author: Richard B. Adkisson, Chief Justice.

text:
    Willie Earl JOHNSON, Jr. and Murphy CARROLL v. STATE of Arkansas
    CR 82-29
    632 S.W.2d 416
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      Haskins & Wilson, by: John W. Achor, for appellant Johnson.

      Law Office of Paul Johnson, by: John Lloyd Johnson, Jr., for appellant Carroll.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, appellants, Willie Earl Johnson and Murphy Carroll, were convicted of aggravated robbery and sentenced to 20 years in the Arkansas Department of Correction. On appeal, both appellants allege that the evidence is insufficient to support their convictions. We affirm.

The evidence, when viewed in the light most favorable to the State, reveals that Joel Sealey, a New Mexico rancher, and his family were spending the night at the Holiday Inn, North Little Rock. During the evening, before retiring for the night, Sealey opened the door of his room to let in cool air. At that time he noticed appellants standing suspiciously off to the side of his door. There was a space between the curtain and the wall through which appellants could have looked into the room. He then placed his loaded revolver on the bed. Later, he looked out the window several times and did not see anyone; so he cracked the door open and sat on the edge of the bed. After a few seconds he again saw appellants and noticed that one of them had a pistol at his side. He grabbed his revolver and jumped up to close the door. Before he could close the door appellant Carroll kicked the door open, stuck a pistol to his chest and said, “Get them up.” Appellant Johnson was in the room, standing behind Carroll. Sealey began shooting at appellants; both were wounded and quickly left the room. Sealey then called the lobby, stating that “somebody had tried to rob us or something.”

Appellants argue that there is insufficient evidence from which the jury could find that the purpose or intent of appellants was to commit a theft as required by our aggravated robbery statute, Ark. Stat. Ann. §§ 41-2102 — 41-2103 (Repl. 1977). There is no merit to this argument. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979).

The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Here, there is no evidence that appellants knew any women were in the room; therefore, the jury could have excluded intent to rape. The jury could also have concluded that if appellants had intended to murder Sealey they would not have paused to demand that he raise his hands.

Common knowledge and experience, when considered in the light of the facts of this case, could enable the jury to find that the only purpose appellants could have had in sticking a gun in Sealey’s chest and saying, “Get them up.” was to rob Sealey.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    James SOUTHALL v. FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS
    82-42
    632 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      Cliff Jackson, P.A., and Miller, Jones & Goldman, P.A., for appellant.

      Laser, Sharp & Huckabay, P.A., for appellee.
   George Rose Smith, Justice.

This suit was tried in the court below as a test case to determine whether an insurance policy covering loss caused by hail includes loss caused by sleet. The Court of Appeals certified the case to us as presenting an issue of public interest, because a number of other pending cases may be affected by the decision. Rule 29 (4) (b).

The plaintiff Southall, the insured, introduced proof to show that on January 11,1978, sleet fell all day long and into the night. The next morning Southall found that the accumulation of about four inches of sleet on top of his chicken house had caused it to collapse. In this suit upon the policy the court instructed the jury that the term “hail” as used in the policy should be given the meaning ordinarily applied to that term in the everyday affairs of life. The jury’s verdict was for the insurance company.

The extended-coverage section in the policy provides that “the coverage of this policy is extended to include direct loss by . . . hail. ...” Later in the same section is this limitation: “Provisions Applicable Only to Windstorm and Hail: This Company shall not be liable for loss caused directly or indirectly by (a) frost or cold weather or (b) ice (other than hail)

At the trial there was undisputed testimony that the word “hail” includes large hail, small hail, winter hail, and sleet. A witness employed by the Weather Service testified that hail is so defined in á recognized meteorological dictionary. Webster’s Second New international Dictionary (1939) is to the same effect, subdividing hail into summer hail and winter hail. In a case directly in point it was held that a policy covering loss by hail includes loss by sleet. Evana Plantation v. Yorkshire Ins. Co., 214 Miss. 321, 58 So. 2d 797 (1952). No case to the contrary is cited. In fact, at the trial the appellee’s vice-president conceded on the witness stand that the sleet on the roof of the plaintiff’s chicken house was small hail.

The trial court was in error in instructing the jury that . the term “hail” was to be given its everyday meaning. An insurance policy is to be construed strictly against the insurer, who chooses its language. The construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence. Ark. Rock & Gravel Co. v. Chris-T-Emulsion, 259 Ark. 807, 536 S.W.2d 724 (1976); Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972). In the interpretation of a contract negotiated between individuals no doubt there might be conflicting testimony presenting an issue of credibility for the jury with respect to the meaning of the language used, but there was no such issue in this case. The court should, if appropriate, have instructed the jury that the word “hail” as used in the policy included sleet.

The appellee’s vice-president testified that he construed a “direct loss” by hail to mean only the damage caused by the initial impact of the hail, but we have held that a direct loss is one proximately caused by the hazard insured against. Farmers Union Mut. Ins. Co. v. Blankenship, 231 Ark. 127, 328 S.W.2d 360 (1959). If the weight of the hail damaged the chicken house, the hail was the proximate cause of the loss, absent some other possible cause. It is also argued that the policy did not cover loss caused by ice, but that argument is refuted by the language we have quoted, that the company shall not be liable for loss caused directly or indirectly by ice other than hail.

The j udgment must be reversed, but the record does not support the appellant’s argument that we should enter judgment here. There may be an issue of proximate causation to be submitted to the j ury upon a retrial, because it does not appear to be an undisputed fact that the collapse was caused by an accumulation of sleet rather than of snow.

Reversed and remanded.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the maj ority opinion because I think the j ury and the insurance company were right. One typical weather report (January 11, 1978) stated:

By mid-morning light freezing rain, sleet and snow covered much of central and southwest Arkansas. The area coverage is expected to continue to increase over the state today... while from one to three inches, which includes a mixture of snow, sleet and freezing rain is forecast for the southern section.

The appellant had insurance with the appellee. His insurance was evidenced by a standard fire insurance policy with an attached extended coverage endorsement. The extended coverage is a named peril insurance endorsement. In this case the coverage was extended to specifically include direct loss by “windstorm, hail, explosion, riots ...” and a number of other named occurrences. The policy went on to define certain terms and under one such paragraph, headed: “Provisions Applicable Only to Windstorm and Hail,” said, “This Company shall not be liable for loss-caused directly or indirectly by (a) frost or cold weather or (b) ice (other than hail), snowstorm, waves, tidal wave, high water or overflow, whether driven by wind or not.” I agree with the appellant that the extended coverage endorsement applied only to direct loss by hail. This could mean damages such as puncturing the roof, denting the sides, breaking windows or other damage caused by the impact of hail.

I would affirm.


author: George Rose Smith, Justice. Richard B. Adkisson, Chief Justice,

text:
    Barbara COLLINS v. STATE of Arkansas
    CR 82-43
    632 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      James M. Barker and Robert F. Morehead, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Barbara Collins was charged with first-degree murder, found guilty of second-degree murder, and sentenced to 20 years’ imprisonment. Apart from objections to an autopsy report, which we find to be without merit, the only argument for reversal is that the trial court abused its discretion in refusing to grant a continuance on the day of trial. That contention must be sustained.

We recognize at the outset our familiar rules that the granting of a continuance rests in the sound discretion of the trial court and that a defendant cannot be permitted to use a change of lawyers as a device to delay a scheduled trial. In harmony with those principles the real issue is whether, as the defendant contends, she was the victim of an unfortunate misunderstanding shared by the trial judge, the prosecutor, and the two defense lawyers or, as the State contends, she attempted to switch counsel as a ruse to obtain a continuance.

After the defendant was charged in Chicot County with murder, she was continuously confined to jail there until the trial. She first employed James M. Barker, an Ashley County lawyer. He interviewed her and filed motions, but he did not begin to prepare for trial by talking to witnesses. On March 30, 1981, the court entered an order setting the case for trial on Thursday, May 14.

Sometime in April the defendant’s mother talked to Robert F. Morehead, a Jefferson County lawyer, about taking over the defense. Morehead consulted the defendant in Chicot County on April 24, but told her he could not enter the case until her retained counsel had been relieved. The defendant dismissed Barker by a letter received by him on April 27. On May 4 the court granted Barker’s motion to be relieved as counsel, the court’s order containing this language:

[I]t is found that the granting of [Barker’s] request will not unduly burden, delay or hinder the operations of this court. Further, that the request is timely, and should be granted, with a provision that [Barker] deliver to the Defendant’s new Attorney [all discovery items delivered to Barker].

It is indicated that both the prosecutor and the trial judge intended the order to be conditioned on the new attorney’s being ready to try the case on May 14 as scheduled, but unfortunately that condition was not expressed in the order and was not brought home to either defense lawyer.

Barker, having been relieved by the May 4 order, sent a copy of it to the defendant on May 5 and cautioned her: “There is a lot of discovery in this case and you need for you or your new attorney to notify me as soon as possible regarding this discovery.” On May 6 or 7 the jailer in Chicot County called Morehead’s office and left word for him to call the defendant collect. Morehead had a two-day trial in progress on the 6th and 7th, but he called the jailer and said that he had another matter in Ashley County on Friday, May 8, and would see the judge and the prosecutor then. He did see the prosecutor and the judge on Friday. He explained at least to the prosecutor that he already had a schedule and could not try the case on May 14, only six days away. At that point the matter was left unresolved.

On Monday, May 11, the court entered an order reciting that Barker had been relieved on May 4, reciting that no substitute counsel had entered an appearance for the defendant, noting that the case was set for trial on May 14, setting aside the order relieving Barker, and directing that he continue to represent the defendant. The judge called Barker at 4:30 p.m. and read him the order, which was also served on him by the sheriff a few minutes later. Barker had a trial in chancery court the next morning. Thus Barker, practicing in an adjoining county, was brought back into the case without prior notice and in effect was given a day and a half to prepare to try a first-degree murder case.

On Thursday, the day of trial, the defendant moved for a continuance. At a long hearing Barker and Morehead testified to the facts we have narrated. They also stated they had not interviewed the witnesses and they had not subpoena’d any witnesses. The trial judge overruled the motion for a continuance and proceeded with the trial. He explained that he had a responsibility to move the business of the court and could not allow litigants to determine when they desired a trial. The j ury returned a finding of second-degree murder, with a 20-year sentence.

We hold that the trial judge abused his broad discretion in refusing a continuance. We are convinced that the difficulty would not have arisen if the order relieving Barker had been conditioned, as the trial judge undoubtedly intended it to be, upon Morehead’s being ready for trial on May 14. However, it was not so conditioned. Moreover, there is no indication that the defendant herself, who was in jail and had little to gain by delay, changed lawyers in an effort to force a continuance. (The State erroneously attributes to the witness Scales a statement, as worded in the State’s abstract, that “Barbara [the defendant] told me she wanted to hire Mr. Morehead to get Morehead to get her a continuance.” Actually the witness was referring not to Barbara but to her mother, nor was the statement as positive as the quoted paraphrase indicates.) As for the attorneys, we have set out their activities in almost a day-to-day sequence from May 4 to May 14 and find no real indication of any effort on their part to play for delay.

Error is presumed to be prejudicial unless we can say with assurance that it is not. Both attorneys were, without question, not prepared for the trial. No witnesses had been interviewed. The trial resulted in a 20-year sentence. Since counsel had scant opportunity to interview possible defense witnesses, we cannot fairly require counsel to demonstrate specific prejudice by showing just what the defense would have been if a continuance had been granted. The error cannot be dismissed as harmless.

Reversed and remanded for a new trial.

Adkisson, C.J., and Hickman, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The trial court properly refused appellant’s request for a continuance, first requested on the day of the trial.

The party alleging error is required to demonstrate that prejudice did in fact exist. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977); Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).

Appellant claims that she did not have an opportunity to interview her witnesses before trial. But, even so, during the trial or after the trial she would have been in a position to know what prejudice, if any, resulted from the trial court’s refusal to grant the requested continuance. The trial court’s refusal to grant a continuance is proper grounds for a motion for a new trial. Finch v. State, supra.

It is significant to note that it was the appellant herself who created the alleged error by discharging her attorney. The court relieved Mr. Barker on the condition that it would not cause a delay in the trial of the case. It is noteworthy that both attorneys are representing appellant on appeal. Both agree the trial judge erred by not gleaning prejudicial error from the actions of the defendant and her attorney.

Error should not be presumed. Neither the trial court nor this court has any reason to believe that upon retrial the evidence will not be exactly the same as it was in the first trial. Net result: a reversal for no reason; a waste of judicial manpower; a delay in the administration of justice.

I am hereby authorized to state that Hickman, J., joins in this dissent.


author: Frank Holt, Justice.

text:
    DELTA OIL COMPANY v. John CATALANI et ux
    82-43
    633 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982
    [Rehearing denied June 14, 1982.]

      Billy J. Hubbell, for appellant.

      W. H. Drew of Drew & Mazzanti, for appellees.
   Frank Holt, Justice.

The appellant filed suit December 28, 1979, against the appellees seeking a judgment on appellees’ promissory note in the amount of $18,760.23 and to foreclose a mortgage of even date to secure the note. The appellees raised the defenses of lack of capacity to sue, laches, estoppel, statute of limitations, usury, and failure of consideration. The chancellor found for the appellant on all issues except that the five year statute of limitations barred its suit. Ark. Stat. Ann. § 37-209 (Repl. 1962). Hence this appeal and cross-appeal.

Appellant first contends that the chancellor erred in finding that the promissory note provided for payment of interest annually with the first installment being due and payable January 1, 1974. The note provides in pertinent part:

FOR VALUE RECEIVED, We, the undersigned, or either of us promise to pay to the Delta Oil Company the sum of Eighteen Thousand Seven Hundred Sixty and 23/100 Dollars ($18,760.23) with interest from date at the rate of Eight per cent (8%) per annum due and payable as follows:
Due and payable in Five (5) Annual installments of $2500.00 (principal and interest) with the first installment commencing on January 1,1975, with the outstanding balance of principal and:interest being due and payable on January 1, 1980.
It is specifically understood and agreed that if installments of interest or the principal payment due hereunder is not paid on the due date as set forth herein, that such delinquent installment shall bear interest at the rate of Ten Percent (10%) from the due date until payment is made.
It is expressly agreed that in the event that default is made in the payment of any of said Note of Interest after its maturity that the holder of said Note may, at his option, declare all the remaining Note and Interest also due and payable.

The mortgage provides for the same payment schedule.

The chancellor found that the note was ambiguous with respect to the terms of payment and, after hearing testimony from the parties, also found that the appellant had exercised its option in February, 1974, to accelerate the entire indebtedness because of nonpayment of the annual interest due and payable on that date. The court specifically found "that the tenor of the note provides for annual interest payments of 8% of the principal balance due after annual maturity.” Consequently, since more than five years had elapsed before appellant instituted this action in December, 1979, it was barred by the statute of limitations.

Appellees adduced proof that the appellant, through its president, orally demanded payment of $1,500 accrued interest on February 5, 1974, and when they advised this official they could not pay the accrued interest or anything on the principal, he stated that he would foreclose on the whole note. The next day the appellees wrote a letter to the appellant, which was introduced into evidence, reiterating their inability to pay the note and accrued interest and that appellant would have to foreclose on the mortgage. They stated that they could not and would not make any payments on the note nor any of the accrued interest. They requested that appellant commence the threatened foreclosure so that “we may proceed in bankruptcy as soon as possible.” The next day they consulted with an attorney about bankruptcy proceedings. Appellant denied that he had made the oral demand for payment, that he had threatened to file a foreclosure action, and, although he had occasionally discussed with them his need for payment and their inability to pay on the note, he took no formal action to accelerate the payment of the indebtedness until he filed this action in December, 1979.

Be that as it may, we are of the view that the note is not ambiguous with respect to the payment schedule. It specifically states that the principal and interest are due and payable in five annual installments beginning January 1, 1975, and that on January 1, 1980, (a sixth payment) the balance of the principal and interest would be due and payable. This is commonly known as a balloon note. The note provided that the appellant, at its option, had the right to accelerate payments of principal and interest only upon default of interest following its maturity. It is true that the interest accrued annually. However, the first payment of interest did not mature until January 1, 1975. Therefore, by the written terms of the payment schedule, the first interest payment was not in default until then. Consequently, appellant’s action in December, 1979, was not barred by the statute of limitations. We further observe that notification by the debtors that they did not intend to pay the note did not automatically activate the acceleration clause since this provision is for the option and benefit of the creditor. Willett v. Kelley, 203 Ark. 350, 157 S.W.2d 34 (1941); and Hodges v. Taft, 194 Ark. 259, 105 S.W.2d 605 (1937).

We deem it unnecessary to discuss appellant’s other contentions for reversal.

On cross-appeal appellees assert the trial court erred in finding Delta Oil had the legal capacity to sue as it was without legal corporate existence, had terminated and changed its authorized business address and failed to continuously maintain a registered office. They further contend that pursuant to Ark. Stat. Ann. § 64-117 F (Repl. 1980), the certificate from the Secretary of State stating that the appellant was a corporation in good standing at all times pertinent to this action was insufficient to prove the corporation’s legal existence. We disagree. The Secretary of State’s certificate makes a prima facie case as to the proof of its corporate existence. § 64-503 B. The validity of this certificate was uncontroverted except for appellant’s failure to file a change of address as to its registered office or agent. It appears that the requirement that a corporation maintain a registered office and agent with proper address is to make it amenable to service of process or notice of other proceedings. § 64-115. Here, the appellees have not demonstrated that they were prej udiced in any manner by the change of address of appellant’s registered office and agent from one county in this state to another.

Appellees further assert the note was usurious. They claim the entire indebtedness, with interest, represented by the 1973 note was $16,438.55, not $18,760.23, the difference representing a usurious interest rate. Appellant’s witness testified that on February 6, 1970, the Catalanis owed the appellant $10,856.75. This was evidenced by a promissory note. There was an additional $5,982.03 in bad checks from appellees that was not included in the 1970 note as well as $1,921.00 that appellant had paid Murphy Oil on behalf of appellees’ excess over their credit limit. The 1973 note merely combined all the indebtedness into one note. Here the chancellor found there was no evidence of usury and we cannot say his finding is clearly erroneous.

Appellees’ final contention is that the appellant was guilty of laches. They assert their business records were only kept for five years and that the appellant unnecessarily delayed in bringing this action. A sufficient answer to this argument is that the appellant brought the action within the permissible time frame of appellees’ note.

On direct appeal the decree is reversed and the cause remanded for proceedings consistent with this opinion. Affirmed on cross-appeal.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    STEWART ELECTRIC COMPANY OF SOUTHWEST ARKANSAS, INC. v. MEYER SYSTEMS CORPORATION et al
    82-49
    632 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982
    [Rehearing denied June 1, 1982.]

      Danny P. Rodgers of Honey & Rodgers, for appellant.

      House, Holmes ir Jewell, P.A., for appellees.
   Darrell Hickman, Justice.

This appeal concerns a dispute over a debt between three corporations. Stewart Electric, the appellant, supplied material worth $5,822.23 to a construction job at a Firestone Tire and Rubber Company plant in Prescott, Arkansas. Meyer Systems Corp., a Texas corporation, was the prime contractor and it hired Bildon Industries Inc., as general contractor, to do all electrical work. Stewart filed this suit against Meyer claiming it was liable for the debt. Bildon had gone bankrupt. Firestone simply interpleaded the amount claimed asking that it be paid to either Stewart or Meyer. The case was tried to the judge without a jury and only three witnesses testified. The only records Stewart had, thirty-two “tickets” for the job, were introduced into evidence. The trial judge found that Meyer was not liable on this open account; Meyer had not contracted for the supplies and Stewart had failed to prove by a preponderance of the evidence that Meyer, through its alleged agent, had either expressly or impliedly authorized the contract with Stewart. Denying Stewart’s claim, the judge awarded the interpleaded money to Meyer. We affirm.

On appeal Stewart alleges essentially two errors: The court was wrong in its findings, and the Wingo Act precludes Meyer from getting the money and that, therefore, the money should go to Stewart.

While the legal issue of this case is agency, that is, whether Meyer actually entered into a contract with Stewart for the material, the resolution is purely a.fact question. The trial court, after hearing the witnesses, and examining the evidence, found the facts to be against Stewart. In order for us to reverse that judgment we would have to find the judge was clearly erroneous in his findings. ARCP Rule 52. The trial judge correctly stated it was Stewart’s burden to prove by a preponderance of the evidence that a Meyer employee had the express or implied authority to make the contract. Jackson v. M.F.A. Mutual Insurance Co., 169 F. Supp. 633 (W.D. Ark. 1958), aff'd, 271 F.2d 180 (8th Cir. 1959).

The plaintiff called only one witness, James Ellis Stewart, the president of the Stewart family corporation. Stewart said his first knowledge of the agreement was when he overheard a conversation between his father and an employee of Meyer, whose first name was Weldon. He said on the basis of that conversation an account was set up so that material could be supplied to the Firestone job. He said he called Firestone to check on Meyer, since they had had no previous dealings with the company, and was told by a woman that Meyer would be a good account. He said he understood that Meyer was not to be billed until after the job was completed. Stewart said after Meyer was billed and did not pay the account, he contacted a Mr. Keys at Meyer and he said the account would be paid. Two of the tickets were made out to Meyer, one dated August 6, 1979, and another dated August 8, 1979. The first one was signed by Weldon Geron. The rest were al 1 made ou t to “Beldon Indus tries, ” or “Bildon Industries,” or “Bil-don Industries.” Stewart said the August 6, 1979, ticket was the first ticket issued but was dated later when the tickets were posted. The first tickets, according to dates, were three dated June 19, 1979, all made out to Bildon. Stewart also testified that Nick Grasel, the president of Meyer, assured him the account would be paid. Nick Grasel testified that Meyer was the prime contractor for Firestone; that Bildon was the general contractor for Firestone and also responsible for the electrical work. He denied that Meyer ever authorized any of its representatives to obligate Meyer to Stewart, or that any had the authority to do so. He said Weldon Geron was sent by Meyer to the job site to check on the work and to assist Bildon in expediting material to the site. He denied that he ever acknowledged to Mr. Stewart that Meyer was liable on the account.

Weldon Geron testified that he was working for Meyer at the time in question and made several trips to Prescott to check on the job, pick up material, and keep the job moving. He said he had no authority to obligate Meyer for any of the equipment used by Bildon and that he did not authorize Stewart to open an account for Meyer. He said he did pick up some equipment at Stewart’s and signed for it, but that when he saw a ticket made out to Meyer he told Stewart to change it, that it was a mistake because the account was Bildon’s.

If an agent has the express or implied authority to bind the principal, then the principal is bound by the agent’s actions. That is undisputedly the law, as both parties and the judge agreed. Jackson v. M.F.A. Mutual Insurance Co., supra. But this case involves the application of the law to the factual question of whether Geron had the express or implied authority to bind Meyer. The trial court specifically found that the appellant had failed to prove that proposition by a preponderance of the evidence. There is ample evidence to support the trial court’s findings. All but two of the tickets were made out to Bildon. The tickets seem to square with Geron’s testimony, and Meyer’s president denied he ever assured Stewart the bill would be paid. The trial court obviously chose to believe the testimony offered by Meyer.

It is unfortunate that Bildon did not pay this account and Stewart must suffer a loss, but it does not follow that Meyer owes the account as a matter of law. The trial court, sitting as a jury, found that Stewart failed to make its case, a decision we cannot on this record overturn.

The second issue raised is one that was not presented to the trial court. It is argued the “Wingo Act” prohibits Meyer from recovering the $5,822.23 from Firestone. The Wingo Act is Ark. Stat. Ann. § 64-1202 (Repl. 1980), and it generally prevents a foreign corporation, not authorized to do business in Arkansas, from enforcing a contract in Arkansas.

While it is alleged that Meyer was a foreign corporation not authorized to do business in Arkansas, nowhere by pleading, orally, or even in a motion after trial to dismiss the case without prejudice, did Stewart invoke the Wingo Act and ask that Meyer be prevented from collecting the money interpleaded by Firestone. That argument is raised for the first time on appeal. We do not consider such arguments. Wilson v. Lester Hurst Nursery, Inc., 269 Ark. 19, 598 S.W.2d 407 (1980).

Affirmed.

Purtle and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I respectfully disagree with the decision in this case. I believe an injustice has occurred. Simply stated, by this decision we have permitted one company to order goods on credit from another company, receive the direct benefit of those goods and yet refuse to pay for them on the theory that the employee who ordered them had no authority to bind the purchasing company. I regard the result as clearly against the weight of the evidence and not in keeping with the law.

The trial court found in effect that Stewart Electric Co. failed to meet the burden of proving Mr. Weldon Geron, an employee of Meyer Systems Corporation, had authority to purchase electrical goods and materials by binding the credit of Meyer Systems Corporation. That holding is erroneous for two reasons: The proof shows an implied authority by Geron and even if such authority were lacking, Meyer Systems ratified his acts by accepting the benefit of those goods. Additionally, the president of Meyer Systems assured Stewart Electric the account would be paid.

In stating the facts in this dissent I have not adhered to the rule that all inferences are to be given the prevailing party because I believe a study of the entire record fully supports this factual account and, too, I take it from the trial court’s comments at the close of trial he regarded Mr. Stewart as a credible witness, as he gratuitously praised his “sincerity, honesty and integrity,” at the same time making findings difficult to reconcile unless Mr. Stewart’s testimony was false on a number of points.

Meyer Systems contracted with Firestone Tire and Rubber Co. to build a “carbon black system” at Firestone’s Prescott plant. Meyer then hired Bildon Industries at a fixed fee to serve as general contractor to perform the concrete, mechanical and structural, plumbing and electrical work. The plan miscarried, as Bildon performed the work ineptly or belatedly, or both, and Meyer had to assume active involvement. It sent its chief draftsman, Mr. Weldon Geron, from Houston to Prescott to oversee the work. At first he commuted, but later, around June 1979, he took up residence in Prescott to “live with the job,” as he termed it. Meyer’s president, Mr. Nick Grasel, explained why Mr. Geron was sent to Arkansas:

We sent him into the field because Bildon was kind of dragging with the concrete work. We wanted him to come in here and assist Bildon, and to answer any questions, and to expedite material, to check the work or the material as it came in, make sure there were no shortages, and if there were, to go ahead and expedite that material, get it on the site so we could get the job done in the time frame that we would normally or the customer would expect to get it done. (My italics.)

Thus, his express assignment was to “expedite materials” and that is what he did. In mid June, 1979, Geron called on Stewart Electric Company, a small family-owned company in Prescott, and (according to Stewart) explained the contract with Firestone and sought to buy materials on credit on behalf of Meyer Systems. Mr. James Stewart contacted Firestone and was assured Meyer was under contract and was reliable. During the next six to eight weeks Stewart Electric sold Meyer on credit nearly $6,000 in electrical supplies. Sometimes the items were picked up by Mr. Geron, at other times by employees of Bildon. On occasion, Mr. Geron went to Texarkana where he bought electrical supplies from Dealers Electrical Supply and charged them to Stewart Electric.

Shortly after the first purchases were made Stewart was asked to write up their sales tickets under Bildon’s name rather than Meyer’s, so the two companies could keep the accounts separated and, thereafter, the sales tickets were written in the name of Bildon. Again according to Stewart, Meyer had asked Stewart to bill them when the job was completed so Stewart waited. In March of 1980 Mr. Stewart called Firestone and learned the job had been completed, though Firestone was withholding payment. Stewart billed Meyer and Meyer asked Stewart to bill Bildon Industries, which Stewart did as an accommodation. Bildon returned the bill with a statement the charges were made by Meyer’s employees. Mr. Stewart says he called Mr. Ted Keys, president of Meyer, and that Mr. Keys promised to see the bill was paid. Witnesses for Meyer did not refute this testimony. When Meyer still did not pay, Stewart contacted Firestone for help and Firestone called Meyer. By that time Mr. Keys had been replaced by Mr. Nick Grasel, who came to Prescott to find an angry Firestone official, upset because bills for materials had not been paid. Mr. Grasel told Firestone, he says, not that Bildon, rather than Meyer, was responsible, but that he would see the matter was straightened out. Mr; Grasel contacted Stewart (again, not to say that Meyer did not owe the account) to explain that because Bildon had cost Meyer $80,000 on the job, Meyer wanted to settle with Stewart for half the amount due, which Stewart understandably refused. Caught in between, Firestone inter-pleaded the money it was withholding ($17,000) and Stewart and Meyer went to trial. The trial court, sitting as a jury, found that Stewart had not proved Mr. Geron’s authority sufficiently. The trial court announced his findings as follows:

Let the record reflect that it is the finding of the court that the plaintiff has not met the burden of proving, first, that there was a contract between Meyer and Stewart; that there was a representation by Mr. Weldon Geron of an authority to bind Meyer. (T. 114)

I believe the trial court found against Stewart Electric, not so much on the facts as on a misconception there was insufficient proof of a contract between Meyer and Stewart Electric or proof that Mr. Geron had expressly represented himself as having the authority to bind Meyer. I believe the proof was sufficient on both counts.

Stewart supplied to Meyer’s employees electrical materials which Meyer was contractually obligated to furnish Firestone under its contract and Meyer received the direct benefit of those materials. If Bildon had failed to furnish those materials, it was Meyer’s duty to do so. No express contract between Stewart and Meyer was required. When one party received and benefits from the use of goods furnished by another the law implies a contract of sale and an obligation to pay, irrespective of any express contract. See 67 Am. Jur. 2d Sales § 63 and 77 C.J.S Sales § 34 (b), where the rule is stated:

Where, in the absence of an express contract, one person delivers goods to another under circumstances indicating that a sale is intended, and the other does not object or offer to return the goods but retains and uses them, the contract of sale will be implied.

As to whether Mr. Geron had authority to bind Meyer, it is plain he was sent to “expedite” the job and obtain the materials necessary to complete the work and the law gives an agent the implied actual authority to perform all acts necessary to the execution of his express authority. McWilliams Auto Company v. Gibbons, 197 Ark. 617, 124 S.W.2d 211 (1939); U.S. Bedding Co. v. Andre, 105 Ark. 111, 150 S.W. 413 (1912); Roach v. Rector, 93 Ark. 521, 123 S.W. 399 (1909).

A case having many similarities to the case before us is Stewart-McGehee Const. Co. v. Brewster, 176 Ark. 430, 3 S.W.2d 42 (1928), where we held that a construction foreman had implied authority to order materials on credit, notwithstanding the testimony of the president of the construction company that he had no authority to make such contracts. By putting him in charge of the work with authority to order materials he had the implied authority to order any necessary materials for the work. The authority of an agent to bind his principal is even broader where, as here, the actions of the agent benefit the principal, especially where the third party has acted in good faith and a repudiation of the contract would result in harm and disadvantage to him. Cleburne County Bank v. Butler Gin Company, 184 Ark. 503, 42 S.W.2d 769 (1931).

Two arguments by Meyer Systems must be mentioned. It argues that with only one exception, the sales tickets introduced by Stewart are made out to Bildon rather than Meyer. But the significant fact is that the initial ticket written up on the day Mr. Geron first came to Stewart, is made out to Meyer Systems and is signed by Mr. Geron. This exhibit documents the fact the account was opened in Meyer’s name and that Mr. Geron held himself out as able to bind Meyer. The ticket bears a later date, August 6,1979, but Mr. Stewart explained how that occurred and Mr. Geron did not dispute either his explanation or that the ticket was the first charge.

Next, Meyer Systems argues that it has already paid Bildon under its contract and should not be required to pay twice for the same goods. If that were so, it might cast a different light on the evidence, but that is not an established fact, indeed, there is not one word of evidence to support the argument. Neither witness for Meyer, one of whom was its president, was even asked if Meyer had paid Bildon for the materials, or for anything else, and, thus, so far as this record is concerned Meyer has paid neither Bildon nor Stewart. Moreover, it seems unlikely in the extreme that Meyer would have fully paid a subcontractor whose performance was so poor as to necessitate Meyer’s virtually taking over the job to the extent of an $80,000 loss.

I would reverse with directions to enter a judgment in behalf of appellant.

Purtle, J., joins.


author: Darrell Hickman, Justice.

text:
    Luther PRICE, III v. STATE of Arkansas
    CR 81-129
    632 S.W.2d 429
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      William R. Simpson, Jr., Public Defender, and Sandra Trawick Berry, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Luther Price, III, was convicted of burglary and interference with a police officer and sentenced to forty years and twenty years imprisonment respectively. His sentence was enhanced because he had six prior felony convictions.

This case presents two issues, one involving an old question we have considered several times but one which continues to give prosecutors and trial courts difficulty; the other involves the newly enacted procedure for sentencing a defendant with prior convictions.

The first issue on appeal is whether there was sufficient evidence to support the conviction for interference with a law enforcement officer in the performance of his duty in violation of Ark. Stat. Ann. § 41-2804 (Repl. 1977). In three previous cases we have considered this charge and in two of them we found the evidence insufficient to support that charge. In a third case we found the facts did justify the charge. In this case two men were seen entering a dwelling and a neighbor called the police. The police responded to the call of a burglary in progress and one officer went to the front door and the other officer went to the back. The officer covering the back testified that as he approached the rear corner he observed two males leaving from the back of the residence. He yelled at them to stop and one of the men turned and fired a pistol in his direction and fired a second shot in another direction. Both men continued to flee. One of the suspects was caught in the alley and the defendant, Luther Price, was found hiding in the basement of a nearby house. The officer testified that it was Luther Price who fired the pistol at him.

The State chose not to charge Luther Price with resisting arrest and aggravated assault, which is a Class D felony, or a more serious offense, but instead chose to charge him with interference with a law enforcement officer. It is our judgment that Price was improperly charged as we have carefully explained in the cases of Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978), State v. Bocksnick, 268 Ark. 74, 593 S.W.2d 176 (1980), and Gilmer v. State, 269 Ark. 30, 602 S.W.2d 406 (1980). The offense of interference with a police officer was not intended to be an alternative to charging someone with resisting arrest. In the Breakfield case the defendant resisted arrest and was charged with interference with a police officer. We pointed out that the new criminal code had a provision for resisting arrest, Ark. Stat. Ann. § 41-2803 (Repl. 1977), and that before the new criminal code there was no such statute. In the Commentary to § 41-2803 it is noted that the offense of resisting arrest is narrowly confined to the arrest situation; in other words, a situation where the police were resisted when trying to arrest the person charged. Interference with an officer in other circumstances is dealt with by §§ 41-2802 or 41-2804.

In Bocksnick we had an almost identical situation to that before us. The defendant had been taken to his parents’ home by a marshal who knew him and did not charge him although he smelled of alcohol. Later that same evening the marshal saw the defendant carrying a rifle and demanded that he surrender it. The defendant refused and threatened to kill the marshal. No attempt at that time was made to arrest him. In the meantime the defendant went to a nearby grocery store and tried to obtain ammunition. When he later went to a nearby wooded area and was ordered to surrender, he fired two shots at the officers. We found that the officers were performing no duty except trying to arrest the defendant and that a strict construction of the penal statute could only mean that the legislature did not mean for § 41-2804, interference with a police officer, to be applied in such a situation.

In Gilmer v. State, supra, a case with facts quite different from those in Breakfield, Bocksnick, or in this case, we found the evidence sufficient to support a charge of interference with a police officer. There the police officer was responding to a call to invesigate a disturbance between the defendant and another person. While the officer was en route to answer the call, the officer stopped his vehicle and the defendant attempted to fire at the officer. A scuffle occurred between the officer and the defendant. The officer did not know the defendant was the subject of the call for assistance. We held that that amounted to interference with a law enforcement officer because the fracas that occurred between the officer and the defendant was totally separate from the incident the officer had originally set out to investigate.

As we held in Gilmer the offense of interference applies only where a police officer is interfered with in the performance of his duty by someone other than whom the officer is trying to arrest. That does not mean one resisting arrest cannot be charged with other criminal offenses; he can, but not with the interference charge. It is inexplicable to us why the State persists in charging defendants with interference when it clearly can make a charge or charges against a defendant undoubtedly authorized by the criminal code.

The Commentary to the relevant statutes makes the distinction abundantly clear. The Commentary to Ark. Stat. Ann. § 41-2803 (resisting arrest) states:

Code section 41-2803 is narrowly confined to the arrest situation. Interference with an officer in other circumstances is dealt with by §§ 41-2802 or 41-2804. [Emphasis added.]

The Commentary to Ark. Stat. Ann. § 41-2804 (interference with a law enforcement officer) states:

Section 41-2804, which is directed at assaults on law enforcement officers, is much broader than § 41-2803. It is not limited to the arrest context but covers all assaults on officers acting within the scope of their office — e.g., those engaged in executing search warrants, seizing property, or serving civil process . . .

In the case before us the officer actually testified that the defendant, Luther Price, shot at him after he told him to halt and obviously after he intended to effect an arrest. The. defendant was fleeing and was resisting all efforts by the law enforcement officers to arrest him.

No doubt it is the general language of the charge of interference with the police officer that attracts the State because a liberal interpretation of the statute would allow its application to any misconduct on the part of any defendant in his relationship with an officer trying to arrest him. Such conduct would become a more serious crime. But we rejected such an interpretation in Breakfield and have continued to do so. Since there is no substantial evidence to support this charge, it is dismissed.

In order to eliminate any possibility of prejudice we must reduce the sentence to a minimal sentence for burglary by an habitual offender with four or more convictions, which is twenty years imprisonment. Conceivably the State might desire to retry Price on the burglary charge because he was charged as a habitual offender and he might not have received a minimum sentence. Unless the State elects to proceed with a new trial within seventeen days from the date of this decision, the judgment is modified to twenty years imprisonment for burglary as an habitual offender with four or more prior convictions.

The second issue involves an Act of the 1981 General Assembly, Ark. Stat. Ann. § 41-1005 (Supp. 1981). That statute provides that when a defendant is found guilty of a felony, the trial court, out of the hearing of the jury, shall hear evidence of the defendant’s previous felony convictions, determine the number of those convictions, and instruct the jury as to that number. The argument is made that this procedure is unconstitutional because it violates ARK. CONST, art. 7, § 23 by directing the trial court to charge the jury with matters of fact. We do not reach the constitutional argument in this case because there was no dispute about the prior convictions of the defendant. When facts are undisputed, the court may properly state them to the jury. Brown v. Keaton, 232 Ark. 12, 334 S.W.2d 676 (1960); Cox v. Hutto, 619 F.2d 731 (8th Cir. 1980).

Affirmed as modified.


author: John I. Purtle, Justice. Robert H. Dudley, Justice,

text:
    E. Nell KIDD, Executrix v. Beulah P. SPARKS
    81-244
    633 S.W.2d 13
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982
    [Rehearing denied June 7, 1982.]

      Boyce R. Davis, for appellant.

      John C. Everett of Everett & Whitlock, for appellee.

      Dudley and Hays, JJ., would grant rehearing.

   John I. Purtle, Justice.

This case involves the interpretation of a will which the testator prepared by filling in blank lines on a commercially printed will kit form. Use of such a device is at best risky, as even the most skilled probate attorney would have difficulty with the unsuitable and inept printed provisions in this will kit. The provision to be construed is set out below, with the capitalized printing of this opinion representing the portion of the will which was typed by the testator and the regular printing of this opinion representing that part of the will which was commercially printed.

I hereby give, bequeath and devise unto BEULAH SPARKS. MY WIFE ALL OUR PERSONAL BELONGINGS EXCEPT THE RESTRICTIONS BELOW. ____
all of my estate and property, both real and personal, of which I may die seized and possessed, wherever the same may be located or situated and of whatsoever kind or character. However, it is my desire and I hereby, direct that the following restrictions, stipulations and divisions shall be and is, a part of this, my last will and testament.
TO BOB SPARKS. MY SON ALL MY TOOLS.
TO BOB SPARKS, MY SON AND PATSY K. KIRK, MY DAUGHTER THE PROCEEDS FROM TWO REAL ESTATE ESCROW ACCOUNTS.
(ESCROW BETWEEN HENRY A. GARDNER III AND M. L. SPARKS. 10 ACRES. SEC. 19 TOWNSHIP 15 NORTH RANGE 32 WEST, PAYMENT OF $200.00 PER MONTH._
(ESCROW BETWEEN DAVID WALTON AND M. L. SPARKS. HOUSE LOCATED AT 301 EAST NORTH. PAYMENT OF $201.71 PER MONTH.)_

At the time of execution of the will, the Bank of Lincoln held in escrow a promissory note, secured by a mortgage, payable to the decedent, made by Henry A. Gardner III and Linda Gardner. Approximately nine months before the testator’s death this note was paid in full, by a lump sum prepayment, with the final payment being made by cashier’s check in the amount of $12,405.65. With the cashier’s check and his personal check in the amount of $2,594.35 the decedent purchased a $15,000 certificate of deposit in the Bank of Lincoln.

At the time of the execution of the will the Bank of Lincoln held in escrow a second promissory note and mortgage, payable to the decedent at the rate of $202.71 per month, made by David Walton and Phyllis Walton. At the date of death, $18,762.30 of principal and interest to maturity remained due.

The trial court held that the will should be construed as devising to Beulah Sparks all of the decedent’s personal property except his tools and the $18,762.30 proceeds remaining due under the Walton note. The trial court held that the term “proceeds” included the balance of principal and interest payable. The Gardner note was held to be adeemed by extinction, with the result of the ademption being to pass all residuary property to Beulah Sparks, the surviving spouse, under the above-quoted language from the printed form. We affirm.

The first issue is whether the legacies to be paid from two real estate escrow accounts were adeemed. This turns on the additional question: were the legacies specific or demonstrative?

A specific legacy is the bequest of a particular thing, as distinguished from all others of the same or similar kind, and must be satisfied only by the delivery of the particular thing. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). A demonstrative legacy is one stated by designation only, such as a certain interest or fund from which the bequest of money, or amount of value, shall be primarily paid or satisfied. Stifft v. W. B. Worthen Co., 177 Ark. 204, 65 S.W.2d 527 (1928). In the present case the decedent made specific legacies to his children. They were to receive the "proceeds from two real estate escrow accounts,” which the testator described as being payable in installments of so much a month. Each indebtedness was described sufficiently to make them clearly specific legacies, in that anyone could understand the bequest to the children. Thus, when one of the accounts was prepaid in full, that account was no longer within the testator’s description of the legacy. The will did not refer to two real estate escrow accounts, "or their proceeds,” which could have been construed as an alternative reference.

A similar situation to the one under consideration existed in Mee v. Cusineau, Executrix, 213 Ark. 61, 209 S.W.2d 445 (1948). There the will stated that the testator left to a certain legatee "all of the lots owned by me, or in which I may have an equity or interest at the time of my death in the Busch Park Addition...” To another legatee: “I give, devise and bequeath the real estate owned by me, or in which I have an equity or interest at the time of my death, known as the ‘McClendon Springs Property’ ...” A part of the last-mentioned property had been subdivided into lots which the testator had sold to various individuals prior to her death. As the lots were paid for a deed was given by the testator. At the time of her demise some of the lots had been paid out and deeds executed while others were still being paid on at the time of her death. Other portions of the McClendon Springs property, totaling 320 acres, were sold by warranty deed, which purchase was on credit, executed by promissory notes secured by a mortgage in favor of the testator. The testator released two tracts of 50 and 20 acres each from the mortgage which were conveyed by the purchaser on the same day. In our opinion in the Mee case we quoted with approval language from 28 R.C.L. which states:

The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption.

We also held that:

... a disposition by testator in his life time, of property specifically devised operates as a revocation of the devise; and a conveyance of a part of such property operates as an ademption of the devise to the extent of the lands conveyed.

And in summing up, we said:

So here there was an ademption as to the fifty-acre and the twenty-acre tracts of land, and as to any of the purchase money Miss Busch may have collected, but not as to the purchase money remaining unpaid at the time of her death.

The ruling of the trial judge was exactly in accord with the foregoing language. It is a fact that the testator no longer had an interest in the Gardner tract because it had been collected prior to his death. There were no proceeds to be collected from the Gardner sale at the time of the testator’s death. He had received the money and converted it into other forms of property.

Common logic says that the Gardner note had been adeemed prior to the testator’s death. Obviously, the testator could have placed his childrens’ names on the CD if he had wanted them to receive it. The trial court seems to have looked to the intent of the testator in making its ruling. Absent obvious error we will not reverse the trial court in its holding. The paramount aim in the construction of a will is to determine and give effect to the testator’s intention. We hold the Gardner property was adeemed in accordance with the reasoning and holding in Mee v. Cusineau, supra.

As to the residuary clause, the appellant contends that the trial court erred in construing the language on this printed form as containing one. The trial court was correct in looking to rules of construction, for when the testator’s intent is in doubt the court should resort to rules of construction and presumptions. Hoyle v. Baddour, 193 Ark. 233, 98 S.W.2d 959 (1936). One of these presumptions is that a person who takes the time and effort to make a will does not desire partial intestacy. Brunk v. Merchants National Bank, 217 Ark. 499, 230 S.W.2d 932 (1950). If at all possible, we will broaden or enlarge a residuary clause to avoid partial intestacy. Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014 (1912). The language “I hereby give, bequeath and devise unto Beulah Sparks, my wife all our personal belongings except ...” coupled with “all of my estate and property, both real and personal of which I may die seized and possessed, wherever same may be located or situated and of whatsoever kind or character” is sufficient to leave the residue of the estate to the surviving spouse, especially when any other construction would result in partial intestacy.

Affirmed.

Holt, Dudley and Hays, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. I dissent from that part of the majority opinion which holds that gifts of “the proceeds from two real estate escrow accounts” created specific, rather than demonstrative, legacies.

In determining whether a legacy is specific or demonstrative many courts have recognized a distinction between gifts of specific property and gifts of the proceeds of specific property. Note: “Wills — Ademption: Bequest of Proceeds of Specific Property,” 5 Vand. L. Rev. 125 (1951). While our cases have not clearly set out this distinction it seems to have been followed and we have traditionally opted for the better view which is not to apply the doctrine of ademption to a gift of the proceeds where the fund can be traced and identified in a subsequently purchased security. This reluctance to extend the doctrine of ademption to a demonstrative legacy of “proceeds” where the funds can be traced and identified is more likely to effectuate the testator’s intention. See Mee v. Cusineau, 213 Ark. 61, 209 S.W.2d 445 (1948); Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945), and 5 Vand. L. Rev., supra.

If the testator had made a bequest of a particular item, as distinguished from all others of the same kind, and which could be satisfied only by the delivery of that particular thing there would be a specific legacy. Holcomb v. Mullin, 167 Ark. 622, 268 S.W. 32 (1925). However, “the proceeds from two real estate accounts” is not a specific legacy. It is a legacy by designation, a demonstrative legacy. A demonstrative legacy is one stated by designation only, such as a certain interest or fund from which the bequest of money, or amount of value, shall be primarily paid or satisfied. Stifft v. W.B. Worthen Co., 177 Ark. 204, 65 S.W. 2d 527 (1928). The testator did not bequeath the Gardners’ note, as distinguished from all other notes, and which could be satisfied only by delivery of that note. Instead, he bequeathed “the proceeds from two real estate accounts” and the Gardners’ note was included within one of the accounts. Thus there was a demonstrative legacy of “the proceeds,” nota specific legacy of the Gardners’ note. When a testator has given a demonstrative legacy we look to the intention of the testator instead of applying the doctrine of ademption as a matter of law. Mee v. Cusineau, supra.

The Gardners’ note was prepaid in full prior to the date of death of the testator. The proceeds of the earlier regular monthly payments cannot be traced and there was an obvious ademption of the proceeds to that extent, but the proceeds of the final payment can be traced by the cashier’s check and identified with absolute certainty as representing $12,405.65 of the $15,000 purchase price of the certificate of deposit. The majority opinion states, “There were no proceeds to be collected from the Gardner sale at the time of the testator’s death. He had received the money and converted it into other forms of property.” That is exactly the point — the main issue — only the form of security was changed. The form of security was changed from the Gardners’ promissory note to the bank’s promissory note. In Mitchell v. Mitchell, supra, we said:

. . . Generally speaking a change in the form of a security bequeathed does not of itself work an ademption. It must be shown that the testator intended to give specific securities of the form or nature mentioned in the will . . . [before there is an ademption].

In the same vein, in Mee v. Cusineau, supra, we said:

... If the terms of the will show that testator contemplates some change in the form of the gift, or even a sale and reinvestment of the proceeds, and that he intended to pass the proceeds, or the property in which the proceeds are reinvested, to the original beneficiary, full effect will be given to such provision. If testator gives the “proceeds” of certain property, and it appears, from the terms of the will, that he gives such proceeds even if the property is sold in his life time, the beneficiary may have the proceeds as far as they can be traced . . . [Emphasis supplied.]

The testator stated that he intended to devise the proceeds. The greater part, or $12,405.65, of the testator’s interest in the certificate of deposit is indelibly traceable to the final payment, or proceeds, of the Gardners’ promissory note. The final payment on the note was not commingled with other money in any of the testator’s other accounts. He simply took the certified check for final payment in the amount of $12,405.65 and added to it $2,594.35 from his checking account and purchased the $15,000 certificate of deposit. There is only a change in the form of security and there should be no extinction by ademption of that part of the certificate of deposit which $12,405.65 bears to $15,000 or 82.69 percent of the certificate.

The majority opinion is not buttressed by the statement “Obviously, the testator could have placed his children’s names on the certificate of deposit if he wanted them to receive it.” If the testator was familiar with our prior cases he surely thought his children would receive the demonstrative legacy which he described as “the proceeds from” the accounts. But regardless of whether he was familiar with a demonstrative legacy, if this concept is followed to its ul tímate conclusion, the will would have been ineffective to pass even the original promissory notes because “he could have placed his children’s names” on all of his property. This rhetoric amounts to an ademption of the doctrine of wills rather than the application of a doctrine of partial revocation by operation of law.

I would hold that there should be no extinction by ademption as to “the proceeds” bequeathed which can be clearly traced and definitely identified in a subsequently purchased security.

I am authorized to state that Mr. Justice Holt and Mr. Justice Hays join in this opinion.


author: John I. Purtle, Justice. Richard B. Adkisson, Chief Justice,

text:
    J. E. BASS and Nellie G. BASS v. Gregory J. KOLLER and Vivian Wendy KOLLER, Husband and Wife
    82-51
    632 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      N. D. Edwards, for appellants.

      William M. Cromwell of Rose, Kinsey ir Cromwell, for appellees.
   John I. Purtle, Justice.

Appellees filed suit in the Circuit Court of Crawford County, Arkansas, seeking damages from appellants alleging expressed and implied warranties in that certain construction was not done in a workmanlike manner. They also alleged that a concrete parking apron extended two feet over onto the adjacent lot thereby creating a breach of the warranty deed which was executed to the appellees by the appellants. The trial court, sitting as trier of fact, found the appellees had been damaged in the amount of $594.30 for breach of expressed and implied warranties contained in the warranty deed. The court further gave the appellees judgment in the amount of $500 to compensate them for damages sustained to the driveway located at their residence.

On appeal the appellants argue (1) there is insufficient evidence to support the judgment based upon implied warranty; (2) the appellees failed to use reasonable care to mitigate damages which could have been avoided; (3) there is no evidence that title to the lot had failed or that there had been a breach of warranties in the deed; and, (4) the wrong measure of damage was used in determining damages for breach of warranty. The appellees filed a cross-appeal alleging the judgment was inadequate in view of the testimony and evidence presented to the trial court. We affirm in part and reverse and remand in part.

Appellant J. E. Bass is a builder and developer, having been in the business about 20 years. He built the house in question, including the concrete slab parking pad. Appellees obtained title to the property through a warranty deed from appellants dated February 9, 1978. The deed conveyed lot 10, Rimberling Hills II Addition to the city of Alma, Arkansas. On January 18,1979, the appellees complained to appellants that water was washing the fill from underneath the parking pad constructed on the property. The appellants thereafter returned to the property and constructed a concrete catch basin to stop the erosion in the area where the pipe went underneath the slab to drain off surface water. Appellees added gutters and drain pipes to the house and one drain was located near the entrance to the pipe extending underneath the concrete pad. Apparently, appellees had removed the concrete basin and placed other materials in the area.

On November 28, 1978, the appellants caused a survey of lot 10 to be made and it revealed the parking pad extended two feet onto lot 9. Appellees then purchased lot 9 in order to insure the use of the last two feet of the parking pad.

Appellants argue there is insufficient evidence to support a judgment based upon implied warranty. They also argue that the pad is still in the place it was constructed and serving the purpose for which it was intended. They argue the appellees caused their own damage by not taking the necessary steps in order to prevent erosion underneath the parking pad. It is argued that had the appellees performed their duty to mitigate damage by constructing step walls as water barriers it would have cost between $30 and $50. Appellants argue that there is no evidence that title to lot 10 or any part thereof had failed and that the judgment based upon breach of warranty to real property is unsupported by any evidence. Appellants further argue that the court used the wrong measure of damages in setting the amount for breach of warranty in regard to the concrete pad extending two feet over onto another lot.

Appellees argue that appellants waived their argument for additional damages because ARCP Rule 50 (e) requires that a motion for new trial based upon insufficiency of the evidence is waived unless it is preserved through a motion at the close of all the evidence or in a motion for new trial. Rule 50 (e) reads as follows:

When there has been a trial by a jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, or a motion for new trial because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

This is the first time we have been called upon to rule as to whether Rule 50 (e) is applicable to a nonjury trial. We are of the opinion that the rule means exactly what it says. Prior to the adoption of this rule there was a requirement that the matters stated in Rule 50 (e) applied both to a jury and nonjury trial. Therefore, we hold that the rule applies only to trials held before a jury. In specifically stating that the rule applies to a jury trial, the rule by implication excludes cases tried to the court without a jury. Therefore, the doctrine of expressio unius est exclusio alterius applies. We hold that the appellants did not waive the right to question the sufficiency of the evidence in this case.

Appellees also argue that ARCP Rule 59 (a) (5) requires a motion for a new trial to be made when it is thought that there has been an “error in the assessment of the amount of recovery, whether too large or too small.” Having already decided that the provisions of Rule 50 (e) are inapplicable to a nonjury trial we hold that it was not error for the appellants to appeal the court’s order based upon the alleged error in assessment of the amount of recovery.

As to the cross-appeal, appellees relied upon their own interpretation in regard to the rules and, therefore, abandoned any informative discussion, and in essence abandoned the cross-appeal. Hence, we will not deal with it here.

Turning to the merits of appellants’ argument on appeal, the evidence clearly shows that there was no breach of warranty in executing the deed to lot 10. It is undisputed that appellees received all of the property described in the deed conveying lot 10 to them. Since appellees were willing to accept the deed to the lot without a survey at the time of the sale, they cannot at this time prove damages merely because the parking pad extended two feet onto lot 9. There simply has been no failure in the deed to lot 10. There is no evidence that appellants warranted that the pad was constructed entirely on lot 10. Therefore, we hold that the trial court was in error in assessing damages based upon the failure of the warranties contained in the deed to lot 10.

It is a well-developed concept in Arkansas that in regard to the sufficiency of proof we are required to view the evidence in the light most favorable to appellees and are bound to affirm if any substantial evidence exists. Hamlin Flying Service v. Breckenridge, 275 Ark. 188, 628 S.W.2d 312 (1982). We cannot say as a matter of law that there was not substantial evidence to support the decision of the trial court as it relates to breach of warranties concerning the parking pad.

The judgment as to the damages for the improper installation of the drainage pipe is affirmed. The judgment as to the damages for the breach of warranty on lot 10 is reversed and dismissed. Appellees’ argument on cross-appeal has been abandoned. Therefore, the case is affirmed in part and reversed in part and remanded to the trial court with directions to proceed in a manner consistent with this opinion.

Affirmed in part; reversed and remanded in part.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. The majority has held that in a non-jury trial a party can raise the issue of the sufficiency of the evidence for the first time on appeal. I cannot agree.

In a jury trial a party who fails to question the sufficiency of the evidence in a motion for a new trial waives his right to do so on appeal. Rule 50 (e), ARCP, Ark. Stat. Ann., Vol. 3A (Repl. 1979); Kansas City Southern Railway Co. v. Short, 75 Ark. 345, 87 S.W. 640 (1905). This rule is equally applicable to non-jury trials. See Doup v. Almand, 212 Ark. 687, 207 S.W.2d 601 (1948).

Rule 59 (a), ARCP, Ark. Stat. Ann., Vol. 3A (Repl. 1979), lists insufficient evidence as a basis for a motion for a new trial and states:

On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

It is clear from this language that the sufficiency of the evidence may be raised in a motion for a new trial in non-jury trials. We have repeatedly held that this Court will not consider error raised for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).