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Commission, in force at the time of the shipment, was 131⁄2 cents per hundred pounds. It was held by the trial and Supreme Courts of Kentucky in that case that the railroad was responsible to the Henderson Elevator Company for any loss sustained by it brought about by the railroad company's failure to have posted or on file in its office in Henderson, Ky., its freight tariff rate in question or on account of a misquotation of said freight tariff rate by its agent. Mr. Chief Justice White, in reviewing the case, said for the Supreme Court of the United States:

"It is to us clear that the action of the court below in affirming the judgment of the trial court, and the reasons upon which that action was based, were in conflict with the rulings of this court interpreting and applying the act to regulate commerce. New York Cent. R. R. v. United States (No. 2) 212 U. S. 500, 504 [29 Sup. Ct. 309, 53 L. Ed. 624]; Texas & Pacific R. R. Co. v. Mugg, 202 U. S. 242 [26 Sup. Ct. 628, 50 L. Ed. 1011]; Gulf Railroad Co. v. Hefley, 158 U. S. 98 [15 Sup. Ct. 802, 39 L. Ed. 910]. That the failure to post does not prevent the case from being controlled by the settled rule established by the cases referred to is now be yond question. Kansas City So. Ry. Co. v. Albers Comm. Co., 223 U. S. 573, 594(a) [32 Sup. Ct. 316, 56 L. Ed. 556]."

Following the case of Illinois Central Railroad Co. v. Henderson Elevator Company, supra, the judgment in the instant case must be reversed. It seems that the case has been fully developed, and, under the undisputed facts, appellant is entitled to recover a judgment of $53.60, with interest thereon at the rate of 6 per cent. per annum from the date of the shipment until paid, for undercharges in freight charges on five carloads of lumber shipped from Calico Rock to Springfield, Mo.

Accordingly, the judgment is reversed, and the clerk is directed to render judgment here in favor of appellant against appellee for said amount.

Appeal from Cleburne Chancery Court; Geo. T. Humphries, Chancellor.

Action by the Inland Construction Company against S. B. Rector and others, Commissioners of Waterworks and Sewer Improvement District No. 1 of Heber Springs, Ark. From decree for defendants on their cross-complaint, plaintiff appeals. Affirmed.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, and Lemuel H. Doty, of Memphis, Tenn., for appellant.

Geo. W. Reed, of Heber Springs, and Williams & Seawel, of Yellville, for appellees.

MCCULLOCH, C. J. This is the reappearance here of a case reported in 202 S. W. 712, where the facts are fully set forth. We decided, when the case was here on the former appeal, that appellant had not complied with its contract with appellee, an improvement district for the construction of waterworks and sewers in Heber Springs, with respect to the construction of the two concrete storage reservoirs provided for in the contract, and with respect to certain other items in the contract, and we reversed the decree and remanded the cause with directions to the court to ascertain the addi

tional cost of complying with the contract in those respects and to render a decree in favor of appellee for the amount so found. In announcing the findings of fact and in declaring the law applicable thereto, we

said:

"There is a conflict in the testimony as to whether it is really necessary to use reinforcing material of that kind, and whether or not the use of ordinary fencing wire was sufficient to give the floors and walls of the reservoirs sufficient strength. Some of the engineers who testified on the subject say that concrete work of that kind will not withstand the required pressure without being reinforced as specified in the contract, while others say that the use of the wire is just as good. Conceding that it is very uncertain that the concrete work will prove to be defective on account of the use of insufficient reinforcement, and that it may fully serve the purposes intended and afford

INLAND CONST. CO. v. RECTOR et al., safe receptacles for the water to be stored from

Com'rs. (No. 22.)

LAW OF

year to year, still the improvement district contracted for the use of a certain kind of material, and it is no answer to say that something has been furnished which may prove to be just as good and sufficient for the purpose. Where tain kind of material, a contractor has no right there is a specific agreement for the use of certo depart from that specification on the ground that he is furnishing something just as good. In other words, the contracting party is entitled to have what he calls for in his contract. The substitution of reinforcing material was, according to the testimony, a substantial de

(Supreme Court of Arkansas. Dec. 9, 1918.) APPEAL AND ERROR 1099(3) CASE-OPINION ON PRIOR APPEAL. Declaration on appeal in contractor's suit for construction of reservoirs, water district counterclaiming for breach, that contractor could not escape liability though its departure from contract resulted in work as good as spec ified, etc., together with directions given trial court on reversal merely to ascertain cost of reconstructing work, held law of case on sec-parture from the specification of the contract, ond appeal, not to be departed from. and that departure from the contract was entirely unauthorized."

Wood and Smith, JJ., dissenting.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 207 S.W.-3

Directions to the lower court on the remand of the cause were given in the following language:

"The decree will be reversed, but we are unable to ascertain from the testimony the cost of reconstructing the two storage reservoirs, and of constructing the cover for the Imhoff tank and the other items specified above as not being in compliance with the contract, so it will be necessary to remand the cause for further proceedings. It is ordered that the decree be reversed, and the cause remanded, with directions to hear further proof as to the cost of completing the contract with respect to the items mentioned above, and to enter a decree in favor of appellees against appellants for the amount of such cost after allowing appellants credit for the balance due on the contract prices."

On the remand of the cause, the court heard additional testimony and found that the cost of tearing down and reconstructing the two reservoirs would be the sum of $8,480, and rendered a decree against appellant accordingly, after allowing such credits which we decided on the former appeal that the latter was entitled to. We declared in the former opinion that the contract had not been complied with and gave directions to the lower court to ascertain the cost of compliance and to render judgment in accordance with the findings. What was said in the former opinion, together with the directions given therein, constitutes the law of the case, and we are not at liberty to depart from it now on the second appeal.

Appellee directed its proof entirely to the issue as to the cost of reconstructing the reservoirs in accordance with the contract, and the proof thus adduced was sufficient to show that it would cost the sum of $8,480 to do the work. The testimony introduced by appellant also shows that the cost of tearing down the old reservoirs and rebuilding new ones in accordance with the terms of the contract would cost $8,480, or more; but appellee also introduced expert witnesses whose testimony shows that there could be constructed around the old reservoirs at a cost of $2,950 concrete belts properly reinforced which would make the tanks as serviceable and durable and as useful for the purposes specified in the contract as if the same had been originally constructed in the manner specified in the contract. Learned counsel for appellant now insist that that proof is undisputed and that, since the expenditure of the sum of $2,950 would construct reservoirs equally as serviceable and durable as those specified in the contract, the measure of recovery should be limited to that sum. The difficulty with that contention is that it is in the face of the law as declared by this court on former appeal. We said, in effect, when the case was here before, that appellant could not escape lia

bility even though its departure from the contract resulted in work which was equally as good as that specified in the contract, and that reinforcing material used constituted a substantial departure from the terms of the contract, and we reversed the cause with directions to the lower court to ascertain the cost of reconstructing the work as specified in the contract.

We did

It is unnecessary to cite authorities to show that this court is bound by its former decision in the same case, which has become, so to speak, the law of the case. not remand the cause for new testimony on the issue whether or not the contract had been complied with, nor as to what it would cost to substitute some other form of work which would be equally as good as that specified in the contract; but we confined the issue on the further hearing to the ascertainment as to what the cost would be of compliance with the contract as defined in the former opinion.

The chancery court followed those directions on the remand of the cause, and the decree is in accordance with the preponderance of the testimony.

The decree is therefore affirmed.

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SMITH, J. Bailey & Co., the appellants, by this suit seek to charge the Veneer Company as acceptors of an inland bill of exchange. It is not contended that the acceptance was in writing, as required by section 132 of the Negotiable Instrument Act (Acts 1913, p. 260). But it is insisted that after the bill was verbally accepted it was will

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

fully destroyed. Upon a former trial a verdict was directed in favor of the Veneer Company, which was reversed by us upon appeal. Bailey & Co. v. Southwestern Veneer Co., 126 Ark. 257, 190 S. W. 430.

The opinion in that case recited the facts to be that the testimony showed an oral acceptance and the unexplained destruction of the bill of exchange, and the opinion applied the law to the facts of that case. But apon the remand and retrial of the cause the court below interpreted our opinion to

mean that there must be both a verbal acceptance and a willful destruction of the bill to fix liability thereon, and so charged the jury. This was error, and the judgment must be reversed on that account.

The opinion on the former appeal recognized the fact that a verbal acceptance was not sufficient, as the statute so provides, but it was pointed out that the statute also provides that the drawee who destroys a bill will be deemed to have accepted the same. In the former opinion we said:

"An accidental destruction of the bill could not amount to an acceptance, but a willful destruction of the bill would. Under all the cir

cumstances in this case, we are of the opinion that the question of fact as to whether the order was destroyed should have been submitted to the jury under proper instructions."

At the trial from which the present appeal is prosecuted, there was testimony to the effect that appellee had agreed to accept the order only to the extent to which it was indebted to the drawer of the bill, that sum being less than the face of the bill, and that after this limited acceptance the bill was accidentally lost by it. As this acceptance was not in writing, the cause should have been submitted only on the question of the intentional destruction, but the right to recover upon a finding that the bill had been willfully destroyed should not have been conditioned upon the additional finding that it had also been verbally accepted. Reversed and remanded.

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MCCULLOCH, C. J. The plaintiff, Simon Brame, asserts that he was employed by the defendant, A. J. Neimeyer Lumber Company, to work in the latter's lumber mill near Little Rock, and that while performing service in the course of the employment he received personal injuries, caused by the negligence of defendant, and he instituted this action by next friend against the defendant to recover compensation for his injuries.

The defendant, in its answer, denied that the plaintiff was in its employment at the time of his injury, or that there was any negligence on the part of the company which

A. J. NEIMEYER LUMBER CO. v. BRAME. caused or contributed to the injury, but that

(No. 23.)

(Supreme Court of Arkansas. Dec. 9, 1918.)
1. MASTER AND SERVANT 286(10)—INJU-
QUESTION

RIES TO SERVANT-NEGLIGENCE
FOR JURY.

In an action by a servant for injuries occasioned by catching hand between cable and bull wheel, whether master was negligent in the piling of lumber in the vicinity held for the jury. 2. MASTER AND SERVANT 288(11)-ASSUMPTION OF RISK-QUESTION for Jury.

plaintiff's injury resulted from his own negligent acts while loitering about the mill shed. Defendant also pleaded assumption of risk on the part of the plaintiff, which prevented recovery of damages.

Plaintiff's injury occurred by getting his hand caught between a wire cable and the wheel over which it revolved. The injury was a severe one, and the jury awarded damages in a very substantial amount. The wire cable was part of a system used in conveying lumber from the dry kiln to the dry shed, In an action by boy of 16 for personal inju- f the purpose of distributing the lumber ries, whether plaintiff assumed risk in attempt- in the stalls. The shed is about 600 feet

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

warrant the jury in finding that there was negligence in this respect, which entitled plaintiff to recover if his injury occurred in the way in which he described it.

long, and the cables run the full length there- making the passageway between the front of of. The bull wheels, over which the cables the stalls and the cable platform unsafe by revolve, are situated at the extreme end of stacking lumber there insecurely. If, as conthe shed away from the dry kiln. There are tended by plaintiff, the stacks of lumber were four cables in each system, several feet loosely piled and high enough to be struck apart, and the lumber is loaded on these by pieces of timber conveyed by the cables, cables and conveyed through the shed, and and that this rendered the narrow passageunloaded, as it passes through, for the pur-way between the piles of lumber and the capose of putting it in the stalls. There are ble platform unsafe for the use of employés two sets of the cables, each set containing in discharging their duties, then it would four cables, and one set is used for carrying off two-inch lumber, and the other set for carrying off one-inch lumber. The stalls for the lumber under the shed face the sides of the set of cables used in conveying the lumber; there being a space of several feet between the edge of the platform, along which the cables run, and the front of the stalls. The contention of the plaintiff, supported by his own testimony, is that he was walking along between the cable platform and the stalls, when a large piece of timber, being passed along by the cable, struck a pile of lumber, about four feet high, lying against the front of the stalls, and knocked down this pile of lumber, which struck plaintiff and pushed him over against the bull wheel, and that in this way his fingers were caught

between the cable and the rim of the wheel. Plaintiff testified that he had been working in other parts of the mill, but on the day the injury occurred he was laid off by his foreman, and was later employed by the shed foreman, who directed him to act as water boy, and that he was walking down through the shed under the orders of the foreman; the latter walking down the passageway about 25 feet ahead of him. The allegation of the complaint is that the defendant was negligent in laying insecure piles of lumber in front of the stalls, thus narrowing the passageway between the piles of lumber and the cable, and that the injury was caused by reason of the insecurely piled lumber, which toppled over when struck by the piece of lumber being conveyed along the cables. The testimony shows that plaintiff was a boy about 16 years of age, but had been working at the mill for some time.

There are numerous assignments of error with respect to the rulings of the court in giving instructions at plaintiff's request, and we are of the opinion that several of those assignments are well founded. The following instructions were given at plaintiff's request, and over defendant's objection:

"(1) If you find from the evidence that Isaiah Williams employed Simon Brame, and, after such employment, the plaintiff was injured on account of negligence on the part of the employés of defendant, or their failure in using place in which plaintiff was to work, or enter reasonable care to provide a reasonably safe upon his work, then you will find for the plain

tiff.

"(2) If you find from the evidence that defective conditions existed in close proximity to the bull wheel, and thereby was the direct and proximate cause of injury to the plaintiff, and if you find that he was under the instructions, orders, was led into a place of unsafety, and was thereor commands of the foreman or boss, plaintiff by injured, it is your duty to find for plaintiff.

"(3) If you find from the evidence that plaintiff was obeying his foreman or boss, and was tripped or thrown by a piece of timber, which moved suddenly into the path of travel of plaintiff, which he could not have reasonably known was about to trip him, or fall against him, or against him, and he was thereby injured, you was negligently piled in plaintiff's path, and fell will find for the plaintiff."

"(5) If you find from the evidence that the plaintiff's path of travel and the place of work of the plaintiff was obstructed by lumber being carelessly and negligently stacked, and the duties of the plaintiff to his master required him ber, and by reason of the improper manner in to pass by, in, and about the overstacked lumwhich said lumber was piled or stacked, if you find it was carelessly and negligently stacked, fell against and threw or knocked the plaintiff against said lumber, causing him to be thrown into the said dangerous machinery operated negligently, without care and without protection, if you find it was negligently operated, which refind for the plaintiff." sulted in the injuries to the plaintiff, you will

The contention of the defendant is that plaintiff was not employed at all at the mill that day, but had been laid off from his work, and was loitering in the dry shed, and was amusing himself by riding the cables, when he fell, and his hand was caught in between the cable and the rim of the bull wheel. [1] There is a general allegation in the complaint that the machinery was defective, but we think that there is no proof to sustain that allegation. It is earnestly insisted by counsel for defendant that the proof does not sustain any of the allegations of negligence, but after careful consideration we are of the opinion that there was sufficient testimony | ble length of time, and was familiar with the to warrant a submission to the jury of the charge of negligence of the defendant in

[2] Instruction No. 1 was erroneous in excluding the question of assumed risk. Plaintiff was a boy about 16 years of age, but he had been working at the mill a considera

situation and the methods of work there. The piles of lumber under the dry shed and

For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.

the passageway between them and the cable | ed down, or thrown down, by the force of platform were things that were open and the pile of falling lumber. The court erred, obvious to the plaintiff as he passed along therefore, in admitting the testimony, and in through the shed, and, according to the set- refusing to give the instructions excluding it tled principles of law, notwithstanding his from the consideration of the jury. youth, if he was fully aware of the situation and appreciated the danger, he is deemed to have assumed the risk, Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407, 119 S. W. 828. The state of the testimony was such that the jury might have found that the plaintiff assumed the risk, and that question should not have been excluded from the consideration of the jury, as was done by the court in instruction No. 1, which told the jury, in substance, that if the plaintiff was employed by the defendant and received in. juries by reason of the negligence of the defendant in failing to exercise care to provide a reasonably safe place, the defendant would be responsible for the injury.

[3] Instruction No. 2 was open to the same objection, but it is also erroneous, in that it permits a finding against the defendant without negligence being proved. It tells the jury in substance that if plaintiff was injured by being "led into a place of unsafety," where there was a defective condition "in close proximity to the bull wheel," then the plaintiff would be entitled to recover, and the instruction does not submit the issue of negligence to the jury at all.

Instruction No. 3 is also open to both of the objections just referred to. It omits all reference to the question of assumption of risk, and also allows recovery by the plaintiff without proving negligence. It tells the jury that, if plaintiff was obeying his foreman and was thrown down by a piece of timber which moved suddenly into his path of travel, his right to recover was established, even though there was no negligence.

Instruction No. 5 is erroneous in failing to submit the question whether or not plaintiff was employed to work at the mill that day. The answer tendered an issue on that point, and there was a sharp conflict in the testimony. This instruction was also erroneous, in ignoring the question of assumed risk.

Other instructions were open to the same objections as herein set forth, but it is unnecessary to make further reference to them.

[4] Testimony was introduced over the objection of defendant tending to show that the floor around the cable platform and bull wheel was cupped up and uneven, and defendant requested the court to give an instruction excluding that evidence from the consideration of the jury, on the ground that there was nothing to show that it had anything to do with plaintiff's injury. We think that this assignment of error is well founded, for the testimony of plaintiff does not show that he stumbled or fell by reason of the condition of the floor, but that he was knock

BROWN et al. v. McGEHEE. (No. 31.) (Supreme Court of Arkansas. Dec. 9, 1918.) 1. SALES 52(7) REPRESENTATIONS OF

SELLER-EVIDENCE.

In an action on the purchase-money note of an automobile and to foreclose a mortgage securing it and to enforce a vendor's lien on the car, evidence held to show that the seller induced the purchaser to buy the automobile on tion and fit for service, whereas the car was false representations that it was in good condi

worthless.

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HUMPHREYS, J. Appellee instituted suit in the Crawford chancery court on November 27, 1917, against appellants, to recover judgment on a note for $600 and interest, executed by them on May 6, 1916, for the purchase price of an automobile; to foreclose a mortgage given on a lot in the town of Alma, Ark., to secure payment of the note; and to enforce a vendor's lien on the automobile for any balance due after subjecting the lot to the payment of the debt.

Appellants filed answer and cross-bill, in which they admitted the purchase of the automobile and the execution of the note and mortgage; but set up as a defense thereto, and for affirmative relief thereon, that the note and mortgage were obtained by appellee through the fraudulent misrepresentation of the condition of the automobile sold to them and the purposes for which it could be used.

The cause was heard upon the pleadings and evidence, upon which a judgment was rendered against appellants for $600 with

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