I perintendence of construction work, but that he expressly limited the cost of the buildings to $5,000. He says: "I distinctly told Kling, ensmith, time and again, that I would not pay over $5,000 for the two buildings. did not pay any attention to the plans and specifications. The plans were for the family. My part was to pay for them. My part was to keep within the limit of $5,000. Plans and specifications that were to cost $8,350, $8,000, or even $6,350, for the two houses, were and are worthless to me, because I was not and am not willing to pay over $5,000; but, if Mr. Klingensmith can build them at that, I will agree to let the contract. I never at any time agreed to pay Klingensmith more than three per cent. on both buildings, and the price on both buildings not to exceed $5,000; and he was to superintend the construction of the houses, except that I was to pay his actual expenses when coming up on these trips. I wanted a house that would please my family. My family talked over the general outline of the house they wanted. When Klingensmith was showing the plans to my wife and daughter, I did not look over them. I listened to their talk, and in that way got an idea. Yes; I did complain about the price that Klingensmith put upon the buildings, but this was after the plans were all in. I think that my wife and daughter were satisfied with the plans." He was asked: "Q. If they agreed upon these plans with Klingensmith, did you tell him to go on and draw them? A. I said to stay inside of $5,000. I told him this at the time the plans were partially completed. I never did accept the plans. Q. Did you ever raise any objections to the plans? A. I raised an objection to the price. I submitted these plans for bids, but never could get any offers inside of the amount of $5,000." He further said: "Klingensmith has never asked nor demanded that these plans and specifications be returned to him. I think that Byrnes has them. They are absolutely worthless to me, because I could not get the houses built within the limit fixed by me. I had been figuring with Byrnes, and had paid the $100 at the time that I had Byrnes' bid on the College avenue house, of $5,600, but I knew I would not build a house at that figure. I refused Byrnes' bid, as I was determined that I would not pay that." He testified with reference to the house that was to be torn down and rebuilt as follows: "I am willing to have the house rebuilt on the same plans for $800, but I do not propose to pay $2,000 for it." Floyd Hight testified with reference to this in part as follows: "I was at my father's house when Klingensmith was talking about the building to tear it down and rebuild it on the lower end of the lot-and Klingensmith said that it would cost about $750. I do not remember exactly, but he said he would move it himself for $800, or accept the contract, or something to that effect. Klingensmith told my father that the brick house could be torn down, moved, and fixed up for $800. I think there were to be some changes. The house was to be a full twostory; the hall was to be arranged differently; but the general effect, size of rooms, etc., was to be the same, but more modern in arrangement." At the request of appellee the court charged the jury as follows: "(1) If the jury find that defendant employed plaintiff to draw plans for the College avenue house, and was advised by plaintiff, before the completion of the plans, that the house would cost $8,000, and that defendant, after being advised of the probable cost of the building, directed plaintiff to go on and complete the plans, he would be liable to plaintiff for his services as architect, although he may have previously determined not to invest so large amount in said building. "(2) If the jury find that the defendant, after knowing or being fully advised of the cost of the construction of the houses according to the plans and specifications therefor exhibited in evidence, by a payment or otherwise, accepted the work of plaintiff thereon, he would be liable in like manner as if he had originally contracted with plaintiff for plans of houses to cost such sum. "(3) If one party performs labor for another, for which the latter agrees to pay, and no time for payment is fixed, the law implies that payment shall be made in a reasonable time." The appellant requested instructions to the effect that appellant only contracted with appellee for plans and specifications, and the superintendence of construction of houses that were to cost not exceeding $5,000, and, if it was impossible for appellant to let the contract for the building of the houses planned by appellee within that limit, that they should return a verdict for appellant. The court refused to give these requests as asked, but modified them so as to present the issues as follows: "I charge you that each and every stipulation that is a material inducement to a contract should be considered together, in order to determine its legal and binding force; and if you believe from the evidence that defendant, Hight, informed the plaintiff when he undertook to draw the plans and specifications for said buildings that he would not expend a greater sum than $5,000 in the construction and completion of the same, and that he requested the plaintiff to furnish him with plans and specifications for buildings not to exceed that amount, then he would not be bound to carry out plans and specifications for buildings that would largely exceed that amount, unless he consented and agreed to do so, or accepted said plans after they were drawn." The verdict was for appellee, and judgment rendered in accordance therewith for $150.50. A. S. Vandeventer and E. B. Wall, for appellant. E. S. McDaniel, for appellee. Ap Appellant also contends that it was error for the court to add, as one of the modifying clauses to its request No. 1 (reporter will set out in note instruction No. 1 asked by appellant, with the modification added by the court), this language: "unless you further find that Hight directed or knowingly permitted Klingensmith to proceed to draw the plans in accordance with the wishes and desires of his (Hight's) wife and daughter." The appellant himself testified: "I wanted a house that would please my family. My family talked over the general outline of the house they wanted. When Klingensmith was showing the plans to my wife and daughter, I did not look over them. I listened to their talk, and in that way got an idea. I think my wife and daughter were satisfied with the plans." Appellee swears that he informed appellant that to build a house such as his wife and daughter wished would cost $8,000, and proposed to change the plans, without expense to appellant, in order to reduce the cost of the building. At this juncture the witness says that appellant's wife and daughter, who were present, objected to any change, and that appellant instructed him to go on and draw the plans. It was to meet this phase of the evidence that the modification was made, and it was proper. * * The declarations of appellant's wife in his presence at the time the terms of the contract were being considered and entered upon, coupled with his acquiescence in her wishes so expressed, were admissible. Allison v. Barrow, 91 Am. Dec. 291; Whiting v. Barney, 30 N. Y. 330, 30 Am. Dec. 385; Hammons v. State, 73 Ark. -, 84 S. W. 718. WOOD, J. (after stating the facts). pellant contends that his theory of the case was not submitted to the jury, and that there was no evidence to justify the court in modifying appellant's instructions, and in submitting to the jury the question of whether or not appellant accepted plans of appellee, knowing that they called for houses, the construction of which would cost more than $5,000. Appellant also insists here that the court erred in using the term "accepted" in the instructions, without explaining its legal meaning and effect, inasmuch as appellant did not deny that the plans were received by him through the mails, and had never been returned to appellee. We are of the opinion that these contentions of appellant are not well taken. There was evidence to Justify the court in submitting to the jury the question as to whether or not the appellant, notwithstanding the fact that he had told the appellee that he did not want to expend more than $4,000 on the house on College avenue, and notwithstanding the fact that he did not want to expend exceeding $5,000 in all, nevertheless consented at last for appellee to draw plans for the construction of buildings that would cost considerably more than that sum, and also as to whether or not he accepted such plans after they were made, knowing that they called for the construction of buildings to cost far in excess of $5,000. We are of the opinion that the testimony which we have set out, fully in the statement warranted an instruction such as the court gave, and justified the modifications to the prayers of appellant to which he objected. We do not think the term "accepted," as used in the instructions, in view of the issues joined in the pleadings, and the testimony of the parties to support their respective contentions, could have been misleading. Moreover, appellant did not ask the court for any explanation of the term to meet the views which he here insists upon, and he is therefore not in a position to complain of the trial court for not ruling in accord with his views. Had he asked for such explanation of the term as he here insists upon, doubtless the court would have granted his request. For the term "accepted," as used, was intended evidently in no other sense than that contended for here by appellant, and could not fairly, under the circumstances, have been construed otherwise. The "real issue," as appellant's counsel aptly remarks, "was whether the defendant had received plans, knowing that they called for the expenditure of nearly twice the sum of money which appellant said at first he was willing to expend." Upon the whole case, we are of the opinion that it was for the jury to determine just what was the contract between appellant and appellee, and that the question was submitted fully and fairly. There was evidence sufficient here to support the verdict. The judgment is therefore affirmed. 1Instruction No. 1 requested by defendant was as follows: "I charge you that when the defendant, Hight, employed the plaintiff to draw the plans and specifications for the said building, and agreed to pay him therefor, he had a right to direct the plaintiff to draw the same so as to keep within the limits of five thousand dollars, as the cost of said building; and it was the duty of plaintiff, when he undertook to do so, to observe and respect the wishes of the defendant, and to draw said plans and specifications so as to keep within the limits directed by the defendant as to the cost of said buildings, unless you find that defendant consented to a greater cost." This instruction was modified by the addition: "Or, after said plans were completed, Hight accepted same, or, after being informed by Klingensmith that the building would cost $8,000, if you find that he was so informed by Klingensmith, directed plaintiff to go on and complete the plans, or unless you further find that Hight directed or knowingly permitted Klingensmith to proceed to draw the plans in accordance with the wishes and desires of his (Hight's) wife and daughter." CORN. SKILLERN. LOWENBERG et al. v. SAME. (Supreme Court of Arkansas. April 23, 1905.) FRAUDULENT CONVEYANCES INSOLVENCY BANKS-RECEIVER-DUTY OF RECEIVER-PAYMENT OF DIVIDENDS FROM CAPITAL STOCK― RECOVERY BY RECEIVER. 1. Where defendant had no reason to believe that the officer of a bank was using the bank's money in purchasing defendant's stock, and it was sold in the usual course of trade, the sale was valid, and the money paid became defendant's property. 2. Where stockholders in a bank sold their stock to an officer thereof at a time when the bank was insolvent and they anticipated its suspension, and the funds used to pay for the stock belonged to the bank, and were withdrawn to prevent such funds being appropriated to the payment of creditors, the amount so paid for the stock was recoverable by the receiver of the bank for the benefit of creditors, Kirby's Dig. § 861, providing that, if the capital stock of any corporation be refunded to the stockholders before the payment of the corporation's debts, the stockholders shall be liable to the amount so refunded, and section 6348, providing that a receiver for a corporation shall have the right to collect debts, preserve the assets for the benefit of creditors, and that he may sue in his own name for such purpose. 3. Under the express provisions of Kirby's Dig. 950, any creditor or stockholder of an insolvent corporation may institute proceedings in chancery to wind it up, whereupon the court shall take charge of all the assets and distribute them among creditors, etc. [Ed. Note.--For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 2435, 2436.] 4. The receiver of an insolvent bank may recover of stockholders the dividends paid them out of the capital stock of the bank. Cross appeals from Howard Chancery Court; James D. Shaver, Chancellor. Action by J. H. Skillern, as receiver of the Howard County Bank, against J. S. Corn, and action by the same plaintiff against C. V. Lowenberg and others. From decrees in favor of plaintiff in the actions, all parties appeal. Decree in the first action reversed, and the decree in the other action affirmed in part. Feazel & Bishop and W. C. Rodgers, for plaintiffs. D. B. Sain, W. D. Lee, and Cantrell & Loughborough, for defendant. BATTLE, J. The Howard County Bank is a corporation organized under the laws of Arkansas, with a capital stock of $25,000. It did business at Nashville, Ark., and among its stockholders were D. P. Terry, J. H. Grumbles, C. V. Lowenberg, J. S. Corn, W. P. Feazel, A. L. Skillern, and N. M. Harrison, all residents of Nashville, Ark. J. S. Corn and W. P. Feazel each owned $500 of stock, and C. V. Lowenberg and A. L. Skillern each $1,000. Grumbles was president, and D. P. Terry was its manager and cashier. On the 15th of January, 1903, the bank declared a dividend of 10 per cent. on its stock, and each of the stockholders received that amount on his stock. On Feb ruary 10 or 11, 1903, A. L. Skillern transferred his stock to D. P. Terry, the consideration being the surrender of a note made by Skillern to the bank for an amount equal to the par value of his stock. C. V. Lowenberg was a married woman, and on the afternoon of February 12, 1903, her husband, I. Lowenberg, returned to Nashville, Ark., from a trip, and in the evening of that day transferred the stock of his wife to Terry, securing therefor the cancellation of a note that she owed to the bank. W. P. Feazel was a lawyer, and at that time one of the attorneys for the bank. About midnight of the 12th of February, 1903, he transferred his stock to Terry, and received therefor a check of Terry on the bank for an amount equal to the par value of his stock. This check was afterwards paid. He testified: "On the morning of the 13th, between midnight and day, I received a telephone message from Terry, or some one at his house, for me to come down to his house. So I went there, and he asked me if I had my certificate of stock from the Howard County Bank where I could get to it. I told him that I had, and asked him the question, 'Why?' He said, 'Well, I am ready to take it up.' then asked him what was the matter. I thought it was strange that he would want to buy the stock at that time of night. He stated to me that the Planters' Bank had refused to clear with him on the evening of the 12th, and that it had been telephoned to Mineral Springs and Center Point, and the depositors had become unnecessarily alarmed, etc. I then went home and got my certificate, brought it to him, and had Mr. Bishop write the transfer on it." About midnight of the 12th of February, 1903, I. Lowenberg, A. L. Feazel, and others assembled at Terry's residence. On the next day D. P. Terry, a stockholder of the bank, filed his complaint in the chancery court of Howard county, "alleging that the liabilities and nominal assets of the bank were about the same; that it was insolvent, and unable to carry on business successfully; and asked that a receiver be appointed to take charge of the affairs of the bank, and pay the creditors ratably according to their claims, and for a dissolution of the corporation." Upon the presentation of the complaint to the chancellor, J. H. Skillern was appointed receiver, and all the powers mentioned in section 6348 of Kirby's Digest were conferred upon him. Thereafter the receiver instituted separate suits against Corn, Lowenberg, A. L. Skillern, and Feazel to recover the respective amounts paid each of them for stock and dividends, styling them (suits) interventions in D. P. Terry v. Howard County Bank. The defendants filed separate answers. The suit against Corn was disposed of in a separate decree. The court rendered a decree against him in favor of the receiver for the sum of $380, the balance paid him for his stock on or about the 12th of February, 1903, and 6 per cent. per annum interest thereon from that day, but did not hold him liable for the $50 paid him as a dividend. Both parties, plaintiff and defendant, appealed. The suits against Lowenberg, A. L. Skillern, and Feazel were disposed of in one decree. The court rendered a decree against Lowenberg and A. L. Skillern, each, in favor of the plaintiff, for the sum of $1,000, and 6 per cent. per annum interest thereon from the 12th of February, 1903, and against Feazel, in favor of the receiver, for $500, and 6 per cent. per annum interest, etc., but held that these defendants, Lowenberg, A. L. Skillern, and Feazel, were not bound to refund the dividends received by them. All the parties appealed. J. S. Corn, being fianancially embarrassed, in December, 1902, proposed to D. P. Terry to sell and transfer to him his stock in the Howard County Bank, which amounted to $500. Terry accepted the proposition, but suggested that he wait until the 15th of January, following, when a dividend on his stock would be declared. A short time after the 15th of January he received a letter containing a statement as to the condition of the bank and a check for $50 as a dividend on his stock. A few days after this he asked Terry to complete his purchase. Terry, being busy, postponed the business until a future day. On the 2d day of February, 1903, he (Corn) made a trip to Vanndale, Ark. Prior to leaving he again asked Terry to complete his purchase, but this was again postponed, Terry agreeing to pay two of his debts, amounting in the aggregate to $120, which he did. When he returned Terry paid him $380, the balance due on his stock. The transfer thereof was made on the 2d of February, but it was not delivered until the 12th of February, 1903. The sale was made by Corn in good faith. The statement furnished him as to the condition of the bank showed that its assets were equal to its liabilities. The bank had paid its debts as they matured and were presented until about the 12th of February, 1903. Terry was its cashier, and was earning $2,000 a year, besides the dividends on his stock, and had other property. There was no evidence to show that Corn had any reason to believe that he (Terry) was using the money of the bank in purchasing his stock. It was sold and paid for in the usual course of trade. The sale was valid, and the money paid therefor became the property of Corn. Jetton v. Tobey, 62 Ark. 88, 34 S. W. 531; Fawcett v. Osborn, 32 Ill. 411, 83 Am. Dec. 278 (cited in Jetton v. Tobey as Fawcett v. Osborn, 42 Ill. 411); notes in Am. Decisions, 610, and cases cited. The appellants, C. V. Lowenberg, A. L. Skillern, and W. P. Feazel, received the amounts for which they held stock in the bank at the time it failed to meet its liabilities, Lowenberg on the afternoon of the 12th of February, 1903, Skillern on the 10th or 11th of the same month, and Feazel on the night of the 12th of the month, after midnight. The bank was then hopelessly insolvent. Lowenberg, A. L. Skillern, and Feazel evidently anticipated the coming crash. All the circumstances proved by the evidence clearly indicate that the payment of the sums of money to them for stock was the withdrawal of the same from the bank on account of its insolvency, and for the purpose of preventing the same being appropriated to the payment of creditors. Such withdrawal was fraudulent and void. Under the statutes of this state it was the duty of the court, in the suits instituted against the defendant, and it undertook, to take charge of all the assets of the bank and distribute them among its creditors. Kirby's Dig. § 950. For that purpose it appointed a receiver. The amounts paid to Lowenberg, A. L. Skillern, and Feazel on account of stock are recoverable by him, under the statutes of this state, for the benefit of creditors, in the suits instituted by him for that purpose. Kirby's Dig. §§ 861, 6348. The majority of this court is of the opinion that the evidence in these cases proves that the dividends received by the appellants were paid out of the capital stock of the bank, and that the receiver ought to recover the same in these suits. They have no right to hold them (dividends), and were in duty bound to refund. 2 Cook on Corporations (4th Ed.) § 548; and Thompson's Commentaries on Corporations, §§ 2152, 2957. The decree against Corn for $380 is reversed, and as to that amount a decree is rendered here in his favor; and the decree in his favor as to the dividend received by him is reversed, and a decree for the same ($50), and interest thereon from the 13th of February, 1903, is rendered against him in favor of the receiver. The decrees against the other defendants are affirmed, and the decrees in their favor as to the dividends, respectively, received by them are reversed, and a decree is rendered against each of them, in favor of the receiver, for the dividend received by him (that being $100 each by Lowenberg and Skillern and $50 by Feazel), and interest thereon from the 13th of February, 1903. spired to kill the husband of deceased, the court should have instructed that, if the jury believed that such a conspiracy was formed, and that defendant and the other conspirators went to the house of deceased for the purpose of killing her husband, and were not actuated by passion at the time, and, before any attack by him, assaulted him, and in endeavoring to kill him accidentally slew deceased; or if they had determined beforehand to kill deceased if she interfered to prevent them from killing her husband, and they killed her in pursuance of this design-they would be guilty of murder. 3. In a prosecution for murder, in which there was evidence that defendant and others conspired to kill the husband of deceased, and slew deceased in the attempted execution of their design, the court should have charged that, if the jury did not believe any conspiracy had been established, they could not regard any acts or declarations made by others in the absence of defendant tending to show animus or an act of preparation on their part. 4. Where one laboring under excitement, and incapable of cool reflection because of slanderous remarks concerning female relatives, went to see the author of the remarks, and, in attempting to kill him, slew his wife, either accidentally or because she interfered, the crime was manslaughter. [Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, § 84.] 5. Where, in a prosecution for murder, there was evidence that defendant and others went to see the husband of deceased because of certain slanderous remarks which he had made concerning female relatives of defendant, and that deceased interfered, and fired at the parties, the jury should have been instructed that if defendant and his companions went on a peaceful mission, and made no hostile demonstration against the husband of deceased, and that he and deceased first attacked them, they had a right to self-defense against her as well as against him. Appeal from District Court, Trinity Coun. ty; Gordon Boone, Judge. Henry Nelson was convicted of murder, and appeals. Reversed. Kenley & Stevenson, Bean & Nelms, Moore & Adams, and Adams & Adams, for appellant. Howard Martin, Asst. Atty. Gen., for the State. HENDERSON, J. Appellant was convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary; hence this appeal. As we read the evidence, three theories are presented. The state was authorized to insist on conviction for murder on the ground that appellant and his codefendants entered into a conspiracy to kill Bob Alexander because of certain insults which said Alexander had uttered against certain female relatives of appellant, and that at the time of such killing they were cool and deliberate, and not actuated by passion arising from said insults, and that in killing or attempting to kill said Bob Alexander they accidentally killed D. V. Alexander, his wife; or that D. V. Alexander was included within the scope of such conspiracy should she interfere, and in resisting their attempt they killed her; or the state could insist on a conviction for manslaughter on the ground of insults to the female rela tives of appellant and those with him uttered by Bob Alexander, and which had been communicated to them, and that at the time of such killing they were excited by passion on account of such insults. On the other hand, if appellant and his confederates went to Bob Alexander's on a peaceful mission, to have an explanation and statement in regard to said alleged insults to their female relatives, and when they went to Alexander's for said purpose Alexander and his wife attacked them, then appellant had a perfect right of self-defense. However, the court, in his charge to the jury, utterly ignored the doctrine of conspiracy, although he admitted evidence which could only have been authorized on the ground of conspiracy. The court also ignored manslaughter, as he failed to give any charge on that subject, although the evidence presented that issue, and demanded a charge on that subject. With reference to the question of conspiracy, appellant requested a number of instructions presenting that phase of the case and safeguarding his rights, especially with reference to the declarations of other codefendants made in his absence. Now, with reference to a conspiracy, we lay down this proposition: There is evidence in the record tending to show a conspiracy on the part of appellant and his companions to kill Bob Alexander. This conspiracy may be gathered from antecedent acts and conduct of appellant, in connection with his codefendants, both before and on the morning of the homicide. Where evidence has been admitted, as is the case here, tending to show a conspiracy, evidence of the acts or declarations of other co-conspirators with appellant in furtherance of the common design, made or done subsequent to the formation of the conspiracy, is admissible in evidence against appellant. Such acts and conduct, as we understand here, were admitted in evidence. It was the duty of the court, however, to have instructed the jury with reference to how they were to consider such acts; that is, if they believed a conspiracy was established on the part of appellant and those acting with him at the time of the homicide to kill Bob Alexander because of insults uttered by him towards the female relatives of appellant, and that in pursuance of such conspiracy they went to the house of said Alexander for the purpose of killing him, and that they were not actuated by passion at the time, and before any attack on his part, they assaulted him, and in endeavoring to kill him they accidentally slew his wife; or if they had determined beforehand that if appellant's wife, or any one else, interfered to prevent them from killing him, and that they intended to kill such person, and appellant's wife did interfere in the difficulty, and they intentionally killed her then they would be guilty of murder either of the first or second degree, as the case might be. On the other hand, it was the duty of the court to have instructed the jury that, if they did not believe any con |