text:
    Warren Vivian LAMB, Appellant, v. ED MAHER, INC., Appellee.
    No. 16161.
    Court of Civil Appeals of Texas. Dallas.
    April 26, 1963.
    Rehearing Denied May 24, 1963.

      Kilgore & Kilgore, Dallas, for appellant.
    McKool & McKool and Mike Aranson, Dallas, for appellee.
   WILLIAMS, Justice.

Appeal by Warren V. Lamb, defendant below, from a judgment in favor of Ed Maher, Inc., plaintiff below, for the sum of $254.93, rendered in a suit for deficiency judgment following the repossession and sale of an automobile theretofore sold by Maher to Lamb. The sole question presented here is whether the contract between appellant and appellee was tainted with usury. Appellant contends that he bought the automobile for a stated cash price and that usurious time credit charges were added. Appellee contends that appellant purchased the automobile for a time credit price and there is no usury.

FACTS

The evidence on the trial of this case is undisputed. It consists of testimony of Frank Langford, assistant manager of Ed Maher, Inc., and Warren V. Lamb, together with various written exhibits. Lamb testified that he bought the automobile from Ed Maher in December of 1957; that he was quoted a price of $2595.00 by the salesman. He said they had “a good deal of negotiations with reference to the car * * as to the price and various other things;” that the main issue was the monthly payments. He said he wanted to keep his monthly payments within the limits of his salary as a telephone linesman. He testified he signed the documents presented to him and took the car. He further identified Exhibit One and said he recognized the figures thereon when he signed same; that he signed and agreed to Exhibit One.

Exhibit One referred to in the preceding testimony, was identified by Lamb as the purchase agreement and the following is a substantial copy of the pertinent portion thereof:

“Price $2,595.00
License 30.00
Total 2,625.00
Discount $395.00
Tradein 250.00
Total credit • 645.00
Balance 1,980.00
Insurance 208.00
Total 2,188.00
Time Sales Charges 460.52
Note First National Bank Payments 36 @ $73.57 , 1st. payment due 2/1/58.” $2,648.52

Exhibit Three, a conditional sales contract, was identified and introduced in evidence, the material portions of which are copied as follows:

“Whereas the undersigned purchaser has been quoted a cash price of $_ for the automobile described below and has likewise been quoted a time-selling price as below stated and has elected to buy said automobile for such time-selling price: Now therefore, the undersigned seller hereby sells, and the undersigned purchaser hereby purchases on a time-basis, subject to the terms and conditions hereinafter set forth, the following property in its present condition, complete with standard attachments and equipment, delivery and acceptance of which is hereby acknowledged by purchaser, viz.:” (followed by a description of the automobile) “for a time-selling price of $3,293.52 which said sum the purchaser hereby promises and agrees to pay to the order of seller as follows: $645.00 in cash or the equivalent before delivery of said automobile and at the time of the execution of this agreement, leaving a deferred • balance of $2,648.52, which purchaser promises to pay to the order of seller at First National Bank in Dallas, Dallas, Texas, in 36 consecutive monthly installments beginning February 1st, 1958, 36 of said installments being in the amount of $73.57 and the final installment being in an amount equal to the deferred balance remaining unpaid, with interest thereon after maturity at 10% per annum, and if this contract be placed with an attorney for collection, 10% of the amount due hereunder, as attorney’s fee.”

This Exhibit Three bears the signature of Warren V. Lamb. His testimony concerning the signing of this exhibit three was: that when he signed same it was not filled in; that he signed it in blank before the figure had been written in. He also said he never read the instrument either before or after he signed it

He further testified:

“Q Were you also aware that the contract stated that the contract could be filled in by the purchaser in line with the agreement between the parties if there were blanks left — correction by the seller. Were you aware that the contract stated, that the conditional sales contract, Plaintiff’s Exhibit Three, stated that blanks left in that conditional sales contract could be filled in by the seller in line with the agreement reached between the parties ?
“A I didn’t know it, but that sounds fair.”

Any doubt that may have existed concerning any discrepancies between the figures contained in Exhibit One and Exhibit Three was set at rest by a stipulation of Lamb’s attorney. While Mr. Langford was testifying he was asked whether it was normal and customary practice for figures on the contract (Exhibit One) to be filled in the conditional sales contract (Exhibit Three) identical with the figures on the agreement between the parties; he responded in the affirmative. Thereupon Lamb’s attorney stipulated that the figures on Exhibit One had been correctly filled in on Exhibit Three.

Mr. Langford testified that he had no personal knowledge of the transaction and that he was testifying for the purpose of identifying the records and stating the general custom that existed relating to sales. He identified Exhibit One, the sales contract, and the various figures contained thereon, stating that the sum of $460.52, called the time sales charge, was computed ordinarily from a rate book and represented a little more than 7%' interest on $2,188.00 over a 36 month period.

OPINION

The sole question presented by this appeal is one of usury vel non. Appellant in his one point of error, contends that since the contract between appellant and appellee is usurious all of the payments and credits made by appellant should be allocated to principal and when such allocation is made, nothing remains due by appellant to ap-pellee. Appellant, in his supplemental brief, correctly states the issue to be decided; “There is no doubt that the courts of this State recognize that where a sale is made for an agreed time credit price, the fact that that price may substantially exceed ‘cash’ price on the same item will not taint the transaction with usury. The fallacy in the appellee’s brief is the appellee’s assumption that the record in this case contains evidence sufficient to support a finding that a time credit price was agreed upon.” Also: “Consequently, there is no evidence in this record that will support the trial court’s implied finding that the car was sold for a higher time credit price, but all of the evidence is entirely to the contrary.”

In our efforts to determine the solution to this “no evidence” it must be observed that this judgment was rendered by the trial court, without a jury, and no findings of fact or conclusions of law were requested and none were filed. The court’s judgment therefore implied all necessary fact findings in support of the judgment and, upon review we must only consider that evidence most favorable to the issue and disregard entirely that which is opposed to it, or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Austin v. Cochran, Tex.Com.App., 2 S.W.2d 831, 832; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Gulf C. S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933; Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614, 5 A.L.R.2d 963.

Accordingly, it is not our province or privilege to review all of the evidence in this case and conclude what we, had we been sitting as trial judge, would have done. As was aptly stated by Chief Justice McDonald in Associates Investment, Inc., v. Thomas, Tex.Civ.App., 210 S.W.2d 413:

- “The testimony was in some degree conflicting, but on appeal we must give weight to the testimony that tends to support the judgment, and view it in the light most favorable to appellee. Express findings, and findings implied from the nature of the judgment rendered, will not be disturbed on appeal where there is some evidence to support them, even though the appellate court might have reached a different conclusion therefrom.”'

The applicable basic law covering the factual situation presented by this appeal is, in our opinion, contained in the opinion of this Court in Rattan v. Commercial Credit Company, Tex.Civ.App., 131 S.W.2d 399, wr. ref. In that case Rattan purchased an automobile for the sum of $1310. At the time of purchase, he was put to an election as to whether he would pay cash of $1125, or a deferred credit price of $1310 for the automobile. He knew there was a difference in the prices — that the credit price was higher than the cash price. Rattan chose the credit price, and, upon default, suit resulted. Rattan contended that the transaction is usurious, in that the $100 added to the cash price balance of $750, plus $86 for insurance, payable in monthly installments of $39, each over a period of twenty-one months, is a charge of more than 10% interest. We pointed out there that the transaction was simply a sale for credit at a higher price than for cash, calculated on a known basis for the seller to realize a cash price of the automobile by subsequent sale of the note and mortgage through commercial channels. This rule was announced by Chief Justice Bond:

“Where, in a bona fide sale, no loan of money is involved, a purchaser buys an automobile from a regular automobile dealer for a credit price, known to the purchasér to be higher than the cash price, and signs a note and chattel mortgage for the unpaid balance, such transaction is an actual sale of the automobile on time or credit selling price, mutually agreed upon by the parties, and such note and mortgage thus given for the balance, providing for interest, only in case of default, at the highest legal rate, is not usurious. A seller may demand one price for cash, and another and greater' price upon credit, and it would not be usury. Graham v. Universal Credit Co. Inc., Tex.Civ.App., 63 S.W.2d 727; Baldwin v. Motor Inv. Co., Tex.Civ.App., 89 S.W.2d 1076; Burkitt v. McDonald, 26 Tex.Civ.App. 426, 64 S.W. 694; Oil City Motor Co. v. C. I. T. Corp., 10 Cir., 76 F.2d 589, 104 A.L.R. 240; General Motors Acceptance Corp. v. Mid-West Chevrolet Co., 10 Cir., 66 F.2d 1; Commercial Credit Co. v. Tarwater, 215 Ala. 123, 110 So. 39, 48 A.L.R. 1437. Such is this case.”

See also the case of Standard Supply & Hardware Co. v. Christian, etc., Tex.Civ.App., wr. ref., 183 S.W.2d 657 and Gill v. Universal C. I. T. Credit Corp., Tex.Civ.App., 282 S.W.2d 401, wr. ref. n. r. e.

Art. 5074a, Vernon’s Ann.Texas St. entitled “Cash and time prices in sales of motor vehicles” provides in Sec. 1 thereof, as follows:

“Whereas, it has heretofore been recognized by the courts of this State that a seller may have a cash price for his commodities and may have also a different and higher time credit price for the same commodity, and that such difference in said prices do not constitute interest for the forbearance, use or detention of money or credit.”

The statute then proceeds to provide that a seller of a motor vehicle shall furnish to the purchaser a disclosure of the items of cost which the seller has taken into consideration in arriving at the time credit price for which the said motor vehicle has been sold. Then in Sec. 4 of the statute it is provided:

“If the seller shall have furnished the purchaser an itemization in writing of such cost items as the seller has taken into consideration in arriving at the time, credit price, and the purchaser has signed a written contract evidencing the agreement that the motor vehicle [was] purchased under a time credit price, said written contract shall constitute prima facie evidence of the fact that said motor vehicle was sold for a time credit price.” (Emphasis ours)

Having applied the undisputed evidence in this case, as related above to what we consider the applicable law controlling such situation, and obeying the mandate of the Supreme Court set forth in the cases cited above directing us to affirm the trial court’s judgment if there is any evidence of probative force to substantiate same, and discarding entirely all adverse evidence, we arrive at the conclusion that appellant’s contention of “no evidence” can not be sustained. We are of the opinion that a review of the testimony as set forth above, both direct and circumstantial, impels the conclusion that there is evidence to support the trial court’s implied findings that no usury is in this case. We think that the testimony reveals that Lamb, as well as Rattan, was given a choice of paying cash for the automobile or paying a credit price therefor which was in excess of the cash price and included a time sales charge. Appellee complied with the provisions of Sec. 4 of Art. 5074a, V.A.C.S. by providing appellant with an itemization, as revealed by Exhibit One, thereby establishing a prima facie case. Appellant testified that he was quoted one price but he immediately was concerned with the amount of monthly payments, thereby evidencing clearly that he did not intend to choose the cash price but wanted to accept the credit price. He freely admits that he was furnished the information and knew what he was doing when he executed Exhibit One. His attorney stipulated that the facts and figures contained on Exhibit One were correctly transcribed on Exhibit Three, the conditional sales contract. The conditional sales contract provides specifically that Lamb was given a choice of the cash price or the credit price and he chose the credit price. True, Lamb says that he did not read the conditional sales contract after he signed the same, but this fact does not excuse him from the binding provisions thereof.

Finding, as we do, evidence of probative force to support the implied findings of the trial court, the judgment of the trial court is affirmed.

Affirmed.

      . This figure is evidently the sum of $2,648.52 plus $645.00.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    COASTAL BEND MILK PRODUCERS ASSOCIATION, Appellant, v. Rudolph GARCIA et al., Appellees.
    No. 14133.
    Court of Civil Appeals of Texas. San Antonio.
    April 24, 1963.

      Frank D. Masters, San Antonio, Harold S. Nelson, New Braunfels, Homer E. Dean, Jr., Alice, for appellant.
    Perkins, Floyd, Davis & Oden, Alice, for appellees.
   BARROW, Justice.

This is an appeal by Coastal Bend Milk Producers Association, a corporation organized under the Co-operative Marketing Act of Texas, Art. 5737 et seq., Vernon’s Ann.Civ.Stats., from a temporary injunction granted forty-five of its producer members, enjoining the Borden Company from making remittance direct to the Association for payment of milk sold the Borden Company by these producers. The Borden Company has not appealed. The producers sought the injunction to prevent the Association from deducting, as liquidated damages, a sum equal to twenty per cent of the gross sale price of the milk sold by the producers, pending trial on the merits.

The sole question is whether the trial court abused its discretion in granting the temporary injunction. The purpose of the issuance of a temporary injunction is to preserve the status quo in regard to the matter in controversy or prevent irreparable injury or damage to applicant pending final determination of the case on its merits. Ordinarily, it is not a substitute for, nor does it serve the same purpose as, the hearing on the merits. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417; West Texas Gulf Pipe Line Co. v. Hardin County, 159 Tex. 374, 321 S.W.2d 576; Godley v. Duval County, Tex.Civ.App., 361 S.W.2d 629. In Texas Foundaries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, our Supreme Court held that:

“The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction, to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion.”

It is also settled that to warrant the issuance of the writ, the applicant need only show a probable right and a probable injury ; he is not required to establish that he will finally prevail in the litigation. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

The appellant Association is composed of approximately 250 producer members in the Corpus Christi milk market area. The members joined the Association by a written contract and there are three forms of contracts involved in this appeal. In July, 1962, the Board of Directors determined that it would be financially beneficial for the Association to haul its own milk in order to have equipment to haul surplus milk, and passed a resolution requiring the producers to deliver their milk to the Association plant, to-wit, a mobile tank truck. The appellee producers have dairies in Jim Wells, Duval and Jim Hogg Counties, and for many years prior to July, 1962, their milk was hauled by two non-association members, Rudolph Garcia and C. W. Clark. These private carriers had purchased expensive equipment for this purpose and the Association was unable to work out a satisfactory arrangement to purchase that equipment. Appellee producers were not satisfied with the new arrangement and permitted these private carriers to continue to haul their milk. The Association will continue to sell the milk to the Borden Company but wants to haul the milk of all members to the Borden Company in Association trucks. The record reflects that thirty-one of the appellee producers submitted a written resignation, all dated July 9, 1962, whereby each producer tendered his resignation to take effect at the earliest possible date permitted under the terms of his contract, and giving the Association’s treatment of the private carriers as the reason for his resignation. The Association has never accepted these resignations and questions their validity. It would be premature for us to decide the validity of the resignations on this interlocutory appeal.

On October 3, 1962, the Association filed this suit against Garcia and Clark to enjoin them from interfering with the Association’s hauling of its producer members’ milk. Subsequently the Association joined, as defendants, forty-six of its producer members, including the appellees herein, and alleged that they refused to deliver the milk to the Association for handling and hauling to market, and prayed for judgment against each of said producers for the amount provided in his membership contract, as liquidated damages. On September 27, 1962, and again on October 31, 1962, the Association made written request of Borden Company to make payment to it for all milk sold by the producer members. This request was made in accordance with an order of the Secretary of Agriculture, styled, “ORDER REGULATING THE HANDLING OF MILK IN THE CORPUS CHRISTI, TEXAS MARKETING AREA,” and identified as “ORDER NO. 130.” Sec. 1130.80 of said order authorizes a cooperative association which is authorized by its members to collect for their milk to make a written request of the handler to pay the association for milk received from its member producers. Pursuant to this request, on November 13, 1962, the Borden Company paid the Association for the milk received from its producer members. The Association deducted liquidated damages of twenty per cent of the gross sale price of the milk before making payment to the ap-pellee producers. The Association’s manager testified that the Association would continue to deduct the liquidated damages pending the trial unless enjoined by the court. He admitted that such a. deduction would probably force several of the appellees out of business. Appellees filed a cross-action against the Association, wherein they alleged that the liquidated damages were withheld without authority, and asked for a temporary injunction enjoining Borden from paying the gross receipts from the sale of their milk to the Association. The trial court granted a temporary injunction and expressly found that the Association, unless enjoined, would continue to deduct its purported liquidated damages and’ that appellees would suffer irreparable injury and damage. The trial court expressly restored the method of handling milk and paying for same to the status as of October 3, 1962, when the suit was filed.

Appellant asserts that the membership contracts and Marketing Order 1130 authorized all the actions taken by the Association, and this was the true status quo as of October 3, 1962. It is seen, however, that neither any form of the contract agreements, the by-laws of the Association, nor Marketing Order 1130, authorized the Association to deduct or retain liquidated damages from money belonging to its members which might come into its possession.

The by-laws provide that liquidated damages shall be determined by the member’s agreement. One form, identified as Ex. No.. 6, was signed by twenty-six of the appellee producers. It provides in part that:

“SEVENTH: The member hereby agrees that if at any time while this agreement is in force and effect, he neglects or refuses to deliver said milk or dairy products to such person, or persons, * * * as may be designated from time to time by the association then, and in that event, the member will pay to' the association a sum of money equal to twenty per cent of the gross sale price of such milk or dairy products as the member may deliver to any person, or persons, * * *.”

It further provides that the payment is agreed upon as liquidated damages.

The other two forms of membership agreements, signed by the other nineteen appellee producers, provide for liquidated damages to be assessed against a member who violates or breaches his membership agreement. These agreements provide that these damages shall be assessed by the Board of Directors in a sum not less than $10.00 and not exceeding $200.00. The evidence is undisputed that the Board of Directors has never assessed any liquidated damages. The Association asserts that on November 9, 1962, the Directors passed a resolution to make all membership agreements read the same as Ex. No. 6. ARTICLE III, Section 7, of the by-laws provides :

“Execution of membership agreement. Members must sign membership agreement. All those seeking membership must sign agreement in order to become a member of this association. The Board of Directors is empowered to determine the form and contents of membership agreements and to amend same.”

There is no contention that any of the latter nineteen appellee producers in any way accepted or ratified any change in their membership agreements after the commencement of this litigation. These appel-lees have shown a probable right that without their consent or ratification this resolution of the Directors would not affect their executed agreement as to liquidated damages.

The membership marketing contracts are authorized by Art. 5753, Vernon’s Ann.Civ.Stats., and there is no provision in this statute permitting the Association to deduct the liquidated damages from funds owing to the producer members, although there are provisions for the Association to protect itself against threatened breach of the marketing contract.

Appellant has failed to show any statutory or contractual authority to make this deduction, and in view of the evidence establishing that, unless enjoined, it would continue to withhold this deduction from the checks of appellee producers, it is our opinion that appellees showed a probable right and a probable injury. Stidham v. Laurie, Tex.Civ.App., 133 S.W. 1082; Rucker v. Campbell, 35 Tex.Civ.App. 178, 79 S.W. 627.

Appellant asserts that the trial court abused its discretion in that the State Court does not have jurisdiction to grant this relief. It is seen that appellant commenced this suit and asked for judgment for its liquidated damages. When it sought to collect the damages from funds of appel-lees before securing the judgment, appellees had the right to seek injunction in the same forum selected by appellant. Panos v. Foley Bros. Dry Goods Co., Tex.Civ.App., 198 S.W.2d 494; Spence v. State National Bank, Tex.Com.App., 5 S.W.2d 754. The Federal Marketing Order does not authorize appellant to deduct its liquidated damages. The only issue in dispute is the authority of appellant to- deduct the twenty per cent liquidated damages prior to judgment. We do not believe the trial court abused its discretion in maintaining the status quo pending determination of the suit.

Appellant asserts that, in any event, the trial court abused its discretion in requiring only a $5,000.00 bond for the issuance of the temporary injunction, as the liquidated damages would amount to about $8,600.00 each month, and the case is not set for trial until June, 1963. This is a matter addressed to the sound discretion of the trial court, and in view of the fact that appellant is now holding over $24,000.00 of assets belonging to appellees, and the issues raised by appellees concerning the construction of the agreements as to the amount and application of liquidated damages, we cannot say that the trial court abused its discretion.

The judgment is affirmed.


author: HARRIS, Chief Justice.

text:
    Alton VIRE, Appellant, v. Alice VIRE, Appellee.
    No. 5-3011.
    Supreme Court of Arkansas.
    June 3, 1963.
    Robert E. Irwin, Russellville, for appellant.
    D. B. Bartlett, Clarksville, for appellee.
   HARRIS, Chief Justice.

Appellant and appellee were married in Johnson County on June 9, 1962. The instant suit for divorce was instituted by ap-pellee on August 30, 1962, a few days after the parties had separated, in which she alleged general indignities. Appellant an.--swered with a general denial, specifically pleaded condonation, and filed a “counterclaim” for divorce, likewise alleging general indignities pursued until his condition in life had become intolerable. Following the filing of amendments to the pleadings, the cause proceeded to trial. At the conclusion of the evidence, the court entered its decree, granting appellee an absolute divorce, and from such decree, appellant brings this appeal.

We are unable to consider this appeal on its merits since appellant has failed to comply with Rule 9(d) of the rules of this court. We have stated numerous times that we are not required to explore a record that is presented to us, but that the duty rests on appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Allen v. Overturf, 236 Ark. 387, 366 S.W.2d 189, and cases cited therein. The pleadings and decree in this case are abstracted, but there is no abstract whatsoever of the testimony and exhibits which cover approximately 65 pages. A few references are made, in the brief itself, to isolated portions of the testimony, but not to a sufficient extent that we can comprehend the full nature of the evidence. As stated in Reeves v. Miles, 236 Ark. 261, 365 S.W.2d 460:

“Although the record contains more than fifty pages of pleadings, exhibits, and testimony, appellant has presented us with no abstract of the same. The casual references in the argument to this testimony are not sufficient for us to formulate an informed opinion on the merits of the case. In such a situation this Court has heretofore uniformly affirmed the trial court’s decree or judgment. See: Ellington v. Remmel, 226 Ark. 569, 293 S.W.2d 452; Porter v. Time Stores, Inc., 227 Ark. 286, 298 S.W.2d 51; Farmers Mutual Ins. Company v. Watt, Et Ux., 229 Ark. 622, 317 S.W.2d 285; and, Anderson v. Stallings, 234 Ark. 680, 354 S.W.2d 21.”

Affirmed.

      . According to appellant’s statement of the case, this “counterclaim” was dismissed prior to the trial. It is not involved in this appeal.


text:
    D. B. BELL, President, Marvin Beil, Secretary, Lee Austin, R. C. Craven and Hazel Walls, Directors of Sevier County High School District No. I, Appellants, v. HOWARD COUNTY TRAINING SCHOOL DISTRICT NO. 38, Appellees.
    No. 5-3027.
    Supreme Court of Arkansas.
    June 3, 1963.
    John B. Hainen, DeQueen, for appellants.
    Don Steel, Nashville, for appellees.
   HARRIS, Chief Justice.

At the beginning of school in the fall of 1962, fifty students, who had previously attended Howard County Training School District No. 38, a school district located in two counties, and appellee herein, situated at Tollett in Howard County, transferred to Sevier County High School, District No. 1, located at Lockesburg in Sevier County. Hereinafter, at times, these schools will be referred to as Tollett and Lockesburg. Thirty-five of the fifty children live in still another school district, Mineral Springs School District No. 3, likewise a district in two counties, administered in Howard County. All of the fifty children live in Sevier County, and were transferred upon the individual applications of respective parents or patrons with the approval of Sevier County High School District No. 1 and the Sevier County Board of Education. Tol-lett School, through its Board of Directors, instituted suit against the directors of Lockesburg, appellants herein, alleging, ih- ter alia, that such transfer of students could not be made without the approval of the Howard County Board of Education, and that this board had not given its approval. Appellee alleged that it would suffer irreparable damage in state aid for its school district unless appellants were enjoined from permitting the fifty students, “residents of Howard County Training School District No. 38 from attending Sevier County High School District No. 1,” and injunctive relief was sought. On trial, the court entered its decree restraining and enjoining appellants from permitting the aforementioned fifty students to attend the Lockesburg School. From such decree, comes this appeal.

The first question in this litigation is whether the fifty students were legally transferred from Tollett to Lockesburg. All facts were stipulated, except that appellants offered some additional evidence by parents of affected students. Part of this evidence was to the effect that the school at Lockesburg was not convenient for the particular students (whose parents testified), and other parents were of the view that their children were better satisfied, and would receive a better education at the Lockesburg School. Portions of the stipulation, which we deem pertinent to a determination of the litigation, not already mentioned in the statement of the case, áre as follows:

“On June 1, 1949, the Sevier County Board of Education with the approval of the Howard County Board of Education and with the approval of Howard County Training School District No. 38 authorized and directed the territory that was formerly Para-loma School District No. 54 in Sevier County to become annexed to Howard County Training School District No. 38, and on the same date the Sevier County Board of Education with the approval of the Howard County Board of Education and with the approval of Howard County Training School No. 38 authorized and directed the annexation of the territory that was formerly Graves Chapel School District No. 60 in Sevier County to Howard County Training School District No. 38. Both of the above mentioned transfers were approved by the State Department of Education. * * *
“Since June 1, 1949, students of what was formerly the Paraloma School District No. 54 and Graves Chapel School District No. 60 have been attending Howard County Training School District No. 38, however, some patrons expressed the desire to attend Sevier County High School District No. 1 located at Lockesburg, Arkansas, and in connection therewith presented petitions to the Sevier County Board of Education to transfer to the Lockesburg School in the years of 1959, 1960 and 1961. For these years the students were refused permanent enrollment to the Lockesburg School. * * *
“Howard County Training School No. 38, because of the annexation orders mentioned above, embraces territory in Howard and Sevier County.
“There are a greater number of inhabitants and students residing in the Howard County portion of Howard County School district No. 38 than in the Sevier County portion of said District, and the Howard County Board of Education administers Howard County School District No. 38. * * *
“Neither the Howard County Training School District No. 38 School Board nor the Howard County Board of Education approved the transfer of said students.
“Mineral Springs School District No. 3- where 35 of the 50 involved students reside is a School District embracing territory in both Howard and Sevier County. There are a larger number of inhabitants and students residing in the Howard County portion of Mineral Springs School District No. 3 than in the Sevier County portion of said District, and said School District is administered by the Howard County Hoard of Education.”

Neither the stipulation nor the oral evidence reflects whether the thirty five pupils in the last named district, were ever properly transferred from the Mineral Springs District to Howard County Training School District No. 38.

Our statutes authorize a transfer of children from one school district to another. Section 80-1517, Ark.Stats. (1960 Replacement) provides:

“The county board of education shall have power, upon the petition of any person residing in any particular school district, to transfer the children or wards of such person to a district in the same county, or to a district in an adjoining county for school purposes. * * *"

Section 80-1518, Ark.Stats. (1960 Replacement) further sets out:

“From and after the passage of this act no County Board of -Education shall make an order transferring any school child or children from one district to another until and unless the consent of the Board of Directors of the district to which such child or children are sought to be transferred has been secured in writing, such written consent to be filed in the office of the County Clerk of the county from which such child or children are to be transferred.”

Appellants argue that the paramount authority for any transfer rests within the receiving district, and 'since the receiving district, in this case, approved the transfer of these children, same is valid. Appellants further rely upon the provisions of Section 80-1527, Ark.Stats. (1960 Replacement), a portion of the “Pupil Assignment Act,” and the apparent purpose of offering the testimony of various parents was to come within the provisions of that act.

While we concur that a child cannot be transferred to another district without the consent of the Board of Directors of the receiving district, we do not agree that the paramount authority rests with the Board of the receiving district; rather, a valid transfer requires the “consent” of both the “sender” and the “receiver.” The transfer must be made by the County Board of Education in which the “sending” district is located (§ 80-1517), or in the case of adjoining districts, by mutual agreement between the two local Boards of Education (“sending” and “receiving”).

Pertinent portions of § 80-414 (1960 Replacement) read as follows:

“Districts may be formed embracing territory in two (2) or more counties on order of the County Board of Education in each county where a part of the district will be situated, and changes of boundaries of school districts in such situations may be made in the following manner: When copies of a petition of a majority of the qualified electors in each district affected, praying for the formation of such a district, are presented to the County Board of Education concerned, the County Board of Education of the county in which lives the largest number of inhabitants of the territory affected shall, within five (5) days, give notice to the county and district boards affected of a hearing to be held not less than ten (10) days nor more than thirty (30) days from the date of said notice, to be held at some designated time and place in the proposed district. The County Board of Education, or their duly constituted representatives, of each county in which territory of the proposed district is situated, shall attend such hearing, and shall consider such facts as they may deem pertinent for consideration in the formation of the proposed district. Within five (5) days after said hearing the County Board of Education of each county in which territory of the proposed district is situated, if in the judgment of said boards such a district should be formed, shall issue an order transferring the territory affected in their respective counties, to the proposed district. Said order shall be filed with the county supervisor of each respective county and with the county supervisor of the county in which is situated the largest number of inhabitants of the territory affected. Such district thus formed, for all school purposes, shall be thereafter a part of the county in which is situated the largest number of inhabitants of the territory affected. * * *

It is stipulated in this litigation that “there are a greater number of inhabitants and students residing in the Howard County portion of Howard County School District No. 38 than in the Sevier County portion of said district, and the Howard County Board of Education administers Howard County School District No. 38.” It is also admitted that neither the Howard County Board of Education nor the Howard County Training School District No. 38 school board approved the transfer of these students. Thus, the pupils were not transferred in accordance with the provisions of either § 80-1517 or § 80-1528. It follows that the transfer was not properly made.

A similar dispute arose in Gillham School Dist. No. 47 of Sevier and Polk Counties v. Millard, 203 Ark. 1121, 160 S.W.2d 215. There School District No. 47 included territory in both Sevier and Polk Counties, with the larger number of its inhabitants residing in Sevier County. The County Board of Education, or County Court, of Polk County transferred a number of students from District No. 47 to District No. 79, which embraced territory in only Polk County. This Court, in holding that the action of the Polk County authority in making such transfer was illegal, said:

“The trial court found, and the undisputed facts sustain the finding, that a majority of the inhabitants of district No. 47 reside in Sevier county. Section 11486 provides in part that ‘for all school purposes such district, situated in two or more counties, shall be a part of the county in which is situated the largest number of inhabitants of the territory affected’. District No. 47, under the statute, is a Sevier county district for all school purposes, and its domicile is in Sevier county. * * * That part of Polk county embraced in District No. 47 being in Sevier county for all school purposes, it follows that Sevier county authorities and not Polk county authorities have and had the right to transfer students or pupils out of District No. 47 into District No. 79 upon proper application. Polk county officials had no authority or jurisdiction to transfer students or pupils out of the Sevier county district to District No. 79, and the order doing so being void is subject to collateral attack.”

The Pupil Assignment Act can be of no aid to appellants for § 80-1527 only authorizes a county board of education to assign or transfer students to other schools “within its jurisdiction.’’ Here, the transfers were made by Sevier County High School District No. 1 and the Sevier County Board of Education. Neither had jurisdiction over pupils of Howard County School District No. 38 and the purported transfer was consequently not properly made.

However, the omission in the stipulation as to whether the Mineral Springs children were originally properly transferred to Howard County Training School District No. 38, necessitates a remand of this cause for further proceedings relative to the status of the thirty-five children who live in the Mineral Springs district. It is not clear whether this point was presented to the trial court, but appellants, in their brief, strenuously argue that no showing has been made that any of these thirty-five children have ever been transferred to the Tollett District, and that a “majority of the involved children do not live within the Tollett District, have never lived in the Tollett District and are not in any way a part of the Tollett District.”

While, as stated, the transfer of the fifty children to Sevier County High School District No. 1 was not legally made, still if these children were never legally transferred from Mineral Springs to the Tollett School, the board of the latter district cannot be heard to complain. The Howard County Board of Education is not a party to this law suit, nor is the board of Mineral Springs School District No. 3. These boards have made no complaint — have sought no relief — and unless these thirty-five children have been previously properly transferred from the Mineral Springs District to Howard County Training School District No. 38, appellee has no standing to question the action of the Sevier County Board of Education and Sevier County High School District No. 1.

As to the fifteen children (formerly in the Paraloma and Graves Chapel School Districts which were annexed to Howard County Training School District No. 38) the decree is affirmed, but the cause is remanded to the Sevier County Chancery Court with directions to conduct further proceedings for the purpose of determining whether the thirty-five students who reside in Mineral Springs School District No. 3 were legally transferred from that district to Howard County School District No. 38, and upon making such determination, to enter a decree consistent with this opinion.

It is so ordered.

      . This act was held valid in the case of Dove v. Parham, D.C., 176 F.Supp. 242.

      . Section 80-1527 deals with factors considered in assignment of pupils, and inter alia, provides that the local board of education shall consider “the availability of transportation facilities; * * * the .psychological qualification of the pupil for ,the type of teaching and associations involved; * * * the choice and interests of the pupil.”

      .Section 80-1528 (1960 Replacement) provides: “A local Board of Education may, by mutual agreement, provide for the admission to any school of pupils •residing in adjoining districts whether in the same or different counties, and for transfer of school funds or other payments by one Board to another for or on account of such attendance.”

      . This section is the same as the present § 80-414.

      . Also referred to as “local boards of education.” See § 80-1526.


author: ROBINSON, Justice.

text:
    Roy STILLMAN, Appellant, v. JIM WALTER CORPORATION et al., Appellees.
    No. 5-3026.
    Supreme Court of Arkansas.
    June 3, 1963.

      McMath, Leatherman, Woods & Young-dahl and John P. Sizemore, Little Rock, for appellant.
    Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellees.
   ROBINSON, Justice.

On August 13, 1959, appellant, Roy Still-man, and appellee, Jim Walter Corporation, entered into a written contract, Jim Walter Corporation being designated as “contractor” and appellant, Roy Stillman, designated as “sub-contractor”, whereby the Jim Walter Corporation engaged Stillman to build houses for a specified consideration, the amount of the consideration depending on the type of house constructed. Stillman was to furnish only the labor.

Item 5 of the contract provides: “SubContractor shall furnish Contractor a Certificate of Workmen’s Compensation coverage on Sub-Contractor and all employees of Sub-Contractor or, in the absence of such Certificate, all payments hereunder shall be subject to a 3% deduction and Contractor will furnish such Workmen’s Compensation coverage.”

Subsequently, Stillman was injured on the job. His medical expenses were paid by the insurance carrier, but when it was determined that he needed an operation due to the condition of his back, no further payments were made. Stillman filed a claim with the Workmen’s Compensation Commission. The matter was heard and the Commission denied compensation on the ground that under the terms of the contract of employment Stillman was an independent contractor, not an employee, and therefore he could not collect under the workmen’s compensation law for his injury. The Commission never reached the issue of whether the claimant was injured in the course of his employment, nor the extent of his injuries.

The parties had entered into a valid agreement whereby for the consideration of 3% of the contract price payable to Stillman for building the houses, Walter agreed to furnish workmen’s compensation coverage for Stillman and his employees. With Still-man’s consent, the 3% was deducted and the coverage furnished. If Stillman had suffered the loss of a leg, or other very serious injury through the negligence of agents or servants of the Jim Walter Corporation, the employer or insurance carrier could have claimed that recovery could be had only according to the terms of the workmen’s compensation law; that Still-man was estopped to contend otherwise.

Regardless of whether Stillman was, in fact, an independent contractor or an employee, under the facts in this case, the Jim Walter Corporation is estopped to say that he is not entitled to workmen’s compensation. Carpenter v. Madden, La.App., 90 So.2d 508 (1956). And in Garner v. Southern Pulpwood Ins. Co., La.App., 149 So.2d 157 (1963), the court pointed out that in the Carpenter case the employer was bound to furnish workmen’s compensation coverage because he had obligated himself to do so, and had collected money purportedly to pay for compensation insurance. That is the exact situation in the case at bar.

Here, after the injury occurred, the employer and the insurance carrier attempted to rescind the coverage. Ark.Stat.Ann. § 81-1305 (Repl.1960) provides: “* * * The primary obligation to pay compensation is upon the employer and the procurement of a policy of insurance by an employer to cover the obligation in respect to this act shall not relieve him of such obligation.” The contract to furnish insurance was between the Jim Walter Corporation and Stillman. The Corporation was bound by its contract, and had no right to repudiate its obligation regardless of the attitude of the insurance carrier. It was the employer’s contract, not the insurance company’s.

In support of its position that the employer is not estopped to deny liability for workmen’s compensation, appellee cites Smith v. West Lake Quarry & Material Co., 231 Ark. 294, 329 S.W.2d 167. We did touch on the question to some extent in that case; however, there, the employer made no deduction from the worker’s earnings for workmen’s compensation; there was .no contract to furnish workmen’s compensation, and apparently no insurance coverage was provided. In the cases of Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S.W.2d 445, and Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341, 8 A.L.R.2d 261, we said that the fact that workmen’s compensation coverage was provided could be considered in determining whether an employer-employee relationship existed. Th.e cases did not turn on the question of estoppel. And, it was spe.cifically pointed out in the Ozan Lumber Company case that in the circumstances of that case it was not necessary to decide whether the procurement of insurance in itself was sufficient to establish the relationship of master and servant. There, the court said: “[I]t is unnecessary to decide whether the procurement of such insurance [workmen’s compensation insurance] is sufficient in itself to establish the relationship of master and servant.”

In view of the written contract, supported by a valuable consideration which was paid, obligating appellee to furnish workmen’s compensation coverage on Still-man and the other workers, we do not reach the question of whether the mere deduction of the 3%, plus the actual procurement of coverage by the employer, estopped the Jim Walter Corporation from denying that Stillman and the other men working with him were employees. In recent years, however, several courts have dealt with the proposition of whether the payment of an insurance premium for coverage under the workmen’s compensation law on a particular person estops the employer and insurance carrier from denying that such person on whom the insurance is paid is an employee. The weight of authority appears to be that in circumstances of that kind, the doctrine of estoppel is applicable. Hall v. Spurlock, Ky., 310 S.W.2d 259; Ham v. Mullins Lumber Co., 193 S.C. 66, 7 S.E.2d 712; Nash v. Meguschar, Ind.App., 89 N.E.2d 227; Herndon v. Slayton, 263 Ala. 677, 83 So.2d 726; Hano v. Kinchen, La.App., 122 So.2d 889; Southern Underwriters v. Jones, Tex.Civ.App., 125 S.W.2d 393; Smith Coal Co. v. Feltner, Ky., 260 S.W.2d 398.

Reversed and remanded for the determination of the questions of whether Stillman was injured in the course of his employment, and, if so, the extent of his injuries.


author: McFADDIN, Justice.

text:
    MUTUAL BENEFIT HEALTH & ACCIDENT ASS’N, Appellant, v. Alexander Hendrix ROWELL, Appellee.
    No. 5-3013.
    Supreme Court of Arkansas.
    June 3, 1963.

      Barber, Henry, Thurman & McCaskill, Little Rock, John Harris Jones, Pine Bluff, for appellant.
    Jay W. Dickey, Pine Bluff, for appellee.
   McFADDIN, Justice.

The appellant insists that there was no sufficient evidence offered by appellee to take this case to the jury. In 1949 appellant, Mutual Benefit Health & Accident Association of Omaha, Nebraska (hereinafter called “Mutual”), for value received, issued to the appellee, Hendrix Rowell, then 41 years of age and a practicing attorney, two policies of insurance, the pertinent provisions of which will be subsequently discussed; and Mr. Rowell regularly paid all premiums due on the policies and was at all times well and active until June 1958. One morning when he attempted to arise from his bed his right leg and arm gave way because of numbness, which gradually disappeared in the course of the day; but the next morning the same thing occurred.

Mr. Rowell consulted several neurosurgeons, and was advised that he had hardening of the arteries and arteriosclerosis of the brain; that nothing was mentally wrong; that if he continued his work as a lawyer the stress and strain could cause paralysis or death; that he should retire from the law practice and all other business activities; that he should get plenty of sleep and rest; that he should not drive an automobile, but could take rides with a driver; and that he was to have regular monthly examinations. All of this was in June 1958; and Mr. Rowell assiduously followed the instructions and directions of his physicians. He filed claim with Mutual on the two policies herein on the basis of total permanent disability, and each month sent a doctor’s report; and Mutual made regular monthly payments of $500.00 on the two policies. These payments began on July 23, 1958, and continued regularly each month until April 23, 1961, when all payments were discontinued.

In September 1961 Mr. Rowell filed the present action for the monthly payments delinquent since April 1961. The defenses of Mutual were: (a) that Mr. Rowell’s disability was due to “mental infirmity,” which was excepted from the policy coverage; and (b) that Mr. Rowell was not “continuously confined indoors,” which was a policy requirement. Trial of the case to a jury resulted in a verdict and judgment for Mr. Rowell for past due payments, penalty, and interest; and Mutual brings this appeal, urging the points now to be discussed.

I. Mental Infirmity. Mutual insists that it was entitled to an instructed verdict because — as it says — all the evidence shows that Mr. Rowell’s disability was due to "mental infirmity.” The insuring clause of each policy contained this language:

“(b) the term, such sickness, as used in this policy, shall mean sickness, the cause of which originates while this policy is in force and more than thirty days after the Policy Date * * * but shall not include * * * mental infirmity * *

The Trial Court gave its Instruction No. 1, which is not here claimed to be erroneous, and which reads:

“It is stipulated that Hendrix Rowell, plaintiff in this case, is totally disabled to practice law. You shall find for the plaintiff, Hendrix Rowell, unless you further find, as defined by these instructions, that his disability is the result of mental infirmity or that he was not continuously confined, according to other instructions defining said continuous confinement, or was not regularly attended by a licensed physician, as defined by these instructions.”

Mutual insists that the hardening of the arteries of the brain was a “mental infirmity”; and to sustain its argument on this point, Mutual cites and relies on, inter alia, the following cases: Grabove v. Mutual Benefit, 241 Ala. 88, 1 So.2d 297; Moss v. Mutual Benefit, 89 Utah 1, 56 P.2d 1351; and Lyle v. Reliance Life Ins. Co., 197 Ark. 737, 124 S.W.2d 958. We find these cases to contain factual situations entirely dissimilar from those in the case at bar, and we consider them of no application. Even though the burden of proof in this case was on Mutual to establish, by a preponderance of the evidence, its claim of mental infirmity, nevertheless, here is some of the evidence on behalf of Mr. Rowell which we think had directed bearing on this matter of “mental infirmity.” Dr. R. E. Semmes, a recognized neurosurgeon, testified that he examined Mr. Rowell in 1958 and at subsequent times:

“There was no evidence of tumor, clots and so forth. In the absence of any pressure signs to indicate obstructive hydrocephalus, that would be called the dilution of the brain to get larger, the destruction was from degeneration, we can conclude the atrophy was on the basis of loss of circulation of the brain, a diminished circulation; that this in turn was probably due to hardening of the arteries. * * * On examination there was a fine tremor of the right hand. There was no neurological deficit. There was some local vessel involvement in'his right leg but no true imbalance. Cranial nerves were all intact. Examination of the eye-grounds showed arteriosclerosis of the retinal vessels but no pressure signs. There was no motor or sensory loss nor significant reflex changes. * * *
“Q. Did you prescribe any type of exercise for Mr. Rowell?
“A. No specific.
“Q. Did you make any suggestion whether he should get outside and to visit?
“A. As a general rule everyone needs exercise otherwise the joints and muscles * * * you * * * it is both * * * you must get a certain amount of interest with which to keep your physiology going.
“Q. Therapeutic ?
“A. His attitude, his vision, hearing and without all those, (interrupted)
“Q. This therapeutic value of exercising and sunshine is beneficial to a person ?
“A. That is essential. * * *
“Q. By this arteriosclerosis or hardening of the arteries at any time is there a possibility of a stroke for different sides of your body, different portions of your body?
“A. Lack of circulation interferes with any organ and the brain, of course, controls your mental processes and emotional system and your movements and feelings and sight and hearing and judgment and just about everything else.”

Whether by skilled cross examination Dr. Semmes’ testimony was weakened was a question for the jury to decide. Furthermore, we mention that Mr. Rowell testified in the trial, both on direct and cross examination, and the jury was able to observe him. His testimony began before lunch, was interrupted by the lunch hour, and was resumed in the afternoon; and, exclusive of exhibits, occupies 67 pages in the transcript. Thus, the jury had ample opportunity to see whether Mr. Rowell was “mentally infirm.” Certainly a jury question was made; and the jury could well have concluded — as we do — that hardening of the arteries is a physical infirmity, since some of the arteries are a part of the physical body; that when the arteries in the brain harden and a mental atrophy resulted it was the result of a physical infirmity and not a mental infirmity. We find no merit in appellant’s argument on “mental infirmity.”

II. Continuous Confinement. Each of the policies sued on contain substantially this language as essential to the establishment of Mutual’s liability:

“ * * * If the Insured, because of such sickness, shall be continuously confined within doors and regularly attended therein by a legally qualified physician * *

In addition to the Instruction No. 1, previously quoted, the Trial Court instructed the jury on this matter of continuous confinement in Instructions Nos. 4, 10, and 13, as follows:

“4. If you find from the testimony in this case that the plaintiff Rowell was advised by a reputable physician or physicians to take a reasonable amount of exercise and to subject himself to fresh air and sunshine, for the best interest of the treatment of plaintiff’s condition from which he suffered, and further advised him to take automobile trips; and if you further find that the plaintiff transacted a limited amount of personal business, and, in good faith relying upon the advice of his physician or physicians, did take short walks and automobile trips, and took a moderate amount of exercise, and subjected himself to fresh air and sunshine, then you are told that this is in compliance with the provisions of the policy providing that the plaintiff must be continuously confined indoors, and you may take this into consideration, along with other evidence, in arriving at your verdict. * * *
“10. The Court instructs you that if you find from the evidence that the plaintiff has not been continuously confined within doors, as explained in these instructions, or if so confined has not been regularly treated at the place of confinement by a legally qualified physician, then your verdict shall be for the defendant. * * *
“13. The Court further instructs you that the burden is upon the plaintiff to prove by a preponderance of the evidence that he has been continuously confined within doors and that he has been under the professional care of a physician therein at such place of confinement as explained in these instructions. If you find that the plaintiff has not met this burden of proof, your verdict shall be for the defendant.”

In March 1961 Mutual employed special investigators to trail Mr. Rowell and watch his every movement, in an effort to see if he was “continuously confined within doors”; and such investigators testified for Mutual in this case. But the testimony of Mr. Rowell and his physicians, as to their prescriptions and advice to him, were sufficient to make a jury question on this matter of continuous confinement within doors. In Occidental Life Ins. Co. v. Sammons, 224 Ark. 31, 271 S.W.2d 922, we had before us a case in which the continuous confinement clause required the insured to be “absolutely unable to leave the house and the yard situated immediately around the house * * * ” ; and that the insured should not leave such confines “except to be transported to the office of the physician or surgeon or the hospital or sanitarium * * *.” In resisting Sammons’ claim, the insurance company showed that he had regularly followed the practice of leaving his house and yard for the purpose of taking rides, walking for recreation, and visiting with friends at various places, but that all such activities were engaged in upon the advice of his physician; that from November 11, 1950 to December 30, 1950 he worked and earned $180.00 compensation, but that the work which he did was done upon the advice of his physician. After citing many of our leading cases, we held that Sammons had not violated the confinement clause of the policy:

“In giving a ‘liberal’ construction to a house confinement clause in a policy, the Arkansas Court is following the majority view of the Courts in the United States. Some states give ‘literal’ construction but the great majority of cases have expressly or impliedly rejected the ‘literal’ construction doctrine and have adopted a ‘liberal’ view similar to that of the Arkansas Court. These cases are collected in an annotated form in 29 A.L.R.2d 1408, in which cases from twenty-seven states are cited following the ‘liberal’ construction view.”

We have previously quoted a portion of Dr. Semmes’ testimony as to the fact that certain exercise was of a therapeutic value. Dr. Semmes further testified as to his advice to Rowell:

“I thought he ought to keep himself active and get fresh air and a certain amount of exercise and occupy himself as far as he could without running any risks, and to follow the medical indications for hardening of the arteries.”

Dr. George Talbot was Mr. Rowell’s local physician in Pine Bluff and, along with Mr. Rowell, made monthly reports to Mutual, which original reports are in the record before us and are quite enlightening. Mutual knew all along that Mr. Rowell was going to Dr. Talbot’s office and following his instructions/ Dr. Talbot testified:

“Q. Did you recommend that Mr. Rowell take exercise and walk from time to time?
“A. I did, to be out of his house and move around.
“Q. It is therapeutically beneficial to him to get exercise and sunshine ?
“A. There was no reason to limit him physically, there was no reason to confine him to the house, naturally he would be better off to be out and around.
“Q. As Dr. Semmes advised him to get exercise you would go along with that?
“A. I did.
“Q. If he told him to take occasional trips in a car you would go along with that, it is on the records you sent into Mutual of Omaha, didn’t you?
“A. I did.”

Without reciting all of the evidence as to Mr. Rowell’s activities, it is sufficient to say that, under our holding in Occidental Life Ins. Co. v. Sammons, supra, a question was made for the jury as to whether Mr. Rowell was “confined continuously indoors” within the policy coverage. The appellant cites, and strongly relies on our case of Michigan Life Ins. Co. v. Hayes, 231 Ark. 614, 332 S.W.2d 593, and claims that the Hayes case in effect overrules or materially limits the Sammons case. In the Hayes case the confinement clause was practically the same as in the Sammons case; but the activities of Dr. Hayes were of such a vast and continuous nature that we held that, even on a physician’s advice and prescription, we could not say that a totally disabled person could engage in all of those activities and still claim to be within the language of the confinement clause. We said that the Sam-mons case went as far in the “liberal construction” as we cared to go, and that the activities in the Hayes case went beyond the pale of activities allowed by the Sam-mons case. Here is our language:

“To state our position, we simply say that this Court is unwilling to further extend or further liberalize the interpretation given the confinement clause in the Sammons case, i. e., that case represents the ultimate peak of liberal construction which we have approved — or will approve in future cases. Of course, appellee asserts that this case calls for no more liberal construction than the Sammons case. As stated, we disagree with this assertion; but if it be correct — then we are modifying our previous interpretation.”

In the case at bar, the activities of Mr. Rowell, under the advice and direction of his physicians, were not nearly as extensive as those sanctioned in the Sammons case, so we hold, here, that a question was made for the jury under the Sammons case, and that the activities here are not to the extent of those in the Hayes case. There was ample evidence to sustain the jury’s verdict.

III. Mutual’s Objections to Instruction No. 4. In Topic II, supra, we copied Instruction No. 4, and noted that Mutual objected specifically to said instruction. We now discuss the point. Mutual claimed that certain expressions in the instruction were indefinite and therefore the entire instruction should have been refused. The appellant seeks a reversal because of its specific objections; but the answer is clear: the Instruction No. 4 was not inherently erroneous; and if the appellant considered the Instruction No. 4 to be “indefinite” in the particulars mentioned, the burden was on the appellant to offer an instruction which eliminated the so-called indefinite words, or to offer instructions which defined the words or expressions which appellant considered to be indefinite. McGee v. Smitherman, 69 Ark. 632, 65 S.W. 461; Western Coal Co. v. Jones, 75 Ark. 76, 87 S.W. 440; and Queen of Ark. Ins. Co. v. Malone, 111 Ark. 229, 163 S.W. 771. Appellant offered no instructions to define the expressions claimed to be indefinite.

CONCLUSION

The judgment of the Circuit Court is in all things affirmed; and the sum of $2,000.-00 is awarded the appellee as additional attorneys’ fee for services in this Court.

HARRIS, C. J., not participating.

      . In addition, the Trial Court further instructed, as regards mental infirmity, in Instructions 5 and 8, as follows:
      “5. The Court further instructs you that as to the defense of mental infirmity the burden is upon the defendant to prove by a preponderance of the evidence that Hendrix Rowell was suffering from mental infirmity * * *.
      “8. The Court instructs the jury that the term ‘mental infirmity’ as used in the policies sued on in this case, means a mental weakness. If you find from a preponderance of the evidence in this case that the plaintiff’s disability or inability to practice his profession is due to ‘mental infirmity,’ then the Court instructs you that your verdict shaE be for the defendant.”

      . Mutual objected specifically to this Instruction No. 4; and those objections will be discussed in Topic III, infra.

      . Here are Mutual’s said objections:
      “To which action of the Court in giving to the jury plaintiff’s written requested Instruction No. 4, the defendant at the time objected specifically in line three the use of the words ‘reasonable amount of exercise’ are indefinite. ‘Reasonable amount of exercise’ might mean going to a gymnasium and exercising as long as he didn’t play handball or something like that. Line six directs, it says, ‘further advised him to take automobile trips’: that is indefinite, it leaves up to speculation on the part of the jury as to what kind of trip and how far he might go; be might take an automobile trip to California and back. The next line, ‘transacted a limited amount of personal business,’ I object to that on the ground that if he is totally disabled he couldn’t transact any personal business. Then on the question of ‘moderate amount of exercise’ again as used in the tenth line, I object to that on the ground that it is indefinite and doesn’t give the jury any basis upon which to determine the facts. I object to it specifically on the ground that the doctor or any doctor does not have any right to rewrite the insurance contract.”


author: WARD, Justice.

text:
    Ellen P. KETCHUM, Appellant, v. Ada ROBINSON, Appellee.
    No. 5-2999.
    Supreme Court of Arkansas.
    June 3, 1963.
    Spencer & Spencer, El Dorado, for appellant. .
    Brown, Compton & Prewett, El Dorado, for appellee.
   WARD, Justice.

This litigation concerns the ownership of an undivided one-eighth interest in the mineral rights in forty acres of land described as the northeast quarter of the southwest quarter of Section 4, Township 17 south, Range 12 west. Set out below is a brief explanation of how the issue of ownership arose.

Appellant, Ellen P. Ketchum, is the daughter of H. R. Ketchum (hereafter referred to as Ketchum) and appellee, Ada Robinson, is the wife of J. F. Robinson (hereafter referred to as Robinson). 'In 1922 Ketchum, who lived in Tulsa, and Robinson, who lived in El Dorado, entered into an oral agreement whereby Ketchum was to furnish the money and Robinson was to obtain oil and gas interests, each to have half of the resulting profits. As per agreement, the leases were taken in the name of (or were transferred to) Ketchum who was then to assign to Robinson his proper share. When this joint enterprise terminated about 1924 or 1925, Robinson prepared for Ketchum’s signature an instrument purporting to convey to Robinson his share of the interest. Ketchum signed the instrument (apparently) relying on its being fair and just. However, according to the record, Ketchum had previously deeded all his interest in this particular forty to appellee.

In 1937 Ketchum (evidently believing he had been deceived into deeding to Robinson more than his share of the mineral interests) filed in the clerk’s office a declaration of interest in several parcels of land, including the forty in question. Soon thereafter he filed a complaint in chancery court, alleging fraud, to recover part of the interests he had previously conveyed to Robinson. It is noted, however, that the questioned forty was not included in said complaint. That suit resulted in a default decree in favor of Ketchum, but again the questioned forty was not included in the decree. Ketchum admits (in this case) that he knew of the omission at the time. Consequently the result of the 1937 decree was to leave the record title of the questioned oil interest in appellee.

In 1951 Ketchum conveyed an oil interest in the questioned forty to appellant (his daughter) and that interest is the subject of the present litigation.

When oil and gas was discovered on the questioned forty, the production company filed an interpleader in chancery court, setting out the conflict of interest between appellant and appellee (together with other mátters not pertinent to this appeal), asking for authorization to pay royalties into court for distribution to the persons found to be entitled thereto. The issue was joined by proper pleadings and submitted to the trial court upon certain exhibits and the testimony of only one witness — H. R. Ketchum.

The trial court entered a decree in favor of appellee, after making the following findings of fact: Ketchum kept no records of his dealings with Robinson and so could only testify from memory; the interest in the forty acres involved was acquired by Robinson about twenty months before he formed a partnership with Ketchum; the interest in the forty was conveyed to Ketchum on November 21, 1922 by Robinson and on the same day it was conveyed by Ketchum to appellee; and, the declaration of interest (in the said forty) filed by Ketchum was a self serving instrument. Some of the above findings are not challenged and all of them, we think, are in accord with the weight of the evidence.

Appellant presents a forceful argument to the effect that the questioned forty was part of the partnership assets; that Ketchum and Robinson were to share equally; that Robinson deceived Ketchum into deeding away the interest in the said forty; that it was merely an oversight on the part of Ketchum in leaving the forty out of the 1937 suit; and, that, in the face of all these things, Robinson was under a duty to explain his innocence, but failed to do so. In support, appellant cites extensively from 31 C.J.S. Evidence, Suppression or Withholding of Evidence, § 156 and from Smith v. Wheat, 183 Ark. 169, 35 S.W.2d 335, to the general effect that the unexplained failure or refusal of a party to 'produce evidence exclusively within his knowledge gives rise to an inference unfavorable to such party. In our opinion the above announced principle has no application, and certainly is not controlling, under the facts of this case. In the 1937 suit, insofar as this particular forty is concerned, neither Robinson or appellee was under any obligation to defend the title because it’was not involved. Nor do we think there was any obligation on appel-lee, m the present case, to divulge information to help appellant. Appellee held a clear record title to all the questioned mineral interest and the burden was on appellant (not appellee) to show it should be set aside. In the opinion of the trial court, appellant has not met that burden, and we agree. In fact there is no proof or contention that Robinson induced Ketchum to execute the deed to appellee on November 21, 1922.

The trial court also found that if appellant and her father had any interest in the property involved they waited too long to assert it. We find it unnecessary to discuss that particular finding, but this does not necessarily mean we disagree with it.

Affirmed.


author: HOLT, Justice.

text:
    Leandre GREEN, Appellant, v. Roena Green SMITH, and J. B. Lambert, Jr., Executor of the Estate of Ceasar Green, Deceased, Appellees.
    No. 5-3001.
    Supreme Court of Arkansas.
    June 3, 1963.
    James P. Baker, Jr., Helena, Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellant.
    John L. Anderson, Helena, for appellees.
   HOLT, Justice.

In this probate proceeding the appellant, Leandre Green, contests the validity of his father’s will. The Probate Court held the will was valid and admitted it to probate from which judgment appellant brings this appeal.

The testator, Ceasar Green, reputed to be 104 years of age, died in June, 1962. The will in question was executed by him on February 9, 1962. At the testator’s request two reputable businessmen in the County came to his house where one of them wrote the will upon the testator’s insistence after they had advised him to secure the services of a lawyer. As he requested, the will provided that his daughter, Roena Green Smith, appellee, would be the principal beneficiary of his estate. The will mentioned and made a nominal bequest to his other heirs, including his son, the appellant. The testator then signed this will by his mark, his name being written near the mark by the individual who wrote the will. This scrivener failed to write his own name as a witness to the testator’s name and mark; neither did the scrivener affix his signature as an attesting witness to the will. Two witnesses properly attested the will and, as such, have executed the Proof of Will. The testators’ name was subscribed to the will in this form:

“His
“Ceasar X Green
Mark
“WITNESS:
“J. B. Lambert
“Leslie Smith”

The appellant contends that the testator’s signature is not in compliance with Ark.Stat.Ann. § 60-403 (Supp.1961) which is as follows:

“Execution. — The execution of a will, other than holographic, must be by the signature of the testator and of at least two witnesses as follows:
“a. Testator. The testator shall declare to the attesting witnesses that the instrument is his will and either
“(1) Himself sign; or
“(2) Acknowledge his signature already made; or
“(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
“(4) At his discretion and in his presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator) ; and
“(5) In any of the above cases the signature must be *' * * done in the presence of two or more attesting witnesses. [Emphasis added]
“b. Witnesses. The attesting witnesses must sign at the request and in the presence of the testator. [Acts 1949, No. 140, § 19, p. 304.]”

Appellee contends that either or both of the attesting witnesses can, in addition to executing the Proof of Will, serve the purpose of being a witness to the testator’s mark since they observed him make his mark. We cannot agree. Subsection (3) plainly provides that a testator’s signature by mark must be witnessed by a person who writes his own name as a witness to that signature. Sub-section (5) which follows, and is in addition to the requirement of (3), provides significantly that in case sub-section (3) is followed, such act “must be done in the presence of two or more attesting witnesses.” In other words, there are four methods for a testator to sign his will and, as we construe this statute, when we consider it as a whole and sub-section (5) in particular, there must be at least two attesting witnesses in addition to the requirements of either of these four methods. We interpret the provisions of sub-sections (3) and (5) of this statute to be mandatory in requiring a minimum of three subscribing witnesses to make the will in question valid. As we said in Ash v. Morgan, 232 Ark. 602, 339 S.W.2d 309:

“It is essential to due execution of a will that it be signed or subscribed by the number of witnesses required by the law governing the particular will being made, and subscription by fewer renders the transaction a nullity.”

Nor can the parol evidence of the scrivener in this case supply the deficiency of the required additional witness’ signature. The statute requires the written signature of such a witness.

Appellant contends that another will by his father, dated in 1958, should he admitted to probate. It is immaterial whether this be done inasmuch as the sole beneficiary named in it, the testator’s wife, pre-deceas-ed him. Thus, insofar as this will is concerned, the decedent’s estate descends and is to be distributed to his heirs as if he had died intestate.

It becomes unnecessary for us to consider the other point advanced by appellant, namely the testator’s lack of mental capacity, since the will in question was not executed in compliance with the quoted statute.

The judgment is, therefore, reversed and the cause remanded with directions to enter a judgment not inconsistent with this opinion. Reversed.


author: JOHNSON, Justice.

text:
    J. C. MINCHEW, Appellant, v. Ezra TULLIS, Jr., Appellee.
    No. 5-2997.
    Supreme Court of Arkansas.
    June 3, 1963.
    Smith & Smith, McGehee, Coleman, Gantt & Ramsay and John G. Lile, Pine Bluff, for appellant.
    Clifton Bond, Monticello, for appellee.
   JOHNSON, Justice.

This appeal involves the interpretation and construction of the words “application made to the court” as contained in Ark.Stat.Ann. § 62-2125 (Supp.1961), Time limit for probate and administration.

J. M. Minchew, a widower, had a will prepared and executed on July 5, 1946. After making nominal bequests to his living daughter, Dollie Minchew Tullis (the survivor of two daughters who married brothers), and his grandson (son of the deceased daughter), he left the residue of his property to his two sons, J. C. Minchew and Willie V. Minchew, who lived and worked on the farm with their father, who were also named as executors in the will.

J. M. Minchew died on March 7, 1954, in Desha County. On March 10th a petition for probate was filed by the sons, together with the will, a proof of will executed by one of the attesting witnesses, and an affidavit of proof of signature of the other attesting witness who was a nonresident. The cause was placed on the Desha Probate docket as number 949. No further action was taken in the case until October 11, 1955, when the proceedings were removed from the active docket by order of the probate judge, with the provision that it might be reinstated upon request of any interested party to the probate clerk.

On May 21, 1957, Willie V. and J. C. Minchew petitioned the court to restore the case to the active docket, which was done by court order. (Willie V. Minchew died thereafter on October 25, 1961.)

On November 28, 1961, appellee Ezra Tullís, Jr., grandson of the deceased J. M. Minchew, filed objections to the admission of the will to probate, alleging failure of appellant, J. C. Minchew, to make application for probate of the will and a grant of administration within five years from the death of the decedent.

Appellant petitioned the court on December 6, 1961, for a hearing date on the petition to probate J. M. Minchew’s will.

On March 22, 1962, trial was held before the Hon. Lawrence E. Dawson, Judge of the Probate Court of Jefferson County, Second Division, on exchange, in the Probate Court of Desha County, McGehee District. By agreement of counsel the matter was heard on the one issue of whether appellant had complied with Ark.Stat.Ann. § 62-2125 (Supp.1961). It was further agreed that if appellant prevailed in the trial court, ap-pellee could proceed with the trial of other issues or he could take an appeal on this one issue. The opposite was true, if ap-pellee prevailed.

The opinion of the court was rendered on March 30, 1962, holding that the will was barred from admission to probate by the five year statute of limitation, Ark.Stat.Ann. § 62-2125 (Supp.1961), since no application for the admission of the will to probate had been made to the probate court within five years from the death of the decedent. An order was entered in accordance with the opinion on October 4, 1962. This appeal followed.

For reversal appellant maintains that the probate court erred in ruling that appellant had not made application to the court in the time and manner required by Ark.Stat.Ann. § 62-2125, when appellant filed a petition for probate, along with the will, three days after the death of the testator.

Ark.Stat.Ann. § 62-2125 (Supp.1961) reads as follows:

“Time limit for probate and administration. — No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five years from the death of the decedent; this section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.” [Italics ours.]

Appellee cites Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145, in support of the trial court’s ruling that probate was here barred by the five-year limitation. In the Sims case we held that our five year statute on probation of wills applied to foreign wills as well as to wills of this state, in order to make secure the title to property. The Sims case, however, does not deal with the specific question here involved, which is conceded to be the interpretation and construction of the words “application made to the court” as contained in § 62-2125, supra.

Since the enactment of the Probate Code in 1949, there have been no cases decided which dealt with the meaning of the term “application made to the court” as contained in this statute (§ 62-2125, supra). Appellant contends that “application made to the court” is synonymous to “petition .is filed”, whereas appellee contends that “application made to the court” is virtually synonymous to “probate of a will”, although appellee does concede that the statute does not state that a will must be admitted to probate within the five years. The trial court in its opinion found, in essence, that a personal appearance before the probate court is necessary to constitute “application to the court”. Appellee asserts that at least a hearing must be set on a petition for probate before “application” has been “made to the court”, although recognizing that the Probate Code allows the court to hear a petition for probate immediately upon filing or at such time and place as the court may direct.

We consider the Probate Code particularly thorough and perspicuous legislation. Examination of an earlier section of the Code leaves no doubt about the meaning of an “application made to the court”:

“Application to court by verified petition. — Every application to the court, unless otherwise provided, shall be by petition, signed and verified by or on behalf of the petitioner. This requirement shall be mandatory but not jurisdictional, and non-compliance therewith shall not alone be ground for appeal.” Ark.Stat.Ann. § 62-2010 (Supp.1961). [Emphasis ours.]

The above language clearly and unambiguously sets out the requirement for making “application to the probate court.” Willie V. Minchew and J. C. Minchew filed their verified petition three days after the death of the testator. In so doing they complied with the provisions of Ark.Stat.Ann. § 62-2125. Nowhere in the Probate Code is more required than that the application be filed. To rule that, in addition, a personal appearance before the probate judge is required would be to read into the statute more than is stated. For cases to the same effect from other jurisdictions, see Dungan v. Superior Court, 149 Cal. 98, 84 P. 767; Price v. Marshall, 255 Ala. 447, 52 So.2d 149; Peter v. Peter, 343 Ill. 493, 175 N.E. 846, 75 A.L.R. 890.

Reversed.


text:
    E. E. MITCHELL, Jr., Appellant, v. William M. MITCHELL, Appellee.
    No. 5-2946.
    Supreme Court of Arkansas.
    June 3, 1963.

      Phillip H. Loh, Morrilton, for appellant.
    Felver A. Rowell, Jr., Morrilton, for ap-pellee.
   JOHNSON, Justice.

Appellant E. E. Mitchell, Jr., filed a petition for a declaratory judgment in Conway Chancery Court, seeking to regain possession of certain farm lands being managed by appellee William M. Mitchell and to recover certain payments made to the Federal Land Bank by appellant.

The parties are two of the four sons of E. E. Mitchell who died in 1942 leaving real property in trust for ten years, then to vest in the sons for life with the remainder in the sons’ bodily heirs. (This court upheld the validity of the will in Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163.) When the trust terminated in 1952, the four brothers entered into an agreement entitled “Partition and Trust Agreement” which divided up their interest in the real property (life estate) among the four. Part of the property so partitioned was Paw Paw Bend farm. Appellee received the south half, appellant the north half. Paragraph 10 of the partition agreement attempted to provide that the entire farm was to be operated as a unit for the lifetime of appellee. Since 1952 appellee has managed the farm as a unit, collected and paid over to appellant all the rents from his lands after deducting taxes and certain mortgage payments. At the time the agreement was made there was a Federal Land Bank mortgage outstanding on the entire farm, and when appellee started managing the farm he gratuitously applied approximately $3,000 from certain insurance proceeds toward reduction of the mortgage, which took care of the land bank payments for approximately two years. Thereafter appellee either deducted one-half of the mortgage payment from appellant’s rental income before remitting to appellant, or else requested a check from appellant, for half of the annual payment. Appellant contends that he was induced to enter into a verbal operating agreement with appellee in consideration of appellee’s paying appellant 50% of the annual crop rents on the entire farm and appellee’s assuming the payments on the Federal Land Bank loan. Appellee contends that appellant was to receive only the farm rents from appellant’s land and that after appellee’s initial $3,000 payment, the parties were to be jointly responsible for the mortgage payments.

Appellant further contends, inter alia, that paragraph 10 of the partition agreement is inconsistent with paragraph 9, which provides that each life tenant may have exclusive control of his interest in the lands to the exclusion of the others, and that paragraph 10 is therefore null and void, and that he is entitled to possession of his land as well as reimbursement for the Federal Land Bank payments charged to him. Appellee answered, inter alia denying that appellant was entitled to reimbursement or return of the land. Appellee filed an amended answer which was in the nature of a counterclaim.

At trial on July 25, 1962, the chancellor found that appellant was entitled to possession of his lands, which should be delivered to him after the crop year of 1962; that appellant was not entitled to recover any sums paid or charged to appellant for Federal Land Bank payments; that appellee was not entitled to recover on his counterclaim; and that appellee was not liable to appellant for any rents or profits from either lands belonging to appellant or ap-pellee. Appellant has appealed from this decree urging that the court erred in refusing to grant appellant judgment for all land bank payments charged to him by appellee.

Appellee has cross-appealed and argues two points for reversal: (1) the court erred in holding that paragraph 10 of the Partition and Trust Agreement did not bind appellant to the operation of the Paw Paw Bend farm as a unit for the lifetime of appellee; and (2) the court erred in holding that if appellant was entitled to rescind paragraph 10 of the Partition and Trust Agreement, he was not entitled to receive the benefits of the improvements made by appellee in reliance thereon.

We shall consider first the land bank payments. Appellee testified that he charged appellant with one-half of the payments in the years 1952, and 1955 through 1961, and that appellant had expressed no dissatisfaction with their operating agreement until a representative of Winthrop Rockefeller offered to rent appellant’s land for a good cash rental. Appellant testified that he made 50% of the land bank payment because, “I had no choice in the matter. I’m fifty miles away from here and he’s practically on top of it and all I could do was take his figures on it.” The evidence reflected that frequently appellee deducted the land bank payment from the crop rents before remitting to appellant. At times, however, appellant mailed his check for half of the payment to appellee, as shown by two letter exhibits:

“May 3, 1956. Dear Emmett [appellant] : Received notice from the Land Bank for farm payment due the 1st of June. Your one-half is $300.00 and please send me a check for this amount by the first of the month. * * * Come to see us when it is convenient.”
“Little Rock, Nov. 22, 1957. Dear Bill [appellee] : Thanks for the rent check and I am enclosing check in the amount of $305.80 on loan payment. Drop by when you are down here around the Marion and we will have a coffee here.”

It is clear that appellant’s action in voluntarily making the payment as reflected by his letter spoke louder than words to the chancellor, and the court’s finding that appellant was not entitled to refund of sums paid by him or charged to him for land bank payments is not against the preponderance of the evidence. See Scott v. Vuurens, Ark., 368 S.W.2d 80.

For reversal on cross-appeal, appellee contends that the trial court erred in holding that paragraph 10 of the Partition and Trust Agreement did not bind appellant to the operation of the Paw Paw Bend farm as a unit for the lifetime of appellee.

The partition and trust agreement was entered into by the four Mitchell brothers in 1952, apparently to avoid future contention among them, and allots each brother certain real property for life. In the preamble to the agreement it is stated:

“WHEREAS, except as to said personal property and certain unreserved land, the said James C. Mitchell, Shelby H. Mitchell, William M. Mitchell and E. E. Mitchell, Jr., desire that possession of such entailed lands be partitioned among them, to< the end that each life tenant may take exclusive possession of his interest therein, * * *" [Our emphasis.]

Paragraph 7 provides for the exchange of quitclaim deeds, to implement the partition. Paragraph 9 reads as follows:

“This agreement is executed for the sole and only purpose as hereinabove set forth, to the end that each life tenant may have individual control of his interest in the lands of the estate, to the exclusion of the others, and anything to the contrary herein contained notwithstanding, this agreement shall not be construed as an attempt on the part of the said life tenants to sell, convey or otherwise alienate any expectancy in the estate of E. E. Mitchell, deceased, in contravention of any condition of said will.” [Our emphasis.]

The last clause paragraph 10, without reciting additional consideration, purports to contain an agreement between appellant and appellee to the exclusion of the other parties to the contract. In paragraph 10, despite the strong language stating the exclusive purpose of the contract, two of the four parties to the agreement attempted to agree between themselves that the terms of the partition agreement would not be applicable to them as regards their property; that as a result of such attempted agreement, their shares were to be considered as one during the lifetime of appellee.

It is familiar law that construction of a contract which entirely neutralizes one provision should not be adopted if the contract can be construed to give effect to all the provisions. Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W.2d 611. Here, however, the whole purpose of the partition agreement was “to the end that each life tenant may take exclusive possession of his interest therein.” This cannot be reconciled with an attempted agreement in the same instrument to the contrary and brings into motion the rule that a subsequent clause irreconcilable with a former clause and repugnant to the general purpose and intent may be disregarded. 12 Am.Jur., Contracts, § 243. The chancellor did not err in so holding.

Appellee’s second point urged for reversal on cross-appeal is that the trial court erred in holding that if appellant was. entitled to rescind paragraph 10 of the partition and trust agreement, he was not entitled to receive the benefits of the improvements made by the appellee in reliance thereon.

The specific relief sought by this point seems to be urged here for the first time. Little Rock Ry. & Electric Co. v. North Little Rock, 76 Ark. 48, 88 S.W. 826, 1026. It is true that in appellee’s amended answer he alleged that he had expended approximately $8,000.00 since 1952 for road building, drainage, levee repair and flood control. However, appellee’s prayer, which was in the nature of a counterclaim, was as follows: “[A]nd the defendant [appellee] prays that if in the accountings it is found that said defendant has not operated said farm in good manner that he be given credit on any sums owed to the defendant for this $8,000.00 Improvements.” There has been no finding that appellee has not operated the farm in a good manner. It is admitted that during the entire time of appellee’s management of the property, even though he was from time to time in possession of rent money belonging to appellant, appellee never attempted to charge appellant with any part of these alleged improvements. The proof on these improvements is rather vague and raises some question as to their value to appellant. On this point, we are unwilling on trial de novo to say that the learned chancellor’s finding that appellee was not entitled to recover on his counterclaim was against the preponderance of the evidence. See Dearien v. Lancaster, 221 Ark. 98, 252 S.W.2d 72.

Affirmed on appeal and cross-appeal.