text:
    Marvin v. Brooks.
    5-701
    281 S. W. 2d 926
    Opinion delivered June 20, 1955.
    [Rehearing denied October 3, 1955.]

      Rex W. Perláns and E. J. Ball, for appellant.

      James R. Hale, for appellee.
   Ed. F. MoFaddin, Justice.

This case stems from the sale of a stock of groceries, by appellant Marvin to appellee Brooks; and is here on an appeal by Marvin (from a judgment quashing his writ of attachment), and a cross-appeal by Brooks (from directed verdicts which denied him damages and awarded Marvin a judgment for debt).

The facts are somewhat complicated. We refer to the parties by name. Marvin owned, or was interested in, grocery stores in Prairie Grove, Springdale and Fayetteville. Brooks had managed Marvin’s Springdale store for several years on a salary of $60.00 per week. In February, 1953, and apparently without any previous negotiations, Marvin proposed to sell to Brooks the stock of groceries at Prairie Grove, which inventoried slightly in excess of $11,000.00. From the inventory there were deducted accounts payable of $2,302.00 and an overdraft at the bank of $1,098.00. These deductions left Marvin’s equity at $7,664.08, to evidence which amount Marvin took Brooks’ unsecured note. The maturity date of the said note presents a sharply disputed factual issue. It is undisputed, however, that Brooks was to draw $75.00 per week from the store for the services of himself and wife; and that he was to pay Marvin $135.00 a month rent for the fixtures and $60.00 per month rent for the building.

Brooks operated the store from February, 1953 to May, 1954 and had paid the bank overdraft and most of the accounts payable, when, without demand or notice, Marvin filed the present action against Brooks for $8,009.08 and also had the stock of groceries attached. The Sheriff sold the groceries pendente lite. Brooks resisted the attachment as well as the claim for debt, and also counter-claimed for damages for wrongful attachment. At the conclusion of the trial, the Circuit Court (1) found that Marvin had not established any grounds for attachment and ordered the proceeds of the attachment sale returned to Brooks; (2) directed the Jury to return a verdict for Marvin on Brooks’ claim for damages for wrongful attachment; and (3) directed the Jury to return a verdict for Marvin for $7,934.08 on the debt sued on. Marvin has appealed from so much of the Court’s action as quashed his attachment; and Brooks has cross-appealed from the. Court’s action regarding the two directed verdicts.

I. Marvin’s Appeal in Regard to the Attachment. When Marvin filed his action he filed his affidavit and bond for attachment and the Sheriff seized the entire stock of groceries. Marvin’s claim to the right of attachment was two-pronged: (1) he claimed he was the vendor of the stock of groceries and entitled to attachment under § 34-2301 et seq., Ark. Stats.; and (2) he claimed he was entitled to attachment under the general attachment statute, which is § 31-101, Ark. Stats.

It was proper for the Trial Court to decide as to the existence of the alleged grounds for attachment, rather than to submit such issue to the Jury. See Stair v. Jones, 223 Ark. 882, 269 S. W. 2d 297, and Ward v. Nu-Wa Laundry, 205 Ark. 713, 170 S. W. 2d 381, and cases there cited. Furthermore the finding of the Circuit Court, as regards the grounds for attachment, is to be sustained if supported by substantial evidence. Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462; and Wallace v. Wells, 221 Ark. 750, 255 S. W. 2d 970, and cases there listed.

The Court was correct in denying Marvin’s claim for attachment under § 34-2301, Ark. Stats. In Borengasser v. Chatwell, 207 Ark. 608, 182 S. W. 2d 389, we pointed out that a vendor’s lien attachment could only reach the property actually sold by the vendor to the vendee. Here, Marvin was attempting to attach a stock of groceries that had been replenished and regularly exposed to sale over a period of 15 months from the date of the original transaction. Marvin made no effort to show that any article of groceries was other than one recently purchased by Brooks from some wholesaler; and there was ample evidence that Brooks had been purchasing from wholesalers all during the 15 months’ period in which he had been running the store. The Court was correct in deciding against Marvin on this phase of the attachment claim.

The Court was also correct in deciding against Marvin in his claim for attachment under the general statute, § 31-101 et seq., Ark. Stats. Marvin’s affidavit claimed that Brooks (1) was about to remove his property without leaving enough to satisfy the plaintiff’s claim; (2) had disposed of his property with fraudulent intent to cheat, hinder or delay his creditors; or (3) was about to do so. While not stated in the words of the statute, it is evident that Marvin’s affidavit was designed to contain the allegations as found in Items 6, 7 and 8 qf the first subdivision of § 31-101. But Marvin’s testimony in no wise sustained the affidavit. In fact, Brooks’ attorney used Marvin as a witness to show that no grounds for attachment existed. We therefore conclude that the Court was entirely correct in finding and ordering that the attachment had been wrongfully issued.

II. Brooks’ Claim for Damages for Wrongful Attachment. Our cases hold that an action for damages for wrongful attachment is a jury case (Bank of Wynne v. Stafford, 129 Ark. 172, 195 S. W. 397); but these cases necessarily mean that some evidence must be offered as to the elements of damages claimed. Here no such evidence is in the record; and in the absence of evidence the Court correctly directed a verdict for Marvin on this phase of the case.

III. Brooks’ Cross-Appeal on the Judgment for Debt. As previously stated, the Court directed a verdict in favor of Marvin and against Brooks for $7,934.08 as the debt to Marvin. We hold that a fact question was made as to the time and manner of paying the debt, and that this issue should have been submitted to the Jury.

The evidence was in sharp dispute as to what the agreement was between Marvin and Brooks concerning the maturity of the original debt of $7,664.08. Brooks testified that no part of this amount was to be due until he had paid all of the accounts payable of $2,302.00, and that some of these had not been paid. One of these creditors made proof that its debt had not been paid. So, if the $7,664.08 was not due, the action was premature; and a Jury question was made on that point.

Marvin testified that Brooks executed a note to him for the $7,664.08 and the note was introduced in evidence and stated that it was payable ‘ ‘ $50.00 monthly, payable every six months, plus interest.” But Brooks stoutly insisted' — and other evidence corroborated him — that the monthly payment clause was placed in the note after he signed it and without his knowledge or consent. But against that insistence, Marvin established that the note merely evidenced the amount. The maturity of the debt presented an issue of fact.

Again, Brooks testified that Marvin agreed that if Brooks could not pay the $7,664.08, then Marvin would take back the store and cancel the debt. This defense also presented a Jury question.

Therefore, the judgment is affirmed on all issues except the judgment in favor of Marvin for the debt. As to that issue, the judgment is reversed and the cause is remanded. In view of such remand, we think it proper to mention that the record shows that Brooks made an assignment of some of the funds in the hands of the Sheriff but that Marvin superseded the entire judgment of the Lower Court. In view of Brooks’ testimony that Marvin agreed to take back the stock and cancel the unpaid debt, we order that the Sheriff will hold all funds on hand until the Court below makes disposition of the same. The costs of this appeal are to be paid by appellant.


source: Caselaw Access Project

author: Lee Seamster, Cliief Justice.

license: Public Domain

text:
    BucTon Construction Co. v. Carlson.
    5-704
    280 S. W. 2d 408
    Opinion delivered June 20, 1955.

      Cooper Thweatt and John D. Thweatt, for appellant.

      John II. Wright and D. II. Crawford, for appellee.
   Lee Seamster, Cliief Justice.

The appellees, Mr. and Mrs. William C. Carlson, owned and operated a service station, café and tourist court which was located about seven miles south of Arkadelphia, Arkansas, in Clark County, on Highway No. 67. The right-of-way of this highway was to be widened in 1951 and it became necessary for the State to acquire that portion of the appellees’ property on which these buildings were situated since they were located on a portion of the proposed right-of-way for the highway. The State and the County reached a settlement with appellees for the value of the property to be taken for this purpose. One item in the settlement agreement was the stipulation that the State was to move the buildings from their location to another location on the appellees’ property which was a proper distance from the proposed new right-of-way of Highway No. 67, and have them “set up in the same condition as they were before moving and without alteration.”

The structures were to be moved and relocated in accordance with job plan No. 7403 of the State Highway Department. The plans for job No. 7403 provided that the structures were to be moved back and reconstructed in the same condition as they were before the moving.

Prior to the settlement agreement, the appellant, BucTon Construction Company, Inc., an Arkansas Corporation with its principal place of business in Prairie County, Arkansas, was awarded the contract by the State to perform the work necessary for the completion of job No. 7403. Appellees alleged that they had no contract with the appellant. At the completion of this work the appellees brought this suit in Clark County Circuit Court, against the appellant, alleging that BucTon Construction Company, Inc. took down such buildings and equipment in a most careless, negligent and destructive manner, so that much of the materials and equipment in said buildings was badly damaged and its usefulness destroyed. It is contended that the appellant then re-erected such buildings and appurtenances in a careless and slovenly manner. Therefore, as a result of the carelessness and negligence of the appellant in taking down, moving and re-erecting the buildings and equipment the appellees’ property was damaged in the sum of $40,000.00. The appellees set out in detail the many items that had been damaged and the manner in which the damage had occurred. This included such items as flood lights, which were used to light the premises and metal troughs which had been installed under the eaves of the buildings for drainage purposes. It is contended that these two items were removed and were never replaced.

The appellees testified to having spent more than $7,000.00 for labor and materials to repair the damages that had been inflicted to their buildings. This was in addition to their own labor which had been expended to try to restore the buildings to their former condition. They stated that there was yet other repairs to be made before the buildings and equipment could be restored to the former condition that existed before the removal and re-erection of the buildings and equipment.

The appellant filed a motion to dismiss upon the grounds that the venue would not be in Clark County, Arkansas, for the reason that: (a) the suit was upon a breach of contract; (b) that the appellant is a domestic corporation with its principal office in Prairie County, and therefore, the venue Avould be in Prairie County. This motion was overruled by the court and the appellant filed an answer, reserving its rights under the motion to dismiss on the jurisdictional grounds. The answer denied all the material allegations of the complaint and as a further defense set up its contract with the State. It attached a copy of the plans and specifications for job No. 7403. The plans and specifications required the contractor to move the buildings and equipment from their location to another location and thereby re-erected and set up in the same condition as they were before removal. The contract that the appellant had with the State on this job provided that the engineer ip charge of supervision would be the final arbitrator over the work performed by the contractor and that he (contractor) AATould be bound by the engineer’s estimates and would be paid upon the engineer’s approval of the work. The appellant also alleges, as a defense to the suit, that it performed the work of remoAdng and rebuilding the buildings on the appellees’ premises under the approval of the Statu supervisor for the State Highway Department and that, it has been paid for the work performed. It is stated that if any defects appear in the work then the liability would fall upon the State. It is contended that the appellees had a contract -with the State and not with the appellant; that the appellant’s contract was with the State and that it had completed its contract in accordance with the terms in every respect and in a workmanlike manner; that it reconstructed the appellees’ buildings according to the plans and specifications furnished it by the State and the drainage for the new location of said buildings was put in according to plans furnished it by the State. Therefore, it is alleged, that if any defects are found with its Avork in performing its contract, the fault would be the responsibility of the State, not the appellant.

This case was submitted to the jury; whereby the jury awarded the appellees the sum of $6,000 for damages other than drainage damages. There was no sum awarded for drainage damages. The Court awarded a judgment accordingly.

For reversal, the appellant insists that the lower court erred in overruling its motion to dismiss because of improper venue. This question of venue and jurisdiction is covered by the Arkansas Statutes.

Section 27-601, Ark. Stats., provides: “Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated, except as provided in Section 27-616; 4. For injury to real property. ’ ’

Section 27-618 of said Statutes further provides: “In any action which may lawfully be brought only in some one or more particular counties in this State, and not in any county of the State in which service may be had on the defendant, so that the venue for such action is local and not transitory in nature, summons may be served upon the defendant or defendants in such action in any county in this State. ’ ’

Section 27-605 of said Statutes, the one under which appellant contends the venue is in Prairie County, provides: “An action, other than those in Sections 84, 85 and 90 (27-601 — 27-603) against a corporation created by the laws of this State may be brought in the County in which it is situated or has its principal office or place of business, or in which its chief officer resides. . . . ”

In order to determine the question presented here, it must be determined whether the appellees have alleged damage to real property. If they have, then the suit must be brought in Clark County. The section which the appellant relies upon says that suits against a domestic corporation may he brought in the county in which it is situated, but that statute specifically exempts suits for damage to real property. The appellees in this case have alleged, among other things, that they have been damaged by the carelessness and negligence of the appellant in moving the buildings, and also claim for damage to the land for improper drainage. The allegation of improper drainage is sufficient to give the lower court venue and therefore jurisdiction to try the case.

Further, under the allegations of the appellees ’ complaint it is clearly evidenced that the buildings located on the real property owned by them before they were moved were a part of the realty. A further analysis of the suit indicates that it was never the intention of either party that the buildings in any manner be converted to personal property. They were simply to be moved back off the right-of-way of the highway. The mere transitory action of moving the buildings back could not be considered sufficient to legally change their status. They were certainly a part of the realty before the operation and are a part of the realty now. An action for injury to real property is local in nature and must be brought in the county in which the land is situated. See Mayner v. Utah Const. Co., 108 Fed. Supp. 532. Damages to* buildings by highway construction contractor is an action for damages to land and must be brought in the county where land lies. See Southeast Const. Co. v. Wood, 223 Ark. 325, 265 S. W. 2d 720; Southeast Const. Co. v. Wood, 223 Ark. 328, 265 S. W. 2d 722. This court has held in the case of Arkansas Highway Commission v. Holt, 190 Ark. 868, 81 S. W. 2d 929, that: “A contractor who injures another’s land while engaged in constructing a state highway may be sued in the county where the injury was committed. ’ ’

The appellant next contends that the lower court erred in refusing to grant appellant’s requested instruction for a directed verdict. It is contended that the appellees had no cause of action, either ex contractu or ex delicto, for any of the alleged items of damage, by reason of the appellant’s contract for job No. 7403 with the State Highway Department. The trial court was correct in overruling the appellant’s request for an instructed verdiet in its favor. The completion of its contract with the State and the State’s approval, thereof, does not relieve the appellant from liability for its negligent act, if it results in injury to appellees’ property. The case of Bickford v. Richards, 154 Mass. 163, 27 N. E. 1014, 26 Am. St. Rep. 224, held: “The plaintiff’s right of action does not depend on the existence of a contract between himself and the defendants, as would be the case if he were suing for damages resulting from some non-feasance on their part, but on the fact that they have wrongfully and negligently done, or caused to be done, something to his property which has injured it. The gist of the action is the breach by the defendants of the duty which they owed to the plaintiff not to injure his property by any wrongful or negligent acts of theirs. ’ ’ See also Arkansas Highway Commission v. Holt, 190 Ark. 868, 81 S. W. 2d 929; Southeast Const. Co. v. Wood, supra; 12 Am. Jur., § 458, p. 1042.

The jury was previously instructed as to the generality of the law of negligence. The court also instructed the jury that if appellant performed the work of removing and re-erocting the buildings and appurtenances in a negligent, careless or unworkmanlike manner; and if such negligent, careless or unworkmanlike work proximately caused damage, and without which such damage, if any, would not have occurred, the appellant would be liable for the damage caused by its negligence.

The trial court gave instruction No. 9 on the measure of damages. The instruction stated: “If you find for the Carlsons and against BucTon, your verdict should be for such a sum as you believe from a preponderance of the evidence will reasonably be necessary to restore the property to as good condition as it was prior to the movement; provided all elements of damage assessed against BucTon must be those elements properly chargeable to BucTon in accordance with previous instructions of the Court.

“If you find for the Carlsons and against BucTon, your verdict should be for such a sum as you believe from a preponderance of the evidence will be necessary to restore to as good a condition as immediately prior to the moving those elements of damage, if any, which are properly chargeable to BncTon under these instructions. ’ ’

This was a proper instruction and justified by the facts in the case. Lewis, et al. v. Phillips, et al., 223 Ark. 380, 266 S. W. 2d 68. The Court properly refused to give the numerous instructions offered by the appellant, since the instructions that were given covered the law in this ease. No error appearing, the judgment of the trial court is affirmed.


author: .1^ Seaborn Holt, J.

text:
    Jeffett v. American Insurance Company of Texas.
    5-708
    280 S. W. 2d 395
    Opinion delivered June 20, 1955.

      Dinning & Dinning, for appellant.

      Burke, Moore,S Burke and Percy Fewell, for appellee.
   .1^ Seaborn Holt, J.

De Soto Life Insurance Company of Little Rock issued its “Non-cancellable Health and Accident Policy” to Dr. W. P. Jeffett, appellant, December 1, 1943. Dr. Jeffett became disabled within the provisions of the policy, and disability payments of $200.00 per month were made to him at intervals beginning November 15, 1944, (De Soto Life Insurance Co. v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243), until October 15, 1949, when it was found that De Soto was in effect insolvent and owing $20,258.75 disability claims in excess of its assets. At this junction De Soto reinsured its members (or policyholders) with appellee, American Insurance Company of Texas, a Texas Corporation, pursuant to Ark. Stats., §§ 66-254 to 66-256, by written agreement duly approved by the insurance commissioners of Arkansas and Texas. The re-insurance agreement contains this provision:

“Receipt by the Insured or the legal holder of such policy of any company Certificate of Assumption issued in pursuance to the provisions of this agreement, shall be deemed acceptance and ratification of this agreement and the insurance of such Insured’s Association Policy by the Company Certificate in accordance with the terms of this agreement unless each Insured or the legal holder of any Association policy shall within sixty (60) days after the effective date of this agreement, return such Company Certificate to the company at its Home Office together with notice of his refusal to accept the company policy and make request for the payment of the actuarial portion of the net Mortuary and Disability Funds of Association, as hereinafter defined, apportionable to such member who refuses to accept the Certificate of Assumption offered him. In the event of such refusal and request, the Company will remit to any such insured or legal holder of said policy such actuarial portion.”

This agreement was embodied in an Assumption Certificate, No. 1081, issued to Dr. Jeffett by appellee, American. Under the terms of this Certificate (1081) Dr. Jeffett was given a choice of proceeding against De Soto, taking his actuarial portion of the resources of this insolvent company, or of accepting Certificate No. 1081, under which appellee, American Insurance Company of Texas, assumed the obligations of De Soto Life Insurance Company of Little Rock to the extent stipulated in the re-insurance agreement and appearing in the certificate, but not to exceed $5,000 in the aggregate for any and all benefits, claims and indemnities of every kind.

Dr. Jeffett admitted that he received and accepted the Assumption Certificate No. 1081 knowing that Americau’s (appellee) maximum liability was $5,000.00, and further that he filed a claim with appellee each month for $200.00 for a period of 24 months, for a total of $4,800.00, and that appellee paid him this amount ($4,800.00). Each of the drafts were identical except as to date, total previous payments, and balance due; for example, the May 2, 1950 draft was as follows:

“American Insurance Company of Texas

Dallas, Texas May 2, 1950

“Pay To The Order of Dr. W. F. Jeffett - - $200.00

American Ins. Co. of Tex. $200 and 00 Cts. Dollars

For Value Received and Charge the Same to Account of

Claim for one month’s disability certificate No. 1081 with original coverage of $5000.00 Maximum less this payment and previous payments of $1000.00 reducing balance of benefits on said certificate to a maximum of $3800.00 in the aggregate. ”

When American sent to appellant its twenty-fifth and last draft for $200.00, dated December 3, 1951, it was refused by appellant because it contained the following words: “In full and final settlement of any and all claims of any kind and character against the;American Insurance Company of Texas under Certificate No. 1081.” It is conceded that Dr. Jeffett had overpaid his insurance premiums in the amount of $20.00.

The present suit was filed July 25, 1953, by appellant against American Insurance Company of Texas for alleged monthly benefits claimed to be due. The complaint contained this recital:

“That the defendant now is in arrears in the payment of its monthly benefits under the terms of the policy for the period of twenty (20) months and is now indebted to the plaintiff in the sum of Four Thousand Dollars ($4,000.00), by reason of such default less the sum of One Hundred Eighty Dollars ($180.00) which is the amount required to have been paid by the plaintiff as the premium to maintain said policy of insurance in full force and effect.

“WHEREFORE PREMISES CONSIDERED, the plaintiff prays judgment against the defendant for the said sum of Three Thousand Eight Hundred Twenty Dollars ($3,820.00) together with the statutory penalty of 12% and a reasonable attorney’s fee, together with all costs herein expended.”

Appellee answered denying liability and in a cross complaint sought to recover the $4,800.00 paid appellant. On a trial before the court (jury “having been waived) the court found:

“That plaintiff overpaid the amount of premiums due defendant over the period of twenty-five months in the sum of $20.00 which amount defendant tendered to plaintiff at the trial of this cause. Defendant also tendered to plaintiff at the trial the sum of $200.00 representing the last of 25th monthly payment under the assumption certificate. That defendant owes to plaintiff the sum of $220.00.

“And the Court makes the following conclusions of laAV:

“That the actions of plaintiff amounted to a legal acceptance of the Certificate of Assumption issued by the American Insurance Company of Texas and is bound by the terms thereof. A party to a contract cannot accept the benefits of a contract and at the same time repudiate it nor can he accept a part of the contract and repudiate a part, but he must accept or reject the whole contract.

‘ ‘ That defendant, having approved and paid monthly claims for benefits to plaintiff is now estopped from claiming that plaintiff was not permanently disabled during the period of time for Avhich it paid him and should take nothing by their cross action.

“IT IS THEREFORE considered, ordered and adjudged that plaintiff have and recover of and from the defendant the sum of $220.00 which has been tendered to plaintiff by defendant and that defendant take nothing by its cross action which is hereby dismissed.”

This appeal followed. There is no cross appeal. We hold that the findings of the trial court are supported by the evidence and that the judgment is correct.

For reversal appellant contends in effect that appellee, American Insurance Company of Texas, when it took over De Soto, as above pointed out, became liable for all matured and outstanding claims then owing by De Soto and had no right to limit the amount it would pay in satisfaction of such matured claims and that appellant was not estopped in any manner. In a situation similar in effect to the present case the Supreme Court of Iowa, Garretson v. Western Life Indemnity Co., 175 Iowa 172, 157 N. W. 160, announced the general rule in this language :

‘ ‘ The general rule as to reinsurance contracts is that the reinsurer is to be held liable either under its reinsurance contract or upon a subsequent agreement made between it and the assured, and that assured has the right to accept the reinsurance offered him, or to sue the original company for damages. If he accepts the reinsurance contract and pays premiums to the reinsurance company, he is bound by the terms of the reinsurance contract, and cannot recover of the reinsuring company on the old policy unless the reinsurance contract in terms, or by necessary implication, contains an agreement to assume or be responsible on the policy reinsured.” See Central States Life Ins. Co. v. Morris, 202 Ark. 969, 155 S. W. 2d 333.

Here it is undisputed that appellant accepted the Assumption Certificate No. 1081, regularly paid all premiums to American, accepted the benefits under said certificate for a period of twenty-four (24) months. He thus made his choice and is bound thereby. In Northwestern Nat. Life Ins. Co. v. Gray, 161 Fed. 488, (Eighth Circuit Court of Appeals) it was held in effect that a policyholder, in a similar situation such as here, when two insurance companies entered into a re-insurance contract under which one transfers its assets to the other and ceases business, while the other assumes such contract upon terms agreed upon, if the policyholder accepts the re-insurance offer he is bound by the terms of the contract between the two companies. In the opinion we find the rule stated in this language:

“Without hesitation, so far as this record discloses, and presumably with full knowledge of the provision made for him in the event he concluded not to accept the proposition, and with like full knowledge of the remedies available to him for the breach of his contract, Gray elected to accept and did accept the terms offered to him by the new company. He entered upon the performance and continued in the performance of the terms agreed upon for a period of four and one-half years, until his certificate matured. This amounted to a novation, a new contract voluntarily entered into by Gray, and he cannot now repudiate -it. His election was final and conclusive. ’ ’

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Justice.

text:
    Timmons v. Brannan.
    5-707
    280 S. W. 2d 393
    Opinion delivered June 20, 1955.

      J. G. Moore, for appellant.

      Phillip H. Loh, for appellee.
   Ed. F. McFaddin, Justice.

This is the second suit to reach this Court between the same parties, who are adjoining property owners. The other case is Timmons v. Brannan, 219 Ark. 636, 244 S. W. 2d 136; and is hereinafter referred to as “the first case.”

In the first ease we sustained a contract between the parties which established the entire West boundary line of Timmons’ property and the entire East boundary line of Brannan’s property. The written contract between the parties, dated May 20,1950, was copied in full in our opinion in the first case. For convenient reference we recopy two of the paragraphs:

“ It is hereby mutually agreed that the iron stake as now located at the southwest corner of the property of the party of the first part is hereby established as the true boundary line between the southwest corner of the property of the party of the first part and the southeast corner of the property of the party of the second part

“ It is hereby agreed that said line shall run directly or due north of the iron stake hereinabove mentioned to the northwest corner of the property of the party of the first part to the now placed post in said northwest corner of the property of the party of the first part.”

In the first case Timmons, as plaintiff, claimed that he had been induced to sign the said boundary line settlement agreement through fraud and misrepresentation, and also that there was a mutual mistake. Brannan filed a cross-complaint and claimed the contract settled the boundary question and prayed that his title be quieted. Timmons answered the cross-complaint. The Trial Court held against Timmons and we affirmed, saying: “. . . the contract is effective to establish the boundary line. ’ ’

Our opinion in the first case was delivered December 3, 1951. On August 11, 1953, Timmons filed the present suit against Brannan claiming that Brannan was obstructing certain streets in the City of Morrilton and praying that the Court order the removal of such obstructions. Brannan offered several defenses to the present suit but the only one we need to mention is that of res judicata Here is a pertinent portion of Bran-nan’s pleading in the present case:

“That the case of Timmons v. Brannan, 219 Ark. 636, 244 S. W. 2d 136, was decided by the Supreme Court of Arkansas, on December 3, 1951. That the parties herein are the same as the parties thereto, and that the land, upon which are located the alleged streets as set out in plaintiff’s interlineations to his complaint, is the same land and properties; that the issues are the same as were in issue in the case which was decided by this court and affirmed by the Supreme Court of Arkansas on the above date. That basis of the matters complained of by the plaintiff herein have been fully adjudicated by the courts in another action by and between the same parties in the same case, and that the defendant pleads Res Judicata to plaintiff’s complaint with interlineations. ’ ’

At the trial of the present case, the entire transcript in the first case was made a part of the evidence; and we now sustain the plea of res judicata and thus never reach any of the other questions ably argued in the brief for the appellant.

In the present cnse, Timmons claimed: (1) that Ridge Street is between the West side of Timmons’ property and the East side of Brannan’s property and that Brannan is blocking a portion of Ridge Street; and (2) that Spring Street goes East and West through Bran-nail’s property and that Brannan is blocking Spring Street. Bnt in the first case we sustained a boundary line settlement agreement between Timmons and Bran-nan which established a common boundary between them along all of Timmons’ West line and all of Brannan’s East line. If Timmons had thought, at that time, that Ridge Street separated the two property-holders, then he should have so asserted and the issue as to Ridge Street could have been decided: instead, Timmons claimed that there was a common boundary line between him and Brannan. Likewise as to Spring Street, the fence on the common boundary between Timmons and Brannan effectively blocked Spring Street, if there be such a street. It is too late for him now to raise questions of streets between his property and that of Bran-nan : these were matters that should have been litigated in the first suit.

In Shorten v. Brotherhood of Railway Trainmen, 182 Ark. 646, 32 S. W. 2d 304, a plaintiff attempted to bring a second action on a matter that could have been litigated in the first action between the same parties. In sustaining the plea of res judicata we quoted from the case of Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610:

“ ‘The test in determining the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit.’ ”

The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. The following recent cases declare and follow the rule of res judicata as above quoted: Thomas v. McCullum, 201 Ark. 320, 144 S. W. 2d 467; Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958; Ripley v. Kelly, 209 Ark. 389, 190 S. W. 2d 526; Lillie v. Nunnally, 211 Ark. 202, 199 S. W. 2d 751; Crump v. Loggains, 212 Ark. 394, 205 S. W. 2d 846; Andrews v. Gross and James Tie Co., 214 Ark. 210, 216 S. W. 2d 386; Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S. W. 2d 70; Timmons v. Clayton, 222 Ark. 327, 259 S. W. 2d 501. The rule of res judicata applies in the case at bar.

Affirmed.

       i.e., Timmons.

       i.e., Brannan.

       In Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S. W. 2d 70, we said: “The Latin words ‘res judicata’ literally translated into English mean ‘a thing adjudged’; and freely translated into English mean ‘the matter has already been decided.’ ”


author: Minor W. Millwee, Justice.

text:
    Johnson v. Maryland Casualty Company.
    5-714
    280 S. W. 2d 398
    Opinion delivered June 20, 1955.

      John H. Joyce and Glen Wing, for appellant.

      S. Hubert Mayes and Pearson & Pearson, for appellee.
   Minor W. Millwee, Justice.

In 1951 the E. V. Bird Construction Company, hereinafter called “Bird,” entered into a contract with the University of Arkansas for the construction of the Arkansas Law School Building at the university. On October 4, 1951, Bird as principal and Maryland Casualty Company, hereinafter called “Maryland,” as surety executed the standard “Statutory Performance Bond” whereby they became obligated to pay all indebtedness for labor and materials furnished in the construction or repair of said building.

Shortly after execution of the bond, Maryland ascertained that Bird’s financial condition was such that Maryland would be unable to reinsure part of its obligation under the bond as it desired to do. The manager of Maryland’s Arkansas office in Little Rock directed W. R. McNair, President of Cravens and Company, the local agent of Maryland at Fayetteville, Arkansas, to endeavor to have Bird increase its capital structure in the approximate sum of $20,000. McNair communicated the request to Floid Bird, son of Mrs. E. Y. Bird, and one of Bird’s managers at the time. There were some negotiations with Mrs. Bird relative to procurement of additional capital by the assignment of certain life insurance annuities by her, but this was not done. After an unsuccessful attempt to secure additional capital from another uncle, Floid Bird sought the assistance of the appellant, L. E. Johnson. Appellant was shown some of the letters from Maryland’s Little Rock manager to McNair which the latter had furnished to Floid Bird. These letters emphasized the necessity of Bird securing additional operating capital and suggested that the furnishers of same execute a “Subordinate Loan Contract” in which Maryland’s priority over all other claimants in the event of a default under the construction contract would be recognized.

On November 6, 1951, appellant advanced $5,000 to Bird and the latter executed its demand note to appellant for the advancement. The next day, November 7, 1951, appellant wrote Maryland at Little Rock as follows:

“About twenty-five years ago E. Y. Bird let me have money to get my start. Of course this was repaid years ago, but I will always feel grateful for his help, therefore, I loaned his two sons, Floyd and Larry, $5,000.00 on their note and stand ready to back them to a limit of $20,000.00.”

Sometime later appellant had a telephone conversation with the manager of Maryland’s Little Rock office in which the latter suggested the execution of some kind of agreement by appellant that he would furnish the balance of the money to Bird and also a financial statement.

On November 28, 1951, appellant entered into a written “Investment Agreement” with Bird in which he agreed to advance a total of $20,000 from time to time, including the $5,000 already advanced, to be used by Bird for payment of labor or materials used in the construction project and for which Bird should execute promissory notes payable to appellant upon completion of the construction contract. Appellant advanced to Bird the further sums of $10,000 on August 15, 1952 and $5,000 on November 3, 1952, pursuant to this agreement. Proper notes were executed by Bird to appellant and the monies so advanced were used by Bird in the payment of labor and material accounts. On August 18,1952, Bird advised the University of Arkansas by letter that it desired that any money held by the university as retainage upon completion of the building be paid jointly to Bird and appellant. This letter was duly approved by the university on August 19, 1952, without the knowledge or approval of Maryland.

Bird defaulted in the performance of its contract which was taken over by Maryland. On July 12, 1953, the University of Arkansas paid retainage to Maryland in the sum of $34,073.32 which was used in payment of labor and material bills incurred in construction of the building. Maryland also paid additional sums in excess of $20,000 to complete the construction according to contract. In making the three loans to Bird the appellant did not execute the “Subordinate Loan Contract” suggested by Maryland’s agent. The laborers and material-men made no assignment of their respective liens. There was no express agreement between Maryland and appellant relative to such liens nor was there any agreement between them that appellant would be protected under the surety bond or have a superior lien on the retainage.

Appellant brought this action against Bird and Maryland to recover the $20,000 advanced to Bird under the investment agreement. In the complaint it was alleged that appellant and Maryland made an agreement to the effect that if appellant would make the $20,000 available to Bird then Maryland would include within the provisions of the surety bond any loss that appellant might incur; that Maryland consented to and ratified Bird’s assignment of the retainage under the construction contract to appellant and agreed that he would have a lien on same for the payment of his advances to Bird; and that Maryland had been unjustly enriched and should be estopped to deny that appellant’s claim was within the provisions of the surety bond. In an amendment to the complaint appellant asserted that by reason of his advancement of the $20,000 with Maryland’s knowledge that it was to be used to pay labor and material bills, appellant was thereby .subrogated to the rights of the laborers and materialmen to the retainage held by the university and paid over to Maryland. Maryland answered with a general denial and affirmatively pleaded that the agreement between appellant and Bird was not binding on Maryland, and that any agreement between appellant and Maryland was without consideration and barred by the Statute of Frauds.

There was a jury trial of the cause as between appellant and Maryland. At the conclusion of the testimony offered by appellant as outlined above, the trial court sustained Maryland’s motion for a directed verdict in its favor. This appeal is from the judgment rendered upon said directed verdict. Thus the question is whether the evidence, when given its strongest probative force in favor of appellant, is legally sufficient to support a jury finding of Maryland’s liability to appellant for the $20,000 advanced to Bird.

The performance bond involved in the instant case is the ordinary statutory bond which obligates the surety only to pay all indebtedness for labor and materials furnished in the construction or repair of the building. In 9 Am. Jur., Building and Construction Contracts, 1954 Pocket Supplement, § 92.1, the author states:

“The well established general rule is that a claim for money loaned or advanced to a building or construction contractor is not within the coverage of the ordinary form of contractor’s bond conditioned for the performance of the contract and the payment of all claims for labor and material, even though the borrowed money has been wholly applied to the payment of the cost of labor and material actually going into the construction project. Generally, the recovery of such money loaned or advanced is sought on the theory that inasmuch as the money loaned to the contractor had been used to pay for labor or material going into the project, the lender of the money was entitled to be considered as a furnisher of labor and material, and therefore protected by the bond. However, the courts almost uniformly hold to the view that a lender of money to the contractor may not recover the amount thereof from the contractor’s surety as a claim for material or labor furnished to the contractor within the conditions of the ordinary form of contractor’s bonds. ’ ’

See, also, annotations fully supporting this text statement in 127 A. L. R. 974 and 164 A. L. R. 782. Among the numerous cases cited by the annotators in support of the rule are our own cases of Norton v. Maryland Casualty Co., 182 Ark. 609, 32 S. W. 2d 172, and Ayres and Graves v. Ellis, 185 Ark. 818, 49 S. W. 2d 1056. In following this rule in the Norton case we held that a surety company, which executed a bond to pay all of the contractor’s bills for labor and materials used in the construction of a road, is not liable for money borrowed by the contractor even though the money was used to meet the contractor’s payrolls.

Although appellant alleged in his complaint that he and Maryland made an agreement giving him priority over the latter in the retainage paid over by the university, it is now frankly admitted that no express agreement to that effect was proved. In his testimony appellant repeatedly denied that he had any agreement with Maryland. He also testified that the only agreement he had was with Bird and that when he told Maryland’s agent of Bird’s assignment of the retainage to him the latter objected to it. There is also an absence of proof that any agent of Maryland ever made any assurance to appellant that his claim to the retainage would be superior to that of Maryland. On the contrary, it is admitted that Maryland’s agent requested that Bird secure from any lender his acknowledgment of the priority of Maryland’s claim thereto.

However, appellant insists that the testimony here is such that a jury would be warranted in finding that Maryland so influenced, encouraged and induced appellant to make the $20,000 advances as to entitle him to be subrogated to the rights of laborers and materialmen, or the rights of Maryland, in and to the retainage, either under the doctrine of conventional subrogation or so-called legal or equitable subrogation. In support of this contention appellant relies on the case of Western Casualty and S. Co. v. Meyer, 301 Ky. 487, 192 S. W. 2d 388, 164 A. L. R. 769. In that case the contractor had defaulted in the payment of material bills and the agent of the surety company participated in a conference with the contractor and the prospective lender in which the latter was assured by the surety’s agent, or by the contractor’s attorney in said agent’s presence, that the loan would be protected by the contractor’s bond. This is in contrast to the undisputed facts in the instant case that there had been no default when the appellant made the loans to Bird without any assurance from Maryland’s agent, or anyone else, that his claim would be superior to the rights of the surety.

In the circumstances surrounding the procuring of the loan in the Meyer case the Kentucky court held the lender was not a mere volunteer and became subrogated to rights superior to those of the surety; and that the particular circumstances were such as to constitute an exception to the well-settled general rule. In so holding the Kentucky court stated that it had perhaps been more liberal than other courts in its treatment of lenders to contractors in the situation there presented. It is unnecessary for us to determine whether we would follow the holding of the Kentucky court under the same state of facts that were presented in that case. It is sufficient to say that the evidence adduced by the appellant does not bring the case within the exception to the general rule there recognized. The facts here are more in line with those in American Bank and Trust Co. v. Langston, 180 Ark. 643, 22 S. W. 2d 381, where it was held that a surety was entitled to preference over a bank which made a loan to the contractor secured by assignments of the accounts to become due under the contract. In so holding the court said the bank was a mere volunteer and acquired no lien of any kind; that the surety rather than the bank was entitled to subrogation; and that its equity was superior to that of the bank. See, also, Goode v. Aetna Casualty and Surety Co., 178 Ark. 451, 13 S. W. 2d 6.

The evidence offered by appellant was insufficient to establish an agreement, express or implied, between appellant and Maryland that the claims of appellant would come within the provisions of the surety bond; or that any agreement between appellant and Bird in reference to the retainage should, in any degree, bind Maryland. In these circumstances the trial court correctly held the general rule applicable in sustaining the motion for a directed verdict. The judgment is accordingly affirmed.


author: George Rose Smith, J. Ed. F. MoFaddin, Associate Justice

text:
    State of Oklahoma, ex rel. Oklahoma Tax Commission v. Neely.
    5-684
    282 S. W. 2d 150
    Opinion delivered June 20, 1955.
    [Rehearing denied October 3, 1955.]

      Harper, Harper (& Young, B. F. Barry and E. J. Armstrong, for appellant.

      Warner & Warner, for appellee.
   George Rose Smith, J.

This is an action by the State of Oklahoma to recover income taxes in the amount of $9,292.91, with interest. The complaint contains three separate counts, one for the year 1948, one for 1949, and one for 1950. It is alleged that for each of those years the defendant failed to pay the Oklahoma income tax upon rentals received by him upon mining machinery located in that state. The defendant’s demurrer to each count in the complaint was sustained by the circuit court, and the action ivas dismissed.

The basic question is whether Oklahoma can maintain a suit in the Arkansas courts for the recovery of taxes. By Act 73 of 1951 it is provided: “Any State of the United States of America, or any political subdivision thereof shall have the right to sue in the courts of Arkansas to recover any tax which may be owing to it when the like right is accorded to the State of Arkansas and its political subdivisions by such State, whether such right is granted by statutory authority or as a matter of comity.” Ark. Stats. 1947, § 84-3203. It is conceded that Oklahoma has a similar statute and thus meets the condition imposed by our law.

The appellee, relying upon Jacobus v. Colgate, 217 N. Y. 235, 111 N. E. 837, Ann. Cas. 1917E, 369, contends that the statute should not be applied retroactively to a suit involving a tax liability that accrued before the effective date of the act. The appellant answers that a prospective application of the statute would merely limit its operation to suits filed after its passage, regardless of when the tax accrued. See Oklahoma ex rel. Okla. Tax Com’n v. H. D. Lee Co., 174 Kan. 114, 254 P. 2d 291.

Without determining the merits of this question we prefer to rest our decision upon the simpler premise that Oklahoma could have maintained this action even if the tax reciprocity statute had not been passed. In our opinion the oft-repeated dogma, that one sovereign does not enforce the revenue laws of another, is rapidly approaching a deserved extinction in those instances in which the dispute is not international but merely interstate.

The history of this rule is traced in a note in 29 Columbia Law Review 782. It originated in England in the latter part of the eighteenth century and is based largely upon two statements by Lord Mansfield, to the effect that one nation does not take notice of the revenue laws of another. The English cases of course involved the laws of nations rather than the laws of the American states. Too, in none of those cases was a foreign sovereign actually denied access to the English courts. Instead, the rule was announced in situations in which the courts elected to enforce commercial contracts despite the fact that they were in some way violative of the revenue laws of the country in which they were executed.

In America the fact that the rule was a familiar principle of law may well have deterred the states from seeking one another’s assistance in the collection of taxes. At any rate, for whatever reason, in the American cases prior to the twentieth century the rule is seldom mentioned and is usually dictum. In 1905, however, North Carolina departed from precedent to the extent of. permitting New Jersey to prove a tax claim in an insolvency proceeding. J. S. Holshouser Co. v. Gold Hill Copper Co., 138 N. C. 248, 50 S. E. 650, 70 L. R. A. 183. The court may have considered the doctrine not to have been involved, for the opinion did not mention it.

It was not until 1921 that the traditional rule was unequivocally applied by an American court of last resort as a ground for denying the assertion of a tax claim by a sister state. In Colorado v. Harbeck, 232 N. Y. 71, 133 N. E. 357, New York refused to entertain a suit brought by Colorado for the collection of inheritance taxes. The Harbeck decision is sometimes referred to as the leading case on the subject, and so it is in New York, where it has been often followed by the lower state and federal courts. Elsewhere, however, its adherents are few, and even in Now York the law has been changed by statute. McKinney’s Consolidated Laws of New York, Tax Law, § 249-t.

After the Harbeck decision the soundness of the ancient doctrine, by then a hundred and fifty years old, became increasingly the subject of reconsideration, at first in the law schools and later in the courts and legislatures. We have already cited an early law review note. In 1932 Robert A. Leflar painstakingly analyzed the entire question and demonstrated, we think unanswerably, that there is no reason whatever for one American state to reject another’s suit for the recovery of taxes, absent some strong ground of local public policy or some inability to provide the remedy sought. Leflar, Extra-state Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 193, 215 et seq.

The original rule, in its application to cases of international aspect, may well find some justification in one sovereign’s reluctance to inquire into another’s system of law or to risk the giving of affront by the denial of a sovereign demand. Obviously these considerations are without weight in litigation originating in and confined to the United States.

On the other hand, the rule encourages willful, dishonest tax evasion. As Professor Leflar points out, the higher tax rates that have resulted from the broadening of governmental services have provided a correlatively stronger incentive for tax avoidance. A few decades ago taxes were generally modest enough to constitute an annoyance rather than a substantial burden upon income or property. But today an income or estate levy may consume half or more of the object taxed, supplying a tempting motive for tax evasion.

Enforcement of the rule now in question offers a legally respectable asylum to the tax dodger. An heir, for example, may frequently be in a position to convert an inherited fortune into cash and move to another state. If pursued in his new home by the defrauded state he may confidently demur even to allegations of conscious and deliberate wrongdoing, for one sovereign does not notice the revenue laws of another. Other similar examples come readily to mind.

Once the fallacies in the traditional view had been exposed, the doctrine quickly became obsolescent. By now about half the state legislatures have approved reciprocity laws. In the courts the trend is in the same direction. In 1946 the original principle was re-examined and rejected in Missouri. State of Oklahoma ex rel. Okla. Tax Com’n v. Rodgers, 238 Mo. App. 1115, 193 S. W. 2d 919, 165 A. L. R. 785. Kentucky quickly followed Missouri’s lead. State of Ohio ex rel. Duffy v. Arnett, 314 Ky. 403, 234 S. W. 2d 722. In its 1948 supplement to the Restatement of Conflict of Laws, § 610, the American Law Institute rescinded its earlier assertion of the older view and stated that if a position were to be taken it would seem desirable to follow the Missouri decision.

Since the case at bar is one of first impression in this state, our legislature could not have been certain of the Arkansas law when it adopted a reciprocity statute in 1951. Quite evidently the legislative purpose was not primarily to change the law but to put Arkansas in a position to take advantage of like legislation elsewhere; for the emergency clause declares that the evasion of Arkansas taxes has been continuous and frequent and that there is no adequate legal machinery for the recovery of taxes due the State of Arkansas. In adopting what we think is now the majority rule we confirm the legislative declaration of Arkansas’s position in the matter.

Even though Oklahoma’s action is maintainable, there remains a question of limitations, as to which the law of the forum governs. Moores v. Winter, 67 Ark. 189, 53 S. W. 1057. The appellee demurred separately to the three causes of action, as the Civil Code permits. Ark. Stats., § 27-1120. We assume, without deciding, that the parties are correct in their common contention that the three-year statute of limitations is «controlling. Ark. Stats., § 37-206.

By Oklahoma law an income tax return is due and the tax payable on March 15 next succeeding the close of the taxable calendar year. Okla. Stats., Title 68, §§ 884 and 901. Hence the taxes for the three years now in issue were respectively due on March 15 of 1949, 1950, and 1951. The present suit was not filed until February 11, 1954. It follows that the action is barred for the first two years but not for the third.

Affirmed as to counts one and two, reversed as to count three.

MoFaddin, J., concurs in part and dissents in part.

Ed. F. MoFaddin, Associate Justice

(concurring and dissenting). It is my mature conclusion that the State of Oklahoma is entitled to prevail as to all counts in this case. Kansas has a tax reciprocity statute similar to our Act 73 of 1951. The Supreme Court of Kansas construed the Kansas Statute in the case of State of Oklahoma v. H. D. Lee Co., 174 Kan. 114, 117, 254 Pac. 2d 291. I agree with the construction which the Kansas Supreme Court gave to its tax reciprocity statute; and I think that, under the Arkansas tax reciprocity statute, the State of Oklahoma is entitled to full recovery in this case.


author: "Ward, J.

text:
    Pinkert v. Baird.
    5-713
    281 S. W. 2d 929
    Opinion delivered June 20, 1955.
    [Rehearing denied October 3, 1955.]

      U. A. Gentry, for appellant.

      O. W. Garvin and Linwood L. Brickhouse, for appellee.
   "Ward, J.

Appellant Pinkert instituted this action in chancery court to quiet his title to certain vacant lots and to remove as a cloud on his title an adverse claim asserted by appellee Baird. Appellee answered setting forth his claim of title to the same property and in the alternative asked that the court require appellant to reimburse him for all improvement and general taxes he had paid on said lots since 1939. To the latter plea appellant interposed the three year statute of limitation. The trial court found that appellant had good title to the lots and confirmed his title to the same, and from this portion of the decree appellee has not appealed. The trial court further held that appellee was entitled to judgment against appellant for the amount of all taxes paid by him, and for a lien on the lots to secure payment of same. From this portion of the decree appellant prosecutes this appeal.

Since no question is presented here as to the title to the property, the facts relative thereto may be briefly stated. On December 15, 1938 appellee received from the City of Little Bock a deed to lots 1, 2 and 3, Block 19, Capitol Hill Extension to the City of Little Bock and since that date, up to and including the year 1953, appellee has paid improvement and general taxes on said lots in the amount of $1,941.68. On May 26, 1944 appellant received a deed to the same lots from W. I. Stout, trustee, who in turn had received a deed through Sewer Improvement District 94.

Appellant concedes that appellee is entitled to be reimbursed for all taxes paid on said lots for three years prior to the institution of this suit, but strongly insists that appellee is barred by the three year statute of limitation from recovering for taxes paid previously thereto. In support of this contention appellant relies on Brookfield v. Rock Island Improvement Company, 205 Ark. 573, 169 S. W. 2d 662, 147 A. L. R. 451, stating that it settles the question here presented. We are unable to agree with appellant in this contention.

Briefly stated the facts and the holding in the Brookfield case, supra, are as follows: Rock Island sued Brookfield “alleging that, under a bona fide claim of title, it had paid taxes for many years on lands owned by Brookfield. It asked judgment for such taxes, with interest, for a lien on the land to secure the payment of the judgment, and for a foreclosure of such lien.” Brookfield plead the three year statute of limitation. The trial court gave judgment in favor of appellee for taxes paid over a period of 18 years, with interest, and declared a lien on the land. On appeal we held that, notwithstanding there was sufficient evidence to show that Rock Island had paid the taxes in good faith, claiming to be the owner of the land, the three year statute of limitation barred a recovery for all amounts paid more than three years before the suit was instituted.

The Brookfield case, supra, was cited and followed in Lincoln National Life Insurance Company v. Huff, 210 Ark. 833, 197 S. W. 2d 927, wherein the facts were essentially the same as in the Brookfield case.

After a careful review of other decisions of this court, we have, with some hesitancy, concluded that the facts in the above cited cases are distinguishable from the facts in this case, and that they are therefore not controlling here.

It will be noted that in the Brookfield casé, supra, and the Huff case, supra, the party seeking to recover for taxes paid on land in good faith under color of title was the same party who instituted the action. In such cases the holding seems to be that the three year statute of limitation will apply in favor of the adverse party. These holdings are apparently based on the theory that the plaintiff’s cause of action [for the recovery of taxes] accrued when the taxes were paid and that his right of action to recover the same must be brought within three years after payment. We have held however that the situation is different where the plaintiff comes into a court of equity to have his title quieted to certain lands against one who has, under color of title, paid the taxes for many years, and is met by a request by the defendant for a repayment of ¿11 taxes paid by him on the land. In such instances we have held that before the plaintiff can invoke equity he must do equity by repaying all taxes. This is on the theory that the plaintiff has been benefited to the extent of the tax payments which he would have had to make had they not been made by the defendant.

The Brookfield case, supra, was thus distinguished in the case of Turner v. Grove Land and Timber Company, 208 Ark. 921, 188 S. W. 2d 121, where it was specifically referred to. In speaking of the Brookfield case the court said:

“The defendant pleaded the three year statute of limitation. We held the trial Court was in error iu not sustaining the plea. But the opinion, by express language, states the facts to be that the plaintiff had paid taxes on land owned by Brookfield. It could not, therefore, become the beneficiary of equitable relief in a proceeding it instituted, when met by the legal defense of limitation. ’ ’

In applying the equitable doctrine mentioned above the court also said: ‘ ‘ Our view is that the Court properly imposed the condition that, as a prerequisite to his plea for equitable dispensation, Turner ivas required to reimburse the defendant for money necessarily applied to protect its property, full benefits of which went to the plaintiff to prevent forfeiture.” Just as in the case under consideration Turner prevailed in the trial court on the question of title and was ordered to refund to the Timber Company all taxes it had paid on the land [for more than three years]. On appeal the decree of the trial court was sustained.

In Walsh v. Buckner, 209 Ark. 320, 190 S. W. 2d 447, the Turner case, supra, was referred to and followed although it was not discussed at length. There, again, appellant filed a petition in chancery court to confirm title to [among other lands] the NE^4 of the SE1/^, Section 18, Township 3 South, Range 10 West, and the trial court upheld his title. In that case Buckner was allowed to recover all taxes paid since 1918 — a period of approximately 20 years. This court there cited the Turner case as authority for requiring Walsh to reimburse Buckner for all the taxes which he had paid.

In the case under consideration appellee in good faith and under color of title paid the improvement and general taxes on the lots in question over a period of approximately 14 years which otherwise appellant would have had to pay. Appellant invoked the aid of the chancery court to cancel appellee’s deed as a cloud on his title. As an incident to the trial court’s granting the relief prayed for by appellant it required appellant to do equity by reimbursing appellee for all the taxes which he had paid. After a careful consideration of the decisions of this court in the above cited cases we have concluded that the decree of the trial court was correct and that the same should be and the same is hereby affirmed.


author: Robinson, J. George Rose Smith, J.,

text:
    Baxter v. State.
    4800-6
    281 S. W. 2d 931
    Opinion delivered June 20, 1955.
    [Rehearing denied October 3, 1955.]

      Virgil Roach Moncrief and John W. Moncrief, for appellant.

      Tom Gentry, Attorney General and Thorp Thomas, Assistant Atty. General, for appellee.
   Robinson, J.

Appellant Walter Baxter was convicted of murder in the first degree and sentenced to death for the killing of Bert 0. Burbanks, town marshal and police chief of DeWitt. Baxter roomed at the home of Mrs. Sally Bittner. On the day of the homicide, he had some trouble with his landlady resulting in a neighbor reporting the disturbance to the police. In response to this call, Burbanks went to the Bittner home and while at the front door he was shot and killed by Baxter.

Baxter claims that he had been persecuted by Bur-banks; that Burbanks had stopped him on numerous occasions without just cause and searched him, apparently looking for illegal liquor. Appellant contends that at the time of the killing the officer was attempting to arrest him illegally; that Burbanks, while trying to make the arrest, reached for his gun; and that he (Baxter) fired the fatal shot in self-defense. On the other hand, the evidence is sufficient to sustain the verdict.

On appeal, there are numerous assignments of error. It is contended that there was error in qualifying the jury on the death penalty, but this was done in accordance with the statute. Ark. Stats., § 43-1920. Furthermore, if the court erred in excusing any particular juror, that would not be ground for reversal. Turner v. State, 224 Ark. 505, 275 S. W. 2d 24. Appellant also says the court erred in failing to keep the jury together, but this was a matter within the discretion of the court. Ark. Stats., § 43-2121. Appellant further contends that the court erred in permitting the Deputy Prosecuting Attorney to read the indictment to the jury, but this procedure is authorized by Ark. Stats., § 43-2110.

It is insisted that the court erred in failing to give defendant’s instruction No. 6 as follows: “If the deceased was about to arrest or attempting to arrest the defendant for this misdemeanor not committed in his presence and without a warrant and if this defendant resisted such an arrest and, in so doing, took the life of the deceased, then this defendant is not guilty of murder in either the first or second degree. In such case, the defendant could not be guilty of any crime greater than manslaughter.” This instruction is not a correct statement of the law, and was properly refused. According to this instruction, it would be possible for any person, with malice aforethought and after premeditation and deliberation, to kill an officer attempting to arrest him, for a misdemeanor not committed in the presence of the officer, and still not be guilty of any crime greater than manslaughter. In a situation of this kind, the law in this State is clearly announced in Coats v. State, 101 Ark. 51, 141 S. W. 197, where this court said:

“An illegal arrest is no more than a trespass to the person. ‘The attempt to take away one’s liberty is not such an aggression as may be resisted with death. Nothing short of an endeavor to destroy life will justify the taking of life.’ 1 Bishop’s New Criminal Law, § 868; Creighton v. Commonwealth, 84 Ky. 103; 4 Am. St. Rep. 193; 25 Am. & Ency. of Law, p. 278 and cases cited; Wharton on the Law of Homicide (3 ed.), § 407; Robertson v. State (Fla.), 52 L. R. A. 751.

“Mr. Bishop says that the reason why a man may not oppose an attempt on his liberty by the same extreme measure permissible in an attempt on his life may be because liberty can be secured by a resort to the law.

“So it appears that, even in a case where the defendant kills an officer in resisting an illegal arrest, he can only oppose force with force as in other cases where he is assaulted; and if the circumstances of the killing show that he acted with malice and premeditation, he is guilty of murder in the first degree. In short, he is placed in no better position than is any other person assaulted, and can only kill his assailant when the danger appears to him as a reasonable person so urgent and pressing that he is in danger of losing his own life or receiving great bodily injury.”

The court said in Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, 42 A. L. R. 1194: “Although he might have believed that he was being illegally arrested, it was his duty to have submitted to the officers.”

After the introduction of the evidence was completed, the defendant requested that the jury inspect the scene of the alleged crime. Thereupon, the court said: “G-entlemen of the jury, it has been requested that you visit the scene of this alleged killing. The officers will go with you. They will point out where Mr. Burbanks fell. They are not to discuss this case with you. If they know, they will point out the room where this alleged shot came from. You can view this room. Don’t discuss the case with the officers or anyone else. After you have viewed the premises you will report back to this courtroom. ”

Ark. Stats., § 43-2119, is as follows: “When, in the opinion of the court, it is necessary that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, which must be shown to them by the judge, or a person appointed by the court for that purpose.” Section 43-2120 provides: “The officer[s] must be sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial, nor do so themselves, except the mere showing of the place to be viewed, and return them into court without unnecessary delay, or at a specified time. ’ ’

Ark. Stats., § 43-2120, was not complied with, and the officers conducting the jury to the scene of the alleged crime were not sworn in accordance with the statute. The defendant made no request that the officers be sworn as the statute provides.

Was there error in the failure to comply with the statute and, if so, was it such an error as could not be waived by the defendant? In Whitley v. State, 114 Ark. 243, 169 S. W. 952, the officers conducting the jury to the place of the alleged crime were not sworn in accordance with the statute. It was held, however, that a previous oath administered to the officers in charge of the jury sufficed. The court said:

“The sheriff and his deputy had been specially sworn in relation to their duties of keeping the jury together during the progress of the trial, and had been instructed not to allow the jurors to communicate among themselves, and they had been specially instructed not to communicate with the jury themselves, nor to allow anyone else to do so. . . . True, no specific oath was administered to the sheriff or his deputy on the particular occasion of- sending the jury to make a view, but the record shows that the sheriff had the jury in charge the night before ‘under proper oath and instructions as to the guarding of the jury,’ and that the court ‘instructed the officers that they were under the same oath and instructions about guarding the jury as they were the night before, and not to permit any discussion of the case while they were viewing the scene of the killing, or while they were absent from the court room.’ ”

But, in the case at bar, the defendant’s motion that the jury be kept together in charge of an officer was denied. Hence, the jury had been permitted to separate and were not under the charge of an officer. The record does not show what officers were assigned the duty of conducting the jury to the scene of the alleged crime, nor does the record show that any kind of oath was administered to the officers at any time. And there is no showing that the very things that the oath is calculated to guard against did not occur.

In Atterberry v. State, 56 Ark. 515, 20 S. W. 411, the defendant was convicted of grand larceny, and it was held that by his failure to call the court’s attention to the necessity of administering the oath to the officers in charge of the jury during its deliberation, the defendant had waived the oath required by statute. But, in Johnson v. State, 68 Ark. 401, 59 S. W. 34, on the question of admonishing the jury when they were allowed to separate as provided by Ark. Stats., § 43-2122, it was held a reversible error to fail to comply with the statute.

In the Johnson case, the court emphasized the fact that the statute, now Ark. Stats., § 43-2122, provides that the jury must be admonished on being allowed to separate. Likewise, in the case at bar, § 43-2120 provides that the officers conducting the jury to the scene of the alleged crime must be sworn to suffer no person to speak or communicate with the jury. Also in the Johnson case, the defendant did not request the judge to admonish the jury. We think that the statement of the court in Stroope v. State, 72 Ark. 379, 80 S. W. 749, is especially applicable here:

“It is not for the court to say that no harm was done in this way. No one can foresee or foretell whether there be harm in such case, or what the harm may be, if any. We are of opinion that this was error, for which the judgment following thereon should be reversed. This may seem to be overstrictness in the application of the rule governing such matters, but it is best to avoid the very approach of an evil. To permit a breaking over .of the rule in one instance is likely to set a precedent fraught with the greatest embarrassment in future cases. ’ ’

The legislature has deemed it proper to adopt as the law of this State Ark. Stats., § 43-2120, which makes it mandatory that officers conducting a jury to the scene of an alleged crime be required to take an oath in accordance with the statute. This statute is calculated to have a salutary effect and should not be nullified by this court.

There are other assignments of error, but they are not such as are likely to occur at another trial.

Reversed.

Justices Millwee and George Rose Smith dissent.

George Rose Smith, J.,

dissenting. I am unable to agree with the majority’s conclusion that this case must be reversed on account of the failure of the record to show that a special oath was taken by the officers who were in charge of the jury when the premises were viewed. In my opinion this case is controlled by Atterberry v. State, which the majority cite but do not expressly overrule.

In the Atterberry case, as here, there was involved the matter of administering a special oath to an officer in charge of the jury. The governing statute was § 2265 of Mansfield’s Digest (now Ark. Stats. 1947, § 43-2121), which provides that the officers “must be sworn” to keep the jury together during the adjournment of the court. There, as here, there was no showing (as there was in Whitley v. State, also cited by the majority) that the officer in question had taken a similar oath earlier in the trial. There, as here, no objection was made at the time and no prejudice was shown by the record. In holding that the accused’s failure to object was a waiver of the statutory requirement the court said:

“Under our system of trials in felony cases, the defendant is present in court. He is aided by counsel of his own choice, when he is able to employ them; of the court’s appointment when he can employ none. His attitude is widely different from that of the defendant in the courts of England a century ago. The court still owes him an absolutely fair and impartial trial — the right to make proof of everything he offers in denial, mitigation or excuse of the act charged, and to have it fairly passed upon by a jury; but he owes to the court fair dealing as well as candor, and should not be permitted to undo its woi’k on account of omissions which he deemed too trivial at the time to bring to its attention, and which are not shown or charged to have affected the fairness of the trial or prejudiced his rights. . . . [We] hold that it is too late, after verdict, to object, for the first time, that a jury retired from court in charge of an officer to whom the special oath had not been administered, where it appeared that the defendant was present when it retired and neither asked that the special oath be administered to him nor objected to his taking charge of the jury, and it does not appear that either the officer or the jury was guilty of any misconduct. It appears from the record in this case that the jury retired in charge of an officer acting under the general oath of his office, and that the defendant and his attorney were present; but it does not appear that he asked the court to administer the special oath or objected to the officer taking charge of the jury.

‘ ‘ He conceded to the jury, thus attended, the right to determine the cause, if it gave him his liberty; and should not be permitted to question such right, merely because it took an unfavorable view of his case.”

I am unable to distinguish the Atterberry case from this one. On the other hand, the case of Johnson v. State, relied upon by the majority, is readily distinguishable. There the trial court permitted the jury to separate without admonition, so that each individual juror became the possible subject of improper influence. There was not, as here, the safeguard resulting from the jury remaining together as a body wdiile the premises of this crime were being viewed. The court held in the Johnson case that the court’s failure to admonish the jury, although not objected to, was reversible error. But here the jurors were admonished by the court wdien sent to the scene of the murder; so the defect present in the Johnson case is absent. The only irregularity asserted is the court’s failure to have the special oath administered to the officers in charge, which is the very point considered in the Atterberry case. I must therefore dissent from the reversal of this judgment.

Millwee, J., joins in this dissent.


author: Lee Sbamster, Chief Justice.

text:
    Ferrill v. Collins.
    5-616
    281 S. W. 2d 939
    Opinion delivered June 27, 1955.
    [Rehearing denied October 3, 1955.]

      II. B. Stubblefield, for appellant.

      Carroll C. Cannon and Giles Dearing, for appellee.
   Lee Sbamster, Chief Justice.

This suit involves a written lease agreement between the appellant, the lessor and the appellee, the lessee, whereby certain business property located in Wynne, Arkansas was leased to appellee for a seven year period. Appellant filed suit in St. Francis Circuit Court seeking to recover damages in the amount of $10,012.22 against the appellee based on the alleged breach of the provisions of said lease to make repairs to the property and surrender the premises in good condition at the termination of the lease. The appellee filed a cross-complaint containing two counts. Count I alleged water damage of $2,000 to appellee’s goods, wares, merchandise and fixtures due to appellant’s failure to repair the roof of the building as required by the terms of the lease and Count II alleged fraudulent representations on the part of the appellant whereby appellee was led to believe that a new lease would be tendered at the expiration of the old lease and appellee purchased large quantities of merchandise which he subsequently had to dispose of at a loss of $7,900.

On April 1, 1946 the lessee, E. M. Collins, entered into a written lease agreement with the lessor, Eugenia B. Ferrill whereby he leased the ground floor of a two story business building for a period of seven years. The contract details obligations of upkeep, enjoining upon the lessee a duty to take good care of the property at his own expense, making all inside and outside repairs, including sidewalks, windows, glass, and inside painting. At the termination of the lease period the premises were to be returned in good order and condition. The lessor was not to be called upon for any outlay whatsoever, except to make a conscientious and reasonable effort to keep the roof in good repair. A covenant in the lease excluded the lessee from use of the second floor where tlie lessor had certain merchandise stored therein. The door to the second floor was kept locked at all times.

The lease expired March 31, 1953. Conversations relating to the drafting of a new lease occurred from time to time, starting in September, 1952. These discussions culminated in the drafting of a tentative contract which was written by the attorney of the appellant. This proposed contract was presented to Collins on February 2G, 1953 at which time he asked for and secured additional time so that he might examine the contents of the proposed contract more thoroughly. Collins took a copy of the proposed contract to Forrest City where he had his attorney examine and copy the proposed contract. He contended that the new contract was unacceptable because it required construction expenditures inconsistent with what had been thought to be Ferrill’s assurances of renewal, and it limited the duration of the lease to a term of 39 months with no option to renew the lease. He also objected to the paragraph that limited his business activities in Wynne to this one store.

On March 4th the landlord wrote Collins whereby demand was made for possession of the premises by March 31st. A suggestion was that Collins remove his air conditioning unit at once in order that any repairs rendered necessary either by installation or removal could be made by the lessee before March 31st. Other repairs and restorations, except archways and the two front entrances, were to be made by March 31st. Attention was directed to a contractual provision extending to the lessor a specific time within which to give notice regarding restoration of the archways and front entrances.

In reply, Collins -wrote March 28th that there was a hole in the plaster near the rear of the building that he felt he should repair; also there might be some other work that would fall upon him under terms of the lease, but he had not checked this building with this thought in mind. Ferrill thought that he received the keys to the building from Collins on April 3, 1953.

On April 27, 1953, Eugenia B. Ferrill sued Collins for $10,012.22. For necessary inside repairs and conditioning she asked $2,467.22; for outside work $5,945; and for the reasonable rental value of the premises $400 per month for four months, or $1,600.

Collins’ answer was coupled with a cross-complaint containing two counts. The jury found for Collins on appellant’s complaint and awarded him the sum of $3,500 on his cross-complaint without making any apportionment as to the two counts.

' The appellant urges four grounds for reversal. Initially it is insisted that the court erred in excluding evidence relating to repairs to the second floor of the building, and in giving an instruction requested by counsel for Collins. By this instruction the jury was told that Collins was not required to make repairs to any outside portion of the leased premises except that he was obligated to maintain the sidewalk, the windows of the first floor, glass in the first floor of the leased premises and outside painting to the first floor, etc.

The court’s error, it is said, was the failure to give effect to Collin’s obligation to make repairs, “including . . . windoAVs, glass, and all outside and inside painting, and to conform to all reasonable regulations governing said building . . . and to make any reasonable repairs . . . that the lessor may deem necessary for the protection and preservation of said building and its appurtenances.”

What the appellant fails to consider is that the contract (Paragraph II) from Avhich the excised quotation is taken — including deletions as they appear in the brief —begins with this language: “The lessee hereby covenants and agrees to take good care of the leased premises and at all times to keep the same in good and proper repair and condition at his own cost and expense, making all inside and outside repairs, including all sidewalks, windows, glass, and all outside and inside painting, i . . the lessor is to make a conscientious and reasonable effort to keep the roof of the building in good repair . . . ’ ’ Tlie 8th paragraph of the 1946 lease states: “It is further understood and agreed that the lessee is not to have access to the second floor of the building.” The leased premises in so far as Collins was concerned could mean nothing but the ground floor. He was expressly forbidden access to the second floor. The lease was prepared by Mrs. Ferrill’s agent and it is not ambiguous. The objection cannot be sustained.

The trial court rightfully held that under the instant lease, the appellee was not required to make repairs or improvements to the second floor which was that part of the building not under his control as demised in the lease. In determining the construction of the lease, the court had to look to the whole contract in order to determine its meaning and had to reconcile paragraphs 1, 2 and 8. A tenant’s covenant to keep premises in repair did not extend to parts not under tenant’s control. Capital Amusement Co. v. Anheuser-Busch, Inc., 94 Colo. 372, 30 P. 2d 264; Rathbun Co. v. Simmons, 90 Cal. App. 692, 266 P. 369; Mederlander v. Cadillac Clay Co., 264 Mich. 434, 250 N. W. 281. The construction put upon the 1946 lease by the appellant, would require the lessee to repair the entire building and would be in direct conflict with paragraph 8 which denies tenant access te the second floor and with the expressed terms of the paragraph of the lease which provides that the lessor is to keep the roof of the building in good repair.

Appellee’s instructions Nos. 6 and 7 dealing with damage to the merchandise through failure of the landlord to satisfactorily repair the roof are alleged to be erroneous. Mrs. Ferrill’s commitment was to make a conscientious and reasonable effort to keep the roof in good repair. The evidence shows that on one occasion she spent eight dollars to stop leaks. But there is substantial testimony that Collins complained of the condition. It is also true that shortly after repossessing the property an entirely new roof was placed on the building by the appellant. While standing alone this reconstruction is not conclusive of the proposition that the old roof was virtually useless, it is a circumstance from which a factual inference of practical necessity could be drawn.

Attention is directed to Kennedy v. Supnick, 82 Okla. 208, 200 P. 151, 28 A. L. R. 1520, and Amer. Jur., Vol. 32, § 711, p. 588, which states: “As we have before said, the plaintiff had no access to or control over the upper part of said building. By the clause in said lease above quoted the first party agreed to keep said building in such repair that the party of the second part’s stock of goods shall not be damaged by the elements. Under this provision in the lease it was not incumbent upon the plaintiff, Supnick, to give any notice whatever to Dr. Kennedy. It was Dr. Kennedy’s business to see that the upper part of said building over which he had control was kept in such condition that the plaintiff’s goods would not be damaged by any rains that might fall. On his failure to do this, he was liable for whatever damage the plaintiff might sustain. ’ ’ In the case at bar the tenant was expressly excluded from the second floor. He had no means, during rainy periods, of making an inside examination of the roof to identify small leaks. Certainly an outside examination would have been unsatisfactory unless the deterioration became obvious. Mrs. Ferrill’s obligation was to make a conscientious and reasonable effort to keep the roof in good repair. It was for the jury to determine whether, in the light of competent evidence, a reasonable effort was made, and whether, in view of Collins’ exclusion from the second story, he acted as an ordinarily prudent man to prevent progressive damage to his merchandise.

Instruction No. 8, given on request of counsel for Collins, permitted a recovery if it should be found (a) that Mrs. Ferrill assured Collins that the lease could be renewed in substantially the same form; (b) that if relying solely upon such representation Collins purchased large quantities of merchandise; (c) that if the representations were made at a time when the landlord did not intend to renew the lease in substantially the form of the old lease, and (d) if the representations were coupled with fraudulent intention of putting Collins in a position where he either had to suffer a serious financial loss or execute a lease on unconscionable terms: if these facts were present and Collins sustained financial loss because of the conduct complained of, damages might be assessed in the sum to reasonably compensate him for such loss, but not exceeding the sum of $7,905.00.

Count II of the cross-complaint alleged that Mrs. Ferrill represented to Collins that it was her intention and purpose to execute a new lease substantially in the same form as the old one. There was no assertion that the assurance was fraudulently made to the determent of the appellee.

Collins was asked repeatedly regarding the representations of inducements held out by the Ferrills respecting a renewal of the lease, or the negotiation of a new lease. Finally, on cross-examination, he was admonished “ . . . to be careful about this, and as correctly as you can tell what was said with reference to the building being yours.” Quoting Ferrill he replied: “You have made us an excellent tenant and you know we are going to give you every consideration; so as soon as we can decide exactly what terms we want and how much we want for the building, we will proceed with the lease.”

There was no showing of any definite statement or understanding to support Count II; it was speculative and indefinite; no evidence exists of its being the proximate cause of any damage to appellee; it refers to the future and not to the past or present; and the elements of fraud have not been proven. Therefore, no cause of action accrued against the appellant simply because she did not submit a contract that was acceptable to the appellee. An oral lease of land for more than one year is void under the Statute of Frauds. An option in a written lease to renew upon terms and conditions to be agreed upon is void for uncertainty. Keating v. Mitchell, 154 Ark. 267, 242 S. W. 563. See also Hatch v. Scott, 210 Ark. 665, 197 S. W. 2d 559.

Therefore, we must reject for want of substantial proof of promissory estoppel any allowance for misleading conduct incidental to renewal of the lease. The testimony indicates that the negotiations between the parties were indefinite and speculative as to the form and terms of the proposed lease. When asked about his objections to the proposed lease, Collins stated that the only terms and conditions that were objectionable to him were: the terms that called for him to make repairs to the building, which would include upkeep on the roof; the fact that the lease had a duration of only 39 months, with no option for renewal; and the clause in the lease that limited his business activity to this one business in Wynne.

We think that the trial court correctly sustained appellee’s motion to strike all items for repairs to the second floor of the building involved and was correct in giving appellee’s instruction No. 2. However, we think that the trial court should have directed a verdict in favor of the appellant on Count II of the cross-complaint and for the error in failing to do so that cause of action will have to be reversed, with directions to dismiss Count II of the cross-complaint. Since the amount of damages was not apportioned as to the two counts of the cross-complaint, the case is remanded for a new trial upon all issues except Count II of the cross-complaint.

       This is the second appeal in this case. See Ferrill v. Collins, 222 Ark. 840, 262 S. W. 2d 885.