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them, and so as to judge of the meaning of the of contract alleged, or where they are speculawords and of the correct application of the lan- tive, resting only upon conjectural evidence or guage to the things described."

the individual opinion of parties or witnesses.' [4] It is urged by appellee that appellant The majority of the court think the facts undertook in his complaint to enlarge and alleged in the complaint meet the requirevary the terms of the contract for the salements of this test. of the stock of goods. But the exhibit is Appellee agreed to purchase from appellant merely evidentiary of the terms of the sale, all the supplies which it would be necessary and the sufficiency of the complaint is to be to furnish appellee's tenants during the year determined by a consideration of its allega- 1912, whether this amount was much or little, tions. We need not consider any possible but the allegations of the complaint show it difficulty which appellant may experience in to be an exact amount, and the books of acproving the allegations of his complaint, as no count which would have been kept would such difficulties are before us, when the suffi- have shown the various articles bought, upon ciency of the complaint is tested on demurier. which, by calculation, the profits could have We think the allegations of the complaint are

been ascertained. While these calculations sufficiently definite and certain to state a might have proven intricate, that fact would cause of action. It is urged that the complaint does not state what articles appellee them was sufficient for such calculations to

not have prevented a recovery, if the proof of would desire furnished to his tenants during be made, and the allegations of the complaint the year 1912, and that the complaint does are that such was the case with reference to not state the quantity of such articles. But

this transaction. it cannot be assumed that appellee did not know what articles he would wish to pur: want of mutuality; but we do not think so.

[7] It is said that this contract is void for chase from appellee, nor can we assume that appellee did not have these articles for sale, Appellee paid a fixed sum of money and as appellant had just purchased the stock of agreed to give appellant employment for a goods from appellee and this purchase consti- definite time and to allow him a certain per tuted the consideration for the contract al. cent. of the profits. In consideration for leged to have been breached. In addition to this appellee agreed to purchase from appelthe goods just purchased from appellee, ap- lant the supplies, which he would require pellant alleged that he bought additional for his tenants, and, whether that amount goods and merchandise and articles to com

was much or little, it included all the supply with said agreement at a cost of $5,000, plies so to be purchased. This agreement necand stood ready at all times during the year essarily implied that the goods should be 1912 to furnish the merchandise embraced in sold at the usual and customary prices; just the terms of the contract. Nor was there as such an agreement is implied in any case such uncertainty as to quantity as would where goods are purchased without any render the contract void on that account. definite understanding as to price. The contract as alleged in the complaint

The question of mutuality of contract was was that appellee should purchase all of considered in the case of Thomas-Huyckethe goods from appellant, which appellee de Martin Co. v. Gray, 94 Ark. 9, 125 S. W. 659, sired furnished to his tenants during the year 140 Am. St. Rep. 93, the syllabus in which 1912, and the exact quantity of such goods case reads as follows: is alleged to be $2,516, but they were pur- A contract whereby defendant at a price fix. chased by appellee from another mercantile ed undertook to buy the output of a sawmill is

not lacking in mutuality as not binding the concern doing a similar business.

plaintiffs to sell, since the contract implies a [5, 6] There is almost an infinite number of corresponding obligation on the part of the cases on the question of the recovery of plaintiffs to sell at the stipulated price.” profits by way of damages for breach of a And the same case quoted with approval contract; but this question has been the sub- from Lewis v. Atlas Mut. Life Ins. Co., 61 ject of a number of recent cases decided by Mo. 534, the following language: this court. The rule in such cases as stated

"It very frequently happens that contracts by Mr. Justice Riddick in the case of Beek on their face and by their express terms appear man Lumber Co. v. Kittrell, 80 Ark. 228, 96 to be obligatory on one party only; but in such S. W. 988, was quoted from 13 Cyc. 53, as

cases, if it be manifest that it was the inten

tion of the parties, and the consideration upon follows:

which one party assumed an express obligation, “The recovery of profits, as in the case of that there should be a corresponding and cor. damages for the breach of contracts in general relative obligation on the other party, such depends upon whether such profits were within corresponding and correlative obligation will the contemplation of the parties at the time be implied. As. if the act to be done by the the contract was made. If the profits are such party binding himself can only be done upon a as grow out of the contract itself, and are the corresponding act being done or allowed by the direct and immediate result of its fulfillment, other party, an obligation by the latter to do they form a proper item of damages.

or allow to be done the act or things necessary Such damages 'must be certain both in their for the completion of the contract will be necnature and in respect to the cause from which essarily implied.” they proceed. It is against the policy of the law to allow profits as damages where such

See, also, El Dorado Ice Co. v. Kinard, 96 profits are remotely connected with the breach | Ark. 184, 131 S. W. 460.

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The judgment of the court below will there Judge Sanborn, in delivering the opinion fore be reversed and the cause remanded, in the federal case cited above, said: with directions to overrule the demurrer.

"A contract for the future delivery of person

al property is void for want of consideration and MCCULLOCH, C. J., and HART, J., dissent. mutuality of the quantity to be delivered is con

ditioned by the will, wish, or want of one of the McCULLOCH, C. J., and HART, J. (dis

parties." senting). The parties themselves, in present

We find in this contract nothing more than ing the case here, have treated the allega- an undertaking on the part of the appellee to tions of the complaint as being no broader purchase all of his goods during the specified than the language of the contract itself, ex- year from appellant-not any specified quancept that the complaint undertakes to define tity nor at any price mentioned, but merely what is meant by the term “furnishing such quantity as he might desire to purchase trade." There can be no doubt that the at a price thereafter to be agreed upon--and rules of evidence permit the introduction of when the test laid down in the authorities pa rol testimony to explain trade or commer- i quoted from is applied, the contract is too cial terms or terms which have a fixed mean

vague and indefinite to be enforceable. ing. That, however, is not the real question

The fact that appellee afterwards purchasin this case, for, in our judgment, when the ed a certain quantity of goods from another eridence is admitted explaining what the dealer has no force in determining his liaterm “furnishing trade” means, the contract bility upon the contract with appellant. The still falls far short of being sufficiently cer- question is not how much he did purchase, tain to be enforceable. The language of the but what he obligated himself to purchase contract does not sufficiently specify either from appellant. the quantity or price of the goods to be sold,

The case was, in our judgment, correctly nor does it afford any basis for ascertaining determined by the circuit judge on demurrer, the amount to be furnished under the con- and we think the case should be affirmed. tract. The language of the contract amounts only to an undertaking on the part of appellee to buy all of his goods during the year 1912 from appellant. He does not agree to ST. LOUIS, I. M. & S. RY. CO. v. PYLES. purchase any particular quantity of goods

(No. 70.) nor a quantity sufficient to serve any use (Supreme Court of Arkansas. June 29, 1914.) specified in the contract. Now, it is elemental in the law of contracts that one is not 1. MASTER AND Servant (8 89*) — RAILROAD

TRACK-LICENSEE. enforceable which does not with certainty

Plaintiff, an employé of defendant railroad, describe the subject-matter or fix some basis having a pass permitting him to ride on all upon which the scope of the subject-matter kinds of trains, including through freight trains, can be ascertained. The rule is stated in while traveling in the course of his business,

but not required to take that particular train, one of the encyclopedias as follows:

and not acting upon any invitation or imme“In order to constitute a valid verbal or writ- diate command of his superior, in the nighttime ten contract the subject-matter of the agree ran down a pathway about nine feet wide bement must be expressed by the parties in such tween the main track and a side track to take a terms that it can be ascertained to a reasonable standing train, fell over a pile of coal which had degree of certainty." 7 Am. & Eng. Enc. Law, accumulated at the chute during two or three P.

days, was thrown under the moving train, and Mr. Elliott, in his commentaries on the injured. The path was a well-beaten one, fre

quently used by employés and others, notwithLaw of Contracts (volume 1, § 180), after stat- standing a posted warning. Held, that plaintiff ing the rule with reference to aiding by parol was at most only a licensee who took the path testimony the language of a contract, says: as he found it; that the railroad was not bound "However, where the amount to be furnished and hence was not negligent in permitting the

to furnish him a safe place to board the train, is not governed by the needs of a particular pile of coal to accumulate in the path. business or undertaking and the determining factor is altogether uncertain, as where the servant, Cent. Dig. $$ 153–156; Dec. Dig. $

(Ed. Note.-For other cases, see Master and purchaser is not bound to take any of the thing bargained for or is free to demand, in many

89.*) instances, an unlimited amount should he de- | 2. MASTER AND SERVANT (

8224*)— MASTER'S sire it, the agreement is too indefinite to be up


ROAD TRACK. He cites authorities in support of this doc In such circumstances, plaintiff assumed trine, among which may be consulted with the risk of boarding the train at that place. profit the following: Price v. Weisner, 83

[Ed. Note.-For other cases, see Master and Kan. 343, 111 Pac. 439, 31 L. R. A. (N. S.) Servant, Cent. Dis. $ 654; Dec. Dig. 2:24.") 327; Price v. Atkinson, 117 Mo. App. 52, 94 Appeal from Circuit Court, White County ; S. W. 816; Wheaton v. Cadillac Automobile J. M. Jackson, Judge. Co., 143 Mich. 21, 106 N. W. 399; Price v. Action by Noah Pyles, a minor, by his next Stipek, 39 Mont. 426, 104 Pac, 195; City of friend and mother, against the St. Louis, Ft. Scott v. Eads Brokerage Co., 117 Fed. Iron Mountain & Southern Railway Com51, 54 C. C. A. 437; Blackstone v. German pany. Judgment for plaintiff, and defendant Bank, 87 Md. 302, 39 Atl. 855.

appeals. Reversed, and cause dismissed. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

E. B. Kinsworthy and W. G. Riddick, both the company, warning trespassers from the of Little Rock, and P. R. Andrews, of Hel- tracks and right of way. ena, for appellant. S. Brundidge, of Searcy, Plaintiff testified that he had been to Gurand J. W. & J. W. House, Jr., of Little Rock, don a time or two before and had seen emfor appellee.

ployés and others walking along that path. He stated also that he had seen employés get

off trains down at the coal chute and walk MCCULLOCH, C. J. The plaintiff was struck, knocked down, and seriously injured up to the depot along that path. by one of the defendant's freight trains in the

The only charge of negligence against the railroad yards at Gurdon, and he instituted company is in permitting the pile of coal to this action to recover damages on account of accumulate in the path and in allowing it to such injuries. He was going down a path- remain there as an obstruction to those who way between the main track and a side track attempted to use the path.

Plaintiff had the right to ride on through for the purpose of boarding a train, when he stumbled over a pile of coal, about two freight trains, and it cannot be said that he feet high, in the pathway, and fell under the was not traveling on the business of the comslowly moving freight train on the main pany in returning from Gurdon to Argenta. track, and one of his legs was cut off just be- But he was not required to travel on that low the knee, and the other foot was cut particular train. He was not acting under through just about the instep. This occurred the immediate command of his superior when about midnight. The pile of coal which ob- he undertook to board the train. While he structed the pathway fell from the coal chute wherever it might be found for the purpose

had the right to board the freight train while the men were placing coal in the en- of riding on the company's business, the pass gines. It was about 2,500 feet south of the which enabled him to ride on through freight station at Gurdon, and the freight train had trains was not an invitation to board them stopped at the coal chute for the purpose of wherever found. In other words, his right taking on coal.

to board freight trains wherever found did Plaintiff was employed by defendant rail. not imply an obligation on the part of the way company in the supply department; his company to furnish him a safe place and opduties being to travel with the supply cars portunity to board them. If he saw fit to and distribute oil. He had been to El Dor- board a freight train away from the station, ado with his oil cars, and returned to Gur- at a tank or coal chute, he did so at his own don en route to Argenta. That was Saturday risk, unless the servants of the company were night, and he was to join the oil cars at Ar- guilty of some negligence in the operation genta on Monday morning, to go to McGehee, of the train, which resulted in his injury. on another division of the road. The fore. So the fact that the plaintiff was going down man of his department also accompanied the the path for the purpose of boarding the cars, and plaintiff obtained permission of train adds no strength to his cause of action, the foreman to leave the oil cars at Gurdon and his right to recover must exist, if at all, and make his way back to Argenta that night upon the obligation of the company to keep on another train without waiting for the cars the path clear for the benefit of any one who to be transported the next day. Plaintiff, aft- saw fit to use it. er getting his lunch at an eating house near

[1] Now the evidence establishes the fact the station at Gurdon, saw the freight train that, notwithstanding the warning posted by stop at the coal chute, and decided to go the company, the path was a well-beaten one, down there and board the caboose to ride to and was frequently used by employés, and Little Rock. He had a pass which permitted oftentimes by any one else who saw fit to him to ride on all kinds of trains, including use it. This, however, was at most only a through freight trains. He started down the license, which was extended, notwithstanding track hurriedly to reach the caboose before the warning, if the path was used openly the train moved, and, when he got nearly to with the acquiescence of those in charge of the engine, the train started, and he quick- the yards. It is well settled, however, that ened his gait, and was going, as he described a bare licensee, under circumstances of this it “in a trot,” when he stumbled over the kind, is not entitled to any affirmative act of pile of coal and fell. The train was going protection on the part of the owner who very slowly when plaintiff fell, and his feet grants the license. In this respect, the case were thrust under the train, and the wheels stands the same as if some one else owned struck him before he could extricate him the premises instead of the railway company. self.

"The bare permission of the owner of pri. The evidence tends to show that the pile vate grounds to persons to enter upon his of coal fell from the chute and had accumu- premises does not," said this court in the case lated there for a day or two. There was a of St. Louis, I. M. & S. Ry. Co. v. Dooley, space of nine feet between the main track 77 Ark. 561, 92 S. W. 789, "render him liable and the passing track, and there was a well- for injuries received by them on account of beaten path along there which was used by the condition of the premises." In that case employés, and also by the public, to some ex- the defendant, the railway company, bad tent. There was a sign there, erected by erected a stile over à fence along the right

of way and permitted the same to get out of repair, and the plaintiff was injured on ac- LANDRUM v. LINDSEY. (No. 82.) count of the breaking down of the steps. The (Supreme Court of Arkansas. June 29, 1914.) question arose whether the company had in- COMMERCE (8 60*) — INTOXICATING LIQUORS vited the public to use the steps, and there (8 326*)—SALE ON CREDIT-ENFORCEMENT was enough evidence to show such an invita


UTES. tion, and the company was held liable, but in

Rev. St. Mo. 1909, § 7189, provides that doing so this court unqualitiedly laid down all sales of liquor made by a dramshop keeper the rule that the granting of a mere license on credit are declared void and of no effect, and to use a way through an owner's premises that the debt thereby attempted to be created

shall not be recoverable at law. does not imply an obligation to keep the same where intestate in Arkansas ordered liquor

Held that, in repair.

from a licensed dramshop keeper in Missouri, The same principle was announced by this who kept a running account thereof, showing court in the recent case of Chicago, Rock transactions for over five years, liquors being Island & Pacific Ry. Co. v. Payne, 103 Ark. him credited thereon, there was no attempted

charged to intestate, and the amounts paid by 226, 146 S. W. 487, 39 L. R. A. (N. S.) 217. regulation of nor interference with interstate There the public had been permitted to use, commerce, and the seller could not establish a with the acquiescence of the company, a road claim for a balance due on account against the

buyer's estate in Arkansas. or path along the right of way, and negli

[Ed. Note. For other cases, see Commerce, gence was ascribed in allowing a ditch across Cent. Dig. 88 91-95; Dec. Dig. $ 60;* Intoxithe right of way to get out of repair, on ac- cating Liquors, Cent. Dig. 8 469; Déc. Dig. 8 count of which the plaintiff was injured

326.*] while attempting to pass along. The court Appeal from Circuit Court, Clay County; said:

W. J. Driver, Judge. "The undisputed evidence shows that appellee Action by D. G. Landrum against S. P. was a mere or bare licensee. She was using Lindsey, as administrator of the estate of the footpath upon appellant's right of way for her own convenience, and not for any pur- August Peterson, deceased. Judgment for pose connected with the business of appellant or defendant, and plaintiff appeals. Affirmed. for the common interest or mutual benefit of appellant and appellee. Appellant did no af.

This is an action by appellant against the firmative act to compel or induce appellee to appellee, administrator of the estate of Auuse the footpath upon its right of way. It gust Peterson, deceased, to collect a claim for merely acquiesced in such use by appellee and the balance due on account of intoxicating the public. Under such circumstances, it cannot be said that there was any implied invita- | liquors sold to his intestate. tion upon the part of appellant for the use of Appellant, a licensed retail liquor dealer its right of way by appellee. Appellant, there and dramshop keeper at Poplar Bluff, Mo., fore, did not have to exercise ordinary care to sold liquors to August Peterson, appellee's inmake the pathway safe for appellee. As appellant had done nothing that could be construed testate, who resided at Corning, Ark., upon oras an invitation to appellee and the public to ders sent by Peterson to Poplar Bluff by use its right of way for a footpath, appellant mail, telegraph, and telephone. The liquors was not negligent because, in draining its right were shipped on receipt of the orders by exof way, it failed to exercise ordinary care to make and leave the footpath safe for appellee.” press and delivered to Peterson at Corning

[2] Now, in the present case there is not between the dates of October 16, 1905, and the slightest evidence to indicate that the July, 1910. An account was kept of shippathway was used in a way that an invita- ments by appellant and credit given for all tion can be implied on the part of the railway payments made. Peterson died in January, company to the public or its employés to use 1911, and appellee was appointed adminisit. The use was, at the most, merely permis- trator of bis estate. Appellant presented a sive, and those who used it were licensees, claim of balance due of $178.50 on account who took the privilege with its concomitant for liquors sold to the intestate, which was peril. Neither was there any command or disallowed, and on trial in the probate court invitation to the plaintiff to use the path for decided against appellant, and likewise on the purpose of reaching the freight train, and appeal to the circuit court. The answer in he was a mere licensee in going down there the probate court set up that the liquor was to board that train. As we have already seen, sold in violation of the law and the Missouri the company owed him no duty to furnish statute, making all sales on credit void. him a safe place to board the train at the F. G. Taylor, of Corning, for appellant. coal chute or at any place other than at the J. S. Jordan, of Corning, for appellee. station, and, when he chose to board the train at that place, he did so at his own risk. KIRBY, J. (after stating the facts

We are unable to discover any theory in above). The statute of Missouri, relied upon the law upon which plaintiff is entitled to re-in defense of the suit (section 7189, Revised cover damages, and, as the evidence is un- Statutes of 1909), is as follows: disputed, no useful purpose would be served "No dramshop keeper shall keep such shop in remanding the case for a new trial.

at more than one place at the time, nor shall The judgment is therefore reversed, and able or transferrable; and all sales made by

the license of a dramshop keeper be assignthe cause dismissed.

him on credit are declared void and of no effect, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

169 S.W.-51


and the debt thereby attempted to be created that instrument, and creates a manifest implishall not be recoverable at law."

cation that no more are to be created. The sales were made at Poplar Bluff, Mo.,

[Ed. Note.-For other cases, see Officers, where the orders for the liquor were accepted Cent. Dig. & 5; Dec. Dig. $ 4.*j

DEPARTand the shipments made, and under the laws 4. CONSTITUTIONAL LAW (& 52*)

MENTS OF GOVERNMENT-INFRINGEMENT ON of that state all sales made by a dramshop

JUDICIARY-CHANCERY JURISDICTION-ADkeeper on a credit are declared void, and MINISTRATION OF INSOLVENT BANKS. the debt attempted to be created by the sale The constitutional provision preserving the not recoverable at law. The contract, being original jurisdiction of the chancery courts does

not prevent the Legislature from entering on void in the state where made, is void every the supervision of any matters which fall with. where, and the seller cannot maintain an ac- in the police power; and hence Acts 1913, p. tion for the balance claimed to be due in this 465, authorizing the bank commissioner to take state, where the goods were finally received. charge of and administer the affairs of insolvent

banks, is not unconstitutional as infringing on 23 Cyc. 335, 337; Howcott v. Kilbourn, 44 the judiciary. Ark. 213. It is not contended that the sales [Ed. Note.-For other cases, see Constitutional were not made in Missouri, but only that Law, Cent. Dig. 88 50, 52-54, 70, 72–80, 82, they were not sales on credit, and that they 81, 85; Dec. Dig. š 52.*] were made in interstate commerce, which

Kirby, J., dissenting. cannot be regulated by a statute. Unques- Appeal from Pulaski Chancery Court; tionably the sales were made upon credit, John E. Martineau, Chancellor. for a running account was kept, showing the Action by L. I. Greer against the Mer. transactions for about five years; liquors chants & Mechanics' Bank and others being charged to the deceased, and the From an order sustaining a demurrer to the amounts paid by him credited thereon. If complaint, and from a decree in favor of dethey had been sales for cash, there could fendants, plaintiff appeals. Affirmed. have been no debt created, and, if it was the intention of the liquor dealer to sell for Little Rock, for appellant. Moore, Smith &

Carmichael, Brooks, Powers & Rector, of cash, it could make no difference in the result, since the liquors were charged upon ac- Moore, of Little Rock, for appellees. count and the payments therefor credited

McCULLOCH, C. J. [1] Appellant, in thereon. There is no question of attempted bringing this action, challenges the validity regulation of, nor interference with, inter- of an act of the General Assembly of 1913 state commerce in this case.

creating the state bank department and the The judgment is affirmed.

office of commissioner in charge of that departnent; the contention being that the act

is violative of section 9, art. 19, of the ConGREER v. MERCHANTS' & MECHANICS' stitution, which provides that: BANK et al. (No. 87.)

"The General Assembly shall have no power (Supreme Court of Arkansas. July 6, 1914.) to create any permanent state office not express1. STATES (8 44*)—STATE OFFICERS-CREATION ly provided for by this Constitution." OF OFFICE-PERMANENT OR TEMPORARY OF- The language of that part of the act which

Const. art. 19, § 9, providing that the Gen- creates the bank department reads as foleral Assembly shall have no power to create any

lows: permanent state office not expressly provided "That for and during the period of twelve for by the Constitution, did not place an abso- years from the time this act goes into effect, lute prohibition against the creation by the Leg. there is hereby created and established at the islature of offices not expressly provided for, seat of government of this state, a department but vested in the Legislature the sole right to to be known as the state bank department." determine whether work to be done by an office Section 1 of Act 113 of Acts of 1913, p. 465. to be created was permanent or temporary in Another section creates the office of bank character, so that the section could not be held to have been infringed by Acts 1913; p. commissioner, fixing the term of office at 465, § 1, creating the state bank department four years and the salary at $3,000 per year. for a period of 12 years, and providing for a Other offices are provided for in the act, bank commissioner to bold office for 4 years, such as inspectors, etc. with a specified annual salary, etc. [Ed. Note.-For other cases, see States, Cent.

Learned counsel on each side of the case Dig. $ 49; Dec. Dig. 44.*]

concede that, after diligent search, they have 2. OFFICERS (8 4*) CREATION OF OFFICE

been unable to find a similar provision in the TERM-OBLIGATION OF CONTRACTS.

Constitution of any other state, and thereWhere an office is created by the Legisla-fore have not found any discussion in the ture, it is temporary in the sense that it is sub-text-books or adjudged cases throwing any ject to the legislative will and may be abolished at any time, so that the incumbent takes with light on the question. We also have searchnotice, and his acceptance of the office creates ed in vain for authorities which throw light no contract with the state.

on the subject, and have concluded that it is [Ed. Note.-For other cases, see Officers, a question of first impression. The decision Cent. Dig. 5; Dec. Dig. § 4.*]

of the case must therefore be reached by the 3. OFFICERS ($ 4*)-STATE OFFICES—CREATION application of general principles in the in--CONSTITUTIONAL PROVISIONS.

The Constitution itself exhausts the power terpretation of this provision in its relation of creating offices which are provided for in to the whole framework of our organic law. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


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