author: J. Fred Jones, Justice.

text:
    AMERICAN INSURANCE CO. OF TEXAS v. John HARKEY, Insurance Commissioner
    5-4978
    445 S. W. 2d 84
    Opinion delivered October 6, 1969

      Smith, Williams, Friday & Bowen and Jerry T. Light, for appellant.

      Spitzberg, Mitchell & Hays, for appellee.
   J. Fred Jones, Justice.

This appeal by American Insurance Co. of Texas is from a summary judgment in favor of the plaintiff appellee, Insurance Commissioner of Arkansas, for premium taxes on insurance premiums collected by the company in Arkansas during 1966 and 1967.

American is a foreign insurance company and held a certificate of authority to transact business in the state of Arkansas until the certificate was revoked May 1, 1967. In the trial court American contended that it owed no premium tax because of the revocation of its certificate. The Commissioner contended that the revocation had no bearing on liabilty for the tax he claimed was due and unpaid.

The trial court agreed with the Commissioner and rendered judgment against American for $8,804.11 plus interest for tax due on March. 1, 1967, for the calendar year 1966, and for $9,296.48 plus interest for the premium tax due on March 1, 1968, for the calendar year 1967.

American relies on the following points for reversal:

“The revocation of the appellant’s certificate of authority absolved it of liability for any premium taxes.
The imposition of a 1968 premium tax based on receipts for the calendar year 1967 is not authorized and would make Ark. Stats. § 66-2302 unconstitutional in application.”

On this appeal American argues that:

“The sole issue presented with respect to the premium tax due March 1, 1967, is whether the tax is to be paid in order to transact insurance business from May 1, 1967, to April 30, 1968, or, for having transacted insurance business from May 1, 1966, to April 30,1967. If the former is the proper construction, then the Appellant owes no premium tax since its Certificate of Authority for that period of time was revoked. ’ ’

We agree with the trial court, and hold that the premium tax due on March 1, 1967, was for the privilege exercised during 1966. Both sides have cited several cases from other jurisdictions bearing on the classification of premium taxes levied against insurance companies, but in arriving at the conclusion we have reached, we rely on the plain words of our own statute, Ark. Stat. Ann. § 66-2302 (Repl. 1966), the pertinent parts of which are as follows:

“(1) Each authorized foreign or alien insurer, and each formerly authorized foreign or alien insurer with respect to premiums so received while an authorized insurer in this State, shall file with the Commissioner on or before March 1 each year a report . . . showing . . . total direct premium income . . . received by it during the preceding calendar year on account of policies and contracts covering property subjects, or risks located, resident, or to be performed in this State. . .
(2) Coincident with the filing of such tax report each such insurer shall pay to the State Treasurer through the Commissioner, as a tax imposed for the privilege of transacting business in this State, a tax upon such net premiums and net considerations, such tax to be computed thereon at the following rates-
(a) As to life insurance and disability insurance the tax rate shall be two and one-half (2%%) per cent.
(b) As to all other kinds of insurance the rate of tax shall be two (2%) per cent, except as provided in subsection (4) of this section.”

It is plain to us that the statute refers to two classifications of insurance companies required to file their reports on or before March 1 each year; those companies still authorized to do business and those companies formerly authorized to do business. Each authorized company, as well as each formerly authorized company, must file their respective reports on or before March 1 each year showing premiums received during the preceding calendar year. There is only one distinction in what each company must report. The authorized company must report on all premiums received by it in the preceding calendar year, and the formerly authorized company is required to report only “with respect to premiums so received while an authorized insurer in this state,” or, in other words, premiums received by it while it was still authorized to do business in this state.

From the information in the record before us, American was a formerly authorized company on March 1, 1968. It was an authorized company until it became unauthorized by the revocation of its authority as of May 1, 1967. The record does not reveal when American first became authorized nor the length of time it remained authorized. The record does not reveal what tax, if any, American paid when it first became authorized or during the period of its authorization. The record is clear that American was authorized until May 1, 1967, and the statute is plain that it was liable for its privilege tax levied by statute on the premiums it collected during the period of time in each calendar year it was so authorized. When its authority was revoked, its liability for tax on premiums thereafter collected was revoked, but its liability for what it owed on premiums collected while it was still authorized to do business in Arkansas was not revoked.

The statute is plain, logical and fair. It authorizes the granting of a privilege to do business and for a tax based on the volume of business done under the privilege. No policies can be sold until authority to do business is granted. No premiums can be collected until policies are sold and no premium tax can be levied under the statute until after policies have been sold, premiums collected, and report made “with respect to premiums so received while an authorized insurer in this state.” What the statute actually authorizes, in plain everyday language, is a privilege to do business now, with the right to pay later.

The appellee seems to argue that by virtue of being once authorized to do business in the state of Arkansas, a foreign insurance company is fully apprised of the Arkansas statute and that such company which surrenders its charter, or has its charter revoked, continues to remain liable for an annual tax on premiums collected each calendar year as long as the policies remain in force and the premiums are paid. We reject this argument because the tax levied by the statute is based.on premiums received while an authorized insurer in this state and is not based on premiums received on policies sold while an authorized insurer in this state. If the statute permits an unauthorized foreign insurance company to continue collecting premiums without paying taxes, that is a legislative problem and not a judicial one. The tax levied under the statute as written is a privilege tax as above stated and is not an income tax.

The record indicates that the $9,296.48 judgment for premium tax due for the calendar year ending December 31, 1967, was based on premiums received by American during the entire calendar year of 1967, including such premiums that may have been received between May 1, 1967, when its authority was revoked, and December 31, 1967, the end of the calendar year. After May 1, 1967, American was no longer an authorized insurer in this state and was not required under the statute to report as to premiums received after that date. The judgment of the trial court is affirmed as to the tax for the calendar year 1966, and this cause is remanded to the circuit court for a determination of, and entry of judgment for, the tax due on premiums collected by American while it was authorized to do business in Arkansas prior to May 1 during the calendar year 1967.

Affirmed in part and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Farris COFFMAN et al
    5-4985
    445 S. W. 2d 92
    Opinion delivered October 6, 1969

      Thomas B. Keys and Virginia Tackett, for appellant.

      George J. Gambiano, for appellees.
   J. Fred Jones, Justice.

This is another eminent domain case from the Conway County Circuit Court. Judgment was entered on a jury verdict for more than twice the amount the Arkansas Highway Commission paid into the registry of the court as just compensation and the Commission has appealed.

Mr. and Mrs. Coffman owned a ten acre tract of land inside the city limits of Morrilton, with 450 feet of the land fronting on state Highway No. 9. The Coffmans had three residential buildings on the land facing the highway. For the purpose of widening and improving Highway No. 9, the state Highway Commission condemned a strip of the Coffman land consisting of .66 acres along the side of the highway extending the entire length of the highway frontage and to within three to six feet of the Coffman buildings. The Commission paid into the registry of the court $7,500 as estimated just compensation.

At the trial on claim for additional damages, Mr. Coffman testified that his property had been damaged in the amount of $21,500 based on the difference in the market value before and after the taking. His expert witness, on the same basis, testified that the damage amounted to $18,925. Two expert appraisers testified for the Commission, and on the before and after value theory testified that the damage amounted to $7,150 and $7,500 respectively. The jury returned a verdict for $17,-000 and judgment was entered thereon.

The Commission relies on two points for reversal, as follows:

“There is no substantial evidence to support the verdict.
Appellant’s motion for change of venue should have been granted.”

We quickly dispose of the second point as we did in Ark. State Highway Comm’n v. Duff, 246 Ark. 922, 440 S. W. 2d 563. The Commission simply failed to follow the mandatory procedure in petitioning for a change of venue as set out in Ark. Stat. Ann. § 27-701 (Repl. 1962).

In examining the record for substantial evidence to support the verdict, we do not consider Mr. Coffman’s testimony to be substantial evidence. On cross-examination Mr. Coffman demonstrated a lack of sound basis for his opinion as to the difference in the value of his land before and after the taking.

“Q. Do you know how you figured this was worth $45,000.00?
A. I still say I wouldn’t take that for it. If I wouldn’t take it, I guess it’s worth that. That’s all I can tell you.”

Mr. Lloyd Pearce qualified as an expert “fee appraiser” of real estate and he testified as an expert for the Coffmans. Mr. Pearce testified in detail as to three residential structures on the Coffman property and as to their proximity to the highway before and after the taking. He testified that each house was built facing the highway with a width in highway frontage of about 80 feet per site. He testified that before the taking the houses complied with set back ordinances of the City of Morrilton requiring a 25 foot yard set back, and that after the taking the right-of-way comes within three to six feet of the buildings, and as a result, the buildings no longer comply with the set back ordinance. He testified that mortgage loans could not be obtained from lending agencies because the property no longer complied with the ordinance, and that if one or all the houses were destroyed they could not be rebuilt in compliance with set back ordinances without replatting the three plots into one building plot fronting on a side street rather than the highway. Mr. Pearce was of the opinion that the ten acre tract had a before value of $42,500, and that the improvements had a before value of $30,500, making a total market value before the taking of $73,000. He valued the land at $37,300, and the three residences at $16,775 after the taking, giving a total value of $54,075 after the taking. He testified that in his opinion the total damage amounted to $18,925.

On cross-examination Mr. Pearce testified that he valued the two acres fronting on the highway at $8,000 per aere-, that the 2/3 of an acre actually taken was worth $5,200 and accounted for the actual difference in the value of the land itself. He based his $8,000 per acre value partially on a sale of similar property for a nursing home for $8,000 per acre and also on the present value of a lease of some of the subject property to the Corps of Engineers. Aside from the $5,200 estimated value of the land actually taken in fee, Mr. Pearce’s testimony as to the remaining damages pertained to the reduced value of the houses because of loss in yard space due to the right-of-way extending to within three to six feet of the houses.

Mr. Charles Scott, one of the Commission’s experts, testified that the total value before the taking was $42,350. He broke his before taking value down to $6,000 per acre for the two acres fronting on the highway, $9,600 for the remaining eight acres, and $20,750 for the improvements. He valued the land at $20,156, and both the land and improvements at $35,200 after the taking, leaving a difference in before and after value of $7,150, which he testified was the extent of damages because of the taking. Mr. W. E. Hayes also testified as an expert for the Commission and arrived at a difference in the before and after market value of $7,500 as the total amount of damages caused by the taking. He arrived at his conclusion on substantially the same basis as did Mr. Scott.

Mr. Scott and Mr. Hayes arrived at their values through a number of comparable sales which Mr. Pearce apparently overlooked. Mr. Pearce testified that he examined many sales in the area but he only testified as to the rest home sale. He was not asked about any of the others. Mr. Scott and Mr. Pearce differed in figuring the acreage in the rest home sale, resulting in a difference of $8,000 per acre as testified by Pearce and $5,682 as testified by Scott. They both took the dimensions from the recorded deed of conveyance but neither testified as to what the dimensions were. Pearce figured it to be 1.25 acres and Scott figured it to be 72,600 square feet or 1.669 acres.

It is obvious from the record that the greatest differences between the expert witnesses related to difference in the market value of the improvements in relation to the highway before and after the taking. The testimony was directed to the market value of the houses as they were with front yards before the taking, and as they now stand, without front yards, in relation to the highway. Some testimony was directed to the cost of replacing the houses in the event of destruction, hut the cost of simply moving the houses further back from the new highway was not considered in measuring the before and after value, and Mr. Pearce’s testimony constitutes some substantial evidence that as the houses now stand, the entire property would sell for $17,000 less than it would have sold for prior to the taking.

Tn Ark. State Highway Comm’n v. Johns, 236 Ark. 585, 367 S. W. 2d 436, we said:

“It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowners’ expert witnesses had no reasonable basis for their opinions.”

We conclude that the Commission’s attorney failed to show that the landowners’ expert witness, Pearce, had no reasonable basis for his opinion in this case.

The judgment is affirmed .


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

text:
    Mary Elizabeth SMITH v. NORTHEAST RANDOLPH DEVELOPMENT CORP.
    5-4979
    445 S. W. 2d 87
    Opinion delivered October 6, 1969

      Russell & Hurley, for appellant.

      Dudley & Burris, for appellee.
   Conley Byrd, Justice.

Appellant Mary Elizabeth Smith appeals from a decree of specific performance in favor of appellee Northeast Randolph Development Corporation, an Arkansas corporation not for profit, and for reversal relies upon the following points:

“I. The option is void for lack of consideration.
“II. The original option, if executed, was never exercised. The option was altered in a material form.
“TII. The appellant did not possess sufficient mental capacity to contract.
“IV. An option taken for $1.00 is a continuing offer to sell that can be revoked at any time. The option was revoked by the appellant
“V. The appellee at the time of the execution of the contract had no legal entity to contract.”

The record shows that on June 16, 1967, Mrs. Smith signed an option to sell real property on a form prepared by the United States Department of Agriculture for the Farmers Home Administration.

All dealings with Mrs. Smith were had through Leonard McCright, the County Supervisor for the Farmers Home Administration and one of her neighbors, Mr. R. L. Spencer. Mr. McCright and Mr, Spencer on Feb. 8, 1968, delivered, on a Farmers Home Administration form, an acceptance of the option and obtained Mrs. Smith’s abstract of title. This acceptance was in accordance with the terms of the option. The exhibits indicate that Mr. McCright received a letter from Mrs. Smith’s St. Louis attorney on Feb. 19, 1968, which was answered by Mr. John Burris, appellee’s attorney of record, on Feb. 22, 1968. On Feb. 29, the St. Louis attorney formally declared the option terminated. Other exhibits show a tender of the $1,600 by the appellee on March 4,1968.

The option is not abstracted but the description in the decree refers to a plat of the town of Maynard and to streets and cross fences. Leonard McCright testified that the corrected legal description was from the abstract and that the corrections were made later. He says that Mrs. Smith went out on the property with them and that they stepped off the various distances as pointed out by her. Mr. McCright’s exact testimony is as follows:

“Q. But you do not want the description that Mrs. Smith originally signed?
“A. It’s off of her abstract.
“Q. Now let me ask the question again. You do not desire to take title to the property on the description as originally drawn up on this document that Mrs. Smith signed?
“A. You mean the federal government would not.
“Q. The federal government?
“A. No, they would not; they would not because it............No, they would not.
“Q. Is it a bad legal description?
“A. Yes.
BY MR. BURRIS:
“Q. Mr. McCright, both the description that was submitted in the deed and the description here describes the same tract of land, does it not?
“A. Yes, sir.
BY MR. RUSSELL:
“Q. Mr. McCright, working with real estate descriptions are you in a position to say that the description as originally written on the option is the same description as the changed description?
“A. Of course, you can see that it is not.
THE WITNESS:
“A. The thing of it is, it is the same land; and working with real estate descriptions, I do know that.”

As we view the record, appellant’s first point passes out of consideration because the overwhelming testimony in the record shows that the offer was accepted before it was revoked. This also disposes of appellant’s point IY for reversal. Points III and Y are raised for the first time on appeal and consequently are not considered. This leaves only appellant’s contention that the option was altered in a material form. With reference to the legal description we point out that the record does not contain a plat of the town of Maynard nor a survey of the property involved. Is this situation it is impossible for us to tell whether the alteration materially altered the 175 sq. ft. exception or whether it described the same property by commencing merely at a different point and going in a different direction to circumscribe the same property, as testified by Mr. Mc-Cright.

It’s true that Mr. McCright said that the description as originally drawn by him was a bad legal description, but we cannot tell whether he meant that the description was void, that it did not properly describe the property according to some Agricultural Department requirement, or that it did not agree with the abstract.

Futhermore, the acceptance merely refers to the option granted on the 16th day of June 1967. The other testimony in the record shows that Mr. McCright did not have the abstract until the acceptance was delivered. Because of these facts we cannot say that the option was altered in such material form before delivery of the acceptance as to constitute a counter proposition instead of an acceptance.

In Woods v. Spann, 190 Ark. 1085, 72 S. W. 2d 850 (1935), we said:

“A material change is one which causes the instrument to speak a different language in legal effect from that which it originally spoke. It is the effect upon the instrument, and not the particular manner in which it is done, which is material, and therefore an alteration, to be material, must not only be an actual alteration, but must be in a material part of the instrument, and must affect the rights' and liabilities of the parties.”

Further, under the evidence here we are not in a position to say that the interlineations constituted a material alteration that would void the contract.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I agree that Points III and V should not be considered on this appeal for the reasons stated. Consideration of other points for reversal is not possible by reason of the failure of appellant to abstract the option in question in compliance with Rule 9 (d).

On the basis of the testimony abstracted, it would appear that there was merit in the contention that the option was withdrawn before acceptance. 'This is because the testimony abstracted would indicate that the option was granted to R. L. Spencer and accepted by appellee. Since it was an option granted for $1.00, it was a continuing offer subject to revocation at any time before acceptance. Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299; Kelley v. Coldren, 226 Ark. 266, 290 S. W. 2d 424. In the absence of an abstract of this option we cannot say to whom it was granted or upon what terms. Therefore, I would affirm the judgment of the trial court in accordance with Rule 9 (e).


author: Conley Byrd, Justice.

text:
    Virgie TYREE, Adm’x et al v. W. O. FOWLER et al
    5-4986
    445 S. W. 2d 99
    Opinion delivered October 6, 1969

      Fletcher Long, for appellants.

      Giles Fearing, for appellees.
   Conley Byrd, Justice.

The sole issue on this appeal by appellants Virgie Tyree, Vedith Bowling, Noma Adams, Mildred Leamon, Earl Thomas, and Ellis Thomas is whether appellees W. O. Fowler and Doris Fowler, his wife, have sustained the burden of proof to establish that appellants waived the completion date in a real estate sales contract.

The record shows that Ella Ellis Haynie was the common source of title to the 128 acres here involved. Appellants’ ancestor, Dora Thomas, was one of the heirs of Ella Ellis Haynie. After the death of Dora Thomas, appellants together with the other heirs of Ella Haynie, contracted with appellees on March 27, 1963, to sell the 128 acres. The price was $10,210.00, payable $500.00 cash earnest money and the balance of $9,740.00 to be paid on delivery of good title. Possession was to be delivered to the buyers immediately. Since it was contemplated that the sellers would be unable to perfect their title until the fall of 1963, the contract provided that if the sellers were unable to remedy the title defects by December 20, 1963, the contract should terminate, the earnest money should be returned to the buyers, and the sellers would be entitled to a one-fourth crop rental for 1963.

The lawyer who drew the contract testified that it was contemplated by all parties that a confirmation of title suit would be filed to clear the title of Ella Haynie since she had no record title and that probate proceedings of Dora Thomas’s estate would have to be completed before the sale could be consummated. His testimony shows that he did not receive enough information from the sellers to file the confirmation of title suit until March 1964 and that the suit, involving some 57 defendants, was not completed until September 1965. Furthermore, before the six months non-claim statute ran on the estate of Dora Thomas in March of 1964, the Welfare Commissioner of Arkansas filed a $5,000.00 claim. On August 4, 1967, the Welfare Department withdrew its claim.

The undisputed facts show that after completion of the confirmation suit, the other Ella Haynie heirs conveyed their four-fifths interest to appellees. Although the earnest money check payable to the Dora Thomas estate was issued on March 27, 1963, appellants did not cash it until January 31, ,1964. In September 1967, following withdrawal of the Welfare Department’s claim, appellants’ attorney wrote appellees asserting a one-fifth ownership and demanding an accounting for rents. They commenced the present partition suit and request for accounting in April 1968, in which appellees cross-complained for specific performance.

The 1963 crop proceeds amounted to $1,467.52 from which, appellants concede, cost of poison and fertilizer, of $491.78 should be subtracted. This leaves crop proceeds of $975.74, of which appellants would only be entitled to receive one-fifth of one-fourth, or $48.78.

Therefore as we understand the facts, appellants while making little or no effort to comply with the terms of their contract before the December 1963 deadline, thereafter cashed the earnest money check and have since failed and neglected to return the same, while appellees have stood by ready to perform their part of the agreement. Under the circumstances, a preponderance of the evidence supports the Chancellor’s finding that appellants waived the December 1963 condition of their contract.

Affirmed.


author: Frank Holt, Justice.

text:
    Clarke REED et al v. Ches WILLIAMS, d/b/a WILLIAMS DIESEL SERVICE
    5-4983
    445 S. W. 2d 90
    Opinion delivered October 6, 1969

      Shaver, Tackett, Young & Patton, for appellants.

      Rieves & Rieves, for appellee.
   Frank Holt, Justice.

This is an action to recover damages for breach of a contract. In February 1967 appellee entered into a landclearing contract with the owner of certain lands. Appellee agreed to clear 1,800 acres for agricultural purposes by July 15, 1967, unless prevented by weather conditions. The contract price was $70,000. Thereafter, the appellants purchased the land with an assumption of the grantor’s obligation under the contract. On July 1, 1967, the appellants ordered the appellee to remove himself, his employees and equipment from the property. The appellee brought this action against the appellants alleging that he had performed his obligation under the contract up until that date; that appellee had been paid only $13,000; that appellee had cleared approximately 50% of the acreage and that as a result of appellants’ breach of the contract, appellee had been damaged in the sum of $39,697. The appellants entered a general denial and counterclaimed for $37,150 in damages based upon the allegation that appellee had breached the contract. These issues were presented to a jury which returned a verdict in favor of the appellee and assessed his damages at $17,000. The jury found against the appellants on their counterclaim.

For reversal appellants ’ sole contention is:

“The Court erred in giving Appellee’s Requested Instruction No. 3, which related to anticipated profits, in that the testimony regarding profits was too speculative to warrant the giving of such an instruction.”

The legal principle controlling here was recently reannounced .in the case of Farmers Cooperative Assn. v. Phillips, 241 Ark. 28, 405 S. W. 2d 939 (1966), where we said:

“We are committed to the rule in Black v. Hogsett, 145 Ark. 178, 224 S. W. 439 (1920) and subsequent cases, to the effect that where one party to a contract is prevented from performing by the fault of the other party, he is entitled to recover the profits which the evidence makes it reasonably certain he would have made had the other party carried out his contract.”

See, also, Brodie et al v. Watkins and Wife, 33 Ark. 545 (1878). In Sumlin v. Woodson, 211 Ark. 214, 199 S. W. 2d 936 (1947), we said:

“* # * When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits.”

There appears to be no dispute between the parties as to the rule of law which governs in the case at bar.

Appelee and other witnesses, who were experienced in clearing land, testified that 850 to 900 acres or approximately 50% of the land was cleared and made fit for agricultural purposes at the time of the breach of the contract by appellants. An employee of a lumber company who had had 26 years experience in measuring or cruising timber and surveying land made his measurements by chain and stated that 845 acres or 47% of the 1,800 acres were cleared in accordance with the terms of the contract. Appellants presented evidence that appellee had cleared only the “easy part” of the land and that the expense to appellee in clearing the remainder would have been much greater. The appellee adduced evidence, however, that the land he had already cleared was a more difficult task than clearing the remainder of the acreage. It is undisputed that appellee’s expenses for the work performed as of the date of the cancellation of the contract totaled $21,478.28. Based on a 50% completion, appellee testified that he would have incurred additional expenses of $17,302.12 in completing the contract. This represented the same amount of expenses previously incurred for clearance of half of the land, less the expense of hauling equipment to the job-site. According to appellee’s computations or evidence, the contract price of $70,000, less the total of the incurred and projected expenses [$21,478.28 and $17,-302.12] would leave a profit of $31,219.60. When the $13,000 which appellee had received from the appellants is subtracted from this profit figure, there would remain a balance of $18,219.60 owing to the appellee. The jury awarded $17,000.

In 22 Am. Jur. 2d, Damages, § 172, after enunciating the general rule, with which Arkansas is in accord, it is said:

“* * * While lost profits will not be allowed as damages if the trier of fact is required to speculate as to the fact or amount of profits, courts state that less certainty is required to prove the amount of lost profits than is required to show that the profits were lost.”

When we review the evidence which is most favorable to the appellee, as we must do on appeal, the appellee’s proof was sufficient-to take the question of profits out of the realm of speculation and conjecture and presented to the jury a reasonably complete set of figures to support the jury’s finding as to anticipated profits.

Affirmed.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    Cleo Watson McDEARMON v. GORDON & GREMILLION and Ervin & Bengel, Attorneys
    5-4944
    445 S. W. 2d 488
    Opinion delivered October 13, 1969

      Bowie & Boyce, for appellant.

      Gordon & Gremillion and Erwin & Bengel, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to the validity of a contingent fee contract in a domestic relations case. On November 14, 1967, George W. Mc-Dearmon, a resident of Shoffner, Jackson County, Arkansas, instituted suit for absolute divorce in the Jackson County Chancery Court against his wife, Cleo Watson McDearmon, appellant herein, a resident of Louisiana, alleging general indignities pursued to the extent as to render his condition in life intolerable. Mrs. McDearmon had already instituted a suit in Louisiana for legal separation through her attorney, Amos K. Gordon, Jr., who practiced law in East Baton Rouge Parish, Louisiana. Shortly after the filing of Mr. McDearmon’s complaint, Mrs. McDearmon retained the services of an Arkansas law firm, and this firm, on November 29, 1967, filed an answer, denying the allegations of the husband’s complaint, and asserting desertion on the part of Mr. McDearmon, as well as physical abuse. It was further alleged that, if any mistreatment toward the plaintiff existed on her part, same had been condoned and forgiven by Mr. McDearmon, and they had since cohabited, and she had been a good wife. It was further asserted that considerable property was owned by the parties, having been acquired while they lived together as husband and wife in the state of Louisiana, a state with a community property law; that the property consisted of both personalty and realty. She prayed that she he given one-half of the personal property, and one-half of the realty, and the pleading specifically mentioned a number of items of personal property presently located in the state of Arkansas. Subsequently, after Mr. Mc-Dearmon amended his complaint, appellant amended her answer, and filed a counterclaim, asking that she he awarded an absolute divorce.

Around the middle of April, 1968, Mrs. McDearmon dismissed the Arkansas law firm, and told Mr. Gordon that a Newport attorney, Claude M. Erwin, had been recommended to her, and Mr. Gordon called Erwin, and retained him. On April 22, Mrs. McDearmon, by letter, dismissed Mr. Gordon as her attorney, “because everything had been dragging and nothing had been accomplished.” According to Gordon, the appellant, on May 13, 1968, requested him to resume his representation. The lawyer testified that he had previously been dismissed four times without any pay, and he, therefore, agreed to resume as her attorney only if she met two conditions. From the record:

“I told Mrs. McDearmon that I would not consider resuming representation of her unless she gave me an unrestricted power of attorney to come up here and negotiate, if I could, negotiate a settlement of the property; also, not just to negotiate the settlement but also to sign it, because I had had too much experience with her vacillation.
“* * * the other condition which she met was that she give me a contract of employment and, in that contract, the bottom limit which I could go down to in negotiating was set forth.”

Mrs. McDearmon agreed to these conditions, and it is this contract of employment that occasions this litigation. The provisions of the employment agreement, aside from formal recitations, are as follows:

“That the parties hereto, being client and attorney at law; in a joint effort to conclude that matter known as ‘George W. McDearmon versus Cleo Watson MeDearmonNumber 5539 in the Chancery Court of Jackson County, Arkansas, do hereby agree as follows:
1) Mrs. Cleo Watson McDearmon shall give to Amos K. Gordon, Jr., a power of attorney irrevocable for thirty days from date thereof, to enter into a property settlement with her husband, George W. McDearmon on such terms and conditions as said agent may, in his sole discretion, deem necessary, desirable and/or proper or convenient, provided however, that the minimum amount under said property settlement which shall he received hy Mrs. Cleo Watson McDearmon shall be the sum of Four Hundred Eighty Thousand ($480,-000.00) Dollars.
2) The parties hereto do hereby agree that the negotiations, the manner in which same are conducted and the persons conducting said negotiations, as well as those present at the negotiations, whether or not taking part in same, shall be determined solely by Amos K. Gordon, Jr., and his judgment as to such procedures and participation in & attendance at said negotiations shall be final, these conditions being part of the consideration for which said Amos K. Gordon, Jr. agrees to continue to represent Mrs. Cleo Watson McDearmon in this matter.
3) It is further agreed that should a settlement as contemplated be executed, Mrs. Cleo Watson McDearmon will pay to Amos K. Gordon, Jr., a fee of Forty Five Thousand & no/100 ($45,000) Dollars, * * *.”

The agreement further sets out that Gordon shall negotiate and pay a compromise fee to two attorneys at Baton Rouge, Louisiana, who formerly represented Mrs. McDearmon. It is then provided:

“In the event that all efforts of Amos K. Gordon, Jr., attorney, to secure .a property settlement should fail, said attorney shall be compensated at the rate of Thirty ($30.00) Dollars per hour for the time spent in behalf of Mrs. Cleo Watson McDearmon from October 30, 1967, to the date of termination of his representation, this compensation to be in addition to all expenses incurred in pursuit of the affairs of Mrs. Cleo Watson McDearmon.”

The instrument was signed by Gordon and Mrs. Mc-Dearmon on May 13, 1968, at Baton Rouge, Louisiana.

Mr. Gordon testified that, pursuant to this agreement, he arranged a settlement conference with counsel for Mr. McDearmon, and, on June 3, 1968, together with Mr. Erwin, went to the office of McDearmon’s attorney, and negotiated a tentative settlement, subject to the approval of McDearmon, this settlement providing that Mrs. McDearmon would receive property of the value of $481,976.50. The lawyer said he tried to discuss this settlement with appellant, but she refused to sign it. Although empowered (under the agreement and power of attorney executed by Mrs. McDearmon) to enter into the settlement himself, this could not be done because it developed that Mr. McDearmon had stipulated that appellant herself must sign it. According to Gordbn, when refusing to approve the settlement, appellant told him that she had also dismissed Erwin as her attorney.

About June 17, 1968, Gordon was discharged by Mrs. McDearmon, and he received a telephone call from Mr. McDearmon’s counsel, informing him that appellant had come to his (McDearmon’s attorney) office without representation, her husband being with her, and the two had agreed upon a settlement.

It appears that the settlement obtained by appellant was very similar to that which Mr. Gordon testified he presented to Mrs. McDearmon. Thereafter, Mr. Erwin filed a petition setting out the work done on behalf of appellant and the fact that Mrs. McDearmon was unhappy with his services; he asked that an order be entered relieving Mm from further responsibilities, alleged that the reasonable value of the services rendered by him was $1,000.00, and asserted that he was entitled to a lien on the properties wMch were the subject matter of the compromise settlement. Gordon also filed a similar petition, based upon the contract heretofore quoted, and this appellee likewise gave notice that he was claiming a lien on the property. On June 21, both McDearmon and Mrs. McDearmon executed a waiver and entry of appearance, and on June 26, 1968, a decree was entered awarding appellant an absolute divorce from Mr. McDearmon, and further approving the property settlement and separation agreement entered into between the parties on June 21, 1968. The court further found that appellee Gordon fully discharged his duties as counsel for Mrs. McDearmon, and was entitled to the $45,000.00 she contracted to pay Mm, and that Gordon should have a lien upon any properties received by her in a settlement and approved by the decree of the court. It was further found that Mrs. McDearmon’s original Arkansas attorneys were entitled to a $15,000.00 fee (of wMch $500.00 had already been paid), and that the balance of $14,500.00 was due these attorneys out of the $45,000.00 sum; further, that Mr. Erwin had been retained by Gordon, and the former should be paid from the fee awarded this Louisiana attorney. From the decree so entered, comes this appeal. Only one point is relied upon, vis., that the court erred in enforcing the contingent fee agreement. There are two questions to be determined in tbis litigation, and we proceed to a discussion of the first, which is ‘ ‘ The law of which state, Arkansas or Louisiana, is controlling?” As pointed out in 50 A. L. E. 2d 258:

“The general adopted view is that unless a contrary intention is expressed in the contract, the law of the place of performance of a contract governs the question whether it has been breached or otherwise terminated or repudiated.”

Arkansas very definitely has taken this view. In Sizer v. Midland Valley Railroad Company, 141 Ark. 369, 217 S. W. 6, this court said:

“Finally, it is insisted that the contract was made without the State and for that reason is not enforceable. But little need be said with regard to this phase of the case. The contract contemplated that it was to be performed in Arkansas, and the suit was in fact brought here. Therefore the law of this contract was in Arkansas. Midland Valley Rd. Co. v. Moran Bolt & Nut Manufacturing Co., 80 Ark. 399. In that case the court held that a contract is to be construed with reference to the law of the place of performance and not of the law of the place where it was originated.”

See also Crown, Central Petroleum Corporation v. Speer, Chancellor, 206 Ark. 216, 174 S. W. 2d 547, where we said:

“The general rule is that such a contract is to be construed with reference to the law of the place of performance, ‘and not of the law of the place where it was originated.’ ”

In the case before us, it is quite obvious that, though the agreement was executed in Louisiana, it was to be performed in Arkansas. Mr. McDearmon was in Arkansas and, except for the homeplace, all assets were in Arkansas. Mainly, the divorce case was to be heard in Arkansas, and the contract itself between Gordon and appellant recites:

“That the parties hereto, being client and attorney at law, in a joint effort to conclude that matter known as ‘George W. McDearmon versus Cleo Watson McDearmon, Number 5539 in the Chancery Court of Jackson County, Arkansas, do hereby agree as follows: * *

We think it is clear that Arkansas law should apply. This brings us to the second question, which is the principal or main question presented for determination. Appellant asserts that the contract between Mrs. Mc-Dearmon and Mr. Gordon is void as against public policy, and therefore unenforceable. The rule is set forth in 30 A. L. R. 188, as follows:

“It is the policy of the law when differences arise between parties to a marriage that no obstacle should be placed in the way of their reconciliation. Consequently, it is not fitting that it should be for the interest of an attorney that there should be no reconciliation. If compensation for an attorney’s services is contingent on the securing of a divorce, or if the amount to be paid for his services is proportioned to the amount of alimony to be received, the attorney is in such a position that his interest would be against a reconciliation of the parties.
“A contract for the payment of a fee to an attorney, contingent upon his procuring a divorce for his client or contingent in amount upon the amount of alimony to be obtained, is void as against public policy.”

A number of states are listed, including Arkansas, as following the rule, though there have been slight modifications in some of these states.

In the Florida case of Sobieski v. Maresco (District Court of Appeal of Florida, Third District), 143 S. 2d 62 (1962), the Chancellor held a contingent fee contract between client and attorney “illegal, void, and unenforceable as against public policy.” The appellate court, on reviewing the trial court decision, said:

“The principal issue presented by this appeal is the validity of a contingent fee agreement in a matrimonial action. Neither counsel, in their excellent briefs, nor this court, by independent research, have discovered any Florida decision directly on this point. It does appear, however, that a number of other jurisdictions have passed on the validity of such an agreement and have almost universally declared such employment contracts void. The chancellor’s decree, here under review, is in accord with the majority opinion that attorneys’ contingent fee employment contracts in matrimonial actions are against public policy and therefore unenforceable. See: McCarthy v. Santangelo (1951), 137 Conn. 410, 78 A. 2d 240; In re Fisher (1958), 15 Ill. 2d 139, 153 N. E. 2d 832; Dannenberg v. Dannenberg (1940) 151 Kan. 600, 100 P. 2d 667; Baskerville v. Baskerville (1956) 246 Minn. 496, 75 N. W. 2d 762; State ex rel. Nebraska State Bar Ass’n v. Jensen (1960), 171 Neb. 1, 105 N. W. 2d 459; In re Smith (1953), 42 Wash. 2d 188, 254 P. 2d 464, 5 Am. Jur., Attorneys at Law, § 166; 30 A. L. it. 189. There appears to be no good reason why Florida should not join those states which hold such agreements void and unenforceable.”

The state of California, many years ago (1900), held that such a contract was void and unenforceable as against public policy. Newman v. Freitas, 61 P. 907, Theison v. Keough, 1 P. 2d 1015 (1931). In Krieger et al v. Bulpitt, 251 P. 2d 673 (1953), a rather unusual case, the defendant husband in a divorce action entered into an agreement with attorneys under a contingent arrangement that they should receive 10% of the appraised value of all property secured for him (but in no case should the fee be less than $5,000.00, nor more than $7,500.00). The court allowed the $5,000.00 minimum, distinguishing the case from Newman and Theison, the differences being pointed out in the subsequent case of Coons v. Kary, 69 California Reporter 712. There, the court explained that:

“* * * in Krieger v. Bulpitt, 40 Cal. 2d 97, 251 P. 2d 273, a judgment based on a contingent fee contract between attorneys and an impoverished husband to defend a divorce suit was upheld, against the attack of a third-party creditor of the husband. But the Krieger case differed in important respects from the present case: the husband, unlike the wife here, did not contest the legality of the contract; the contract was to defend, not to prosecute, a divorce action; and the amount of the judgment on the contract covered only the minimum retainer and did not include any contingent recovery. Thus, the ruling in the case only determined that the particular contract was not void on its face, that the judgment on thp contract could not he collaterally attacked by a third party (40 Cal. 2d at 101, 251 P. 2d at 673), and perhaps that the minimum retainer under the contract was separable from the contingency aspect of the contract and independently enforceable.”

The court reaffirmed its earlier holdings, stating:

“Although the broad statements against contingent fee contracts in matrimonial causes in Newman v. Freitas, 129 Cal. 283, 61 P. 907, 50 L. R. A. 548, have been somewhat qualified, the policy they express is still valid, a policy explained in Theison v. Keough, supra, as designed to discourage * * the activities of an interloper who might, by reason of a separate and individual interest in the proceeds of the community, be tempted to widen the breach between the spouses. * * *’
“Moreover, the usual justification for contingent fee contracts, that they assure legal representation which otherwise would not be available, does not apply to divorce causes, where the party without funds can be awarded attorney’s fees by the court.”

California’s public policy relative to divorce was stated as follows:

“A financial interest in furthering divorce is directly contrary to California’s public policy of preserving marriages, a policy reflected in the waiting period which follows the interlocutory decree of divorce and which is designed to provide a last opportunity for spouses to become reconciled before the entry of the final decree.”

Unquestionably, the practice of entering into contingent fees in divorce cases is condemned in nearly all jurisdictions. In reciting the authorities herein, it has been our purpose to show the extent to which such contracts have been disapproved nationwide. As far back as 1911, this court adopted the same view. In McConnell v. McConnell, 98 Ark. 194, 136 S. W. 931, quoting from the Michigan case of Jordan v. Westerman, supra, we said:

‘ ‘ Public policy is interested in maintaining the family relation, the interests of society requiring that such relation be not lightly severed,, and that families shall not be broken up for inadequate causes or from unworthy motives; and where differences have arisen which threaten disruption, public welfare and the good of society demand a reconciliation, if practicable or possible; and, for these reasons, a contract which tends to prevent such a reconciliation is void.’*

Appellees recognize our view, but assert that the fee of appellees did not depend upon the success of the litigation, and accordingly, the contract was not contingent. From the brief:

“Appellee was to have been paid regardless of whether or not appellant obtained her divorce, settled her community property interest or reconciled with the husband. The contract included fees not only for work that was to be performed in the future, but also for work that had already been performed by appellee and for which he had not been paid.”

It is then argued that the contract was not contingent because it is susceptible of division, i. e., severable. From the. brief:

“In the present case, the contract was, as shown above, not contingent, was in no manner based upon a successful outcome of the litigation and gave appellee absolutely no interest in the suit and no basis for or interest in preventing a reconciliation.”

',We cannot agree with appellees. In the first place, it is evident that the contract was entered into as a matter of concluding the divorce suit filed by Mr. McDearmon; the opening paragraph, heretofore quoted, makes that fact clear. It will also be remembered that Mrs. McDearmon sought an absolute divorce in her counterclaim, and as heretofore mentioned, was awarded the divorce. To say that this contract was not entered into in contemplation of divorce, would be to place form before substance. It is true that the contract did not state that the fee for appellees was dependent upon the successful outcome of the litigation, but it could not be more clearly set out that the $45,000.00 fee sought by appellees was entirely dependent upon Mr. Gordon’s obtaining a settlement in the minimum amount of $480,-000.00. Any other holding would be violative of the plain meaning of the English language. It may be that the particular attorney here involved would not be influenced by the provision under discussion, but the policy of the law is to prevent an attorney from having a basis for discouraging a reconciliation.

As for an interest, appellees certainly have an interest in the suit; they have a financial interest in the property received hy this appellee, for they sought a lien, and the court declared a lien on such property.

We do not quite understand the argument that the contract is severable, therefore not contingent, and accordingly valid. This argument has reference to the fact that, while Provisions 1). and the first part of 3) relate to the fee of $45,000.00 based on the $480,000.00 settlement, the final paragraph in Provision 3) sets out that if the attorney fails to secure the minimum $480,000.00 property settlement, he shall be compensated at the rate of $30.00 per hour for the time spent in behalf of Mrs. McDearmon from October 30, 1967, to the date of termination of his representation. Our perplexity as to the severability argument is based on the fact that we are not asked to uphold the $30.00 per hour compensation; rather, the entire contention in appellees’ brief is that Mr. Gordon carried out the provisions of obtaining the $480,000.00 settlement, and is thus entitled to the $45,-000.00. Therefore, it makes little difference whether the contract is severable, and the per hour provision valid, for we are being urged to uphold a portion of the contract which, under Arkansas case law, is absolutely invalid. We express no opinion on the validity of the portion of Provision 3), relating to compensation at the rate of $30.00 per hour, since it is not really involved, for this clause was only effective if Mr. Gordon did not perform fully under the agreement, and he insists that he did perform, never once arguing that he is entitled to the $30.00 per hour.

We think it only fair to say that the record discloses that all attorneys, whose interests are here involved, have spent considerable time and effort in behalf of their client, the transcript disclosing no valid reason for their discharge, and nothing herein contained is intended to be construed to the effect that we are passing upon the proper amount of the fee to be awarded. That question is not before us in this litigation, and can only properly be passed upon in the first instance by the Chancellor.

For the reasons heretofore set out, that portion of the decree, awarding attorneys’ fees to appellant’s lawyers, is reversed, and the cause remanded to the Jackson County Chancery Court, with instructions that the court conduct an evidentiary hearing for the purpose of determining a fair and just fee on a quantum meruit basis.

It is so ordered.

Fogleman and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. My disagreement with the majority opinion goes both to the holding that the contract here is contingent upon the granting of a divorce and also because the fee awarded is not affirmed upon the record before us on quantum meruit. We ordinarily affirm a chancellor’s decree when correct even though it is based on an untenable ground, Martin v. Taylor, 188 Ark. 114, 65 S. W. 2d 4 (1934) and Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S. W. 760 (1922).

Quantum Meruit

The record here shows that at the time the contract was entered into, Mrs. McDearmon had hired and fired the law firm of Bankston and Gladney of Baton Rouge, Louisiana, the law firm of Hodges & Hodges of Newport, Arkansas and had hired and fired appellee, Amos K. Gordon four times.

David Hodges of the firm of Hodges & Hodges testified that when he began representing Mrs. McDearmon, the only property settlement offer from her husband was for $350,000.00.

Mr. Gordon testified that it was impossible to keep track of all the time he spent on the ease, but the records he did keep showed a total of 552 hours.

While the total contract price was $45,000.00, the trial court deducted $15,000.00 for Hodges & Hodges, required Gordon to satisfy a $65,000.00 claim of Bankston & Gladney, allegedly compromised for $5,000.00, and to settle the $1,000.00 claim of Claude Erwin. Thus the actual judgment in favor of Gordon amounts to only $24,000.00. This is a modest allowance for the services performed by Mr. Gordon. The record here shows that he obtained a settlement in excess of $481,000.00, a $131,-000.00 increase over the offer outstanding at the time David Hodges was employed. Even Hodges was not employed until after Mr. Gordon had done substantial work and had been hired and fired four times.

Furthermore, we know that a lawyer’s overhead expenses generally run from 35% to 45% of his gross receipts. Therefore when we consider the 552 hours for which Mr. Gordon kept time, we find that on the basis of a 40-hour week he has worked approximately one-third of a year for an income of $13,200.00 to $15,600.00, and if any time he allowed for nonproductive days and vacation time, he will have worked more than that for Mrs. McDearmon. Two such clients as Mrs. McDearmon in one year would be about all any lawyer could handle. My personal opinion is that the amount of the fee here awarded is most modest when considered from a quantum meruit standpoint under the record before us. In fact the record could support an increased award except for the limitation of the pleadings.

Contingent Fee

The majority opinion in characterizing this contract as contingent on a divorce ignores the fact (1) that a wife can enforce a separation of community property under the laws of Louisiana during coverture and without a divorce; (2) that under the compulsory counterclaim law of Arkansas, Ark. Stat. Ann. § 27-1121 (Repl. 1962), Mrs. McDearmon had to assert her separate property rights in the Jackson County divorce action, brought by her husband, at the time the contract was entered into or be forever barred; and (3) that there is a presumption in favor of the legality of a contract rather than the illegality thereof.

The basic Louisiana Authority for the separation of property by the wife is Article 2425 et seq. of the Louisiana Civil Code. In Gastauer v. Gastauer, 131 La. 2 (1912), where it was shown that the husband had abandoned the matrimonial domicile, the court in allowing a separation of property during coverture said:

“The right of a wife to demand a separation of property is not dependent upon the actual possession by her of separate property, or upon the existence of any claim against her husband for the reimbursement of paraphernal funds. It is enough that she show that the habits and circumstances of her husband render such separation necessary in order to enable her to preserve for her family the earning that she may derive from her separate industry and talent; ...”

See also Daggett, The Wife’s Action for a Separation of Property, 5 Tul. L. Rev. 55 (1930), and Morrow, Matrimonial Property Law in Louisiana, 34 Tul. L. Rev. 3, 32 (1959), § 7, Admissibility of Actions Between Husband and Wife During Subsistence of Marriage.

The facts here show that at the time the contract was entered into, the husband’s action for divorce was pending in the Jackson County Chancery Court, and that David Hodges, whom Mrs. McDearmon had recently fired, had entered her appearance therein. Therefore under our compulsory counterclaim law, Ark. Stat. Ann. § 27-1121, Mrs. McDearmon was forced to file and pursue a counterclaim therein for. any property rights she might wish to obtain, including any individual personal property which her husband might have in his possession, such as negotiable notes, or for the purpose of declaring a resulting trust. Consequently any contract for legal services to be rendered for her would have to contemplate some action being pursued in the divorce action or all of her rights would be lost.

Furthermore, in Stroud v. Pulaski County Special School District, 244 Ark. 161, 424 S. W. 2d 141 (1968), we pointed out that the law will not presume that the parties to a contract intended an illegal act. It is pointed out in 17 Am. Jur. 2d Contracts % 238 that there is a presumption in favor of the legality of a contract unless the illegality appears upon its face.

I can find nothing on the face of the contract, set forth in the majority opinion, that shows that payment of the fee was contingent upon the granting of a divorce. Neither is there any testimony showing that payment thereof was contingent on the granting of the divorce. From the contract and the testimony, the only evidence is that Gordon was employed only to obtain a separation of the community property acquired under the laws of Louisiana.

Thus when we give credence to the presumption and that our law compelled the wife and her counsel to pursue any legal remedy for a separation of her property in the divorce action, I think we are doing an injustice to the patient counsel who continued to represent Mrs. McDearmon after being fired so many times by suggesting that he by his contract was preventing a reconciliation cf the parties or was encouraging the granting of a divorce.

Fogleman, J., joins in this dissent.

      McDearmon’s attorney testified that he informed the court of the requested appointment from Mr. and Mrs. McDearmon, and that the two came to his office, stating that they- had reached an agreement, and he was furnished a hand-written copy of the notes, went over their agreement with them, item by item, and Mrs. Mc-Dearmon was very carefully questioned about the fact that she did not want representation.

      In appellee’s brief, it is asserted that the two compromise agreements were substantially identical, appellees stating:
      “* * * The only difference being that under the Gordon compromise, appellant would have received one-half of all of the cash, i. e., approximately $46,324.33 while under the McDearmon compromise, she received only $32,000.00.”
      This was disputed by both Mr. and Mrs. McDearmon, Mrs. McDearmon stating that the settlement arranged by Gordon was about $43,000.00 less than the minimum of $480,000.00, and Mr. Mc-Dearmon testifying that, under the proposed settlement Mr. Gordon had obtained, Mrs. McDearmon would have received $436,213.88, which was $44,000.00 less than the minimum demand.

      The decree was actually signed on August 20, and was entered nunc pro tunc as of June 26.

      After the appeal was lodged in this court, the Arkansas attorneys filed a motion asking that their names be removed from further proceedings in the case, and their designation as appellees stricken; this court entered an order granting the motion, and gave leave to the attorneys to release the record judgment in the trial court.

      The other two rules relating to what law governs are mentioned on Pages 259 and 260, one being the law of the place where the contract was entered into, and the other being the “center of gravity” theory. Relative to the first, we find: “Whether there is a breach of contract depends frequently upon a construction of the contract. In this situation the courts have sometimes applied the rule that the construction of a contract is governed by the law of the place where the contract was made.” As to the second, it is stated: “Under a theory of comparatively recent origin, called the ‘center of gravity’ or the ‘grouping of contacts’ theory of the conflict of laws, the courts, instead of regarding as conclusive the parties’ intention or the place of contracting or performance of a contract, lay emphasis rather upon the law of the place ‘which has the most significant contacts with the matter in dispute.’ ”

      Appellees make no argument as to which state’s law is controlling, contending only that the contract entered into was valid under both Arkansas and Louisiana law.

      In some of the cases cited, the word, “alimony,” is also used to include a division of the property owned by the husband and wife.

       In 1965, the same court in Salter v. St. Jean, 170 S. 2d 94, held that an employment agreement between attorney and client which related only to the recovery of her separate property was valid, stating:
      “We approve the distinction made by the chancellor and specifically hold that contingent fee agreements in domestic relations litigation are against public policy and unenforceable as they relate to alimony or support or property settlement in lieu thereof, but that same are enforceable when they relate to the return of a wife’s separate property.”

      While most states, though holding the contingent fee provision invalid, do allow the' attorney a recovery on the basis of quantum meruit, some states will not even allow that recovery in this type of case. See Baskerville v. Baskerville, 246 Minn. 496, 75 N. W. 2d 762; Jordan v. Westerman (Mich.), 28 N. W. 826. For other related cases, see 100 ALR 2d § 7, p. 1391.

      The American Bar Association, at its last meeting on August 12, 1969, adopted a “Code of Professional Responsibility” to replace the old.“Canons of Ethics,” such code to become effective on January 1, 1970. This code is divided into nine canons, and there is a comprehensive discussion of each. Under Canon 2, EC 2-20, relating to contingent fee arrangements, it is stated, “Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified.”

      Similarly to the California policy stated in Coons v. Kary, supra, Arkansas, too, has a policy of preserving marriages, as reflected by Acts 47 and 348 of the General Assembly of 1953, such acts providing for a waiting period of 30 days between the commencement of an action for divorce, and rendition of a final decree where the parties have lived together within the last 12 months’ period.


author: George Rose Smith, Justice.

text:
    ARK. STATE HIGHWAY COMM’N v. Louise F. TILLEY
    5-5002
    445 S. W. 2d 510
    Opinion delivered October 13, 1969

      Thomas B. Keys and James N. Dowell, for appellant.

      Douglas Bradley, for appellee.
   George Rose Smith, Justice.

In this condemnation proceeding the jury awarded the appellee landowner $20,000 for the taking of 3.94 acres, which works out at about $5,075 an acre. It was stipulated that a highway department appraiser would testify that the land taken was worth $6,000 an acre. The condemnor nevertheless insists that the verdict is excessive, upon the theory that the construction of the new highway will benefit the landowner’s remaining 23.29 acres in an amount exceeding the value of the 3.94 acres actually taken. That contention presents the sole question to be decided.

We hold that the testimony raised a question of fact for the jury. Mrs. Tilley’s 27.23-acre tract, before the taking, was situated in what is described as a fine-home residential district. It was the site of her home, valued at from $25,000 to $31,300. The tract was already crossed by Highway 39. The taking is for a new controlled-access thoroughfare, referred to as the Highway 63 Bypass. After the new construction Mrs. Tilley’s land will be divided into two parcels. Her home will be on the larger parcel, west of Highway 39. The smaller parcel, east of Highway 39, will consist of 8.44 acres and will have some access to an off-ramp from the new facility. The witnesses for the highway department testified that the 8.44-acre tract will be an ideal site for a filling station or a motel or both and that the enhancement in its value will exceed the value of the 3.94 acres being condemned. Those expert witnesses, without going into much detail with respect to comparability, cited marked enhancements of real estate values that had resulted from the construction of highway bypasses at or near Jonesboro (the vicinity of the land now in controversy), El Dorado, Fort Smith, Brinkley, and Forrest City.

'That testimony was disputed by the landowner’s two expert witnesses, both of whom were of the opinion that the new facility would not increase the value of Mrs. Tilley’s remaining land. We are unable to agree with the appellant’s insistence that the landowner’s witnesses gave no reasonable basis for their conclusions. One of them believed that the neighborhood would continue to be residential in character, so that the smaller tract could not be given a commercial value. The other testified that the tract would not be a suitable site for a service station, owing to its limited access to the highway and also owing to its contours, which included elevations fifteen to twenty feet above the road. That witness also attached some weight to the irregular shape of the 8.44-acre parcel.

At the trial the witnesses for both sides pretty well, agreed upon the value of the strip being taken by. the highway department. The disputed question of fact was whether the new bypass would enhance the value of the rest of Mrs. Tilley’s land. Upon that issue the substantial evidence was in such conflict that we are unable to say that there was no issue for the jury’s determination. Hence the verdict is conclusive of the only question argued here.

Affirmed.


author: Lyle Brown, Justice.

text:
    Molton BEASLEY v. Christine BEASLEY
    5-5031
    445 S. W. 2d 500
    Opinion delivered October 13, 1969

      Brockman & Brockman, for appellant.

      Beinberger, Eilbott, Smith & Staten, for appellee.
   Lyle Brown, Justice.

The chancellor refused to grant relief to Molton Beasley, appellant, from an alimony award in favor of Beasley’s former wife, Christine Beasley, appellee. Pleas by the former husband (1) that Mrs. Beasley had remarried, (2) that Mr. Beasley had lost several weeks of work from illness, and (3) that Beasley himself had remarried, were not persuasive to the chancellor. The single point on appeal is that the court erred in not terminating, or at least reducing, the alimony.

The findings set forth in the decree of divorce handed down in April 1968 are significant. Mrs. Beasley was awarded a divorce, custody of their 13-year-old son, $50 support money for the boy, and $100 per month alimony for a period of five years, at which time the alimony would terminate. Then there were provisions for the disposition of designated personal property and financial liabilities. Two automobiles were divided; household furniture and fixtures were awarded the wife, subject to an outstanding lien for the balance owed on the furniture; the wife was required to pay a debt owed a jewelry store; and the husband was to pay all other obligations of the parties. We have no transcript of the pleadings and proceedings culminating in the decree just described.

In líovember 1968, the husband petitioned for a modification of the decree with reference to alimony, first alleging the loss of work due to illness, resulting medical expenses, and his remarriage. At the conclusion of the testimony the court announced from the bench that he would deny the petition. The day following that hearing Mrs. Beasley was united in marriage with Sidney A. Hall. Twenty days thereafter, Mr. Beasley filed another petition for modification on the ground that Mrs. Beasley’s recent marriage entitled him to have the alimony terminated. A hearing was conducted one week thereafter and Mr. Beasley’s petition was denied. It was agreed that since no formal order had then been entered with respect to the first hearing, the court would treat the two hearings as singular and incorporate his conclusions in one order.

The trial court stated that in law the remarriage of the wife does not necessarily warrant the reduction of alimony. “Now it can under certain situations, but in this particular case the alimony was for a limited period of time and in the absence of any other circumstances than just a mere marriage the court will deny your motion.” Then at another point the court said: “If the alimony had been continuing indefinitely the court would feel a little different application would be due, but due to tbe fact that this alimony was fixed for a time certain, the court doesn’t feel like the remarriage [of the wife] is sufficient to warrant a reduction of the alimony.”

The court should have granted relief to Beasley from alimony payments. We base this conclusion on a combination of three reasons:

(1) The award of $100 per month was restricted to alimony. Several references in the decree refer to the monthly payments as alimony. It is not a situation where the court was trying to balance some inequity in the division of personal property. In fact, the decree separately provides for the division of personal property and the payment of family debts.

(2) The court’s provision for alimony amounted to the award of a gross sum, $6,000, to be paid in installments of $100 per month. We had the same situation in McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550 (1935). In that case the trial court fixed alimony at $50 per month for twenty-four months. We said:

On the question of alimony we are of the opinion that the decree of the chancellor was in effect the award of a gross sum to be paid in installments which is contrary to the doctrine announced in our cases cited by appellant, namely, Brown v. Brown, 38 Ark. 324; Wood v. Wood, 59 Ark. 441, 27 S. W. 641; and Walker v. Walker, 147 Ark. 376, 227 S. W. 762. The rule in those cases seems to be that a court, in awarding alimony, should not fix a specific sum, but a continuing allowance payable at fixed regular intervals. It is true that future circumstances might arise which would warrant the court in altering the amount of the allowance or in discontinuing it altogether.

In McIlroy this court erased the lump provision payable monthly and treated it as an award of alimony in the amount of $50 per month with nó limit on the number of monthly payments. The court acted likewise in another case involving the same error. Birnstill v. Birnstill, 218 Ark. 130, 234 S. W. 2d 757 (1950). There the trial court directed a lump stun payment of $60, payable in monthly installments of $10 each. "We struck down the fixing of a total amount and ordered the monthly payments of $10 continued as permanent alimony, subject to any future changed conditions.

(3) The remarriage of the wife was sufficient grounds, in the circumstances of this case, to cause her alimony to be terminated. Concerning the status of alimony after remarriage of the wife, we said in Wear v. Boydstone, 230 Ark. 580, 324 S. W. 2d 337 (1959):

Appellee, though admittedly unable to cite an Arkansas case directly holding that alimony payments cease automatically upon the remarriage of the wife, apparently feels that we should take such a view. We have no quarrel with the statement that alimony payments should cease upon the divorced wife’s remarriage, for we see no logic in requiring a first husband to contribute at regular intervals to an ex-wife whose care and maintenance has been assumed by a second husband. We have held on several occasions that the remarriage of the wife is sufficient grounds to entitle the husband to a termination of the alimony payments — on making proper application to the court grafting the original decree. Casteel v. Casteel, 38 Ark. 477, Erwin v. Erwin, 179 Ark. 192, 14 S. W. 2d 1100.

Here we are of course concerned with the facts in the case at bar and they furnish the basis for our conclusion. Mr. Beasley earns a modest salary as an employee of Pine Bluff Arsenal; he lives in a trailer court and evidently has accumulated no property; he is being treated for emphysema and for a condition that could precipitate a blood clot; and he has accumulated considerable medical expense which is not covered by insurance. There is not a scintilla of evidence to the effect that Mrs. Beasley’s second husband is financially unable to assume his legal responsibility for the care and maintenance of his wife.

The date of the decree ordering alimony payments continued was March 11, 1969; since the chancellor should have then discontinued the payments he is directed to adjust the account between the parties as of that date.

Reversed.

Harris, C. J., not participating.


author: John A. Fogleman, Justice.

text:
    James & SMITH v. Oscar E. SNIDER
    5-5035
    445 S. W. 2d 502
    Opinion delivered October 13, 1969

      Lee Ward, for appellant.

      Barrett, Wheatley, Smith & Beacon, for appellee.
   John A. Fogleman, Justice.

Appellant sued appellee on account of a back injury allegedly sustained by Mm wMle assisting in moving a pump bouse on appellee’s farm. Appellee moved for a directed verdict upon the ground that appellant had failed to show actionable negligence and had shown by Ms own testimony that he had assumed the risk involved. The trial judge granted tMs motion, finding that appellant assumed whatever risk was involved and dismissed the complaint. Appellant objected upon the ground that he could not be charged with having assumed the risk because he was without knowledge of the risk.

Appellant Smith was the son-in-law of appellee Snider. Smith had full-time employment but on his day off worked for Ms father-in-law on the latter’s farm. Bill Holland, the only full-time employee on that farm, had worked there since 1951. Snider, when called as a witness for appellant, testified that he directed Holland and the latter’s father to take a flatbed truck and move a pump house. When the elder Holland said that his back was hurting, Snider told Bill to get Smith and that Floyd Silver might assist them in moving the structure. He gave no instructions as to the method of loading it and felt that Holland should know how to do so.

The pump house, built of cypress in 1962 or 1963, was about four feet wide, five or six feet long, and four to four and one-half feet high. It weighed 340 to 400 pounds. It was ceiled and insulated. It had only been moved on one occasion previously. Smith had assisted Holland on tMs previous occasion when the building was “rolled.” Smith testified that he was familiar with the pump house, knew how it was constructed and knew it was heavy. He stated that after he and Holland “kind of walked” the house up to the flatbed trailer, lifted one end np and put it on the trailer, they got hold of the other end and pushed and scooted it according to Holland’s instructions. "While he was engaged in the lifting thus involved, Smith was struck by a burning pain in his back. The pain was not sufficient to prevent him from continuing to work. The next day he consulted a physician.

Smith testified that he had no previous experience in moving or loading’ such things as pump houses and that he simply followed Holland’s directions. Snider had confidence in Holland’s ability to load the house. Holland stated that he had moved heavy equipment on the Snider farm many times. In retrospect, both Snider and Holland felt that there probably would have been a better and safer method for loading the house. Snider said that it might have been jacked up or skidded hut not rolled. He also thought that it might have been pulled onto the trailer by a tractor. Holland said that it might have been “skidded” or “rolled” onto the trailer. Smith did not object to helping on the project and he did not suggest that any method other than that employed he used. He admitted that he had stated that he supposed the method employed was the best way.

Appellant contends that Holland neglected to obtain the assistance of another man and that his knowledge of the risk was not equal to that of appellee or of Holland. The holding of the trial court was correct. This case is strikingly similar to Luten Bridge Co. v. Cook, 182 Ark. 578, 32 S. W. 2d 438. There a carpenter employed by the bridge company was sent to assist two other employees in the removal of heavy wooden forms supporting concrete bridge girders. He suffered a rupture while engaged in this task, which was later accomplished by him and the other employees by a method other than that being employed at the time of his injury. The injured carpenter had not previously done work of this sort and was given no instructions as to the manner of removal. He contended that the failure of the employer to furnish sufficient help made the work dangerous and caused his injury. There, we said:

“Liability on the part of the master, the bridge company, is predicated upon the proposition that appellee was directed to perform a service, which was made dangerous by reason of not having been furnished sufficient help, .and that the work could have been performed safely had sufficient help been supplied.
We have stated the testimony in the light most favorable to appellee, as we are required to do in testing its legal sufficiency; but, when thus viewed, it appears to us that appellee must be held, as a matter of law, to have assumed the risk of his injury. He did not act in an emergency. The case is not one where the form was about to fall and be damaged, or injure appellee or one of his fellow servants unless he attempted to support it. In fact, he sustained his injury in an unsuccessful attempt to remove the form. To use his own expression, he ‘surged’ against the form with a force so great that he ruptured himself. No one could know better than he what force might safely be applied, and the danger of injuring himself if he overtaxed his strength was an obvious one, the risk of which he must be held to have assumed.”

Certainly Smith knew the weight of the pump house and his own physical capacity. There were no concealed dangers. Under these circumstances, he certainly must be said to have assumed any risk involved in the undertaking to move the building. In Missouri Pacific Railroad Co. v. Vinson, 196 Ark. 500, 118 S. W. 2d 672, we said:

“* * * Two men performing the simple task of carrying and stacking crossties will be charged with knowledge that such ties possess weight, and that the law of gravity has not been suspended. Every man will be presumed to know more about his own strength and to.be better informed as to his ability to lift, than is a stranger; and every manual task, however menial, requires the exercise of some intelligence upon, the part of those who undertake to perform it.”

There is an unvarying pattern in all our cases of this type. We adhere to them.

Appellant suggested, for the first time, in oral argument, in rebuttal, that assumption of the risk is only a form of negligence which should be compared by a jury with the alleged negligence of the employer pursuant to our comparative negligence statutes. We do not consider this argument because it was neither raised in appellant’s objection to the directed verdict, nor asserted in the briefs in this case in any way.

The judgment is affirmed.


text:
    George Henry THORNE v. STATE of Arkansas
    5447
    445 S. W. 2d 481
    Opinion delivered October 13, 1969

      Fletcher Jackson, for petitioner.

      Joe Purcell, Attorney General; Bon Langston and Mike Wilson, Asst. Attys. Gen., for respondent.
   J. Fred Jones, Justice.

The petitioner, George H. Thome, has filed an original petition in this court entitled “Petition for Writ of Habeas Corpus and Motion to Quash Detainer Warrant.” 'The prayer is for a “dismissal” of the warrant and for an order directed to the First Division Circuit Court of Pulaski County, Arkansas to withdraw its warrant from the warden of Arizona {State Prison.

The facts in the record are essentially these: On November 22, 1966, the prosecuting attorney of Pulaski County filed information charging the petitioner with the crimes of burglary and grand larceny, and on November 23, 1966, a bench warrant was issued for his arrest. The record is not clear whether the warrant was actually served on Thorne. The dates are filled in on the warrant return but only a check mark appears in the spaces provided for insertion of the name of the person arrested; fees of $2.15 and 15 cents are designated for service and mileage, and the return is signed by Hemp-hill, Deputy Sheriff. The warrant bears no filing date but the return recites as follows:

“I have this 23 day of Nov. A. D. 1966, duly served the within by arresting the said....................................”

In any event, it appears that Thorne was incarcerated in the Arkansas State Penitentiary on November 23, 1966, under a conviction for a different offense previously committed. On April 20, 1967, the superintendent of the state penitentiary was ordered by the Pulaski County Circuit Judge to release Thorne to the sheriff of Pulaski County for the purpose of being brought before the court for plea and arraignment on the first day of May 1967. At the foot of this order appears the handwritten notation “not at penn,” and signed “Hill.”

The record reflects that Thorne was discharged from the Arkansas State Penitentiary on. April 13, 1967, and that on October 18, 1967, he was arrested in Phoenix, Arizona and was sentenced to twenty years in' the penitentiary of that state where he is now incarcerated. Upon learning of Thorne’s incarceration in Arizona, a detainer warrant was placed against him in that state.

The record contains copies of two undated and unverified instruments addressed to the Pulaski County Circuit Court. Neither instrument bears a receipt or filing date but they were apparently prepared by, or on behalf of, petitioner Thorne. One of these undated instruments is designated “Motion for a Speedy Trial and Writ of Habeas Corpus Ad Prosequendum,” and concludes as follows:

“[T]he Petitioner prays the Honorable Court to grant his MOTION FOR A SPEEDY TRIAL AND WRIT OF HABEAS CORPUS AD-PROSEQUENDUM.”

The other undated instrument is designated “Motion to Quash Detainer Warrant,” this instrument concludes as follows:

“Movant prays this Honorable Court dismiss the above numbered warrant by virtue of the information herein contained and any other supporting Authorities of which the Court may take Judicial Knowledge. ’ ’

The jurat on this instrument appears as follows:

“County of Pinal )
ss
State of Arizona )
Subscribed and sworn to before me this............day of
................................................, 1968.
Witness my hand and Seal.
NOTARY PUBLIC”

Both of these instruments are couched in legal terminology with ample citation of federal and state court decisions. It would appear that Thorne had competent advice in wording the body of the instruments, but none at all in executing them. Neither instrument appears to have been signed by Thome although his name is typed at the conclusion of both of them. The unexecuted jurat form copied above, indicates that it was prepared for execution in 1968.

An unsigned “Affidavit In Forma Pauperis” appears in the record and bears date of January 23, 1969. That was apparently the date it was prepared and there is no way to determine whether it accompanied. either of the other instruments, and if so, which one. There is no way for us to determine from the record before us, when, if ever, these instruments' were received by the Pulaski County Circuit Court. Of course; if they were sent to the Pulaski County Circuit Court, it was no fault of Thorne’s that their receipt dates were not noted.

Regardless of when, or whether, these instruments were sent to, or received by, the Pulaski County Circuit Court, the record contains a letter dated December 16, 1968, from Thome to the circuit judge of the Pulaski County Circuit Court, calling attention to the motion to quash and insisting that favorable action be taken on the petition. This letter does not indicate a willingness to return to Arkansas for trial, but, on the contrary, in speaking of his mother, Thorne says: “She will, however, fight my extradition with all her resources.” This letter was followed by one dated January 13, 1969, from Thorne to the clerk of the First Division Circuit Court stating, in part, as follows:

“According to the Post Office’s Return Receipt, your office has been in receipt of my motion to Quash and Dismiss Detainer Warrant since December 6, 1968.
As of this date I have received no word of any disposition of this motion.”

On January 20, 1969, the First Division Circuit Judge wrote to Thorne as follows:

“Dear Sir:
In Case No. 66458 showing George Henry Thorne, Leo Bryant, Jr. and David Lee Rogers as defendants in a charge of Burglary and Grand Larceny which was filed in this court 11/22/66, my docket reads as follows:
11-22-66
Rogers to State Hospital under Act 3
12-5-66
Bryant plea of Not Guilty, Jury trial May 31
12-15-66
Rogers Plea of Guilty, 5 years on Burglary, 5 years on Grand Larceny
5-1-67
Thorne passed to June 5
5- 18-67
Bryant Jury waived, court trial June 21
6- 21-67
Bond Forfeiture Alias Warrant, $2,500 on Alias Warrant on Bryant
7- 3-67
Alias Warrant, Thorne, $2,500 bond on Alias Warrant
According to the records of this Court, you are a fugitive. It is my understanding of the law that a fugitive has no standing in a court of law until he submits himself to the court for disposition of his case. Therefore, no action has been taken on your petition nor will any be taken until you are returned to the jurisdiction of this court.”

On April 10, 1969, Thorne filed his petition in this court and on April 16, 1969, the clerk of this court wrote to the prosecuting attorney of the Sixth Judicial District, as follows:

“Dear Sir:
I enclose a copy of a motion filed in this Court by George H. Thorne which is self-explanatory.
The Court has directed that I call your attention to the case of Pellegrini vs. Wolfe, 225 Ark. 459 and requests that you let the Court know what action has been or will be taken under the rule stated in that case.”

Apparently in response to this letter the prosecuting attorney, on April 22, 1969, filed a motion in the First Division, Pulaski County Circuit Court for a writ of habeas corpus ad prosequendum praying:

“. . . that this Court issue a Writ of Habeas Corpus Ad Prosequendum commanding the Warden of the Arizona State Prison, Florence, Arizona, to deliver the defendant, George Thorne, to the United States Marshall for the Eastern District of Arkansas, to stand trial on the above referenced charges.”

On April 28,1969, a hearing was had on this motion and an order was entered by the circuit court as follows:

“'The Court finds that its docket so reflects that the defendant herein, George H. Thorne, is a fugitive from this Court and for such reason has no standing before this Court until he submits himself for disposition of his case.
IT IS THEREFORE HEREBY ORDERED that the Motion for a Writ of Habeas Corpus Ad Prosequendum is denied.”

On April 25, 1969, the prosecuting attorney wrote to Thorne as follows:

“Enclosed you will find a copy of the Motion for a Writ of Habeas Corpus Ad Prosequendum filed in this case and a copy of the Order denying such Motion.
Should you wish to appeal this Order, you should contact Judge William J. Kirby, First Division, Sixth Judicial District, Little Rock, Arkansas.”

We take judicial notice that the terms of the First Division Circuit Court in Pulaski County run from the fourth Monday in September and the First Monday in March each year. Ark. Stat. Ann. § 22-310 (Repl. 1962).

Ark. Stat. Ann. § 43-1708 (Repl. 1964) reads as follows:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

Information was filed against Thorne on November 22, 1966. Two terms of the court, after the information was filed, did not expire until the first Monday in March 1968. Thorne’s case was set for plea and arraignment on May 1, 1967, which was only two months within the first term of court after the information was filed against him. Thorne had been released from prison in Arkansas on April 13, 1967, and his whereabouts were unknown to the Pulaski County Court authorities until he was taken into custody in Arizona on October 18, 1967, which date was well within the first month of the second term of the Pulaski County Circuit Court after the information was filed against him. Thorne was never committed at all on the charges pending against him in Pulaski County and the Pulaski County Circuit Court could not try Thorne in absentia. Thorne is not automatically entitled to discharge, as a matter of law, under the above statute. Thorne has voluntarily placed himself beyond the territorial jurisdiction of the Pulaski County Circuit Court and is now being detained there against his will. Under our holding in Pellegrini v. Wolfe, 225 Ark. 459, 283 S. W. 2d 162, Thorne is entitled to a speedy trial in Arkansas just as soon as he comes, or can be brought, within the territorial jurisdiction of the Pulaski County Circuit Court; and he will be entitled to his discharge if the Pulaski County Circuit Court fails, or refuses, to co-operate and assist in regaining territorial jurisdiction over the person of Thorne regardless of the fact that he is now incarcerated in the Arizona State Prison under a sentence of 20 years.

Pellegrini was in exactly the same situation in Texas as Thorne is in Arizona. Pellegrini asked for a dismissal of the Arkansas charge against him, or in the alternative that he be brought to Arkansas and tried. The record is not clear whether Thorne has ever asked to be tried in Arkansas or has ever even indicated willingness to be tried in this state. The copy of his undated, unsigned, and apparently unfiled petition, indicates an alternative plea to be tried on the information filed in Arkansas, but his letter to the trial judge, and his petition to this court, do not so indicate.

Be that as it may, Thorne is entitled to relief from whatever burden the hold warrant places on him in Arizona if he wants it. The trial court should have granted the petition filed by the prosecuting attorney, but Thorne is in an awkward position to appeal from a denial of that petition. So we treat Thorne’s petition in this court as a petition for a writ of procedento ad judicium against the Honorable William Kirby, Judge of the Pulaski County Circuit Court, First Division, and in granting the petition we adopt the exact language employed in Pellegrini, with only the names of the petitioners and states of incarceration changed.

Arkansas should request Arizona to let Arkansas have Thorne for trial. If Arizona refuses, then Arkansas has done all that is possible, and the two-year-discharge Statute will not inure to the benefit of Thorne. If Arizona requires, as a condition for granting such extradition, that Thorne, execute some kind of waiver, then, unless Thorne will accomplish such waiver, he has not brought himself within the purview of the Statutory provision relating to two-term-discharge. If Arizona does agree to the extradition on conditions met, then Arkansas must extradite and try Thorne with due diligence or Thorne will be entitled to have the charges dismissed and the warrant/detainer cancelled.

The writ of procedente» ad judicium is granted, as herein stated.

      See: Pellegrini v. Wolfe, supra; Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240.