The judgment of the court below will therefore be reversed and the cause remanded, with directions to overrule the demurrer.

MCCULLOCH, C. J., and HART, J., dissent.

Judge Sanborn, in delivering the opinion in the federal case cited above, said:

"A contract for the future delivery of personal property is void for want of consideration and mutuality if the quantity to be delivered is conditioned by the will, wish, or want of one of the parties."

We find in this contract nothing more than an undertaking on the part of the appellee to purchase all of his goods during the specified

tity nor at any price mentioned, but merely such quantity as he might desire to purchase at a price thereafter to be agreed upon-and when the test laid down in the authorities quoted from is applied, the contract is too vague and indefinite to be enforceable.

The fact that appellee afterwards purchased a certain quantity of goods from another dealer has no force in determining his liability upon the contract with appellant. The question is not how much he did purchase, but what he obligated himself to purchase from appellant.

MCCULLOCH, C. J., and HART, J. (dissenting). The parties themselves, in presenting the case here, have treated the allegations of the complaint as being no broader than the language of the contract itself, ex-year from appellant-not any specified quancept that the complaint undertakes to define what is meant by the term "furnishing trade." There can be no doubt that the rules of evidence permit the introduction of parol testimony to explain trade or commercial terms or terms which have a fixed meaning. That, however, is not the real question in this case, for, in our judgment, when the evidence is admitted explaining what the term "furnishing trade" means, the contract still falls far short of being sufficiently certain to be enforceable. The language of the contract does not sufficiently specify either the quantity or price of the goods to be sold, nor does it afford any basis for ascertaining the amount to be furnished under the contract. 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 nor a quantity sufficient to serve any use specified in the contract. Now, it is elemental in the law of contracts that one is not enforceable which does not with certainty describe the subject-matter or fix some basis upon which the scope of the subject-matter can be ascertained. The rule is stated in one of the encyclopedias as follows:

"In order to constitute a valid verbal or written contract the subject-matter of the agreement must be expressed by the parties in such terms that it can be ascertained to a reasonable degree of certainty." 7 Am. & Eng. Enc. Law,

p.

Mr. Elliott, in his commentaries on the Law of Contracts (volume 1, § 180), after stating the rule with reference to aiding by parol testimony the language of a contract, says: "However, where the amount to be furnished is not governed by the needs of a particular business or undertaking and the determining factor is altogether uncertain,, as where the purchaser is not bound to take any of the thing bargained for or is free to demand, in many instances, an unlimited amount should he desire it, the agreement is too indefinite to be upheld."

He cites authorities in support of this doctrine, among which may be consulted with profit the following: Price v. Weisner, 83 Kan. 343, 111 Pac. 439, 31 L. R. A. (N. S.) 927; Price v. Atkinson, 117 Mo. App. 52, 94 S. W. 816; Wheaton v. Cadillac Automobile Co., 143 Mich. 21, 106 N. W. 399; Price v. Stipek, 39 Mont. 426, 104 Pac. 195; City of Ft. Scott v. Eads Brokerage Co., 117 Fed. 51, 54 C. C. A. 437; Blackstone v. German Bank, 87 Md. 302, 39 Atl. 855.

The case was, in our judgment, correctly determined by the circuit judge on demurrer, and we think the case should be affirmed.

(No. 70.)

(Supreme Court of Arkansas. June 29, 1914.) 1. MASTER AND SERVANT (§ 89*) — RAILROAD

TRACK-LICENSEE.

Plaintiff, an employé of defendant railroad, having a pass permitting him to ride on all kinds of trains, including through freight trains, but not required to take that particular train, while traveling in the course of his business, and not acting upon any invitation or immediate command of his superior, in the nighttime ran down a pathway about nine feet wide between the main track and a side track to take a standing train, fell over a pile of coal which had accumulated at the chute during two or three days, was thrown under the moving train, and injured. The path was a well-beaten one, frequently used by employés and others, notwithstanding a posted warning. Held, that plaintiff was at most only a licensee who took the path to furnish him a safe place to board the train, as he found it; that the railroad was not bound and hence was not negligent in permitting the pile of coal to accumulate in the path.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. § 89.*]

2. MASTER AND SERVANT (§ 224*)—Master's LIABILITY - ASSUMPTION OF RISK-RAILROAD TRACK.

In such circumstances, plaintiff assumed the risk of boarding the train at that place. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 654; Dec. Dig. § 224.*]

Appeal from Circuit Court, White County; J. M. Jackson, Judge.

Action by Noah Pyles, a minor, by his next friend and mother, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant 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 of Little Rock, and P. R. Andrews, of Helena, for appellant. S. Brundidge, of Searcy, and J. W. & J. W. House, Jr., of Little Rock, for appellee.

McCULLOCH, C. J. The plaintiff was struck, knocked down, and seriously injured by one of the defendant's freight trains in the railroad yards at Gurdon, and he instituted this action to recover damages on account of such injuries. He was going down a pathway between the main track and a side track for the purpose of boarding a train, when he stumbled over a pile of coal, about two feet high, in the pathway, and fell under the slowly moving freight train on the main track, and one of his legs was cut off just below the knee, and the other foot was cut through just about the instep. This occurred about midnight. The pile of coal which obstructed the pathway fell from the coal chute while the men were placing coal in the engines. It was about 2,500 feet south of the station at Gurdon, and the freight train had stopped at the coal chute for the purpose of taking on coal.

the company, warning trespassers from the tracks and right of way.

Plaintiff testified that he had been to Gurdon a time or two before and had seen employés and others walking along that path. He stated also that he had seen employés get off trains down at the coal chute and walk

up to the depot along that path.

The only charge of negligence against the company is in permitting the pile of coal to accumulate in the path and in allowing it to remain there as an obstruction to those who attempted to use the path.

Plaintiff had the right to ride on through freight trains, and it cannot be said that he was not traveling on the business of the company in returning from Gurdon to Argenta. But he was not required to travel on that He was not acting under particular train. the immediate command of his superior when he undertook to board the train. While he wherever it might be found for the purpose had the right to board the freight train of riding on the company's business, the pass which enabled him to ride on through freight trains was not an invitation to board them wherever found. In other words, his right 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 foreman of his department also accompanied the cars, and plaintiff obtained permission of the foreman to leave the oil cars at Gurdon and make his way back to Argenta that night on another train without waiting for the cars to be transported the next day. Plaintiff, after getting his lunch at an eating house near the station at Gurdon, saw the freight train stop at the coal chute, and decided to go down there and board the caboose to ride to Little Rock. He had a pass which permitted him to ride on all kinds of trains, including through freight trains. He started down the track hurriedly to reach the caboose before the train moved, and, when he got nearly to the engine, the train started, and he quickened his gait, and was going, as he described it "in a trot," when he stumbled over the pile of coal and fell. The train was going very slowly when plaintiff fell, and his feet were thrust under the train, and the wheels struck him before he could extricate himself.

The evidence tends to show that the pile of coal fell from the chute and had accumulated there for a day or two. There was a space of nine feet between the main track and the passing track, and there was a wellbeaten path along there which was used by employés, and also by the public, to some extent. There was a sign there, erected by

So the fact that the plaintiff was going down the path for the purpose of boarding the train adds no strength to his cause of action, and his right to recover must exist, if at all, upon the obligation of the company to keep the path clear for the benefit of any one who saw fit to use it.

[1] Now the evidence establishes the fact that, notwithstanding the warning posted by the company, the path was a well-beaten one, and was frequently used by employés, and oftentimes by any one else who saw fit to use it. This, however, was at most only a license, which was extended, notwithstanding the warning, if the path was used openly with the acquiescence of those in charge of the yards. It is well settled, however, that a bare licensee, under circumstances of this kind, is not entitled to any affirmative act of protection on the part of the owner who grants the license. In this respect, the case stands the same as if some one else owned the premises instead of the railway company.

"The bare permission of the owner of private grounds to persons to enter upon his premises does not," said this court in the case of St. Louis, I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 S. W. 789, "render him liable for injuries received by them on account of the condition of the premises." In that case the defendant, the railway company, had erected a stile over a fence along the right

(§ 326*)-SALE ON CREDIT ENFORCEMENT INTERSTATE COMMERCE - FOREIGN STAT

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 ($ 60*) - INTOXICATING LIQUORS vited the public to use the steps, and there was enough evidence to show such an invitation, and the company was held liable, but in doing so this court unqualifiedly laid down the rule that the granting of a mere license to use a way through an owner's premises does not imply an obligation to keep the same in repair.

The same principle was announced by this court in the recent case of Chicago, Rock Island & Pacific Ry. Co. v. Payne, 103 Ark. 226, 146 S. W. 487, 39 L. R. A. (N. S.) 217. There the public had been permitted to use, with the acquiescence of the company, a road or path along the right of way, and negligence was ascribed in allowing a ditch across the right of way to get out of repair, on account of which the plaintiff was injured while attempting to pass along. The court said:

UTES.

Rev. St. Mo. 1909, § 7189, provides that all sales of liquor made by a dramshop keeper on credit are declared void and of no effect, and that the debt thereby attempted to be created shall not be recoverable at law. Held that, where intestate in Arkansas ordered liquor from a licensed dramshop keeper in Missouri, who kept a running account thereof, showing transactions for over five years, liquors being charged to intestate, and the amounts paid by him credited thereon, there was no attempted regulation of nor interference with interstate commerce, and the seller could not establish a claim for a balance due on account against the buyer's estate in Arkansas.

[Ed. Note. For other cases, see Commerce, Cent. Dig. §§ 91-95; Dec. Dig. § 60; Intoxicating Liquors, Cent. Dig. § 469; Dec. Dig. § 326.*]

Appeal from Circuit Court, Clay County; W. J. Driver, Judge.

Action by D. G. Landrum against S. P. Lindsey, as administrator of the estate of August Peterson, deceased. Judgment for defendant, and plaintiff appeals. Affirmed. This is an action by appellant against the appellee, administrator of the estate of August Peterson, deceased, to collect a claim for the balance due on account of intoxicating liquors sold to his intestate.

Appellant, a licensed retail liquor dealer and dramshop keeper at Poplar Bluff, Mo., sold liquors to August Peterson, appellee's intestate, who resided at Corning, Ark., upon orders sent by Peterson to Poplar Bluff by mail, telegraph, and telephone. were shipped on receipt of the orders by exThe liquors press and delivered to Peterson at Corning between the dates of October 16, 1905, and July, 1910. An account was kept of shipments by appellant and credit given for all Peterson died in January,

"The undisputed evidence shows that appellee was a mere or bare licensee. She was using the footpath upon appellant's right of way for her own convenience, and not for any purpose connected with the business of appellant or for the common interest or mutual benefit of appellant and appellee. Appellant did no affirmative act to compel or induce appellee to use the footpath upon its right of way. It merely acquiesced in such use by appellee and the public. Under such circumstances, it cannot be said that there was any implied invitation upon the part of appellant for the use of its right of way by appellee. Appellant, therefore, did not have to exercise ordinary care to make the pathway safe for appellee. As appellant had done nothing that could be construed as an invitation to appellee and the public to use its right of way for a footpath, appellant was not negligent because, in draining its right of way, it failed to exercise ordinary care to make and leave the footpath safe for appellee." [2] Now, in the present case there is not the slightest evidence to indicate that the pathway was used in a way that an invitation can be implied on the part of the railway payments made. 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 his 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 peril. Neither was there any command or invitation to the plaintiff to use the path for the purpose of reaching the freight train, and he was a mere licensee in going down there to board that train. As we have already seen, the company owed him no duty to furnish him a safe place to board the train at the coal chute or at any place other than at the station, and, when he chose to board the train at that place, he did so at his own risk. We are unable to discover any theory in the law upon which plaintiff is entitled to recover damages, and, as the evidence is undisputed, 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.

for liquors sold to the intestate, which was disallowed, and on trial in the probate court decided against appellant, and likewise on appeal to the circuit court. The answer in the probate court set up that the liquor was sold in violation of the law and the Missouri statute, making all sales on credit void.

F. G. Taylor, of Corning, for appellant. J. S. Jordan, of Corning, for appellee.

as

KIRBY, J. (after stating the facts above). The statute of Missouri, relied upon in defense of the suit (section 7189, Revised Statutes of 1909), is as follows:

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."

see Officers,

cation that no more are to be created.
[Ed. Note.-For other cases,
Cent. Dig. § 5; Dec. Dig. § 4.*1
4. CONSTITUTIONAL LAW (§ 52*)
MENTS OF GOVERNMENT-INFRINGEMENT ON
JUDICIARY-CHANCERY JURISDICTION-AD-
MINISTRATION OF INSOLVENT BANKS.

DEPART

The constitutional provision preserving the original jurisdiction of the chancery courts does not prevent the Legislature from entering on the supervision of any matters which fall within the police power; and hence Acts 1913, p. 465, authorizing the bank commissioner to take charge of and administer the affairs of insolvent banks, is not unconstitutional as infringing on the judiciary.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 50, 52-54, 70, 72-80, 82, 84, 85; Dec. Dig. § 52.*]

Kirby, J., dissenting.

The sales were made at Poplar Bluff, Mo., where the orders for the liquor were accepted and the shipments made, and under the laws of that state all sales made by a dramshop keeper on a credit are declared void, and the debt attempted to be created by the sale not recoverable at law. The contract, being void in the state where made, is void everywhere, and the seller cannot maintain an action for the balance claimed to be due in this state, where the goods were finally received. 23 Cyc. 335, 337; Howcott v. Kilbourn, 44 Ark. 213. It is not contended that the sales were not made in Missouri, but only that they were not sales on credit, and that they were made in interstate commerce, which cannot be regulated by a statute. Unquestionably the sales were made upon credit, for a running account was kept, showing the Action by L. I. Greer against the Mertransactions 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 cash, it could make no difference in the result, since the liquors were charged upon account and the payments therefor credited thereon. There is no question of attempted regulation of, nor interference with, interstate commerce in this case.

The judgment is affirmed.

GREER v. MERCHANTS' & MECHANICS'
BANK et al. (No. 87.)

(Supreme Court of Arkansas. July 6, 1914.)
1. STATES (§ 44*)-STATE OFFICERS-CREATION
OF OFFICE-PERMANENT OR TEMPORARY OF-
FICE.

Const. art. 19, § 9, providing that the General Assembly shall have no power to create any permanent state office not expressly provided for by the Constitution, did not place an absolute prohibition against the creation by the Legislature of offices not expressly provided for, but vested in the Legislature the sole right to determine whether work to be done by an office to be created was permanent or temporary in character, so that the section could not be held to have been infringed by Acts 1913; p. 465, 81, creating the state bank department for a period of 12 years, and providing for a bank commissioner to hold office for 4 years, with a specified annual salary, etc.

[Ed. Note.-For other cases, see States, Cent. Dig. § 49; Dec. Dig. § 44.*]

2. OFFICERS (§ 4*) CREATION OF OFFICE TERM-OBLIGATION OF CONTRACTS.

Where an office is created by the Legislature, it is temporary in the sense that it is subject to the legislative will and may be abolished at any time, so that the incumbent takes with notice, and his acceptance of the office creates no contract with the state.

[Ed. Note.-For other cases, see Officers, Cent. Dig. § 5; Dec. Dig. § 4.*]

3. OFFICERS (§ 4*)-STATE OFFICES-CREATION

-CONSTITUTIONAL PROVISIONS.

The Constitution itself exhausts the power of creating offices which are provided for in

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor.

Carmichael, Brooks, Powers & Rector, of

Little Rock, for appellant. Moore, Smith &
Moore, of Little Rock, for appellees.

MCCULLOCH, C. J. [1] Appellant, in bringing this action, challenges the validity of an act of the General Assembly of 1913 creating the state bank department and the office of commissioner in charge of that department; the contention being that the act is violative of section 9, art. 19, of the Constitution, which provides that:

"The General Assembly shall have no power to create any permanent state office not expressly provided for by this Constitution."

The language of that part of the act which creates the bank department reads as fol

lows:

"That for and during the period of twelve years from the time this act goes into effect, there is hereby created and established at the seat of government of this state, a department to be known as the state bank department." Section 1 of Act 113 of Acts of 1913, p. 465.

Another section creates the office of bank

commissioner, fixing the term of office at four years and the salary at $3,000 per year. Other offices are provided for in the act, such as inspectors, etc.

Learned counsel on each side of the case

concede that, after diligent search, they have been unable to find a similar provision in the Constitution of any other state, and therefore have not found any discussion in the text-books or adjudged cases throwing any light on the question. We also have searched in vain for authorities which throw light on the subject, and have concluded that it is a question of first impression. The decision of the case must therefore be reached by the application of general principles in the interpretation of this provision in its relation 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