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143 In Fennell v. Pauley, 112 Iowa, 94, 83 N. W. 799, the plaintiff was a resident of the state of Missouri in 1905-06. In December, 1905, he brought into Freemont county, in Iowa, two hundred and two head of cattle for feeding purposes, and kept them upon land owned by him. In April, 1896, the cattle were taken back to the state of Missouri. The court said: "The contention is that this property, belonging to a nonresident and being only temporarily in this state, was not taxable here. Section 812 of the Code of 1873 provides that all personal property shall be taxed in the name of the owner on the first day of January. That property of this nature is taxable is fixed by sections 797-801; and section 817 requires personal property in the hands of an agent to be listed by the assessor. Section 823 requires the assessor to return all personal property found in his township. We understand that property in transit through the state cannot be taxed

or can such as belongs to a nonresident, which is here only an incident of its transfer elsewhere. To give the right to assess the personal property of a nonresident found within. this state, it must be located here with something like permanency, or for some purpose other than merely aiding its transit. . . . These cattle were here to be fed, in order to increase their weight and value for market. In principle, it was the same as the investment of money in this state, and we cannot see why they should not be taxed here." To the same effect, see Waggoner v. Whaley, 21 Tex. Civ. App. 1, 50 S. W. 153; Hardesty v. Fleming, 57 Tex. 395.

Grigsby Construction Co. v. Freeman, 108 La. 435, 32 South. 399, 58 L. R. A. 349, is a case like this. In Louisiana all property in that state is subject to taxation, except that expressly exempted from taxation by law. The statutes provide that in case the taxpayer fails or refuses to furnish a list of his property within the time prescribed, the assessor "shall himself fill out the list from the best information he can obtain." "In making his assessment for the year 1901 the assessor of the parish of Natchitoches called upon the plaintiff's agent to furnish, as required by law, a list of its property situated in the parish and subject to taxation. The plaintiff is a Texas corporation, having its domicile at Dallas, Texas. It operates in that state and adjoining states in the construction of dams, dikes, levees, railroad beds, and other earth work, and for that purpose has outfits, consisting of


mules, scrapers, wagons, commissary store goods, tents, etc., which it sends to the places where work is to be done. At the time when its agent was thus called upon by the assessor, plaintiff was doing grading work for the Texas and Pacific Railroad in the parish of Natchitoches, and the property sought to be assessed was a construction outfit and other movables necessary or convenient in the doing of that work. The agent questioned whether said property was liable to taxation in Louisiana, and asked for time to consult counsel. A second attempt was made to get from the agent a list of the property of plaintiff, and, this second attempt proving equally fruitless, the assessor, as required by law, made out a list of the property as best he could, and put the same on his roll. Plaintiff failing to pay the tax thus assessed, the tax collector proceeded to enforce payment by seizure of some of the mules assessed, and plaintiff brought suit, enjoining the seizure." Supreme court of Louisiana held that the property was subject to taxation and said: "In the instant case the property was not in course of transportation, but was here for use likely to be of some duration-possibly a full year-and for the time being was incorporated in the bulk of the property of the state. It was distinguishable from the rest of the property of the taxing district in no respect except the intention of the owner to remove it at some future time more or less distant. Under these circumstances its situs approached nearer to permanency than did that of the sheep in the Wyoming case or that of the coal in the Brown-Houston case" (114 U. S. 622, 5 Sup. Ct. Rep. 1091, 29 L. ed. 257): 1 Wharton on Conflict of Laws, 3d ed., sec. 80a, and cases cited.

The property of plaintiff in this case was not in transit, but was here chiefly, if not solely, for use and profit, and was subject to taxation.

Decree is reversed, and the complaint of appellees is dismissed for the want of equity.

The Situs of Personal Property for the Purpose of Taxation is the subject of a note to Buck v. Miller, 62 Am. St. Rep. 448. Personal property is generally taxable where the owner resides, but it may be taxable wherever it is found, regardless of his domicile: Hall v. American Refrigerator etc. Co., 24 Colo. 291, 65 Am. St. Rep. 223; Buck v. Miller, 147 Ind. 586. As to the taxation of migratory live stock, see Nathan v. Spokane County, 35 Wash. 26, 102 Am. St. Rep. 888; Kelley v. Rhoads, 7 Wyo. 237, 75 Am. St. Rep. 904.

BANK OF COMMERCE v. LAWRENCE COUNTY BANK. [80 Ark. 197, 96 S. W. 749.]

CORPORATIONS Preferred Claims Against by Subrogation.One who advances money to a going corporation to pay off claims of its laborers is not entitled, upon its subsequent insolvency, to any preference over other creditors, by way of subrogation to the liens of the laborers. (p. 86.)

Morris M. Cohn, for the appellants.

H. L. Ponder, for the appellee.

197 McCULLOCH, J. The Culver Lumber and Manufacturing Company, a corporation, was placed in the hands of a receiver by order of the chancery court of Lawrence county in a suit brought in that court by a stockholder, alleging, amongst other things, fraud and mismanagement of its affairs and insolvency, and asking for the sale and distribution of proceeds of its assets. The receiver took possession and administered the assets of the concern under orders of the court.

In course of the proceedings a master in chancery was appointed to pass upon and allow claims of creditors of the corporation, and he allowed the claim of appellee, Lawrence County 198 Bank, in the sum of four thousand five hundred and fifty-four dollars and fifty-five cents, and made it a preferred claim. His report on that claim, which was confirmed by the court, is as follows: "I took the evidence of H. A. Culver and D. Sloan in regard to the claim of the Lawrence County Bank, and found from their evidence that the indebtedness was for acceptances given by the Culver Lumber and Manufacturing Company to the Lawrence County Bank, and were used by the said lumber company in paying the labor claims due the men for the manufacture of lumber, working in timber, etc. That by a former order of this court, made by the Honorable F. D. Fulkerson, the then acting. chancellor, all claims for labor or debts arising therefrom, or debts incurred on this account, were made preferred claims. The master on account of this fund being used in the payment of labor claims just prior to the receivership, is of the opinion that it should be a preferred claim, and he hereby makes it one."

Appellant, whose claims as creditor were allowed without preference, appealed to this court from the decree of the chancellor making the claim of appellee preferred.

199 The facts are undisputed. The Lawrence County Bank advanced money upon acceptances to the Culver Lumber and Manufacturing Company, while yet a going concern, which was used by the latter in paying off labor claims constituting liens upon lumber manufactured. The court decreed the debt to be a claim against the assets of the corporation with priority over the claims of other creditors. Was it proper to do so?

The indebtedness to appellee was created before the assets of the corporation passed into the hands of a receiver-how long before it does not appear. It was no more nor less than a loan to the corporation, and, regardless of the use made of the money, created no higher grade of indebtedness than that of any other creditor of the concern. The statutes of this state give no lien for money so advanced; and, if it be conceded that enough is shown to have entitled the alleged claims of the laborers to priority as liens, by no stretch of equitable principles can appellee enjoy the right of subrogation because the funds so advanced were used in discharging laborer's liens. Being a voluntary loan of money, it affords no grounds for application of the equitable doctrine of subrogation.

If appellee's contention be sound, then all claims against corporations for advances of money used in necessary operating expenses would be preferred, and the payment of equally meritorious claims prior in point of time would be postponed the last coming first and the first last. We are not unmindful of the doctrine enforced by many courts in suits against railroad corporations to foreclose mortgages securing payment of bonds where preference is given to claims for operating expenses recently incurred: Fosdick v. Schall, 99 U. S. 235, 25 L. ed. 339. This doctrine, even as applied to suits to foreclose mortgages on railroad property, is not without its limitations (Kneeland v. Anerican Loan etc. Co., 136 U. S. 89, 10 Sup. Ct. Rep. 950, 34 L. ed. 379; Thomas v. Western Car Co., 149 U. S. 95, 13 Sup. Ct. Rep. 663, 37 L. ed. 663), but it has no application to the facts of this case, and will not warrant the giving of preference to appellee's claim against the corporation for money loaned.

Reversed and remanded with directions to enter a decree not inconsistent with this opinion.

The Right to Subrogation is the subject of a note to American Bonding Co. v. National etc. Bank, 99 Am. St. Rep. 474.

Preferred Claims for Labor against insolvent corporations are discussed in Michigan Trust Co. v. Grand Rapids Democrat, 113 Mich. 615, 67 Am. St. Rep. 486; note to Green v. Coast Line R. R. Co., 54 Am. St. Rep. 418.

MOORE v. CAMDEN MARBLE AND GRANITE WORKS. [80 Ark. 274, 96 S. W. 1063.]

STATUTE OF FRAUDS Contract for Work or of Sale.-An agreement by one person to construct a tombstone especially for or according to the plans of another, whether or not at an agreed price, although the transaction is to result in a sale of the article, is a contract for work and labor, not for a sale, and is not within the statute of frauds. (p. 89.)

Thornton & Thornton, for the appellant.

George W. Hays, for the appellee.

275 MCCULLOCH, J. Appellant gave a verbal order to appellee for a tombstone to be made and set up in the burial ground, but refused to accept it when complete and ready for delivery. In this action against him brought by appellee to recover forty dollars, the agreed price of the tombstone, he pleads the statute of frauds, Kirby's Digest, section 3656.

The sole question for our determination is, whether the contract in question was one for the sale of goods, wares and merchandise, and therefore within the statute of frauds, or one for work and labor to be done and materials to be furnished, which is not within the statute.

In England and Canada the rule seems to be settled that where, under the contract, the title to a chattel is to be transferred from one person to another, it is a contract for sale of goods within the meaning of the statute, regardless of the previous condition of the product or the amount of labor and talent to be expended in producing or constructing it. In Lee v. Griffin, 1 Best & S. 272, which is the leading English case on the subject, the rule is laid down by Blackburn, J., as follows: "If the contract be such that, when carried out, it

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