صور الصفحة

of the parties that the cause was tried in the Washington circuit court. The court made no order changing the venue of this cause, and the Washington circuit court was therefore without jurisdiction to try it, as it is thoroughly well settled that, while jurisdiction of the parties may be acquired by consent, jurisdiction of the subject-matter of litigation cannot be thus acquired. Section 6060, Kirby's Digest; Jacks v. Moore, 33 Ark. 31; Grimmett v. Askew, 48 Ark. 151, 2 S. W. 707; Blake V, Scott, 92 Ark. 46, 53, 121 S. W. 1054, 123 S. W. 1181.

The Washington circuit court was therefore Without jurisdiction to enter the order made by it, and its judgment must therefore be reversed, and the cause will be remanded, with directions to the parties to proceed with the trial in the Madison circuit COurt.

[blocks in formation]

F. W. Schifflin and J. W. Periman Sued J. T. Smith to recover $500, alleged to be due them for commissions on the Sale Of certain lands belonging to Smith.

According to the evidence of the plaintiffs they were real estate brokers, and J. T. Smith listed With them 200 acres Of land for Sale at $50 per acre. The Sale Was to be either for cash or on a credit, and Smith agreed to pay them a commission of 5 per cent. for making the sale. The plaintiffs agreed upon a sale to a Mr. Phillips at $50 per acre, and notified Smith to come to their Office to close the deal, and they then told him that Phillips was not able to carry out his trade. The plaintiffs SOOn afterwards carried C. T. Howard to look at the place. He offered them $8,000, which they refused. Plaintiffs then showed the property to other parties. In a few days Howard came back to see the plaintiffs again and wished to look

over the place. On their way they met Smith, and told him that Howard had come to look over the place again. Smith told them that he did not know whether he could see it or not, as he had leased it. They asked him. When he had leased it. He replied, that day. Smith went back with them and looked over the land, and Howard agreed to pay them $10,000, the price he asked for the land. Smith refused to complete the sale on the ground that he had already leased the place. Smith had not told them that he was going to lease the land if they did not sell it in a few days. He said nothing about taking the land off of their list. Howard had $10,000 with which to pay for the land, and offered it to Smith. Smith refused to let him have the land at all. According to the testimony of Smith, he never listed the land With the plaintiffs but they came to his house, looked OVer his land, and offered him $35 an acre for it. He supposed they were going to buy it themselves, and did not know they were real estate brokers. He refused to sell to them at that price. A few days thereafter they notified him that they had a purchaser for his place, and asked him to COme to their Office to meet him. When Smith arrived at their office, the plaintiffs showed him a written contract which they had prepared. It provided for the payment of $1,000 in cash and for $1,000 in yearly payments for 9 years thereafter. Smith asked them. Where their commission was coming from, and they told him that it would come out of the first $1,000, and Would be $500. Smith told them that he Was asking $10,000 for his land and Would not pay them any Commission. The prospective purchaser came in and notified them that he was not able to make the purchase. Smith had no further talk with the plaintiffs for several days, and never thought any more about them trying to Sell his land. He had not listed it with them. Five or six days later he received word to call plaintiffs up, and went to their Office. They told him that they had an Offer of $8,000 for his land. He told them that he would not take less than $10,000, and that they could just consider the Whole thing off; that he was going to lease the land and go back to North Arkansas, where he lived. A few days thereafter he met them, and they told him that they Were taking HoWard to look at his land. Smith told them that he had already leased it, and that it Would be no use to take him. They insisted on Smith going back with them. He did so, but told them that he could not sell them the land because he had already leased it. He was corroborated in his statement as to what happened On this Occasion by his 14 year old son. The jury returned a verdict for the defendant, and the plaintiffs have appealed.

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

[ocr errors]

JaS. D. Head, of Texarkana, for appellants. Webber & Webber, of Texarkana, for appellee.

HART, J. (after stating the facts as above). [1] The principal ground for reversal relied upon by counsel for the plaintiffs is that the court erred in refusing to instruct the jury that the defendant, if he did employ plaintiffs to sell his land, could not Withdraw it from them. Without their COnsent until after they had had a reasonable time in Which to make the Sale thereOf On the terms authorized. There was no error in refusing this instruction. The rule in this state is that, in the absence of a specified time for the duration of a real estate broker's agency, the principal may at will, even before a reasonable time has elapsed, revoke the broker's authority provided the revocation is in good faith. Greenspan V. Miller, 111 Ark. 190, 163 S. W. 776; Bodine v. Penn. Lumber Co., 128 Ark. 347, 194 S. W. 226. The court instructed the jury in accordance with the principles of law laid down in these cases, and the court did not err in refusing to instruct the jury that the broker Was entitled to a reaSOnable time within which to make the Sale. [2] It is next insisted that the court erred in refusing to instruct the jury that if the sole objection made by the defendant for not closing the deal with Howard was that he had leased the ground, he is now estopped from defending on the ground that the terms offered were not those authorized, or that he had not agreed to furnish an abstract. If the defendant in good faith had revoked the authority of the plaintiffs before they had procured a purchaser ready, willing, and able to purchase the land, it does not make any difference upon what ground he places his refusal to complete the sale. If he had revoked their authority, he could arbitrarily refuse to sell his land, and they would have no cause of complaint. The disputed issue of fact between the parties was whether or not the defendant had revoked the authority of plaintiffs before they had the immediate prospect of making the contract with Howard. According to the testimony of the plaintiffs they had brought Howard to examine the land the second time with the view to purchasing it before they were ever notified that the defendant WOuld revoke their authority. According to the testimony of the defendant, he revoked their authority at the time they first made the offer of $8,000 for Howard. This was several days before Howard came back and renewed his negotiations for the land. This disputed question of fact WaS, aS We have already Seen, Submitted to the jury upon proper instructions, and it did not make any difference that Smith may have assigned other reasons for not having COmpleted the deal With HOWard. We find no prejudicial error in the record, and the judgment will be affirmed.

[blocks in formation]

Please send, bag of samples. . .

All goods sold f. O. b. mill. Freight allowed to destination. These goods are sold at price, on terms and time of shipment specified above, and are not subject to change or countermand without the written consent of both parties. Should either party refuse to fulfill their part of the transaction the other party shall buy or sell as the case may be, charging loss to the defaulting party. No verbal conditions or modifications are valid.

This order is subject to confirmation by J. C. Lysle Milling Company at their office in Leavenworth, Kan.

No orders taken for shipment exceeding 60 days.

The order was immediately mailed by the Salesman to appellant and received by the latter at its office in Leavenworth, Kan., but appellant, instead of confirming or accepting the order, communicated with appellees by mail, informing them that the Salesman had made a mistake in quoting the price On the flour delivered at Camden with freight paid to destination instead of the price f. O. b. cars at Leavenworth, and that the Order would not be accepted at that price, but that if appellees were Willing to take the flour at the price quoted with freight added, and would so notify appellant immediately by Wire, the flour Would be Shipped “if the market has not made material change.” The letter was dated July 17, 1916, and on August 4, 1916, appellees sent a letter to appellant by mail, agreeing to the change in the price, but when the letter was received the price of flour had advanced, and appellant refused to ship at the old price. Further correspondence took place between the parties, which is immaterial to the issue now presented. A*trial of the case before a jury resulted in a verdict in appellees' favor for recovery of the difference between the contract price of the flour and the price at the time appellant refused to ship it in response to appellees' letter of August 4th. [1] We are of the Opinion that the evidence is insufficient to support the judgment, and for that reason there must be a reversal. The Writing Signed by appellant's Salesman and appellees did not constitute a contract between the parties for the sale of the flour, for, according to the express terms of the

writing, the order was subject to confirmation by appellant at its office in Leavenworth, Kan. The writing merely constituted a proposal which was not binding on either party, and which might have been withdrawn at any time before confirmation by appellant within a reasonable time. Merchants' Exchange Co. V. Sanders, 74 Ark. 16, 84 S. W. 786, 4 Ann. Cas. 955; Toledo Computing Scale Co. v. Stephens, 96 Ark. 606, 132 S. W. 926; Cedar Rapids National Bank V. McCord, 98 Ark. 81, 135 S. W. 365.

[2] Appellant declined to confirm the order at the price Stated therein, and immediately notified appellees of such nonacceptance, but made a counter proposal to ship the flour on altered terms of sale, but this did not constitute a contract until accepted by appellees. Porter v. Gossell, 112 Ark. 380, 166 S. W. 533. There Was therefore never a time When the minds of the parties met On the same terms of sale, and therefore there was no contract. The communications between the parties after the order was given to appellant's traveling salesman were in writing, forwarded by mail, and there is absolutely no conflict in the testimony, and, according to the case as fully developed by the undisputed evidence, there is no cause of action ShOWn.

The judgment is therefore reversed, and the cause remanded, with directions to dismiss the complaint.

[ocr errors][merged small][merged small][merged small][merged small][merged small]

MILLER, J. On December 26, 1910, Enakey Angeloff Draschoff, a native of Bulgaria, While in the employ of Winston & Co., railroad constructors of Richmond, Va., was struck and killed by a train of the Chesapeake & Ohio Railway Company in Campbell county. In the following April the plaintiff, as administrator of Draschoff's estate, instituted this action against the railway company, its engineer and train conductor, and Winston & Co., to recover damages for the death of DraSchoff. The railway company filed its petition for a removal of the case into the federal court for the Eastern district of Kentucky, and pending action by that court no step was taken by the plaintiff. On October 20, 1911, the federal Court remanded the case to the State court, and on November 4th of that year the railway company filed its answer. This answer was not verified, and upon motion of the plaintiff the railway company Was Ordered to verify it. This order, however, was never complied with. Some difficulty Was had in getting Service of process upon Winston & Co. The first Summons issued against that company was served April 24, 1911, upon A. H. Calligan, its alleged Superintendent, but the return on this summons was quashed on December 11, 1911. Nothing further was done until July 26, 1913, when the plaintiff filed an amended petition, upon which a summons was is. Sued to Clark County. This Summons Was

never returned, and in the following April an alias summons was issued to Clark county, and Service had. Winston & Co.'s motion to quash the return upon this Summons WaS held under submission for more than six months, and then Was Overruled. After filing their demurrer and entering certain practice motions, all of which were overruled, Winston & Co. finally answered on March 4, 1916. By that time Bulgaria was involved in the European war, and the witnesses to the killing of Draschoff, being principally natives of Bulgaria, had returned to that country for military service.

On June 16, 1917, upon the motion of MyerS & Howard, their names were stricken from the record as attorneys for the plaintiff, and immediately thereafter Winston & Co. moved the court to dismiss the case for Want of prosecution. A week later the defendant railway company, although it was yet in default for failure to Verify its anSWer, joined in the motion to dismiss the case for want of prosecution. On the same day the plaintiff filed his affidavit showing that the motion to dismiss had been made within one minute after the motion to strike the names of plaintiff's attorneys from the record. had been sustained and while plaintiff was without counsel or opportunity to procure counsel. Notwithstanding the fact that no Counter affidavit Was filed, the court Sustained the motion and dismissed the action for want of prosecution. The plaintiff appealS.

Appellees seek to sustain the ruling of the circuit court under rule 20 of the Campbell Circuit Court, adopted pursuant to section 980 of the Kentucky Statutes, reading as follows:

“When an action has remained on the rule docket without any step indicating an intention to prosecute it being taken for one year, it will be filed away and not redocketed without good cause and notice to the parties interested. The clerk Will furnish the court a list of such cases in January of each year.”

It is true no step looking toward a prosecution of the case had been taken betWeen March 4, 1916, when Winston & Co. filed their answer, and June 16, 1917—a little more than 15 months. Without, however, passing upon the validity of a rule which authorizes the filing away of civil cases, but looking at this rule for the purpose of determining whether the ruling of the circuit court was justified under its terms, if enforceable, it Will be observed that the rule invoked does not sustain the contention of the appellees, since it merely authorizes the filing away of a case for want of prosecution, not a dismissal of it. Moreover, the rule impliedly provides that after a case has been filed away it may be redocketed for cause shown and upon notice to the parties interested. But, as above indicated, the action Was in this Case dismissed absolutely, and if the Order of dismissal stands the plaintiff’s case is ended. In Our Opinion the circuit court erred in dismissing the action. If a plaintiff will not prosecute his action, the defendant can prosecute it by Setting it upon the trial docket and having it disposed of in the ordinary Way. When a case is thus set upon the trial docket, the Opposing party knows in advance that he will be expected to be ready to try his case, or to suffer the consequences of his failure to prepare. But We know of no authority authorizing the trial court to dismiss an action for want of prosecution withOut putting it upon the trial docket. Commonwealth v. Schmidt, 165 Ky. 351, 176 S. W. 1166, relied upon by appellees, Was a proceeding by a revenue agent to collect taxes on omitted property, under the act of 1912 (Ky. St. § 4260), which specifically authorized a dismissal of cases of that character where the revenue agent failed to take any progressive steps within the period Specified in the act. But that Statute has no application in ordinary cases, and is not controlling here. What was said in Whailey v. Myers, 7 Ky. Law Rep. 759, 13 Ky. Op. 1063, as to the court's right to dismiss an action for want of prosecution or dismiss it without prejudice, clearly was obiter, since there the case had been filed away with leave to reinState, and the appeal was from an Order of the court refusing to redocket it. The question of the trial court’s right to dismiss for want of prosecution was not before the court. Judgment reversed and action remanded, With instructions to the circuit court to set aside the order of dismissal.

[blocks in formation]

Roscoe VanOver and Childers & Childers, all of Pikeville, for appellant. Cline & Steele, of Pikeville, for appellee.

CLAY, C. At the election held August 6, 1916, G. J. Goff and J. P. Daniels were candidates for the Office of School trustee in subdistrict No. 32, in Pike county. According to the returns, Goff received 32 votes and Daniels 30 votes, and Goff was awarded the certificate of election. Daniels contested the election on the ground that Mary Goff, Sarah Kendrick, Almeda Billiter, Rebecca Blackburn, Lydia Holloway, Susie Justice, Sarah Holloway, Julia Ann Holloway, Hattie Holloway, Lydia Kendrick, and Wirgie Blackburn, who voted for Goff, were females and could not read and Write; that Charles Billiter, who voted for Goff, was a nonresident of the district; and that Nannie Justice, who also voted for Goff, was an infant. The contestant further alleged that Eliza Smith, who would have voted for him, was prevented from voting by the officers of the election closing the polls before 5 o'clock, and that J. T. Billiter was prevented from voting for contestant by intimidation practiced by the friends of Goff. Goff filed an anSWer and counterclaim contesting the election of Daniels. He denied the disqualification of all the voters mentioned in the petition except Mary Goff and Lydia Holloway. He further averred that Texie Smith, Barbara Tucker, Thursa Campbell, Margaret Justice, Dollie Justice, Elizabeth Billiter, Mary Daniels, and Almedia Adkins, who cast their votes for contestee, were not qualified voters because they were females and Could not read and write; that Ida Bevins and Nannie Hunter were not qualified voters because the former did not live in the district at the time of the election, and the latter, who had been a resident of Ohio, had not lived in the state of Kentucky for the time required by the statute. He also alleged that John Smith, Who voted for contestee, Wase not a qualified Voter because he was an infant at the time of the election. The circuit court set aside the election on the ground that there was such fraud, intimidation, and violence in conduct of the election that neither candidate could be adjudged to have been fairly elected. Goff appeals, and Daniels prosecutes a cross-appeal.

[1] Contestant's Witnesses testified that both J. M. Billiter, clerk of the election, and Harmon Blackburn, another officer of the election, who were for contestee, got into a discussion with the representatives of contestant, and stated in substance that they intended to run the election to suit themSelves. Billiter sent One of his children to his home for a pistol and laid the pistol on the table about half an hour While the election was going on. It further appears that the election Officers closed the polls about seven

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

« السابقةمتابعة »