AGENCY-AGENT TRANSCENDING HIS AUTHORITY SALE BELOW PRESCRIBED RATES-NOTICE TO PURCHASER-BILL RENDERED-LIABILITY OF PURCHASER -WAIVER OF TORT-EFFECT.

ROGERS v. HOLDEN.

Supreme Judicial Court of Massachusetts, July 1, 1886.

1. A contract between a purchaser of goods and the agent of the seller, by which such agent agrees to let the buyer have the goods below the price to which he is limited by his agency, the buyer being apprised of the limit, is not binding upon the agent's principal.

2. When a bill for goods sold is rendered to the buyer, and he makes no seasonable protest against the prices charged, he is bound by those prices.

3. When a plaintiff has an option of suing in tort, or upon contract, waiving the tort, by taking the latter course he does not ratify the acts of his agent done in excess of his authority, and known to the defendant to be in excess of such authority.

STATEMENT OF THE CASE.-The facts were, that the plaintiff's agent sold to defendant certain goods at rates below the prices at which he was authorized to sell, agreeing with the defendant that he himself would make good the deficit. He was paid the reduced price, but did not make good the deficit, for which the sellers, after having sent a bill of the goods, sued the buyer. Further facts appear in the opinion of the court.

GARDNER, J., delivered the opinion of the court:

The defendants contend that, upon the report of the auditor, the plaintiffs cannot recover in contract; that there were two courses open to them, one to ratify and adopt the contract of their agent and the prices he had made, the other to repudiate the contract and replevy the goods, or sue for their value in trover. The law is clear that, if the plaintiffs' property was sold by a person, assuming to act for them, but without authority, and the plaintiffs waive the tort and ratify the contract in an acțion against the purchaser, they must ratify it as the agent made it. Brigham v. Palmer, 3 Allen, 450.

The case finds that Norris was employed by the plaintiffs, as their traveling agent, to sell their goods at prices not less than the so-called "minimum prices," and that the several defendants, from the commencement of their dealings with Norris, not only knew that he was the plaintiffs' agent, but they "had notice at the time of the sales of the several bills of goods to them, and at the times of settlement therefor, of the limitations of the authority of Norris, the plaintiffs' agent, to sell at prices not less than the so-called minimum prices."

The transaction between the defendants and Norris and the plaintiffs were as follows: Norris, the agent, made a schedule or order of the goods

wanted by defendants, and the minimum prices were marked thereon: at the same time it was agreed between the defendant and Norris, that defendants should settle the bills at prices then agreed upon between them, and not according to the prices stated in the order; Norris sent the order to the plaintiffs at Boston, who shipped the goods ordered to the defendants, charged them in their books with the amount of goods shipped, at the prices stated in the order, and at the same time sent to the defendants, by mail, a bill of the goods sent, containing a description of the goods shipped, and prices corresponding to the description, and prices stated in the order by them received from Norris. After the defendants had received the goods, and the next time Norris went to the defendants' store, he settled the bill according to the prices agreed upon at the time the orders were given, and at less than the minimum prices, and receipted the bill in full sent by plaintiffs to defendants. He then informed the plaintiffs that he had collected of the defendants a certain sum of money, the sum so stated being equal to the full amount, when in fact he received a less sum. The plaintiffs thereupon credited the defendants with the amount paid, as stated by Norris, and charged Norris with the money which he reported he had received. There were more than one hundred of these orders, and the transaction was substantially the same in each, The plaintiffs had no knowledge of the private agreement between the defendants and Norris.

There is sufficient evidence in these transactions to show that Norris and the defendants combined together to deceive the plaintiffs, and that this was done by means of a pretended contract. The defendants ordered goods of the plaintiffs at a certain price, which they did not intend to pay, and permitted the plaintiffs to charge them with the goods, and send them bills for the same at prices which they had agreed with Norris should not be paid. The plaintiffs now have the right to insist upon the execution of the contract which the defendants have by implication made. They ordered the goods at the minimum prices; when the goods arrived and the bills with them, charging the defendants with the goods at the prices at which they were ordered, they did not refuse to receive the goods, nor did they notify the plaintiffs of any mistake in the price. By remaining silent, while the numerous bills were sent to them, they have impliedly ratified the sale of the goods, by the plaintiffs at the prices named in the bills. Bearce v. Bowker, 115 Mass. 129. The defendants say, we did not make this contract, although we knew that Norris ordered the goods for us at the minimum prices. and although we received the bills of the goods at the same prices at which they were ordered, and we have remained silent ever since, yet we made an agreement with Norris, which he knew he was not authorized to make, to buy the goods at a less price. We think that the defendants cannot set up this agreement for the

purpose of denying the contract which the law says exists between them. They will not be permitted to take advantage of their own wrong for their own benefit. Hill v. Perrott, 3 Taunt. 274; Walker v. Davis, 1 Gray, 506.

The cases at bar are not to be confounded with Jones v. Hoar, 5 Pick. 285; Brigham v. Palmer, ubi supra; Berkshire Glass Co. v. Wolcott, 2 Allen 227, and other cases of that class, cited by the defendants for the purpose of showing that the plaintiffs cannot waive the tort and sue in contract, unless they bring their action upon the contract made by the agent Norris with the defendants. The cases at bar have in them an element which is wanting in all the above-cited cases. It is this, that the defendants knew that the agent Norris had no authority to make the contract which he attempted to make with them; that the agreement between them was a transaction to obtain the goods from the plaintiffs at a less price than they were willing to sell them. It brings the plaintiffs' cases directly within that of Hill v. Perrott, ubi supra.

In the note to Jones v. Hoar, above cited, containing the opinion given in that case by Judge Strong, in the court of common pleas, a clear distinction is made between the case of Hill v. Perrott and those sustaining the doctrine contended for by the plaintiffs. In that case, Perrott had procured the delivery of the goods upon a pretended sale to one Dacosta, under the impression that the defendant was to be his surety, but the whole was a "swindling transaction" to enable the defendant to get possession of the goods. The court held that the law would imply a contract to pay for the goods on the part of the defendant, and that he could not be permitted to control this implication by setting up the sale to Dacosta, which he had himself procured, because no man can take advantage of his own fraud. Judge Strong, in his opinion, which met with the approval of the court, says: "Although the plaintiff, on account of the fraud of the defendant, might perhaps consider him as a trespasser, yet as the transaction assumed the form of contract by the acts of the defendant himself, and the goods went from the possession of the plaintiff by his consent and through the form of a sale, if the plaintiff chose to consider it as a sale, I do not see how it would be competent to the defendant to dispute it. . . . It may be considered as belonging to a class of cases where the plaintiff may maintain assumpsit on account of some act of the defendant which varies it from the common cases of tort,and authorizes an action as upon a contract."

Upon the facts disclosed in the case at bar, we think the plaintiffs are entitled to maintain their actions in contract.

2. The defendants contend that the plaintiffs cannot recover in any form of action-clearly not in contract-because the account between the plaintiffs and defendants is balanced and closed, and the debt in suit stands charged upon the

plaintiffs' books to Norris. It appears that, wheu Norris received the money for the goods sold, he informed the plaintiffs, usually by mail, that he had collected of the defendants a certain amount. The facts, which have already been stated, the auditor found, cannot be regarded as payment for these bills in full, as the plaintiffs made these entries in their books in ignorance of the real facts, and they have never had a final settlement with Norris. These charges and credits were apparently a convenient way of keeping the account with Norris, and were never intended as a transaction in the nature of a novation. We think that the auditor was correct in his finding.

3. The defendants also deny that the plaintiffs can recover for boxes, barrels, crates, packing and carting. The auditor's report does not set out the evidence; it finds the facts only. He finds that these charges were on all the bills sent with the goods to the defendants, and also that they were made in accordance with the customs of Boston merchants. We see nothing inconsistent in this finding by the auditor as matter of law.

4. The defendants further contend that, the plaintiffs cannot recover upon the items that did not accrue within six years before suing out the plaintiffs' writ. The auditor has allowed all the items, and he has found no fact in conflict with his conclusion. He has not reported the evidence, and his conclusion is, therefore, final. This disposes of all the exceptions argued by the defendants.

Judgment on the verdict.

erty at the time when, and market where, such account was rendered. Galbreath v. Epperson S. C. Tenn., June 10, 1886. 1 S. W. Rep. 157.

2. CARRIER-Of Goods-Connecting Lines-Liability beyond Terminus-Through Contract-Bill of Lading-Contract for Through Carriage-Offer.When a carrier receives goods marked to a place beyond the terminus of his own line, without more, or without any further or special contract, he is only liable to carry safely to the end of his own route, and deliver to the next carrier on the usual route. Bill of lading, with condition on the back, limiting liability to defendant's own road, if goods are deliverable to a point beyond, upon notice to next carrier of readiness to deliver to them, is not evidence of a through contract. An offer by a common carrier to take car-load lots of peas from N. to P. at 25 cents per 100 pounds is not an offer to carry from N. to P., but only to take the goods for carriage to the end of the defendant's own route, and then deliver them to the next carrier to forward. Harris v. Grand Trunk etc. Co. S. C. Rh. Is. July 17, 1886. 5 Atl. Rep. 305.

3.

Of Goods-Express Company-Loss-Act of God-Notice of Loss-Must be Given When.An express company, as a common carrier of money and valuables, is not liable for losses resulting from the "act of God, the public enemy, mobs, riots," etc., unless it expressly insures against such losses in the contract of consignment. Under such circumstances, an express company, not being liable, is entitled to no notice whatever of the loss. In all cases of loss other than such as result from the "act of God," etc., the carrier, being liable therefor, is entitled to actual notice of loss within 30 days after receiving the consignment, in order that he may be seasonably enabled to trace the missing property. Southern Express Co. v. Glenn, S. C. Tenn., June 5, 1886. 1 S. W. Rep. 102.

4. CORPORATION.-Garnishment- Debt due by, to employe,beyond State,not Subject to Garnishment. -A debt due by a foreign corporation to one of its employes at the place of its domicile, not being within the jurisdiction of our courts, can not be reached and subjected by a creditor here, by process of garnishment against the corporation. In rendering the opinion of the court,stone,C.J. said: "Garnishment, like attachment, is a species of proceeding in rem.It acquires jurisdiction of the person pro hac vice, by seizing his property,goods,or choses in action. If it cannot acquire jurisdiction or control of the res, it needs must fail to acquire, through such res, jurisdiction of the person: for jurisdiction of the person is acquired only through the res, or thing. The debt in this case was contracted in Kentucky, for a corporation and by a laborer, each resident in the State of Kentucky. The situs of a debt, in the absence of stipulation to the contrary, is the domicil of the creditor. A court in Alabama cannot obtain legal control of the res, or make any binding disposition of it; for process of attachment under our statute can not change rights of property situated without the State.

We

hold that situated as these parties were, the debt sought to be condemned by process of garnishment could not be subjected, first, because it should not be brought under the legal control of the court, and second, because the statute has made no provision for serving process on a foreign corportion, to reach a debt such as this was and is. Tingley v. Bateman, 10 Mass. 343; Danforth v. Penny, 3

Pick. 564; Gold v. Housatonic R. R. Co., 1 Gray, 424; Lawrence v. Smith, 45 N. H. 533; Western R. R. Co. v. Thornton, 60 Ga. 300; Sutherland v. Second National Bank, 78 Ky. 250; Bates v. Railway Co. 60 Wis. 296; Wheat v. Railroad Co. 4 Kans. 370; Waples on Attachment, 226-227." Louisville & Nashville R. R. Co. v. Dooley, S. C. Ala. Dec. Term, 1885-86.

5. Witness-Evidence.-A corporation, being a collection of individuals, acting through its officers and agents, who are admitted to testify in cases where the corporation is a party, cannot be said to be under legal disability, and the opposing party in a suit can be examined as a witness. A written statement made by the conductor of a car, in the line of his duty, giving details of the accident, immediately after it happened, is not admissible in evidence, but the facts must be proved by the conductor or others who witnessed the occurence. If the conductor be sworn, he may use the written statement to refresh his memory. North Hudson etc. Co. v. May, S. C. New J., July 19, 1886. 6 East. Rep. 176.

6. CRIMINAL LAW - · Rescue Aiding to Escape-Indictment- Evidence. Under an indictment for aiding a prisoner to escape (Code, § 4130) a conviction may be had, whether an escape was effected or attempted or not; but it is not necessary that there shall be a specific intent to liberate any particular prisoner, although there must be the intent to liberate, and it must be found by the jury; nor is the consent of the prisoner a necessary ingredient of the offense. In an indictment under this statute, it is necessary to aver that the act was done "with the intent to facilitate the escape; and that the disguise, instrument, etc., describing it, was useful for that purpose. Hurst v. State, S. C. Ala. Dec, Term. 1885-6.

7. DAMAGES-Measure of Rule as to where Stock has been Damaged by Railroad Company.-The measure of damages, in a case where stock has been negligently killed by a railway company, is the difference in value between the cattle when live, and the carcass of the animal, when dead. Ill. Cent. R. R. Co. v. Finnegan, 21 Ill. 646. "The dead animal unquestionably belongs to the plaintiff,and not to the railroad company, by whose negligence it was killed. The tort committed does not operate to divest the title of the property so as to transfer it to the wrongdoer. If the carcass, being of any pecuniary value, should be converted to the use of the railroad, an action of trover would lie for it in favor of the owner. The carcass, it may be, is most frequently worth nothing to the owner, and the facts must be peculiar which would overcome this presumption. It is often bruised and mangled, and unfit for any use. Its small value and distance from any available point may render its utilization profitless. There may be no ready market for it, even if possessing some value. In such and like cases, we apprehend, the owner may abandon the carcass and claim the reasonable value of the animal before it was killed, as the proper measure of his compensation. Thompson on Neg. p. 539, § 31; Rockford etc. R. R. Co. v. Lynch, 67 Ill. 149; Wood's Railway Law, p. 1549. § 423." Gr. Pacific Ry. Co. v. Fullerton, S. C. Ala. Dec. Term, 1885-6.

8. DEED-Delivery - Intention of Grantor. - The delivery of a deed is essential to give it effect, and

although, when the grantee has possession of the deed, and nothing to the contrary be shown, delivery will be presumed, yet, when disputed, the question is whether the possession was obtained with the intention of the grantor, that the grantee should receive it as an executed deed, and this question is one to be determined by the trier. Dwinell v. Bliss, S. C. Vt. July 31, 1886. 5 Atl. Rep. 317.

9. EVIDENCE-Account Books-Trial - Objections to Evidence, how Made.-A witness may be shown an account book of original entries to refresh his recollection, and the book itself is admissible in evidence. An objection made on trial should be accompanied with a statement of the grounds of objection, in order that the trial judge may fairly understand the precise question upon which he is to rule. Brown v. Weightman, S. C. Mich. July 21, 1886. 29 N. W. Rep. 98.

10. FRAUDS-Statute of Frauds-MemorandumCorrespondence between principal and agent, showing only instructions to the agent, without including authority to contract, is not a sufficient memorandum within the statute of frauds to establish an agreement to take a lease, although the same may have been disclosed to the plaintiff. Hastings v. Weber, S. Jud. Ct. Mass., July 2, 1886; 6 East. Rep. 210.

11. INSURANCE-Fire Insurance- Policy-Increasing Risk-Construction of Policy.-A policy of insurance, issued upon a dwelling-house owned by plaintiff, contained the following condition: "If the risk shall be increased by the erection or use of any building contiguous thereto, without the consent of this company indorsed thereon, this policy shall be null and void." Held, that a building erected at a distance of 25 feet is not to be construed as contiguous, within the meaning of the condition, and the policy was not avoided thereby. It is a well-settled rule of construction that the language of a condition in a policy, being that of the insurance company, and selected by it, must be clear and unambiguons, and any doubt as to its meaning must be resolved in favor of the policy-holder. Olson v, St. Paul, etc. Co., S. C. Minn., July 14, 1886; 29 N. W. 125.

12. JUSTICE OF THE PEACE-Appeal-Trial de Novo.-On appeal from a judgment rendered by a justice of the peace, the case stands for trial de novo on the process and pleadings; the judgment of the justice is vacated, and a new judgment rendered on its merits. When a garnishee answers, before a justice of the peace, denying any indebtedness, and his answer is contested, a formal issue in writing is not necessary: but, on appeal to the Circuit Court, the amount in controversy being more than twenty dollars, a formal issue in writing must be tendered by the plaintiff; and this not being done, the garnishee is not required to take any step, nor can a judgment by default be rendered against him. Lehman v. Hudman, S. C. Ala. Dec. Term, 1885-86. 13. MECHANICS' LIEN.-The statutes of this State upon the subject of mechanics' liens, being remedial in their nature, are to be liberally construed in order to carry out the purpose of the legislature in their enactment. Where a mechanic, who, under the employment of a contractor, and with the knowledge of the owner, has performed labor upon the construction of a building, and the account

not being paid, takes all necessary steps, as provided by §§ 3193, 3195, 3201 and 3202, of the Revised Statutes, to fix the liability of the owner and to obtain a lien upon the premises, and brings his action against the owner to recover the amount due and have the same declared a lien, such account being less than the balance unpaid on the contract, such owner cannot be allowed to set off a claim against the contractor, not growing out the contract, acquired by him after the labor was performed, although such claim was acquired before notice that the mechanic's demand had not been paid. Bullock v. Horn, S. C. Ohio, June 29, 1886; 16 Ohio L. Jour. 124.

14. MORTGAGE-Assignment-Sale of Notes-Satisfaction-Entry of Satisfaction After Sale of Notes-Right of Grantee of Equity.-The sale and delivery, before maturity, of mortgage notes, carries with it an assignment of the real-estate security, which, in equity, is a mere incident of the debt secured. A satisfaction entered on the record by the creditor, after he has sold and delivered the notes, is a mere nullity, and can neither weaken the security of the party to whom he has sold the notes, nor strengthen the title of the party who afterwards buys the land in good faith from him. The party buying mortgaged premises must, at his peril, ascertain who then owns the notes accompanying the mortgage, and whether the same have been actually paid. Lee v. Clark, S. C. Mo., June 7, 1886; 1 S. W. Rep. 141.

15. MORTGAGE-Notes Secured by-DescriptionRemoval of Cause-Three notes all alike except in the amount, read: "Five years after date for value received, I promise to pay " or order, dollars, with interest annually at six per cent." In an action to foreclose a mortgage given to secure the payment of the notes, held, that the failure to state when the interest was payable was a mere omission and not a false description. In an action to foreclose a mortgage, one of the defendants was a non-resident of the State. Held, that the cause was not removable to the Federal courts. Winchell v. Coney, S. C. Conn., April 10, 1886; 6 East. Rep. 214.

16.

Rights of Mortgagee-Advances-Crops Rents and Profits-A mortgagee of growing crops may advance sufficient to preserve them from waste and destruction, and the advances thus made add to his mortgage debt, and are chargeable against the mortgagor in an equitable accounting. A mortgagee in actual possession must devote the entire rents and profits to the payment of the mortgage, and can divert no part thereof towards the satisfaction of other and unsecured claims due him from the mortgagor, without the express assent of the latter. Caldwell v. Hull, S. C. Ark., June 19, 1886; 1 S. W. Rep. 62.

Charter

17. MUNICIPAL CORPORATION Construction in Case of Doubt-Prohibition of Sale of Liquor-When May be Absolute.-The charter of a municipal corporation is strictly construed, though not so strictly as to thwart the legislative intent, fairly and reasonably appearing; only such powers as are clearly granted, necessarily implied, or incidental to the purposes and objects of the corporation, will be regarded as conferred; and a reasonable doubt as to the grant of a particular power, especially if it is in abridgment of natural or common rights, will be resolved against the

*

corporation. A grant of power in a municipal charter, as in the charter of the Town of Florence (Sess. Acts, 1878-79, p. 413), "to license and regulate retailing spirituous, vinous, or malt liquors within the corporate limits, and provide for annulling and revoking such license, on good cause being shown; to close up retail establishments, for such time as they may deem necessary; to prevent the selling of spirituous, vinous, or malt liquors within the corporate limits, whenever they may deem it expedient," confers the power to prohibit absolutely the sale of such liquors within the corporate limits. In delivering the opinion of the court upon this point, Justice Clopton said: "* The words prevent, license and regulate, annul and revoke, and close up, have each a particular and special meaning. By the classification and description of the different powers, a case is not created for the operation of the rule ejusdem generis. If the application of the maxim noscitur a sociis manifests any particular intention, it tends to show by the relation and association, that a higher, more effective, and different power was intended to be conferred by the grant to prevent the selling whenever deemed expedient, than the preceding powers. While it is true, that the different parts of a statute, relating to the same subject matter, often reflect light upon each other, and therefore should be construed together, that construction should be adopted which will avoid contradiction, inconsistency, or superfluousness, and at the same time, leave a field of operation for each sentence or clause, and give effect to each substantive word. * The purpose was to confer powers, which would be sufficient to answer the requirements, not only of the existing condition, but also of the varying conditions that might occur in the history of the corporation. They are successive and independent grants of distinct powers, not included in the same class, or clause; but distinguished from each other plainly as the grants of other like police powers, except as collocated, and as they relate to the selling of spirituous, vinous, or malt liquors." Ex parte, Mayor and Aldermen of Florence, S. C. Ala. Dec. Term, 1886.

18. NEGLIGENCE-Pleading-Damages.-Contributory negligence is a defense, the burden of which rests on the defendant, although negatived by the averments of the complaint; and it must be affirmatively proved by the defendant, unless the plaintiff's own evidence establishes it. Improperly sustaining a demurrer to a special plea is error without injury, when the record affirmatively shows that the defendant had the benefit of the same defense under the general issue; but the principle does not apply to the erroneous overruling of a demurrer to a bad special plea, whereby the plaintiff is compelled to take issue on it. In an action by a railroad company, to recover damages for injuries caused by a collision of one of its trains with several empty cars left standing on a side-track by the defendants' servants; if the empty cars were left standing too near the main track, and a collision might have been avoided by the use of reasonable diligence on the part of the persons in charge of the passing train, the defense of contributory negligence would be made out; and in this connection, the speed of the train and the fact that it had a watchman so stationed as to see and give notice of obstructions, or the want of these precautions, would be material factors; but if the empty cars, though not placed too near the

main track, were insecurely scotched on the down grade of the side-track, and, being put in motion by the passing train, rolled down on it at the switch, the speed of the train would be immaterial, and contributory negligence could not be imputed to the plaintiff. If the empty cars were placed so near the main track as not to allow room for passing trains, the defendant cannot claim immunity from liability on the ground that this was the result of an "honest mistake" on the part of his servants. Montgomery, etc. Co. v. Chambers, S. C. Ala., June Term, 1886.

19. NEGLIGENCE.-Railroad Crossings-Contributory Negligence-Question for Jury.-The duties, obligations, and rights of railroads and of highway travelers at a point of intersection are mutual and reciprocal, and both must use such care as a prudent man would under like circumstances. The question of contributory negligence depends on the circumstances of each particular case, and is one of fact for the jury. Baltimore etc. Co. v. Owings, Ct. App. Md., June 23, 1886; 5 Atl. Rep. 329.

20.

-.Firing Guns-Remedy for Injury Caused by Damages-Defense-Near Highway— License. The law furnishes every person a remedy, by civil action, to recover damages for injuries resulting to him from the negligence of another, even though such injury was accidental. To constitute a valid defense in such cases, the injury must be shown to have resulted from some controlling, superior agency, and without defendant's fault. The laws of Tennessee (Code, § 2275) prohibit the firing of guns within 200 yards of any public highway, and no directions or suggestions from one individual to another can be construed into a license justifying the latter in a violation of said laws. Knott v. Wagner, S. C. Tenn., June 5, 1886; 1 S. W. Rep. 155.

21. SALE.-Acceptance-Fire-Engine-Trial of Engine-Breach of Contract-Assumpsit.—Where the contract by which a village agrees to purchase a steam fire-engine and attachments provides for the payment of the first installment of the purchase money at the date of acceptance of the property, and, at the request of the vendee, the vendor sends one of its employes to assist at the trial of the engine, the nature of the machinery making a trial necessary to determine its fitness for the purposes required, held, that the acceptance was to be after trial, not when placed upon the cars at the place of manufacture. Where a vendee refuses to accept merchandise which, by written contract, he has agreed to purchase, the remedy of the vendor is not assumpsit for the purchase money, but an action for breach of contract, and refusal to accept on the part of defendant. Mansfield Machine-Works v. Lowell, S. C. Mich., July 21, 1886; 29 N. W. Rep. 105.

22.

-.Delivery-Rights of Vendor's CreditorsNotice. To constitute a valid sale of chattels, as against the vendor's creditors and subsequent purchasers, there must be an actual, substantial, visible change and delivery of possession. Selecting out from a general stock the goods bargained away, packing them in unsealed, unmarked boxes, charging them to the party who has bargained for them, and rendering him an itemized bill of them, but without any transfer of actual possession, is of no avail against creditors and subsequent purchasers without notice. Davis v. Meyer, S. C. Ark. June 19, 1886; 1 S. W. Rep. 95.