author: J. Fred Jones, Justice.

text:
    Ernest (Buck) THOMAS as Mayor of the City of Piggott, Arkansas, and the City Council of the City of Piggott, Arkansas v. Pete VAUGHN and Clarence THOMAS
    5-5459
    463 S. W. 2d 102
    Opinion delivered February 15, 1971

      Hugh W. Trantham, for appellants.

      Lee Ward, for appellees.
   J. Fred Jones, Justice.

This is an appeal by the mayor and city council of Piggott, Arkansas, from an adverse decision of the Clay County Chancery Court, Eastern District, in favor of Pete Vaughn and Clarence Thomas in connection with a zoning ordinance of the City of Piggott.

On May 7, 1962, the city council of Piggott duly adopted ordinance No. 208 consisting of 22 pages. The ordinance was published on June 2, 1962, by reference only to its title. Copies of the ordinance were placed in the mayor’s office, the city clerk’s office, and the circuit clerk’s office, as well as various other places in the city; and three copies of the ordinance were filed with the city clerk.

The appellees, Vaughn and Thomas, each operate a repair shop in a residential district. They were arrested and threatened with prosecution for the violation of the ordinance. They filed a petition in the chancery coury for an order restraining the City of Piggott from enforcing the ordinance, and alleged in their petition that the ordinance was void and of no effect because it was not published as required by statute, Ark. Stat. Ann. § 19-2404 (Repl. 1968). The City of Piggott, through its mayor and city council, filed an answer denying that the ordinance was void for lack of publication. The answer sets out that on May 7, 1962, the council did adopt a multipage ordinance in book form designated as ordinance No. 208, and that the ordinance was duly published according to law and particularly according to § 19-2404.

On June 23, 1970, the chancellor found that the proposed ordinance No. 208 was not published in form and manner required by § 19-2404, and the City of Piggott, its agents and employees were enjoined and restrained from enforcing, or attempting to enforce the proposed ordinance. On appeal to this court the City of Piggott relies on the following points for reversal:

"That said ordinance 208 established rules and regulations for zoning, as required by Arkansas statute 19-2404.
That said ordinance 208 was printed as a code in book form, as required by Arkansas statute 19-2404.
That said ordinance 208 was published by reference to the title as required by Arkansas statute 19-2404.
That three copies of the ordinance 208 were filed with the city clerk, as required by Arkansas statute 19-2404.”

Ark. Stát. Ann. § 19-2404 (Repl. 1968) is as follows:

“Recording and authentication — Publishing and posting — Publication by reference to code title.— All by-laws or ordinances after their passage shall be recorded in. a book kept for that purpose and shall be authenticated by the signature of the presiding officer of the governing body and the clerk or recorder, and all by-laws or ordinances of a general or permanent nature and all those imposing any fine, penalty or forfeiture shall be published in some newspaper of general circulation in the corporation; provided, in incorporated towns where no newspaper is published, written or printed notice posted in five [5] of the most public places in said corporation shall be deemed a sufficient publication of any law or ordinance for incorporated towns, and it shall be deemed a sufficient defense to any suit or prosecution of such fine, penalty or forfeiture to show that no such publication was made. Provided, further, that ordinances establishing rules and regulations for zoning, construction of buildings, the installation of plumbing, the installation of electric wiring or other similar work where such rules and regulations have been printed as a code in book form, such code or provisions thereof may be published by such municipality by reference to title of said code without further publication or posting thereof; provided, however, that not less than three [3] copies of such code shall be filed for use and examination by the public in the office of the city clerk or recorder of such municipality subsequent to the adoption thereof.”

It is admitted that a notice pertaining to ordinance No. 208 was published in a Piggott newspaper; said notice being as follows:

“Ordinance No. 208 ZONING ORDINANCE Piggott, Arkansas
An ordinance to carry out the intent and the general plan of the City of Piggott, Arkansas, adopted pursuant to the provisions of Act 186 of 1957; defining certain terms; the establishment of certain districts, setting forth permitted use and-or requirements; establishing general regulations pertaining thereto, establishing a Board of Adjustment including its powers and duties; providing its enforcement thereof, and for other purposes.
Be it ordained by the City Council of Piggott, Arkansas: This ordinance being necessary for the future growth of Piggott, Arkansas, for the purpose of controlling future development, an emergency is hereby declared and this ordinance shall be in full force and effect from and after its passage and approval.
Copies of this ordinance are on file with the City Clerk, the Mayor’s Office, the Chamber of Commerce office and the office of the Circuit Court Clerk, for public inspection during the referendum period.
Passed and adopted by the City Council of Piggott, Arkansas, on this 7th day of May, 1962.
(s) J. W. James, Mayor

Attest*

(s) J. W. Harris, City Clerk.”

The proposed ordinance was a general zoning ordinance applying to the entire city. It provided for the organization of the Board of Zoning Adjustment and provided that the violation of any provision of the ordinance would constitute a misdemeanor subject to a fine of not more than $100; and providing that each day such violation is permitted to exist, constitutes a separate offense.

The question here is not whether the ordinance was within the police power of the city, nor whether it was properly enacted by the city council. The question is whether the notice that was published was in sufficient compliance with the statute, § 19-2404, supra.

The appellants contend that the publication was sufficient under that part of § 19-2404 as follows:

“Provided, further, that ordinances establishing rules and regulations for zoning, construction of buildings, the installation of plumbing, the installation of electric wiring or other similar work where such rules and regulations have been printed as a code in book form, such code or provisions thereof may be published by such municipality by reference to title of said code without further publication or posting thereof; provided, however, that not less than three [3] copies of such code shall be filed for use and examination by the public in the office of the city clerk or recorder of such municipality subsequent to the adoption thereof.” (Emphasis added).

The appellants argue that ordinance No. 208 did establish rules and regulations for zoning and that such rules and regulations (the ordinance) were printed as a code in book form and were therefore subject to publication by reference to the title without further publication or posting thereof. In other words, the appellants argue that since ordinance No. 208 established rules and regulations for zoning and was printed as a code in book form, its publication by reference to its title was all that was required or necessary for its validity under the statute. It is not questioned that three copies of the ordinance were filed with the city clerk.

In support of their contention, the appellants cite the Arizona case of City of Tucson v. Stewart, 45 Ariz. 36, 40 P. 2d 72, 96 A. L. R. 1492, as a landmark case. The appellants also cite City of Hazard v. Collins, 304 Ky. 379, 200 S. W. 2d 933; City of Rapid City v. Rensch, (South Dakota), 90 N. W. 2d 380, and the Minnesota case of Raymond v. Baehr, 163 N. W. 2d 51, in support of their contention. We agree that those cases are germane to the problem in the case at bar, but we do not agree that they support the appellants’ contention.

The appellants’ first quote from Tucson v. Stewart, supra, distinguished that case from the case at bar. The quote from Stewart is as follows:

‘Ordinance No. 693 undertakes to adopt provisions of the Electrical Code by reference. . .’ ”

Another statement from the facts in Stewart more clearly distinguishes that case from the case at bar wherein the court said:

“Ordinance No. 693 was published as provided by the city charter, but the Resolution passed on the same day adopting the electrical code of the city was not nor was the electrical code published.”

The appellants correctly quote from Stewart as follows:

“ ‘It is well settled that the publication of an ordinance under the reference Doctrine is sufficient and it is not necessary to publish the statute, ordinance or public record referred to therein. This rule is based upon the idea that it is certain which may be made certain.’ ” (Emphasis supplied.)

The City of Tucson ordinance created the position of city electrician, defined the duties pertaining to the position, including the issuance of permits, inspection of wiring, safety of electricians, etc. The ordinance also provided for the adoption of the electrical code in the following language:

“No certificate of approval shall be issued unless the wiring, devices, apparatus or equipment installations conform with the provisions of this Ordinance, the Electrical Code of the City of Tucson, as adopted by the Mayor and Council by Resolution No. 1509 and as the same may be amended, the statutes of the State of Arizona, and with approved methods of construction for safety to life and property. . .”

The code itself was adopted by separate resolution. The code was not published but the ordinance which adopted the code by reference was published. The Arizona Court held that it was not necessary to publish the entire code. In this connection the Supreme Court of Arizona further said:

“Section 8, chapter IX of the Charter of the City of Tucson, provides that ordinances and resolutions having the effect of ordinances must be published at least three consecutive times in the official newspaper of the city and a copy thereof posted in front of the city hall before they become effective and operative. The question then is: When an ordinance constructively consists of two independent parts, but interdependent in their functioning, does a publication of the adopting part meet the requirements of the charter as to publication? Ordinance
No. 693 undertakes to adopt the provisions of the electrical code by reference. This method of making laws by the legislative bodies of both the state and municipalities is quite common.”

Thus, it is obvious that the City of Tucson did exactly what the City of Piggott had statutory authority to do but did not do in the case at bar.

The opening statement of the court in City of Hazard v. Collins, supra, distinguishes that case from the case at bar. The opening statement is as follows:

“The question presented on this appeal is whether or not the City of Hazard, a fourth class city with a commission form of government, could adopt a building code (hereinafter referred to as the Code) of 300 pages merely by referring to such Code in an ordinance duly passed, recorded and published.” (Emphasis added.)

In the City of Hazard case the ordinance simply provided “that the Southern Standard Building Code, 1946-1947 Edition adopted by the Southern Building Code Congress at its annual convention November 16, 1945, be and the same hereby adopted by the City of Hazard, subject to the changes set forth in this Ordinance.” The ordinance then provided that the city manager should administer the code and the penalty for violation set out in the code was reduced by provisions of the ordinance. The code was never read before being voted on and was never recorded in the office of the city clerk nor was it published. The trial court held that such reference did not make the code a part of the laws of the city, and the Kentucky Supreme Court affirmed.

In the City of Hazard case there were two separate instruments; the ordinance which adopted the code by reference, and the 300 page code which the ordinance adopted. The ordinance adopting the code was published but the adopted code was not published. The city council in City of Hazard attempted to make the separate 300 page code an ordinance without publishing it, and in the case at bar the appellants attempted to make the ordinance adopt itself as a zoning code, not by reference, but by publication of title only.

In the South Dakota case of City of Rapid City v. Rensch, 90 N. W. 2d 380, a parking meter ordinance was under attack as invalid for the reason, among other things, that the ordinance was not published according to law. The ordinance was one that amended a previous ordinance which had been published according to law. The distinction between that case and the one at bar is set out by the language of the court as follows:

“It is urged that the ordinance in revision is not in effect because it was not published in its entirety as required of original ordinances by SDC 45.1003. Prior to Ch. 247, Laws of 1925, ordinances in revision were apparently required to be published in the manner of original ordinances. § 6249, Rev. Code 1919. By the 1925 enactment the publication of the ordinance in revision in its entirety was dispensed with and the publication of a notice of the fact of its adoption substituted therefor. The reasons now sanctioned in the adoption of other ordinances of a comprehensive nature. SDC Supp. 45.1003. An ordinance in revision need not be published in the manner prescribed for ordinances generally. It is sufficient if notice of its adoption be given as required by the authorizing statute. Town of Grundy Center v. Marion, 231 Iowa 425, 1 N. W. 2d 677.”

In the Minnesota case of Raymond v. Baehr, 163 N. W. 2d 51, cited by the appellants, a building code ordinance was under attack. The ordinance, among other things, provided that no building should be constructed unless the work was done in accordance with the “Building Code of the City of Brainerd on file in the office of the City Clerk.” The building code itself required ventilating shafts to be constructed of fire-resistive material. The building code was offered in evidence in an action for negligence and was objected to on the ground that it had never been published as required by law. The court stated the question before it as follows:

“It is not disputed that the Brainerd City Charter requires publication of all ordinances; that Ordinance No. 322 was published in conformity with the charter; and that the building code was not. Therefore the code is valid only if the city council’s incorporation of it by reference was a proper means of enacting the code into law.”

In approving the adoption of the code by reference, the Minnesota Court said:

“While the courts of other jurisdictions have not been uniform in accepting the use of incorporation by reference, see 1 Antieau, Municipal Corporation Law, § 4.07, those which have affirmed its use seem to have the better position. As adopted by the courts, valid use of the doctrine is limited to incorporation of statutes of the state, preexisting ordinances, and public records, City of Tucson v. Stewart, 45 Ariz. 36, 43, 40 P. 2d 72, 96 A. L. R. 1492.” (Emphasis added.)

Thus, it would seem clear that ordinances establishing rules and regulations for zoning may incorporate into such ordinance by reference, such rules and regulations that have been printed as a code in book form; and that such incorporated code or provisions may be published by reference to title of said code without further publication or posting thereof. Such is the clear language of the applicable provision of § 19-2404. In the case at bar there apparently were no such rules and regulations printed as a code in book form, or otherwise, at the time ordinance No. 208 was passed by the city council, and the ordinance itself constituted the code. The ordinance and the code were one and the same instrument, and the rules and regulations established in the ordinance had not been printed as a code in book form or otherwise.

If we adopted the appellants’ interpretation of the requirements under § 19-2404, any ordinance establishing rules and regulations for zoning, or any of the other things mentioned in the section, could become law, bearing penalty for violation, without the necessity of publishing any part of the ordinance except the title. Regardless of the penalty for violation, and regardless of whether such rules and regulations had ever been printed as a code in book' form, such ordinance could simply be passed by the city council, recorded in a book kept for that purpose, signed by the mayor and city recorder, put together in book form and become valid and binding when three copies are filed in the office of the city clerk or recorder. In event a valid zoning ordinance could be passed in such manner, no one would know what zoning area he lived in, or that he even lived in a city that had a zoning ordinance unless he saw the published “title” and became curious enough to investigate, or unless it should be called to his attention that he had violated the ordinance. Even then it would be necessary for him to go to the city recorder’s office to determine what law he had violated.

Ark. Stat. Ann. § 19-2421 (Repl. 1968) authorizes the adoption by reference of technical codes, regulations or standards without setting forth the provisions of the code, but this may only be accomplished by the passage of a municipal ordinance to adopt by reference. Technical code is defined in § 19-2422 as including any building, zoning, health, electrical or plumbing code, but neither of these sections dispenses with the necessity of publishing an ordinance which adopts such code. The ordinance must be published but the code which it adopts need not be published by setting forth its provisions in detail. The code may be adopted by reference in the ordinance. The ordinance which adopts the code must be published, but the code itself needs no other publication than by reference to its title.

The decree is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Sheldon MADDEN et al v. L. E. HART et al
    5-5351
    439 S. W. 2d 352
    Opinion delivered February 15, 1971

      Tackett, Young, Patton & Harrelson, for appellants.

      Smith, Stroud, McClerkin & Conway, for appellees.
   Conley Byrd, Justice.

Prior to August 25, 1969, there were two ready mix cement plants in Ashdown. One was known as “Ashdown Ready-Mix” and the other as “Associated Ready-Mix.”

The “Ashdown Ready-Mix”, originally owned by Robert Earl Priest, an experienced cement finisher, was acquired by appellant Sheldon Madden for his adult married son, appellant Jack Madden. At the time of trial the Ashdown Ready-Mix was owned by Madden Manufacturing Co., Inc., and operated by Jack Madden.

Associated Ready-Mix was owned by Hart, Thomas & Hart, Inc. L. E. Hart, John Robert Bowman and Jack Hart were the sole stockholders. Associated Ready-Mix was having financial difficulties. Its outstanding liabilities as of August 25, 1969, totaled $48,194.16 and the equipment in its possession had a value of only $29,900.00. Its outstanding and unpaid checks as of that date totalled $2,590.85. Shipments of cement from Foreman Cement Company had been on a C. O. D. basis since April 18, 1969. Some of the stockholders wanted to shut down the operation, some wanted to sell, and some did not want to sell. The disharmony had resulted in at least one fist fight.

The First National Bank of Ashdown had participated in a Small Business Administration loan, its share being $12,900.00. In addition, the bank had loaned L. E. Hart $1,834.31 and held obligations of John Robert Bowman for $2,832.50 and $4,685.00. Also it held unpaid and outstanding checks of Associated Ready-Mix amounting to $2,590.85.

Some time prior to August 25, Jack Hart had contacted Robert Earl Priest concerning a possible sale of Associated. As a result of that contact, negotiations were had with Sheldon Madden, Jack Madden and Robert Earl Priest as prospective purchasers and with L. E. Hart, John Robert Bowman and Jack Hart as the sellers. During all of the negotiations the bank officials evidenced more than a mild curiosity as to the results of the negotiations.

Pursuant to a common understanding, all of the parties — L. E. Hart, John Robert Bowman, Jack Hart, Sheldon Madden, Jack Madden and Robert Earl Priest —met at the bank on the afternoon of August 25th. J. Darrell Bell, the bank’s president, and Roy Staggs, the bank’s vice president and cashier, were also present at the meeting. As a result of the negotiations a purchase figure of $48,194.16 was arrived at. At this point some one suggested that something should be put in writing to reflect what agreement had been reached. Exhibit No. 1 was then typed by Roy Staggs under the direction of Mr. Bell and Sheldon Madden. Exhibit No. 1 was signed by L. E. Hart, John R. Bowman and Jack Hart as sellers and Jack Madden as one of the purchasers. Robert Earl Priest declined to sign the agreement. Exhibit No. 1 is as follows:

“August 25, 1969
We the undersigned stockholders of Hart-Thomas & Hart Inc., do hereby agree to transfer all stock in said corporation to Robert Earl Priest and Jack Madden for the consideration of the assumption of all obligations in the name of the corporation and an obligation in the name of L. E. Hart of $1,884.31 plus interest, an obligation of John Robert Bowman of $2,852.50 and another obligation of John Robert Bowman of $4,685.00 plus interest. These notes are payable to the First National Bank in Ash-down.
It is further understood that Mr. Priest and Mr. Madden as of this date, do assume the bills payable, accounts receivable and credit balances due as shown on the list attached to this document. This agreement also covers the assumption of outstanding checks of the corporation totaling $2,590.85.
We the undersigned also agree to refrain from entering the Ready Mix Concrete business in Little River County for the next 36 months.
/s/ L. E. Hart
/s/ John R. Bowman
/s/ Jack Hart
We, the undersigned Robert Earl Priest and Jack Madden do hereby agree to the above.
/s/ Jack Madden
Sworn and subscribed to this 25th day of August 1969.
,,

On August 26th following the meeting at the bank, Jack Madden obtained permission from Associated to use one of its trucks to aid Ashdown Ready-Mix in finishing a highway construction job that Associated had been furnishing some of the cement on.

Associated Ready-Mix closed its business on Friday before the Monday, August 25th meeting. It remained closed thereafter. However, its equipment, other than the mixing plant and concrete trucks, was used by Bowman.

The Chancellor found that Sheldon Madden and Jack Madden had entered into a contract on August 25th to purchase Associated Ready-Mix for $48,194.16, which they had breached, and awarded appellees a judgment against Sheldon Madden and Jack Madden for $18,294.16 for the breach thereof. At the same time the Chancellor found that no contract existed between ap-pellees and Robert Earl Priest. For reversal appellants Sheldon Madden and Jack Madden contend that no sales purchase agreement was consummated on August 25th.

Roy Staggs testified that he was a neighbor of Robert Earl Priest and that his first involvement in the negotiations was that of August 25 th. At this meeting a discussion by all the parties took place to determine the sales price. Associated’s total liabilities were something over $48,000.00. After Mr. Sheldon Madden’s $45,000 offer was refused, he then asked his son and Mr. Priest if the $48,000 figure was agreeable and both answered in the affirmative. At this time witness knew that Associated was to be purchased in the name of Jack Madden and Robert Earl Priest. Around 5:30 P.M. Mr. Priest suggested that an attorney should be obtained to draw up the papers. Because it was too late to obtain an attorney Staggs went to a typewriter and, under the direction of Bell and Sheldon Madden, typed Exhibit No. 1. Admittedly the exhibit covers the items that the bank was primarily interested in. On cross-examination Staggs admitted that subsequent negotiations had been had between the parties. Neither would he deny that he had stated on the morning of August 26th that he knew that Priest was not going to get “involved in that mess.” With reservations, Stagg testified that he did not expect Priest to agree to the instrument that was drawn.

Jack Hart stated that the Maddens and Priest all agreed to the proposed $48,000 figure on the 25th and that constituted an acceptance. of appellees’ proposal. He admitted, however, that there were further negotiations after August 25th and that he had insisted throughout that he was not interested in selling unless he was relieved of the S. B. A. obligation. According to him, the S. B. A. loan was to be retired by Sheldon Madden.

Bowman testified that Sheldon Madden made it clear at the meeting that he was not to be involved in the ownership and that Jack Madden and Robert Earl Priest were the actual purchasers. The only thing he remembered about the S. B. A. loan was the amount of the loan. Nothing was said in his presence about paying off or assuming the S. B. A. loan. On Tuesday morning following the August 25th meeting, Jack Madden called and asked him about getting a mixer truck meeting the requirements for pouring on State highway jobs. Bowman said he told Jack Madden that he assumed it would be all right but he would talk to Jack Hart about it. He then did talk to Jack Hart and Robert Earl Priest even though the deal was not finalized. On cross-examination Bowman admitted that the business was going in the hole and that L. E. Hart had told him that whether or not he was going to sell, they were going to close the business one way or the other. He also admitted that Jack Madden did not, on August 25th, agree to purchase Associated without Mr. Priest.

J. Darrell Bell, president of the First National Bank of Ashdown, testified that the bank had an interest in the sale because of its loans to appellees and its participation in the S. B. A. loan. Before the August 25th meeting he had ascertained that the S. B. A. loan could be assumed by the purchaser. No mention had been made as to whether the Harts and Bowman would be released, so he had assumed that they would. He also understood that Sheldon Madden had arranged for a $46,000 loan to pay off S. B. A. and other obligations. After the parties at the August 25th meeting agreed to the $48,194.16 figure, some one mentioned that something should be put in writing to reflect what agreements had been reached. His main reason for wanting a written instrument was to set out the indebtedness of Bowman and L. E. Hart. He was surprised to learn that the plant had been shut down on Friday before the meeting. None of the buyers mentioned anything about the shutdown of the plant prior to the August 25th meeting and he did not recall anything being said at the meeting regarding the shutdown. He was also surprised two days after the meeting to find out that Jack Madden was using the cement truck. Mr. Bell assumed that Mr. Sheldon Madden was going to be in the operation and management of the business.

Fred Pickett, an attorney in Ashdown, testified that he represented Mr. Priest. He first became aware of the negotiations around the end of July but he was not actively engaged in the negotiations. On August 26th, he talked with both Bell and Staggs. At that time Staggs laughingly said that he knew that Priest was not going to get involved in that mess. At the same time Bell stated that Priest did agree to go through with the transaction and Bell expressed his concern over it. On October 2, 1969, he again spoke with Bell concerning whether Priest had entered into an agreement to purchase. He quoted Bell as saying, “No, I think Mr. Priest is all right, but if there was an agreement between them on August 25th, he’s right in the middle of it.”

Some three weeks after August 25th, Jack Hart and Bowman came into Pickett’s office and informed him that Sheldon Madden had agreed for him to draw up the necessary papers to consummate the sale. After talking with all the parties, he realized that they did not have the necessary ingredients for a contract. As a result of that conclusion he caused another meeting to be set up at the bank for the purpose of laying the whole matter out in the open so no one would be confused.

Robert Earl Priest testified that he met Bowman at a cafe after he had received the October 2nd letter from Mr. Stroud, Bowman’s counsel, and that he said to Bowman, “John, did I ever agree to buy this thing from you?” According to him Bowman replied, “No.” Priest also said that the offer made by Sheldon Madden was on behalf of Jack Madden and himself.

Priest said that at a meeting at Mr. Bell’s house on August 23rd, Bell told Jack Hart that it looked like they were going to have to shut the plant down in order to get specific figures because the figures were changing every time they talked.

Shelton Madden testified that his interest in negotiating the purchase was to get Robert Earl Priest and his son Jack in an operation together. That he was not interested in the purchase of this property for his son unless Mr. Priest, who was more experienced, would be involved. After they had agreed on a price, he and Mr. Priest and his son Jack were trying to decide whether or not Mr. Priest and Jack were going to be able to work out their agreement and whether or not to go ahead and purchase the plant. While Priest and Jack Madden were still discussing the deal, he, Sheldon Madden, and Staggs went after a cup of coffee. When he learned that Priest was not going through with the deal, he told the group that he was not interested. Mr. Madden denied that he had reported to anyone before August 25th that he could borrow $46,000 or any other amount. He pointed out that Hart wanted to go into the contracting business and that in order to comply with the licensing law he would be required to make a bond which he would be unable to do with the S. B. A. loan hanging over his head. Because of this problem, he quoted Hart as saying that Mr. Bell had advised Hart to dispose of the concrete plant in order to get off the S. B. A. loan. Two or three weeks after August 25th they founcj out that Hart’s name could not be removed from the loan. Upon both direct and cross-examination, Mr. Sheldon Madden stated that it was not anticipated that he would own any part of the property. His only interest was to have his son and Mr. Priest in business together. He said that He had been informed two weeks before August. 25th that the plant was going to be shut down.

Mr. Jack Madden stated that he agreed to purchase the business if Mr. Priest and he could agree to a partnership — that he did not intend to purchase the business by himself. When he discovered that Mr. Priest would not go through with the deal, he decided that he did not want it either.

When the negotiations surrounding the August 25th meeting are considered in the light of Mr. Staggs’ testimony that he did not expect Priest to agree to the instrument that was drawn, and in the light of Fred Pickett’s testimony of the statements made by Bell and Staggs.the day after the meeting, together with Priest’s undenied testimony that Bowman acknowledged at the cafe that Priest had not agreed to purchase the plant, we agree with the trial court that Priest did not agree to purchase the plant on August 25th. A decision to the contrary would have been contrary to the weight of the evidence.

However, we believe that with respect to the Maddens, the Chancellor failed to take into consideration the contract law principle that it is as essential to the finality and completeness of assent that all the parties intended should be bound as it is that all terms should be definitely agreed upon. See Consolidation Coal Co. v. Yonts, (6th Cir. 1928) 25 F. 2d 404; Wilson v. McDaniel, 247 Ark. 1036, 449 S. W. 2d 954; 17 Am. Jur. 2d Contracts, § 23. We can find no evidence in the record to support a finding that the Maddens on August 25th were consenting to the purchase without Priest’s obligation to do likewise. Exhibit No. 1 typed by Staggs at the direction of Bell and Sheldon Madden leaves no room for doubt on that issue.

It is also suggested that Jack Madden in using the cement truck belonging to Associated and in hiring Associated’s employee Raymond Fields is estopped to deny his assent. Here again the suggestion is not supported by the record. The testimony of Charles Winning, vice president of Foreman Cement Company, shows that Associated at time of trial had accumulated outstanding invoices of $3,711.40. According to him, these invoices were from sales prior to April 18th when Associated was placed on a C. O. D. basis. The bank officers showed that the outstanding and unpaid checks of the corporation in its hands as of August 25th amounted to $2,590.85. While it is true that Mr. Staggs testified that Associated could have operated after August 25th, we note that the statement is not consistent with their avowed interest in the results of the negotiations nor with the testimony of Mr. Bell relative to the shutdown. Rather we believe that the evidence preponderates in appellants’ favor that the August 25th negotiations did not cause the plant shutdown as Bowman testified on cross-examination. Mr. Hart had told him they were going to close the business one way or the other. Thus, when the facts are viewed in their business perspective, it appears to us that Associated, being shut down, was not in a position to deliver to the State highway job and that since Ashdown Ready-Mix had only one truck that would meet the requirements for pouring concrete on a highway job, Jack Madden merely asked for permission to use Associated’s truck which he obtained from Bowman. All during the same time Bowman used other equipment of Associated under a claim of right. As we view the evidence, it is insufficient to sustain an estoppel.

What we have said here makes it unnecessary for us to determine whether Sheldon Madden could be held as a principal in view of his admitted agency relationship.

Reversed and remanded for proceedings not inconsistent herewith.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

dissenting. I can readily agree with the chancellor and the majority that the preponderance of the evidence shows that Robert Earl Priest never entered into a binding contract for the purchase from appellees. I do not agree that the decision of the chancellor to hold Jack Madden responsible is clearly against the preponderance of the evidence, and I do not see how the majority can so hold when demeanor evidence is such a vital factor in determining where the preponderance lies. As I will endeavor to demonstrate, it could easily be said that a preponderance of the evidence supports the chancellor’s decree in this respect. I do not agree with the chancellor, however, that a preponderance of the evidence shows that Sheldon Madden was bound on the contract, so I do not agree with the majority that it is unnecessary to determine Sheldon Madden’s status, nor do I agree that his agency relationship was admitted.

It is pertinent to call attention to some of the chancellor’s findings in his opinion and decree in order to better evaluate the evidentiary support, or lack of it, for the results reached. Significant findings are:

1. The testimony of Bell, the bank president, was that of an interested witness.
2. There was no “wavering” or “shading” in the demeanor of Staggs, a bank officer and close friend and next-door neighbor of Robert Earl Priest.
3. Sheldon Madden, without the knowledge of Priest, had an appraisal made of the Associated Ready-Mix equipment before the meeting of August 25.
4. It was agreed at the meeting of August 25 that the land and a certain winch truck were not included in the deal.
5. Appellees’ business operated August 22 and had business for the next week and could have reasonably anticipated more business, but it rained on the weekend following August 22.
6. The business was shut down on August 25 because of words and actions of appellants.
7. Appellants were responsible for the mail to Ashdown Ready-Mix being sealed and not taken from the post office after the meeting of August 25.
8. The covenant not to compete was put in the memorandum of agreement at the behest of Sheldon Madden before he left the meeting of August 25.
9. The Maddens did not speak for Priest so as to bind him to a contract to purchase.
10. There is no evidence that Jack Hart, one of the appellees, failed to stand ready and willing to sell when appellants offered to consummate the sale, in spite of conflicting testimony that the sale was conditioned upon his being relieved from the Small Business Administration debt.
11. Sheldon Madden led Jack Hart to believe that the SBA loan would be paid.
12. If Jack Hart “backed out” specific performance would have lain against him.
13. Jack Madden’s testimony was evasive.
14.Jack Madden’s use of the business truck of appellees in completing a job for which appel-lees had contracted and his hiring of their foreman were convincing evidence that Jack Madden considered the contract negotiated.
15. The Maddens accomplished their purpose in that Jack Madden’s company had all the ready-mix concrete business in Ashdown without a competitor, who could not reopen except at a distinct disadvantage.
16. Jack Madden signed the memorandum of agreement.
17. The evidence that there was no contract if Priest was not a party to it was not persuasive.

The evidence that Sheldon Madden was acting for himself, rather than as agent for his son, does not seem to me to be convincing. There is no question but that Sheldon Madden asked both his son and Priest if the amount of the offer finally made was agreeable. Staggs testified that the purchase was to be in the names of Jack Madden and Priest and that nothing was said about who was putting up the money. Sheldon Madden and Bell dictated the agreement typed by Staggs for the signatures of Jack Madden and Priest, and Sheldon Madden’s name did not appear as a purchaser. Staggs testified that Sheldon Madden was not to participate in the ownership or operation and was not to sign the coñtract. Sheldon Madden was present when his son signed the agreement. Appellee Bowman testified that Sheldon Madden was not to be included in any written instrument, having stated that Jack and Priest were the actual purchasers and that it was clear that Sheldon Madden was not to be involved in the ownership. Bowman also testified that within three weeks after the August 25 meeting Sheldon Madden stated to him that if Jack still wanted the business they were going through with the deal whether Priest did or did not participate. Bell testified that two weeks after the August 25 meeting Sheldon Madden stated that he wished to go_ through with the arrangement of a $46,000 loan at 9A% if Jack still wanted to. Bell assumed that Sheldon Madden was going to be in the operation and management because of his arrangement for the loan. He recalled that no place on the memorandum was provided for Sheldon Madden’s signature, at the latter’s request. Sheldon Madden had never operated such a business but had acquired from Priest another such business for his son. Priest testified that Sheldon Madden made the offer on Jack’s and Priest’s behalf. Sheldon Madden testified that he was assisting his son in order to give him a livelihood and to keep him in Ashdown. He also testified that he did not ever anticipate that he would own any part of the property. He stated that elimination of competition with his son’s business was one reason for buying out the competing company. There is really no significant evidence that Sheldon Madden was not acting as agent, rather than as a principal, except by inferences that might have been drawn from the testimony and assumptions made by the parties. The direct testimony recited is certainly stronger than any of the inferences and assumptions.

Even though there was testimony by Sheldon and Jack Madden that Jack did not agree to be bound unless Priest also joined in the agreement, evidence to the contrary seems overwhelming to me, even though there is no question but that Sheldon Madden very much wanted Priest to have an interest in the business. Jack Madden heard Priest’s refusal to sign the memorandum, but never indicated in any way to the parties present that his obligation was conditional or that he desired to withdraw his signature or have the signed memorandum returned to him. Staggs testified that Sheldon Madden was present and that he and Sheldon Madden went for coffee after this happened. Staggs also said that a determination was made that the sellers’ business should be closed on the 25th of August because the purchasers wanted a cutoff day as to the creation of debts and the receipt of accounts receivable and that the sellers did shut down on that date and remained shut down. Jack Hart corroborated this statement. Hart also said that none of the appellants told him at any time after the August 25 meeting that they did not have an agreement.

Bowman testified about uncompleted business and new prospects that his company had. They were pouring concrete on a road job at Foreman on a contract with Calvin Carter Construction Company on Friday prior to the meeting. Bowman said that he so advised Jack Madden. Jack Madden finished that job, using a vehicle peculiarly suited to the job and obtained from Bowman. Not only did Jack Madden do this but he immediately employed the foreman and principal employee of the company owned by appellees. Jack Madden obtained the truck the next day after the meeting. Bowman said that Madden called and asked if it would be all right if they went ahead and got one of the trucks. Bowman testified that Sheldon Madden told him repeatedly after the August 25 meeting that they were going through with the deal if his son still wanted it. Jack Madden continued to use the truck for an extensive period of time and only discontinued its use after being requested to do so by Jack Hart when it seemed apparent that Madden would not carry out the contract. Jack Madden admitted use of the truck for 3 or 4 weeks, and stated that there was never any agreement regarding this use. He admitted that he ceased to use it when one of the appellees told his “batch man” to park it. Sheldon Madden continued to take steps to finance the deal after the meeting. He was reluctant to pay the high interest required for a direct loan at that time but did endeavor to learn whether the SBA loan could be assumed rather than paid. Jack Madden admitted talking on the day after the meeting to appel-lees’ principal employee about going to work for him. This employee did not know what had happened on Monday, August 25, when Madden called. He did go to work for Madden on Wednesday. Sometime between Monday and Wednesday Bowman called this employee, advised him about the prospective use of the truck and asked him if he wanted to operate it for Madden.

These actions of Jack and Sheldon Madden after the meeting of August 25 seem to be clear and convincing evidence that they considered that Jack Madden had entered into a binding contract. Even if this were not sufficient, the evidence clearly calls for application of the rule, stated but not applied, in Downtowner v. Commonwealth Sec., 243 Ark. 122, 419 S. W. 2d 126. There we quoted from Restatement, Contracts, § 72 (2):

Where the offeree exercises dominion over things which are offered to him, such exercise of dominion in the absence of other circumstances showing a contrary intention is an acceptance. If circumstances indicate that the exercise of dominion is tortious the offeror may at his option treat it as an acceptance, though the offeree manifests an intention not to accept.

I am at a loss to understand the significance of testimony about the SBA loan. If anyone had a right to complain about the inability of the parties to obtain release of the sellers on that loan, it was the appellees, not the appellants. Even so, the evidence seems to me to overwhelmingly show that no conversation about assumption of this loan took place until after the August 25 meeting. Staggs testified that the loans were discussed at the meeting. The instrument he typed made no mention of the SBA loan but did provide for assumption of all obligations of the sellers. He testified that the question of the sellers’ being relieved of financial responsibility for this loan was not discussed, to his knowledge. There was no doubt that the SBA loan was part of the purchase price negotiated. Jack Hart said that he understood from Sheldon Madden that the SBA loan was to be retired and that Sheldon Madden had arranged to borrow $50,000 at 9V¡% but was hoping to get another loan. Bowman testified that he heard no discussion of the SBA loan at the meeting of August 25 except as to its amount. Bell testified that there was no mention at the meeting of the release of the sellers from the SBA loan. He understood that Sheldon Madden had arranged for $46,000 to pay off the SBA loan and other obligations and said that the subject of release of the sellers did not arise until a couple of weeks after the August 25 meeting. He testified that Sheldon Madden came to him and sought to determine the possibility of assuming the SBA loan. He said that Madden told him then that he did not want to go on with the loan he had arranged for at 914%. He also stated that the Maddens never indicated to him that they did not intend to go through with the deal until this suit was filed. Bell had tried to get his bank to lend the money for the purchase. Bell told the attorney to whom the sellers went two or three weeks after the August 25 meeting that he believed that an agreement was made on the 25th of August. The attorney testified that, at a meeting called to define the positions of the parties, Bell suggested that the SBA loan might be taken care of by bank financing if the cement plant already owned by Jack Madden were mortgaged to secure it. Priest said that Sheldon Madden thought the necessary money could be borrowed. He recalled discussion of the SBA loan many times, but testified that in no conversation was the necessity of the sellers’ names being removed ever discussed. While Sheldon Madden denied having reported that he could borrow $46,000, or any other amount, he admitted that his family put Jack Madden in business by helping with the purchase of the Ashdown Cement Plant and that, while he was not putting up the money, he had a brother-in-law who was financing the new purchase on his (Sheldon Madden’s) approval. He also admitted that he had discussed with Jack Madden and Priest prospects of borrowing the money from a couple of insurance companies. He also admitted that it was some two or three weeks after the August 25 meeting when he pursued the question of assuming the SBA loan.

I would affirm the decree as to Priest and Jack Madden, and reverse it as to Sheldon Madden.


author: Conley Byrd, Justice.

text:
    Annie Lee VANDERBILT et al v. Ella WASHINGTON
    5-5447
    463 S. W. 2d 670
    Opinion delivered February 15, 1971
    [Rehearing denied March 22, 1971.]

      George Howard, Jr., for appellants.

      Coleman, Gantt, Ramsay & Cox and Charles S. Gold-berger, for appellee.
   Conley Byrd, Justice.

Involved on this appeal is the sufficiency of a tender to the sheriff and collector of Jefferson County to redeem lands from a tax sale.

Ella Withers was the owner of the land here involved when the 1963 taxes became delinquent. Joe Wallace bought the land at the tax forfeiture sale held on November 16, 1964 for $33.34. The general taxes for 1964 were paid on March 4, 1965, by Wallace in the amount of $31.60. On April 13, 1966, before the 1965 general taxes became delinquent, Ella Washington, at the request of Ella Withers, wrote to the Sheriff and Collector as follows:

“Dear Sirs:
“Enclosed is a check for $100.00. It is to be applied toward taxes on the property of Ella Withers, Altheimer 4 & 5 22 City 311. 11 — Highland Add. to Altheimer 3 22 City 310. Since I do not have the specific amounts of the taxes due, I would greatly appreciate your applying this payment on them from the delinquent ones to the present in that order. If there is a balance on the bill, I would appreciate your sending me the balance. I am making the money order payable to both you and Mr. Mead s'o that the money can be distributed properly with out having to send portions back to me. Thank you for your service.
“Yours truly,
"Ella J. Washington 3409 No. Tenth Street Milwaukee, Wise.
(for Ella Withers of same address)”

It is not disputed that $74.39 would have redeemed the 1963 tax forfeiture at that time. However, the sheriff and collector in response to Ella Withers’ letter replied:

"Mrs. Withers:
“We wrote you about a month ago to send us the balance of your check in the amount of $100.00. Since that time the Sewer tax has gone delinquent for 1965. We are going ahead and collect that amount to keep you from having to pay a penalty on it. That leaves a balance of $52.20 which we are going to hold till we hear from you. You still owe general tax for 1963, 1964 and 1965 and the 1964 sewer tax. In the amount of $165.79. Please send us the balance due of $115.59 by June 15, 1966 as the interest is good until then. Please take care of this matter.
“Make check in the amount of $113.59 Payable to: Harold Norton — Sheriff and Collector.”

Joe Wallace received his tax deed from the county clerk on December 1, 1966, and on August 5, 1967, entered into a contract to execute a quitclaim deed to Annie Lee Vanderbilt upon the payment of $1,850 ($400 down and the balance in monthly payments of $30 each). Vanderbilt was in possession of the premises at the time as a tenant of Withers.

Ella Withers executed a quitclaim deed to Ella Washington on March 15, 1967, and the present suit was filed on December 1, 1967.

As the trial court pointed out in his written opinion:

“. . . The law in Arkansas is rather clear that where a taxpayer makes an attempt in good faith to pay his taxes and is prevented by the mistake, negligence or other fault on the part of the Collector, the sale of his land for nonpayment of taxes is void. See Scroggin v. Ridling, 92 Ark. 630, 121 S. W. 1053 (1909); Robertson v. Johnson, 124 Ark. 405, 187 S. W. 439 (1916); Forehand v. Higbee, 133 Ark. 191, 202 S. W. 29 (1941).
“The same general rule applies where a taxpayer makes an attempt in good faith to redeem his property from a tax sale, provided, the taxpayer meets all of the requirements of the statute granting said right. Botts v. Stephen, 203 Ark. 1031, 160 S. W. 2d 198 (1923); and Gamble v. Phillips, 107 Ark. 561, 156 S. W. 177 (1913). Also, redemption statutes should be construed liberally in favor of the taxpayer. See Killian v. Lincoln National Life Insurance Company, 201 Ark. 1137, 148 S. W. 2d 1085 (1941), and Wyatt v. Beard, 179 Ark. 305, 15 S. W. 2d 990 (1929).
“The Arkansas rule appears to be that a tender of delinquent taxes amounts to actual performance and that, even though the public official fails in his duty in some particular, nevertheless, the redemption is effective with the date of tender even though the records in the office of the Collector of Taxes may not reflect a redemption. In the case of Robertson v. Johnson, 124 Ark. 405, 187 S. W. 439 (1916), the owner offered to pay all of the taxes assessed against his land. He told the person in charge of the office and of the tax books the section in which the land was situated. The land was assessed in the name of the owner and the tax books showed this fact. He paid the amount demanded and by mistake of the Collector, the amount was credited to an adjoining tract. The Supreme Court stated: ‘The landowner did all that was required of him. He made a bona fide attempt to pay all the taxes assessed against his land and his acts under the circumstances should stand as the equivalent of actual payment. This is in application of the principle decided in our own cases cited above and of the almost universal rule which substitutes a tender for performance, when the tender is frustrated by the act of the party entitled to performance.' (Emphasis added)”

Vanderbilt here argues that the tender to the sheriff and collector was ineffective to constitute a redemption because the tender must be made to the county clerk as required by Ark. Stat. Ann. § 84-1201 (Supp. 1969), § 84-1204 and § 84-1206 (Repl. 1960). We find no merit in this contention because Jefferson County has been operating under the Unit Tax Ledger System since January 8, 1945 and by Ark. Stat. Ann. § 84-816 (Repl. 1960), the collector is substituted for the county clerk for purposes of redemption.

Vanderbilt suggests that laches and estoppel should bar appellee’s cause of action. There is nothing in the record to show that appellee did anything to mislead Vanderbilt. The action has been brought in the time permitted by law. Consequently these contentions have no merit.

The Wallaces, relying upon Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193 (1941), and Kitchens v. Machen, 210 Ark. 1046, 198 S. W. 2d 833 (1947), suggest that Washington is barred by her own negligence from claiming redemption of the land from the tax sales. Those cases do not apply here because Washington actually paid for redemption and the tender was misapplied by the' collector.

There is no merit to Wallaces’ suggestion that Washington, as a grantee under Withers, had no standing to attack the tax title. See Ark. Stat. Ann. § 84-1205 (Supp. 1969), and § 84-1215 (Repl. 1960).

Vanderbilt claims that the trial court erred in refusing to allow her to recover for improvements she made and for damages against Ethel M. Wallace individually. We find no merit in either contention. Concerning improvements, her testimony leaves one in doubt about what improvements were made. Since the burden of proof was on her to show the value of the improvements, we find no error in the denial of relief. With respect to the contract of purchase, the record shows that Joe Wallace died during the pendency of the Suit and Vanderbilt’s action against him was not revived; that Ethel Wallace signed the instrument only for the purpose of releasing her dower; and the instrument itself is not abstracted. Under this state of the record, we cannot say that the trial court erred in refusing relief by way of damages.

Appellee Washington on cross appeal asks for the reasonable rental value of the premises to date of the trial court’s judgment. We find no merit in the cross appeal for, as the trial court pointed out, no such relief was prayed for in the pleadings.

Affirmed.


text:
    B. Frank CAMP v. STATE of Arkansas

      5541

    467 S. W. 2d 707
    Opinion delivered February 15, 1971

      Lee Ward and James A. Crislip, Memphis, for appellant.

      Joe Purcell, Attorney General, Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

B. Frank Camp appeals from an embezzlement conviction alleging the errors hereinafter discussed.

Mr. Camp was the assistant administrator of the Osceola Memorial Hospital from June 1968 to August 1, 1969. During that time he handled approximately $750,000 belonging to the hospital. It is stipulated that during that time Mr. Camp purchased items totalling $20,131.18 for his own use with hospital funds.

Clarence Johnson testified that he was employed to audit the hospital records. During a routine audit, he observed a number of discrepancies. One such item was check No. 2781 to Central Supply Co. for a harvest gold tub, gold-plated shower head, gold plated drain, gold Lady Fair lavatory, gold-plated fittings, harvest gold toilet, avocado green tub, chrome plated grab rails, drain, showerhead, fixtures with charcoal handles, avocado closet and seat, green lavatory and chrome plated fixtures with charcoal handles charged to the hospital’s “Maintenance and Power Plant” account. When Mr. Camp was first questioned about these items, he told witness that they had been acquired by the hospital for the “V. I. P.” room. It is now stipulated that they were acquired for Camp’s own use.

The purchases in the stipulation were charged to some thirty different accounts on the hospital records.

Johnson, in addition to the stipulated items, outlined an additional $5,594.18 received by Camp for which he had not accounted. Some of the latter consisted of checks from the Coca Cola, Pepsi-Cola and Dr. Pepper bottlers endorsed by Camp.

Mr. John Cherry, the hospital administrator, testified that he employed Camp at a starting salary of $10,000 per year. Cherry said that neither Camp nor any other employee had authority to purchase groceries through the hospital. Neither had Camp discussed furnishing materials or anything through the hospital for construction of Camp’s home. Cherry knew that in the past certain things were purchased by individuals and charged to the hospital, such as tires and a freezer but in those instances the items were shown as being charged and owed to the hospital by the individual involved. Mr. Cherry said there is a world of difference between $20,000 and a set of tires. When Camp met with the hospital board on July 31, 1969, Cherry recalled that Camp then only admitted some $17,000 worth of items had been purchased for his own use.

Some of the hospital board members were called to show that no permission had been given to Camp to make the purchases on the hospital’s account. One was Mr. Harold Ohlendorf, who stated that the problem of employees’ purchases through the hospital was administrative and that the administrator had authority to grant such permission. However, Mr. Ohlendorf know of no such permission given to Mr. Camp. In fact Mr. Ohlendorf says that he asked Camp, “Frank, why did you do this?” and that Camp replied, “I don’t know. I don’t have any excuse. I made a mistake.” Admittedly Mr. Ohlendorf needed a hospital bed for his mother that he acquired through the hospital and for which he paid promptly.

Needless to say, the evidence is more than sufficient to sustain the conviction.

The trial court properly overruled the motion to strike the indictment. The motion was made on the premise that appellant was allowed to appear before the grand jury and testify without being told that anything he said could be used against him. The argument is apparently based upon Miranda v. Arizona, 384 U. S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974 (1966). Miranda has no application here because Camp voluntarily appeared before the grand jury at the request of his counsel of record.

The trial court required the State and appellant to voir dire a prospective juror before the State was required to peremptorily challenge him. In this the trial court did not err. See Ark. Stat. Ann. § 43-1903 (Repl. 1964) and Lackey v. State, 67 Ark. 416, 55 S. W. 213 (1900).

We are unable to say from the record that the trial court erred in refusing appellant’s challenge for cause to prospective jurors Culbert D. Gwaltney and William E. Ward. All the record shows is appellant’s objection as dictated into the record and the trial court’s refutation of appellant’s alleged bias of the jurors. Upon the record before us, it is impossible to say that the trial court committed error.

On cross-examination of Johnson, the CPA, appellant developed that Johnson was paid $14,700 in fees for work done in 1968 and 1969. Appellant now complains that the trial court should have permitted him to show the number of hours that Johnson worked to earn that sum. The matter sought to be inquired of was certainly immaterial to the issues before the court and under the circumstances we find no prejudicial error or abuse of discretion.

Appellant during the trial asked the court to strike some remarks óf the prosecution. The court then told the jury to “completely disregard statements of counsel . . . and of a personal nature as having no value. ...” At that time counsel made no further objections or exceptions. He cannot now be heard to complain.

The trial court properly instructed the jury that it could convict appellant for any act of embezzlement committed within three years prior to the filing of the information. Appellant now complains that evidence was introduced showing that appellant had unlawfully used some credit cards after the date in the indictment. Appellant permitted the evidence to be introduced without objection or cautionary instruction. Under those circumstances, he is not in a position to now complain of error.

Appellant also complains, relying upon State v. Guthrie, 176 Ark. 1041, 5 S. W. 2d 306 (1928), that the trial court should have given his requested instruction No. 1 as follows:

“You are further instructed that before you may find that funds were fraudulently converted to his own use by the defendant you must first find beyond a reasonable doubt that (1) the defendant had no permission, either express or implied, from his superior or employer to use such funds for his own benefit, and (2) also that, at the time of using such funds for his own benefit, the defendant had an intention permanently to deprive his employer of such funds.”

State v. Guthrie, relied upon by appellant, involves that embezzlement that arises through the co-mingling of another’s funds with those of an insolvent corporation and is not authority for that embezzlement that arises when public funds are converted to the use of the person charged. See Russell v. State, 112 Ark. 282, 166 S. W. 540 (1914). In this connection the court properly told the jury by its instruction No. 7 that an intent to repay is not a defense to a charge of embezzlement.

Appellant complains that the trial court did not properly admonish the jury when the prosecuting attorney argued to the jury about appellant’s news releases to the newspapers about his trying to repay the money. The trial court told the jury that arguments of counsel were not evidence and should not be considered by them as such. We hold this was sufficient under the record.

Appellant also complains of certain arguments made by the prosecuting attorney in his jury summation and of the trial court’s failure after the arguments to instruct the jury that a plea of not guilty constitutes a contradiction of every fact introduced by the State. Appellant did not object to the instructions given before the arguments commenced nor to the matter of which he now complains while the argument was being made. Thus he is not now in a position to complain that the trial court erred. Parrott v. State, 246 Ark. 672, 439 S. W. 2d 924; Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965).

Affirmed.

Fogleman, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Glenn MATHIS v. STATE of Arkansas
    5550
    464 S. W. 2d 48
    Opinion delivered February 22, 1971
    [Rehearing denied March 29, 1971.]

      Henry C. Robinson and Harold. L. Hall, for appel* lant.

      Joe Purcell, Attorney General; Garner Taylor, Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Glenn Mathis, ap: pellant herein, was convicted of burglary and grand larceny in the Pulaski County Circuit Court and was sentenced to serve two years in the State Penitentiary. Evidence on the part of the state reflected that Officer F. M. Elton of the Little Rock Police Department, on May 24, 1968, while patroling. the area- around Eleventh and Bond Street, noticed that the light was turned off at Buddy Brothers DX Service Station. Investigation revealed that the back window had been broken open, the cigarette machine also broken open, and the telephone had been torn from the wall. Subsequent investigation by Little Rock officers revealed that some tools had also been taken from the service station. On the same night that the burglary occurred, Little Rock officers stopped an automobile occupied by three persons, including Mathis. Mathis was sitting in the rear seat. Officer Larry Starks testified that he told appellant to get out of the car, and noticed at the same time that Mathis was emptying his pockets of change. According to Starks, both pockets were full of change, and the total amount recovered (from appellant’s pockets and off the back floor) was $45..05. There were also tools visible which were lying on the floor, a wrench and a long screw driver, the screw driver having a yellow handle with blue paint on the end of it. Buddy Brothers identified some of the tools as belonging to him, stating “They called me over there early in the morning and discovered it all broke, tools gone and asked me if I could identify this big screw driver and I said sure, we got a special blue DX paint that I dip them in and which is easy to identify, and I had worked with the tools for about, some of them, fifteen years”. This was the evidence offered by the state at the trial, and from the judgment entered, appellant brings this appeal. For reversal, it is first asserted that Mathis was arrested without probable cause, and it is then urged that the evidence was insufficient to support the verdict.

Mathis, who denied having both pockets full of change, and denied dumping change out of his pockets as he prepared to get out of the car, testified that he, with the two others in the automobile, had been drinking at the Executive Club and were on their way to the 609 Club at the time of the arrest. He said no. traffic laws were being violated, and that no search warrant was exhibited at the time the car was stopped and the arrest made.

The short answer to appellant’s first contention (that he was arrested without probable cause in violation of his rights under the Constitution of the United States and of the State of Arkansas) is that we cannot consider it since the contention was not made in the court below. We have consistently held that a point cannot be raised on appeal unless timely objection was made at the trial below. Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653, and cases cited therein. The record does not reveal that appellant, at any time, either before or during the trial, ever asserted or argued that the arrest was made without probable cause. It follows that there is no merit in this contention.

As to the second point, we have already related the facts upon which the state relied. Of course, the evidence was circumstantial, but it was certainly sufficient to sustain the conviction. In Scott v. State, 180 Ark. 408, 21 S. W. 2d 186, we said:

“The defendant was convicted on circumstantial evidence, but there is no difference in the effect between circumstantial evidence and direct evidence. In either case it is a question for the jury to determine, and, if the jury believes from the circumstances introduced in evidence, beyond a reasonable doubt, that the defendant is guilty, it is the duty of the jury to find him guilty just as it would be if the evidence was direct.’’

When we consider that tools found in the car were identified by Brothers as belonging to him, that appellant’s pockets, according to the officers, were full of change, and that the testimony on the part of the state reveals that he was trying to empty his pockets just prior to arrest, the state has shown strong circumstances of guilt. This is particularly true when we consider that Mathis, though testifying, gave no explanation of the large amount of change found in his pockets and on the back floor of the automobile. Appellant simply denied that he had any large amount of change in his pockets or that he dumped any on the floor. Accordingly, we have simply a matter of which witnesses the court chose to believe. The evidence was sufficient to sustain the verdict.

Affirmed.

       In the case now before us, the trial was conducted by the court, sitting as a jury, but the rule, is of course, the same.


author: George Rose Smith, Justice.

text:
    Kelly POGUE et al v. BANK OF LAKE VILLAGE
    5-5473
    464 S. W. 2d 49
    Opinion delivered February 22, 1971
    [Rehearing denied March 29, 1971.]

      William H. Drew, for appellants.

      David S. Gillison, Jr., for appellee.
   George Rose Smith, Justice.

This is a foreclosure suit brought by the appellee bank to enforce certain notes and mortgages executed by Delta Lumber Company, a corporation, and indorsed in part by the four individual defendants, Mr. and Mrs. Kelly Pogue and Mr. and Mrs. Doyle McBride. Doyle McBride, who is the principal appellant, contended unsuccessfully in the trial court that he was not liable upon a $55,000 note executed by Delta Lumber Company to the bank, because McBride’s name had been indorsed upon the note by Kelly Pogue, as attorney in fact, under the authority of a contract that had actually been abandoned before Pogue purported to act as McBride’s attorney in fact. The chancellor held that McBride was liable upon the note to the extent of $50,000. For reversal it is again contended that Pogue was not authorized to act as McBride’s attorney in fact on the date of the note, September 29, 1969.

At the trial the controlling issue was primarily one of fact. Pogue was the manager of Delta Lumber Company, a corporation in which Pogue and McBride were the principal stockholders. Delta, which was engaged in the building business, was in seriously straitened financial circumstances on February 19, 1968. On that date Delta, the Pogues, the McBrides, and the bank entered into a contract, entitled Credit Agreement, which was the basis for Pogue’s asserted authority to sign McBride’s name some nineteen months later as an in-dorser of Delta’s note for $55,000.

We need not quote the contract, which comprised three and a half typewritten pages. In the contract the bank was designated as the Lender and the other five parties were designated as the Borrowers. By the terms of the contract the bank agreed to make unsecured loans to the Borrowers in amounts up to $50,000 in the aggregate, the loans to be evidenced by the Borrowers’ promissory notes. The bank also agreed to make secured loans to the Borrowers in amounts up to the bank’s lawful lending limit, which was originally $55,000 and which was later increased to $75,000. In the contract each Borrower appointed each of the other Borrowers as attorney in fact “to sign and execute its, his, her or their names to any and all notes” and other evidences of indebtedness executed to the bank under the terms of the Credit Agreement.

During the ensuing nineteen months the bank made to Delta a number of loans, both secured and unsecured, in substantial amounts. Most of the loans were secured by pledges of amounts that Delta, as a building contractor, was to receive under construction contracts with third persons. It was the intention and hope of all concerned that Delta, with the bank’s financing, would be able to perform all its contracts and wind up its business, without loss, as soon as possible.

The $55,000 unsecured note was executed by Delta on September 20, 1969. McBride refused to indorse the note personally, and that refusal was made known to the bank either by McBride himself or by Pogue, who l|ad discussed the matter with McBride. Despite McBride’s refusal to indorse the note, Pogue executed it on behalf of Delta and also signed his own name as an indorser and the names of the other three Borrowers as their attorney in fact. At the trial Pogue explained that he had considered it necessary for the Borrowers to obtain the loan, for otherwise Delta would have had to cease doing business, with the result that the bonding companies would have obtained all the monies from third persons that Delta had already earned but had not yet received. Despite the loan, however, Delta’s condition deteriorated to the point of insolvency.

In our opinion the weight of the evidence supports the chancellor’s conclusion that the Credit Agreement was still a viable contract that had not been abandoned when the $55,000 note was executed. To begin with, the agreement required the bank, as Lender, to make secured and unsecured loans to the Borrowers. According to the bank’s testimony, the bank would not have advanced any funds to Delta without the Credit Agreement, because Delta’s financial condition was not strong enough to justify the bank in making such advances. Thus all the loans throughout the nineteen-month period were actually made by the bank in reliance upon the Credit Agreement.

Moreover, almost every material provision in the Credit Agreement was complied with by the parties. Delta, for example, was required by the contract to obtain the bank’s approval before Delta submitted a bid for any construction contract involving more than $10,-000. In the record there are nine letters, written between August, 1968, and April, 1969, in which Delta solicited the bank’s approval of such proposed bids. The Credit Agreement required the Borrowers to submit annual financial statements to the bank. With a single exception that requirement was complied with by the Borrowers. The Agreement required the Borrowers to acquire and transfer to the bank a $50,000 insurance policy upon Kelly Pogue’s life. That was done.

The appellants stress a provision in the Credit Agreement that required Delta’s unsecured line of credit to be paid in full for at least two months of each successive calendar year. Delta was never able to satisfy that clause in the contract. That provision, however, was for the bank’s benefit, and consequently the bank could waive compliance if it chose to do so. Hodges v. Taft, 194 Ark. 259, 106 S. W. 2d 605 (1937).

The appellants also stress McBride’s refusal to indorse the $55,000 note when he was asked to do so. McBride, however, took no steps to terminate the authority of the other Borrowers to act as his attorney in fact. The contract provided that any party could cancel, it upon ten days written notice to the others, but upon cancellation by the Borrowers all outstanding indebtedness would become immediately due and payable. McBride evidently preferred to continue to receive the benefits of the contract. It is a familiar rule that one cannot accept the beneficial provisions of an agreement and at the same time disclaim the binding force of another provision that proves to be burdensome. William Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S. W. 2d 500 (1958).

Finally, MrBride contends that the $55,000 note exceeded the limit of $50,000 that the Credit Agreement placed upon unsecured loans to the Borrowers. The chancellor, however, fully protected McBride’s rights in this respect by awarding the bank a personal judgment against McBride to the extent of $50,000 only. Hence McBride has sustained no substantive loss by reason of the note’s having exceeded the limit fixed by the Credit Agreement for an unsecured loan.

Affirmed.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Charles MOORE v. Gwendolyn Moore JORDAN
    5-5462
    463 S. W. 2d 378
    Opinion delivered February 22, 1971

      Gaughan, Laney, Barnes ér Roberts, for appellant.

      Streett ir Plunkett, for appellee.
   George Rose Smith, Justice.

This is a child custody case. When the parties were divorced in May, 1968, their daughter, Michelle Moore, was four months old. At that time the child’s mother, now the appellee, was only twenty and had no home to which to take the child. Consequently the decree provided, by agreement, that custody was awarded to the child’s father, now the appellant. Moore was then living with his own parents, the Floyd Moores. The award of custody was conditioned upon the child’s being cared for by Mrs. Moore, Sr.

In June, 1969, the appellee married her present husband, Michael Jordan. The couple moved into the home of Michael’s parents, a Presbyterian minister and his wife. The appellee then filed the present application for a change of custody. Michelle was two and a half years old when the petition was heard. In granting the petition the chancellor made oral findings in which he stressed (a) the law’s settled preference for custody in the mother when an infant girl is involved, and (b) the fact that this young mother is physically and morally capable of bringing up her own child. We do not agree with the appellant’s contention that the chancellor felt compelled under the law to grant custody to the appellee. As we read the chancellor’s findings, he exercised his discretion in the matter.

We agree with his decision. With respect to change of circumstances we had this to say in a closely parallel case: “At the time the father was given the custody of the children, the mother had no home, no way of supporting them, and no place to take them; but now she has a good home, a good husband, and a place for them. Thus there is a change of circumstances and we can not say that the court’s order changing the custody of the children is not justified by the situation of the parties as it now exists.” Carlton v. Carlton, 223 Ark. 870, 269 S. W. 2d 513 (1954); see also Langston v. Horton, 229 Ark. 708, 317 S. W. 2d 821 (1958).

Apart from the change of circumstances, other proof supports the chancellor’s decision. There is no real question about the appellee’s good moral character. It is true that she had an earlier marriage and divorce before she married the appellant, but that unfortunate experience on the part of an eighteen-year-old girl certainly does not call for a forfeiture of the precious privilege of bringing up her own infant daughter.

When the case was heard, the appellee and her husband were both 22 years old. Michael had completed his plans for entering the study of the ministry in the fall. While he had never seen the child, that was because the appellant had told the appellee not to bring Michael to the Moore’s houce, “because there would be trouble.” Michael appeared as a witness in support of his wife’s petition, stating his intention of giving to Michelle the same love that he would give to his own child.

. There is no question about the fine qualities ot the Floyd Moores, a couple in their early fifties, who cared for Michelle during the two years just preceding the hearing in the court below. They are, however, the child’s grandparents and naturally do not have a claim to custody as strong as that of the child’s own mother. Moreover, some dislocation of Michelle’s family ties is foreseeably unavoidable in any event. At the time of the trial the appellant was planning to remarry and to take Michelle to his new home eventually. Both he and his father testified, however, that Michelle was so deeply attached to her grandparents that the transition to the new home would have to be gradual. As the appellant put it: “We would leave her with my mother until we could work up to it.” With that attitude on the part of both the father and the grandparents there is certainly a reasonable probability that the transition would not be an ideal emotional experience for the child. The chancellor might well have been unfavorably impressed by the appellant’s manifest reluctance to take a step that should be taken as quickly and as painlessly as possible.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I certainly agree with the eminent chancellor that child custody cases are the most difficult and nerve-racking of all those addressing themselves to the courts. Nearly every decision is a heartrending one to me. I might well agree with the majority if I were convinced that the chancellor had treated this as a change in custody awarded by judicial decree. Even then, I would agree reluctantly, because the polestar in custody cases — the welfare of the child — leads me to the conclusion that custody should not be changed in this case. But I am convinced that the chancellor considered this case as if he were determining the original custody award. He was not. The decree of the court, not the agreement of the parties, determined child custody. It awarded the care and custody of the child to appellant, conditioned upon her being cared for by appellant’s mother, because of the child’s age. This was a judicial determination. Marr v. Marr, 213 Ark. 117, 209 S. W. 2d 456; Burnett v. Clark, 208 Ark. 241, 185 S. W. 2d 703; Henkell v. Henkell, 224 Ark. 366, 273 S. W. 2d 402; Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134. Courts may not abdicate their responsibility for placing the custody of a child where its best interests require after appropriate investigation, regardless of agreements between the parents and their underlying motives. Marr v. Marr, supra. That the chancellor did not do so is best illustrated by the specification that award to the father was conditioned upon the child being cared for by his mother.

This proceeding began as one for change of custody because of changed circumstances. The changes alleged were: (1) remarriage of appellee; (2) plans of her third husband to study for the ministry; (3) denial of visitation privileges by appellant’s parents; (4) her inability to “rest” and “know peace or happiness” unless permitted to have the child.

The latter two grounds certainly were no basis for changing custody in the best interests of the child. Child custody should never be based upon reward of one parent, punishment of another, or the welfare or gratifications of the feelings of either parent. Caldwell v. Caldwell, 156 Ark. 383, 246 S. W. 492; Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673; Miller v. Miller, 208 Ark. 1058, 189 S. W. 2d 371; Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617. The evidence on the first two grounds was, in my opinion, wholly inadequate to justify a change of custody.

In resisting appellee’s petition, appellant alleged that appellee maintained no interest or concern for the child prior to the parties’ divorce and that the child was happy, well adjusted and contented.

To illustrate the chancellor’s conception of the proper treatment of this proceeding, one need only refer to his oral findings at the conclusion of the hearing. Among them are these:

1. The law requires that custody of children of tender years be awarded to the mother.
2. Based upon that assumption the burden is on the father to show why the mother should not have custody.
S.One reason for denial of custody to the mother is physical incapacity rendering her incapable of caring for the child, which was not shown by the testimony.
4. Another reason is moral depravity, of which there was no evidence.
5. The mother gave satisfactory evidence of her necessities bringing her to leave the child with its father at the time of the divorce.
6. The Moores have taken excellent care of the child, and no one has even suggested that they have not done the right thing. They are fine people and have maintained a good home for the baby.
7. Under the law, there was no other decision the court could make than to award custody to the mother.

Since the chancellor seemed to treat this case as if it were an original award and erroneously placed the burden of proof upon appellant, it is incumbent upon us to determine where the preponderance of the evidence lies. I find it to support appellant in that there are no such changes of circumstances as to make the child’s best welfare served by changing its custody. This child was a bare four months old when custody was placed as it is. She has been nurtured, loved and cared for by her father, paternal grandparents and uncles and aunt in a good home until this hearing in the trial court when she was 2% years old. Evidence of reciprocation of that love is overwhelming. The psychological trauma of her transplantation from that environment to one which is uncertain and unstable, at best, may be immeasurable and irreparable. These are not mere notions of mine. The evidence supports them overwhelmingly.

A review of the testimony shows:

1. This 22-year-old mother is in the early months of her third marriage, the first two having been terminated by divorce. Her first marriage lasted from sometime in 1965 until March 1967. The second lasted from March 31, 1967, until May 28, 1968, seven months after her daughter’s birth. This marriage took place June 6, 1969, about one year prior to the decree before us.
2. Appellee had left the baby with its father in February before the divorce and only kept it a week before returning it. This period covered a job-hunting trip. Appellant’s mother had actually had the baby nearly all of the time since she was born. Mrs. Moore testified that appel-lee wanted to go to work and brought the baby to her daily after the child’s birth, even before appellee got a job.
3.Appellee’s search for employment on the eve of the divorce in places where she might have kept the baby were half-hearted to say the least. She spent one-half day looking for a job in Memphis and one day in Jackson. She had a job in East Camden, where she had been working before her separation from appellant.
4.Appellant’s and his mother’s testimony that appellee was very anxious for him to obtain a divorce seems to be supported by appellee’s actions.
5.After the separation and prior to her new marriage, appellee lived in at least five different places, all within easy traveling distance from the Moore home. Even though she denied statements by appellant that she had gone as long as 11 months without visiting the child, it is clear from her testimony that intervals between visits were sometimes extended over many months. She coiddn’t remember how often she had seen the baby over a 2/4-year period.
6. Appellant plans to marry a school teacher, whom he has been dating since August 1968. The couple have been taking the child to Sunday School at the church where they are regular attendants and have deliberately attempted to bring about an acquaintance and understanding between the child and her prospective stepmother.
7. The Moores have a large home. There is no question about their devotion to the child and hers to them. The child has been provided with more than adequate facilities for play. There is considerable credible evidence that she is now a happy, healthy child. One witness said that she couldn’t have a better home. Since both appéllant and his prospective wife are employed, they plan to start keeping the child on weekends and later leaving her in appellant’s parents’ home during the daytime.
8. Appellee and her husband have had difficulties, which her present father-in-law said had “leveled out” in the preceding six months.
9. It is admitted that appellee’s present husband has had a drinking problem, supposedly ended in November 1969.
10. Her husband has some vague plan about studying for the ministry in McKenzie, Tennessee. Appellee has never been there and never seen the student apartments which may be available for living quarters. She had given no thought to how she and her husband would support themselves during his two years of school. Her husband did not make a trip to the school to learn about living conditions and costs until the eve of the custody hearing, and he went then upon advice of counsel. Even then he didn’t even look at the apartments available. They will be dependent upon a scholarship for which her latest husband says he will be eligible. He did not know whether apartment rental which he would have to pay included utilities. He anticipated that he would be able to have employment at the school for 15 hours per week at $2 per hour. He said he had assurance of all the aid he needs from his present pastor and from his father. This assurance as stated by them is not definite in amount or regularity. He testified that he thinks he is going to the school but would abandon his dedication to the ministry if it developed that his going to school would prevent her from getting the baby, or if he found their means of support at the school inadequate. The husband testified that appellee definitely would not work if he went to school, but would stay at home all day.
11. There is evidence that the child has a fear of strange men.
12. Appellee testified that the only Change in her daughter’s condition was appellant’s impending marriage and the statement of the Moores that they would keep the baby. She stated that her only desire was to get custody because she was the mother and now has, a home for her.

The chancellor may have considered that this was a case where the real contest was between the mother and the grandparents and governed by such cases as Baker v. Durham, 95 Ark. 355, 129 S. W. 789; Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134; and Miller v. Miller, 208 Ark. 1058, 189 S. W. 2d 371. If so, I do not agree. The original award of custody in Baker was temporary only and gave no consideration to its being placed in the custody of grandparents. The father, who sought change in custody, had always manifested his affection for the child and desire for its custody. The evidence tended to show that the mother to whom custody was originally awarded had left the country after turning the child over to her parents. The trial court had shifted the custody from the mother to her parents. There was nothing to show that the grandparents wanted the child or were better able to provide for it than the father. We said that the evidence did not show that it would be inhuman to either the child or the grandparents to give her to her father. It was there recognized that there are cases where the parent by indifference to the welfare of his child and lack of proper affection for it has voluntarily relinquished the parental obligations, privileges and pleasures to other hands for so long that the court will refuse to disturb the associations and environments which his own conduct has produced and will leave in statu quo those whom he has permitted to stand in loco parentis. If this is not such a case, then I do not expect to see one.

Custody was originally awarded to the mother of the wife in Miller. The father visited the children daily and manifested an interest in their welfare. He had remarried, and his new wife had several years’ experience in housekeeping and caring for children. The maternal grandmother, unlike Mrs. Moore, was burdened with housekeeping for a group of eleven, six of them her own children under 18 years of age. The paternal grandfather, unlike appellant’s father, was unable to work. The grandmother also cared for a second child of an unmarried daughter. They all lived in a 5-room house and had lived in four different places in as many years. There was testimony that the young son of the parties had learned to use profanity and had acquired other bad habits. The change of custody was ordered by this court because the father was in a position to provide a better home and more wholesome environment than the grandmother. The change was not based upon any preference for the father over the grandparents, but upon the best interests of the children.

In Seruaes, the original divorce decree was silent on custody. The mother kept the child until he was about 16 months old. Her love and affection and desire for custody were said to have never ceased. Over two years later the custody was divided upon the basis of 6-month periods. When the time for the mother’s periodic custody came the parties entered into an agreement under the terms of which it was stated that the father’s mother was the proper person to have the care of the child and that both parties would leave him there. The mother was ill at the time and during the ensuing three years or more she was hospitalized five times and underwent two major operations. When the mother sought custody for the school term, the father had remarried and then lived and worked in Texas. His testimony clearly showed that he did not want custody himself. His wife did not evidence any interest in the child. The mother’s new husband was well established, owned a home, two trucks, two cars and an airplane. The home was within three blocks of a school. The grandparents were sharecroppers who had nine children, four of whom lived at home. The court failed to find any evidence that such close ties had grown up between the child and his grandparents as would cause us to say that it would be unfair, cruel or for the child’s best interest to refuse transfer of custody to his mother. How different the present case is.

Nor do I agree that the authorities cited in the majority opinion are in anywise comparable. In Carleton, the father who had custody had four marriages, two of which were to the child’s mother. One of the others lasted nine days and another 18, before separation. His own mother testified that he drank a great deal at one time. His marital status was uncertain. The paternal grandmother was found not always careful about her language. It was declared that the mother and her new husband would have a better home and better surroundings. The shoe seems to me to be on the other foot here.

In Langston, the father who had original temporary custody of the two daughters lived with his 76-year-old grandfather who cared for the children while the father was at work. The wife and her new husband had been married for two years. They worked for a year in Alaska to earn money with which to provide a home for her daughters. They returned to Washington where they made a down payment upon a home, and the husband obtained employment. The chancellor, whose decree was affirmed, was of the opinion that the children should be placed in the mother’s home in preference to their remaining in a home where there was no woman to look after their needs. 1 find no similarity here.

I simply do not understand how the majority reaches its result. If ever the facts of a case called for denial of a change of custody, this one does.

         Marr v. Marr. 213 Ark. 117, 209 S. W. 2d 456.