text:
    Jones v. Gregg.
    5-890
    293 S. W. 2d 545
    Opinion delivered June 18, 1956.
    [Reheai'ing denied October 8, 1956.]

      James R. Hale, for appellant.

      Price Dichson and W. B. Putman, for appellee.
   Mark E. Woolsey, Special Associate Justice.

This is an action by appellees, as plaintiffs, for the rescission and cancellation of a written contract of sale and purchase and escrow agreement made and entered into on the 23rd day of August, 1952, by and between appellants, who are husband and wife, as sellers, and appellees as buyers,. The relevant facts may be summarized as follows :

On the 23rd day of August, 1952, appellant, J. Hal Jones, was engaged in the general produce business at Lincoln, Arkansas, under the name “Hal Jones Produce Company,” his general business being the selling of standard brands of poultry feed to the poultry growers of that area, in which business he had been engaged for a period of approximately three or four years. He and his wife were the owners, as tenants by the entirety, of his place of business in Lincoln, which consisted of a tract of land containing approximately one and one-seventh acres on which were located the buildings used in connection with his business and also a dwelling house. They had purchased this property on the 27th day of May, 1950, from Mae E. Norwood, who, on said date, executed to them, a warranty deed to said property, which deed contained the following provision: “A vendor’s lien is retained for the sum of $5,000.00 purchase price balance, evidenced by a promissory note of even date, bearing no interest, due on or before one year from date. ’ ’

This deed was filed for record August 21, 1952, two days before the date of the contract forming the basis of this litigation. The vendor’s lien retained in said deed from Mae E. Norwood to appellants had not been released of record, although appellants had paid the sum of $5,000.00 named therein. This payment of $5,000.00, however, was not made on the maturity date of the note, but shortly thereafter. Appellants’ grantor, Mrs. Nor-wood, contended that since they had not paid the note at the time of the maturity thereof, she was entitled to the sum of $22.17 interest, which she demanded of them before she would satisfy of record the vendor’s lien. Appellants, apparently relying on the words “bearing no interest,” had refused to pay the sum of $22.17 being demanded of them as interest.

In addition to the above real estate, appellants were also, at the time of entering into the contract herein, the owners of a G. M. C. truck and a stock of goods and merchandise held by them for sale, which merchandise was contained in the store or place of business located on the above property.

After certain preliminary negotiations, the parties on the 23rd day of August, 1952, entered into the written contract aforesaid, in which appellants, as sellers, and appellees, as buyers, agreed that appellants would sell to appellees for a total purchase price of $17,500.00, said real estate “and the business known as the Hal Jones Produce Company, including its fixtures and equipment, at Lincoln, Arkansas.” In this contract appellants agreed to furnish buyers an abstract showing a good merchantable title to said lands; and the parties further agreed that upon approval of title by appellees, appellees would pay appellants $5,000.00 of the purchase price and would execute and deliver to appellants their promissory note for the balance of $12,500.00, bearing interest at 6% per annum, interest payable annually, said sum of $12,500.00 to be paid on or before two years from the date of said note. The contract further provided that appellees would deposit with the escrow agent named in said contract said down payment of $5,000.00 and said note for $12,500.00, and that appellants would leave with said escrow agent their warranty deed retaining a vendor’s lien for the unpaid balance of the purchase price, “which deed, check and note will be delivered to the respective parties upon approval of the title.” Miss Suzanne Chalfant Lighton, a practicing attorney at law in Fayetteville, was named as escrow agent in said contract.

In addition to the above real estate and business, it was also further agreed by said parties in said contract that appellants would sell to the appellees the stock of goods and merchandise of said business at a price to be determined by an inventory to be taken as of August 23, 1952, and would also sell to appellees the 1952 G. M. C. truck at an agreed purchase price of $2,000.00.

The contract concludes with a paragraph providing that “all accounts receivable as of the close of business on August 23, 1952, will be due the sellers, and thereafter will be due the buyers, it being further agreed that the division of the accounts receivable between the parties will be made when collection is made.”

Appellees retained Miss Lighton, the escrow agent, as their attorney to examine the abstract and approve title for them. She had already examined the abstract a few days prior to the execution of the above contract, and all parties to the transaction understood that the vendor’s lien aforesaid retained by Mrs. Norwood in her deed to appellants yet remained unsatisfied, and that the only point of contention between appellants and Mrs. Norwood was the item of $22.17 claimed by Mrs. Nor-wood as interest.

By agreement of the parties, the $5,000.00 check given as down payment on the purchase price of the lands and business was delivered by the escrow agent to appellant, J. Hal Jones, on the day the contract was executed upon his promise that he would have the vendor ’s lien satisfied upon his return from a vacation trip. The $12,500.00 note executed as a balance of the purchase price, together with the warranty deed from appellants to appellees, remained in the hands of the escrow agent until the trial of this cause, and were never by her actually delivered to the respective parties.

Upon the execution of the contract aforesaid, all the property including the real estate, stock of goods and merchandise and truck, was delivered to appellees, who thereupon engaged in the same business as appellant Jones had been engaged in, and for .a while carried on the business under his trade name, Hal Jones Produce Company. All parties agree that the full purchase price of the truck and the stock of goods and merchandise was paid by appellees prior to the commencement of this action.

After his return from his vacation trip, which was made shortly after entering into the contract in 1952, appellant Jones still refused to pay to Mrs. Norwood the sum of $22.17 demanded of her as a condition to satisfying the vendor’s lien; but on the 8th day of September, 1952, Mrs. Norwood executed a release deed releasing the vendor’s lien and delivered same to the escrow agent with instructions to deliver it to appellants only upon the payment of said disputed item of $22.17. The next day, September 9, 1952, the escrow agent wrote Mr. Jones advising him that the release deed had been left with her to be delivered to him upon the payment of said sum of $22.17, and advising him that title to the lands could not be approved until the vendor’s lien was released. She suggested that he get in touch with her about the matter as soon as possible. Mr. Jones apparently ignored this letter; and on September 29, 1952, the escrow agent again wrote Mr. Jones urging that the matter be cleared up in order that she could approve title and deliver the escrow instruments to the proper parties. On January 6, 1953, she wrote appellees advising them that she had heard nothing from Mr. Jones and that “The title is in the same condition it was when I last talked with you.”

Nothing further was done by appellants toward having the vendor’s lien satisfied of record until after the commencement of this action, it being the contention of appellants that they did not owe Mrs. Norwood the $22.17 but that they told appellees that they would pay same when appellees’ note or any part thereof (apparently meaning principal) had been paid. Appellee^, however, stated that appellant Jones kept promising them that he would take care of the matter.

On September 24, 1953, appellees, who were still engaged in business on said property, paid appellants the sum of $750.00 as the interest on their note for the first year; and on August 23, 1954, they paid the further sum of $750.00 as the interest on said note for the second year, although the note still remained in the hands of the escrow agent. Appellees were also trying to borrow money on the property with which to pay their note, which was now due according to its terms, but were unsuccessful in their efforts. It further appears that appellant Jones had agreed to give them further time within which to pay the principal of the note.

It does not appear, however, that their failure to borrow the money on the property with which to pay tlie note was due to the defect of the title, the reason being that the prospective lenders contacted by them were not willing to loan on this type of property at that time. There is no evidence that any loan was refused because of the unsatisfied vendor’s lien retained by Mrs. Norwood in her deed to appellants; although, obviously, this lien would have to be cleared before any responsible person would make the loan on the property as security. The point is that appellees, in their negotiations for a loan on the property with which to pay the note, never reached the point where the vendor’s lien entered into the matter.

Shortly after their note became due, appellees purchased from Mrs. Norwood other business property across the street from the property involved in this action, on which to carry on and conduct their business.

On October 8, 1954, appellees, without prior notice to appellants, filed their complaint in equity for the rescission and cancellation of only that part of the written contract of August 23, 1952, relating to the sale of the real estate and the business known as Hal Jones Produce Company, in which complaint they allege the failure of appellants to perform their obligation to have satisfied of record the vendor’s lien shown in the abstract.

Appellants defended on the grounds that there could not be a partial rescission of the contract; that appel-lees were estopped from seeking rescission of said contract ; and that they did not act within a reasonable time and were barred by laches. In a counterclaim they asked for a foreclosure of the vendor’s lien retained in their deed to appellees.

The trial court found that that part of the written agreement between appellees and appellants “relating to the sale of the real property described in the plaintiffs ’ complaint and the business known as Hal Jones Produce Company together with its fixtures and equipment for a total consideration of seventeen thousand five hundred dollars ($17,500.00) is severable and divisible from the other provisions contained in said written agreement,” and that appellees were entitled to rescind that part of the written agreement; that appellees had paid appellants $6,500.00 in principal and interest on the purchase price of said property, which sum they were entitled to recover from appellants; that appellees had occupied said premises for a period of 25 months and 13 days and had collected rentals from said property in the sum of $285.00; “and that the sum of $200 paid to the defendants for every month the premises were occupied by the plaintiffs together with the $285.00 rentals collected would make the defendants whole and place them in status quo”; and that appellants were entitled to recover from appellees the sum of $200.00 per month as the rental value of the property, plus the sum of $285.00 collected by appellees as rent, or a total of $5,371.58, which should be offset against said amount of $6,500.00 found to be due from appellants to appellees, leaving a difference of $1,128.42, for which amount appellees were entitled to judgment against appellants.

Based on these findings, the court decreed that the contract between the parties providing for the sale of the real property, and the business known as Hal Jones Produce Company, together with its fixtures and equipment, be cancelled and rescinded, and that appellees have and recover of and from appellants judgment in the amount of $1,128.42, which was declared to be a lien upon said real property. Appellants’ counterclaim was dismissed for want of equity. Prom that decree comes this appeal.

For a reversal of the decree of the trial court, appellants argue and rely upon three propositions: (1) that appellees cannot rescind the contract in part; (2) that they did not seek a rescission within a reasonable time and are barred by laches; and (3) where there has been only a partial failure of consideration, “there is no ground for rescission.

1. Partial Rescission and Restoration to Status Quo. Where a contract is entire and not divisible or severable, it must, as a general rule, be rescinded in toto and not in part; but if a contract consists of two or more parts, which are independent of each other, a partial rescission may he allowed. This rule is stated in 12 Am. Jur., Contracts, Sec. 444, as follows:

“As a general rule the right to rescind must be exercised in toto. The contract must stand in all its provisions or fall altogether. Accordingly, a party cannot repudiate a contract or compromise so far as its terms are unfavorable to him and claim the benefit of the residue. A partial rescission, however, may be allowed where the contract is a divisible one.”

The trial court found that the written agreement between appellants and appellees “relating to the sale of the real property described in plaintiffs’ complaint and the business known as Hal Jones Produce Company, together with its fixtures and equipment, for a total consideration of seventeen thousand five hundred dollars ($17,500.00) is severable and divisible from the other provisions contained in said written agreement, ’ ’ that is, the provisions relating to the sale of the truck and stock of goods and merchandise of said business.

We agree with the trial court that the provisions of the contract relating to the sale of the real estate and the business are divisible and severable from the provisions relating to the sale of the truck. In fact, appellant Jones himself admits that the agreement as to the sale of the truck was separate from and independent of the sale of the real estate, business and stock of goods and merchandise.

On the authority of Carr v. Hahn & Carter, 133 Ark. 401, 202 S. W. 685, as well as other authorities hereinafter cited, and due to the nature of the subject matter, it is our opinion that the sale of the real estate, the business, and the stock of goods and merchandise were so interdependent and interrelated that they constitute an entire, and not a severable, contract. It is true that separate considerations are expressly stated for the real estate and business upon the one hand and the stock of goods and merchandise upon the other, the consideration for the real estate and business being $17,-500.00, and that for the stock of goods and merchandise being its value to be determined by an inventory to be taken as of Angnst 23, 1952. The same was true, however, in the case of Carr v. Hahn & Carter, snpra, the contract in that case stating a consideration of $4,000.00 for the purchase price of materials, fixtures, machinery, etc., to be used in the construction of a dredge boat and a consideration of $125.00 per month as salary for the installation of the machinery on the boat. In our opinion in that case we said:

“The right of plaintiff to a lien turns on the question of whether the contract for the sale of the material, machinery, etc., and the installation of it on the new boat, was entire or whether it was severable ... It will be observed that the written contract fixes a separate price for the articles sold and specifies a time for delivery; but it also provided that plaintiff should install the machinery and be paid specified wages for his services during the period of installation.”

We there held, “it is apparent that the parties did not intend the provisions with respect to the sale of the material and machinery and the installation of the same on the new boat to be severable, but that they were so dependent on each other that they were to be treated as parts of an entire contract.”

A good treatment of the interesting but difficult subject of entire and severable contracts is to be found in 17 C. J. S., Contracts, Secs. 331-336. Also in 12 Am. Jur., Contracts, Secs. 315-320. The distinction between entire and severable contracts is stated in 17 C. J. S., Contracts, Sec. 331, as follows:

“As a general rule it may be said that a contract is entire when by its terms, nature and purpose it contemplates and intends that each and all of its parts and the consideration shall be common each to the other and interdependent. On the other hand, it is the general rule that a severable contract is one which in its nature and purpose is susceptible of division and apportionment.”

As in all other written instruments, the primary test for determining whether a contract is entire or sever-able is the intention of the parties to the contract. This intention is to be ascertained from the language used, the subject matter of the contract and the circumstances of the particular transaction.

Other aids in arriving at the intention of the parties include the singleness or apportionment of consideration, the divisibility of the subject matter, and the construction given to the contract by the parties themselves. As a general rule it may be said that a contract is entire when, by its terms, nature, and purpose, it contemplates that each and all of its parts are interdependent and common to one another and to the consideration, and that it is severable when, in its nature and purpose, it is susceptible of division and apportionment. Acts of the parties in treating the contract as entire or severable have an important bearing on its construction.

The real difficulty comes in the application of the general principles of law to each specific case. Taking all these elements into consideration, however, we are of the opinion that the sale of the real estate, the business and the stock of goods and merchandise, were so interrelated and interdependent that they constituted an entire contract, which was severable and divisible from that part of the agreement relating to the sale of the truck.

As to the stock of goods and merchandise, however, it appears that appellants had, prior to the commencement of this action, been placed in a position of status quo for all practical purposes, inasmuch as they had already received in kind, from time to time, goods and merchandise of like kind and quality, as well as of value, equal to the original inventory. Appellant, Hal Jones, virtually admits this. Therefore, so far as the stock of goods and merchandise is concerned, the result would be the same as if this part of the agreement were severable and divisible from the sale of the real estate and business.

We are still confronted, however, with the question of whether that part of the contract relating to the sale of the real estate and business was itself entire or sev-erable. The contract provides that appellees shall pay $17,500.00 for the real estate, and “the business known as the Hal Jones Produce Company, including its fixtures and equipment, at Lincoln, Arkansas.” The question becomes, “Was the $17,500.00 consideration named in this part of the contract for anything more than the real estate, the fixtures and equipment?” In other words, was the $17,500.00 the consideration for the tangible assets only, consisting of the real estate, the fixtures and equipment, or was it also for certain intangibles such as good will, customer contracts, the right to handle and sell an established brand of merchandise, etc., all of which would be valuable? What is meant by the phrase, “and the business known as the Hal Jones Produce Company?” In view of all the facts and circumstances, it appears to us that the phrase means something more than the mere concrete, physical and tangible assets, such as the real estate, fixtures and equipment. In fact, appellees have taken advantage of these intangible assets by acquiring from Mrs. Norwood other business property across the street from the property in question in which to carry on this same business. See 12 C. J. S., Business, p. 770, Note 5, also 9 C. J., p. 1101, Note 28 (g).

We are therefore of the opinion that the part of the contract relating to the sale of the real estate and the business known as Hal Jones Produce Company, including the fixtures and equipment, included not merely the tangible and physical properties in connection with said business, but also certain intangibles pertaining thereto, and that it is in itself an entire, and not a sever-able, contract; and that, since appellants were not placed in a position of status quo as to the intangibles, it was error to rescind this part of the agreement.

2. Reasonable Time and Laches. There can be no question that appellants obligated themselves to furnish appellees with an abstract of title showing a good merchantable title in and to said real estate. The condition of the escrow agreement was that the respective escrow instruments were to be delivered to the respective parties only upon the approval of title. It is conceded by all parties that the abstract did not reflect a good mer-charitable title because of the unsatisfied vendor’s lien retained by Mrs. Norwood in her deed to appellants. Appellees had the right to demand a strict compliance with the terms of the escrow agreement. This rule is stated in 19 Am. Jur., Escrow, Sec. 20, as follows:

“In the law governing performance of escrow agreements, there is no doctrine of substantial compliance to be found. Compliance must he full and to the letter, or else it constitutes merely noncompliance. Strict and full performance only can discharge a condition precedent to valid delivery by the escrow holder. The question involved is one of performance of the escrow agreement, not of the ability of the parties to perform the agreement, since such ability, without full performance, cannot amount to compliance.”

No time limit is contained in the agreement within which appellants should furnish such abstract; and, in the absence of a specific time limit, appellants had a reasonable time within which to furnish the abstract showing a good merchantable title. Appellants themselves admit that they could have done this within a very short period of time by the payment of the disputed item of $22.17; but they did not have the vendor’s lien released and satisfied until after this suit was brought, a period of more than two years. There can be little doubt, therefore, that had appellees acted within a reasonable time after the failure of appellants to comply with their obligation of the contract, and had they complied with the requirements of law and equity in the matter of restoring appellants to the position of status quo, they would have been entitled to a rescission of the contract.

While the law gave them the right to rescind the agreement upon the failure of the appellants to comply with their part of the contract, this was only one of their remedies and they were not required to exercise it. The law does require, however, that in order to rescind a contract, the rescission itself must be made within a reasonable time after the facts giving rise to the right of rescission arise or become known; and, unless such right to rescission is exercised within a reasonable time after the discovery of the facts justifying the rescission, the party otherwise entitled to rescind will be deemed to have waived this right.

In this case, appellees entered into possession of the property and remained in possession, carrying on and conducting their business operations thereon until the filing of this lawsuit. Although their note for $12,500.00 still remained in the hands of the escrow agent; yet when the first installment of interest in the amount of $750.00 became due one year after the date of the contract, they paid this interest, notwithstanding the fact that appellants had not yet performed their part of the contract and had apparently ignored the letters written by the escrow agent to get them to do so. When the second installment of interest became due, two years after entering into the contract, appellees again paid the interest in the amount of $750.00. Both payments were made directly to appellants. At the time the second installment of interest was paid, the note had by its terms become due, and appellees were making efforts to borrow the money with which to pay same.

While it is argued in their brief that' they could not borrow money on the property because of the unsatisfied vendor’s lien, appellees themselves admitted that in their negotiations for loans the question of title never arose and that they never showed the abstract to any of the prospective lenders. One of the prospective lenders inspected the property and found same was commercial property, on which they were not making loans at that time and the application for a loan was refused solely and entirely because of the type of the property and not upon any defect of title. There is no evidence that any loan was ever refused because of any defect in the title.

Finally, on October 8, 1954, less than two months after they had paid the last installment of interest, and after the note had become due, and after they had been unable to borrow money with which to pay the note, appellees, without prior notice to appellants, vacated the property and filed this suit for the ■ rescission of the, contract.

Appellants contend that during this time this particular property had declined in value about 25%; and, in this, they were corroborated by other witnesses. The chancellor, however, apparently did not accept this testimony, and we are not in a position to say whether this is a fact.

It is our opinion, however, that appellants should be sustained in their contention that suit for rescission was not, under all the circumstances, brought within a reasonable time after the grounds therefor arose, especially in view of the fact that the suit was filed without prior notice to appellants.

In the case of General Motors Acceptance Corporation v. Hicks, 189 Ark. 62, 70 S. W. 2d 509, this court quoted with approval the following language of the Supreme Court of Washington in the case of Lundberg v. Switzer, 146 Wash. 416; 263 Pan. 178; 59 A. L. R. 131:

‘‘The right to forfeit a conditional sales contract for overdue payments cannot be exercised without demand and a reasonable opportunity to comply, after there has been a waiver of strict performance by the acceptance of delayed payments.”

In the same case, Mr. Justice Frakk G. Smith, speaking for this court, said:

“This principle is that one may lose the right to enforce a contract strictly according to' its terms if he induces the other party to the contract to believe that he will not strictly enforce it, unless, after inducing this belief, he gives reasonable notice that the indulgence will not be continued and a reasonable opportunity is given to comply after such notice. ■
“This principle is not confined in its application tó: questions arising under conditional sales contract.”

It, therefore, appears to us that, having remained in possession of the property for more than two years during which time they Avere operating the business, ahd collecting rents, and having made two annual payments of the interest on their note, and having advised appellants that they were seeking to borrow the money with which to pay the note, appellees had at least induced appellants to believe that they would not strictly enforce their rights to a rescission of the contract, and, that after this lapse of time, they should have given appellants reasonable notice that they did intend to rescind same. In view of these facts and principles, we sustain appellants’ second contention.

3. Rescission on Partial Failure of Consideration. It is next contended by appellants that there could be no rescission of a contract for the purchase of land until there has been shown a failure of title, and that there could be no rescission for a partial failure of consideration. An examination of the authorities cited in this section of appellants’ brief convinces us, however, that they apply to executed contracts, rather than to execu-tory and escrow contracts such- as in this case.

The vendor’s lien retained in the deed from Mrs. Norwood to appellants having now been satisfied of record, appellants are now entitled to the payment of the purchase money note executed by appellees with accrued interest, which note is secured by vendor’s lien on the property; and the note now being in default, appellants are entitled to a foreclosure of their vendor’s lien as prayed in their, counterclaim.

The decree of the trial court is, therefore, reversed and remanded for further proceedings in conformity with this opinion.

In connection with such further proceedings, we also note that the original escrow instruments were admitted in evidence in the trial court and now form part of the record on appeal to this court. These instruments will, upon proper motion by the parties entitled thereto, be withdrawn from the record and delivered to the parties entitled to same under the terms of the original escrow agreement. .1

Reversed and remanded.

Holt, Millwee and Ward, JJ., dissent.' Chief Justice Seamster not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Crowly v. Thornbrough, Comm’r. of Labor.
    5-998
    291 S. W. 2d 500
    Opinion delivered June 18, 1956.

      Mehaffy, Smith and Williams and B. S. Clark, for appellant.
    Appellee pro se.

      Tom Gentry, Attorney G-eneral and Boy Finch, Jr., Asst. Atty. General for Intervenor.
   Per Curiam.

This appeal is from an order sustaining defendant’s demurrer to the complaint without any further action by the trial court. It is not a final and appealable order, and the appeal must therefore be dismissed as premature. It is so ordered. See Atkins v. Graham, 99 Ark. 496, 138 S. W. 878 and other cases cited in Arkansas State Board of Architects v. Larsen, ante page 536, 291 S. W. 2d 269.


author: Lee Seamster, Chief Justice.

text:
    Cooley v. Walther.
    5-974
    291 S. W. 2d 515
    Opinion delivered June 25, 1956.

      Hardin, Barton, Hardin & Garner, for appellant.

      Robert R. Brooksher and Donald Poe, for appellee.
   Lee Seamster, Chief Justice.

This is the second time this case has been here on appeal. The facts were set out in the former appeal • — • Walther v. Cooley, 224 Ark. 1027, 279 S. W. 2d 288. In the former case this court held that the evidence was sufficient to make it a question of fact for the jury to determine. Under the rule many • times announced by this court., the decision oh the former appeal becomes the law of the case on this appeal — unless we can say that the testimony on the second appeal is substantially different from that on the first appeal. Hallum v. Blackford, 202 Ark. 544, 151 S. W. 2d 82. The testimony on this appeal is substantially the same as in the .former appeal, with slight variations.

Upon trial of the issues in the Scott Circuit Court, appellee was awarded a judgment in the sum of $1,000, for personal injuries. For reversal, appellant contends (1) that the evidence is not sufficient to support the verdict and judgment rendered, and (2) the verdict and judgment in the amount of $1,000 are excessive.

The appellant employed the appellee to assist in constructing a garage on appellant’s property. The ap-pellee was being paid at a rate of sixty cents per hour for his services. On January 5, 1954, the appellee was injured, at a time when the parties herein, and another hired hand, were placing rafters on the partially constructed building.

At the time of the mishap, the appellee was working on the south side of the building, using a scaffold and plate to stand on while nailing the rafters to the plate. When he stepped down from the plate to the scaffold, one of the braces on the scaffold broke and the appellee fell to the ground, landing on his head and shoulders. He sustained a broken rib, injuries to his right eye and fractures to bones of his right hand. At the time of the original trial, the appellee’s right hand still suffered a partial permanent disability, to the extent that he was unable to grasp tools with which to pursue his occupation.

The record reveals that the appellant furnished the tools and material and supervised the construction of the building. The appellant personally built the south scaffold after selecting and furnishing the material. An inspection of the scaffold, after the accident, revealed that the timber used in its construction was defective and caused the break.

This court has many times held that it is a master’s duty to exercise ordinary care to furnish his servant a reasonably safe place to work. Arkadelphia Sand and Gravel Company v. Knight, 190 Ark. 386, 79 S. W. 2d 7l.,

We hold that the evidence was substantial to sustain the verdict. We are also of the opinion that the amount of the verdict was very moderate, considering the injuries sustained by the appellee. ,

Judgment áffirmed.


author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    International Brotherhood of Teamsters, Local No. 878 v. Blassingame.
    5-1010
    293 S. W. 2d 444
    Opinion delivered June 25, 1956.
    [Rehearing denied October 1, 1956.]

      Tom Gentry, for appellant.

      Catlett & Henderson, for appellee.
   J. Seaborn Holt, Associate Justice.

This appeal is from a decree permanently enjoining appellant, International Brotherhood of Teamsters, Chauffeurs, Ware-housémen and Helpers of America, Local No. 878, from picketing the retail establishment of intervener, Ralph Royse, and the places of business of all other persons similarly situated.

■' • Material facts appear not to be in dispute. Some of the members of appellant, Local Union 878, were involved in. a labor dispute with the Terry Dairy Products Company, Inc., over wages, hours and working conditions. The Terry Dairy Company sold milk and other dairy products at wholesale prices to appellee, M. E. Blass-ingame (who lias gone ont of business since the present litigation began), intervener, Ralph Royse, and other retail establishments such as restaurants and cafes which sell these milk products to their customers. In an effort, to persuade the public not to purchase the products of the Terry Dairy Company, appellant placed pickets at the entrances of some of the retail establishments, including that of Royse, selling Terry products. These pickets carried a sign which read: “Employees of Terry Dairy Products Co. on strike for a living wage. This establishment serves Terry Dairy Milk. Please don’t drink it.” As indicated, a picket carrying the above' sign was placed near the entrance of Blassingame’s place of business and also at Royse’s place of business. The complaint of Ralph Royse, alleged, in effect, that he was a wholesale customer of Terry Dairy Products-Company, Inc., from which company he purchased dairy products for resale to the public at his place of business, 701 Broadway, Little Rock; that the appellant union, acting through its members, picketed his place of business and thereby deprived him of many of his customers and trade solely because he offered for sale products distributed by Terry Dairy; and that he had no labor dispute with the appellant union. Appellant answered, in effect, denying every material allegation in the complaint, and in addition that the trial court lacked jurisdiction for the reason .that the jurisdiction over the subject matter as alleged in the complaint had been preempted by the National Labor Relations Act, as amended (Taft-Hartley Act), U. S. C. Title 29, S. 151, et seq, and that the right to advertise their grievances against Terry Dairy in a peaceful manner was guaranteed under the constitution of the United States, etc., and prayed that the injunction be dissolved. As indicated, the undisputed facts show that Royse had no labor dispute whatever with Local Union 878 above, and that there is' no dispute between him and his own employees, none of whom belong to the above union. The picketing is not on the premises at the Terry plant — is entirely disconnected with it, but is on, or near, the premises of the retailer, Royse. It further appears that there was no violence and that the picketing was peaceful.

For reversal appellant relies on two points: “1. Product picketing in a peaceful manner is not picketing for an unlawful purpose, and cannot be enjoined. 2. The evidence does not reflect that appellant is bringing this action for himself and all others similarly situated.”

I.

We do not agree with appellant’s first contention. We are here confronted with what is obviously, in effect, a secondary boycott — “A secondary boycott occurs when striking employees, in addition to picketing the premises of their own employer, also establish picket lines around the premises of others not so directly interested in the labor dispute, such as customers to whom the primary employer sells or manufacturers from whom he buys,” Boyd v. Dodge, 217 Ark. 919, 234 S. W. 2d 204. There is. no proof whatever in this case that the Terry Dairy Company was engaged in interstate commerce, or that a Federal question is involved. Such proof is a primary jurisdictional requisite as was said by the Supreme Court of the United States in United Construction Workers v. Laburnum Construction Corp., 347 U. S. 656, 98 L. Ed. 1025, 74 S. Ct. 833, and this language was used: “It (National Labor Relations Act, as amended) sought primarily to empower a federal regulatory body, through administrative procedure, to forestall unfair labor practices by anyone in circumstances affecting interstate commerce. In circumstances, in effect, such as are presented here, the public policy of this state as affects picketing by labor unions was declared in the recent case of International Brotherhood of Electrical Workers, Local Union No. 295, v. Broadmoor Builders, Inc., 225 Ark. 260, 280 S. W. 2d 898, we there held: “Headnote 1. Labor — Peaceful Picketing, Public Policy. — Picketing — which prevents the delivery of merchandise, or other articles to persons or places entirely disconnected from any picketing that might be legal as against the limited person or place to be picketed — declared to be against tbe public policy of Arkansas-’ In tbe Broadmoor Case above, in wbicb we sustained an injunction against picketing, as unlawful, we also pointed out in Footnote No. 7, tbat tbe Supreme Court of the United States has held tbat State Courts are given tbe right to determine public policy and to “set tbe limits of permissible contests open to Industrial combatants.”

II.

As to appellant’s second point, little need be said. Tbe facts showed tbat pickets were placed at tbe entrances of not only Blassingame’s place and Royse’s place, but at other retail establishments, and appellee says: ‘ ‘ Tbe plaintiff files this complaint for himself and all others similarly situated, tbe same constituting a class of citizens who offer Terry Products for sale to tbe public and who are being picketed or are under tbe threat of picketing by virtue of said fact. It is impracticable to bring all of tbe members of tbe class before tbe court; tbe filing of separate suits by each of tbe members of tbe class would involve a multiplicity of suits . . . ” We bold tbat appellee, Royse, here, was acting not only for himself but for a class and as a member of tbe class for wbicb be so acted, and tbat it was proper for him to bring tbe present suit for the benefit of all. What we said in Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, is in point here, “Where tbe question is one of a common or general interest of many persons, or where tbe parties are numerous, and it is impracticable to bring them all before tbe court within a reasonable time, one or more may sue or defend for the benefit of all. Section 1098, Crawford & Moses’ Digest [Now § 27-809 Ark. Stats. 1947]. But tbe person who so acts for a class must be a member of tbe class for whom be acts.”

We conclude, therefore, tbat tbe decree was correct and we affirm.

Justice MoFaddin dissents.

Ed. F. McFaddin, Associate Justice

(Dissenting)'.

Tbe appellants were engaged in picketing an establishment where Terry Dairy products were being sold: there was no mass picketing and there was no violence. The .majority opinion in this case holds that the Chancery Court was correct in enjoining such picketing on the theory of a secondary boycott. I find myself unable to agree with that conclusion; hence this dissent.

There is a distinction between (a) a secondary boycott and (b) product picketing. A secondary boycott exists when the workmen on strike against one establishment attempt by picketing to induce the workmen of another establishment to cease working for their employer. Product picketing is an effort by striking workmen of one establishment to persuade the public to cease buying the product of the establishment against which the workmen are on strike, but with no effort on the part of the strikers to influence the workmen of the place where the picketing is being conducted to cease from working at that establishment. I think that in the case at bar the picketing was product picketing rather than a secondary boycott, But I propose to show that the majority opinion is wrong in this case whether the picketing was a secondary boycott or product picketing.

I. Secondary Boycott. If the picketing in the case at bar be regarded as a secondary boycott, then it is my understanding of the Taft-Hartley Act (U. S. C. A. Title 29, Section 158) that all jurisdiction in regard to a secondary boycott — absent mass picketing and violence — is in the National Labor Relations Board. Capital Service v. N. L. R. B., 347 U. S. 501, 98 L. Ed. 887, 74 S. Ct. 699. The recent case of Auto Workers v. Wisconsin Employment Relations Board, 351 U. S. 266, 76 S. Ct. 794, 100 L. Ed. 1162, decided by the U. S. Supreme Court on June 4, 1956, inferentially so holds.

The majority opinion in the case at bar says the picketing here was a secondary boycott, but that no interstate commerce was shown to have existed so the State Court had jurisdiction. I understand that the old distinction, that actual movement of goods is necessary to make interstate commerce, has been changed both by the Wagner Act and the Taft-Hartley Act. It is not a question of whether the goods actually moved in interstate commerce, but whether the picketing ‘ ‘. . . would burden or obstruct commerce ... or tend to burden or obstruct . . . the free flow of commerce. ’ ’ Such is the language of the Taft-Hartley Act as contained in U. S. C. A., Title 29, Section 142. So, if picketing here be a secondary boycott, it is not necessary to allege the actual movement of goods in interstate commerce, because the jurisdiction to enjoin a secondary boycott is exclusively in the National Labor Relations Board, absent mass picketing or violence. The effect here would be to reverse the decree and dismiss the injunction.

II. Product Picketing. If we regard the picketing here involved as product picketing — and I do so regard it — then there is nothing illegal in such picketing; it comes under the right of free speech guaranteed by the Constitution. Here are some cases from State courts that recognize the legality of product picketing: Goldfinger v. Feintuch (N. Y. 1937), 276 N. Y. 281, 11 N. E. 2d 910, 116 A. L. R. 477; Fortenbury v. Superior Court 16 Cal. 2d 405, 106 Pac. 2d 411; Ohio Valley Adv. Corp. v. Union Local 207, 138 W. Va. 355, 76 S. E. 2d 113; and Galler v. Slurzberg, 27 N. J. Super. 139, 99 Atl. 2d 164.

In the last cited case (Galler v. Slurzberg) the New Jersey Court said:

“We have here a form of secondary picketing known as product picketing — picketing directed against the product itself and not against the person selling it. Peaceful picketing of the place of business of a merchant selling the product of a manufacturer who is a party to a labor dispute, for the purpose of asking the public to refrain from purchasing such product, is permissible.”

To sustain the quoted statement, thirteen cases are cited from various jurisdictions and also some textbooks and some annotations.

The majority opinion in the case at bar says that the public policy of Arkansas — as announced in International Brotherhood v. Broadmoor, 225 Ark. 260, 280 S. W. 2d 898 — applies here, and justifies the injunction against product picketing. I cannot agree with such, conclusion of the majority. International Brotherhood v. Broadmoor involved picketing against the employer at a place removed from the scene of employment; and we held that the effect of such picketing was to interfere with the normal use of the highways by other persons. Remote picketing against the employer — as in the Broadmoor case — is entirely different from product picketing, as in the ease at bar. Under the guise of public policy, I seriously doubt if a State court still has jurisdiction to enjoin against product picketing, absent, as here, any mass picketing or violence.

I am bound to try to follow the holdings of the United States Supreme Court; and under such holdings — as I understand them — I think the decree here should be reversed and the injunction dissolved.

       See U. S. C. A. Title 29, Section 158, sub (b) (4); and see International Brotherhood v. N. L. R. B., 341 U. S. 694, 95 L. Ed. 1299.

       The majority opinion says of Royse’s complaint: “. . . that the appellant union, acting through its members, picketed his place of business and.thereby deprived him of many of his customers and trade solely because he offered for sale products distributed by Terry Dairy; and that he had no labor dispute with the appellant union.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Halbert v. Helena-West Helena Industrial Development Corporation.
    5-1035
    291 S. W. 2d 802
    Opinion delivered June 25, 1956.

      David Solomon, for appellant.

      James P. Baker, Jr., Tom Gentry, Attorney General and Bose, Meek, House, Barron & Nash, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit brought by appellants, as citizens, residents and taxpayers, seeking, inter alia, a declaratory judgment regarding the validity of Act 404 of 1955, known as the “Arkansas Industrial Development Act,” and hereinafter referred to as “Act 404.” The Trial Court sustained a demurrer to the complaint and- dismissed the suit; and this appeal resulted. The defendants below and appel-lees here are: (a) Helena-West Helena Industrial Development Corporation (hereinafter called either “Helena Development Corporation” or “local corporation”); .(b) tbe Arkansas Industrial Development Commission (sometimes called “State Commission”) created by said Act 404 and tbe individual members of said Commission; and (c) tbe State Board of Finance (created by Act No. 338 of 1955) and tbe individual members thereof.

After stating tbe status of tbe parties, as above mentioned, tbe complaint alleged tbat the Helena Development Corporation, proceeding under Act No. 404, was about to issue $800,000.00 of industrial development bonds secured by a mortgage on land and heavy industrial machinery; tbat from tbe proceeds of said bond issue, tbe Helena Development Corporation would acquire lands and buildings and install heavy industrial machinery at a total cost in excess of tbe bond issue; tbat tbe Helena Development Corporation would then convey tbe building and machinery to Tbe Mohawk Rubber Company (an Ohio corporation) in consideration of Tbe Mohawk Rubber Company assuming tbe $800,000.00 bond issue and operating a manufacturing establishment in tbe building so erected and equipped to manufacture automobile tires and other products; tbat tbe Arkansas Industrial Development Commission bad approved the project under Act 404; and tbat tbe State Board of Finance bad authorized tbe purchase of $400,-000.00 of said bond issue. Tbe complaint then alleged four points on which it claimed tbat tbe Act 404 is unconstitutional, and one additional point on which it claimed tbat tbe Helena Development Corporation was about to violate Section 27 of tbe Act 404. These grounds of attack will be listed and discussed hereinafter.

As aforesaid, tbe Chancery Court sustained a general demurrer and dismissed tbe complaint, so tbe issues before us are tbe same five grounds of attack as those in the Trial Court; and no additional grounds of attack have been suggested or have occurred to this Court.

At the outset we briefly analyze the Act 404, which passed both Houses of the Legislature by overwhelming vote and without any amendment in the course of passage. The Act creates a State Commission known as the “Arkansas Industrial Development Commission” of seven members and hereinafter called “State Commission”; and in general terms prescribes the duties of said Commission. Section 13 of the Act allows fifteen or more natural persons in any city, town or county to organize a corporation under the Act for the industrial development of the area involved: Section 22 provides that the corporation shall he a non-profit corporation. The Act further provides that the organizers shall submit their proposed organization papers to the State Commission for approval and, when so approved, the papers shall be filed with the Secretary of State and corporate status shall begin. The local corporation so organized will seek to bring to the community new industrial plants. The local corporation can issue bonds for the construction of the plant, which it will then sell, rent or give to an industry as an inducement to locate in the community. There are restrictions as to the percentage of cost for which the bonds may he issued; the bonds may he secured by a mortgage on the physical assets of the local corporation; the local corporation is, in several respects, under the supervision and control of the State Commission. The Act also authorizes the State Board of Finance to purchase not to exceed one-half of the issue of the first lien industrial bonds issued by the local corporation, and the remaining bonds are to be sold to the public. Other particularities of the Act will he mentioned hereinafter. Now we consider the five points that appellants make on this appeal.

.....I. ’ Appellants say: “Act No. 404 of the Acts of the General' Assembly of the State of Arkansas of 1955, in that it authorizes the issuance of bonds for the pur-po'se'.of industrial expansion, is in violation of the provisions ofArticle 16, Section 1 of the Constitution of the, State of Arkansas, as amended by Amendment No. IS to Ihe Constitution of the State of Arkansas, and is in violation of the provisions of Amendment No. 17 to the' Constitution of the State of Arkansas, as amended by ■Amendment No. 25 to the Constitution of the S.iate óf Arkansas,”

"We pass for later consideration in this opinion the language of Section 20 of the Act 404, which reads:

“Any city, town, or county in the State may purchase membership in a local industrial development corporation organized under the provisions of this act.’7 With the exception of Section 20, we find nothing in the Act whereby any city, town, county or other subdivision of the State is granting any financial aid toward any development corporation organized under Act 404. The |.ocp,l. corporation organized under the Act is a non-profit private corporation organized by individuals, who are, of cpurse, public spirited citizens who want to see industrial development in their respective communities: but the corporation is a private corporation.. In the case at bar, the Cities of Helena and West Helena and the County of Phillips'are. no-more liable for the obligations of the Helena Development Corporation than they would be for the liabilities of grocery stores or mercantile establishments in their communities. Act 404 is not like the acts from other states considered in these cases, to-wit: Miller v. Police Jury of Washington Parish, 226 La. 8, 74 So. 2d 394; In Re Opinion of Justices, 99 N. H. 528, 114 Atl. 2d 514; In Re Opinion of Justices, 254 Ala. 506, 49 So. 2d 175; Faulconer v. City of Danville, 313 Ky. 468, 232 S. W. 2d 80; and Holly v. City of Elizabethton, 193 Tenn. 46, 241 S. W. 2d 1001. The- Arkansas Act organizes the local development corporation as a non-profit private corporation; and this is certainly within the powers of the Legislature:

II. Appellants say: “Section 20 of said Act No. 404 is in violation of the provisions of Article 12, Sections 5 and 7 of the Constitution of the State of Arkansas, and is in violation of the provisions of Amendment No. 13 to the Constitution of the State of Arkansas.” We have previously quoted Section 20 of the Act; and we conclude that this section offends against our Constitution and its Amendments. Article 12, Section 5 of the Constitution provides:

“No county, city, town or other municipal corporation shall become a stockholder in any company, association or corporation; or obtain or appropriate money for, or loan its credit to, any corporation, association, institution or individual.”

Amendment 13 of the Constitution provides in part:

“No municipality shall ever grant financial aid toward the construction of railroads or other private enterprises operated by any person, firm or corporation ...”

Under Section 20 of the Act 404, a city, town or county is allowed to “purchase membership” in a local industrial development corporation. It would be doing indirectly what the Constitution forbids to be done directly, if a county or municipality were allowed to purchase a membership in the corporation, because such purchase of “membership” would certainly be granting financial aid to the said local corporation. When the Arkansas Legislature allowed the creation of local development corporations as private non-profit corporations, it could not at the same time allow counties or municipalities to grant financial aid to such corporations. The appellees cite the case of Neel v. City of Little Rock, 204 Ark. 568, 163 S. W. 2d 525, 142 A. L. R. 1071, as a case in which we allowed a city to donate money to the Community Chest and say that, by the same token, we should allow cities to buy memberships in local development corporations organized under Act 404. But in Neel v. City of Little Rock, some surplus money of a city was allowed to be given to public charity, which saved the city from making certain expenditures; that is far different from the situation here. At all events, Neel v. City of Little Rock is a borderline case; and we refuse to extend the effect of its holding.

So we conclude that Section 20 of the Act 404 should be stricken. But that does not affect the remainder of the Act, as we will discuss in the next section of this opinion.

III. Appellants say: “Section 36 of said Act No. 404 is in violation of the provisions of Article 16, Section 6, of the Constitution of the State of Arkansas.”

Section 36 of the Act 404 says:

“Bonds issued in accordance with the provisions of this act shall be exempt from all taxes, state, county and municipal; this exemption including income taxation and inheritance taxation. ’ ’

"We think this section is in violation of Article 16, Section 6 of the Constitution of Arkansas, which says:

“All laws exempting property from taxation, other than is provided in this Constitution, shall be void.”

The appellees practically concede that the effect of our opinion in the case of Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5, is against the complete validity of this section. In the case of Jernigan v. Harris there was an effort to exempt from taxation certain improvement bonds to be issued, and in holding the exemption to be bad, Mr. Justice Frank G. Smith, speaking for this Court, said:

“It is attempted in both acts to exempt from all forms of taxation any of the bonds authorized by each of the acts. Section 5 of article 16 of the Constitution provides that all property subject to taxation shall be taxed according to its value, in such manner as the General Assembly shall direct,. making the same equal and uniform throughout the State, and provides also the property which shall be exempt from taxation. Section 6 of the same article of the Constitution provides that ‘All laws exempting property from taxation other than as provided in this Constitution shall be void.’ It would appear therefore that this provision of the act exempting the bonds from taxation is void, at least when such bonds are held by any person or agency whose property is not otherwise exempt from taxation.”

Appellees cite us to the cases of Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980; and Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272, as cases in which certain exemptions were allowed on bonds. But the bonds issued in those cases were state bonds, and the bonds to be issued by the Helena Development Corporation are bonds issued by a private non-profit corporation; so the cited cases have no application.

We come then to the effect of the invalidity of Section 20 and Section 36 of the Act 404; and with those sections stricken from the Act, the remaining portions of the Act remain full and complete. Section 38 of the Act 404 says:

“The provisions of this act are hereby declared to be severable. If any section, paragraph, sentence or clause of this act shall be held unconstitutional or invalid, the invalidity of such section, paragraph, sentence or clause, shall not affect the validity of the remainder of the said act. ’ ’

In Jernigan v. Harris, supra, a section was stricken from an act and the remaining portion of the act was there, as here, held to be valid and enforceable. We adopt here what Mr. Justice Frank G-. Smith, speaking for the Court in the Jernigan case, said:

“This exemption does not, however, render either act void, for the reason that each act contains identical sections reading as follows: ‘ The sections and provisions of this act are separable and are not matters of mutual essential inducement, and it is the intention to confer the whole or any part of the powers herein provided for, and if any of the sections or provisions or parts thereof is for any reason illegal, it is the intention that the remaining sections and provisions or parts thereof shall remain in full force and effect.’ We have uniformly held that, where a statute is unconstitutional in part, the valid portion will be sustained if complete in itself and capable of being executed in accordance with the apparent legislative intent. These acts are both complete and capable of being executed in accordance with the legislative intent expressly declared in the section quoted, and the acts must therefore be upheld, notwithstanding this exemption and its consequent unconstitutionality as applied to persons or agencies whose property would otherwise be subject to taxation.”

IV. Appellants say: “Section 34 of said Act No. 404 is in violation of the provisions of Article 16, Section 11 of the Constitution of the State of Arkansas, and is in violation of the provisions of Amendment No. 13 to the Constitution of the State of Arkansas.” We find no merit to the appellants’ contention on this point. Amendment 13 of the Constitution says in part:

“Neither the state' nor any city, county, town or other municipality in this State, shall ever lend its credit for any purpose whatever; . . .”

Section 34 of Act 404 authorizes the State Board of Finance “in its discretion” to purchase from local development corporations fifty per cent of the principal amount of the bond issue up to a certain amount. The State is certainly not lending its credit to the local development corporation when it purchases bonds and receives the bonds. The Act creating the State Board of Finance is Act 338 of 1955 (see § 13-401 Ark. Stats. 1956 Replacement Volume). Whether the State Board of Finance invests the State’s surplus in one kind of bond or another is a matter for the Legislature to permit, and for the State Board of Finance to then decide in the exercise of its discretion. Certainly the Legislature can determine what kind of securities can be purchased by the State Board of Finance in its discretion; and until it is shown — and it has not been so shown here — that the State Board of Finance has abused its discretion or that such investment impairs the State’s ability to pay outstanding obligations as they mature, then no case is made by the appellants under this point.

V. Appellants say: “The action of the defendant, Helena-West Helena Industrial Development Corporation, in issuing bonds for the purchase of heavy industrial machinery to be constructed into the building, as set out in the complaint, and in the application to the Arkansas Industrial Development Commission, is contrary to the provisions of Section 27 of said Act No. 404.”

In this point appellants are not attacking the constitutionality of any section of the Act 404 but are attacking the actions of the local corporation in attempting to borrow money for the purpose of purchasing heavy industrial machinery to be installed in the building involved. Appellants cite Section 27 of the Act 404, which reads:

“Each corporation organized under this act is authorized to borrow money and to issue negotiable coupon bonds for the repayment thereof from corporate funds to carry out the purpose for which the corporation is organized; provided, however, that no first lien bonds shall be issued by any corporation organized under the provisions of this act for the purpose of purchasing equipment or other personal -property.” (Emphasis supplied by appellants.)

Appellants cite the following cases to sustain their position on this point, to-wit: Sessoms v. Ballard, 160 Ark. 146, 254 S. W. 446; Barnes v. Jeffus, 173 Ark. 100, 291 S. W. 990; Bank of Mulberry v. Hawkins, 178 Ark. 504, 10 S. W. 2d 898; Bennett v. Taylor, 185 Ark. 794, 49 S.W. 2d 608; and Romich v. Kempner Bros. Realty Co., 192 Ark. 454, 92 S. W. 2d 215.

But as a part of appellants’ complaint, there was a copy of the application of the local corporation to the State Commission and in that application there was the following paragraph which the demurrer admits to be true :

“In order to make these lands and improvements adaptable to the needs of The Mohawk Rubber Company as a plant site, and in order to make it possible for The Mohawk Rubber Company to use these lands and improvements as a plant site, it is necessary, and the ‘Industrial Development Corporation proposes, to add to the lands and building’s a boiler of such nature and design, with all equipment necessarily appurtenant thereto, and' in such location, as may be specified by The Mohawk Rubber Company. It proposes further to install heavy industrial machinery required in the manufacturing of vehicle tires. Individual pieces of this machinery weigh in excess of 75 tons. Much of it requires special foundations, some of them as much as eight feet thick. Much of the heavy machinery exceeds a normal floor in height and requires a special adaptation of ceilings and walls. Once the machinery is in place it is essentially a part of the land itself. It cannot be removed except by cutting the machinery into pieces, which cannot be reassembled to its former usefulness. If it is removed, the removal leaves the floor and ceiling of the building damaged and incomplete. The heavy foundations are useful for nothing else except similar machinery, and the ceiling must be repaired before the building can be used for any other purpose. Such machinery is as much a part of the land and buildings, for example, as a furnace or a central air conditioning system with pipes and ducts running throughout the building.”

Under the admitted facts; it is clear that the Helena Development Corporation is not erecting a mere “bare-bones” building, but is erecting a manufacturing establishment: the boiler and the heavy industrial machinery are necessarily parts of the manufacturing establishment just as are the windows and doors of the building. A careful study of the entire Act 404 convinces us that Section 27, here under attack, was intended as an inhibition against the purchase of equipment and personal property separate from the erection of an industrial establishment: that is, a local corporation could not purchase equipment and personal property alone and transfer or lend or give such equipment to some manufacturing establishment. Here, the boiler and the heavy industrial machinery are to be installed in the building to complete the manufacturing establishment, and when installed in the building will become a part of the realty and conveyed and mortgaged as such. The Helena Development Corporation and the Mohawk Company so understand. In many of our cases we have held that when trade fixtures become a part of the realty, they pass with it as such. Such is the situation here. Some of our cases so holding are: Waldo Fertilizer Works v. Dickens, 206 Ark. 747, 177 S. W. 2d 398; Morgan Utilities v. Kansas City Life Ins. Co., 183 Ark. 492, 37 S. W. 2d 90; Dent v. Bowers, 166 Ark. 418, 265 S. W. 636, 36 A. L. R. 443; Peck-Hammond Co. v. Walnut Ridge Dist., 93 Ark. 77, 123 S. W. 771; Kansas City So. Ry. Co. v. Anderson, 88 Ark. 129, 113 S. W. 1030; Thompson v. Lewis, 120 Ark. 252, 179 S. W. 343; Hoye Coal Co. v. Colvin, 83 Ark. 528, 104 S. W. 207; and Ozark v. Adams, 73 Ark. 227, 83 S. W. 920. In the light of the foregoing cases, we find no merit in the appellants’ fifth point.

Conclusion.

With Sections 20 and 36 of Act 404 stricken, there is still left a valid and workable Act; and the Helena Industrial Corporation can proceed under the Act minus these two sections. The decree is affirmed as to all matters except Sections 20 and 36 of the Act 404; as to them the decree is reversed and the cause is remanded, with directions to enter a decree in accordance with this opin-¡on. All costs will be equally divided be Ween appellants and appellees.

Holt, J. votes to affirm as to all matters except Section 36 of the Act 404 of 1955.

(xeorge Bose Smith, J. not participating.

       An exhibit attached to the complaint gave the appraisal figures as follows:
      “Appraised value of the lands--$ 49,800.00
      Appraised value of the present improvements_ 730,797.39
      Addition of boiler_ 25,000.00
      Addition of heavy industrial machinery__ 500,000.00
      Total_$1,305,597.39”

       It is well to call attention to the fact that this is an effort by Arkansas to encourage the location of industries in our State. Other States have made such efforts. Some States proceed by private financing, as Arkansas is doing; some by public financing; and some by commercial credit corporations. Generally, Arkansas, Florida, Missouri and Oklahoma are using the private financing methods. Mississippi, Louisiana, Alabama and Tennessee, by and large, are using the public financing method, whereby municipalities or other political subdivisions are authorized to issue general obligation bonds for the acquiring of funds to construct industrial sites. In the New England states, a development credit corporation plan is used, as a state-wide approach to the problem of assisting local industrial foundations in their efforts to attract and hold industry. As near as we can ascertain, the Arkansas Act No. 404 is not a copy of any act adopted by any other State, but is a composite of various acts; so we are not bound by any judicial construction made on any of the other acts. The point that we emphasize is that the Act 404 is Arkansas’ attempt to keep up with the efforts that other States are making to attract industry.

       Amendment 27 to our Constitution allows a State agency to investigate and contract with the owners of any new manufacturing or processing establishment for an exemption from State property taxation for as long as ten years. Whether the Helena Development Corporation or The Mohawk Rubber Company could qualify under that amendment, is something to be demonstrated in a case developing the facts. We merely mention it as a point not raised or decided in the present case.


author: Ed. P. McFaddiN, Associate Justice. George Rose Smith, J.,

text:
    Myers v. Myers.
    5-980
    294 S. W. 2d 67
    Opinion delivered June 25, 1956.
    [Opinion on rehearing delivered October 22, 1956.]

      H. B. Stubblefield, for appellant.

      Talley & Owen and Bale Price, for appellee.
   Ed. P. McFaddiN, Associate Justice.

In the trial from which comes this appeal, the Chancery Court granted Mr. Myers (appellee) an absolute divorce from Mrs. Myers (appellant), and the decree provided for alimony, child support and visitation. Mrs. Myers brings this appeal, complaining of various rulings of the trial court. These parties have been in litigation for some time concerning their marital difficulties.

First Suit. On February 15, 1954, Mrs. Myers filed suit in the First Division of the Pulaski Chancery Court praying for a divorce from bed and board (i. e., judicial separation) from Mr. Myers: she also prayed for property division, alimony, custody of their two children and support money for them. That was Cause No. 99357 in the First Division of the Pulaski Chancery Court. Mr. Myers contested the suit and the trial resulted in a decree of June 10, 1954, awarding Mrs. Myers a judicial separation and also property rights, alimony, custody of and support money for the two children, and giving Mr. Myers visitation rights. There was no appeal from that decree; and we refer to it as the “first suit.”

Second Suit, or Present Suit. On December 16, 1954, Mr. Myers filed the present snit — No. 101532 in the Second Division of Pnlaski Chancery Court — praying for an absolute divorce “. . . and all other just and equitable relief.” He alleged that he and his wife had “. . . lived together as man and wife until the first day of February, 1954, at which time it became impossible for plaintiff (Mr. Myers) to longer live with the defendant.” He claimed she was guilty of indignities, committed while they were living together. Within a few days after she was served with summons in the present suit, Mrs. Myers filed a petition in the First Division of Pulaski Chancery Court, under the same number as the first suit (i. e., No. 99357), and prayed for an absolute divorce. She then filed her motion in the present suit in the Second Division of the Pulaski Chancery Court (No. 101532), claiming that the First Division of the Pulaski Chancery Court had jurisdiction because of the first suit and her recently filed petition therein praying for an absolute divorce. When such motion was denied, Mrs. Myers filed in the Supreme Court a petition for writ of prohibition. We denied the writ on July 4, 1955 (see Myers v. Williams, 225 Ark. 290, 281 S. W. 2d 944; and we will refer to that as the “prohibition case”). On October 20,1955, Mrs. Myers filed her answer in Case No. 101532 in the Second Division of the Pulaski Chancery Court, in which, mter alia: (a) she pleaded that the decree in the first suit (No. 99357) was “. . . res judicata and as a complete bar to the cause of action alleged and relief sought by . . .” Mr. Myers in the present suit; (b) she sought an absolute divorce from Mr. Myers' on the ground of desertion; and (c) she also sought a complete enforcement of the decree rendered in the first suit (No. 99357) in the First Division of the Pulaski Chancery Court, as regards property rights, alimony and support.

With the issues thus joined, trial resulted in a decree ' awarding Mr. Myers an absolute divorce on the ground.of indignities, and adopting a considerable portion of the decree of the First Division Chancery Court in Case No. 99357 as to property rights, alimony, support for the two children and visitation. From the said decree, rendered on November 3, 1955 in the second case (No. 101532 in the Second Division of Pulaski Chancery Court), Mrs. Myers prosecutes this appeal, making eight contentions, which we will dispose of in this opinion. It is conclusively demonstrated that these parties cannot live together as husband and wife, and each now wants an absolute divorce.

I. The First Suit And The Prohibition Case. Mrs. Myers insists that the decree in the first suit was res judicata as to all matters, and that our opinion in the prohibition case (Myers v. Williams, 225 Ark. 290, 281 S. W. 2d 944) is “. . . erroneous and inconsistent and should be expressly overruled.”

These contentions can be disposed of in short order. We adhere to our opinion in Myers v. Williams; and we do not consider the first suit as res judicata on property rights, alimony, child custody or support. In her first suit, Mrs. Myers sought only a decree of judicial separation : she did not want an absolute divorce. The decree stated that she continued to have dower rights in certain property. That decree is not res judicata on the questions of property rights, custody and child support' here involved. In Myers v. Williams, supra, we quoted from Leñar on “Conflict of Laws,” § 139, page 286:

“A decree for judicial separation, which used to be called a decree from bed and board, is not really a divorce at all. It has no effect upon the marital status, which continues existent just as before the decree. The decree merely regulates the personal rights of the spouses in relation to the still-continuing marital status. It has no in rem effect.”

II. Mr. Myers’ Alleged Grounds For Divorce. Mrs. Myers claims that Mr. Myers did not prove his cause of action for divorce; and in this contention we agree with her. As heretofore noted, Mr. Myers claimed in his complaint in the present ease that he and Mrs. Myers had' . . lived together as husband and wife until the first day of February, 1954, at which time it became impossible for plaintiff to longer live with the defendant. That during the time he and the defendant were living together as man and wife, she treated him with such ridicule, neglect, abuse and open insult . . . until his condition in life became intolerable . . .” In other words, Mr. Myers did not allege or prove any indignities suffered by him after the first day of February, 1954 yet on June 10, 1954, the First Division of the Pulaski Chancery Court heard the parties and awarded Mrs. Myers a judicial separation. Any claim for indignities suffered by Mr. Myers prior to the date of that decree was lost to him by that decree because indignities had been the main issue in that litigation. The evidence in the case at bar is insufficient to award Mr. Myers a decree for any indignities suffered by him after the decree of June 10, 1954. Therefore, we hold that Mr. Myers did not prove his cause of action for divorce; and the Chancery Court was in error in awarding him a decree.

III. Mrs. Myers’ Alleged Grounds For Absolute Divorce. In her pleadings filed in this case (No. 101532 in the Second Division of Pulaski Chancery Court) on October 20, 1955, Mrs. Myers alleged:

“That in January, 1954, said Johnnie Myers willfully deserted this defendant without reasonable cause, since which time said plaintiff has absented himself from this defendant continuously without reasonable cause, which desertion on the part of plaintiff for'more than a year . . . Defendant, Lonise Myers, is entitled to a decree of divorce dissolving the bonds of matrimony subsisting between her and plaintiff . . .”

The evidence in the case at bar establishes Mrs. Myers ’ case for absolute divorce on the ground of desertion which bad continued for more than one year prior to the filing of her pleadings alleging such ground for divorce. The Second Division of the Chancery Court in the case at bar should have awarded Mrs. Myers a divorce instead of awarding it to Mr. Myers. It is true that Mrs. Myers has some very strange religious beliefs, and that at one time it was suspected that she was mentally unbalanced: yet such matters - do not prevent her from being entitled to a divorce on the ground of desertion. At all events, she has never been declared non compos and she still has the custody of the two children.

IV. The Matter Of Property Rights, Alimony, Child Custody And Visitation. As heretofore stated, in the decree from which comes this appeal the Second Division of Pulaski Chancery Court adopted in many places, almost verbatim, the decree that had been previously rendered in the First Division of the Pulaski Chancery Court in the Case No. 99357. There were two instances of difference.

In the first suit, the Court set aside certain conveyances that Mr. Myers had made to an uncle, involving nine parcels of real property, and vested the title in Mr. Myers subject to the inchoate dower rights of his wife. There is no showing whatsoever in the present case that the parties have not disposed of this property; and in the absence of all evidence concerning what has happened to the property since the first suit, we cannot indulge the presumption that Mrs. Myers has not joined with Mr. Myers in disposing of her dower interest. In short, Mrs. Myers has failed to establish in this record that Mr. Myers had any such property or that the Trial Court was in error in failing to award her any dower in any real property. The burden was on her in the Trial Court to establish her claim and is on her here to establish error committed by the. Trial Court. In the absence of any evidence as to property, we cannot say that error has been established. See Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6; and see also 27 C. J. S. 1138.

In the present decree, the matter of Mr. Myers ’ right of visitation to see his two children is arranged a little differently from what it was in the first decree; bnt we find no error in this particular. The court having jurisdiction can always change the rules as to visitation; and can also change child custody where a change in conditions is shown and where the best interests of the child so dictate. Mrs. Myers complains that in the decree in the first suit, she was awarded the absolute custody of the two children, whereas in the decree in the present suit the. court said, as regards custody:

' ‘ The parties are the parents of two minor children who are presently residing with the defendant herein, and the cause with reference to the permanent custody of such children should be passed until a later time; that pending such, the plaintiff should have the said children over the week-ends, that is, Saturday and Sunday of each week.”

The present decree certainly recognizes that for the present Mrs. Myers retains the custody of the children, because the decree further recites that Mrs. Myers is awarded “. . . the possession of and right to occupy with said two children as their home . . .,” certain property in North Little Bock, and that Mr. Myers is to continue to pay all the utility bills except telephone bills; all subject to further orders of the Court.

V. Attorney Fees, Court Costs And Directive. In the first suit Mr. Myers was ordered to pay Mrs. Myers ’ attorney a fee of $500.00. In this second suit the trial court ordered Mr. Myers to pay Mrs. Myers’ attorney a fee of $300.00, plus certain expense items. We adjudge that Mr. Myers shall pay Mrs. Myers’ attorney an additional fee of $250.00 for services in this Court. We also adjudge all costs of both courts to be paid by Mr. Myers. In short, the only change we make in the Chancery decree from which comes this appeal is that the court should have decreed á divorce for' Mrs. Myers on the ground of desertion, instead of to Mr. Myers on the alleged ground of indignities. To that extent, and to that.extent only, the decree is reversed and the cause remanded, with directions to enter a decree awarding Mrs. Myers a divorce. In all other respects the decree of the Chancery Court is affirmed.

Justices RobiNsoN and George Rose Smith dissent in part.

ON REHEARING

George Rose Smith, J.,

on rehearing. In a petition for rehearing the appellant insists that her statutory interest in the appellee’s real property should not he extinguished by reason of the fact that this issue was not fully developed at the trial. We are of the opinion that this contention is well taken and that the cause should be remanded for further proof on this point.

When a divorce is awarded to the wife the statute affirmatively requires that she be granted a third of the husband’s personal property absolutely and a third of his real property for life. Ark. Stats. 1947, § 34-1214. We have uniformly been careful to protect the wife’s rights despite deficiencies either in the pleadings or in the proof. In Hegwood v. Hegwood, 133 Ark. 160, 202 S. W. 35, the husband appealed from a decree of divorce which purported to award the wife an interest in certain town lots that were not described in the pleadings or the proof. Although there was nothing in the record to support the chancellor’s action we affirmed the decree, saying: ‘ ‘ The division of the property is a mere incident to the divorce suit and it is not essential to the jurisdiction of the court that the pleadings should set forth the property. The decree for divorce draws to the court the power to ascertain the description of the property owned by the husband for the purpose of awarding to the divorced wife her share thereof. Of course, there ought to be some evidence of the existence and description of the property upon which the court acts, but appellant is in no attitude to complain, for, if he is not the owner of property he suffers no injury ;,by the award, and if he does own'the property described, the divorced wife is entitled to the share which the court awarded to her.”

Similar reasoning was followed in Parrish v. Parrish, 195 Ark. 766, 114 S. W. 2d 29. There, as in the case at bar, the wife asked for a divorce and a division of the property, but there, as here, she failed to prove the extent of her husband’s holdings. “The question as to the ownership and disposition of the property was not developed in the court below, and the court did not pass on this question. ’ ’ The wife was granted a divorce and, despite this deficiency in her proof, appealed from the chancellor’s failure to make an award of property rights. We held that the court should have heard evidence on the question and affirmed the decree without prejudice to the wife’s right to bring suit later for her interest in the property.

In the present case the wife’s position is materially stronger than it was in the decisions just cited. Here the chancellor denied the wife’s prayer for a divorce and so had no reason to ascertain the extent of the husband’s property. Our original opinion reversed the chancellor’s decree and awarded a divorce to the wife rather than to the husband. Since it would have been the chancellor’s duty to make a property division if he had granted the divorce to the wife in the first instance, it is similarly our place to protect her rights when the divorce is granted in this court. The defect of proof was considered to be immaterial in the Parrish case, supra, and there is even more reason for disregarding it in the case at bar.

The record contains a description of the property that the appellee owned when his fraudulent conveyance was set aside in the First Division of the chancery court. We do not think it appropriate, however, to allow the appellant a life estate in a third of that land, without additional proof. Even though the appellant is entitled to her statutory interest in the appellee’s property, the issue of alimony in turn depends upon the respective financial conditions of the parties after that award has been made. Reed v. Reed, 223 Ark. 292, 265 S. W. 2d 531. Fairness requires that these allied issues be re-examined together. We accordingly exercise onr discretion to remand the canse for further proof upon these issues. Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759. To this extent the petition for rehearing is granted.

McFaddiN, J., dissents to the court’s action in granting the petition for rehearing.

       That the attorneys recognized that there was no testimony of matters after February, 1954, is shown by this portion of the present record:
      “MR. Owen (attorney for Mr. Myers) : I believe that Mr. Stubble-field, if I understood and remember correctly, objected to the Court considering anything that happened prior to the June decree because it is res judicata.

      “Mr. Stubblefield (attorney for Mrs. Myers): No, subsequent to the separation. Your complaint alleges grounds that happened during the time they were living together.
      “Mr. Owen: That is all right, we have shown very few instances —
      “The Court: Yes, the main thing the Court considers is that which happened prior to the separation.”'


author: Minor W. Millwee, Associate Justice.

text:
    Burton v. Griffith.
    5-1011
    291 S. W. 2d 516
    Opinion delivered June 25, 1956.

      Wood & Smith, for appellant.

      Rose, Meek, House, Rarron & Nash and Phillip Carroll, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit by appellants, as trustees of the Methodist Episcopal Church of Sweet Home, Arkansas, to quiet their title by adverse possession to a certain lot upon which appellee, M. A. Griffith, constructed a two-room house in 1955. Trial resulted in a decree dismissing appellants’ complaint. The sole issue on this appeal is whether this holding is against a preponderance of the evidence.

In Goodwin v. Garibaldi, 83 Ark. 74, 102 S. W. 706, this court stated the applicable law which has since been repeatedly approved, as follows: “When a landowner, through mistake as to his boundary line, takes possession of land of an adjacent owner intending to claim only to the true boundary, such possession is not adverse, and, though continued for the statutory period, does not divest title; but when he takes possession of the land under the belief that he owns it, encloses it and holds it continnonsly for the statutory period under claim of ownership without any recognition of the possible, right of another thereto. on account of mistake in the 'boundary line, such possession and holding is adverse, and, when continued for the statutory period, will divest the title of the former owner who has been thus excluded from possession.”

Appellants have owned and maintained a church on lot 14 of Nelson Burton Survey of the property in Sweet Home, Arkansas, for many years. The lot embraces about one acre and lies immediately north of and adjacent to lot 15 which is the property in controversy here. Both lots are rectangular in shape and the same width, but lot 15 contains only about % of an acre. According to the testimony of the trustees and other members, the church had occupied, used and claimed title to lot 15 for over 50 years prior to July, 1955 when appellees began building the house on it. Lot 16 lies south of and adjacent to lot 15 and the church has used and claimed the land north of a line marked by a fence now located on a line between the two lots. According to appellants’ witnesses, the church maintained a parsonage for many years on the lot on which appellees built the house. This parsonage was torn down and rebuilt on the north side of the church building about 12 years ago. After that time, the church used the lot as a garden and recreation area and for the maintenance of a well until July, 1955. While counsel for appellees on cross-examination diligently sought an admission by appellants’ witnesses that they had no intent to claim adversely because they would not want to take property that actually belonged to someone else, the net effect of their testimony is that the church occupied the disputed strip for over 50 years under an absolute claim of ownership and without regard to the true boundary.

Appellees admittedly have and claim no record title to the disputed tract and entered the property as mere squatters with the intent to retain possession for the required time to acquire title by adverse possession. While one witness for appellees testified that the original parsonage was not located within the old fence line, we think his testimony is contrary to the preponderance of the evidence.

We are convinced that appellants established their claim of title by adverse possession in accordance with the rule laid down in Goodwin v. Garibaldi, supra, by a clear preponderance of the evidence. The decree is accordingly reversed and the cause remanded with directions to enter a decree consistent with this conclusion.

George Rose Smith, J., not participating.


author: George Rose Smith, J.

text:
    Lawson v. Lawson.
    5-1000
    291 S. W. 2d 518
    Opinion delivered June 25, 1956.

      Roy E. Danuser, for appellant.

      W. J. Denton, for appellee.
   George Rose Smith, J.

This was at first a suit for separate maintenance, brought by the appellee, Margaret Lawson. The chancellor refused to grant that relief, and there is no appeal from that part of the decree. By cross-complaint the defendant sought cancellation of a deed by which he had conveyed to his wife his half interest in certain land which the couple owned jointly. The principal appeal is from the chancellor’s refusal to caucel that deed. The appellee has perfected a cross appeal from the trial court’s action in awarding to the appellant an eight-year-old car of admittedly small value. We find no merit in the cross appeal and will not discuss it in detail.

On direct appeal the main issue is whether the proof supports Lawson’s charge that his wife obtained the deed by means of fraud, undue influence, and duress. Mr. and Mrs. Lawson bought the property, consisting of a grocery store and tourist court, in 1950, taking the title in Mrs. Lawson’s name. She sued for a divorce in 1954, but the court dismissed her complaint for want of equity and also decreed that the real property standing in Mrs. Lawson’s name was in fact jointly owned.

Although the couple resumed their marital relationship after the dismissal of the divorce case, Mrs. Lawson gave notice of appeal from the decree and paid for a transcript of the record. On May 26, 1955, which was within the time allowed for lodging the appeal in the prior case, Lawson executed the deed which he now asks us to set aside. The testimony about Lawson’s reason for signing the deed is in such complete conflict that the issue narrows down to one of credibility.

Mrs. Lawson testifies that the deed was given in return for her promise not to carry through the appeal in the case then pending. Her version of the matter is corroborated by the fact that the appeal was actually discontinued, even though the record had been ordered and paid for.

Lawson denies that the lapse of the appeal had anything to do with his conveyance of the property. He says that his wife took advantage of his great devotion for Eugene Martini, who is Mrs. Lawson’s grown son by an earlier marriage and whom Lawson says he has treated as his own son. Martini is a mentally disabled veteran of World War II; he has been in and out of various hospitals operated by the federal Veterans Administration. Lawson testifies that the appellee had her son put in jail on May 25, 1955, and threatened to send him to a mental institution if Lawson refused to relinquish his interest in the real estate. According to Lawson he yielded to his wife’s demands and signed the deed in the hope of keeping Martini in the family home. This testimony is denied by the appellee, who says that she had her son confined hecanse he had become unmanageable. She says that she agreed not to send Martini to the hospital only hecanse Lawson promised never to mistreat her or her son again. Lawson did not keep that promise, and Mrs. Lawson was forced to find a separate home for herself and her son. She thinks that Martini’s condition has improved since he has been away from his stepfather.

The issue, as we have said, is largely that of which party is to be believed. Each attacked the other’s credibility, Lawson by showing that his wife’s reputation for truthfulness is bad, Mrs. Lawson by showing that her husband has been confined in three federal penitentiaries. The chancellor, who had the great advantage of seeing the witnesses on the stand, was not convinced by Lawson’s evidence, and we cannot say that he was wrong. Clear and convincing proof is needed in a suit to cancel a deed for fraud in its procurement. Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253. Here the proof does not meet that test. On the one hand, there is nothing improbable in Mrs. Lawson’s explanation of the matter. On the other, Lawson’s version is at least rather hard to believe. It is unlikely that a mother would use her husband’s affection for his stepson as a lever with which to pry away his property. It would certainly be unusual for a mother, whose love for her son is not otherwise questioned, to have her child put in jail in furtherance of a scheme such as Lawson charges in this ease. There is reason to doubt if Lawson, after having regained his half interest in the land by means of a lawsuit with his wife, would within a few months have again been deceived into putting the property in her name. We need not determine whether the state of facts described by Lawson would amount to coercion, for the facts themselves have not been sufficiently proved.

Lawson also appeals from the chancellor’s refusal to reopen the case to hear certain newly discovered evi-deuce. Lawson’s petition for a bill of review is accompanied by the affidavits of five persons who say that Mrs. Lawson told each of them of her plan to obtain Lawson’s property by threatening to send Engene Martini to a mental institution. Two of these affiants had testified in behalf of the appellant at the trial. The chancellor, in denying the request for a bill of review, stated that one of the two had been an obviously prejudiced witness. The other made false statements either at the trial or in the affidavit, as his testimony cannot be reconciled. Apart from these considerations, the newly discovered proof is merely cumulative to other evidence that pertained to the identical issue at the original trial. The chancellor did not abuse his discretion in declining to reopen the case. Richardson v. Sallee, 207 Ark. 915, 183 S. W. 2d 508.

Affirmed.