author:
      G-eorge Hose Smith, J. Oarleton Harris, Chief Justice
      Jim Johnson, Associate Justice

text:
    Pace v. Hickey.
    5-3048
    370 S. W. 2d 66
    Opinion delivered June 3, 1963.
    [Rehearing denied September 9, 1963.]

      John B. Driver and Roy E. Danuser, for appellant.
    Appellee’s Brief stricken.
   G-eorge Hose Smith, J.

This is an election contest. In the 1962 general election the appellant, the Democratic nominee for the office of Sheriff of Marion County, was opposed by the appellee, a write-in candidate. The appellee was certified to have been the winner by a vote of 969 to 961. This is an appeal from a judgment upholding that certification. We are presented with only two questions, both involving the use of printed stickers in behalf of the write-in candidate.

All the facts were stipulated. Before the election the appellee arranged for the printing and distribution throughout the county of stickers bearing his name, for use by the electors. The appellee received 969 votes to the appellant’s 961, but 539 of the appellee’s votes were cast by the pasting of stickers to the ballots. On 100 or more of these votes the S-mark, indicating the elector’s choice, had been placed on the sticker by someone other than the elector and at some time before the elector entered the polling place and affixed the sticker to his ballot.

It is first contended that no vote cast by means of a sticker should be counted, for the reason that the statute refers only to “write-in votes,” and a printed sticker does not satisfy the requirement that the name be written. Ark. Stat. Ann. § 3-826 (Repl. 1956). This identical contention was rejected in Bennett v. Miller, 186 Ark. 413, 53 S. W. 2d 853, under a statute permitting the elector to £ ‘ write the name of any person for whom he may wish to vote. ’ ’ In holding that the law permitted the use of stickers we said:

“We do not think the word ‘write’ is there used in a technical sense, but that such name might be placed on the ballot in any convenient way, such as the use of a rubber stamp or a sticker as was done in this case. As said by this court in Ashby v. Patrick, 181 Ark. 859, 28 S. W. 2d 55: ‘If the ballot voted on was such as not to mislead the electors but to give them an opportunity to express their will, it was sufficient.’ So here the ballot did not have the names of any persons who were candidates for directors. It was left to the electors to vote for whom they pleased by ‘writing’ their names on the ballots. If they chose to nse stickers with the names of the persons they desired to vote for printed thereon we can see no valid objection thereto, and there is no provision of statute violated.”

Bennett v. Miller was decided in 1932, more than thirty years ago. If we misconceived the intent of the statute the lawmakers have had many opportunities in the intervening years to set the matter right. No such action has been taken. To the contrary, when the present statute was enacted in 1949 the legislature contented itself with a reference to “write-in votes.” We are unwilling in effect to modify the statute by overruling the Bennett case. The contestant’s broad objection to the use of stickers cannot be sustained.

The appellant’s other argument is directed against the one hundred or more write-in votes involving stickers already marked with an X when the voter entered the polling place. Counsel rely on Edwards v. Williams, 234 Ark. 1113, 356 S. W. 2d 629, where it was held that an election judge could not be allowed to take a ballot out to be marked by a disabled voter in her car, because the statute provides that no person shall be permitted to carry a ballot outside the polling place. Ark. Stat. Ann. § 3-834 (Repl. 1956).

All the stickers in the ease at bar were marked with an X; so we are not confronted with an attempt to east a write-in vote without the use of an X. The only question is whether the X may be placed on the sticker before the voter enters the polling place. We hold that it may be. The use of printed stickers is permissible, as we have seen. This means that the write-in candidate’s name may be printed on the sticker before the voter reaches the polls. This being true, there is no good reason for saying that the X-mark, if one is actually necessary, cannot also be put on the sticker in advance. What the statute requires is that the voter mark his ballot inside the polling place. Here the marking of the ballots was accomplished by the affixation of stickers. As long as that substantive step was taken inside the polling place it made no difference, under either the letter or the spirit of the statute, when or where the making of the X-mark took place.

The appellant has moved to strike a portion of the appellee’s brief, which attributes seriously wrongful conduct to the appellant’s counsel and to the special county judge who heard the case in the first instance. These accusations appear in the appellee’s brief as assertions of fact, but they are wholly unsupported by any proof in the record. Their inclusion in the brief is a clear-cut violation of Rule 6 of this court and an inexcusable breach of the obligation of professional courtesy that we expect on the part of members of the bar. All copies of this brief will be stricken in their entirety from the files of the court.

Affirmed.

Harris, C. J., concurs. Johnson, J., dissents. Holt, J., not participating.

Oarleton Harris, Chief Justice

(concurring). I am concurring, rather than dissenting, because I feel that appellee and his supporters had a right to rely on the Bennett x. Miller decision mentioned in the present majority opinion. In the Bennett opinion, the court said:

“We think it makes no difference how the electors placed the names of the persons they desired to vote for on the ballots in the absence of fraud. They might have been written with pen and ink, pencil, typewritten, or by stickers and the result would be the same, as in either ease it expressed the wish of the individual elector.”

I strongly disagree with the thought therein expressed and with the holding in the case. To me, the word, “write,” means “lettering by hand,” (though the term probably now, by usage, includes typing). However, I find no definition of the term, “writing,” that includes “sticking” or “pasting.”

Election contests are difficult cases, and a contestant in an election case carries a great burden in endeavoring to establish fraud in any such suit. I feel that this court should go as far as legally possible in its decisions to minimize the possibility of fraud in future elections—and here, we are only required to say that “write” means just that—“write”.

I believe that the use of stickers makes fraud easier to perpetrate. If a voter does not care to vote for anyone in particular race, he will make no mark on the ballot at all, and there is nothing to prevent an unscrupulous judge or clerk at an election from reaching into his pocket and placing a paste-on vote on such a ballot. It would be indeed difficult to establish that this paste-on vote was placed on the ballot by someone other than the voter —but, if we stay with the statute, the way is clear to eventually determine whether the voter cast that vote, i.e., through an examination of the handwriting.

However, there is, in my view, an even better reason for holding paste-on votes invalid, vis., the use of the stickers destroys the secrecy of the ballot. Most people like to maintain secrecy in casting their votes; they desire to express themselves at the polls without fear of losing someone’s good will, or business. Frequently, the voter may be friendly to both candidates, or both may be good customers, and he desires to maintain that friendship, or business, after the election. He is entitled to cast his vote, free from duress, and without fear of retaliation. In most instances, at a general election, there would probably only be a single race where a “write-in” candidate would go to the trouble and expense of preparing stickers in advance. (This has been the case in previous elections where such stickers were used.) When the voter approaches the polls, he is likely besieged—and beseeched— by those offering the stickers. Let it be borne in mind that the offer of a sticker is entirely different from merely offering campaign literature, for a voter ostensibly could have but one purpose in taking a sticker—that purpose being to use it after he enters the polling booth. If he refuses to take a sticker, lie is immediately marked by the person offering it— and bystanders—as a voter who will east his vote for the man whose name is already printed on the ballot. If, on the other hand, he takes the sticker, bystanders mark him as one who intends to cast his vote for the “write-in” candidate—else he would not have taken the sticker. Actually, the voter might accept the sticker as a matter of avoiding embarrassment—but he is still labeled by those viewing the incident as a supporter of the write-in candidate. In addition, the voter’s use of the sticker can certainly be detected after he enters the polling booth, and prepares to cast his vote. One needs only to glance around to identify those who are pasting-stickers on the ballots. The secrecy of the ballot is thus utterly and completely destroyed. To prohibit the use of stickers takes no right away from the voter. He still has the privilege of casting his vote for his candidate by simply writing in the name.

The majority feel that it is up to the Legislature to prohibit the use of stickers. Inasmuch as, in my view, this court made the original mistake in interpreting the word, “write,” I deem it proper that we should make the correction. We have only the one decision which approves the use of stickers. This opinion was rendered under a different statute, and in a school election case where no names were printed on the ballot. To my way of thinking, we now have the opportunity to correct a serious mistake. When the majority opinion is handed down, precedent will be firmly established. The fact that the court once erred is no reason to err again.

I would affirm this particular case for the reason set forth in the opening paragraph, i.e., appellee was entitled to rely upon the Bennett decision. However, I think that the court should now plainly state that the Bennett decision cannot be relied upon in the future; that ‘ ‘ paste-on” votes will no longer be considered valid votes, and that the word, “write-in” means exactly what it is taken to mean in common usage.

Jim Johnson, Associate Justice

(dissenting). Words cannot adequately express my extreme disagreement with that part of the majority opinion which holds valid the 100 or more votes admittedly marked by someone other than the elector and outside of the polling place.

My conscience will not permit me to be a party to an opinion placing the stamp of approval of this court upon such conduct.

For the reasons stated I respectfully dissent with all the vigor at my command.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Wyatt v. O’Neal.
    5-2969
    370 S. W. 2d 129
    Opinion delivered June 3, 1963.
    [Rehearing denied September 16, 1963.]

      Victor Nutt, for appellant.

      Caldwell T. Bennett, Tingling, Henry & Boyett, for appellee.
   Paul Ward, Associate Justice.

This litigation grows out of a series of business transactions in connection with the hatchery business. Appellant Wayne Wyatt, ■who owned equipment and facilities for such business, evidently was encountering financial difficulties early in 1958. In February of that year he executed two chattel mortgages on the above mentioned personal property £or about $5,000, and he also executed a loan agreement with appellee wherein the latter was to loan him several thousand dollars. One of the mortgages above mentioned was made directly to appellee and he acquired the other one by assignment.

Appellee filed two separate complaints against appellants to collect certain notes and to foreclose certain securities. Said suits were docketed as number 5485 and 5501. The issues involved can be best indicated by setting out the substance of each complaint.

In suit number 5485 it was alleged that appellants were indebted to appellee in the total sum of $7,000 (plus interest) on four separate written notes: One note for $2,000 was made to G. V. Coker, dated February 10,1958, and assigned to appellee; note for $1,750 made to appellee, dated December 5, 1958; note for $2,000 made to appellee, dated November 24, 1958; note for $1,250 made to appellee, dated December 15, 1958. It was also alleged that the payment of said notes was secured by chattel mortgages.

In suit number 5501, between the same parties, appellee asked judgment against appellants in the sum of $5,000 (plus interest) based on four notes signed by appellants as follows: note dated February 26, 1958 for $2,000; note dated March 12, 1958 for $1,000; note dated March 15, 1958 for $1,000; and, note dated March 26, 1958 for $1,000. The above notes were secured by a mortgage on what was called the Steprock Gin property.

In answer to the above complaints appellants admitted signing a $2,000 note, denied signing certain notes, and stated they had no knowledge concerning other notes. Mrs. Wyatt, in a separate answer, stated that she was a tenant in common with her husband of certain personal property (listed in the chattel mortgages) and that she had never encumbered any of it.

Mr. Wyatt, in a twenty page cross-complaint, asks for $8,027.81 for breach of a “confidential contract” and $7,083 for loss of equity in certain property.

By proper order of the trial court the two causes of action were consolidated for purpose of trial, and the issues were tried under docket number 5501.

After an extensive hearing the trial court refused to allow appellant (Wyatt) anything on his cross-complaint, and entered a decree in favor of appellee in the sum of $5,000 (with $1,790 interest) against appellants, impressing a lien on the “Steprock Property”, and in the sum of $7,000 (with $1,781 interest) secured by the Coker mortgage. Prom the decree appellants prosecute this appeal, relying on the points hereafter discussed for a reversal.

One. Appellants state

“That there is no evidence upon which to substantiate the finding of the lower court that Appellants were not entitled to any damages for breach of contract by Appellee.”

Appellants apparently overlook the fact that the burden was on them to prove the terms of a contract, that it was broken by appellee, and the amount of damages resulting from such breach. The testimony relative to the above items is involved and conflicting, and it would serve no useful purpose to set it out in full. The chancellor heard the testimony and specifically found appellants failed to establish their claim. In arguing this point appellants have not called our attention to any testimony which indicates the chancellor’s finding is not supported by the weight of the evidence.

T%vo. We find no merit in the contention

“That Appellee was not entitled to judgment for the sum of $5,000.00 on the Coker mortgage because of the Clean Hands Doctrine.”

To support that contention appellants say:

. . the purpose of Appellee’s purchase of the Coker mortgage was to secure a preferred position for Appellee over the Quaker Oats Company mortgage. This was to be accomplished by the purchase of the valid $2,000.00 mortgage which Appellant admits is a just debt and is due Appellee, and by making supposed advances thereunder in the same amount as was secured by other property, referred to as the Steprock property, whereupon Appellee promised to release the Step-rock mortgage.”

Appellants say that appellee gave them checks on the First National Bank of Heber Springs, that they endorsed them and returned the money to appellee. This is emphatically denied by appellee. We can hardly agree with appellants that it “was peculiar that it was necessary for appellee to go to Heber Springs and discuss the business with the president of the bank . . .”, absent a showing of what was discussed. On the other hand, the bank president testified that, according to their records, Wayne Wyatt got the money on the checks. In the absence of more convincing evidence to the contrary, we must sustain the chancellor in concluding, in effect, that appellee came into court with “clean hands”. In fact it would appear that Wyatt and appellee are pretty well on the same level in respect to the condition of their hands.

Three. We do not agree with appellants’ argument that

“Appellee is estopped by his pleadings to assert a secured claim for $2,000.00 represented by promissory note or otherwise.”

This argument is based upon two exhibits purporting to be pleadings in a suit between different parties and in a different court. The exhibits show that appellee (represented by a different attorney) claimed a certain $2,000 note (signed by appellants) was unsecured. It is their conclusion, therefore, that appellee is estopped in this case to assert the note is secured. We think a sufficient answer is that some twenty notes were executed by appellants to appellee and that there is no positive evidence to identify the note in question.

Finding no reversible error, the decree of the trial court is affirmed.


text:
    Ketchum v. Robinson.
    5-2999
    368 S. W. 2d 278
    Opinion delivered June 3, 1963.

      Spencer & Spencer, for appellant.

      Brown, Compton & Prewett, for appellee.
   Paul Ward, Associate 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 ivest. 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 Ketcbum’s signature an instrument purporting to convey to Robinson his share of the interests. 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 matters 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. 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 appellee, in 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: Sam Robinson, Associate Justice.

text:
    Swift v. Barker.
    5-3016
    370 S. W. 2d 71
    Opinion delivered June 3, 1963.
    [Rehearing denied September 9, 1963.]

      McMath, Leatherman, Woods £ Youngdahl, for appellant.

      Cockrill, Laser, McGehee £ Sharp, for appellee.
   Sam Robinson, Associate Justice.

This case grows out of the collision of an automobile and a pickup truck at the intersection of Eighth and Maple Streets in North Little Rock. Appellant, Swift, was driving his pickup west on Eighth Street, and appellee, Barker, was driving his car north on Maple when the vehicles collided at the intersection. Swift sued Barker alleging personal injuries and property damage. The case was tried to a jury and from a verdict and judgment in favor of Barker, Swift, the plaintiff, has appealed.

First, appellant contends that there is no substantial evidence to support the verdict for the defendant. Contributory negligence was one of the defenses relied on by appellee. The jury could have found from the evidence that the appellee got into the intersection first. The collision occurred at the northeast quarter of the intersection, and it will be recalled that appellant was going west and appellee was going north. Furthermore, the jury could have found from the evidence that appellant was negligent in failing to keep a lookout for other users of the streets, and in failing to make any effort to stop, and thereby avoid the collision. Appellee did attempt to stop, as shown by the fact that there were about 12 feet of skid marks behind his car; but there were no skid marks behind appellant’s pickup. Moreover, the evidence is pretty clear that appellant ran into the side of appellee’s car. There is evidence that there was no damage at all to the front of appellee’s automobile.

This court said in Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665, (Dec. 17, 1962) : “Owing to the fact that the plaintiff has the burden of proof—that is, the burden of persuading the jury that he is entitled to win the case—a directed verdict for the plaintiff is a rarity. As we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S. W. 2d 708: ‘A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.’ ”

Appellant also contends that the court was in error in giving the last part of appellee’s instruction No. 1. The instruction reads as follows: “You are instructed that under the laws of the State of Arkansas it was the duty of plaintiff Bobert L. Swift and the defendant James Barker to exercise ordinary care in the operation of their vehicles to avoid injury to themselves and to others, and a failure to exercise such care would be negligence. You are further instructed that ordinary care requires every person who operates a motor vehicle upon a public highway to keep a lookout for other vehicles, and to have his own vehicle under such control as will enable him to check its speed or to stop it absolutely if necessary to avoid.injury where danger is apparent or reasonably to be anticipated. Banger may always be expected or anticipated at intersections and every driver must keep a lookout and approach same with his vehicle under control. A failure to keep a lookout or to keep one’s car under control is not negligence withm itself, but if you find that there was a failure in this regard by either party then you may consider such failure along with all the other facts and circumstances in the case in determining if that party was negligent.” Only a general objection was made.

While we do not approve that part of the instruction which tells the jury that “A failure to keep a lookout or to keep one’s car under control is not negligence within itself . . .” we think that in the circumstances of this case, appellant should have made a specific objection in order to call the trial court’s attention to the alleged error. The first part of the instruction is good, and there is no contention that it is bad. The court said in Chicago R. I. & Pac. Ry. Co. v. Glascock, 187 Ark. 343, 59 S. W. 2d 602: “It is next contended that the court erred in giving appellees’ requested instruction No. 1, objected to, which was written in three different paragraphs. No specific objection was made to any of them, but only a general objection was made to the instruction as a whole. At least two of the clauses are correct statements of the law, and conceding, not deciding, the other incorrect, since the instruction was not wholly wrong, the defect should have been reached by a specific objection and not a general one. No error was committed in giving it. Darden v. State, 73 Ark. 315, 84 S. W. 507; St. Louis I. M. & So. Ry. Co. v. Barnett, 65 Ark. 255, 45 S. W. 550.”

But the thing in particular that impresses us with the necessity for a specific objection in the case at bar is the fact that appellant asked for, and the court gave, an instruction containing almost the identical language objected to by appellant in appellee’s instruction No. 1. In appellant’s requested instruction No. 5, given by the court, certain statutes are quoted and then the instruction reads: “A violation of the above statutes, if establisted by a preponderance of the evidence is not negligent within itself bnt is evidence of negligence . . .” Assuming, without deciding, that there is a valid reason why the language in question would be objectionable in the instruction requested by appellee, but not objectionable in the instruction requested by appellant, we think the distinction should have been called to the attention of the court by specific objection.

Appellant also argues that the court erred in giving appellee’s instruction No. 5, which reads: “You are instructed that if you find and believe from the evidence in this case that James Barker lawfully entered the intersection of Eighth and Maple Streets before the vehicle operated by Robert Swift entered the intersection, then you are instructed that Barker was entitled to proceed through the intersection unmolested and this would be true, even though you might find that Barker failed to stop before entering Eighth Street. Notwithstanding the fact that Eighth Street is a through street, if Barker was lawfully in the intersection, then it was Swift’s duty to yield the right-of-way to Barker.”

The instruction is not inherently erroneous, and no specific objection was made.

Affirmed.


text:
    Stillman v. Jim Walter Corp.
    5-3026
    368 S. W. 2d 270
    Opinion delivered June 3, 1963.

      McMath, Leatherman, Woods & Toungdahl and John P. Sizemore, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Sam Robinson, Associate Justice.

On August 13,1959, appellant, Roy Stillman, 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: “Sub-Contractor 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 Stillman’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 Stillman was estopped to contend otherwise.

Eegardless 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, 90 So. 2d 508 (1956). And, in Garner v. Southern Pulpwood Ins. Co., 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 (Eepl. 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, we said that the fact that workmen’s compensation coverage was provided could be considered in determining whether an employer-employee relationship existed. The cases did not turn on the question of estoppel. And, it was specifically 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: “It 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 Stillman 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, 310 S. W. 2d 259; Ham v. Mullins Lumber Co., 7 S. E. 2d 712; Nash v. Meguschar, 89 N. E. 2d 227; Herndon v. Slayton, 83 So. 2d 726; Hano v. Kinchen, 122 So. 2d 889; Southern Underwriters v. Jones, 125 S. W. 2d 393; Smith Coal Co. v. Feltner, 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: Jim Johnson, Associate Justice.

text:
    Mitchell v. Mitchell.
    5-2946
    368 S. W. 2d 284
    Opinion delivered June 3, 1963.

      Phillip H. Loh, for appellant.

      Felver A. Rowell, Jr., for appellee.
   Jim Johnson, Associate 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 wus 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 appellee. 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. Yonr 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, 236 Ark. 731, opinion delivered May 27, 1963.

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 taloe 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 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. 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.


text:
    Minchew v. Tullis.
    5-2997
    368 S. W. 2d 282
    Opinion delivered June 3, 1963.

      Smith (& Smith and Coleman, Gantt and Ramsay and John G. Lile, for appellant.

      Clifton Bond, for appellee,
   Jim Johnson, Associate 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 Tullís (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 Y. 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 Tullis, 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. Min-chew Js 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, appellee could proceed with the trial of other issues or he could take an appeal on this one issue. The opposite was true, if appellee 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 (Sup. 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 appearanee before tbe probate court is necessary to constitute ‘ ‘ application to tbe 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 he hy 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 Y. 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 eases to the same effect from other jurisdictions, see Dungon v. Superior Court, 149 Cal. 98, 84 Pac. 767; Price v. Marshall, 255 Ala. 447, 52 So. 2d 149; Peter v. Peter, 343 Ill. 493, 175 N. E. 846.

Reversed.


author: Frank Holt, Associate Justice. George Bose Smith, J.

text:
    Natl. Bank of Eastern Ark. v. Collins.
    5-2994
    370 S. W. 2d 91
    Opinion delivered June 3, 1963.
    [Rehearing denied September 9, 1963.]

      E. J. Butler, for appellant.

      Brockman db Brockman, Levine & Williams, for appellee.
   Frank Holt, Associate Justice.

The appellee brought this action as a foreclosure suit and, also, to have adjudicated the terms of their Guaranty Agreement. On September 1, 1960, the appellees, Herbert Collins, Trustee, Paul M. Leird, C. Hamilton Moses, John Collins and John Collins, Executor of the Estate of H. G. Galloway, deceased, hereinafter referred to as Guarantors, filed a foreclosure suit on two Deeds of Trust executed by W. D. May and Dorothy E. May, his wife, hereinafter referred to as May. These Deeds of Trust secured two notes by May and any sums for which the Guarantors might become liable on their Guaranty of May’s note of $29,662.36 to the National Bank of Eastern Arkansas, hereinafter referred to as Bank. The Guarantors made the Bank a party defendant and asked the Court to determine their liability as Guarantors, if any, to the Bank under the terms of the Guaranty Agreement. The Bank filed an answer and cross complaint seeking judgment against the Guarantors, jointly and severally, for $2,265.52 as a deficiency owed it under the terms of the Guaranty Agreement. May filed an answer admitting an original indebtedness of $29,662.36 to the Bank and alleged that said indebtedness was fully paid and satisfied of record June 29, 1960. May denied any indebtedness to Guarantors and in a cross complaint claimed damages for alleged collusion between the Guarantors and the Bank.

Upon a trial of these issues the Chancellor entered a decree in favor of the Guarantors against May and the Bank and dismissed their respective cross complaints. From this decree the Bank brings an appeal and for reversal urges that the Court erred (1) in finding that reasonableness of attorney’s fees and court costs incurred by the Bank in its foreclosure of the May debt was not before the Court and (2) the Court erred in not entering judgment for the Bank against Guarantors for the deficiency in the amount of $2,265.52 and by not requiring said amount to be paid out of the proceeds of the foreclosure of May’s Deed of Trust to Guarantors securing a contemplated deficiency under the Guaranty. We consider these points together.

On June 23, 1954, May executed a note to the Bank and a chattel mortgage to secure his loan of $29,662.36. On July 5, 1954 the Guarantors executed and delivered to the Bank a Guaranty Agreement to the effect that the Guarantors, jointly and severally, would guarantee prompt payment of the May note to the Bank. Paragraph (4) of the Guaranty reads as follows:

“PROVIDED HOWEVER, before recourse against the Guarantors, the Bank shall first have mailed to them at Little Rock not less than ten days preceding a notice of default, and, if the default be not made good, shall thereafter foreclose the said mortgage(s) and the pledge or assignment of American Radio and Television, Inc., indebtedness, and of the life insurance if any, and shall apply the net proceeds, after all reasonable costs and expenses, upon the indebtedness which is hereby guaranteed, and the Guarantors shall thereupon pay upon demand any balance remaining.”

May defaulted on his note and after protracted litigation, beginning in 1958, May was decreed liable on his note, which was upheld by this Court in the case of May v. National Bank of Eastern Arkansas, 231 Ark. 558, 331 S. W. 2d 697. On June 29, 1960, the Bank collected its judgment in full. This judgment consisted of the sum of $20,055.21 which represented the balance of the original principal indebtedness plus the accrued interest to the date of collection. The judgment also included $1,745.52, which was 10% of the judgment when first rendered plus interest thereon until the date of collection, as an attorney’s fee. The judgment and decree in that case was, accordingly, marked paid in full by the Bank on June 29, 1960.

Thereafter the attorney for the Bank rendered his statement for $4,011.04 to the Bank for his legal services in this extended and successful litigation against May. The Bank paid this fee. The Bank now contends that after applying the $1,745.52 as a credit to the $4,011.04 fee, there is left a deficiency in the payment of the indebtedness of May to the Bank in the amount of $2,265.52 and that it is entitled to recover this amount as a deficiency from its Guarantors since the Bank had recovered from May all the law would permit under the express terms of May’s note to the Bank. The Bank made demand upon the Guarantors for this sum on the basis such deficiency should be construed as reasonable costs and expenses and within the meaning of Paragraph (4). We agree with the observation of the Trial Court in its written opinion that the charges made by the attorney to his client, the Bank, was fair and reasonable. We must also agree with the Court that the balance of the attorney’s fee paid to him by the Bank in the sum of $2,262.52 is not an enforceable item of the Guaranty Agreement. We do not think the parties intended such a deficiency to be included in their agreement. We agree with the following pertinent language in the learned Trial Court’s written opinion:

“It is the opinion of the Court that the parties had in mind the deficiency that would arise by reason of the failure of the assets to bring sufficient amount at the foreclosure sale to pay the debt, interest and costs of the Bank and that the guarantors should make up such deficiency. However, the alleged deficiency in the case at bar did not arise nor was demand made upon guarantors for the payment thereof until after a judgment had been satisfied by the Bank. It does not appear in this record but in the record of the case of No. 31765 [which was appealed to this Court and affirmed in May v. National Bank of Eastern Arkansas, supra] that the Bank had a supplemental agreement with W. D. May whereby May would pay the Bank eight per cent. Both the Bank and May recognized that the guarantors would not guarantee more than six per cent. However, the Bank in that case did not ask for eight per cent on the note foreclosed but contented itself with six per cent interest. Had the Bank asserted its claim of eight per cent per annum interest for the period of five years and eleven months of its dealings with May, as it had a right to do, it would have amounted to considerably more than the $2,265.52 of excess attorney’s fees claimed here. The precedent in cause No. 31765-—-which was prepared by the Bank’s counsel and submitted to opposing counsel before being signed by the Court — specifically waived its eight per cent per annum interest and asked only for six per cent interest.”

In determining the intent of the parties we think it is significant that May’s note to the Bank, which the Guaranty Agreement secured, specifically provided for attorney’s fee as authorized by law in the event the services of an attorney became necessary to collect the note. The Bank saw fit to expressly include this provision in the note in its dealing with May. If the Bank had intended or expected to hold the Guarantors liable for an attorney’s fee or any excess attorney’s fee, other than by the terms of the note, we think the Guaranty Agreement, executed within two weeks after the note, would have so expressly provided instead of using the broad and sweeping language of Paragraph (4).

A guarantor is entitled to a strict construction of Ms undertaking and cannot be held liable beyond the strict terms of his contract. City of Helena v. Arkansas Utilities Co., 208 Ark. 442, 186 S. W. 2d 783. In this case the Court said:

“ * * * A guaranty has been defined as a collateral undertaking by one person to answer for payment of a debt of another. 38 C.J.S., Guaranty, § 1, p. 1129. A guarantor is entitled to have his undertaking strictly construed. 38 C.J.S., Guaranty, § 38, pp. 1182,1183. A guarantor cannot be held liable beyond the strict terms of his contract. ’ ’

In 24 Am. Jur., Guaranty, § 71, p. 158 (Supp. 1962) we find:

“A guarantor, like a surety, is a favorite of the law, and Ms liability is not to be extended by implication beyond the express limits or terms of the instrument, or its plain intent.”

Further, § 73, p. 922, reads as follows:

“* * * Like a surety, a guarantor is liable only in the event and to the extent that Ms principal is liable.”

The judgment on the May indebtedness to the Bank was satisfied of record by the Bank in these words: “This Judgment and decree having been paid in full it is hereby satisfied and cancelled 6-29-60.” Upon payment in full of this judgment we think the discharge of May, the principal debtor, relieved the Guarantors from any further liability in this case. In 24 Am. Jur., Guaranty, § 74, p. 923, we find this language:

“If there is no debt or principal obligation the payment of which is guaranteed, there can be no contract of guaranty; and hence, if the obligation of the debtor has been paid or otherwise satisfied, the guarantor’s obligation is terminated.”

We hold that the liability of the Guarantors in this case is co-extensive with and does not exceed that of the principal and when the principal debtor was fully released and discharged from his indebtedness by the Bank, thereupon, the liability of the Guarantors was extinguished also.

May contends that the Court erred in refusing to allow him credit for various insurance premiums charged to him by the Guarantors. Upon a review of the record we are of the opinion that under the terms of their agreement the Guarantors had a right to advance the insurance premiums on the mortgaged property. Therefore, we find no merit in this contention.

Finding no error, the decree is affirmed in all respects.

George Bose Smith and Johnson, JJ., dissent.

George Bose Smith, J.

(dissenting). There seem to be only two real questions upon the bank’s appeal.

First, was the obligation of the guarantors more extensive than that of the principal debtors? I think it was. The preamble to the guaranty agreement recites that “the undersigned [guarantors] are desirous of guaranteeing the Bank against loss as a result of such indebtedness.” Paragraph 4 compels the bank to give the guarantors ten days notice before filing a foreclosure suit. If the existing default is not made good within that time, and it becomes necessary for the Bank to foreclose, the guarantors make themselves liable for all reasonable costs and expenses of the suit. The principal debtors did not undertake either to guarantee the bank against loss or to become liable for the expenses (other than costs) of litigation. Hence the guarantor’s obligation was unquestionably greater than that of May and his wife.

This reasoning also answers the suggestion that the duty of the guarantors was fully discharged when the Mays paid the judgment against them. In a foreclosure suit the greater part of the creditor’s expense is apt to be incurred not in the mere obtaining of a judgment but in the collection of that judgment. It was not until the bank had collected the principal debt from the mortgagors that it was in a position to determine the full amount of the expenses for which the guarantors were liable under their contract.

Secondly, in Paragraph 4 of the guaranty agreement was the phrase “reasonable costs and expenses” intended to include attorney’s fees? I think so. The parties were talking about litigation and certainly knew that attorney’s fees are an unavoidable expense to be incurred by a bank in bringing a foreclosure suit. The guarantors had obtained the indulgence they sought by promising to guarantee the bank against loss.

In the absence of special circumstances this phrase, costs and expenses, has been uniformly interpreted to include counsel fees. As the Utah court pointed out in Davidson v. Munsey, 29 Utah 181, 80 Pac. 743, the term “costs” has a well-understood meaning; so the use of the additional word “expenses” must mean something other than recoverable court costs. Attorney’s fees are an unavoidable incident to a lawsuit and therefore fall within the costs and expenses of the litigation that is being contemplated and provided for. Among many other cases holding that “costs and expenses” include attorney’s fees are In re Keystone Realty Holding Co., 3rd Cir., 117 F. 2d 1003; Fumiko Mitsuuchi v. Security-First Natl. Bank, 103 Cal. App. 2d 214, 229 P. 2d 376; State to the use of Mills v. Birkins, 32 Del. Ch. 39, 78 A. 2d 868; Burrage v. Bristol County, 210 Mass. 299, 96 N. E. 719; and In re Loudenslager’s Estate, 113 N. J. Eq. 418, 167 Atl. 194. I think the majority opinion to be contrary not only to the intention of the parties but also to the great weight of authority.

Johnson, J., joins in this dissent.


author: Prank Holt, Associate Justice.

text:
    Green v. Smith.
    5-3001
    368 S. W. 2d 280
    Opinion delivered June 3, 1963.

      James P. Baker, Jr. and Bose, Meek, House, Barron, Nash é Williamson, for appellant.

      John L. Anderson, for appellee.
   Prank Holt, Associate 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, Poena 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 testator’s 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 marie, his name being written near it and witnessed by a person who writes his oion 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.
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. Sub-section (3) plainly provides tbat a testator’s signature by mark must be witnessed by a person who writes Ms own name as a witness to tbat 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 be admitted to probate. It is immaterial whether this be done inasmuch as the sole beneficiary named in it, the testator’s wife, pre-deceased 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: Carleton Harris, Chief Justice.

text:
    Huchingson v. Republic Finance Co., Inc.
    5-3038
    370 S. W. 2d 185
    Opinion delivered September 9, 1963.

      Ben M. McCray, for appellant.

      Hall, Purcell é Boswell, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves a conflict of laws, the question being whether a certain contract (hereinafter discussed) is governed by the law of Arkansas or by the law of Iowa.

According to a stipulation entered into between the parties, Carl J. Cardamon, an agent of Builders ’ Supply Company of Des Moines, Iowa, on May 11, 1960, contacted the appellants, Gordon Huchingson and wife, Amanda E. Huchingson, at their residence near Benton, Arkansas, and proposed to install aluminum siding on the Huchingson home. A contract was prepared authorizing Builders’ Supply to do this work for the total sum of $1,600.00, $400.00 to be paid upon the completion of the work, and the balance of $1,200 to be paid in 36 monthly installments of $41.85 each. The contract provided “carrying charges,” in the amount of $306.60. Appellants and Cardamon executed the contract in Saline County, and Hilary DiPaglia, a partner of Builders’ Supply Company, subsequently “approved and accepted” the contract in Des Moines, Iowa. At the time they executed the contract in Saline County, appellants also executed their note in the amount of $1,506.60 (principal and “carrying charges”), together with interest at the rate of 7% per annum after maturity, said note being payable at Des Moines. Within a day or two, work was commenced on the house, and shortly completed. Builders’ Supply Company endorsed the note without recourse to Republic Finance Co., Inc., of Des Moines, and when payment was refused by appellants on the ground of usury, suit was instituted in the Saline Circuit Court. After the filing of an answer, in which the defense of usury was pleaded, the case was submitted for trial to the Circuit Court on the pleadings, exhibits, and a stipulation entered into between the parties which included the admitted fact that the contract and note are usurious under both Iowa and Arkansas law. In its “finding of fact” the court stated:

“This Court believes that the law requires that if there can be any basis for sustaining a note that such note be sustained. In this situation if the note under consideration be an Arkansas note then it is usurious and null and void. The situation exists though in which if the note be construed under the law of Iowa then, relying upon the representations of the attorney for the plaintiff in his brief, if the note be considered to have been finally executed in Iowa the provisions for payment of interest alone are null'and void and the note should be paid in its principal sum.”
It then found “that the final execution of the note was in the State of Iowa and that the plaintiff is entitled to recover the sum of $1,200.00, and that the provisions for interest on such note shall be cancelled and shall be held for naught.”

From the judgment so entered, appellants bring this appeal.

Paragraph Seven of the stipulation concisely sets forth the question we are called upon to determine. That paragraph reads as follows:

“That the sole question to he determined by this Court in this action is whether the contract and note constitute an Arkansas contract or an Iowa contract, as it is conceded by the plaintiff that the contract and note are usurious under both Arkansas and Iowa law, and if found to be an Arkansas contract, judgment should be for the defendants, but if the Court construes the note and contract to be Iowa contracts then judgment should be for the plaintiff with the provision that the accrued interest on the note shall be paid into the Iowa School Fund. ’ ’

We have reached the conclusion that the judgment must be reversed. While in Cooper v. Cherokee Village Development Company, 236 Ark. 37, 364 S. W. 2d 158, we stated, “This court has consistently inclined toward the law of the state that will make the contract valid, rather than void, ’ ’ this statement is only applicable where ostensibly the law of either state could apply, or where there is doubt as to which properly does apply. Under the facts in the instant case, we have no hesitancy in declaring that the contract before us was an Arkansas contract, and is controlled by the law of this state.

In the first place, the contract was entered into, and the note executed by appellants, and Cardamon, the agent of the company, in Benton, Arkansas, and the work was to be performed in Arkansas. It is true that the instrument was subsequently “approved and accepted” by one of the partners of the Builders’ Supply Company in Des Moines, but it does not appear that this approval Avas necessary to effectuate the contract. This is made clear by the provisions of Paragraph One of the stipulation, which sets out that “a day or two” after the contract was executed by the Huchingsons and Cardamon at Benton, “work was immediately commenced and carried on to completion.” From the record, the company agent had apparent authority to execute the contract, and there is nothing in the contract itself which provides that same must be approved in the home office before becoming effective. In fact, one of the provisions states: “This order is not cancellable and it is agreed that if the undersigned designated as ‘Owner’ does not perform same on their part that Builders’ Supply Co., will have incurred damages as a result thereof and the undersigned ‘Owner’ hereby agrees that liquidated or ascertained damages in the sum of thirty (30%) per cent of the contract price shall "be due and payable to said Builders’ Supply Co.”

We daresay that if appellants had, within a few hours after signing this contract, changed their minds about entering into the agreement, the company would have relied upon, and sought enforcement, of the quoted provision. It appears to us, both from the language of the contract, and the action of the company in commencing work almost immediately following the execution of same at Benton, that the agreement was complete when executed in Saline County, Arkansas, on May 11, 1960, and Iowa law has no substantial connection with the transaction.

The only circumstance that favors appellee is the fact that the monthly payments shall be made in Des Moines. Of course, in reaching our conclusions, the contract and note must be considered together. If the only instrument involved were a promissory note, payable in Iowa, appellee’s position might well be maintained. But when the note is only a part of the overall agreement, we consider the situation vastly different. To hold that the mere fact that the note was payable in Iowa made the agreement subject to Iowa law, when all other essential elements of the contract were entered into, and were to be performed in Arkansas, would be to henceforth furnish, a loop-hole whereby an unscrupulous individual, or company, from a state which permitted liberal interest rates, could enter into contracts in this state, and simply by making the note payable in his, or its, own state, safely evade the usury laws of this jurisdiction.

Arkansas has a strong public policy on this subject, as indicated by the fact that the penalty against a seller or lender exacting usury is indeed heavy, and this court, particularly for the last 10 years, has been zealous in guarding against any attempt to evade our constitutional provisions relative to usury.

For the reasons herein set forth, we are of the view that the trial court erred in holding that the contract was to be governed by Iowa law, and the judgment, therefore, should be, and is, reversed.

It is so ordered.

       While not shown by the record, appellants evidently paid the $400.00 upon completion of the work.

       Under the law in Iowa, the effect of usury on the collection of a note is that the principal sum only can be collected by the holder of the note, and the interest is paid into the Iowa school fund. However, in Crebbin v. Deloney, 70 Ark. 493, 69 S. W. 312, a similar provision of Missouri law was involved, but we affirmed as to the principal only, stating:
      “But the decree as to the penalty,—that is, - the forfeiture of the interest to the school fund of Howard county,—is reversed and set aside. We have no law authorizing such a decree, and, while that might be a proper decree, under the Missouri law, in the state of Missouri, yet the law of Missouri imposing such penalty has no extraterritorial force, and will not be enforced here upon the principle of comity.”

       The debt is cancelled.

       See Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S. W. 2d 716; Winston v. Personal Finance Company of Pine Bluff, Inc., 220 Ark. 580, 249 S. W. 2d 315; Commercial Credit Corp. v. Kitchens, 231 Ark. 104, 328 S. W. 2d 355; Holland v. Doan, 228 Ark. 340, 307 S. W. 2d 538; Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104; Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307; Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, and cases cited therein.