S. E. 592, L. R. A. 1915C, 664, Ann. Cas. 1916B, 248, and note.

[2, 3] It is contended by counsel for the plaintiff that even if this be the law, the court erred in directing a verdict for the defendant. We do not agree With counsel in this contention. It is not claimed by the plaintiff that he was injured by the running of the train. Hence there was no presumption of negligence in his favor. According to his own testimony, his injuries were caused by walking back to Clarendon in the nighttime after he had Voluntarily left the train. It devolved upon the plaintiff to show that his injuries were sustained by reason of the negligence of the railroad company. His testimony to the effect that he took the first

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