the time the trust receipt was given, being in transit from a foreign country. VI. Miscellaneous matters. a. Effect of retaking of property by holder of trust receipt. See Moors v. Wyman (Mass.) under IV. b, supra, as to the right to a commission for making a sale, where the goods are retaken by the party making the advances. The trust receipt agreements commonly provide that the holder of the receipt may at any time cancel the arrangement and repossess himself of the goods or the proceeds. See, for example, Re Marks (1915) 137 C. C. A. 590, 222 Fed. 52, in which the court said that the plain intention of the parties was that title to the goods should remain in the bankers until they were reimbursed for payment of the purchase price to the seller; and that they had at all times the right to retake the goods from the merchant, or their proceeds, if they could be traced. In view of this right of the holder of the receipt to repossess itself of the goods, the question has arisen as to whether it has a right, after retaking the property, to reimbursement for any deficiency which may arise between the amount of its advances and the proceeds arising from a sale of the goods. It was held in Charavay v. York Silk Mfg. Co. (1909; C. C.) 170 Fed. 819, that where the banker retook the goods, as he had the right to do under the trust receipt agreement, he was not precluded by the retaking of the property from recovering the loss which he had sustained by reason of the sale of the property below the invoice valuation. The court said that it was clear that in the ordinary case where a banker has not parted with possession of the goods under a trust receipt or otherwise, and is forced to realize upon them at a loss, he is entitled to claim for a deficiency, and that there was no reason why, because he had given them up and retaken them, his right should be any less. The contention was that the trust receipt created a conditional sale, and that the retaking constituted an election of remedies precluding recovery for a deficiency. See this case, also, supra, II. b, under heading, "Conditional sales." It has been held that where the holder of the trust receipt has the right to retake the property, and exercises this right, the receiptor cannot recover damages for deprivation of the use of the property. Thus, where a trust receipt given by the purchaser of an automobile on credit to an acceptance corporation stipulated that the purchaser should hold the property in trust as the property of the corporation, for the purpose of storage, and that the purchaser had no right to operate or use it for demonstration purposes, nor to pledge, mortgage, or sell the same except as therein authorized, and that prior to sale the purchaser would return the property unused and in good condition to the order of the corporation, it was held in Scott v. Industrial Finance Corp. (1924) Tex. Civ. App. —, 265 S. W. 181, that the purchaser could not recover damages on account of being deprived of the use and possession of the automobile, since, before sale, the finance corporation had the right at any time to retake the property, even if there was a contemporaneous or subsequent parol agreement giving to the purchaser the right to use the automobile, there being no evidence of fraud or mistake in the execution of the trust receipt. b. Provision in receipt for payment of "other indebtedness." Where the trust receipt, which gave the importer the liberty to sell or manufacture the goods, and provided that he should keep the same or their proceeds separate and capable of identification as the property of the bank which financed the importation, provided that the proceeds should be applied against the acceptances of the bank and the "payment of any other indebtedness" to the bank, it was held in Vaughan v. Massachusetts Hide Corp. (1913; D. C.) 209 Fed. 667, that the words quoted should not be construed as requiring payment of other indebtedness to the bank not then due and not arising out of the particular letter of credit under which the importation in question was made, before title passed. In other words, where there was a series of importations, such an agreement did not entitle the bank to a claim on the proceeds superior to that of other creditors of the importer, to meet indebtedness from the latter to it which was not then due, where the importer had met all the obligations which were then due, and all obligations with respect to the particular letters of credit under which the goods were imported, the proceeds of which were sought to be recovered. The court approved the holding in New Haven Wire Co. Cases (1888) 57 Conn. 352, 5 L.R.A. 300, 18 Atl. 266, involving a similar state of facts, in which it was held that the contract should be construed as permitting the importer to obtain title by paying for the particular goods, and, in addition, such other indebtedness from it to the bank as was then due, and not as requiring the payment of acceptances before maturity as a condition precedent to obtaining title to goods which it had paid for. c. Right of receiptor to maintain action for purchase price. The right of the importer to recover from a purchaser the price of the goods was denied in Perkins v. Lippincott Co. (1918) 260 Pa. 473, 103 Atl. 877, where, although the trust receipt contemplated possession by the importer and sale for the account of the bank which financed the importation, the importer had neither title to nor possession of the goods, but on arrival they were delivered, under the direction of the bank, directly to the purchaser from the importer. In this instance, the importer, who had received an order from the defendant for certain goods, made arrangements with a bank to finance the transaction, the agreement being that payment should be made directly to the bank. The goods were shipped to the order of the bank, with bills of lading and drafts attached. On the arrival of the goods the bank authorized the custom house broker to deliver them to the importer, taking from him a trust receipt in which he agreed to hold the consignment in trust for the bank. and, in the event of sale, to collect the proceeds and deliver the same to the bank. But, as above indicated, delivery was actually made directly to the defendant, the purchaser from the importer. And it was held not only that the latter had no right of action for the price of the goods, since the proceeds belonged to the bank and the only way in which the importer could acquire the right thereto was by paying his indebtedness to the bank, but that the importer could not maintain the action for the use of a second bank to which it had assigned the account represented by the sale of the goods, as security for advances, this bank having no notice of any defect in the title of the importer, the assignor, since the second bank succeeded only to such rights as the importer possessed. But in Perkins v. Halpren (1917) 257 Pa. 402, 101 Atl. 741, it was held that the importer could maintain an action, for the use of his assignee, for the purchase price of the goods, notwithstanding the fact that the bank which financed the importation had, after the assignment, sold the goods, which were held by a warehouseman, and applied the proceeds to the credit of the importer. The case turns on the question as to whether there was an executed contract of sale, and whether title had passed to the purchaser of the goods from the importer, who had given a trust receipt to the bank which financed the importation, agreeing to hold the goods in trust as the property of the bank, with liberty to sell the same and to account to it for the proceeds. It was held that this question depended upon the intention of the parties as indicated by their course of dealing; and that a finding was justified that the parties intended to, and did definitely, complete the sale at the time the goods were billed to the purchaser by the importer, and the accounts with the purchaser, the goods being sold on credit, were, with the purchaser's knowledge, assigned to a third party, although this assignment was in violation of the trust receipt agreement. d. Subrogation. It has been held that where the purchaser and seller of goods imported from a foreign country have mutual accounts, and the actual credit extended therefor from the one to the other is the balance on the mutual accounts, but the purchaser is compelled to pay the amount of the purchase price to the trust company which finances the importation and surrenders the goods to the purchaser in exchange for trust receipts, the latter is entitled to subrogation to the rights of the trust company in collateral security pledged with it by the seller, the latter having become insolvent. Gerseta Corp. v. Equitable Trust Co. (1924) 122 Misc. 361, 203 N. Y. Supp. 58. In this instance, as the purchaser had a credit balance against the seller, the purchaser would have been required to pay nothing, in case the rights of the trust company had not intervened. The invoices, however, were made expressly payable to the trust company, and by thus injecting the rights of a third party into the transaction, which rights the purchaser was obliged to respect, the latter sustained a loss which it was held entitled to recoup from the property of the seller pledged with the trust company. e. Commingling of goods by receiptor. The question of the effect of the commingling of goods by the importer, where the trust receipt provides that he shall keep the goods received thereunder separate and capable of identification as the property of the bank which advanced the money for the importation, is presented in People's Nat. Bank v. Mulholland (1917) 228 Mass. 152, 117 N. E. 46, where the goods received under the trust receipt (consisting of hides) were commingled with other goods of the same kind. The court held that the contract in the trust receipt to keep the goods separate and capable of identification required the receiptor to keep the property at all times, both in its raw and manufactured states, separate; that this duty was not performed if only one person was sufficiently familiar with the goods to be able to make a separation, but required such a segregation or susceptibility to recognition that anyone familiar with the trade would be able to select the property covered by the trust receipt, so that the bank might with reasonable effort repossess itself of its property at any time; that there was a breach of this duty by the commingling of this property with other similar property so that the possibility of picking out of the mass the property of the bank was gone, and it was not necessary to determine that there was any moral turpitude involved in such commingling; that the commingling being a breach of a fiduciary duty owed to the bank, and having been done through the fault of the importer, and being a wrong against the bank, the burden of separating and tracing further its own property did not rest upon the bank; but that the loss should fall on the one whose carelessness had caused the indiscriminate intermixture. And the court applied the common-law rule applicable to commingled goods, under which the entire lot is held to the satisfaction of the claims of one whose property has been thus wrongfully commingled with the goods of the wrongdoer. It was held, also, that the amount received from sales by the importer out of the mixed lot, being still on deposit as part of a larger fund, was impressed with a trust for the benefit of the bank. f. Waiver. It was held in Brown v. Green & H. Leather Co. (1923) 244 Mass. 168, 138 N. E. 714, that their rights under the trust receipts had not been waived by bankers who had financed the purchase of hides by a manufacturer under a contract by which bills of lading were taken in the name of the bankers, who authorized delivery of the goods to the manufacturer on receiving from the latter trust receipts in the usual form (providing that the hides, and the leather manufactured therefrom, Garage, § 2-failure to put alcohol in automobile liability. 1. A garage keeper breaching his undertaking to put alcohol in the radistor of an automobile, to prevent its freezing, is liable for the injury resulting therefrom. [See annotation on this question beginning on page 319.] Appeal, § 666 effect. conflicting evidence 2. A verdict on conflicting evidence cannot be disturbed on appeal. [See 2 R. C. L. 194; 1 R. C. L. Supp. 433; 4 R. C. L. Supp. 90; 5 R. C. L. Supp. 79; 6 R. C. L. Supp. 73.] Appeal, § 637 failure to submit theory of case in all instructions. 3. Failure to submit to the jury the theory of one party to a cause, in instructions given for the other party, is not reversible error if such theory is subsequently submitted in other instructions. [See 14 R. C. L. 771; 4 R. C. L. Supp. 918; 5 R. C. L. Supp. 776; 6 R. C. L. Supp. 830; 14 R. C. L. 812; 3 R. C. L. Supp. 295; 4 R. C. L. Supp. 921; 5 R. C. L. Supp. 780; 6 R. C. L. Supp. 834.] Appeal, § 777-admission of evidence absence of error. 4. In an action to recover the cost of repairs to an automobile made necessary by breach of contract to place alcohol in it to prevent freezing, the admission in evidence of the itemized account of the repairs and the cost of making them is not error, where the foreman in charge of the work testified that he directed and supervised the repairs, and initialed the account although he did not prepare the statement himself. APPEAL by defendant from a judgment of the Circuit Court for Crawford County (Cochran, J.) in favor of plaintiff in an action brought to recover for damage to his automobile, alleged to have been caused by defendant's negligent failure to place alcohol in it. Affirmed. Statement by Hart, J.: William Kirchman sued L. A. Whittaker to recover $136.30, which he claims to be due him on account of the negligence of the defendant in failing to put alcohol in the radiator of his new Dodge touring car as he had agreed to do. According to the testimony adduced in favor of the plaintiff, he (171 Ark. 1029, 287 S. W. 168.) lives in Van Buren, Crawford county, Arkansas, and on the 11th day of December, 1924, he drove his new Dodge touring car with wood wheels to the garage of L. A. Whittaker, and asked him to put alcohol in its radiator for the purpose of preventing it from freezing. The defendant had been accustomed to perform this service for the plaintiff. The plaintiff relied upon the performance of the service by the defendant and drove his car home, thinking it had been supplied with alcohol to prevent freezing, as requested. On the 19th day of December, 1924, the plaintiff attempted to drive his car and found that it had frozen, which caused a break in the radiator. The repairs necessary to restore the car to its former condition cost the plaintiff $136.30, which was the usual price for such repairs. On cross-examination, the plaintiff admitted owning a Dodge car of an older model which had disc wheels, but denied that this was the car which the defendant agreed to put alcohol in, in order to prevent the radiator from freezing. According to the testimony of G. H. Wright, a witness for the plaintiff, he was foreman of the mechanical department of the Martin-Ross Motor Company, and was called in December, 1924, to get the Dodge touring car in Van Buren, Arkansas, for the purpose of examining it and making the necessary repairs on it. Upon examination of the car, he found that the whole top and back radiator was frozen up, and that the block was frozen solid. The witness was familiar with the effect of alcohol as an antifreeze mixture and had worked on Dodge cars for four years. He could tell by examination that no alcohol had been put in the radiator of the car. The water was frozen solid and he could tell that no alcohol had been placed in it. He was overseer of the repair work on the car. After examining the car, he wrote an order stating the work to be done and turned it over to the on the car and placed his initial, "W," on the work to be done. According to the evidence for the defendant, he did not agree to put alcohol in the new Dodge touring car of the plaintiff to keep the radiator from freezing, but did agree to put alcohol in an old Dodge car with disc wheels, belonging to the plaintiff, to keep the radiator in it from freezing, and performed this service for the plaintiff, according to agreement. The jury returned a verdict for the plaintiff in the sum of $136.30, and from the judgment rendered, the defendant has duly prosecuted an appeal to this court. Mr. Roy Gean, for appellant: Under all the testimony offered by plaintiff, if true, he has not shown by a preponderance of the evidence that the proximate or efficient cause of the damage, if any, to his new Dodge touring car, resulted from the failure of defendant to place alcohol in its radiator. James v. James, 58 Ark. 157, 41 Am. St. Rep. 95, 23 S. W. 1099; St. Louis, A. & T. R. Co. v. Neel, 56 Ark. 279, 19 S. W. 963; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 31 L.R.A. (N.S.) 1020, 133 S. W. 816; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 18 L.R.A. (N.S.) 905, 113 S. W. 647; Emerson v. Turner, 95 Ark. 597, 130 S. W. 538. Mr. George G. Stockard for appellee. the court: Hart, J., delivered the opinion of It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. We cannot agree with counsel in this contention. In Bussy v. Hatch, 95 N. J. L. 56, 111 Atl. 546, it was held that a garage keeper, to whom an automobile was delivered for storage under a simple contract of bailment, is liable for damages resulting from the freezing of water in the car while it was in storage, especially where an express agreement to maintain sufficient heat in the garage to prevent freez mechanics who did the work. The ing was made. The failure of the witness supervised the repair work garage keeper, in the respect men |