The agreement of appellants to sell their goods to appellee and no other person in Jonesboro was no part of their written contract, and could not be pleaded or proved as a defense. They reduced their contract to writing, and it cannot be varied or added to by parol evidence. They stipulated in their contract that "separate verbal or written agreements with salesmen" should not be binding on appellants, and that they had no agreement or understanding with salesman, except as printed or written on the order sued upon. The agreement relied upon as a defense is alleged to have been made with a salesman of appellants. The evidence admitted to prove it was incompetent, and the instruction based upon it was erroneous and contrary to law.

The instruction requested by appellants and refused by the court should have been given. The goods purchased by appellee were sold to him by samples. In the contract sued upon they were warranted by appellants to be the same in quality, material, and in all other respects as samples, and it was stipulated that the appellee should examine them promptly upon their delivery, and, if they failed to comply with the warranty, he would within five days from date of delivery give notice of such failure to appellants, and, if such notice was not given, that all warranty of the goods should be waived. This is a valid contract, and the failure to give the notice within the five days was an acceptance of the goods and a waiver of the warranty, and the sale became absolute. Potter v. Lee, 94 Mich. 140, 53 N. W. 1047; Gentilli v. Starace, 133 N. Y. 140, 30 N. E. 660; 2 Mechem on Sales, §§ 1380-1384, and cases cited.

Reversed and remanded for a new trial.

SMITH et al. v. GOODRICH. (Supreme Court of Arkansas. April 29, 1905.) FRAUDULENT

CONVEYANCE-EVIDENCE-SUFFI

CIENCY.

In a suit to recover real estate purchased by plaintiff at an execution sale, evidence examined, and held to sustain a finding of the chancellor that a deed of the property from the judgment debtor to his wife, under which defendants claimed, was but a subterfuge to defraud creditors.

Appeal from White Chancery Court; John V. Roberts, Special Chancellor.

Action by George Goodrich against J. F. and M. J. Smith. From the decree, defendants appeal. Affirmed.

The appellee claimed the land in controversy by virtue of a deed from the sheriff under an execution sale. He brought ejectment against appellants. Appellants in defense set up title to the land in Mrs. M. J. Smith by virtue of sale of said lands to her from her husband, J. F. Smith. They alleged that J. F. Smith conveyed the land to M. J.

Smith on the 5th day of March, 1898, for the consideration of $250, and that deed to her was executed and delivered more than a year prior to the delivery of the execution to the sheriff, and the sale of said property under the execution to the appellee. Appellants allege that they were present at the execution sale, and gave notice to the appellee of the title of M. J. Smith before the sale. The suit was begun at law, and afterwards, on motion of appellants, was transferred to equity.

Ben Isbell, for appellants. John T. Hicks, for appellee.

WOOD, J. (after stating the facts). The validity of appellee's title at execution sale is not questioned further than it is claimed that the lands had prior to that time, for a valuable consideration, been conveyed to appellant Mrs. M. J. Smith, by her husband, J. F. Smith. The only question presented by this appeal is one of fact-as to whether the deed of J. F. Smith to his wife, M. J. Smith, was made in good faith or in fraud of creditors. At the time J. F. Smith sold the lands in controversy to his wife, there was an outstanding unsatisfied decree against him for $237, which had been rendered June 18, 1895. To support the finding of the chancellor there was testimony tending to show that the land in controversy was worth something like $1,750, there being 37 lots in the town of McRae, which Mrs. Smith estimated to be worth $10 per lot, and about 90 acres of land, which she estimated at $15 per acre. For this land she only paid, according to her statement, $250. It was shown by her that this $250 consideration was made up of 20 head of hogs, 10 head of cattle, 1 mare, and $70 in money. The stock and money, according to the testimony in her behalf, came through her father and others. This consideration was not all paid at once, but was made up of the amounts which her husband owed her from time to time for stock which he had previously appropriated to his own use. When asked what her husband did with the money realized from certain hogs, she said: "He paid some debts with some of it; some one way, some another. I cannot tell you what he did with all of it." She further said that, if he used any of it for the living expenses of the family, she did not know it. She also said that she kept a pretty close account of the proceeds of her property, and that there was an agreement on his part to pay back what he used of her property. She let her husband have the twenty head of hogs at different times, four or five head at a time, and from six to seven months apart. The deed to her, it appears, was executed on the 5th of March, 1898, and was, at Mrs. Smith's request, delivered to H. N. Bunn, to be sent by him to the recorder's office; and he testifies that it was afterwards given to Mrs. Smith. This deed was not recorded until

the 14th of March, 1899, a little over a year after its execution, and only four days prior to the issuance of the execution under which appellee purchased. But it would uselessly incumber the record for us to set out in detail and discuss the evidence upon which we have reached our conclusion. The inadequacy of price; the nature of the consideration; the manner in which the items of account were kept between the parties; the fact that the husband was allowed to appropriate the stock at different times, and the wife could not tell what went with the proceeds; that the proceeds of the stock, according to her statement, amounted to $242, and yet, in order to make up a consideration of $250 for the land, which they had agreed upon, she had to pay him in cash $70; the fact that the deed was executed a year before it was placed on record, and was recorded only four days before the execution was issued these, and other facts in the record, lead us to the conclusion that the deed from J. F. Smith to his wife was but a subterfuge to defraud creditors, and that as to them it was voidable. At least the facts in the record convince that the chancellor's finding was not clearly against the weight of the evidence.

The chancellor, it appears, adjudged that appellee pay to appellant Mrs. Smith $125 for all her claim and interest in the town lots. Upon. what theory the court reached this conclusion we are unable to devise. But the appellee did not appeal from that portion❘ of the decree.

The question of homestead mentioned in appellants' brief was not raised below either by the pleadings or the proof. It cannot, therefore, be considered here. Affirm.

JACKSON et al. v. BOYD & GOLDENBURG. (Supreme Court of Arkansas. April 29, 1905.)

TAXATION SALE OF LAND INVALID TITLELIMITATIONS-SUIT TO REDEEM-LACHES.

1. Mere lapse of time is insufficient to cure defects in an invalid tax title.

2. Payment of taxes and color and claim of title are not sufficient to start limitations.

3. Defendants purchased unimproved land at a void tax sale, and thereafter paid taxes thereon for 13 years, but did not take possession or improve the land; nor was there any showing that the land had increased in value, except in accordance with the general increase in value of lands throughout the state, or that any rights with reference to the land had been asserted, calling for action by complainants, during such period. Held, that complainants were not barred by laches from maintaining a suit to redeem.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 1597.]

Appeal from Ashley Chancery Court; Marcus L. Hawkins, Chancellor.

Suit by W. S. Jackson and others against Boyd & Goldenburg. From a judgment for defendants, complainants appeal. Reversed.

W. S. Jackson, Sr., entered the lands in controversy, and died without disposing of them, leaving the appellants his heirs at law. They filed a complaint in Ashley chancery court, alleging that the appellees (defendants therein) had a title based on an "overdue tax" decree, which was void for reasons stated in the complaint. They further alleged that the lands were unoccupied, and in the actual possession of no one, and prayed that the amount of taxes, penalty, costs, and interest due the defendants be ascertained, and that they be permitted to pay the same and redeem the land, and the tax title be cancelled. The defendants answered, alleging the validity of the tax sale, and, in the alternative, alleging that the plaintiffs were barred by laches from maintaining the suit. The case was tried on the following agreed statement of facts: "It is agreed on the trial of the above-entitled cause the following facts may be taken as true: (1) That W. S. Jackson, Sr., the father of plaintiffs, entered the land described in the complaint, and never disposed of the same during his lifetime. That the plaintiffs are his children and heirs at law, and are entitled to the said land, unless they have lost their right to same by laches, limitation, or by valid tax forfeiture. (2) That said land, forfeited for the taxes of 1873, 1874, 1875, and 1876, was sold to the state of Arkansas for the nonpayment thereof at the tax sale of 1877, for taxes, penalty, and costs, amounting to $9.79. (3) That said land was forfeited to the state as aforesaid, and afterwards, to wit, on day of 1886, was sold in the overdue tax proceeding, by T. S. Stillwell, commissioner, to the defendants herein, for 15 cents per acre, making $15, which, with interest at 6 per cent. per annum to date, amounts to $35.28. That said commissioner executed and delivered his deed in pursuance of said sale, in due form of law. (4) That defendants have paid taxes on said land each and every year since their purchase at the overdue tax sale in 1886 for each year as follows: [Here follows amount paid each year.] Making the total of taxes, interest, and costs from the date of said sale at the overdue tax sale $66.83, which, added to the amount for which said land was sold at said overdue tax sale, makes the total amount due for said sale, and taxes and interest since paid, the sum of $102.11. (5) That said land has never been in the actual possession of any one, and is now wild, unimproved, and unoccupied. (6) It is agreed that the forfeiture of said land to the state above set forth is void, and that the sale of the same at the overdue tax sale was and is void. (7) That all the plaintiffs were of lawful age in 1878, and were all at that time residing in Ashley county, Arkansas, and have lived in said county ever since." The court found that the plaintiffs' claim was stale, barred by laches, and without equity, and decreed ac cordingly. The plaintiffs appealed.

HILL, C. J. (after stating the facts). For 13 years the appellees paid taxes on the lands in controversy, holding the same under a deed based on a void overdue tax decree. The appellants were adults and living in the county during that time. After said lapse of time they brought a bill in equity to redeem from said void sale and previous void tax forfeitures. The sole question is whether they are barred by laches. No other obstacle is sought to be placed in the way of their recovery. There could be no action on the facts here to recover possession, for the possession was always with the legal title, not the void tax title. This action is merely to remove the liens created by the payment of taxes, and, as a result thereof, clear the title of the clouds engendered thereby. Appellees invoke the doctrine of Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589, 29 Am. St. Rep. 17, and Hoyt v. Latham, 143 U. S. 553, 12 Sup. Ct. 568, 36 L. Ed. 259. Equity will not permit a party whose duty it is to act to wait and let the future determine whether the property is sufficiently valuable to assume burdens and rights otherwise discarded. In this case there is no evidence as to the increase in value, and there is no situation presented requiring action on the part of the appellants. Until there is an interference with possession there is no occasion for action, and payment of taxes by another is not sufficient of itself to call for action. Penrose v. Doherty, 70 Ark. 256, 67 S. W. 398. The bare lapse of time will not cure defects in an invalid tax title. Parr v. Matthews, 50 Ark. 390, 8 S. W. 22. Payment of taxes and color and claim of title are insufficient to start the statute of limitations. Calloway v. Cossart, 45 Ark. 81. This case is not within the act of 1899, recently construed in Towson v. Denson (Ark.) 86 S. W. 661. Therefore it follows that there were no rights asserted against appellants, calling for action, and that lapse of time, coupled with payment of taxes, would not ripen this void title. None of the grounds usually found in these cases are presented here. There is no evidence of increased value, and appellees rely on that score on the general knowledge of the gratifying and substantial increase in land values over the state in the last few years; but that is far from proving that this particular tract was formerly of so little value that it was abandoned, and its enhanced value has caused a change in appellants' attitude. No evidence is offered of a change in the status of any one towards the land. There is no loss of evidence by lapse of time. No rights have been builded against the appellants, other than those of appellees created by taxpaying, and those rights are only for reimbursement, with interest, which is tendered in the complaint in this case. The lapse of 13 years after appellees acquired a void tax title, and

The decree is reversed and the cause remanded, with directions to enter a decree according to the prayer of the complaint.

BREZEWITZ v. ST. LOUIS, I. M. & S. RY. CO.

(Supreme Court of Arkansas. April 29, 1905.)

CARRIERS-DIRECTING PASSENGER TO RIDE IN

SMOKER-DAMAGES- - PASSENGER'S ACQUIES

CENCE IN DIRECTION-CONTRACT TO DELIVER TICKET-CARE REQUIRED.

1. Where plaintiff's father paid defendant's ticket agent a sum of money for a ticket for plaintiff over the line of defendant and another, the other carrier being the initial one, and the ticket agent agreed to telegraph instructions for delivery of the ticket to plaintiff, defendant was only bound to use reasonable promptness in forwarding the instructions, and was not liable for delay of the other carrier in delivering the ticket after receipt of the instructions.

2. Where a passenger, when about to take his train, was directed by a porter to ride in the smoker, and he did so without having appealed to the conductor for any other quarters, he could not recover damages for sickness caused by riding there.

Appeal from Circut Court, Miller County; Joel D. Conway, Judge.

Action by Arnold S. Brezewitz, by his next friend, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action brought in the circuit court of Miller county on behalf of appellant, a minor, by his father, as next friend, against appellee for damages. It is alleged in the complaint and shown by proof that appellant resided at Texarkana, Ark., and was a student in school at Annapolis, Md., preparatory to entering the United States Naval Academy. After failing to pass the physical examination at the academy, he notified his father at Texarkana of his desire to return home immediately. This was on September 8, 1898. On the same day his father applied to the local ticket agent of appellee at Texarkana, and paid to him the price of a firstclass ticket from Annapolis to Texarkana, and the latter agreed to telegraph instructions for delivery of the ticket to appellant at Annapolis. The ticket agent executed and delvered to appellant's father a written receipt for the sum so paid for the ticket, reciting that the sum paid was "for one firstclass ticket to be furnished to Arnold Brezewitz from Annapolis, Md., to Texarkana, Ark." The ticket was not delivered to appellant until September 12th or 13th, about 6 o'clock in the evening, too late for him to get a train out that day, and he left Annapolis the next day. The ticket was over the Baltimore & Ohio Railroad from Annapolis to St. Louis, and thence over appellee's road to Texarkana. Appellant testified that on his

arrival at St. Louis, where he changed to appellee's train in the Union Station at that place, the porter of appellee's train directed him to enter the smoking car, in which he rode from St. Louis to Texarkana; that he did not use tobacco, and was made sick from the continuous ride in the atmosphere laden with tobacco smoke and other foul odors. Damages were claimed on account of loss of time in waiting at Annapolis for the ticket and the physical and mental pain resulting from the enforced ride in the smoking car. It was proved by appellee's employés, and not disputed, that immediately upon making the agreement with appellant's father to deliver the ticket to his son the ticket agent, by telegraphic message sent to appellee's general passenger agent at St. Louis, and thence transmitted to the ticket agent of the Baltimore & Ohio Railroad Company at Annapolis, caused a ticket to be delivered to appellant. The message was received by the general passenger agent of appellee at St. Louis on September 8th, and on the same day he sent the following telegraphic message to the manager of passenger traffic at Baltimore, Md., of the Baltimore & Ohio Railroad Company, viz.: "Please furnish Arnold S. Brezewitz, care of R. L. Wernz, one first class limited ticket, Annapolis to Texarkana, Tex. via your line B. & O. S. W. and our line. Rush delivery. Advise description of ticket. Will send prepaid order for $30.85 to cover." The message was received at 7:09 p. m. on September 8th, and at 9 a. m. the next day a message was sent by the last-named official to the local agent of the latter company at Annapolis, directing him to deliver the ticket to appellant. On the trial the court gave all the instructions asked by each party. A verdict was returned by the jury in favor of the defendant, judgment was entered accordingly, and the plaintiff appealed from the decision of the court overruling his motion for a new trial.

Oscar D. Scott, for appellant. B. S. Johnson and J. E. Williams, for appellee.

McCULLOCH, J. (after stating the facts). Appellant claims that appellee fell short in its duty to him in two respects, and is liable in damages therefor, viz., in failing to cause the ticket to be delivered to him at Annapolis in due season, and in directing him to the wrong car at St. Louis. The first question was submitted to the jury by the court upon instructions that if appellee's agents, with reasonable promptness, transmitted the order to the Baltimore & Ohio Railroad Company for delivery of the ticket to appellant, that was sufficient compliance with its contract, and that appellee was not responsible for the failure of the latter company to promptly deliver the ticket. We think that instruction was correct. Conceding that it was within the scope of the authority of appellee's local

ticket agent at Texarkana to execute the contract in question, it was, in effect, only an agreement to transmit the order for the ticket to the initial carrier. It did not amount to an undertaking that the seller of the ticket would deliver it to appellant. It is not contended that appellee assumed to carry passengers from Annapolis to Texarkana. The ticket was to be furnished by another carrier, over whose line appellant was to travel to St. Louis, where appellee's line terminated; and under the agreement the first carrier cannot be treated as the agent of appellee for the purpose of delivering the ticket. All that the parties could have had in contemplation at the time of the agreement was that appellee's agent should transmit to the initial carrier at Annapolis instructions to deliver the ticket to appellant. This they did with reasonable promptness, and appellee cannot be held responsible for delay of the other carrier in delivering the ticket after receipt of the instructions.

*

Appellant testified as follows: "When I arrived at St. Louis, preparatory to departing south for this place, I went through the gate, and tried to get on the chair car next to the sleeper, and the porter said 'Go to the forward car, next to the baggage car.' The porter saw my ticket. I obeyed orders, and went to the smoker, the one next to the bag. gage car, the one he directed me to, and rode in it to Texarkana. At that time I did not use tobacco. The effect of being in a place where it was used was sickening, made me sick at the stomach. It was in obedience to orders that I went there and rode to Texarkana in it. There was smoking in there all the way. I did not say anything to the conductor or brakeman about wanting to go into the other car, and made no complaint. I did not get off the train at any point." | According to his own statement, he voluntarily submitted to the discomforts of the smoking car without objection or complaint, and cannot, therefore, claim damages therefor. He was not justified in accepting the direction given him by the train porter at the station to the car which he should enter as a command to remain therein throughout his journey. The train was in charge of the conductor, and when appellant found that the car to which he had been assigned by the porter was uncomfortable, and not such accommodation as he was entitled to on his ticket, he should have appealed to the conductor for more comfortable quarters. Failing to do so, he is deemed to have voluntarily accepted the place assigned him with its discomforts. He had reached the age of discretion, and cannot be allowed to claim damages on account of a situation caused by a mistake of the porter, which he accepted, and gave the railroad company, through its proper official in charge of the train, no opportunity to correct.

The judgment is affirmed.

NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. O'BRYAN et al. (Supreme Court of Arkansas. April 29, 1905.) INSURANCE-APPRAISAL OF LOSS-COMPETENCY OF APPRAISERS-QUESTIONS FOR JURYAPPEAL-SELF-INVITED ERROR.

1. Whether a person selected to appraise an insurance loss is "competent and disinterested," within the meaning of the appraisal clause of the policy, is a question for the jury.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1426, 1749.]

2 The fact that a person selected by insured to appraise the loss had previously made an estimate of the loss at the request of insured is a fact to be considered by the jury on the issue of his competency and disinterestedness to act as an appraiser, but does not of itself disqualify him to act in that capacity.

3. Defendant may not complain of an instruction given for plaintiff because it singles out a particular fact, where it asked a reverse instruction singling out the same fact.

Appeal from Circuit Court, Garland County; Alexander M. Duffie, Judge.

Action by M. L. O'Bryan and another against the National Fire Insurance Company of Hartford, Conn. From a judgment for plaintiffs, defendant appeals. Affirmed.

This was an action on a fire insurance policy, and the insured, the Misses O'Bryan, recovered. The company, after the fire, called into operation the appraisement clause of the policy. The insured selected T. W. Gibbs as appraiser, and the company selected Beattie, and an agreement was drawn and signed by the company, but it was not consummated. Gibbs made an estimate of the injury to the building at the instance of Charles O'Bryan. the brother and representative of the Misses O'Bryan, and was paid for his services. This was prior to his selection as appraiser. Beattie, the other appraiser in the unconsummated written submission, had made a similar estimate at the instance of the company, which differed in amount but slightly from Gibbs'. After the failure of this agreement, the insured, when called upon to name an appraiser under the terms of the policy, again named Gibbs, and then the company objected to him as not being "competent and disinterested." The insured insisted on Gibbs, and the company would not accept him. Gibbs was a bidder with several other contractors for the erection of four houses to be built by Charles O'Bryan, and was the lowest bidder, and got the contract and built the houses. At the time he was nominated as appraiser he was a prospective bidder. He was an experienced contractor and build

er.

The clause in the policy in question is as follows: "In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two shall first select a competent and disinterested umpire: the appraisers together shall then

87 S.W.-9

estimate and appraise the loss, stating sep-' arately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expenses of the appraisal and umpire."

The court instructed the jury as follows: "(1) If you find from the evidence that the plaintiffs, upon the demand of the defendant for an appraisement of the loss under the provisions of the policy, notified defendant that they would comply with said demand. and thereupon named T. W. Gibbs as the appraiser for them, and that said Gibbs was competent and disinterested, and that the plaintiffs were at all times ready to proceed with the appraisement with Gibbs as such appraiser, and defendant refused to proceed with such appraiser, then you will find that plaintiffs have complied with the provisions of the policy as to the appraisement.

"(2) The mere fact that T. W. Gibbs knew the premises and had made an estimate of its value did not of itself render him incompetent or disqualified to act as an appraiser, under the provisions of the policy."

The court refused to give the following instruction requested by the company:

"(7) If you believe from the evidence that T. W. Gibbs, the person offered as an appraiser, had already made a computation of the loss at the request of the assured, then the court tells you that he was not a disinterested person within the meaning of the policy, and that the defendant had the right to decline to agree to said person as one of the appraisers."

The court gave, at request of the company, the following instruction:

"(2) You are instructed that defendant had the right to insist upon a competent and disinterested appraiser being chosen by plaintiffs, and to object to one if he was incompetent or interested; and that it devolved upon plaintiffs to appoint some person who was competent and disinterested. If, therefore, you find from the evidence that defendant offered as their appraiser a person who was incompetent or interested within the meaning of those terms explained to you, and you find that defendant objected to him on either of those grounds, and that plaintiffs refused or failed to choose another person as an appraiser who was competent and disinterested, and thus proceed to comply with said provision as to appraisal, you will find for the defendant."

Ashley Cockrill, for appellant. Wood & Henderson, for appellees.

HILL, C. J. (after stating the facts). The proper construction to place on the term "competent and disinterested appraiser," within the meaning of the appraisal clause