author:
George Rose Smith, Justice,
      J. Fred Jones, Justice,

text:
    REDBARN CHEMICALS, Inc. v. F. K. BRADSHAW Sr. et al
    73-23
    494 S.W. 2d 720
    Opinion delivered May 28, 1973

      Garland Q. Ridenour, for appellant.

      Richard E. Griffin and Robert J. Johnson, for appellee.
   George Rose Smith, Justice,

This action was brought by Redbarn Chemicals, Inc., to recover judgment upon an $11,479.91 open account for agricultural chemicals and fertilizers sold by Redbarn to the defendants, F. K. Bradshaw, Sr., and his son. The trial court, sitting-without a jury, sustained the defendants! contention that the plaintiff’s claim was void for usury. For reversal Red-barn argues on direct appeal that the Bradshaws failed to prove that the debt was usurious.

We find the proof sufficient to support the judgment. The account extended over a period of many years. It was Redbarn’s practice to send a monthly statement to the debtors, showing the previous balance, the debits and credits during the month, the finance charge that was being added for the month, and the new balance. The statement for the period ending April 28, 1970, showed a previous balance of $12,739.97. and a finance charge of $126.40, which was recited to be “computed by a periodic rate of 1.00% per month which is an annual percentage rate of 12.00%.” Thus according to Redbarn’s own statement an interest charge exceeding the legal rate of 10% per annum was imposed for the month in question.

Redbarn advances three arguments in its effort to rebut the prima facie showing of usury. First, it is contended that the excessive charge was due to an innocent mistake on the part of the person who operated the computer that printed the monthly statement. According to Redbarn’s testimony, the company does business in a number of states. Its usual finance charge is 12% a year, but in Arkansas it charges only 10%. A Redbarn witness theorized that the overcharge was due to the computer operator’s failure to punch the right key in feeding data into the machine.

Apart from the issue of credibility that is inherent in Redbarn’s testimony, contradicting evidence was adduced by the debtors. Bradshaw, Jr., testified that when he claimed certain credits which Redbarn refused to recognize, Redbarn’s agent Wheatly threatened to impose a 1% monthly interest charge if Bradshaw did not pay the account as rendered. Wheatly was not called as a witness to deny Bradshaw’s testimony. According to Bradshaw’s recollection, the next monthly statement that he received after Wheatly’s threat was the one containing the excessive charge. Unquestionably that testimony constituted substantial evidence upon which the trial court could find that the charge was deliberate. Furthermore, a Redbarn witness admitted that the company had made other similar overcharges in Arkansas.

An honest mathematical miscalculation may be shown to avoid a charge of usury. Cox v. Darragh Co., 227 Ark. 399, 299 S.W. 2d 193 (1957). On the other hand, a factual finding of usury is often made even though the creditor insists that he made an innocent error. Ford Motor Credit Co. v. Catalani, 238 Ark. 561, 383 S.W. 2d 99, 11 A.L.R. 3d 1494 (1964); Holland v. C. T. Doan Buick Co., 228 Ark. 340, 307 S.W. 2d 538 (1957); Brooks v. Burgess, 228 Ark. 150, 306 S.W. 2d 104 (1957). This being a law case, the controlling test on appeal is whether the trial court’s judgment is supported by substantial evidence. Holland supra; Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972). The testimony that we have narrated is manifestly substantial in quality.

We are not impressed by the suggestion that the usurious charge was made by Redbarn unilaterally, without the debtors’ knowledge or acquiescence. The unpaid account was of long standing. For more than two years its amount was in excess of $10,000. There is no suggestion in the record that the Bradshaws expected to be financed by Redbarn without any interest charge. According to the proof, monthly computerized statements, including a service charge, had been sent by Redbarn for a full year before the excess charge was imposed. After the date of the excessive charge the Bradshaws were credited with seven payments upon the account, the largest being a $3,000 payment on February 11, 1971. On November 2, 1971, in the month before Redbarn filed this suit, Bradshaw, Jr., wrote a letter in which he recognized his debt of $11,479.91 to Redbarn and outlined the steps that he was taking to make payments on the debt. Thus the trial court was justified in concluding from the overwhelming weight of the evidence that the Bradshaws were aware of the monthly finance charges, that they voiced no objection to those charges, and that they made payments upon the account with knowledge that the charges were included.

Secondly, Redbarn argues that no evidence except the April, 1970, statement (or invoice) may be considered, because counsel stipulated at the beginning of the trial that “the defense of usury raised by the defendant pertains to one invoice only, that invoice being dated April 28, 1970 . . . . This invoice ... is the only invoice in issue pertaining to the defense advanced by the defendant.” In our opinion the plain language of the stipulation merely excluded all the other invoices from consideration and did not exclude other evidence. Moreover, counsel for both sides so construed the stipulation in the trial court, for they both adduced relevant proof in addition to the invoice itself.

Thirdly, Redbarn introduced proof tending to show that if all its twelve monthly finance charges during the calendar year 1970 were added together, the overall interest rate would be only 9.69%, despite the excessive charge in April. That theory of the case is not supported by the proof. There is no suggestion that interest was charged by the year rather than by the month. In fact, an annual charge would have been impossible, because the amount of the open account varied from month to month as debits were added and credits were given. The creditor’s intention was undoubtedly to impose a finance charge upon each monthly balance. Hence the present argument is actually an effort to retroactively purge the account of the taint of usury, which cannot be done. See the Catalani and Brooks cases, supra.

There is also a cross appeal. When Redbarn filed its complaint in December, 1971, it attached the defendants’ harvested crops. In the following month the attachment was dissolved, on the defendants’ motion, for want of any statutory ground to support it and without loss to the defendants. They now contend that they should be awarded an attorney’s fee for their successful defense of the attachment.

Our longstanding rule has been to deny counsel fees in such a situation, but in Young v. Farmers Bank & Tr. Co., 248 Ark. 613, 453 S.W. 2d 47 (1970), we expressed a willingness to re-examine our position in an appropriate. case. This, however, is not such a case. In jurisdictions allowing such fees the award is made only for the defense of the wrongful attachment as distinguished from the defense of the main case on its merits. See Great American Indemnity Co. v. Sweetwater Mining Co., 74 Nev. 219, 326 P. 2d 1105, 65 A.L.R. 2d 1422 (1958), and especially the A.L.R. annotation. Here the record provides us with no basis for fixing a fee with respect to the attachment only. Apparently an evidentiary hearing was held, but if so the testimony that was taken is not in the record. Hence it would be academic for us to re-examine our rule at this time, for the record does not justify the allowance of a fee even if one were proper.

Affirmed.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. As I read the constitutional prohibition against usurious interest and the cases of this court applying the constitutional penalty for usurious exaction, I am persuaded that the majority opinion, under the facts of this case, goes further than we have previously gone and further than I am willing to go.

Article 19, § 13, of the state Constitution provides as follows:

“All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law; but when no rate of interest is agreed upon, the rate shall be six per centum per annum.” (My emphasis).

In the case of Briggs v. Steele, 91 Ark. 458, 121 S.W. 754, this court said:

“To constitute usury, there must either be an agreement between the parties by which the borrower promises to pay, and the lender knowingly receives, a higher rate of interest than the statute allows for the loan or forebearance of money; or such greater rate of interest must be knowingly and intentionally ‘reserved, taken or secured’ for such loan or forebearance. It is essential, in order to establish the plea of usury, that there was a loan or forebearance of money, and that for such forebearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved.
The wrongful act of usury will never be imputed to the parties, and it will not be inferred when the opposite conclusion can be reasonably and fairly reached.”

This same rule was reiterated in the case of Briant v. Carl-Lee Brothers, 158 Ark. 62, 249 S.W. 577.

I am not unmindful of such cases as Wilson v. Whitworth, 197 Ark. 675, 125 S.W. 2d 112, and Brittian v. McKim, 204 Ark. 647, 164 S.W. 2d 435, where we held that it is not essential that both parties must agree to the usurious rate of interest before the contract may be void, but in those cases the usurious rate of interest and the charges relate back to the inception of the contract. In Wilson the debtor signed a blank note which turned out to be usurious. He borrowed and received $150 but the note was for $259.11 secured by life insurance on which the lender received commission.

In the case at bar the Bradshaws purchased chemicals, fertilizers and seeds from Redbarn on open account over a period of approximately five years. When the suit was filed, Redbarn claimed that the Bradshaws owed $11,-479.91 on the open account. The invoices on purchases went out from the commission agent’s office in Arkansas and statements were mailed out from Redbarn’s home office in Oklahoma. Mr. Lawrence, the commission agent, admitted, and it was also stipulated, that there was one invoice in the running account for merchandise delivered to the Bradshaws which indicated a service charge of 1% per month but he testified that he knew nothing about this charge until the suit was filed in this case and I am satisfied with Redbarn’s explanation of this one invoice as hereafter indicated.

This entire case comes down to the proposition that the Bradshaws purchased merchandise from Redbarn on an open account with no contract agreement or understanding as to interest. Redbarn sent out periodic statements to its credit customers and if the account was not paid within 50. to 90 days, Redbarn unilaterally started charging a service charge on all unpaid balances amounting to 1% per month on the unpaid balances in all states except Arkansas. The Arkansas accounts were computerized on the basis of .79% to stay within the 10% limitation, and this amount was charged on, and added to, the unpaid balances of the delinquent accounts in Arkansas beginning with the third monthly statement after the original purchase.'

Mr. Bradshaw testified that the difficulty arose over his account when Redbarn delivered more seed and chemicals than he needed and refused to take the excess back as they had agreed to do. He said that he used about $12,000 worth of the seed and that the excess seed and chemicals he could not use, amounted to between $700 and $1,000. He said that Redbarn agreed to pick these items up and give credit for same but failed and refused to do so. He said that Mr. Wheatly and Mr. Dodson came to see him about the account and he told them of the agreement he had with their commission agent, Mr. Lawrence, as to picking up and giving credit for the excess seed and chemicals, and that he told them he thought they should square the account up before they could expect full payment. Mr. Bradshaw then testified as follows:

“Q. All right. Now, did you have other conversations with this Mr. Wheatly?
A. Yes, Mr. Wheatly called on me several times. On one occasion, Mr. Wheatly told me I should pay the account, and I told him that we were still at odds on it, and he told me that the company was going to charge me one percent per month on it, on the thing, if you didn’t pay it. And, then Mr. Wheatly after our conversation, left.” (My emphasis).

Mr. Bradshaw said that after he had this conversation with Mr. Wheatly he started receiving statements with additional interest designated.

It is my opinion that Redbarn made a logical explanation of an honest error in computerizing the one invoice on which the charge of 1% per month was made; but, I would reverse this case simply because this was a suit on a running open account in which Mr. Bradshaw owed no interest and agreed to pay none, and on which no interest was charged to him until the unpaid account was 90 days old. He failed and refused to pay the account simply because he contended that Redbarn had breached the contract made between him and Redbarn’s commission agent when he purchased some seed and chemicals in connection therewith. It was while Mr. Bradshaw was withholding payment of approximately $12,000 he admits owing on the account, that Redbarn’s representative threatened to charge him 1% interest per month if he did not pay the full account.

In the case of Mitchell v. Duncan, 190 Ark. 598, 79 S.W. 2d 997, Duncan purchased furniture from Mitchell in the amount of $274.26 and executed a note for that sum. Three payments were endorsed on the note but Duncan insisted that a $70 payment was made and only $50 was credited on the note. A subsequent agreement was endorsed on the note which recited: “By agreement the balance on this note with interest to date is one hundred and ninety dollars ($190).” This memorandum was signed by Mrs. Duncan and her mother. On a suit to collect the note the defense of usury was interposed. This court held that there was no testimony warranting the submission of the question of usury to the jury. A statement was sent to Mrs. Duncan and her mother showing the balance due on the note less the credits thereon to the date of its renewal, and the statement also showed the alleged balance on renewal with interest compounded at ten per cent. In that case we said:

“There was no authority to compound the interest; neither was there any agreement to pay compound interest. A wrongful demand for excessive interest would not constitute usury where there had been no agreement to pay it.”

In Blalock v. Blalock, 226 Ark. 75, 288 S.W. 2d 327, it was stated:

“Usury consists in contracting for payment of interest greater than the law allows. Usury is not to be inferred when neither the borrower promised to pay a greater rate of interest than the law permits, nor the lender knowingly entered into a usurious contract.”

It is my opinion that Mr. Bradshaw had a right to withhold payment until his rights under the alleged breach of contract could be determined; and, having agreed to pay no interest when he entered into the contract for the seed and chemicals, he should have simply tendered to Redbarn’s agent or into court the amount he admitted he owed, and should have refused to pay interest, certainly in an amount more than 6% per annum, on the account Redbarn claimed was delinquent.

I would reverse this case and remand for a new trial for a determination of the amount Mr. Bradshaw owes under his claim of breach of contract, with any interest to which Redbarn may be entitled limited to the legal rate of six per cent.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Harold Ray STONE v. STATE of Arkansas
    CR 73-19
    494 S.W. 2d 715
    Opinion delivered May 28, 1973

      Nolan, Alderson & Jones, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a petition for postconviction relief under Criminal Procedure Rule 1. The petitioner, charged with first degree rape (then a capital offense), entered a negotiated plea of guilty to second degree rape and was sentenced to confinement for 21 years. He now asserts that his plea of guilty was motivated by fear, in that his court-appointed counsel told him that if he resisted the charge of first degree rape he would probably receive the death sentence. The trial judge denied the petition without an evidentiary hearing, holding, under Rule 1 (C), that the record made when Stone pleaded guilty showed conclusively that his plea was voluntary. The principal issue here is whether a hearing should have been ordered.

Stone was accompanied by his counsel when he pleaded guilty to second degree rape. The trial judge, before accepting the plea, questioned Stone in detail. Stone assured the court that his plea was voluntary, that there had been no duress, threat, enticement, or promise of reward, that he had discussed the matter with his two court-appointed attorneys and was satisfied with their services, that he knew that he was waiving his right to a jury trial, and that he understood the terms of the negotiated plea.

We quote the allegations of Stone’s petition, with respect to the point now at issue:

“That the court-appointed counsel, Winston Byron Thomason, was incompetent in as he refused to ask the Court for á change of venue. Counsel further stated that if he fought the case, he, the Defendant, would probably end up with the electric chair. That the only choice he the defendant had, was to take a twenty-one (21) year sentence. After several conferences between my court-appointed counsel and the Prosecuting Attorney, portions of which were relayed to me by my court-appointed attorney in behalf of the Prosecuting Attorney, I was placed in such fear as to be [un]able to adequately confer and consult with my court-appointed attorney, due to the undue pressure brought to bear upon me by the Prosecuting Attorney and counsel.”

We have considered similar situations in earlier cases, but none of our prior opinions is so directly in point as to be controlling. In Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95 (1972), we directed that an evidentiary hearing be held, but the record made when the plea of guilty was accepted in that case was not as comprehensive as it is in the case at bar. In fact, we stated that the record would have been much clearer if the trial judge had inquired of the accused if he was satisfied with the services of his attorney. That inquiry was made here. In a later case, Stallins v. State, 254 Ark. 187, 491 S.W. 2d 788 (1973), we sustained the trial court’s refusal to order an evidentiary hearing, saying: “Before accepting the plea and sentencing appellant to twenty years in the Department of Corrections, the trial court not only satisfied himself that appellant was voluntarily pleading guilty to a crime he had committed but caused a record to be made of the proceedings had. This record clearly demonstrates that there is no merit to the many contentions that appellant now makes.”

The pivotal question in the present case is whether the allegations in Stone’s petition, which we have quoted, contain sufficient statements of fact to raise substantial doubt about the voluntary nature of his plea, in view of the record that was made when the plea was entered. In studying that question we have been enlightened by two recent decisions construing the federal statute, which, like our Rule 1, contemplates the denial of a postconviction petition when the record shows conclusively that the prisoner is entitled to no relief., 28 U.S.C. § 2255.

In Fontaine v. United States, 411 U.S. 213 (1973), the petition contained detailed statements of fact describing events pertinent to the petitioner’s waiver of counsel and plea of guilty. It was asserted that the petitioner had been ill from a recent gunshot wound that required hospitalization, that he had been physically abused and subjected to prolonged interrogation (the precise allegations not being set forth in the court’s opinion), and that following the plea petitioner was again hospitalized for heroin addiction, for aggravation of the. gunshot wound, and for other severe illnesses. The court concluded that the record did not conclusively show thal. the petitioner was entitled to no relief.

On the other hand, in United States v. Journey, 474 F. 2d 1003 (8 Cir. 1973), a petition asserting that a plea of guilty had been involuntary was denied because the petition “was too vague and was stated in conclusory terms.” From the opinion:

“Many extrinsic circumstances may serve as motivation for a defendant to enter a plea of guilty and forego a jury trial. However, where the record demonstrates that a factual basis exists for the plea, that at the time of the guilty plea the defendant admitted that it was voluntarily and freely given without promises, and that Federal Rule of Criminar Procedure 11 was given full compliance, the petitioner then faces an uphill climb to overcome the consequences of the plea. As we observed in Langdeau v. South Dakota, 446 F. 2d 507, 509 (8 Cir. 1971):
“ ‘Petitioner’s deliberate choice to waive trial cannot be easily eradicated years after the event. Many considerations may influence a defendant to plead guilty. However, these influences cannot serve to set aside a guilty plea made where counsel is present and the defendant is shown to be capable of making a deliberate and knowing decision.’ ”

Here, as in Journey, the petitioner’s allegations are vague and conclusory. It is charged that counsel refused to ask for a change of venue, but no basis in fact for such a request is even hinted at. It is asserted that counsel stated that if Stone fought the case he would probably end up in the electric chair, but no fact is set forth to indicate even remotely that counsel’s advice was in any way inaccurate or contrary to the accused’s best interest. Pleas of guilty — especially negotiated ones — are designed to avoid the necessity of a trial, with advantages both to the State and to the defendant. It is essential that such pleas have some measure of stability. If the allegations in the case at bar are sufficient to require an evidentiary hearing, in the face of the record made when the plea was entered, then it is evident that every plea of guilty, without exception, is subject to re-examination at the whim of the prisoner. The trial court was right in refusing to order a hearing.

Stone’s petition contains other allegations, including assertions that at the time of his arrest he was not informed of his right to counsel, that he was arrested without a warrant, that he was confined for fourteen days before being taken before a magistrate or judge, and that no bond hearing was held. Those various allegations have nothing to do with Stone’s guilt or innocence. It is not asserted that the matters complained of were factors in Stone’s decision to plead guilty. Such possible defenses were waived by the plea of guilty. Wilson v. State, 251 Ark. 900, 475 S.W. 2d 543 (1972).

Affirmed.


author: Lyle Brown, Justice.

text:
    Howard C. PRATT et al v. BALLMAN-CUMMINGS FURNITURE COMPANY et al
    73-5
    495 S.W. 2d 509
    Opinion delivered May 28, 1973
    [Rehearing denied July 2, 1973.]

      Hardin, Jesson & Dawson and Pearce, Robinson ir McCord, for appellants.

      Bethell, Callaway & Robertson, for appellees.
   Lyle Brown, Justice.

The appellants are minority stockholders of Ballman-Cummings Furniture Company of Ft. Smith. They claim that by a vote of the majority stockholders of Baldwin-Cummings, the corporation, under the pretext of forming a partnership with Ft. Smith Chair Company, Inc., accomplished a de facto merger or consolidation of the two corporations. If the arrangement is in fact a partnership it is authorized by Ark. Stat. Ann. § 64-104 (B. 6) (Repl. 1966); if the arrangement constitutes a merger then the appellants, protesting minority stockholders, are entitled to be paid by the succeeding corporation, the fair value of their stock. Ark. Stat. Ann. § 64-707 (Repl. 1966).

At the close of plaintiffs’ (appellants’) case the chancellor sustained a challenge to the sufficiency of the evidence, making this finding: “Not only have plaintiffs failed to establish factually or as a matter of law a statutory merger or consolidation, sale or exchange, but they have also failed as well by their proof to establish even a de facto change to support their theory of entitlement to recovery herein. A difference of opinion with or over management alone is not sufficient.”

The Ayers family of Ft. Smith, by virtue of its stock holdings, is in control of both corporations and the corporations have interlocking directors.

The partnership agreement was executed in November 1967. It provided that the partnership would consist of two partners, naming the two corporations. The name of the partnership was designated Ayers Furniture Industries. Each partner would contribute $1500 to the initial capital of the partnership. It was agreed that each corporation would sell its merchandise to the partnership. The partnership would be responsible for all merchandising functions in connection with the promotion and sale of furniture. It would also handle billing and collection of accounts receivable. The partnership would also assume the responsibility for the delivery of furniture to customers. (It was explained by witness John Ayers, ownership of the furniture by the partnership made it possible to load furniture produced by both factories in a single trailer which otherwise was not permitted by ICC regulations.) It was also explained by the same witness that the partnership would eliminate the duplication of expenses of billing and collections. It was also provided that the partners would designate one individual as a general manager of the partnership who would be fully authorized to conduct the business and affairs of the partnership.

It would be most difficult to say that the partnership arrangement, as exemplified by the agreement which we have briefly described, constituted in and of itself a merger of the two corporations. We gather, particularly from oral argument, that appellants recognize this as a fact. On the other hand, there are well recognized in the law, de facto mergers — an association under the guise of a partnership whereby one of the corporations loses its identity as such and is actually controlled by the management of the partnership. When a particular corporate combination “is in legal effect a merger or a consolidation, even though the transaction may be otherwise labeled by the parties, the courts treat the transaction as a de facto merger or consolidation so as to confer upon dissenting stockholders the right to receive cash payment for their shares”. 15 Fletcher Cyclopedia Corporations § 7165.5.

Mr. John Ayers is the chief officer of BallmanCummings, of Ft. Smith Chair, and of the partnership. It is the position of appellants, while asserting that they do not accuse Mr. Ayers of fraud, that under his executive direction, Ballman-Cummings has lost its long standing identity in the market place. That development, so they say, has resulted in consistent annual losses by the corporation of thousands of dollars, while the profits of Ft. Smith Chair remained stable. The evidence shows that Ballman-Cummings is in the process of liquidation.

In holding as we do, we do not mean to insinuate that appellants preponderantly established a case for relief, but we do say that they , made a prima facie case. Having done so it was error for the court to grant appellees’ motion at the close of appellants’ case, particularly when giving the evidence its strongest probative force in favor of appellants. Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950).

According to appellants the events which brought about the alleged destruction of Ballman-Cummings are summarized in their brief and their argument, and absent any other explanation, are persuasive:

Not only is the separate identity of the merging corporations as marketing entities replaced by the image of a separate and new entity, but Article 2, Section 5 (Articles of Partnership) provides: “The partners shall designate one individual as a General Manager of the partnership who will be fully authorized to conduct the business and affairs of the partnership”.
Furthermore, the management, sales and bookkeeping functions of the two corporations were entirely merged together, with a single officer, not the one elected by the directors of each corporation, in charge of each function. John Ayers became the General Manager of both corporations and the partnership, or more properly of both corporations in the partnership. Prior to the merger each corporation had a sales manager, after the merger Gene Rapley who had been sales manager for Ballman-Cummings became sales manager for the combined operations, while Tom Condren who had been sales manager for Chair Company became the designer for the combined operations. Thev controller for one corporation, Mr. Layman, was placed in charge of the accounting processes for the combined operations, while the controller for the other corporation, Mr. Thompson, took over the credit collection and customer service activities of the combined operation. Dale Keller, who had been purchasing agent for Ballman-Cummings, became purchasing agent for the combined operations, while Mr. Keller who had been with Chair Company became the chief assistant in the purchasing department.

Whether there is a correlation between the shifting of the described responsibilities and the resultant folding of Ballman-Cummings is not the question; the question is whether a prima facie case was made. We think it was. We might add that no solid reason was given by Mr. Ayers for Ballman-Cummings’ collapse. There was only a general statement that it was due to economic reasons. Mr. Ayers said he had no explanation why the loss of Ballman-Cummings rose so severely except “apparently loss cycles that we had been experiencing, the problems we had been experiencing in production were pyramiding on us during that year”. Appellees are also burdened by the fact that the partnership was proposed on the basis that it would increase profits, which of course it did not do.

This statement from Werbe v. Holt, supra, is apropos in the case before us:

Furthermore, in many instances the plaintiff’s prima facie case must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture. If the case goes to the trier of the facts on the plaintiff’s proof alone, the defendant has the advantage of not exposing weaknesses in his own armor unless called to the witness stand by his adversary. For these reasons we have no hesitancy in adopting the majority rule as to the function of a demurrer to the evidence.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Andrew J. GREEN and Doris F. GREEN v. Mack C. OWENS, Jr.
    73-41
    495 S.W. 2d 166
    Opinion delivered May 28, 1973
    [Rehearing denied June 25, 1973.]

      Paul K. Roberts, for appellants.

      Ronald L. Griggs and Camp & Thornton, P.A., for appellee.
   John A. Fogleman, Justice.

Appellants contend that the chancery court erred in refusing to decree foreclosure of their agreement for the sale of a newspaper. The chancery court denied this relief upon a holding that appellants had released appellee from any and all responsibility under the agreement. Even though there is considerable conflict in the evidence as to the tenor and effect of conversations and conduct of the parties, we affirm because we are unable to say that this finding was clearly against the preponderance of the evidence.

Appellants were the owners of two newspapers as partners. They combined the two into one publication called "Calhoun Herald and Arkansaw Plain Dealer.” They sold it on July 10, 1964, to J. W. and Marilyn Lindsey for $10,000, retaining a lien for $8,000 deferred purchase price, payable in monthly installments of $50 each, with interest at 6% per annum. The sale included all printing equipment and other personal property used in the publication of the paper. A seller’s lien was retained by appellants. On July 14, 1965, the Lindseys sold the newspaper to appellee Mack C. Owens. Part of the consideration for the sale was Owens’ agreement to assume the $7,887.14 balance of the purchase price the Lindseys owed appellants. The contract between the Greens and the Lindseys prohibited a sale or assignment without written consent of appellants, but consent to the sale to Owens was given. Owens continued the operation of the newspaper and made payments on the indebtedness until December 15, 1966, at which time the unpaid balance on the contract of sale amounted to $7,722.60. Appellee defended upon the ground that he had been released from his obligation to pay the balance due on the purchase price and that all the equipment covered by the agreement had been returned to appellants.

It was admitted by appellant Andrew Green that appellee was threatening to cease publication of the newspaper after making a payment about December 15, 1966, and that he asked appellee to keep it going. Owens advised Andrew Green at the time, by telephone that the newspaper was not profitable. Owens testified that he told Green in the spring of 1967 that he could not make a go of the newspaper and was trying to find someone to take over the purchase agreement. He said that Green told him to forget about the notes and continue publication until Green could get someone to take the newspaper off his hands and promised Owens $2,500 if he would do so. Owens states that Green remarked that it was necessary that the status of the paper as a “legal publication” be maintained until a buyer was found. According to Owens, Green later stated that he had advertised the paper for sale and that he would pay Owens a commission to sell it. Green admitted that he advertised the paper for sale in the Trade Journal during 1967 and 1968, pricing it at $11,000 and that he would have paid Owens a commission for arranging a sale which avoided the necessity of Green’s returning to Arkansas from Orange, Virginia, where he had resided since the sale to the Lindseys. He also admitted that continued operation of the newspaper was essential to its sale and that Owens kept it going.

At some time following his conversation with Green, Owens left Hampton, where the newspaper was published, and accepted employment in Tyler, Texas, leaving his brother Buddy Owens and the brother’s wife Nell Owens in charge of the newspaper, the publication of which was continued until April 10, 1969. In September 1967, Owens had contracted for the purchase of “offset” printing equipment. The reason for changing to this equipment, according to appellee, was his inability to employ persons experienced in the use of the original equipment. The equipment formerly used in the printing of the newspaper was called hot press or hot-type equipment, and the offset equipment was referred to as cold-type equipment. Owens said he also moved the operation to another location because there was not sufficient room for the offset equipment, but took nothing from the old building except a typewriter and an enlarger.

Thereafter, Green entered into an agreement with one Haynie for the sale of the newspaper. Haynie sent $100 to Green at Orange, Virginia, as earnest money to evidence his interest, and an agreement for the sale was made after Green came to Hampton in August 1968. Haynie then paid Green an additional $500. Green could not recall the terms of the sale and referred questions about it to Haynie. He did ask Buddy and Nell Owens to stay and assist Haynie, and they agreed to continue as employees of Haynie. Green considered the transaction complete and unconditional, except for preparation of a written contract, and returned to his home in Virginia and did not return to Hampton until January 1971. He then found that appellee was working in Tyler, Texas. In the intervening period, Mack Owens had been advised of the sale by both Green and Haynie, but when Haynie did not take over the operation, Owens gave up his employment in Texas in October 1968 and returned to Hampton and took charge of the newspaper. Green refunded the money paid him by Haynie on December 5, 1969. He said that he did not make the refund earlier because Haynie had not requested it. The testimony as to the reason Haynie did not complete the transaction is in hopeless conflict and confusion. Green contends that Owens refused to turn the plant over to Haynie, and Owens denies this. Green relied upon letters from Haynie in arriving at his conclusion, but did not produce them. He said that he was not sure what was going on in Hampton and did not even receive copies of the newspaper. Owens claimed that when he tried to find out when Haynie was to take over, he was unable to communicate with Green, and that he heard nothing from Green between October 1968 and December 1971. He said that he returned to Hampton and continued the operation because he could find no one to take over.

Green admitted having written appellee in April 1968, authorizing appellee to discount a proposed selling price of $9,000 if necessary for a quick sale, and agreeing that, on a cash sale, appellee should receive one-third of the purchase price, “free and clear,” from Green. If, however, Green had to “finance” a sale, he said, the price was to be $9,000, $2,250 of which was to be paid in cash with monthly payments of at least $60 on the balance. Under the latter arrangement, Owens was to receive one-half the down payment as “get-away money,” and a balance depending upon the purchaser’s record of payments. Under either arrangement, the net amount to be received by appellants from the new purchaser would have been considerably less than the amount due from appellee. The clear implication of the letter is that Owens would be relieved of his debt to appellants, at least when such a sale was made.

At the time of the alleged sale to Haynie, Green must have known of Owens’ removal of the operation to a new location, because he testified about having gone to the old plant in July 1968 for the purpose of cleaning up the equipment. Owens testified that Green had never demanded payment of the indebtedness.

Haynie testified that there was never a firm contract for his purchase of the newspaper because he could never get Green and Owens to agree on a price and never could get possession. After the transaction with Green, Haynie and his wife went to the old plant preparing to clean it up, but Haynie said he was advised by Owens that he was intruding. Háynie knew, when he made his $500 payment to Green, that no newspaper could be published without the old equipment being repaired. Green’s testimony seems to clearly indicate that only the “hot-type” equipment was inspected and discussed during his negotiations with Haynie. Haynie also stated that his agreement was to take this equipment, and that he did not know how to operate the offset equipment. Yet Haynie attributed his failure to complete the purchase to his learning that Owens expected him to buy the new equipment. Haynie said that Owens made this additional purchase a condition for surrender of possession of the newspaper. He admitted that Owens never did anything to discourage him from purchasing the newspaper, except to come to the old plant and point out the equipment Haynie was supposed to be buying.

Owens’ version was somewhat different. He said that the subscription list and equipment which Haynie had purchased would have been delivered upon Haynie’s request, and that he returned to Hampton because he never heard from.Haynie, although he had asked to be advised when Haynie was ready to take over the newspaper. According to Owens, the. conversation about the offset equipment consisted only of his answer that he was going to sell it and would have to get the $6,000 he owed on it, when Haynie asked what he was going to do with it.

We are unable to say that the finding that appellee was released from his obligations on the contract of purchase is not supported by a preponderance of the evidence. We certainly are unable to say that the chancellor’s finding that appellants had accepted re-delivery of the property purchased from them by appellee, had exercised dominion and control over it and had at least attempted to sell it was clearly against the preponderance of the evidence. These facts are certainly corroborative of the evidence of a specific release by Green, who was clearly authorized to act for the appellants. A release is a contract requiring consideration. Hayes v. McGuirk, 188 Ark. 1167, 66 S.W. 2d 281; Golf Shaft & Block Co. v. O’Keefe, 200 Ark. 529, 139 S.W. 2d 691. Owens’ agreement to continue the operation of the unprofitable newspaper to prevent loss of its value after he had decided that he was unable to continue to publish it was sufficient consideration to support a release by Green. The contract of sale did not obligate Owens to continue publication, and he had a legal right to abandon it and follow the employment he had secured in Texas. His forbearance of this right at Green’s instance and his performance of an act he was not obligated to do were adequate consideration for a release. The waiver of a legal right or forbearance to exercise it is sufficient consideration for a release made because of the waiver or forbearance. 76 C.J.S. 637, Release § 16; 17 Am. Jur. 2d 441, Contracts § 97, 470, § 124. See Gage v. Blount, 161 Ark. 238, 255 S.W. 879.

We recognize that there is evidence contrary to the chancellor’s finding. Appellants rely heavily upon the fact that appellee continued to publish a newspaper in Hampton which he called “Southern Arkansas Accent.” The first issue of this publication appeared on April 17, 1969, was mailed to all Herald and Plaindealer subscribers, and appellee published legal notices therein in spite of a requirement that, to be eligible, the newspaper must have been published regularly for at least 12 months or be the legal successor of such a publication. It might well have been said that the new publication was a continuation of the old. In the meantime, however, according to Owens, both Green and Haynie had said the former newspaper had been sold to Haynie, and he had not been advised when Haynie would take over or of any reason why he did not. The conflicts in the various versions of events, after Owens told Green in early 1967 that he could no longer continue publication, raise questions of credibility on which we must defer to some extent to the superior perspective of the chancellor.

We are unable to agree with appellants’ argument that a stipulation between the parties during the course of the trial constituted an acknowledgment by appellee that he had not been released. The chancellor took that stipulation simply as an agreement that the amounts stated by appellants as the balance remaining unpaid after appellee’s last payment and the interest accrued thereon were correctly stated, if indeed, appellee owed the debt to appellants. This relieved appellants of further proof of these amounts. There was nothing in the stipulation to indicate an abandonment of appellee’s principal defense, i.e., that appellants had released him from any obligation.

Since we are unable to say that the chancellor’s holding is clearly against the preponderance of the evidence, the decree is affirmed.


author: J. Fred Jones, Justice.

text:
    Leonard Elgy CLEM and Ernest Odell GILBERT v. STATE of Arkansas
    CR 73-2
    495 S.W. 2d 517
    Opinion delivered May 28, 1973
    [Rehearing denied July 2, 1973.]

      Harold L. Hall, Public Defender, by: Garner L. Taylor Jr., Deputy Public Defender, for appellants.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Leonard Elgy Clem and Ernest Odell Gilbert were convicted of burglary of a Minute Man Restaurant in Little Rock and upon proof of at least three prior convictions they were sentenced to the state penitentiary for a period of 31 years.

On appeal to this court the appellants have designated three points for reversal. Under points one and three they contend that when evidence of prior convictions is used in connection with applying the Habitual Criminal Act, Ark. Stat. Ann. § 43-2328 (Repl. 1964), a prior judicial determination as to whether the defendant was represented by counsel at the prior convictions is essendál, and that this requirement is not merely retrospective in application. We do not disagree with the appellants in this connection but under appellants’ second point they also contend that when the state seeks to introduce a certified record of a previous conviction for the purpose of applying the Habitual Criminal Act, the record must clearly indicate on its face the identity of the counsel representing the defendant. We do not agree with this contention.

About 1:30 A.M. Clem and Gilbert were apprehended crawling across the floor inside the Minute Man Restaurant which had been closed about midnight. They had crowbars and other burglary tools in their possession; the door of the restaurant had been pried open; the head had been lifted from a floor safe and one of the appellants had a .22 revolver in his hip pocket. They do not question the sufficiency of the evidence to sustain the burglary conviction. They were represented at their jury . trial by court-appointed counsel and on this appeal they are represented by the Public Defender.

The certified copies of prior convictions complained of by Clem recited that he waived the assistance of counsel and entered his plea of guilty to a violation of the Dyer Act in the United States District Court at El Paso, Texas, on October 4, 1957; that on March 31, 1961, in Criminal District Court No. 2 of Dallas County, Texas, he entered a plea of guilty to the charge of burglary and was sentenced to not less than two nor more than three years in the penitentiary. The record recites that he appeared in person, “his counsel also being present and both parties announced ready for trial.”

The record recites that on November 16, 1964, Clem was sentenced to five years upon a plea of guilty to burglary in the Twelfth Judicial District Court of Gregg County, Texas, and the record in that case recites that he “appeared in person, his counsel also being present, and both parties announced ready for trial. . .” The record from the United States District Court for the Eastern District of Texas recites that on January 13, 1965, Clem waived the right to the assistance of counsel and entered a plea of guilty to entering the Lone Star National Bank at Lone Star, Texas, with the intent to commit larceny and was sentenced to seven years imprisonment.

The certified records as to Gilbert recite that he was convicted of robbery on a plea of guilty in Marion County, Texas, on June 22, 1953. The typewritten record in that case also recites that he “appeared in person and his counsel also being present both parties announced ready for trial.” A jury fixed the term of his punishment at five years in the penitentiary. Under date of January 30, 1956, the record shows that Gilbert was sentenced to two years in the penitentiary from the Criminal District Court No. 2 of Dallas County, Texas, on a plea of guilty to the charge of theft of personal property and the record of this conviction recites that Gilbert “appeared in person, his counsel also being present and both parties announced ready for trial.”

Under date of June 15, 1961, Gilbert was convicted by a jury verdict in the Criminal District Court No. 2 of Dallas County, Texas, on the charge of burglary and was sentenced to four years in the penitentiary. The record in this case also shows that Gilbert “appeared in person, his counsel also being present and both parties announced ready for trial.” Under date of November 6, 1964, Gilbert was sentenced to five years for burglary on a plea of guilty in the Twelfth Judicial Court of Gregg County, Texas. The record in this case also shows he “appeared in person, his counsel also being present and both parties announced ready for trial.” Under date of November 23, 1964, Gilbert entered a plea of guilty in the Criminal Court No. 2 of Dallas County, Texas, to the charge of burglary and was sentenced to not less than two nor more than five years in the state penitentiary, and the record in this case also shows that he “appeared in person, his counsel also being present and both parties announced ready for trial.”

The appellants rely heavily on our recent decision in the case of Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600, but they read more from the Wilburn case than we wrote into it or intended. In Wilburn, when he entered his plea of guilty, the docket entry simply recited:

“. . . [Cjomes the State of Arkansas by its Prosecuting Attorney and the defendant in person and being informed of the nature of the charge in the information and penalty of conviction hereof for plea herein says he is guilty of burglary and robbery.”

In that case we said:

“It will be noted that nowhere in this docket entry of judgment is it recited that Wilburn was represented by counsel or that he had waived counsel, but on the contrary the record indicates that no defense counsel was present. The docket entry does indicate that the court officials were present; that the state appeared by its prosecuting attorney and the defendant appeared in person. Wilburn’s objections to the introduction of this evidence appears as follows:
‘We object to this on the grounds that there is nothing in here reflecting that the defendant, on this date, was represented by counsel, or had waived counsel. The record affirmatively states the presence of several individuals but it is completely silent as to any attorney whatsoever other than the Prosecuting Attorney.

The appellants argue that the reference made to the presence of counsel in the certified copies of prior convictions was in printed form. Even so, we cannot assume that the Texas courts would use printed forms stating that counsel was present when in fact none was present. We can reasonably assume that the appellants knew whether they were or were not represented by counsel when they were convicted in Texas, but in any event, there was no objection to the introduction of the evidence pertaining to the prior convictions at the time the appellants were tried in the case at bar.

The judgment is affirmed.


text:
    Fred Carroll LUCAS and Ronnie Ray LUCAS v. STATE of Arkansas
    CR 73-31
    494 S.W. 2d 705
    Opinion delivered May 28, 1973
    [Rehearing denied July 2, 1973.]

      Fred A. Newth, Jr., for appellants.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Fred and Ray Lucas were convicted of abusive language defined as a breach of the peace under Ark. Stat. Ann. § 41-1412 (Repl. 1964) and were sentenced to 90 days imprisonment on the Pulaski County Penal Farm. On appeal to this court they rely on a single point stated as follows:

“Ark. Stats. Ann. § 41-1412 (Repl. 1964) is so vague and overbroad as to violate the freedom of speech guarantee of the First and Fourteenth Amendments to the Constitution of the United States.”

The pertinent part of § 41-1412, under which the appellants were charged and convicted, reads as follows:

“If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, shall be deemed guilty of a breach of the peace, and upon conviction thereof shall be punished by a fine of not less than five [$5.00] nor more than two hundred dollars [$200] or by imprisonment in the county jail for not less than one [1] nor more than six [6] months. . . .”

The sufficiency of the evidence to sustain the conviction is not questioned on this appeal so we shall only refer to so much of it as is necessary to this opinion. Officer J. B. Williams of the North Little Rock Police Department testified that about 11:55 P.M. he wafc on routine patrol in the performance of his duties, ánd as he drove his police patrol car through a parking lot adjacent to a motel and restaurant, he heard some loud language. He said he thought some people were fighting or something, so he rolled the glass down on his patrol car and heard one of the appellants say: “Well, there goes the big, bad m— f— cops.” He said he ignored the language he heard but as he slowly drove on through the parking lot, the “language increased and it got worse and louder.” He said that at this point it dawned on him that the appellants were referring to him. He said he drove his patrol car over near a big parking sign and the abusive language continued toward him. He said as he pulled over behind the sign, the appellants said: “Look at the-,-, hide over there behind that sign.” He said he then drove back across the parking lot and the appellants continued to curse, “they said, ‘Now the sorry son-of-a-bitch is going to come back over here.’ ” He said he parked his patrol car and by that time the appellants had gone inside the restaurant. He said that after he and other officers got the appellants into the patrol car under arrest, they spat on him, continued to call him s.o.b. and used other vile and obscene language about his mother and father. The exact language deleted above as well as the gutter type language concerning the officer’s mother and father is set out in the record, but would be of no literary or judicial value if repeated here.

Fred Lucas testified that another officer had given his brother Ronnie a traffic ticket he and Ronnie did not think they deserved and they were angry about that. Fred Lucas said he did not remember spitting on Officer Williams. He admitted calling him a s.o.b. several times and testified that if that epithet was directed to him, it would make him angry. He did not deny using the other language attributed to him by Officer Williams.

The appellants cite several United States Supreme Court decisions as support for their argument that Ark. Stat. Ann. § 41-1412 (Repl. 1964) is so vague and broad it violates the freedom of speech guaranteed by the First Amendment as applied to the states under the Fourteenth Amendment, but we find the answer to this contention in the case of Chaplinsky v. New Hampshire, 315 U.S. 568, where the-. United States Supreme Court said:

“It is now clear that ‘Freedom of speech and freedom of the press, which are protected by the First Amendment from .infringement by Congress, are among the fundamentál personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.’ Lovell v. Griffin, 303 U.S. 444, 450.
# # #
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the, right of free speech is not absolute at all dmes and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention'and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by thei| very utterance inflict injury or tend to.incite an imrnediate breach of the peace. It has been well observed that such utterances are no essential part of any exjibsition of ideas, and are of such slight social'value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social ir>< crest' in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitútion, and its punishment as a criminal act would raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S. 296, 309-310.”

The other cases cited by the appellants have to do with breaches of peace brought about by language arousing public anger or indignation under statutes considerably different from our own. The appellants rely heavily on the case of Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972), where a Georgia statute was struck down because it was overbroad in its application and susceptible of First Amendment violations. The Georgia statute, § 26-6303, struck down in Gooding, read as follows:

“Any person who shall, without provocation, use to or of one another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.”

The Supreme Court held in Gooding that the state courts had failed to narrow the application of the statute to “fighting words” which “by their very utterance” would tend to incite an immediate breach of the peace and, therefore, the statute on its face was vague and overbroad and unconstitutional under the First and Fourteenth Amendments. The language used by the court to emphasize this holding appears as follows:

“Because earlier appellate decisions applied § 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt ‘measured by common understanding and practice’ does ¡not limit the application of § 26-6303 to ‘fighting’: words defined by Chaplinsky. Rather, that broad standard effectively ‘licenses the jury to create its own standard in each case.’ Herndon v. Lowry, 301 U.S. 242, 263 (1937). Accordingly, we agree with the conclusion of the District Court, ‘[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application.’ 303 F. Supp. at 955-956.”

The standard fixed for the jury in applying the Georgia statute was exemplified in the case of Fish v. State, 52 S.E. 737, where the Georgia Supreme Court held that a jury question was presented under the statute by the language “You swore a lie.” In Fish the standard set for the jury by the state court under the statute was as follows:

“On the trial of one indicted for using opprobrious words and abusive language, it is for the jury to determine whether under all the facts and circumstances the words used were of such character as that the use of them was calculated to cause a breach of the peace, as well as to determine whether there was provocation sufficient to excuse their use.”

The court in Gooding cited another Georgia case, Jackson v. State, 80 S.E. 20, where the opprobrious words were “God damn you, why don’t you get out of the road?” The Supreme Court in Gooding said: “Plainly, although ‘conveying . . . disgrace’ or ‘harsh insulting language,’ these were not words ‘which by their very utterance. . . tend to incite an immediate breach of the peace.”

In reference to Ark. Stat. Ann. § 41-1412 (Repl. 1964) in Holmes v. State, 135 Ark. 187, 204 S.W. 846, we said:

“It will be observed that the statute defines the character of language constituting the offense as ‘profane, violent, abusive or insulting language *** which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace,’ etc. The language used must be in its nature ‘profane, violent, abusive or insulting’ and it must be of that character which ‘in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault.’ It is not sufficient that the language used gives offense to the person to whom or about whom it is addressed, but it must be that which in its ordinary acceptation is calculated to give offense and to arouse anger.”

As we construe § 41-1412 it is narrowed to “fighting words” addressed to, toward, or about another person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault. We can conceive of no stronger “fighting words” than those employed by the appellants in this case, and there is substantial evidence they were calculated to arouse to anger the officer to whom they were spoken or addressed. As a matter of fact the appellant, Fred Lucas, admits that if the mildest of the epithets employed by him, were directed to or about him, it would arouse him to anger.

Perhaps a well-trained police officer, by virtue of his training and the nature of his profession, should be conditioned, or even immune to some extent, to’ uncomplimentary remarks from that segment of society that recognizes no bounds in the exercise of the constitutional right to free speech; but no person, whether in police uniform or not, should be expected or required to sacrifice all his own rights to human dignity and self-respect to. the perverted idea that such language as was directed to Officer Williams in this case is protected by the First Amendment to the Constitution. We conclude that the “freedom of speech” contemplated by the First Amendment to the Constitution is not even remotely involved in this case.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Sidney M. HALL et ux v. Julia Jeanette BLANFORD
    73-37
    494 S.W. 2d 714
    Opinion delivered May 28, 1973

      Dan On and Hodges, Hodges ir Hodges, for appellants.

      Harkey & Walmsley, for appellee.
   Conley Byrd, Justice.

Appellants Mr. and Mrs. Sidney M. Hall brought this action against appellee Julia Jeanette Blanford to vacate and set aside a confirmation of title decree rendered in favor of appellee pursuant to Ark. Stat. Ann. § 34-1901 (Repl. 1962), et. seq. Upon motion of appellee, the Chancellor dismissed appellants’ complaint on the ground that it constituted a collateral attack. Hence this appeal.

Appellants did not follow Ark. Stat. Ann. § 34-1910 (Repl. 1962), in seeking to set aside and vacate the confirmation decree in favor of appellee but filed a separate action in which they alleged that the confirmation decree rendered on July 21, 1971, in favor of appellee was only upon publication of warning order notifying anyone claiming any interest in the land to appear within thirty days. The complaint further alleged:

“(c) That the said Sidney M. Hall and Quanita Hall, plaintiffs herein, have claimed the land continuously, openly, exclusively, notoriously, and adversely since July 7, 1946, and that they have paid the taxes on same every year for the past twenty-five (25) years.
“(d) That plaintiffs were not notified of the pendency of this. suit even though the defendant knew that they claimed title to the land and also knew the address of the above plaintiffs and could have notified them personally of the pendency of said suit or by appointing an attorney ad litem to notify them.”

In Welch v. Burton, 221 Ark. 173, 252 S.W. 2d 411 (1952), Hensley v. Phillips, 215 Ark 543, 221 S.W. 2d 412 (1949), Union Sawmill Co. v. Rowland, 178 Ark. 372, 10 S.W. 2d 858 (1928), and Grayling Lumber Co. v. Tillar, 162 Ark. 221, 258 S.W. 132 (1924), we held that where a known claimant or one who had paid taxes thereon within seven years is not made a party defendant to a quiet title action, that party, or those claiming under him, can set aside and vacate in a separate action the decree of confirmation. Those cases also point out that the attack m such a case is a direct attack on the decree of confirmation. See also Ark. Stat. Ann. § 34-1902 and § 34-1909 (Repl. 1962).

Reversed and remanded.


author: Frank Holt, Justice. John A. Fogleman, Justice.

text:
    Tom WILLIAMS et al, Trustees of Mt. Moriah Baptist Church and Burying Ground v. Arthur CAMPBELL
    73-10
    495 S.W. 2d 512
    Opinion delivered May 28, 1973
    [Rehearing denied July 2, 1973.]

      James L. Sloan, for appellants.

      Charles A. Walls Jr., for appellee.
   Frank Holt, Justice.

Appellants, Trustees of Mt. Moriah Baptist Church and Burying Ground, initiated this action in 1959 by a complaint to quiet title and to enjoin appellee from using any portion of a 20 acre tract of land which the appellants claim their predecessors acquired by deed from the state land commissioner in 1950. The appellee answered and denied the validity of appellants’ title and affirmatively asserted fraud by the appellants’ predecessors in procuring the deed. Specifically, the appellee alleged that “said land was not set aside as a church or burying ground but was used by the school district for school purposes and all affidavits filed with the Land Commissioner are false.” A few months later the Pulaski County Special School District filed an intervention alleging ownership of the 20 acres; that it had always been used for school purposes and exempt from taxation; that it had conveyed the land by quitclaim deed to appellee in 1957, reserving the right to use the land for school purposes and that the intervenor now has need of the lands for school purposes. The school district asked that title be quieted in it. A copy of the quitclaim deed to appellee was made an exhibit to the intervention. The Trustees responded and in substance denied the allegations. The case was dormant until 1971 when appellee secured a temporary order restraining appellants from using certain portions of the improved land for burial purposes. Thereafter, the appellants secured an injunction against appellee. Shortly before the trial, the school district, the intervenor, asked that it be dismissed as a party to the suit stating that it had only used a small portion of the land; that the balance was used by the church and cemetery and it had no further interest in the property.

A decree was rendered by the chancellor invalidating appellants’ 1950 land commissioner’s deed and awarding divided possession of the 20 acres to both the appellants and the appellee. For reversal the appellants first contend that the chancellor misapplied the controlling law. We cannot agree.

As appellants assert they acquired their 1950 deed pursuant to the provisions of Ark. Stat. Ann. § 10-208 (1956 Repl.), which was then in effect with respect to this type of a conveyance. It is appellants’ interpretation that the act requires only (1) a claim based upon a regular unbroken chain of title to 1889, (2) no adverse claim for 20 years subsequent to 1889, and (3) actual possession at the end of the 20 year period which is, at the most, the end of the year 1909. It is appellants’ position that they met these requirements and the 1950 land commissioner’s deed vested title in the appellants as of 1909 or at the end of the 20 year period following 1889.

In their 1950 petition to the land commissioner for a deed, appellants’ predecessors asserted that “[W]e, the undersigned, state that we are the owners and in possession of [the 20-acre tract]. Claim to title is based on ‘continuous ownership since prior to 1891 and used as a church and burying ground continuously since that date to the present time.’ ” Affidavits supported the petition’s assertion of ownership, claim of continuous possession and use of the land, for the required period, for a church and burying ground and the absence of any adverse claimants. Accompanying the petition and affidavits was a certificate from the county clerk that the 20 acres was not assessed between 1889 and 1948 because it was noted on the tax books as church and cemetery property. The deed, duly issued by the commissioner to the appellants, acknowledges "proof of its actual possession, together with its abstract and muniments of title, showing further that there are no adverse claimants.”

The chancellor, as indicated, invalidated the deed finding that the preponderance of the evidence did not indicate that the requirements of § 10-208 were met by appellants. Quoting the chancellor, “[I]t appears from the evidence that the affidavits upon which the deed was obtained were obviously in error as there were adverse claimants and that the applicants [appellants] were not in actual possession of the twenty acres.” The chancellor’s finding was properly based upon a factual issue. It is, of course, well settled that this court will reverse a chancellor’s finding of fact only when the finding is against the preponderance of the evidence. Marine Mart v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972), Home Insurance Co. v. Moyer, 252 Ark. 51, 477 S.W. 2d 193 (1972).

The appellants, of course, had the burden of proof in their quiet title action to establish their allegations as to ownership and the right to an injunction against the appellee. Appellants introduced into evidence their 1950 land commissioner’s deed together with the supporting affidavits and the county clerk’s certificate reciting that the property had not been assessed or taxes collected on it since 1889 or succeeding years inasmuch as it was not assessed because it was “church and cemetery property.”

It appears that the affiants who secured the 1950 deed are deceased. However, the appellants adduced evidence from some of the present Trustees and other witnesses that they were long time members of the church; that school was held in the church building until about 1919 when a small one room school building was placed on the land and operated as a. public school. One of these witnesses stated he assisted in securing the state deed. According to appellants’ witnesses there was a church cornerstone indicating that the church existed in 1891 and inscriptions on tombstones reflect that there were burials there as early as 1895. The cemetery was not used exclusively for the church membership and was available for public use. The burial area, approximately three acres and rather recently fenced, is located on the southeast corner of the 20 acre tract. This tract is bisected by a bayou. Appellee, has about 100 to 150 acres of pastureland adjoining the area south of the bayou. Appellants’ witnesses acknowledged that appellee had pastured his cattle for many years in the area outside the cemetery. In fact one stated that this had occurred as long as he could remember. It appears that none of the witnesses testified to their personal knowledge there was no adverse use of the 20 acre tract preceding 1909, which appellants say is the critical year.

The appellee, who is 89 years of age, testified that he had lived in the vicinity and was acquainted with the area since 1910. He, also, stated that when he first became acquainted with the property there was an old school house on it which was later removed in the 1950’s. It was his understanding that the 20 acre tract was “a sixteenth section land” or school land and he had used part of it as pastureland by permission of the local school director. Another witness corroborated appellee’s testimony as to the existence of a school house on the tract. The appellee, also, adduced as an exhibit to his testimony his 1957 quitclaim deed from the Pulaski County Special School District. Also, a 1953 certificate of the county clerk was introduced as evidence, reciting there had been no tax assessments against the 20 acre tract since it had always been carried on the tax books as school lands. Of course, this conflicted with the clerk’s 1950 certificate. Appellee produced another certificate of the county clerk dated in 1971 again certifying there had been no tax assessment on the 20 acre tract through 1889-1957 because it was on the county records as school lands. Since 1958 the tract has been carried on the books in appellee’s name and taxes paid by him.

We cannot say the chancellor’s findings that appellants’ affidavits were obviously in error, there were adverse claimants, and appellants were not in actual possession of the 20 acre tract are against the preponderance of the evidence. In doing so we disregard the quitclaim deed, which appellants say is a nullity, of the school district to the appellee and any acts of adverse possession by appellee. Let it be remembered that the burden of proof was upon the appellants in their quiet title action to establish their ownership of the entire 20 acres and their right to an injunction. Appellants’ deed, presumptively valid, is only evidence of title.

This tract was “school land,” as appellants acknowledge, because it was and is a sixteenth section. There was evidence that a school building was on this tract of land before 1909, which appellants say is the critical year, and the tract was used thereafter for school purposes until after 1950. This is the date of appellants’ deed based upon their petition which stated continuous ownership and possession from before 1891 to 1950. The area is unfenced and largely unimproved land. The topography is such that it is bisected by a bayou and the burial area, which occupies only approximately three acres, is on the south side where the ground is higher.

Although in 1950 the county official certified the lands were tax exempt since 1889 because they were carried on the books as church and cemetery property, a 1953 and 1971 certificate by this official corrects this certification to the effect that the lands were school lands which is understandable since it is a sixteenth section. Even if the 1950 certificate was not an essential part in securing the 1950 state deed, we think the chancellor properly gave the contradictory certificates some significance as to whether there was any adverse use of the 20 acre tract between the years 1889 and 1909 which appellants assert are the critical years.

We have considered and find no merit in other points asserted by appellants.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice.

I think that appellants have asserted three points that require reversal of the chancellor’s decree. They are:

Mr. Campbell had no standing to attack the trustees’ deed.
The trustees’ deed has presumptive validity.
The Chancery Court did not find fraud, but invalidated the trustees’ deed for “obvious error”; but the only error was that of the Chancery Court.

In order that these points be more clearly understood, attention should be directed to the pertinent statute, as it existed at the time the deed to appellants was issued by the Commissioner of State Lands. It was Act 183 of 1905, as amended by Act 661 of the Acts of 1921, and read:

That any person claiming to own land in this State known as .sixteenth section or school land or any land sold under mortgage given to secure the school funds of any sixteenth section lands and purchased of said sale by ^the State of Arkansas, and whose claims are based on regular unbroken chain or [of] title dating back tp 1889 and to whose claim there was not an adverse claimant for a period of twenty [20] years subsequent lio 1889 and who was in the actual possession of said lands at the expiration of twenty [20] years, and on which lands and taxes had been regularly paid during said period of twenty [20] years, all title, legal and equitable that the State of Arkansas may have or appear to have in any such lands is hereby vested in such owners or parties and their grantees. And the State Land Commissioner upon such proof being made to him is hereby directed to execute a deed conveying to said parties ad the right [and] title the State may have in such lands.

In my opinion, appellants correo-y argue that title was vested by the Act itself in one w ho (1) based his claim upon a regular unbroken chain C title dating back to 1889, (2) to which there was not aw adverse claimant between 1889 and 1909, and who (3) <-.as in actual possession of the land in 1909 and thai -'he State Land Commissioner was directed to issue a deed ¡o such a claimant upon proof of these facts fv-iuj: mail’ to him. The deed was merely evidence of thí d u* and it related back to the vesting of title in appellants under the terms of the act. See Missouri Pac. R. Co. v. Sale, 197 Ark. 1111, 127 S.W. 2d 133; Jimmerson v. Fordyce Lumber Co., 119 Ark. 413, 178 S.W. 381; Liuhr v. Williams, 88 Ark. 37, 113 S.W. 340, aff’d 231 U.S. 335 S. Ct. 68, 58 L. Ed. 256 (1928); Hibben v. Malour, 85 Ark 584, 109 S.W. 1008; Branch v. Mitchell, 24 Ark. 431: 73 C.J.S. 855, Public Lands § 198. A legislative act .-'ranting lands in broad terms has been held to operate- as a. present grant. State v. Cissna, 168 Ark. 565, 270 S.W. 963

The deed itself was not based upon the claimants’ possession at the time of appellants’ application, but vested constructive possession, which was not ousted by anything short of actual adverse possession .more comprehensive than the performance of temporary acts on the land without any intention to hold or occupy it for residence or cultivation or some other permanent use consistent with the nature of the property. Thornton v. St. Louis Refrigerator and Wooden Gutter Co., 69 Ark. 424, 65 S.W. 113. The adverse occupant’s possession, we said, must be as his own property with a view to permanent use of it for his own benefit. Furthermore, one who makes no claim to the land is a mere intruder. Conway v. Shuck, 203 Ark. 559, 157 S.W. 2d 777. Mr. Campbell testified, “I never claimed to own it at all. ’

I do not think that Campbell had any standing to attack appellants’ title. The act under which the deed to appellants was issued charged the Commissioner of State Lands with the duty of determining the existence of the pertinent facts necessary to the issuance of a deed. Whenever a deed is issued by an officer charged with that duty, his determination whether the requisite facts existed or antecedent acts had been done which were necessary to the issuance of the deed is conclusive against collateral attack. State v. Morgan, 52 Ark. 150, 12 S.W. 243. The findings of the Commissioner of State Lands are final and binding on everyone except someone holding a claim of title from the State of Arkansas or through mesne conveyances from the state or having an interest that vested prior to the issuance of the deed. Conway v. Shuck, supra; 63 Am. Jur. 2d 583, Public Lands § 114. The deed under which appellants claim recites that appellants have filed proof of their actual possession, together with their abstract and muniments of title, showing that there are no adverse claimants and that the deed was issued in conformity with Act 661 of 1921 (an amendment of the Act of 1905). While the state has a right to have the deed canceled if it was issued upon the basis of false representations, any attempt to annul the deed for official error or misconduct must be had in a direct proceeding in a proper tribunal. State v. Morgan, supra. There is no question about the state’s right to attack the conveyance for fraud in obtaining it or on direct attack by proof that its Land Commissioner failed to comply with the statutory requirements. State v. Guthrie, 203 Ark. 60, 156 S.W. 2d 210. Until it elects to do so, Campbell cannot. Little v. Williams, 88 Ark. 37, 113 S.W. 340, aff’d 231 U.S. 335, 34 S. Ct. 68, 58 L. Ed. 256 (1928). Campbell was not the holder of a claim of title from the State of Arkansas, and he did not deraign title through mesne conveyances from the state. He did not claim a prior vested right. He had standing only to question the authority of the Commissioner of State Lands to issue the deed. That authority clearly existed.

That appellants’ deed from the Commissioner of State Lands is presumed to be valid is beyond question. See Wunderlich v. Cates, 213 Ark. 695, 212 S.W. 2d 556. See Ark. Stat. Ann. §§ 34-1922 (Repl. 1962), 50-421 (Repl. 1971), 10-527 (Repl. 1956). A state official authorized to issue a deed is presumed to have acted in conformity with law in issuing it. Boynton v. Ashabranner, 75 Ark. 415, 88 S.W. 566, 88 S.W. 1011, 91 S.W. 20. The presumption of validity does not depend upon the recitals of the deed. State v. Guthrie, supra. The deed is prima facie evidence of the truth of all facts recited which were necessary to confer power to issue it. Hendry v. Willis, 33 Ark. 833; Dawson v. Parham, 55 Ark. 286, 18 S.W. 48. The deed itself is prima facie evidence of a valid title. Thornton v. St. Louis Refrigerator and Wooden Gutter Co., 69 Ark. 424, 65 S.W. 113. The determinations made by the State Land Commissioner cannot be collaterally attacked, and are conclusive, at least, in the absence of fraud. Little v. Williams, 88 Ark. 37, 113 S.W. 340, aff’d 231 U.S. 335, 34 S. Ct. 68, 58 L. Ed. 256 (1928); Williamson v. Baugh, 71 Ark. 491, 76 S.W. 423; see also, 73 C.J.S. 855, Public Lands § 199.

Assuming, but not conceding, that Campbell had standing to attack appellants’ deed and that his attack is not collateral, he bore the burden of proving fraud by clear and convincing evidence, since he would contradict the clear terms of the written deed. Belew v. Griffis, 249 Ark. 589, 460 S.W. 2d 80; Clay v. Brand, 236 Ark. 236, 365 S.W. 2d 256. This he did not do and the chancellor evaluated the evidence on this subject as showing that the affidavits upon which the deed was obtained were obviously in error. He held the deed invalid solely on the basis that the preponderance of the evidence indicated that none of the three requirements of the statute was met by plaintiffs. But appellee was concluded by the deed and its recitals insofar as the meeting of the statutory requirements was concerned. Even if not, the mere fact that the requirements were not met does not constitute a showing of fraud. And I submit that the chancellor erred in holding that the pertinent statute required that appellants’ unbroken chain of. title and possession must have been for a 20-year period immediately preceding their application for the deed. It was only through an amendment to the act in 1971 that possession at the time of application for a deed was required.

For any or all of the reasons hereinabove set out, I would reverse the decree.

I am authorized to state that Mr. Justice Jones joins in this dissent.


author: Frank Holt, Justice.

text:
    Jimmie Dale McCRAY v. STATE of Arkansas
    CR 73-10
    494 S.W. 2d 708
    Opinion delivered May 28, 1973

      Howard, Howard & Howard, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of first degree murder as charged by an information and his punishment was assessed at life imprisonment. From a judgment on that verdict comes this appeal. Appellant first contends for reversal that the court erred in failing to direct an acquittal at the close of the state’s case or to reduce the charge to second degree murder or manslaughter. The court was correct. On appeal, of course, it is our duty to view the evidence in the light most favorable to the appellee to determine if there is substantial evidence adduced to support a verdict. Crow v. State, 248 Ark. 1051, 455 S.W. 2d 89 (1970).

The state adduced evidence that the deceased, Rose Rhomes, died from five gunshot wounds from a .38 caliber weapon. Four bullets struck her in the chest and one of these wound reflected powder burns. Another bullet entered and exited from her left leg indicating she was in a prone position. She was acquainted with the appellant since she “used to go with” him. Although there were no eyewitnesses to the actual shooting, the state established that appellant was alone in a room with the decedent in her apartment when the shooting occurred. Witnesses heard an argument between the two and some “scuffling” which was followed by the gunshots. The victim’s sister heard the deceased exclaim “McCray, go on before you shoot, blow my head off.” She testified that after the shooting the appellant fled out the door and across the yard. Another witness testified that the appellant had a .38 caliber pistol in his pocket on the day of the shooting; that decedent didn’t own a pistol; and the decedent told him as she was dying that appellant shot her. No weapon was found in a search of the premises.

This recited evidence, when viewed most favorably to the state, is amply sufficient to raise a material fact issue with regard to all the elements of first degree murder and, therefore, constituted a submissible issue for the jury. Furthermore, appellant failed to stand on his motion for a directed verdict and proceeded to testify and offer evidence in his own behalf. “He thereby waived his motion for a directed verdict at the close of the State’s case which results in the sufficiency of the evidence being determined from all the evidence introduced during the trial.” Crow v. State, supra. According to the appellant, the decedent attempted to shoot him and he was trying to wrest the gun from her. It was for the jury to accept or reject his version.

We must, however, agree with appellant’s assertion that the trial court erred in refusing to allow appellant to show previous inconsistent statements of a state witness by introducing into evidence a written statement made to the police and signed by the witness. “It is a well-established rule that when a witness has testified to material facts on the trial of a cause, any acts done or declarations made by him, which appear to be inconsistent with his statements on the stand, are competent by way of contradiction, and to enable the court or jury trying the case to ascertain what weight should be given to his testimony.” St. Louis, I. M. & So. Ry. Co. v. Faisst, 68 Ark. 587, 61 S.W. 374 (1900). See, also, Shands v. State, 118 Ark. 460, 177 S.W. 18 (1915).

The witness testified about certain specific details relating to the shooting. According to her, she observed appellant go into the room, heard the decedent say “McCray, go on before you shoot, blow my head off,” and afterwards the shots. However, before the trial she gave a statement to the police in which she said among other things “I did not see any of the shooting or know anything about it.” The statement was signed and initialed by her. On cross-examination a proper foundation was laid for impeachment. Although she was permitted to read aloud before the jury the above quoted sentence, the entire statement, which also contained other language of a contradictory nature, was not permitted into evidence by the court as appellant requested. The court’s refusal was erroneous, whether the signed statement was the original or a copy, since the statement contained declarations inconsistent with the witness’ statements on the stand. It was competent for contradiction purposes and to aid the jury in ascertaining the weight to give her testimony. The partial reading of the statement did not render the error harmless. In St. Louis, I. M. & So. Ry. Co. v. Faisst, supra, we said:

“Nor can we say, as matter of law, that, because the witness admitted signing the affidavit, and admitted on the stand that the affidavit contained the contradictory statement, therefore, appellant was not prejudiced by the ruling. By not permitting it to be read as evidence, the jury were prevented from examining the writing. The appellant was deprived of the right to have it considered as evidence in the case, and its counsel could not refer to or discuss it in their argument. All of this was exceedingly important to appellant, and the ruling of the court refusing it was prejudicial error.”

We cannot say with confidence, in the case at bar, that the error was not prejudicial.

The court properly refused to admit into evidence the deceased’s police criminal record to show her reputation in the community as a dangerous person and one with a violent disposition. As appellant acknowledges, a violent nature is properly shown by proof of the deceased’s general reputation and not by specific acts of violence or misconduct. Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467 (1968).

For the error previously indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Harris, C.J., dissents.