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the litigation, the benefit secured by it, the at- ed in this controversy, and commenced, in torney's skill, and the character of his services. the chancery court of Garland county, an

[Ed. Note.-For other cases, see Attorney and action against B. F. Cooley to cancel the latClient, Cent. Dig. $8 354-357; Dec. Dig. ter's asserted claim to a life estate by rea150.*)

son of being the surviving husband of Bina Appeal from Garland Chancery Court; Cooley. B. F. Cooley employed plaintiff, Huff, S. W. Leslie, Special Chancellor.

as an attorney to represent him in that case, Action by C. Floyd Huff against J. H. and in any other proceedings which might Hall. Judgment for plaintiff, and defendant be instituted “to recover any share or part appeals. Reversed, and cause remanded, of the estate of said Bina Cooley, deceased," with directions to dismiss the complaint for and executed to said plaintiff a contract or want of equity.

deed, whereby he conveyed to him an unR. G. Davies and Scott Wood, both of Hot | divided one-third interest “in any and all Springs, for appellant. James E. Hogue, of property, of whatsoever kind or character, Hot Springs, for appellee.

whether real, personal, or mixed, that may

be recovered for me from the estate of said McCULLOCH, C. J. [1] This is an action Bina Cooley." In the instrument executed instituted by the plaintiff, C. Floyd Huff, by Cooley, plaintiff, Huff, was expressly auagainst the defendant, J. H. Hall, to recover thorized to bring suits and other legal propossession of an undivided one-third of a ceedings in connection with said estate, “to certain tract or lot of real estate in the city sue for and recover such property, or to deof Hot Springs, described as lot 1, of block fend any suits in reference to the same, and 60, of the city of Hot Springs, as platted by to collect, receive, recover, and receipt for the United States Hot Springs Commission, any such property in or out of court as in and also to recover one-third of the rents his judgment may be necessary to settle said and profits of said property.

estate," and that "upon the recovery of any Defendant demurred to the complaint, but such property I will promptly make him a it does not appear that the court ever ruled proper conveyance for one-third interest in on the demurrer, and the defendant filed same in accordance with this agreement." an answer, and also a cross-complaint, in Plaintiff appeared for B. F. Cooley in the which he asked that his title to the lot de- action brought against the latter by defendscribed in the complaint be quieted, and that ant, Hall, and asserted the claim of Cooley the instrument under which plaintiff claims for a life interest in the property as survivan interest in the property be canceled as a ing husband of Bina Cooley. While that cloud on his title. Conceding that the al-cause was pending a compromise was negolegations of the complaint were not suffi- tiated between the parties, the same being cient to give the chancery court jurisdic-conducted by plaintiff, Huff, for his client, tion, the allegations of the cross-complaint whereby it was agreed that Cooley should were sufficient for that purpose; and, the convey to defendant, Hall, his life estate in court having assumed jurisdiction for any the lot involved in this controversy, but that purpose, it correctly proceeded to determine said cause should proceed to final decree. all the rights of the parties in the subject Pursuant to that agreement plaintiff, Huff, matter of the controversy.

prepared, and his client executed, a deed, Plaintiff claims an undivided interest in the with full covenants of warranty, to defendproperty for and during the life of one B. F. ant, Hall, whereby he conveyed the life esCooley, and bases that claim upon a contract | tate of B. F. Cooley in the property in conor a deed executed to him by Cooley. The troversy. That deed was executed on Auproperty was owned by one Bina Cooley, a gust 29, 1908. That litigation, notwithstandcolored woman, who died in the city of Hot ing the conveyance, proceeded to a final deSprings in the year 1907, leaving no children cree, which was rendered on October 6, 1908, surviving, and the title descended to her col- whereby Cooley's life estate as tenant by lateral heirs. Defendant, J. H. Hall, acquir- the curtesy was declared. Plaintiff testified ed title by purchase from those heirs. that the purpose of his client in entering in

B. F. Cooley was formerly the husband to this compromise and conveying his inof Bina Cooley, but the evidence shows that terest in this lot to defendant, Hall, was to several years before her death they were induce the latter to “lay down” on the suit divorced by a decree of the chancery court and permit a final decree to go, so as to esof Garland county. Bina Cooley left a con- tablish Cooley's right to other property left siderable estate, composed of real estate in by his former wife. Defendant, Hall, denied the city of Hot Springs, and at the request this, but stated that he was advised by his of B. F. Cooley the plaintiff became the ad- attorney that it would be better to let the ministrator of the estate of said decedent, suit proceed to final decree, notwithstanding and took possession of all the real estate, and the compromise. received the rents and profits therefrom.

The testimony of defendant shows that Defendant purchased the interest of the there had been a decree for divorce of Bina heirs of Bina Cooley in and to the lot involv- Cooley from B. F. Cooley rendered by the Garland chancery court several years prior , action is compromised with the consent of to Bina Cooley's death; that the decree the attorney; and it is undisputed in this was omitted from the record, but that sub-case that plaintiff, Huff, not only consented sequent to the commencement of the litiga- to it, but that he actually negotiated the tion just described the decree was entered settlement for his client and prepared the nunc pro tunc. This does not appear to have deed. been denied, and it establishes the fact that Moreover, the statute does not, in case B. F. Cooley was not entitled to a life es- of compromise without consent of the attortate in the property of Bina Cooley, and the ney, give a right of action to recover the court should not have so decreed, if defend contingent fees stipulated for in the contract. ant had properly brought out the merits of The measure of recovery in such case isthat controversy. That, however, is not a “not a speculative or contingent fee, but one matter that is material to the present suit, of the litigation, the benefit secured by it, the

that is reasonable, considering the importance for this is not an effort to set aside the de- amount and character of the attorney's services, cree in the former litigation between B. F. and his learning, skill, and proficiency." RachCooley and the defendant, Hall.

els v. Doniphan Lumber Co., 98 Ark. 529, 136

S. W. 658. [2, 3] There is a serious conflict in the testimony, which we do not deem it necessary

There is considerable testimony in this to attempt to reconcile; for our conclusion case, and, as before stated, it is of a conis that, even upon the plaintiff's own state

Defendant, Hall, was, ac

flicting nature. ment of the facts, he is not entitled to recording to the testimony, interested in the cover anything, or to assert a lien against property with his father, W. H. Hall; or, the property in the hands of defendant, Hall. perhaps, the testimony •establishes the fact

that the title was merely taken in the name The instrument executed to him by Cooley of defendant, Hall, for his father's use. ---call it either a contract or a deed of con

That is immaterial in this case. Other propveyance-does not purport to convey any erty of the estate of Bina Cooley was purparticular property, but only an undivided chased by W. H. Hall, and there was a conthird interest in whatever might be recover- troversy between the parties as to other ed in any litigation concerning the property transactions and rights alleged to have belonging to the estate of Bina Cooley. The

grown out of them concerning the purchase instrument amounts only to a sale and trans- of the other property by W. H. Hall. fer, according to the terms of the statute

Plaintiff's contract with, or conveyance then in force (Kirby's Dig. $ 4457), of the from, B. F. Cooley was not fled for record causes of action of said B. F. Cooley in and until after Cooley executed the conveyance to the property belonging to the estate of to defendant, Hall, and there is a controsaid decedent. Plaintiff, therefore under that versy whether either of the Halls had ininstrument, was only entitled to one-third of formation as to this contract. We deem it whatever might be recovered. Now, there immaterial whether they knew it or not, for was a decree in favor of Cooley, whereby he it is not claimed that there was any express recovered a life estate in this lot; but, ac-contract that either of the Halls should pay cording to the testimony of the plaintiff him- the plaintiff any fee for his services in repreself, that decree was collusive, and the sub- senting Cooley. ject-matter thereof was settled by compro- We held in the case of Kansas City, F. S. mise between the parties long before the & M. Ry. Co. v. Joslin, 74 Ark. 551, 86 S. rendition thereof. According to plaintiff's w. 435, that actual notice of the existence own testimony, that suit was prosecuted to of a contract with plaintiff's attorney was a final decree for ulterior purposes. So the sufficient to render the defendant liable recovery under that litigation was not the for a reasonable fee, even though the conlot itself, but the consideration which passed tract was not filed; but, as we have alfrom defendant, Hall, to Cooley; and, since ready said, plaintiff was only entitled to one the plaintiff consented to the compromise, he third of the recovery in the original action, must, for obvious reasons, look to his client, which was the amount received in the comand not to his client's adversary, for his part promise, and this is so, even though defendof the recovery. The statute provides that: ant had actual knowledge of the existence

"In case the plaintiff and defendant compro- of the contract. Where the case was commise any suit

where the fees or any promised, his only remedy was that of repart thereof to be paid to the attorney for plaintiff or defendant are contingent, the attor covering a “reasonable fee,” according to the ney for the party plaintiff or defendant receiv-terms of the statute; and this even be is ing a consideration for said compromise. shall precluded from recovering by his participahave a right of action against both plaintiff and tion in the compromise and his consent defendant for a reasonable fee, to be fixed by the court or jury trying the case."

Kirby's thereto. Dig. $ 4457.

The decree is therefore reversed, and the This statute, of course, is not intended to cause remanded, with directions to dismiss give a right of action where the cause of the complaint for want of equity.

but the provision of the section now under consideration is one dealing with the costs of the appeal, and requiring a nonresident appellant to give bond for costs of the appeal. An order will therefore be entered, in ac

CHAMBERS v. OGLE et al. (No. 130.)
(Supreme Court of Arkansas. Sept. 28, 1914.)

Kirby's Dig. § 1198, provides that the ap-cordance with that section, requiring the appellant may be required to give security for costs under the same circumstances that plaintiffs in civil actions may be so required, and section 959 et seq. declare that nonresident plaintiffs, with certain exceptions, shall give bond

pellant in this case to execute bond, with surety to be approved by the clerk, conditioned that he will pay the costs of the appeal in the event that the judgment be affirmed or the appeal dismissed.

for costs on commencement of the action, and on failure to do so the action may be dismissed. Held, that the word "circumstances," in section 1198. refers to the fact of non residence, and not to the terms of the bond, and that the only bond that can be required of a non resident appellant is for costs, and he is not bound to supersede the judgment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2042-2048; Dec. Dig. 8 383.*]

PER CURIAM. Appellees filed a motion, alleging that appellant is a nonresident of the state, and asking the court to make an order requiring him to give a bond for costs, pursuant to section 1198 of Kirby's Digest, which provides that:

"The appellant may be required to give security for costs under the same circumstances that plaintiffs in civil actions may be so required."

WILSON v. STATE. (No. 140.)

(Supreme Court of Arkansas. Sept. 28, 1914.) INTOXICATING LIQUORS (§ 146*)-OFFENSES— PRINCIPAL.

One who, to accommodate a friend, purchased whisky for him, receiving half of the Appeal from Madison Chancery Court; T. purchase price from his friend, and paying the H. Humphreys, Chancellor. other half himself, and keeping part of the ties in rendering a service which made the sale whisky, acted as an intermediary for both parpossible, and was therefore guilty as a principal

Action between J. T. Chambers, as intervener, and Flora Ogle and others. From a decree in favor of the latter, the former appeals. On motion to require appellant to file a bond for costs. Granted.

unlawfully selling the whisky.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.*]

Appeal from Circuit Court, Polk County; Jefferson T. Cowling, Judge.

L. W. Wilson was convicted of unlawfully selling intoxicating liquor and he appeals. Affirmed.

Appellant was indicted for the offense of unlawfully selling intoxicating liquors in Polk county. It appears from the evidence that Mr. McPhetridge, on the day the offense

was committed, was sick, and thought an al-
coholic stimulant would be beneficial. He
met the appellant, who was
an intimate
friend, and asked him if he could get him
not know, but would try, and said that he
some whisky. Appellant replied that he did
had been informed by some one that there
was a man who had it for sale in Mena. Mc-

Phetridge gave him half a dollar, with the
Later in the day he met appellant near Long's
request that he get the whisky, if possible.
barber shop, and was told that he had it.
They went to the rear of the shop, where ap

than a pint, from which McPhetridge took a pellant produced a bottle containing less

drink. He said:

The statute relied on clearly gives this court the power to require a nonresident appellant to give bond for costs, but the question is, What should be the terms and conditions of the bond-whether to pay the whole costs of the action or merely the costs of the appeal? The statutes provide that nonresident plaintiffs and corporations, with certain exceptions, shall give bond for costs

upon the commencement of an action, and upon failure to give such bond the action may be dismissed. Kirby's Digest, § 959 et seq. The word "circumstances," used in section

1198, refers to the fact of nonresidence, and not to the terms of the bond. This section deals with parties as appellants, and not with respect to their status in the lower court; whereas the general sections on the subject apply only to plaintiffs. It necessarily follows that in dealing with the party as an appellant it was the design of the lawmakers in this section to require security for the costs incurred on appeal, and not the costs of the whole action; otherwise, the requirement would amount to a denial of the right to appeal without supersedeas of the judgment for costs. There is nothing in our statutes which appears to militate against the right of any party to appeal from the judgment against him without being required Appellant testified that McPhetridge's verto give bond to supersede such judgment; | sion, already substantially set out, of the

"I didn't know whether it was whisky, but the drink I got satisfied me. I handed him back the bottle and told him to use it if he wished; that I could not drink it."

He also said appellant told him that they charged $1 for the stuff and he had paid for the balance. At his first meeting on the street, McPhetridge had requested appellant to see if he could not find him a stimulant of some kind, and gave him a dollar with which to purchase it, and this had been returned with the statement that he failed to find anything.

transaction, was true; that he had been informed by some one that a one-legged man, called "Red," had some whisky to sell at a poolroom on De Queen street in Mena; that he saw Red about the purchase, and was told that he would find a bottle of whisky in a can at the rear end, or near it, of the pool hall, and instructed to leave a dollar and take the whisky, which he did, furnishing half a dollar of the price himself. He was not interested in the whisky, but only trying to get it for McPhetridge, and furnished the half dollar upon his own responsibility, without any expectation of getting it back, and that he did not get it back. It was all done to accommodate his friend.

The court thereupon directed the jury to return a verdict of guilty, which it did, and assessed a fine of $200 against appellant, and, from the judgment thereon, this appeal


L. W. Wilson, pro se. Wm. L. Moose, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

KIRBY, J. (after stating the facts as above). The facts in this case are undisputed, and it is controlled by the decisions in Bobo v. State, 105 Ark. 462, 151 S. W. 1000, 153 S. W. 1104, and Tucker v. State, 162 S. W. 1086. Appellant was furnished money by McPhetridge with which to purchase the liquor, and procured it from "Red," whom he understood, from prior information, had it for sale in Mena, and was a necessary factor in making the sale. Since "Red" was not known to McPhetridge, nor McPhetridge to him, in the transaction, appellant was the intermediary, acting both for the seller and the buyer, and rendered the seller a service which made the sale possible, and became thereby a principal in the transaction. The fact that he contributed some money to the payment for a larger quantity of liquor than was desired or paid for by McPhetridge would not relieve him from the liability.

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[Ed. Note. For other cases, see Contracts,

Cent. Dig. §§ 767-770, 917, 956, 979, 1041, 1097, 1825; Dec. Dig. § 176.*]


A complaint, alleging that defendant sold plaintiff his entire erest in a general business for a certain amount, and in consideration would bring to plaintiff his entire furnishing of a monthly allowance as salary, and that he trade for a certain year, the term "furnishing furnished to defendant's hands and tenants for trade" meaning goods and merchandise to be the year, that plaintiff stood ready to perform, but that defendant had taken the trade to another, and thereby plaintiff had lost sales and profits to a certain amount, but not alleging what quantity was to be furnished, was suffi ciently definite and certain to state a cause of action.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. § 332.*] 5. DAMAGES (§ 147*)-BREACH OF CONTRACTPROFITS-PLEADING.

to the recovery of profits as damages. Such complaint sufficiently alleged a right

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 410, 412; Dec. Dig. § 147.*] 6. Damages (§ 40*)—Measure of DamagesPROFITS.

Profits growing out of a contract and lost by reason of its breach, and which are ascer tainable of calculation, are recoverable as dam


[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.*]



A contract whereby plaintiff purchased defendant's interest in a general business for a certain amount and allowed defendant a month

ly salary, in further consideration of which the defendant was to bring to plaintiff his entire furnishing trade, consisting of merchandise for his hands and tenants for a certain time, for a percentage of profits, implied that the goods should be furnished at the usual price, and was not void for want of mutuality.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 21-40; Dec. Dig. § 10.*] McCulloch, C. J., and Hart, J., dissenting.

Appeal from Circuit Court, Woodruff Coun. ty; J. M. Jackson, Judge.

Action by T. D. Wilkes against Conner R. Stacy. From an order sustaining a demurrer and dismissing the action, plaintiff appeals. Reversed and remanded.

Appellant sued to recover damages under the following complaint:

The meaning of the term "furnishing trade," as used in the exhibit evidencing the terms of the contract, might be shown, under the general rule that where a contract contains words of latent ambiguity, or terms which by

"That the defendant, C. R. Stacy, and Charles N. Wilkes were engaged in the general mer chandise business, under the firm name of

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Wilkes & Stacy, during the year 1911; that on furnished the said C. R. Stacy's hands at the the 29th of October the defendant sold to this end of season 1912. plaintiff his entire interest in said store. this

[Signed] C. R. Stacy. plaintiff thereby succeeding to said business

"T. D. Wilkes. of Wilkes & Stacy, for the sum of $3,640 (which "Witness: C. N. Wilkes." was paid to the defendant) and the further consideration of an allowance of $75 per month to

A demurrer was sustained to this comthe defendant for the year 1911 for salary, and plaint, and this appeal has been duly proseas a further consideration to this plaintiff for cuted from the order of the court dismissing the payment of said sum of money, defendant agreed to furnish this plaintiff with his entire the cause of action. furnishing trade for the year 1912. It was Harry M. Woods, of Augusta, for appellant. agreed that said "furnishing trade" mentioned in the memoranda was to consist of goods and S. Brundidge, of Searcy, for appellee. merchandise to be furnished the hands and tenants of the defendant for the year 1912, the payment of which he, defendant, obligated him

SMITH, J. (after stating the facts as self and promised to pay; said credit being ex-above). [1-3] The allegations of the comtended solely to defendant.

plaint appear to be more specific and definite "A memorandum of said contract and agree than those contained in the exhibit. The ment was reduced to writing and in duplicate, and a copy of said memorandum is attached complaint alleges the meaning of the term hereto, marked 'Exhibit A.'; and made a part "furnishing trade” as used in the exhibit. The hereof. That at the time said contract was meaning of the trade terms may be shown. made it was agreed between the plaintiff and The rule in such cases is stated in Lawson the defendant that the 'furnishing trade in the contract was to consist of the necessary arti- on Contracts, $ 383, as follows: cles, goods, and merchandise to be furnished the "The customs of particular classes of men tenants and employés of the defendant for the soon give to particular words different meanpurpose of maintenance during the year 1912. ings from those which they may have among That said furnishing was to be of the goods, other classes, or in the community generally. merchandise, and articles handled and sold by Mercantile contracts are commonly framed in this plaintifi. Plaintiff states that in com-a language peculiar to merchants, and hardly pliance with his agreement he bought and pur- understood outside their world. Agreements chased the necessary goods and merchandise which are entered into every day in the year and articles to comply with said agreement, at between members of different trades and profesa cost of $5,000, and stood ready at all times sions are expressed in technical and uncommon during the said year 1912 to furnish and deliver terms. The intentions of the parties, though the same. Plaintiff further states that in viola- perfectly well known to themselves, would be tion of said contract and agreement the said defeated were the language employed to be C. R. Stacy failed and refused to deliver his strictly construed according to its ordinary 'furnishics trade' as agreed upon with this meaning in the world at large. Hence, while plaintiff for the year 1912, and directed and words in a contract relating to the ordinary delivered it to the E. H. Conner Mercantile transactions of life are to be construed acCompany, a firm doing a competitive and sim- cording to their plain, ordinary, and popular ilar business to this plaintiff in the town of meaning, yet if, in reference to the subjectAugusta. That during said year of 1912 the matter of the contract, particular words and said C. R. Stacy delivered to the said E. H. expressions have, by usage, acquired a meaning Conner Mercantile Company the accounts of his different from their plain, ordinary, and popular said bands for which he became liable, which meaning, the parties using those words in such he agreed and contracted to place with this a contract must be taken to have used them in plaintiff, to the amount of $2,516. That under their peculiar sense. And so words technical said contract and agreement, be agreed to buy or ambiguous on their face, or foreign or pecugoods from this plaintiff, the gross amount of liar to the sciences or the arts, or to particular which was $2,516. That the contemplated trades, professions, occupations, or localities, profits on said 'furnishing trade' was the con- may be explained, where they are employed in sideration for which plaintiff made the con- written instruments, by parol evidence of ustract herein mentioned."

age." "That said profits amounted to the sum of $960; that by reason of defendant's failure to

This question was recently thoroughly confurnish said 'trade' as agreed upon, this plain- sidered by this court in the case of Paepcketiff is damaged and injured in the sum of $960. Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 this being the net profit to this plaintiff on said S. W. 833, in which case it was said: goods and furnishings which were furnished to defendant's hands and tenants on account and "Ordinarily it is the duty of the court, in the credit of defendant, contemplated by the con- trial of cases, to construe a written contract tract herein, for the year 1912.

and declare its terms and meaning to the jury. “Premises considered, plaintiff prays that he

But where the contract contains words have and recover of and from the defendant the of latent ambiguity, or where technical terms sum of $960 and all costs in this suit expended.” are used or terms which, by custom and usage,

are used in a sense other than the ordinary The exhibit mentioned in the complaint, as meaning of the words, oral testimony is admisbeing attached to it, was as follows:

sible to explain the meaning of the terms or “Agreement issued in duplicate form between to the jury to determine in what sense they

words used, and the question may be submitted C. R. Stacy and T. D. Wilkes. "I, Conner Stacy, agree to take the amount

were used.” of money I paid in the store of T. D. Wilkes & And the same opinion quotes from Wood y. Bro., $3,640.33 (three thousand six hundred and Kelsey, 90 Ark. 272, 119 S. W. 258, the followforty and 33/100 dollars), and a salary of $75 per month for the year 1911 for services render ing language: ed and to be rendered, for my entire interest in "Courts may acquaint themselves with the said store now owned by Wilkes & Stacy. C. persons and circumstances that are the subject R. Stacy agrees to let T. D. Wilkes, or his of the statements in the written agreement, and agents, have his entire furnishing trade for the are entitled to place themselves in the same year 1912.

T. D. Wilkes agrees to allow the situation as the parties who made the contract

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