author: John A. Fogleman, Justice.

text:
    Wayne ABBOTT v. STATE of Arkansas
    CR 74-3
    508 S.W. 2d 733
    Opinion delivered May 13, 1974

      Charles R. White, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Wayne Abbott was tried and found guilty of two counts of violations of Act 590 of 1971 [Ark. Stat. Ann. §§ 82-2601 — 2638 (Supp. 1973)] which were alleged to have occurred on May 14 and 15, 1972. Specifically, he was originally charged with having possession of amphetamine, a controlled substance, with intent to deliver, in violation of Ark. Stat. Ann. §§ 82-2605 and 82-2617(a)(l)(ii). The information against him was amended to charge violation of 82-2609(b)(l) and 82-2617(a)(1)(ii).

For reversal of the judgment entered pursuant to the jury verdict, appellant first contends that the evidence was insufficient to sustain the verdict. In view of the arguments made on his behalf, no useful purpose would be served by outlining the evidence. Appellant concedes that the testimony given by a police informant, and that given by him, present a conflict with regard to delivery of the controlled substance in question. He contends, however, that this testimony was not sufficient because the issue was erroneously submitted to the jury under a presumption stated by Ark. Stat. Ann. § 82-2617(d) (Art. 4, Sec. 1, of Act 590). We have held a similar instruction improper on an objection to it as a comment on the evidence. French v. State, 256 Ark. 298, 506 S.W. 2d 820 (1974). As the state’s attorney points out no such objection was made in this case. The objection made was based only on the alleged failure of the prosecution to present sufficient evidence as to the weight of the amphetamine, the substance possessed by appellant according to the testimony presented by the state. Even if we gave the statute the strictest possible construction, as urged by appellant, we could not possibly construe the objection made as an assertion that the instruction was a comment by the court on the evidence. Furthermore, we cannot equate the objection with appellant’s proof so as to eliminate the necessity for the state to prove his guilt beyond a reasonable doubt. The jury was adequately and properly instructed as to the presumption of appellant’s innocence and the state’s burden to prove him guilty beyond a reasonable doubt — to a moral, but not absolute, certainty.

The giving of the instruction of which appellant complains, over the objection made, was not reversible error. Appellant bases his contention, that the state failed to prove his possession of the requisite quantity of amphetamines, upon the failure of the state chemist in the Drug Abuse Laboratory to test quantitatively the samples sent to the State Health Department. There were two packages, one containing five tablets and the other, ten. Appellant admitted he had 200 of the tablets in his possession on May 14, but claimed that he had them for personal use and took as many as 15 of them on that date. The chemicst who testified wag supervisor of the Drug Abuse Laboratory, and had been for eight years. She testified that “we have quantitatively analyzed several of this type tablet” and found them to average about eight milligrams of amphetamine per tablet. She had said that the samples were all similar in size and similarly marked. It certainly would not be unreasonable for the jury to have inferred that Abbott possessed as much as 1600 milligrams of amphetamine. We certainly cannot say there was no substantial evidence that Abbott possessed more than 200 milligrams. Scott v. State, 180 Ark. 408, 21 S.W.2d 186.

Appellant also asserts that the state failed to meet its burden of proving him guilty beyond a reasonable doubt and that the evidence, being circumstantial, did not exclude every reasonable hypothesis, other than his guilt. Of course, the determination whether the evidence showed guilt beyond a reasonable doubt was for the jury, not this court. The test here is whether there was substantial evidentiary support for the verdict. Pharr v. State, 246 Ark. 424, 438 S.W. 2d 461; Graves & Parham v. State, 236 Ark. 936, 370 S.W. 2d 806. We find substantial evidence was presented to the jury, consisting principally of the testimony of a police informant who testified he made the two purchases from Abbott upon which the charges were based. Consequently, the evidence was not totally circumstantial in nature. Assuming that it had been, however, the question whether circumstantial evidence excludes every reasonable hypothesis other than an accused’s guilt is usually for the jury, and no greater degree of proof is required where the evidence is circumstantial. Hurst v. State, 251 Ark. 40, 470 S.W.2d 815; Scott v. State, supra. It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and conjecture that we hold it insufficient as a matter of law. Jones v. State, 246 Ark. 1057, 441 S.W.2d 458; Rayburn v. State, 240 Ark. 264, 398 S.W.2d 909; Ledford v. State, 234 Ark. 226, 351 S.W.2d 425. In testing its sufficiency, we must view it in the light most favorable to the state. Ledford v. State, supra. We are satisfied that there is substantial evidence to support the jury verdict.

Appellant also argues that the court erred in denying his counsel the right to pursue examination of a witness, Larry Tabor, about appellant's character, habits and practices, and the “trend of his activities” around and during the time of the incidents giving rise to his arrest. Actually, there was no effort to establish appellant’s character by showing his good reputation. The testimony in question actually involved an attempt by the defendant to show through a companion that Abbott did not have any narcotics in his possession when the two made a trip to Pine Bluff on May 2 or 3. The state’s objection of irrelevancy was sustained. No other testimony relating to appellant's character, habits or practices, except his own, was offered. We find no error on this score.

We do not agree with appellant’s contention that imposition of the maximum sentence on each charge indicates that the jury verdict was the result of passion and prejudice. Appellant also contends that the sentences are excessive and a deterrent to his rehabilitation. The state, in its brief, reminds us that we have held that review of sentences which are not in excess of statutory limits is not within the jurisdiction of this court because the exercise of clemency is a function of the executive branch of the government under Art. 6, Sec. 18 of the Arkansas Constitution, and this court is not at liberty to reduce a sentence within statutory limits, even though we might think it unduly harsh. Osborne v. State, 237 Ark. 5, 371 S.W.2d 518. See also, Hurst v. State, 251 Ark. 40, 470 S.W.2d 815. We are not unaware of Sec. 12, Act 333 of 1971 [Ark. Stat. Ann. § 43-2725.2 (Supp. 1973)] in which an attempt was made to vest this court with the power to reduce a sentence if it is deemed excessive. Although we have previously found it unnecessary to pass directly on the constitutionality of this provision insofar as it might be construed to empower this court to reduce a sentence otherwise proper and within statutory limits in cases arising after passage of the act, it should be clear that legislative action cannot override constitutional provisions. We strongly intimated that this act was ineffective to overrule the holding in Osborne v. State, supra, in Hurst v. State, supra, and cited the case of People v. Odle, 37 Cal. 2d 52, 230 P.2d 345 (1951). In that case a similar statute was construed by the California court to do no more than authorize it to reduce the punishment, in lieu of granting a new trial, when the only error found on appellate review related to the punishment imposed and was prejudicial. It specifically held that the statute granted no power to modify a sentence where there was no error in the proceeding. To construe the statute otherwise, said the court, speaking through Justice Traynor, would give the reviewing court clemency powers similar to those vested in the Governor by the California Constitution. That court clearly recognized that any construction of the statute extending the power of the appellate court any further would raise serious constitutional questions relating to the separation of powers. We think the construction given to the California statute by that state’s Supreme Court was correct and that the same construction should be given our statute. When given that construction, it is clearly constitutional. If construed to give this court the power to reduce a sentence in the absence of error pertaining to the sentence, the statute would be unconstitutional for violation of Art. 6, Sec. 18 and Art. 4, Sec. 2 of the Arkansas Constitution, and upon the authority of Osborne v. State, supra.

Appellant also asserts that he was deprived of adequate representation of counsel at all stages of the proceeding. The only specifications he makes are the statements in his brief here tnat the attorney clearly should have made efforts to have other witnesses present who could testify as to occurrences on the days he was charged with having committed the offenses and insufficient examination of appellant when he testified in his own behalf. He fails to name' or otherwise identify any absent witness-or give any indication whatever as to the nature of the testimony he anticipated could be elicited from any such person. He likewise fails to state what was lacking in his attorney’s examination of him or what testimony was not offered that should have been. We cannot consider mere statements of conclusions in attempting to determine the adequacy or effectiveness of appointed counsel. See Stone v. State, 254 Ark. 566, 494 S.W. 2d 715. There are no indications that the trial was reduced to a sham, farce and a mockery of justice, as would be essential to a finding that appellant was deprived of his constitutional right to the assistance of counsel or of due process of law. See Franklin & Reid v. State, 251 Ark. 223, 471 S.W. 2d 760.

Since we are unable to say that there was reversible error on any ground asserted, either directly or inferentially, by appellant, we affirm the judgment.

       See Hurst v. State, supra; Tenpenny v. State, 256 Ark. 523, 508 S.W. 2d 752 (1974).


source: Caselaw Access Project

author: j. Fred JoKF.S, Justice.

license: Public Domain

text:
    Edward MINICK v. STATE of Arkansas
    CR 74-2
    509 S.W. 2d 289
    Opinion delivered May 13, 1974

      Davis & Douglas, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr,, Asst. Atty. Gen., for appelee.
   j. Fred JoKF.S, Justice.

This is an appeal by Edward Minick from a circuit court judgment revoking a previously suspended 15 year penitentiary sentence and ordering the 15 years imprisonment to run and be served consecutively with a five year sentence awarded in a subsequent case on a plea of guilty for assault with intent to kill.

The facts appear as follows: On April 5, 1963, Minick entered a plea of guilty to the felony charge of assault with intent to kill in case No. 3392 and the trial court pronounced penalty in language as follows:

“it is therefore ordered that Edward Minick be and is hereby found guilty of Assault with Intent to Kill and his punishment fixed at 20 years in the State Penitentiary, 5 of 20 years is hereby pronounced upon defendant and pronouncement of 15 years of 20 years is deferred upon condition defendant behavior is proper.”

Minick was released from the penitentiary after serving five years under the above sentence and on August 18, 1972. winch was nine years, three months and 13 days following his previously suspended sentence, he was again accused in case No. 3623 of committing a felony by assaulting the sheriff of Carroll County with a deadly weapon while the sheriff was in the performance of his official duty. On November 13, 1972, Minick again entered a plea of guilty, whereupon he was sentenced by the trial court to confinement in the penitentiary for a period of five years as punishment for assaulting a police officer with a deadly weapon, and at the same time the trial court granted a petition of the prosecuting attorney to revoke the suspension of the sentence in the former case in language as follows:

“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED BY THE COURT that the defendant. Edward Minick, is guilty as charged, and that he be and hereby is sentenced to confinement with the State Department of Correction for five years, with said sentence to run consecutive with the Fifteen years awarded in case number 3392 for a total commitment of twenty years.”

On appeal to this court Minick contends that the trial court erred in pronouncing a previously deferred 15 year sentence and “in disregarding the provisions of Ark. Stat. Ann. § 43-2331 (Supp. 1965).” We find no merit to appellant’s contention. Ark. Stat. Ann. § 43-2331 (Supp. 1973) reads as follows:

“Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, the circuit court in which such judgment is entered, when satisfied that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, in addition to the procedure set out in Act 70 of 1923, as amended, and Act 158 of 1945 [§§ 43-2324 — 43-2326], the court may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If any offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments or information, but in the absence of express limitation, shall extend to the entire sentence and judgment.
The court may revoke or modify any condition or probation or may change the period of probation. .
The period of probation, together with any extension thereof, shall not exceed five (5) years.
While on probation and among the conditions thereof, the defendant:
(a) may be required to pay a fine in one or several sums; and
(b) may be required to make restitution to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and
(c) may be required to provide for the support of any person for whose support he is legally responsible ” (Emphasis added).

This section (§ 43-2331) is Section 1 of Act 818 of the Acts of 1973 entitled “AN ACT to Provide for the Suspension of Sentence and Probation of Defendants; and for Other Purposes.” Section 6 of Act 818 provides as follows:

“Act 438 of 1965 and all other laws and parts of laws in conflict with this Act are hereby repealed.”

Section 1 of Act 818 of 1973 (§ 43-2331 supra) is an exact copy, and therefore a re-enactment, of Section 1 of Act 438 of 1965. Thus it is seen that while Section 6 of Act 818 of 1973, supra, repeals all laws and parts of laws in conflict with the Act, the Act specifically recites that it is in addition to the procedure set out in Act 76 of 1923, as amended, and Act 158 of 1945. Act 158 of 1945 is only four lines long and provides that all courts of record shall have authority to suspend the execution of jail sentences or the imposition of fines or both in all criminal cases pending before said court.

Act 76 of 1923 is entitled “AN ACT to authorize circuit judges to suspend sentences upon certain conditions and for other purposes.” The pertinent provisions of this Act read as follows:

“Section 1. Whenever, in criminal trials in circuit court, a plea of guilty shall have been accepted or a verdict of guilty shall have been rendered, the judge trying the case shall have authority, if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restituion of the property involved, and the payment of the costs of the case.
Section 2. Such judge shall have power, at any time the court may be in session, to revoke the suspension and postponement mentioned in Section 1 of this Act, and to pronounce sentence and enter final judgment in such cause whenever that course shall be deemed for the best interests of society and such convicted person.
Section 3. In any case where the pronouncement of final judgment and sentence shall have been postponed, as provided by Section 1 of the Act, all costs shall be considered due and payable just as if such sentence and judgment had been pronounced, it being the intention of this Act that such postponement, so far as liability for costs is concerned, shall be regarded as a conviction.” (Emphasis added).

The appellant argues that the proviso appearing in Section 1 of both the 1965 Act and the 1973 Act (§ 43-2331) providing “The period of probation, together wth any extension thereof, shall not exceed five (5) years,” in some manner places a limitation on the sentence which was suspended and which suspension was revoked in this case. In his brief the appellant states: “The trial court concluded as a matter of law that the ‘limitation of 5 years on suspended sentence imposed by Arkansas Statutes, Section 43-2331 was passed by the General Assembly in 1965, and has no application to petitioner’s sentence in case No. 3391, which commenced to run on April 5, 1963.’” If the appellant is correct in this assertion, we are of the opinion that the trial court was correct in reaching this conclusion.

In the first place the five year limitation referred to by the appellant is not a limitation on suspended sentences. It is a limitation on “the period of probation, together with any extension thereof.” Even if the five year limitation above referred to was a limitation of suspended sentences, the court did not err in the case at bar because the appellant was tried and convicted and the 15 year sentence suspended in 1963 prior to the five year limitation imposed by the Legislature in 1965. The appellant in the case at bar was not placed on probation following his admitted assault on the sheriff in 1972. He was sentenced to five years in the penitentiary upon his plea of guilty to that charge and suspension of the sentence or probation on any part of it was not involved in that case at all. At that time the trial court merely pronounced the 15 year sentence he had deferred on April 5, 1963, and as he had a right to do at any time during the period of suspension or deferment under Section 2 of Act 76 of 1923, as amended by Act 262 of 1945 and Act 44 of 1953, Ark. Stat. Ann. § 43-2324 (Repl. 1964), See Canard v. State, 225 Ark. 559, 283 S.W. 2d 685; Gerard v. State, 235 Ark. 1015, 363 S.W. 2d 916.

The judgment is affirmed.

BYRD,J., dissents.


author: FRANK Holt, Justice.

text:
    C. A. BAWCOM v. ALLIS-CHALMERS CREDIT CORPORATION
    74-12
    508 S.W. 2d 741
    Opinion delivered May 13, 1974

      W. H. Drew, for appellant.

      David F. Gillison, Jr., for appellee.
   FRANK Holt, Justice.

By conditional sales contracts, the appellant purchased certain farm equipment from appellee. Thereafter, appellee commenced a replevin action against appellant to repossess the equipment alleging delinquent payments on the unpaid balance. After giving notice of a proposed public sale to the highest bidder, appellee amended its complaint seeking a money judgment. After the auction, appellee filed a “Report of Sale” and prayed for a deficiency judgment. Appellant rr\oved to strike the amended complaint and “Report of Sale” on the theory of election of remedies.

The lower court, with approval of appellant and appellee, granted possession of the farm equipment replevied but dismissed appellee’s “Amendment to Complaint and Report of Sale” because of “improper joinder in an action of replevin.” Subsequently, appellee brought the present action for a deficiency judgment as asserted in the previous replevin action. Appellant answered claiming damages for malicious prosecution and asserting non-compliance with our Uniform Commercial Code; i.e., Ark. Stat. Ann. §§ 85-9-501-507 (Add. 1961). Appellant moved for summary judgment on the theory that the former action was res judicata and appellee had elected to replevy and was, therefore, limited to that remedy. Appellee answered with responsive pleadings. The denial of appellant’s motion for summary judgment was then appealed without further determination of the cause.

We do not reach the merits of appellant’s contentions. The denial of appellant’s motion for summary judgment, being merely interlocutory, is not a final order and, therefore, is not reviewable on appeal. Widmer v. Ft. Smith Veh. & Mach. Co., 244 Ark. 971, 429 S.W. 2d 63 (1968). See also Life and Casualty Insurance Co. of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W. 2d 200 (1974); Ross v. McDaniel, 252 Ark. 253, 478 S.W. 2d 430 (1972); and Deposit Guaranty v. River Valley, 247 Ark. 226, 444 S.W. 2d 880 (1969).

Appeal dismissed.


author: CaRLETON Harris, Chief Justice.

text:
    Willie C. TOWNSEND v. STATE of Arkansas
    CR 74-22
    509 S.W. 2d 311
    Opinion delivered May 20, 1974

      Michael Everett, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Asst. Atty. Gen., for appellee.
   CaRLETON Harris, Chief Justice.

On October 14, 1968, Willie C. Townsend, appellant herein, entered a plea of guilty to the crime of Burglary and Grand Larceny and was sentenced to ten years imprisonment with five years suspended on good behavior. In June, 1973, Townsend was charged, along with three other persons, with the crime of Burglary and Grand Larceny, allegedly committed on May 19, 1973, when the Bibbs Sporting Goods Store in Trumann was burglarized. On September 13, 1973, a petition for revocation for the suspended sentence given in 1968 was filed, said petition alleging that Townsend had violated the conditions upon which the suspension was granted and asking the court to revoke the suspended sentence. On October 4, 1973, the case involving the burglary of the Bibbs store was tried before a jury and a motion for a directed verdict of acquittal as to appellant was granted. This was apparently done (as indicated by court order hereafter discussed) because of the fact that the only testimony connecting Townsend with the burglary was given by an accomplice, Jack Pope, Jr. Of course, no conviction could be obtained on this evidence alone. See Ark. Stat. Ann. § 43-2116 (Repl. 1964). Thereafter, it was stipulated that the testimony of Pope given at the trial just mentioned could be received and considered by the Poinsett County Circuit Court at the revocation hearing, which was commenced on October 4. At the hearing, Bud Rollins, the Police Chief of Marked Tree, located approximately 17 miles from Trumann, and within the same county, testified that he recovered a pistol from the apartment occupied by two of the other alleged burglars and Townsend, which had been taken in the Bibbs’ burglary. Other witnesses testified relative to an earlier burglary in Marked Tree. In rendering its opinion of revocation, the court made no findings relative to the Marked Tree burglary and evidently entered the order largely on the basis of the testimony of Pope with reference to the Bibbs burglary. No question is raised by appellant that he did not have notice that the hearing would include evidence relating to the Bibbs’ burglary; in fact, he stipulated that the testimony of Pope could be used in the revocation hearing. The court entered its order, stating:

“While it is true that one can not be convicted.upon the testimony of an accomplice alone, this court doesn’t know of any law [that] prohibits the court from giving consideration to the testimony of an accomplice with regard to a hearing on a petition for revocation of a suspended sentence, the same having been suspended on the condition of good behavior.
“And it is the finding of this court that the respondent defendant, Willie C. Townsend, was in the company of a defendant in case No. 2698 while a store was burglarized in the City of Trumann, Arkansas, and a quantity of pistols, ammunition and other weapons were stolen.
“It is the further finding of the court that based upon all the testimony relative to this petition and testimony heard as a result of the appearance of one Jack Pope, Jr. in case No. 2698 that the condition of good behavior was violated and the petition is granted.”

From this order, appellant brings this appeal. For reversal, appellant primarily relies upon the contention that he was placed in double jeopardy, arguing that the revocation hearing constituted a second trial on the charge of which he had been acquitted. We do not agree. The sentence which appellant had been directed to serve and in which five years were suspended on good behavior was entered on October 14, 1968. Townsend was not given an additional sentence following the revocation hearing; rather, the court only directed that he be required to serve the full sentence that had been rendered several years earlier. As we said in Smith v. State, 241 Ark. 958, 411 S.W. 2d 510:

“A so-called ‘suspended sentence’ or ‘suspension of sentence’ is in the nature of a privilege extended to a defendant upon condition and is awarded or withheld in the court’s sound discretion as to the worthiness and possibility o.f rehabilitation of the defendant and on conditions fixed by the court. A revocation of a suspension is in the nature of a revocation of a privilege previously extended, and the sufficiency of evidence as to whether or not the conditions upon which the suspension was granted have or have not been met or complied with by the defendant, also lies within the sound discretion of the trial court.”

This quote from Smith also is apropos to appellant’s contention that the evidence was insufficient to justify the revocation, it being pointed out that the question of whether conditions lipón which the suspension was granted have or have not been met, lies within the sound discretion of the trial court.

In Gross v. State, 240 Ark. 926, 403 S.W. 2d 75, Gross, while under suspended sentence for burglary and grand larceny, was charged with murder. Prior to the trial, the previously suspended sentence was revoked. This, asserted appellant, constituted error because he had not been convicted at that time. We disagreed, stating:

“Ark. Stat. Ann. § 43-2324 (Repl. 1964), which is the statutory authority for revocation of suspended sentences, contains no language so limiting the power and discretion of the trial court in such matters. ***
“Trial courts are authorized under the statute quoted to suspend sentences when they deem it best for the defendant and not harmful to society. Likewise, when the trial court is persuaded that it is for the best interests of the defendant and of society to revoke a suspended sentence, he has and may exercise such discretion following a hearing. ***
“It is clearly in the public interest that our trial courts have and exercise the statutory discretion reposed in them with reference to the suspension of sentences in appropriate cases; and it likewise follows that trial courts should have and exercise their sound discretion in the revocation of such suspended sentences in appropriate cases. Any unreasonable limitations placed upon the trial courts in the exercise of their discretion in revoking suspended sentences could well serve to deny to some defendants suspension of sentences in the first instance.”

It is finally asserted that the court abused its discretion in permitting the State to reopen its case, offering one additional witness, this testimony being heard four days later. It appears that the testimony had but little, if any, evidentiary value, but at any rate, we certainly cannot say that the court abused its discretion.

Affirmed.

FOGLEMAN, J., not participating.

       On motion'of counsel, the testimony as to Townsend living in the same apartment with the other-two defendants was stricken as being based on hearsay evidence. Subsequently, the witness was recalled, and the same testimony was given without objection.

       In fact, the petition for revocation was originally based upon an allegation that Townsend had participated in this February, 1973 burglary of Western Auto Supply Company, but the evidence as to Townsend only reflected that he was in Marked Tree at that time. Another alleged participant in that offense, awaiting trial, refused to answer, on constitutional grounds, whether he had given Townsend guns taken in that burglary.


author: George Rose Smith, Justice.

text:
    Fred O’BIER, Sr. v. SAFE-BUY REAL ESTATE AGENCY, INC.
    73-310
    509 S.W. 2d 292
    Opinion Delivered May 20, 1974

      W. H. Schulze, for appellant.

      Pope, Pratt, Shamburger, Buffalo & Ross and Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellee.
   George Rose Smith, Justice.

This action was brought by the appellee, Safe-Buy Real Estate Agency, to recover judgment upon a $4,037.80 installment note executed by Safe-Buy’s former representative, the appellant Fred O’Bier, Sr. By counterclaim O’Bier sought $15,000 in damages, for breach of contract. At the close of the proof the trial court directed a verdict for Safe-Buy upon both the complaint and the counterclaim. O’Bier concedes his liability upon the note, but he insists that the evidence supporting his counterclaim presented issues of fact for the jury. We agree with that contention.

Safe-Buy is a corporation engaged in the sale of real estate in Arkansas and other states, with its headquarters in Little Rock. On October 4, 1971, the parties signed a printed contract by which Safe-Buy employed O’Bier as its representative in Russellville, Arkansas. The contract recited that it would continue until terminated Upon 30 days’ written notice by either party. Safe-Buy also reserved the power to cancel the contract without (such) notice if O’Bier failed to comply with any of its terms. There was also a provision that O’Bier should have no power to incur debts binding upon Safe-Buy, O’Bier being responsible for all expense incurred by him.

The parties’ relationship began in October, 1971, and lasted for about a year. In May, 1972, O’Bier signed the note sued upon, representing Safe-Buy’s share of commissions which O’Bier had collected but had not accounted for. On October 12, 1972, Safe-Buy notified O’Bier by letter that he was being discontinued as the company’s representative in the Russellville area. The company gave no reason for O’Bier’s discharge.

At the trial Safe-Buy established O’Bier’s liability upon the note and then rested its case. O’Bier, to prove his counterclaim, testified in substance that the original written contract, which was limited to Russellville, had been modified by a subsequent oral agreement between him and Safe-Buy’s president, W.M. Ritter. Under the new arrangement O’Bier became a division representative, with offices at Russellville, Clarksville, Ozark, and Paris. O’Bier introduced elaborate Safe-Buy catalogues which contained O’Bier’s photograph and held him out as Safe-Buy’s representative in those cities. O’Bier offered in evidence 306 canceled checks, totaling more than $30,000, to support his testimony that, in carrying out his contract, he had spent a great deal of his own money in employing and training real estate salesmen, renting offices, paying utility bills, and otherwise carrying on Safe-Buy’s business. He testified that he had no way of recovering his outlay except by continuing as Safe-Buy’s representative. He pointed out that upon the termination of the parties’ relationship all the real estate listings that he had obtained became the property of Safe-Buy.

We have no hesitancy in holding that O’Bier’s testimony made a case for the jury upon his counterclaim. It is well settled that a written contract may be modified by a later oral agreement. Treat v. Safe Buy Real Estate Agency, 240 Ark. 861, 402 S.W. 2d 682 (1966). Where, as here, it is difficult or impossible for the complainant to prove the profits that would have resulted from full performance of the contract, his necessary and legitimate expenses are proper elements of compensation when the contract is wrongfully terminated by the other party. O'Connell v. Rosso, 56 Ark. 603, 20 S.W. 531 (1892); Restatement, Contracts, § 333 (1932).

We cannot sustain Safe-Buy’s insistence that the written contract is absolutely controlling. That agreement was modified by Ritter, who is shown to have been the president of the Safe-Buy corporation. Even if Safe-Buy might have terminated O’Bier’s contract for cause, Safe-Buy offered no proof to justify its abrupt discharge of O’Bier as its division representative. Safe-Buy now argues that O’Bier’s failure to account for commissions was a breach of contract, but the jury might readily have concluded that Safe-Buy was not in a position to rely upon that asserted breach some five months after it accepted O’Bier’s note for the past-due sums. Neither is Safe-Buy insulated from liability by the contractual provision that exempted Safe-Buy from responsibility for expenses incurred by O’Bier. O’Bier is not seeking to hold Safe-Buy liable for those expenses as a matter of contract. Instead, he is using them as the measure of his damages for breach of contract, which the law entitles him to do if the jury accepts his version of the case.

Finally, counsel for Safe-Buy argue that the appellant obtained an extension of time for filing the record without complying strictly with our Rule 26A. Ark. Stat. Ann., Vol. 3A, 1973Supp., p. 121. The application for the extension was filed within the time allowed and stated that the transcript of testimony had been ordered, but the court reporter was unable to complete it in time. The only asserted deficiency is that counsel for the appellant failed to give opposing counsel notice of the application for an extension of time,-as Rule 26A requires. There is not the slightest intimation that the appellee could have successfully resisted the application had it been notified, or that it was prejudiced in any way by its failure to receive notice. Under the circumstances a dismissal of the appeal for the appellant's oversight would be an indefensible miscarriage of justice.

Reversed.


author: LYLE Brown, Justice.

text:
    Joe GORDON v. J. A. HADLEY CONSTRUCTION Co. and MARYLAND CASUALTY Co.
    74-15
    509 S.W. 2d 287
    Opinion delivered May 20, 1974

      David Solomon, for appellant.

      Roscopf & Epes, P.A., for appellee.
   LYLE Brown, Justice.

The circuit court affirmed a unanimous opinion of the Workmen’s Compensation Commission that claimant-appellant failed to show by a preponderance of the evidence that the cause of a leg amputation was work-connected. Claimant contends there is no substantial evidence to support the finding.

Claimant Was 53 years of age at the time of his alleged mishap on the job in June of 1972. For several years claimant had been a heavy equipment operator for Hadley Construction Company. He was driving a form lift machine. A driver and an operator sit some twelve feet off the ground in performing their duties. The machine straddles and moves forms used to make concrete mats, which in turn are used by the Corps of Engineers for revetment of river banks. Claimant had reported to his employer that the clutch was not working properly and was jerking and was hard to engage and disengage. He complained that the working of the clutch was causing pain in his left leg. Then on an uncertain day in June, a tank on the machine exploded. There was evidence that as a result of the explosion claimant jumped from the machine. He said he landed on his left foot on top of a concrete slab. The incident occurred about quitting time. Claimant testified that the next mqrning there was considerable swelling around the foot and ankle. With the aid of crutches claimant went to the jobsite and requested he be sent to the doctor.

Claimant was sent to Dr. C. P. McCarty, a general practitioner in Helena. Dr. McCarty saw claimant on June 29, 1972. He said claimant was complaining of pain in his left calf; that claimant explained to him that a bad clutch on his machine was constantly jerking and he thought that caused the pain. The doctor prescribed heat, rest and muscle relaxants. Claimant was seen on July 3 and there was discoloration from the mid-calf down. “It was obvious that there was some vascular impairment, and we tried to improve the circulation of the leg.”

When claimant was next seen on July 17 his left leg was cold, discolored, and numb from the mid-calf down. “The lower leg was not getting blood and that portion was beginning to die. It was early gangrene. * * * This is caused by a blockage of the arterial supply, so that blood can’t get to the tissues, and it is known as arteriosclerosis. This disease is where cholesterol deposits are deposited into the elastic part of the blood vessel, causing a hardening of the artery and a gradual narrowing to where blood can’t get through. Plaques are formed, and when they break off the clot forms around them, so that there is impediment to the blood flowing through the blood vessels. In my opinion this condition could be aggravated by the type of work that Joe Gordon w'as doing, such as shifting the clutch, pushing it in and operating the machinery. It would not cause arteriosclerosis, w'hich is a disease process, but the severe trauma that he explained to me could have broken off these clots and caused an obstruction of his blood vessel. I found no evidence or outward signs of trauma and there was no break in the skin or any lacerations. ”

On cross-examination the doctor said he did not contribute any of the condition he saw to claimant jumping from the machine. He said in his opinion, based on the history of the clutch constantly jerking, the agitation produced trauma which precipitated the clot. He conceded that he made no physical finding of trauma. He also said the clot could have occurred while claimant was in bed; also, that “his other leg is affected by this disease, but it has not occluded”.

Dr. McCarty referred claimant to the vascular surgeons at John Gaston Hospital, Memphis. Dr. Sharpton of that hospital, one of the surgical residents, testified. He said he received a history of pain in the left leg being caused by the constant manipulation of a defective clutch. He said there was no mention of any acute type of trauma. Examination revealed a complete blockage of the left femoral artery and marked arteriosclerosis of the vessels in the lower part of the left leg. He said the point of origin of the blockage was located in the upper one-third of the thigh. An operation was performed which consisted of using a vein to by-pass and shunt the blood around the blocked area. That operation was not successful because the by-pass vein became clotted. It was then decided by the surgical staff that amputation was the only solution. Dr. Sharpton performed the amputation.

Dr. Sharpton testified that claimant had marked atherosclerosis and arteriosclerosis and that in such a situation blockage is “almost invariably due to a narrowing of the arteries and the condition being set up with usually a plaque of this hardening vessel breaking off and forming a complete blockage, and the subsequent blood clotting forming at the point creating a total blocked artery. * * * My findings and history are consistent with the development of this blood clot during the normal course of these diseases”. The doctor reiterated that the blood clot which caused the trouble was in the thigh area and that there was no clot in the area of the calf or ankle of the leg. He said if trauma made any contribution it would have to occur in the area of the trauma itself. Furthermore, he said that if a man with claimant's diseases suffered an acute trauma that precipitated a blood clot, the clot would show up within a few days.

A conflict in the medical testimony is at once apparent. That conflict presents a fact question to be resolved by the commission. We cannot reverse when the medical findings which support the commission are substantial. John Bishop Construction Co. v. Orlicek, 224 Ark. 182, 272 S.W. 2d 820 (1954); Grimsley v. Manufacturers Furniture Co., 224 Ark. 769, 276 S.W. 2d 64 (1955); McKamie v. Kern-Trimble Drilling Co., 229 Ark. 86, 313 S.W. 2d 378 (1958). The commission evidently adopted the view of Dr. Sharpton and we cannot say that evidence was insubstantial.

Affirmed.


text:
    Harold PRATHER v. STATE of Arkansas
    CR 73-171
    509 S.W. 2d 309
    Opinion delivered May 20, 1974

      Knox Kinney, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert S. Moore, Jr., Asst. Atty. Gen., for appellee.
   LYLE Brown, Justice.

Appellant was accused of five counts of forgery and five counts of uttering forged instruments. He was convicted on a total of six counts and sentenced to twelve years in the Department of Corrections. Five points are argued for reversal; however, we find it necessary to treat only one of those points. That is because we conclude that the evidence produced by the State was insufficient to sustain a conviction.

The State’s witness, Charles Herod, confessed his participation in a series of transactions involving the forging and passing of six checks in Forrest City. It was testified that he (Herod), Anderson, and Prather (appellant) all resided in Memphis in May 1972; that they discussed going to Arkansas and cashing some checks; that each participant was given some false identification; that Anderson drove his car; that Anderson had some payroll checks filled out with a check printer; and Herod testified he cashed five of the six checks for which the trio was charged. The procedure was, according to the witness, that he would take a check from Anderson, cash it, and return to the car and give the money to Anderson. Then they would drive on to another business. Herod testified appellant had nothing to do with the checks which the witness cashed.

Deputy Sheriff Joe Goff testified he received a call to stop a green car traveling on Washington Street upon belief that the occupants had been passing bad checks. He stopped the car and found the three men in it. He said appellant was in the front seat of the car on the passenger's side. Some checks were found under the floor mat; Anderson had the money; and appellant did not have any money. Sergeant Parkman arrived on the scene and conducted a search. In the trunk of the car he found various items of merchandise which came from the stores victimized. He related he found two wallets in the back seat, both containing identifications of parties other than the occupants. He said he found no evidence on the passenger’s side where appellant was seated. He also said appellant had no money.

Five witnesses, each from five different stores where the checks were cashed, testified. It is undisputed that four of those five witnesses were unable to identify appellant as having come to their respective stores. The State contends that “Mrs. Munn’s testimony indicated that she recognized the appellant as being the individual who passed a forged instrument at the United Dollar Store’’. We do not so view her testimony. On direct examination she was asked if she identified the man who negotiated the check. To which she replied: “I believe so. I’m not definitely sure, as I say, I didn’t check him out. I just okayed the check”. She said she thought the man was in the courtroom but she was not asked to point him out. Then on cross-examination there was this colloquy:

Q. Well, you certainly offer no identification now at this time, is that right?
A. Un-huh.
Q. You do not. You would swear that you never saw this man before in your life, would you (indicating defendant)?
A. No, sure wouldn’t.

Her testimony, it will be seen, is slightly confusing; however, we certainly cannot say she unequivocally identified the appellant as being one and the same person who cashed the check in her store.

We have many times, and consistently so, passed on the requirement that a conviction of a felony cannot be had on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof”. Ark. Stat. Ann. § 43-2116 (Repl. 1964). In construing the statute we have held that “The test of sufficiency of corroboration has been stated to be whether, if the testimony of the accomplice is eliminated from the case, the testimony of the other witnesses be sufficient to establish the commission of the offense and the connection of the accused therewith”. Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). Corroborating evidence which merely raises a suspicion of guilt is not enough. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1934). Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222 (1969).

In two later cases wherein we reversed on facts which are fairly comparable to the facts in the case at bar, we applied the same principles as were applied in Pitts. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971); Dunn and Whisenhunt v. State, 256 Ark. 508, 508 S.W. 2d 555 (1974).

The corroborative evidence raises no more than a suspicion that appellant was implicated in the bad check spree.

Reversed and remanded.


author: John A. Fogleman, Justice. CONLEY Byrd, Justice,

text:
    KOHLENBERGER, Inc., A Corporation v. TYSON’S FOODS, Inc.
    73-219
    510 S.W. 2d 555
    Opinion delivered May 20, 1974
    [Rehearing denied July 15, 1974.]

      Eichenbaum, Scott, Miller, Crockett & Bryant, by: C. Richard Crockett, for appellant.

      Crouch, Blair, Cyperl & Waters, by: James E. Dickson, for appellee.
   John A. Fogleman, Justice.

This appeal involves a default judgment granted Tyson Foods, Inc. in its suit against Kohlenberger, Inc. to recover damages allegedly resulting from operational failures of a “KR 60-A Kraki.ce Maker” purchased by Tyson from Kohlenberger. Kohlenberger relies upon the following points for reversal:

I. The court erred in refusing to set aside the default judgment awarded appellee.
II. The court erred in awarding judgment to appellee because the complaint does not state a cause of action.
III. The court erred in awarding more than nominal damages to plaintiff-appellee.

We will first discuss point I and then treat points II and III together.

I.

Appellant is a foreign corporation, not authorized to do business in Arkansas. Its principal place of business is in Fullerton, California. The complaint was filed on November 8, 1972. Service was had under the “Long Arm Statute,” Ark. Stat. Ann. § 27-2501 — 2507 (Supp. 1973) by a letter dated November 11, 1972, from the Sheriff’s Department, Washington County, Arkansas, addressed to Mr. Allan A. Morris, President, Kohlenberger, Inc., enclosing a copy of the complaint and a summons. In the letter, sent by certified mail, the sheriff stated that answer would be due 30 days from receipt of the letter. Based upon the postmark on the return receipt, the sheriff’s return showed November 16, 1972, as the date of service.

On December 29, 1972, before judgment was entered, Kohlenberger, appearing specially, filed a motion to quash the summons and its service, upon jurisdictional grounds now immaterial. In the judgment entered February 22, 1973, after a hearing on February 8, 1973, the circuit court denied the motion to quash, held that the failure of Kohlenberger to appear or plead within the time allowed by law was not due to excusable neglect, unavoidable casualty or other just cause, and entered judgment against Kohlenberger for $84,-060.86 and costs. Kohlenberger then filed a motion to set aside and vacate the judgment. One of the grounds of this motion relates to the failure to timely appear and plead. In the motion Kohlenberger alleged as excusable neglect, unavoidable casualty, or just cause for its default, that summons was served on November 16, 1972, and on December 13, 1972, first placed in the hands of its California attorney, who called Tyson’s attorney, and requested that a default judgment not be taken. It was also alleged that the California attorney, being under the impression that the time for answer had already expired because the sheriff’s letter was dated November 11, 1972, and for “other reasons,” took no immediate steps to either file a pleading or apply for an extension of tin» within which to do so. Kohlenberger relied upon the pleadings and documents, testimony, evidence and statements of counsel at the hearing on February 8, 1973. This motion was denied.

The hearing on February 8 came upon regular call of the docket. Even though no allegation of unavoidable casualty, excusable neglect or other just cause was made in the motion to quash, it seems that the hearing was directed to the propriety of entry of a default judgment. In attempting to meet its burden Kohlenberger showed:

Robert J. DeMarco, a member of the litigation department of the California firm of Hill, Farrer and Burrell, consisting of 40 attorneys, received the summons which came to his firm’s office by mail on December 13, 1972, about 4:30 p.m. in the afternoon. On the next morning he had a telephone conversation with Mr. Dickson, the attorney who had filed the complaint. Dickson declined to give any assurance that a default judgment would not be entered because of acrimony engendered between the parties through controversy about the icemaker. There was no further communication between DeMarco and Dickson until after December 22, 1972, the date on which Kohlenberger employed the Little Rock firm of Eichenbaum, Scott, Miller, Crockett and Bryant. DeMarco was unaware of the date his client had actual ly received the summons, and of the fact that the return receipt had gone to the sheriff’s office rather than to Dickson’s office. He had assumed, since the letter was dated November 11, it would have been received by his client on November 13 in the usual course of the mails, and that Dickson had seen the return receipt. The name of the president of Kohlenberger, Inc. was Arval, not Allan, Morris. The company had no record indicating the time of receipt of the summons and complaint and had given DeMarco no explanation why it took nearly a month to get them to him. DeMarco did not inquire of the Clerk of the Circuit Court of Washington County about the service and it did not occur to him that he might have had a Fayetteville attorney to check to determine whether Kohlenberger was in default or to seek an extension of time within which to plead. On the advice of a member of his firm, DeMarco sought to reach Mr.Charles Eichenbaum on December 14, but, finding that he was out of town and thinking that time was no longer of the essence because Dickson would seek a default judgment, did not talk to Eichenbaum until the following week. Dickson did not misrepresent the facts to DeMarco, but simply accepted DeMarco’s statement that Kohlenberger was in default.

After the circuit judge announced that the motion to quash was denied, Kohlenberger requested permission to file an answer on the ground that the failure to plead earlier was due to excusable neglect or other just cause. This permission was denied, but the court permitted Kohlenberger’s attorney to dictate its proposed answer into the record.

Appellant admits that there was neglect in this case, but asserts that it was excusable. It relies upon cases wherein we have held that neglect on the part of a defendant’s attorney was excusable because of some justification in his belief either that the pleading had been or would be timely filed or that the time for filing had not expired. See Fitzwater v. Harris, 231 Ark. 173, 328 S.W.2d 501; Barkis v. Bell, 238 Ark. 683, 384 S.W.2d 269; Easely v. Inglis, 233 Ark. 589, 346 S.W.2d 206; Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W.2d 728. We need not consider whether DeMarco was justified in relying upon his assumptions or whether his failing to endeavor to talk to any of the four other members of Eichenbaum’s firm, or to attempt to reach Eichenbaum outside Little Rock, or to attempt to reach any other attorney in Little Rock or Fayetteville or to check with the clerk as to the time for filing answer was excusable neglect. Neither do we consider whether there is a distinction where the neglect is shown to be that of the defendant, rather than of his attorney. Appellant hinges its whole argument on this point upon the premise that because of DeMarco’s misunderstanding there was unavoidable casualty, excusable neglect and other just cause for its default. But even if we agreed, we would be unwarranted in holding that the totally unexplained cavalier treatment of the summons and complaint by the officers and agents of Kohlenberger, which were responsible for the dilemma in which its attorney found himself, was due either to unavoidable casualty, excusable neglect or other just cause. This we would have to do in order to find that the circuit judge erred in denying the motion to quash, granting default judgment or in denying the motion to set the judgment aside. This case is so nearly like Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W.2d 236, as to be governed by it. We find the suggestion that the judgment should have been set aside merely because Kohlenberger had a meritorious defense totally without merit. If we did follow this suggestion, we would revert to the wholly unsatisfactory conditions prevailing prior to the enactment of Act 49 of 1955. There was no error insofar as this point is concerned.

II. and III.

We treat these points together, because the arguments, pro and con, seem inextricably intertwined. In support of point II appellant contends that the complaint stated no cause of action because under the allegations of the complaint there was an unrevoked acceptance of the icemaker by Tyson, there having been no allegation of either rejection or revocation of acceptance prior to the filing of the complaint, and no allegations pertaining to cover. Appellant’s argument under point III also depends, to some extent, upon the premise that the case is to be treated as if the goods were accepted.

Appellant admits that the complaint alleges notification of breach of warranty. Consequently, appellant argues there was no basis for the recovery of special, incidental or consequential damages prayed for in the complaint. This argument brings us to a consideration, first, of the damages recoverable for a breach of warranty and, then, of the right to recovery of special, incidental and consequential damages in the light of the facts alleged and those not alleged. In passing, however, we must say that appellee’s positive, but unsupported, assertion that Kohlenberger’s default bars it from raising these questions is without merit. A default admits only those facts alleged in the complaint and if they are insufficient to support the judgment, it will be reversed. Arkansas Bond Co. v. Harton, 191 Ark. 665, 87 S.W.2d 52; Wilson v. Over- turf, 157 Ark. 385, 248 S.W. 898; Thompson v. Hickman, 164 Ark. 469, 262 S.W. 20. Although it is unnecessary that a complaint set out the evidence relied upon or a history of transactions leading up to the essential facts, it is necessary that substantive or issuable facts be alleged, and conclusions stated cannot be considered on default. Strange v. Bodcaw Lbr. Co., 79 Ark. 490, 96 S.W. 152, 116 Am. St. Rep. 92; Arkansas Bond Co. v. Harton, supra; Wood v. Drainage District No. 2, 110 Ark. 416, 161 S.W. 1057; Thompson v. Hickman, supra. The facts constituting the cause of action must be averred by stating them, in direct and positive allegations, and not by way of argument, inference or belief. Wilson v. Overturf, supra. Every fact and element essential to the cause of action must be stated. Purtle v. Wilcox, 239 Ark. 988, 395 S.W.2d 758; Wood v. Drainage District No. 2, 110 Ark. 416, 161 S.W. 1057. This means that a complaint must allege every fact which the plaintiff would be required to prove in order to recover. 71 C.J.S. 174, Pleading, § 69; Crutcher v. Wilson, 277 Ky. 499, 126 S.W.2d 1133 (1939). The facts alleged must show the existence of a right in plaintiff, the infringement of that right by defendant and that the cause of action had accrued at the time of the filing of the complaint. Crutcher v. Wilson, supra. See also, Chaffin v. McFaddin, 41 Ark. 42. A judgment by default must strictly conform to, and be supported by, the allegations of the complaint, and a closer correspondence between the pleading and judgment is required than would be after a contested trial. Kerr v. Kerr, 234 Ark. 607, 353 S.W.2d 350.

Insofar as a breach of warranty is concerned, the buyer may recover the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner that is reasonable, the measure of which is the difference at the time and place of acceptance between the value of the goods and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. In a proper case any incidental and consequential damages may be recovered as provided in Ark. Stat. Ann. § 85-2-715 (Add. 1961). See Ark. Stat. Ann. § 85-2-714 (Add. 1961). Incidental damages resulting from breach of warranty are costs of cover and any other reasonable expense incident to the breach. Ark. Stat. Ann. § 85-2-715. Consequential damages are losses resulting from the buyer’s general or particular requirements and needs of which the seller, at the time of contracting had reason to know and which could not be prevented by cover. Ark. Stat. Ann. § 85-2-715. In order to recover the buyer must first attempt to minimize his damages. Committee Comment 2, § 85-2-715. The burden of proving loss by way of consequential damages is expressly upon the buyer. Committee Comment 4, § 85-2-715.

The buyer must pay at the contract rate for goods accepted, but this does not impair any other remedy he may have. Ark. Stat. Ann. § 85-2-607(1) and (2) (Add. 1961). A buyer may accept or reject goods purchased. Ark. Stat. Ann. § 85-2-601 (Add. 1961). Goods are accepted when the buyer fails to make an effective rejection. Ark. Stat. Ann. § 85-2-606 (Add. 1961). To avoid acceptance of wholly non-conforming goods, the buyer must take affirmative action. A rejection is ineffective unless the buyer seasonably notifies the seller. Ark. Stat. Ann. § 85-2-602 (Add. 1961) and Committee Comment. Even though a buyer may revoke an acceptance, the revocation is not effective until the buyer notifies the seller. Ark. Stat. Ann. § 85-2-608 (Add. 1961). More will generally be necessary than mere notification of a breach under Ark. Stat. Ann. § 85-2-607. Committee Comment 5, § 85-2-608. We have held that notification of a breach of warranty is a condition precedent to recovery which must be pleaded. L. A. Green Seed Co. v. Williams, 246 Ark. 463, 438 S.W.2d 717. Since in") order to recover for more than is allowed for breach of, warranty where the goods are accepted, a plaintiff buyer: must prove that there was an effective rejection or revocation and notification is essential before either is effective, he must plead notification, prior to the filing of suit, of one or the other, as a condition precedent just as required in case of breach of warranty. See Poole v. Marion Buick Co., 14 N.C. App. 721, 189 S.E.2d 650 (1972). If more is required than notice of breach of warranty, and notice of breach of warranty is a condition precedent to filing of suit which must be alleged in a complaint, it would be highly illogical to hold that the same rule did not apply where recovery is sought upon the basis of rejection or revocation.

We have held that failure to allege that a properly verified account had been filed in the office of the clerk required reversal of a judgment for enforcement of a materialman’s lien. Chaffin v. McFaddin, 41 Ark. 42. We have also held that a default judgment could not be sustained because a complaint contained no allegation that a landowner had employed or agreed to pay a laborer for his labor in drilling an oil well even though it was alleged that the owner accepted the benefits of the labor. Thompson v. Hickman, supra. The allegations of the complaint must be sufficient to warrant the relief prayed for. Clarke v. Strong, Admr., 13 Ark. 491.

When we examine the complaint in the light of well-established rules requiring allegations to support a default judgment, we find defects fatal to the relief sought and granted. Tyson sought to allege three causes of action. The first was based upon breach of express warranty, the second on breach of implied warranty of merchantability and the third on breach of implied warranty of fitness. The allegations are sufficient to support relief by way of judgment on these causes of action for damages allowed in the case of accepted goods. There were sufficient allegations of notice of breach of warranty, but none whatever of notice of rejection or revocation. Plaintiff, however, sought to recover, on account of the breach of express and implied warranties, the purchase price paid for the icemaker and an additional sum of $57,873.40 for ice purchased, the cost of dismantling, removing and storing the defective equipment, loss of profits, good will, customers ind business. The judgment rendered was for the purchase price of the icemaker and associated equipment “as a result of the failure of the machine to operate as warranted,” $48,969.89 as “consequential damages” for ice purchased as a result of breach of warranty and $8,090.97 as “consequential damages” for expenditures for labor to grind and auger the ice purchased.

In the absence of any allegations of any effective rejection or revocation of acceptance, Tyson was not entitled to recover the purchase price. Its damages in this respect were limited to the difference at the time and place of acceptance between the value of the icemaker if it had been as warranted and its actual value. There were no allegations of “special circumstances” which would support a judgment for the full amount of the purchase price. Since the allegations of the complaint did not state a cause of action for this relief, it did not support the judgment rendered, and it must be reversed for this reason, if for no other.

The judgment was based on evidence heard by the court as well as the allegations of the complaint. Even if the evidence supplied the deficiencies, it would not support the judgment. The allegations of a complaint cannot be enlarged by evidence introduced to support a judgment by default. Kerr v. Kerr, 234 Ark. 607, 353 S.W.2d 350. Although there was no evidence offered to show the true measure of damages in this respect, we find no reason to say that it could not be produced on a retrial, so the case will be remanded. Since there are other questions raised here that will arise on retrial, we will discuss those also.

In order to properly approach answers to these questions, it is necessary that we consider the status of a defaulting defendant insofar as his participation in a hearing on application for default judgment is concerned. The plaintiff, of course, must introduce evidence to support any judgment for damages, in excess of nominal damages. Ark. Stat. Ann. § 27-1151 (Repl. 1962); Ferri v. Braun, 236 Ark. 329, 366 S.W.2d 286; Naperski v. Trevillion, 202 Ark. 638, 151 S.W.2d 992; Earl v. Ellison, 138 Ark. 166, 210 S.W. 342; Greer v. Strozier, 90 Ark. 158, 118 S.W. 400; Greer v. Newbill, 89 Ark. 509, 117 S.W. 531. A defaulting defendant not only has the right to contest the element of damages, he may also cross-examine witnesses giving testimony as to damages, introduce evidence in mitigation of damages and question, on appeal, the sufficiency of the evidence to support the amount of damages awarded. Ferri v. Braun, supra; Clark v. Collins, 213 Ark. 386, 210 S.W.2d 505.

We indicated in Clark v. Collins, supra, that a defendant could also offer proof as to an adjustment of the amount claimed. While a defaulting defendant cannot introduce evidence to defeat plaintiff’s cause of action or to avoid it, any evidence that would tend to mitigate or minimize the damages or reduce the amount claimed, even to nominal damages, is admissible on behalf of a defaulting defendant. Mizell v. McDonald, 25 Ark. 38; Jetton v. Smead, 29 Ark. 372; 25A C.J.S. 135, Damages 172; St. Louis & S. F. R. Co. v. Zumwalt, 31 Okla. 159, 120 P. 640 (1912); Turner v. Carter & Pulliam, 1 Head (Tenn.) 520 (1858); Randolph v. Sharpe, 42 Ala. 265 (1868); Grace v. Curley, 3 Tenn. App. 1 (1926); DeHoff v. Black, 206 N.C. 687, 175 S.E. 179 (1934); 1 Black on Judgments, Second Edition, 133, § 91 (1902); Wileman v. Mayor and Aldermen, 29 Tenn. App. 172, 195 S.W. 2d 325 (1946); Garrard v. Dollar, 49 N.C. 175 (1856), 67 Am. Dec. 271; McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930).

Kohlenberger contends that Tyson was not entitled to recover either incidental or consequential damages because there was no allegation in its complaint as to cover. It is true that a buyer can recover as consequential damages losses resulting from his general or particular requirements and needs only if the seller, at the time of contracting, had reason to know them and which could not reasonably have been prevented by cover or otherwise. Ark. Stat. Ann. § 85-2-715(2). It is also true that the burden of proving the loss is on the buyer, but this does not necessarily mean that he must first prove the negative of the proposition, i.e., that his loss could not have been prevented by cover. A plaintiff is not ordinarily required to plead matters relating to mitigation, minimization or reduction of his damages. 22 Am. Jur. 2d 388, Damages, § 292. See Annot., 41 A.L.R.2d 955. The burden of proof of these matters is usually upon the defendant. International Correspondence School v. Crabtree, 162 Tenn. 70, 34 S.W.2d 447, 78 A.L.R. 330 (1931). We have held that, upon breach of contract, the burden of establishing his damages is upon the party claiming them, but the burden is upon the defaulting party to show that such damages might and should have been minimized. City of Paragould v. Arkansas Power & Light Co., 171 Ark. 86, 284 S.W. 529. We have followed this rule in cases involving wrongful discharge of employees. See, e.g., Runkle v. Fuess, 226 Ark. 447, 290 S.W.2d 433; Van Winkle v. Satterfield, 58 Ark. 617, 25 S.W. 1113. The language of Van Winkle is particularly appropriate. We said:

The burden of proof is on the employer to show that the servant might have obtained similar employment, for the failure of the servant to obtain other employment does not affect the right of action, but only goes in reduction of damages, and if nothing else is shown “the servant is entitled to recover the contract price, upon proving the employer’s violation of the contract, and his own willingness to perform.” The fact that the servant might have obtained new employment does not constitute a defense. It is one of the facts to be considered in estimating the servant’s loss.

Requiring a plaintiff to plead relating to these matters would be inconsistent with the traditional placing of the burden of proof. While we do not think that Tyson’s complaint was deficient in this respect or that Tyson bore the burden of proof as to cover, this does not mean that a defaulting defendant cannot offer evidence on this score. The right to offer such evidence, or to have evidence offered by either party considered by the factfinder in considering damages, is clearly indicated by the quotation from Van Winkle. It has been held that regardless of the rules of pleading, such matter may be shown in evidence if it tends to show that the damages claimed were never suffered or that they could have been diminished. See McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930, especially the concurring opinion by Cardozo, J., in which a majority of the court joined. It has been expressly held that evidence relating to “cover” is admissible under the general rules as to the status of a defaulting defendant in proceedings to fix damages. Kelley, Maus & Co. v. LaCross Carriage Co., 120 Wis. 84, 97 N.W. 674 (1903). These holdings are consistent with our holding that it is competent for a defendant to show how a plaintiff might have mitigated or minimized its damages. St. Louis, I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159.

As a further argument that Tyson was not entitled to the damages allowed, Kohlenberger relies upon clauses in the contract between the parties setting out an express warranty and a limitation of liability. They are:

1. WARRANTY. Kohlenberger warrants products herein described, so far as the same are of Kohlenberger’s own manufacture, to be free from defects in materials and/or workmanship for a period of eighteen months from date of shipment, or for twelve months from date of startup, whichever is shorter. If within the period of such warranty, purchaser promptly notifies Kohlenberger of any claimed defect . . . Kohlenberger will, at its option, repair or replace the same with like or similar part or parts or allow credit for the purchase price of the part, provided, however, that the purchaser shall be responsible for all transportation and labor charges relating to the repair, installation or removal of the same.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND OF ANY OTHER OBLIGATION ON THE PART OF KOHLENBERGER.
The allowance of credit or repair or replacement of defective part or parts of Kohlenberger shall constitute the sole remedy of purchaser and sole liability of Kohlenberger whether on warranty, contract or negligence.
Upon the expiration of such warranty period, or in the event such products are subjected to misuse, negligence, alteration, accident, improper repair, or operated contrary to Kohlenberger's printed instructions or brochures, all liability of Kohlenberger shall cease.
With respect to any part or parts supplied hereunder which are not manufactured by Kohlenberger, the warranty of the manufacturer thereof shall apply and be exclusive. . . .
* * *
4. LIMITATION OF LIABILITY. Kohlenberger's liability on any claim of any kind, including negligence, for any loss or damage arising out of or connected with, or resulting from this proposal or from the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair, or use of any product covered by or furnished under this proposal shall in no case exceed the price allocable to the product, part or parts thereof which give rise to the claim. Purchaser agrees that Kohlenberger shall not be liable for any damages to purchaser or to a third party arising out of the presence of the products of Kohlenberger on purchaser's promises or out of the use or operation thereof. In no event shall Kohlenberger be liable for any special, consequential or incidental damages.

Appellant urges that Tyson was limited to nominal damages by each clause. In considering this argument, we must recall that, in its complaint Tyson alleged breaches of both express and implied warranties. The contract between the parties was not set out in or exhibited to the complaint.

It has been held that evidence to show that no right of action existed is inadmissible. Garrard v. Dollar, 49 N.C. 175 (1856); DeHoff v. Black, 206 N.C. 687, 175 S.E. 179. But it has also been held that, in an action for its breach, the contract between the parties is admissible in evidence to mitigate damages by showing the extent of the defendant’s covenant to the plaintiff, and the property not subject to the covenant. Randolph v. Sharpe, 42 Ala. 265 (1868). It has also been held that attendant circumstances giving character to the transaction may be shown insofar as they are relevant to the amount of recovery to which the plaintiff is entitled. DeHoff v. Black, supra.

By default Kohlenberger admitted allegations of the complaint that warranties were made, that they were breached and that Tyson suffered damages. Hallett Construction Co. v. Iowa State Highway Commission, 261 Iowa 290, 154 N.W.2d 71 (1967). Under Ark. Stat. Ann. § 85-2-316 (Add. 1961), remedies for breach of warranty can be limited in accordance with Ark. Stat. Ann. §§ 85-2-718 (Add. 1961) and 85-2-719 (Add. 1961) pertaining to liquidation or limitation of damages and to contractual modification of remedy. Under Ark. Stat. Ann. § 85-2-718, damages for breach by Kohlenberger could be liquidated in the agreement between the parties, but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of the proof of loss and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. Under § 85-2-719, it was permissible for the contract to provide for remedies in substitution for those provided in the UCC or to limit or alter the measure of damages recoverable by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts and to make the remedy agreed upon the sole remedy, unless circumstances cause the exclusive or limited remedy to fail of its essential purpose. It was also permissible, under the same section, to limit or exclude consequential damages, unless the limitation or exclusion is unconscionable.

Not only do the two clauses in question show the extent of the warranty breached, but they are certainly attendant circumstances which give character to the transaction and are relevant to the amount of Tyson's recovery. Thus, they were admissible in evidence, not in bar of any recovery, or as a defense to the action, but to be considered in determining whether Tyson was entitled to recover more than nominal damages, insofar as they constitute a valid limitation on the remedy or recovery.

By clause one, Kohlenberger sought to negate implied warranties of merchantability and of fitness, as well as to limit the remedy and recovery for any breach of its express warranty. Obviously, the negation of warranties would be a bar to an action for breach of those warranties and should have been pleaded as a defense which is not now available to Kohlenberger due to its default. It remains to be seen whether this clause and clause four are valid in respect to limitation of the remedy.

We have held an effort to limit recovery on breach of warranty to a refund of the purchase price of the goods to be unreasonable, unconscionable and against sound public policy when negligence on the part of the warrantor was clearly established. Dessert Seed Co. v. Drew Farmers Supply, Inc., 248 Ark. 858, 454 S.W.2d 307. Although we there viewed the matter more from the standpoint of an attempted immunization of a contracting party's own negligence, an attempted limitation of recovery for breach of warranty was involved, and no sound reason appears why the same approach to that attempted limitation would not be appropriate. This attempted contractual modification or limitation of remedy is ineffective if it fails of its essential purpose, or is unconscionable; except as to consequential damages it would be ineffective only if unconscionable. Ark. Stat. Ann. § 85-2-719. In evaluating these clauses, it is appropriate that we resort to portions of the Committee Comments following the cited section. The Committee said:

1. Under this section parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect.
However, it is of the very essence of a sales contract that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequence that there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract. Thus any clause purporting to modify or limit the remedial provisions of this Article in an unconscionable manner is subject to deletion and in that event the remedies made available by this Article are applicable as if the stricken clause had never existed. Similarly, under subsection (2), where an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this Article.
* * *
3. Subsection (3) recognizes the validity of clauses limiting or excluding consequential damages but makes it clear that they may not operate in an unconscionable manner. Actually such terms are merely an allocation of unknown or undeterminable risks. The seller in all cases is free to disclaim warranties in the manner provided in Section 2-316.

The question of unconscionability must be determined in the light of general commercial background, commercial needs in the trade or the particular case, the relative bargaining position of the parties and other circumstances existing when the contract was made. This would seem to require that evidence be heard in this case. Ark. Stat. Ann. § 85-2-302, Committee Comment 1; Dow Corning Corporation v. Capitol Aviation, Inc., 411 F.2d 622 (7th Cir. 1969); Granite Worsted Mills v. Aaronson Cowen, Ltd., 29 App. Div. 2d 303, 287 N.Y.S.2d 765 (1968); see also, K. & C., Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970); U. S. Fibres, Inc. v. Proctor & Schwartz, Inc., 358 F. Supp. 449 (D.C. Mich. 1972). The burden of showing that the clause in question is so one-sided as to oppress or unfairly surprise an innocent party lies upon the party attacking it. Bill Stremmel Motors, Inc. v. IDS Leasing Corp., 89 Nev. -, 514 P.2d 654 (1973). We cannot pass on this question on this appeal for we have no assurance that'there will not be other evidence on the subject on retrial.

It would seem that the evidence introduced on this trial conclusively showed that the attempted modification and limitation failed of its essential purpose, as a matter of law. It has been held, properly we think, that when there is substantial evidence, as there is here, tending to show that a particular piece of machinery obviously cannot be repaired or its parts replaced so that the same is made free of defects, a jury verdict, which implicitly concludes that a limitation of the remedy to repair arid replacement of non-conforming parts deprived the purchaser of the substantial value of the bargain, should be sustained. Riley v. Ford Motor Co., 442 F.2d 670, 8 UCC Rep. Serv. 1175 (5th Cir. 1971). See also, Jones & McKnight Corp. v. Birdsboro Corp., 320 F. Supp. 39, 8 UCC Rep. Serv. 307 (D.C. Ill. 1970). Such a remedy fails whenever the warrantor, given the opportunity to do so, fails to correct the defect within a reasonable period. Moore v. Howard Pontiac-American Inc., 492 S.W.2d 227, 12 UCC Rep. Serv. 676 (Tenn. Ct. App. 1973); Beal v. General Motors Corp., 354 F. Supp. 423, 12 UCC Rep. Serv. 105 (D.C. Del. 1973).

In this respect, an Illinois appellate court, in sustaining the allegation of a complaint against a motion to dismiss which had the same effect as a demurrer in Arkansas, very aptly said in Adams v. J. I. Case Company, 125 Ill. App. 2d 388, 261 N.E.2d 1 (1970):

Plaintiff does not plead any coercive, fraudulent, overreaching or unconscionable sales tactics so presumably the original limitation of liability was not unreasonable, and from all that appears the plaintiff made his purchase with full knowledge of the limitations. But plaintiff could not have made his bargain and purchase with knowledge that defendants would be unreasonable, or, in the words of his complaint, wilfully dilatory or careless and negligent in making good their warranty in the event of its breach. The manufacturer and the dealer have agreed in their warranty to repair or replace defective parts while also limiting their liability to that extent. Had they reasonably complied with their agreement contained in the warranty they would be in a position to claim the benefits of their stated limited liability and to restrict plaintiff to his stated remedy. The limitations of remedy and of liability are not separable from the obligations of the warranty. Repudiation of the obligations of the warranty destroy its benefits. The complaint alleges facts that would constitute a repudiation\by the defendants of their obligations under thé warranty, that repudiation consisting of their wilful failure or their careless and negligent compliance. It should be obvious that they cannot at once repudiate their obligation under their warranty and assert its provisions beneficial to them. Thus, the allegations of Count II of plaintiff’s complaint invoke other provisions of the Uniform Commercial Code. Section 2-719(2) provides:
“Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act.”
Failure of the exclusive remedy provided in the warranty is readily found in the allegation that defendants were wilfully dilatory or careless and negligent in complying with their obligations under the warranty.

But we have ne assurance that the evidence will be the same either as to unconscionability or failure of purpose on a new trial.

Appellant argues that appellee was not entitled to recover for costs of labor in grinding ice purchased after the failure of the icemaker. The judgment was for $8,090.97 for sums expended by Tyson for labor to grind and auger ice purchased by it. There was no allegation pertaining to this item of damage in the complaint. The only allegation we can relate to this item of the judgment is that stating that Tyson expended $8,091.77 in labor costs in attempting to repair the equipment. Consequently, we find no basis for the award of this item of damages as a separate item.

Appellant also argues that Tyson was not entitled to recover $48,969.89 for ice purchased by it. Appellant states first that this is not the proper measure of damages because there was no deduction for expenses Tyson would have incurred if it had manufactured the ice itself. This question may well arise on a new trial, if the limitation on damages be found ineffective. Since damages to be awarded are intended to be compensatory, not punitive, if Tyson is entitled to recover special damages, it would be entitled to recover only the amount by which the cost of purchasing ice and preparing it for use exceeded its cost of manufacture by use of the machinery if it had performed properly. See Restatement of the Law, Contracts, § 329, p. 503, Illustration 4, p. 508.

Appellant also argues that the evidence was insufficient to support the full amount of $48,969 for ice purchased because of a failure of proof and because of the admission of incompetent evidence in support of this item. This evidence consisted of various invoices introduced through the president of the processing division of Tyson. Appellant points out that one invoice is for storage or purchase of frozen foods, rather than for purchase of ice. While we have been unable to connect such an item with the breach of warranty, the only objection made to the introduction of this and other invoices on which the judgment was rendered was that they constituted hearsay. Of course, if the invoices were records of Tyson made in the regular course of its business, and their relevance is shown, they are admissible as against the objection made. Ark. Stat. Ann. § 28-928 (Repl. 1962); Rogers v. Frank Lyon Company, 253 Ark. 856, 489 S.W.2d 506; Royal Service Co. v. Whitehead Construction Co., 254 Ark. 234, 492 S.W.2d 423. There does not appear to have been any objection to the relevance of any of the invoices. Appellant, however, did object to the failure of appellee to show, as a foundation for the introduction, that the witness through whom the invoices, or ice delivery tickets, were introduced knew of his own knowledge that they were for ice purchased because of the failure of the ice maker or knew that Tyson had paid them. Request for voir dire examination of the witness on this evidence was refused by the trial judge, who stated that these matters might be inquired into on cross-examination. Appellant’s attorney did cross-examine the witness on these matters, but did not thereafter renew his objection. Under these circumstances, we find no reversible error.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Byrd, J., dissents.

CONLEY Byrd, Justice,

dissenting. I must disagree with the majority opinion in so far as it holds that Kohlenberger, Inc., can prove its contractual limitation of damages and modification of remedy.

Our decisions consistently hold that in the absence of a plea of payment, proof thereof is inadmissible. See Arkansas Power & Light Company v. Liebe, Admix., 201 Ark. 292, 144 S.W. 2d 29 (1940). It is pointed out in 61 Am. Jur. 2d PLEADING § 156 that affirmative defenses — that is matters constituting a confession and an avoidance such as payment and contractual limitations on the time within which suit may be brought, must be affirmatively pleaded before evidence can be introduced thereon. The Federal Rules of Civil Procedure [Rule 8(c)] are quoted as being to the same effect. We follow the general rule. See Chiles v. Mann & Mann, 240 Ark. 527, 400 S.W. 2d 667 (1966), where, upon a general denial, we upheld the trial court's ruling that appellant could not show that he signed the note in issue in his capacity as president of a corporation instead of his individual capacity. In so holding we said:

“There are several reasons why the Court was correct in this ruling. The first relates to the rules of pleading: i.e.., under a general denial testimony of confession and avoidance cannot be heard such as here: the defendant confesses his act of signing the note but seeks to avoid the effect by claiming he signed, as an officer of a corporation. Some of our cases showing the limited evidence that may be offered under a general denial are: Grier v. Yutterman, 102 Ark. 433, 145 S.W. 194; and Shirk v. Williamson, 50 Ark. 562, 9 S.W. 562. Our cases are in accord with the general rules as regards pleadings. In 41 Am. Jur. 396, ‘Pleadings' § 149, the text reads: ‘Like the general issue, the general denial operates as a denial of every material allegation of the complaint as fully as if it had been specifically and separately denied. . . .It covers defenses which go to destroy the plaintiff’s cause of action, but not those which are grounded on new matter or matters in avoidance or other defense that must he specially pleaded.’’ (emphasis supplied.) And in § 155 of the same text the general holdings are summariz.ed: 'Since the plaintiff must apprise the defendant in the beginning as to what he relies upon for a recovery, it is only right that the defendant should be required also to inform the plaintiff of any special or affirmative defense he expects to make by pleading the facts constituting such defenses. ’ ”

Furthermore, in St. Paul Ins. Co. v. Gray, 240 Ark. 66, 398 S.W. 2d 506 (1966), where we had before us an alleged contractual limitation of liability, we there said:

“A jury trial resulted in a verdict in favor of appellee for $2,575.85, from which appellant prosecutes this appeal, assigning seven separate points for a reversal.
1. In appellant’s answer it admitted owing appellee $190.88 for damage to the tractor, and now contends that is the only amount supported by the evidence. This contention by appellant is based on the assertion that appellee did not offer in evidence the policy provisions relied on to ‘establish the amount ol his loss.’ There is no merit in this contention because appellant, in its answer, admitted issuing the insurance, policy covering the tractor and admitted the tractor was damaged while the policy was in effect. Therefore, if there was any provision in the policy which limited the amount of coverage it was the duty of appellant to plead it affirmatively. Stucker v. Hartford Accident and Indemnity Company, 220 Ark. 475, 248 S.W. 2d 383 and Bankers Insurance Company v. Hemby, 217 Ark. 749, 233 S.W. 2d 637.”

By the default to the complaint of Tyson’s Foods, Inc., Kohlenberger, Inc., admitted that it breached an express warranty, an implied warranty of merchantability and an implied warranty of fitness. Yet, as I understand the majority opinion, it is permitting Kohlenberger, Inc., who defaulted, to prove in mitigation of damages not only that it contractually excluded any implied warranties of merchantability or fitness but also that it limited its liability for breach of the warranty including an exclusion of all consequential or incidental damages. To me these are either new matters or matters by way of confession and avoidance, and when we place a defaulting defendant in a better position on proof of damages than we would one who had filed a general denial, we are placing an undue burden upon both the plaintiff and the trial court. Under the majority view the plaintiff, just to prove his damages, would have to anticipate every conceivable affirmative defense and have the witnesses available in court to make the necessary proof to overcome the defaulting defendant's evidence.

Since I consider payment, exclusion of implied warranties of merchantability or fitness and a contractual limitation of liability as matters that must be specifically pleaded, it follows that 1 find that the trial court was correct in allowing “(b) $48,969.89, as consequential damages resulting from defendant's breach of warranty as the result of ice purchased by plaintiff [Tyson’s Foods, Inc.| to perform its operations during times said machinery was either partially or totally inoperative." Under those circumstances it would appear that Tyson's Foods. Inc., upon the entering of a remittitur for all amounts in excess of $48,969.89 would be entitled to an affir-mance as modified.

For the reasons herein stated I respectfully dissent.

       We recognize that the contract may furnish the guide to measurement of damages. St. Louis, I. M. & S. Ry. v. Mudford, 44 Ark. 439.


author: JOHN A. Fogleman, Justice.

text:
    John SANDERS v. STATE of Arkansas
    CR 74-16
    509 S.W. 2d 295
    Opinion delivered May 20, 1974

      Don Langston, Public Defender, by: Hubert Graves, Dep. Public Defender for appellant.

      Jim Guy Tucker, Atty. Gen. by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   JOHN A. Fogleman, Justice.

Appellant contends that the judgment, sentencing him to imprisonment for one year and assessing a fine of $500 in accordance with a jury verdict finding him guilty of assault with a deadly weapon, should be reversed on two grounds. The first is the court’s refusal of appellant’s requested instruction on assault and battery, and the other is the court’s modification of his requested instruction on self-defense. We find no error on either point.

Assault and battery is not necessarily a lesser included offense on a charge of assault with a deadly weapon. Clearly, there may be an assault with a deadly weapon without any battery. Appellant was charged with having assaulted W. J. Newlon with a three-foot pipe, with the intent to inflict bodily injury upon the said W. J. Newlon. No part of the charging information contains any allegation that would constitue an allegation that a battery was committed upon Newlon. Assault and battery is the unlawful striking or beating the person of another. Ark. Stat. Ann. § 41-603 (Repl. 1964). The statute defining the offense with which appellant was charged makes one guilty of the crime if he assaults another with a deadly weapon, instrument or thing, with an intent to inflict upon the person of another a bodily injury where no considerable provocation appears, or where the circumstances of the assault show’ an abandoned and malignant disposition. Ark. Stat. Ann. § 41-605 (Repl. 1964). Nothing in the statute makes a battery an essential element of the offense.

Appellant first advances the novel argument that, since our statutes do not prohibit the carrying of a three-foot pipe as a weapon, the court’s refusal to instruct on assault and battery constituted a finding that the pipe was a deadly weapon, as a matter of law. Of course, to be guilty of the crime with which appellant was charged, it is not required that one use a deadly weapon. The statute requires the use of a deadly weapon, instrument or other thing. It should go without saying that a three-foot pipe falls into the category of a deadly “instrument or other thing” even if its common or ordinary use is not as a weapon. It is only required that the assault be made with such a deadly weapon, instrument or thing as in the ordinary acceptation is calculated, or likely, to produce death or great bodily injury. Wilson v. State, 162 Ark. 494, 258 S.W. 972.

Before the refusal to instruct the jury on a lesser offense can be said to constitute error, both the charge and the evidence presented must include all the elements of the lesser offense. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. The evidence in this case would have afforded sufficient basis for a finding of guilt of assault and battery, but, as pointed out above, the charge did not include an essential element of the lesser offense, i.e., battery.

Appellant offered an instruction on self-defense pointing out that, in order to make a finding sustaining a self-defense theory, it must have appeared to the defendant at the time of an affray that the danger was so urgent and pressing that, in order to save his own life or prevent his receiving great bodily harm, the striking was necessary and that the person struck was the assailant. This instruction also contained language pointing out that the danger need not be actual or real, but that one claiming self-defense must have acted, in good faith, upon an expectation or fear of danger based upon acts or demonstrations, coupled with any accompanying words, of a person assaulted by the defendant, sufficient to produce in the mind of the defendant a reasonable expectation or fear of death or great bodily harm. The circuit judge gave this instruction with an addition to which appellant objected. The objection was that the added portion was in conflict with that portion requested by appellant, in that it put the matter of self-defense uppn the basis of what defendant could have done rather than the appearance of the situation to the defendant. We find no error.

By the addition the court advised the jury 'that if they believed that appellant, in spite of hostile demonstrations by the prosecuting witness, could have reasonably avoided any danger to himself and averted the necessity for injuring the prosecuting witness, it was his duty to do so. This addition also included a statement to the effect that self-defense may be resorted to only after one has done all in his power, consistent with his own safety, to avoid the danger and avert the necessity of the injury. The addition must be read and considered in connection with that portion of the instruction just preceding it. It seems to us to have been clear that, under the instruction as given, one claiming self-defense may act upon a fear of danger which seems apparent to him, if he acts in good faith, and upon the basis of acts and demonstrations of one he takes to be an aggressor, if they would produce in the mind a reasonable expectation or fear of death or great bodily harm. Nothing in the addition suggests that the danger which one claiming self-defense must avoid should be actual rather than as earlier defined. It should be noted that the judge instructed the jurors that they should not single out any one instruction as being the law in the case, but were to consider all instructions together as being the law. He also fully instructed the jury on the state’s burden, to establish appellant’s guilt beyond a reasonable doubt. When all the instructions are read together, or even all paragraphs of the questioned instruction, we do not see how the jury could have been misled.

Since we find no error, the judgment is affirmed.

ByrD. J., dissents.

       See Ark. Stat. Ann. § 41-4501 (Supp. 1973).

       In his brief here appellant also concluded that the instruction was argumentative, but made no such objection in the circuit court.