author: Carretón Harris, Chief Justice.

text:
    Ark. State Highway Comm. v. Ptak.
    5-2888
    364 S. W. 2d 794
    Opinion delivered February 18, 1963.

      Dowell Anders, R. Clay Robinson and Don Langston, for appellant.

      Donald Poe, for appellee,
   Carretón Harris, Chief Justice.

This is ail eminent domain action instituted by the State Highway Commission against Ethel M. Ptak; J. B. Hawthorne and wife, Ethel Hawthorne, and Guy W. Alexander and wife, Gladys Alexander, to acquire additional property along Highway No. 270 for highway purposes. In July, 1961, the commission filed a complaint and Declaration of Taking, depositing the sum of $50.00 for Tract No. 1 (owned by Ethel Ptak); $1,300.00 for Tract No. 2 (owned by the Hawthornes), and $500.00 for Tract No. 14 (owned by the Alexanders). The Circuit Court of Scott County entered its order, giving possession of the property to the Highway Commission. On May 22 and 23, 1962, the case Avas tried in the Scott County Circuit Court and the jury returned the following verdicts relative to the tracts herein mentioned :

Tract No. 1, owned by Mrs. Ptak, the sum of $850.00.
Tract No. 2, owned by the Hawthornes, $8,000.00.
Tract No. 14, owned by the Alexanders, $3,000.00.

From the judgment entered on these particular tracts, the Highway Department brings this appeal. For reversal, appellant asserts that the court erred in not striking the testimony of Tiny Powell, a real estate dealer, for the reason that Powell was not qualified to give an opinion as to market value, since <£ (a) he did not know market value in the area, and (b) he did not know the physical facts about the property to be valued. ” It is likewise asserted that the court committed reversible error by permitting testimony relative to the cost of moving certain houses on Tracts- No. 2 and No. 14.

Mr. Powell is in the real estate and insurance business, having been so engaged for 12 years. He is a resident of Mena, owns the Midwest Realty Company, and was the only value witness called by the land owners.

As far as general qualifications are concerned, the witness would appear to be qualified in the field of real estate values, and probably was sufficiently familiar with market values in the area (though he did not specifically so state), but after reviewing the evidence, we agree with appellant that Mr. Powell did not seem to be well versed as to the physical facts concerning the properties herein involved.

The Hawthorne tract was composed of approximately 46 acres, and the Highway Department condemned .015 of an acre. Mr. Powell valued the entire tract at $25,000 before the taking, and $10,000 after the taking. We have held that where there is a partial taking of a land owner’s property, the measure of damages is the difference between the market value of the whole land before the taking and the value of the remainder after the taking. Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81. But the fact that Mr. Powell gave the property a before (the taking) and after (the taking) value does not, within itself, raise the testimony to that degree kno.Wn as substantial evidence. As was stated in Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738,

“There was no evidence introduced tending to prove the damages except the opinions of witnesses as to the value of the land taken and as to the market value of the properties before and after the taking. Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. * * * Whether there is substantial evidence to support a verdict is not a question of fact, but one of law. Because a witness testifies as to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion.”

In Missouri-Pacific Transportation Company v. Bell, 197 Ark. 250, 122 S. W. 2d 958, we also stated that whether there is any substantial evidence to support the verdict, is a question of law and not of fact. In St. Louis S. W. Ry. Co. v. Brasswell, Admr., 198 Ark. 143, 127 S. W. 2d 637, it was stated,

“It would seem, however, that in any view to be taken, the issues are whether the evidence is substantial, and who is to judge of that quality. If this is not a question of law, then substantiality loses its significance, with the result that any testimony may suffice. If we acquiesce in this construction there is an abdication of judicial responsibility. ’ ’

This, then, being the rule, let us look at the testimony of Mr. Powell in this ease.

Relative to Tract No. 2, the Hawthorne land, the following appears in the transcript:

“Q. Now then, let’s go down to the Jim Hawthorne property. That’s Tract Two, Three and Seventeen. Is it your understanding that Tract Number Two includes the Jim Hawthorne houses north of the highway?
A. Yes, sir.
Q. Now on what highway was that — is Jim Hawthorne’s property located on?
A. 270.
Q. And on which side of the highway is Tract Number Two?
A. My understanding is it’s on the north side.
Q. Now what do you find there along the highway of Tract Number Two abutting up close to the highway?
A. I would like to ask a question here to clarify my own mind, please sir. You spoke of Tract 16, did you not?
Q. I think it is 17, Mr. Powell.
A. I probably included that in this Tract 2, if it’s all on the north side. * * *
Q. How much land — do you know how much land [land taken from Tract No. 2] ?
A. Only the front footage that I have and that’s what I based nay appraisal on was front footage. In my belief you cannot base highway values on acres.
Q. Yes, sir. Now on a front footage there will he still have the same front footage after this widening?
A. Well, I am sure, he will have the same front footage.
Q. He will still have the same length of front footage will he not?
A. Possibly.
Q. You don’t know sir?
A. Well, according to the map it should be.”

Tract No. 14, owned by the Alexanders was composed of approximately 30 acres, and the Highway Department condemned 0.46. Powell valued the entire tract at $15,000 before the taking, and $4,500 after the taking. Relative to the land, the testimony included:

“Q. How many acres of frontage do Mr. and Mrs. Alexander have in Tract 14?
A. Prom an acreage standpoint I couldn’t tell you.
Q. How many feet of frontage do they have ?
A. Mr. Alexander ?
Q. Yes.
A. A total of 792 feet, I believe — on the south side of the highway. * * *
Q. Do you have any idea how much land the highway department is condemning from this Tract 14?
A. I didn’t consider it from the standpoint of acreage.
Q. Do you knoAV how many square feet the Highway Department has condemned?
A. No.
Q. Do you know how wide the strip is the Highway Department is condemning?
A. Yes sir, around 27 feet wide — I wouldn’t be positive about that.
Q. You didn’t know that the Highway Department is condemning a little less than half an acre?
A. I wasn’t interested in the acreage.
Q. You didn’t think that was of any importance?
A. No, the frontage involved was the thing that I was looking at. * * *
Q. On this property he has a log house. Is that correct?
A. Yes.
Q. Do you have any idea how far that log house is from the right of way?
A. Prom the new survey you mean?
Q. Yes sir.
A. Exact footage I couldn’t say. I didn’t measure it.
Q. He also has on there a chicken house, does he not?
A. Yes.
Q. And an orchard?
A. Yes sir.
Q. And a pump house and two wells?
A. Yes sir. There’s two wells on the property to my knowledge.
Q. And a workshop and a garage?
A. Yes sir.
Q. All these things are still there after the taking are they not?
A. To my knowledge, yes sir.
Q. Did you know that Mr. Alexander had his property up for sale and was asking $8,500 at the time the Highway Department took the property?
A. No, I did not.
Q. Would you have given any consideration to that had you known it?
A. Pardon me?
Q. Would you have paid any attention to that if you’d known it?
A. I would have at his request. ’ ’

Tract No. 1, owned by Mrs. Ptak, was composed of approximately 2% acres, and the Highway Department condemned .002 of an acre. Mr. Powell valued this tract at $10,000 before the taking and $1,000 after the taking. Prom the record:

“Q. With reference to Tract No. 1 of which Mrs. Ptak is admitted to be the owner, what would you say would be the fair market value of this particular tract of land in the condition it was in July of 1961 immediately before they enlarged the highway?
A. A minimum of $10,000.00.
Q. Now what would you say was the fair market value of this particular tract of land immediately after this highway had been enlarged and the work done there ?
A. Well, I hadn’t particularly noticed it until May 17 and at that time I figured it was worth $1,000.00.”

Here, an objection was interposed by the department to the effect that an appraisal is to be made on the basis of value immediately before and immediately after the taking, and Mr. Powell then testified that the value immediately after the taking in July, 1961, and May 17, 1962, was the same.

We think it apparent from the quoted testimony that the witness was not sufficiently familiar with the properties to make a proper appraisal, and that under these circumstances, his testimony cannot be considered substantial evidence. In fact, the trial court evidently strongly considered striking the testimony. Again, quoting the record,

‘ ‘ Q. Do you have any idea how many acres were in Tract 14 — on the south side that belonged to the Alexanders before the taking? A. No, not the acreage. I believe I stated a few minutes ago I didn’t know the acreage in it. I wasn’t interested in the acreage. Mr. Robinson: ‘Now at this time I would like to make a motion (before the bench). I’d like to move to strike his testimony. He doesn’t know the lengths involved, or how much land the Highway Department is taking. I don’t see any way in the world he could appraise that property with any basis in fact at all. For that reason I move that his testimony be struck — on these three properties I have just cross examined him on.’
The Court: ‘I certainly feel inclined to grant the motion. This witness has shown an absolute disregard of any sincere attempt to reach an evaluation of these properties. He acts totally indifferent except rattling off the figures without giving any basis for it. I’m going to take your motion under consideration. ’ ’ ’

Subsequently, however, the court denied the motion.

We think appellant’s objection to the testimony was proper. Powell was not familiar with the total acreage involved before the taking, nor the acreage remaining after the taking, nor did he know how many square feet were taken. He stated that he appraised the property entirely on a frontage basis. Such an appraisal, of course, relates to only a portion of the property, and was only an additional fact to be considered in the overall appraisal. He was not familiar with the distances of the improvements from the right of way; he was not acquainted with the construction plans, and did not know the proposed status of the properties after completion of the work. Much of the witness’ testimony leaves the impression that his inspection of the premises was only casual, and in some instances it would appear that his information was acquired by means other than viewing the property. For instance, in his appraisal, he apparently combined Tracts No. 2 and No. 17 (both owned by Hawthorne) as one tract for appraisal purposes. These tracts are over a mile apart, and are separated by property owned by several different persons. When asked as to which side of the highway Tract No. 2 was located, he replied, “My understanding is its on the north side. ’ ’

In appraising the Ptak property after the taking, Powell stated that he had not particularly noticed that property until May 17,1962, (a few days before the trial) whereas the actual taking had occurred in July of the previous year. The witness testified that the “corner has been killed”, (Ptak property), meaning that the property was inaccessible at the time of the trial, but he admitted that he did not know whether it would be inaccessible when the construction had been completed: “I don’t know what the planning is on it, no * * * I looked at it as I seen it — as is.” Of course, on May 17, construction of the highway was in progress, and it would appear that Mr. Powell’s appraisal took into consideration the disrupted condition of the land at this particular time. This was not a proper element of damage. We have held ‘ ‘ that a municipality or other public agency, in the construction or improvement of streets, is not responsible in damages for temporary interference with the use of abutting property.” Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407.

While two of the three land owners testified as to-the before and after value of their respective properties, it is extremely doubtful that their testimony, standing-alone, could meet the test of substantial evidence. Much of Mr. Hawthorne’s testimony was prefaced by “I guess,” and portions of Mr. Alexander’s testimony were likewise rather indefinite. At any rate, Mr. Powell appeared to be the principal witness for appellees, and we certainly are unable to say that the jury disregarded his testimony. We have held many times that where error is committed, and proper objection is made, such error will be treated as prejudicial unless it be shown that the appellant was not prejudiced thereby. Equitable Discount Corp. v. Trotter, 233 Ark. 270, 344 S. W. 2d 334.

Appellant’s second point relates to the court’s alleged error in permitting evidence relative to the cost of moving certain houses on Tracts No. 2 and No. 14. Testimony was introduced as to the cost of relocating the houses by a house mover, plumbing contractor, electrician and a carpenter. Testimony showed that the total cost of moving the Alexander house would amount to $2,719.60, and the total cost of moving several houses on the Hawthorne property was given as $3,952.80. It might be first said that some of this testimony was entirely speculative and remote. An example is given by testimony of Fred Austin, an electrician. From the record:

“Q. Did you go to Jim Hawthorne’s property?
A. Yes, sir.
Q. How many houses did you see there * * *
Q. Now the house south of the highway, I will ask you if this is the house that you went to which has been marked Exhibit No. 15. Is that the picture of it — that’s south of the highway?
A. I believe so.
Q. Now then, what would you say was the cost of restoring the electrical appliances and wires in that house ?
A. That was the one on the south side?
Q. Yes sir.
A. That would be $85 on that one.
Q. Isn’t it a fact that you only looked at three houses of Jim Hawthorne on the north side?
A. Yes, that’s right. The ones on up I didn’t go look at.
Q. Have you got those combined or have you separated those three houses on the north side?
A. Those on the north side I just estimated the moving of the poles and everything that it would take and then it would average out at $100 a house.
Q. A $100 on each house?
A. Yes sir, and $35 on running wire to the well if they moved the well — if a new well was drilled. ’ ’

Evidence of the cost of improvements for restoration purposes and of relocation costs is proper. Arkansas State Highway Comm. v. Speck, 230 Ark. 712, 324 S. W. 2d 796. But, as was stated in that case,

“Let it be borne in mind that these prospective expenditures are not the measure of damages, but are only an aid in determining the difference in the before and after value of the property.”

Again, in Kirk v. Pulaski Road Improvement District No. 10, 172 Ark. 1031, 391 S. W. 793, we stated,

“The record also shows that it would cost more than $2,000 to erect a retaining wall which would prevent the embankment of the plaintiff’s property, abutting the improved street, from further caving in. While this proof was competent to show the damage to plaintiff’s property it was not the measure of her damages. In cases of this sort, the owner is entitled to recover the difference between the market value of her property before the taking or damage to it and the market value afterwards. ’

It follows that restoration costs are proper evidence, but this cost must be fairly definite, and the evidence should reasonably define the improvements or changes that must be made, i.e., the distances that the houses must be moved, etc. Actually, the testimony in this case is somewhat contradictory. Alexander testified that it was extremely doubtful that his house could be moved at all, since it was of log construction with a concrete foundation, and it would be almost impossible to move it without tearing it up. Hawthorne also testified that at least one of his houses could not be moved. The mere fact that a building is closer to the highway does not, in itself, establish damage. In fact, in some instances, benefits might accrue which would offset any damage. The land owner must show that the proximity of the highway to his house, occasioned by the taking, decreased the market value of the property, and the difference in such value before and after the taking would constitute the damage, rather than the cost of moving the house. Mississippi State Highway Commission v. Smith, 192 So. 447. Of course, if the jury should find that the cost of moving a house would call for a greater expenditure than the damage occasioned by the proximity, the land owner would only be entitled to the proximity damage.

It is apparent that the jury considered the cost of moving the houses as actual damages rather than as an aid in determining the difference in the before and after value of the property. The record reflects the following:

‘ ‘ (At 3:45 the Foreman of the jury came in alone and inquired of the Court and counsel, if the jury could return a verdict which included cost of moving houses and make a requirement that the houses be moved. The Court instructed them that they could not place such a requirement in this verdict.) ”

For the reasons herein set out, the judgment is reversed and the cause is remanded to the Scott County Circuit Court.

       Numerous other parties and numerous tracts of land were included in the suit, but this appeal relates only to the tracts and parties mentioned.

       The property is located at Wye City, not a great distance from Mena.

       Powell never did testify that he made an actual appraisal of the property before July, 1961. He stated that he had been “acquainted”' with the property for ten or eleven years.

       According to Witness Powell, the highest and best use of the Hawthorne and Ptak properties was for commercial purposes.


source: Caselaw Access Project

author:
Ed. F. McFaddin, Associate Justice.
      Jm Johnson, Associate Justice

license: Public Domain

text:
    Jones v. Barnett.
    5-2859
    365 S. W. 2d 241
    Opinion delivered February 18, 1963.
    [Rehearing denied March 25, 1963.]

      J ohn Harris J ones, for appellant.

      Bridges, Young & Matthews, Gene Bairn, for appellee.
   Ed. F. McFaddin, Associate Justice.

The present case is a sequel to Selig v. Barnett, 233 Ark. 900, 350 S. W. 2d 176. We are here asked to decide whether the appellant Jones is entitled to an attorney’s fee for services rendered in that case; and, if so, how much fee should be allowed. The Trial Court allowed Mr. Jones a fee of Ten Thousand Dollars, and from that decree there is this appeal and cross appeal. A study of the opinion of this Court in Selig v. Barnett, supra, is essential to an understanding of the present litigation. Ben J. Altheimer is, and has been for many years, an incompetent; and his co-guardians are Mrs. Elsie J. Selig and Mr. R. S. Barnett. These persons have served as co-guardians for a number of years. In 1957, with the sanction of the Probate Court, there was a different attorney for each of the co-guardians: Mr. Barnett was represented by Mr. Frank Bridges of the Bridges firm; and Mrs. Selig was represented by Mr. Gene Bairn.

In 1957, the Trustees of the Altheimer Foundation brought suit against the Trustees of the Testamentary Trust of Ben J. Altheimer, Sr., seeking to reopen a 1948 decree and have certain property awarded to the Foundation Trustees as against the Testamentary Trustees. Mr. R. S. Barnett was one of the Foundation Trustees and acted in such capacity in the said 1957 suit, although he was also co-guardian of Ben J. Altheimer, Jr. Shortly after the said 1957 suit was filed, Mrs. Elsie J. Selig, co-guardian of the incompetent Ben J. Altheimer, Jr., received information as to some doubt about the validity of the Ben J. Altheimer Foundation, and that the Testamentary Trustees had failed to present such issue in the 1948 proceedings. It was reasoned that if the Altheimer Foundation was invalid, then all the property of the Foundation would belong to the Testamentary Trustees, and would materially increase the estate of the incompetent, Ben J. Altheimer, Jr. Accordingly, Mrs. Selig consulted with Mr. Bairn, who represented her as co-guardian, to see what steps, if any, should be taken by Mrs. Selig, as co-guardian; and Mr. Bairn advised her that Mr. John Harris Jones, appellant in the present case, was a most capable lawyer in such matters. Accordingly, Mr. Bairn and Mrs. Selig consulted Mr. Jones; and as a result, Mr. Jones and Mr. Bairn filed an intervention for Mrs. Selig, as co-guardian, in the pending 1957 suit brought by the Foundation Trustees against the Altheimer Testamentary Trustees. Mr. Bairn and Mr. Jones continued to represent Mrs. Selig as co-guardian in that litigation to and including the denying of the petition for rehearing in this Court in the ease of Selig v. Barnett, supra.

In due time after the conclusion of that litigation, Mr. Bairn and Mr. Jones each filed a claim in the guardianship proceedings of Ben J. Altheiraer, Jr., pending in the Jefferson Probate Court, for legal services rendered to the co-guardian, Mrs. Selig, in the said case of Selig v. Barnett. Mr. Barnett, as co-guardian, resisted the allowance of any fee to either attorney. The Probate Court entered a judgment allowing Mr. Baim a fee of $4,-000.00 and Mr. Jones a fee of $10,000.00. Mr. Jones has appealed, claiming he is entitled to a fee of $55,200.00; and Mr. Barnett, as co-guardian, has cross appealed.

1. The Cross Appeal Of Barnett. As stated, Mr. Barnett, as co-guardian, has cross appealed, claiming that the Probate Court was in error in allowing any fee to Messrs. Baim and Jones for representing Mrs. Selig, as co-guardian, in the case of Selig v. Barnett. This cross appeal deserves first consideration, because a decision in favor of Mr. Barnett on this point would make unnecessary the consideration of any other matters. Mr. Barnett insists, inter alia, that:

(a) The litigation for which attorneys’ fees are requested was conducted by one co-guardian without the consent or approval of the other co-guardian and is therefore unauthorized and not a proper exercise of the guardian’s duties;

(b) The attorneys were representing Mrs. Elsie J. Selig, and not the Estate of Ben J. Altheimer; and the attorneys for Mrs. Selig should not be allowed attorneys’ fees for litigation commenced for the personal interest of the guardian.

(c) The proper method for securing payments of fees from a ward’s estate is on the petition or accounting of the guardian; and

(d) The allowance for attorneys ’ fees must be based on services which were reasonable, necessary, and conferred benefit upon the ward’s estate.

We find no merit in the cross appeal. Mrs. Selig, as co-guardian, had a duty to her ward to recover for him any property to which he was entitled. She had received information, from a source which she considered reliable, to the effect that the entire Altheimer Foundation was invalid. She could not act in conjunction with her co-guardian, Mr. Barnett, because he was one of the Trustees of the Altheimer Foundation which had filed the suit against the Altheimer Testamentary Trustees; and, of course, Barnett as guardian could not consistently oppose the claim of Barnett as Trustee of the Altheimer Foundation. So Mrs. Selig consulted Mr. Bairn, who was the attorney that had represented her for some time as co-guardian; and it was at his insistence that she consulted Mr. Jones, who agreed to, and did, assist in the intervention of Mrs. Selig as co-guardian. The intervention was not frivolous or trifling: it represented a real issue. Even though it was ultimately unsuccessful, it was nevertheless an issue that Mrs. Selig, as co-guardian, prosecuted in good faith. Messrs. Bairn and Jones rendered faithful and extensive service to Mrs. Selig, as co-guardian.

It is urged that Mrs. Selig, as one of the beneficiaries in the Altheimer Testamentary Trust, would also have benefited personally if her intervention as co-guardian had been successful; and from this fact Mr. Barnett insists that Messrs. Bairn and Jones were representing Mrs. Selig personally. But the evidence indicates most strongly that Messrs. Bairn and Jones were representing Mrs. Selig only as co-guardian in the intervention. The question of a fee to be paid by Mrs. Selig personally was never mentioned. Messrs. Bairn and Jones testified, without express contradiction, that Mrs. Selig made the statement to them that her reason for bringing the action was solely for the benefit of her ward; that it was to benefit him, her first cousin; and that she was his closest relative in Arkansas. The attorneys stated that they were never given any indication that Mrs. Selig was doing any of this for her personal good, and that they wei-e' repeatedly told by Mrs. Selig that she was doing what she did because she thought it her duty to her Avard. We are convinced, and hold, that Messrs. Bairn and Jones represented Mrs. Selig as co-guardian and not as an individual. When the attorneys filed their petition in the Probate Court for a fee for representing Mrs. Selig as co-guardian, she took the position that it was for the Probate Court to determine the issue. Called by the Court, she testified:

“I don’t see how I can be anything but neutral. I am Jack’s Guardian and I should remain neutral.
“THE COURT: You are neither approving nor disapproving the allowance of a feel
‘ ‘ I will leave it to your discretion. . . . The Court has always set the fees in this matter.”

Mr. Barnett insists that the Probate Court cannot allow a fee until the guardian requests it, and cites, inter alia; Lothrop v. Duffield (Mich.), 96 N. W. 577; In Re Garbini’s Guardianship (Calif. App.), 83 P. 2d 508; Hutton v. Gwin (Miss.), 195 So. 486; and Hunt v. Maldonado (Calif.), 27 P. 56. But, under the testimony of Mrs. Selig, a heretofore copied, and under the peculiar facts of this case, we hold that the Probate Court had the power to grant the petition of Messrs. Bairn and Jones for legal services rendered to Mrs. Selig as co-guardian. Section 57-637(b) Ark. Stats, is a part of the probate Code, and provides:

“Upon the petition of any person having a claim against the estate of a ward for services lawfully rendered to the ward or his estate . . . the court may, after notice, upon appropriate hearing, direct the guardian to pay such claim.” Also, § 57-641 Ark. Stats., a part of the Probate Code says: “. . . The guardian may employ legal counsel in connection with the discharge of his duties, and the court shall fix the attorney’s fee which shall be allowed as an item of the expense of administration. ’ ’

Of course, in the normal guardianship proceeding, the guardian should first get the authorization of the Probate Court to employ an attorney; but this is not an ordinary case. Here: Mrs. Selig, with the consent of the Probate Court, had for years employed Mr. Bairn as her attorney in such guardianship; there was an apparent conflict between the co-guardians; and Mrs. Selig’s regular attorney called in Mr. Jones to assist him in the litigation. The Probate Court knew all along that Mr. Jones was acting with Mr. Bairn as attorney for Mrs. Selig, as co-guardian, because in the course of the Selig v. Barnett litigation in the Chancery Court, and in this Court, the Jefferson Probate Court made repeated orders in the Ben J. Altheimer, Jr. guardianship case, authorizing Mrs. Selig, as co-guardian, to pay expenses incurred in the Chancery case. These included orders made in 1958 and 1959, authorizing the guardian to pay for expenses incurred in the Chancery case of Selig v. Barnett. There was also an order of June 21, 1960, made by the Probate Court, authorizing Mrs. Selig, as co-guardian, to expend from the ward’s estate, the amounts necessary for the filing in the Supreme Court of the appeal from the decree in the Chancery Court, for the cost of the record designated for such appeal, and for the cost of printing the abstract and brief on such appeal. Certainly the Probate Court was kept fully informed that these attorneys of Mrs. Selig, as co-guardian, were representing her as such co-guardian. We hold that the cross appeal of Mr. Barnett is without merit.

II. The Amount Of Attorney Fee That Mr. Jones Should Recover. Having found that Messrs. Bairn and Jones, as attorneys for Mrs. Selig, as co-guardian, were entitled to receive a fee, the next question is what the fee should be. The Probate Court allowed Mr. Bairn a fee of $4,000.00 for his services to Mrs. Selig, as co-guardian; and Mr. Bairn has not appealed, so the correctness of the fee allowed Mr. Bairn requires no further comment. The Probate Court allowed Mr. Jones a fee of $10,000.00, and he has appealed, claiming that he should be allowed a fee of $55,200.00 Mr. Barnett insists that the $10,-000.00 is more than adequate. Mr. Jones’ claim is based on the number of hours he spent in the case of Selig v. Barnett, computed at the rate of $25.00 an hour. He kept a most accurate record, and his original work sheets were introduced in evidence, showing every minute devoted to the case of Selig v. Barnett from June 25, 1957, to and including November 6, 1961. The original work sheets are before us, and they show a total of 2208 hours spent by Mr. Jones. He testified in the Probate Court, and urges here, that the Probate or Chancery Court had allowed compensation to other attorneys in the SeligBarnett case, and the earlier companion case of Selig v. Morrison, on the basis of $25.00 per hour; and that he is entitled to compensation at the same rate per hour. His brief here is an excellent treatise on the legal profession in general, and fees in particular.

Notwithstanding all of the foregoing, we find it impossible to fully agree with Mr. Jones’ conclusions. There are many factors, in addition to that of hours spent, to be considered in the problem of fixing a just and adequate fee for an attorney in any specific case In Sain v. Bogle, 122 Ark. 14, 182 S. W. 515, we said: ‘ ‘. . . in determining what is a reasonable attorney’s fee, it is competent and proper to consider the amount and character of the services rendered, the labor, time, and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.”

In many of the cases cited, the Court, in fixing the fee, has had the benefit of the testimony of other attorneys as to what such witnesses considered to be a reasonable fee for services rendered in the matter in question; but there is no such testimony in the case at bar except the testimony of Mr. Bairn and Mr. Jones; so Mr. Jones’ case rests largely on the basis of the number of hours worked, multiplied by $25.00 per hour. We are entirely unwilling to adopt such as an exclusive basis in the case at bar. It is possible that in a matter extending over several years, as did this case, the law of diminishing returns would apply to the hours consumed. Furthermore, in Whetstone v. Travis, 223 Ark. 856, 269 S. W. 2d 320, we quoted from an earlier case:

“ ‘Although this testimony (as to a reasonable fee) was not directly contradicted by appellants, the trial court, and this court on appeal, are not required to lay aside their general knowledge and ideas of values of such services, and are not entirely controlled by testimony of this nature ... In determining what would be a reasonable fee we take into consideration the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation. ’ ’ ’

Other important factors to be always considered in a case such as this one relate to the ability of the estate to pay the fees both of Mr. Bairn and Mr. Jones. The Trial Court had access to the record in the case of Selig v. Barnett, just as we have, and the Trial Court fixed Mr. J ones ’ fee at $10,000.00. Without prolonging this opinion, it is sufficient to say that after considering the entire record and all the various factors involved in the problem of fixing a fair and reasonable attorney’s fee in this case, we reach the conclusion that Mr. Jones is entitled to a fee of $17,500.00.

Therefore, the case is affirmed on cross appeal; and is reversed on direct appeal and remanded with directions to enter a decree allowing Mr. Jones a fee of $17,-500.00. In all other respects, Probate Judgment is affirmed.

Harris, C. J., not participating.

Johnson, J., dissents in part.

Jm Johnson, Associate Justice

(dissenting in part). I agree with, the majority view that the lawsuit in which appellant served as principal connsel, Se-lig v. Barnett, 233 Arle 900, 350 S. 'W. 2d 176, “was not frivolous or trifling,” but to the contrary in my view it was one of the most complicated, involved and best prepared cases ever to be presented to this court. Appellant masterfully presented for his clients a serious claim for property worth in excess of a half million dollars. The evidence was undisputed that during the period between June 25, 1957, through November 6, 1961, appellant worked 2208 hours on the litigation for which he seeks compensation. The question of whether appellant is entitled to compensation for his services is settled by the trial court and this court on appeal as reflected by the majority opinion. My only disagreement with the majority is in the amount of the fee which should have been allowed. The number of hours spent on this case is absolutely undisputed in the record and the quality of the work which we have reviewed on appeal as well as the work sheets in the present record amply bears out appellant’s claim to the hours of work devoted to this matter. The 2208 hours devoted to this litigation figures out to be over 42 hours a week for an entire year spent on this single case.

The record is further undisputed that other attorneys in the same litigation were paid on the basis of the Jefferson County Bar Association minimum fee schedule of $25.00 per hour. The record is further undisputed that the estate is not only able to pay the requested fee but that the estate is accustomed to paying fees commensurate with the basis urged by appellant.

Appellant cogently stated my sentiments relative to the fee awarded by the trial court and the fee awarded here on appeal when he said, “ [The] fee is ‘better than a poke in the eye with a sharp stick’. If lawyers were mendicants, it would seem ungrateful to appeal from allowance of such a substantial sum. But a lawyer who has performed services is not in a position of a beggar before the courts when the time comes for the determination of his fee.

“If an attorney offered employment from a client, whose fee must be set by the court, is in a perilous position, so also is the client. In setting attorneys’ fees the courts protect not only the attorney but also the client and the public. Reasonable fees are those which are not so small ‘that well prepared attorneys would avoid that class of litigation or fail in the employment of sufficient time for thorough preparation, but should be for the purpose of compensating * * * in engaging counsel thoroughly competent to protect his interests. ’ John Hancock Ins. Co. v. Magers, 199 Ark. 104, 132 S. W. 2d 841, 846.”

The American Bar Association has published a number of treatises on the economics of law practice. See American Bar Association Economics of Law Practice Series. These publications graphicly point out the fact that ‘ ‘a Lawyer’s time and advice are his stock in trade.’’ A. Lincoln. With the high cost of a legal education, maintenance of an adequate library, maintenance of law offices, equipment and furniture, telephone and other utilities, secretarial help, materials and supplies, postage, fees, professional association dues and other expenses and costs incidental to the practice of law [the realities of which have not yet become lost in my memory of the days prior to donning the robes nor dulled by the State so kindly lifting most of these burdens from my shoulders], I am unwilling to become a party to a precedent which sets $7.92 per hour as adequate gross compensation for sex-vices of members of the Bar of Arkansas.

Therefore I strongly dissent to that portion of the xxiajority opinioxx which finds appellant’s services to be worth less than the minimum fee schedule adopted by the Jefferson Couixty Bar Association.

       The name of the firm has been changed several times. It is now Bridges, Young, and Matthews.

       The Probate Court allowed expenses of $202.85, which we consider as an uncontested item; so we refer only to the fees for legal services as being contested.

        Selig v. Morrison, 230 Ark. 216, 321 S. W. 2d 769.

       Some of our own eases involving the problems of fixing an attorney’s fee are: Lilly v. Robinson, 106 Ark. 571, 153 S. W. 820; Sam v. Bogle, 122 Ark. 14, 182 S. W. 515; Martin v. Manning, 124 Ark. 74, 186 S. W. 302; Bayou Meto Dist. v. Chapline, 143 Ark. 446, 220 S. W. 807; Slayton v. Russ, 205 Ark. 474, 169 S. W. 2d 571; Mo. Pac. v. McDonald, 206 Ark. 270, 174 S. W. 2d 944; Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22; and Whetstone v. Travis, 223 Ark. 856, 269 S. W. 2d 320. See also opinion by Judge John E. Miller in Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797. There are also annotations in 143 A.L.R. 672, and 56 A.L.R. 2d 13, entitled, “Amount of Attorney’s compensation in absence of contract or statute fixing amount”; and these annotations show the general trend of the holdings in the various jurisdictions. See also 5 Am. Jur. 379, “Attorneys at Law” § 198.


author: George Bose Smith, J.

text:
    Frisby v. Hurley.
    5-2915
    364 S. W. 2d 801
    Opinion delivered February 18, 1963.

      Bernard Whetstone, for appellant.

      Brotun <3 Compton, for appellee.
   George Bose Smith, J.

Boy L. Frisby and Gene A. Hathcote were both killed when the truck in which they were riding left the highway and overturned. The truck was owned by Olin Mathieson Chemical Corporation and was being driven by Hathcote, its employee. The appellant, Buby Frisby, as the administratrix of her husband ’s estate, first brought an action for wrongful death against the Mathieson company, in the federal court. Later on she brought this action, also for wrongful death, against the appellee, as the administrator of Hathcote’s estate. The federal case was tried first and resulted in a jury verdict for the defendant. The appellee then moved for a dismissal of the state court action, pleading the judgment in the federal court as res judicata. This is an appeal from an order sustaining that motion and dismissing the suit.

The question is whether the judgment in favor of the employer, as the defendant in the first action, is res judicata in the second action brought by the same plaintiff against the employee whose negligence was involved.

This question was fully analyzed in Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844, which controls the case at bar. There we noted that in most instances a judgment for or against the employer is not conclusive in a later action against the employee, because the two defendants are not in privity. But we recognized and gave effect to a narrow but well-established exception to this general rule; that is, “the plaintiff, after a prior unsuccessful damage action against the master or servant for alleged negligence of the servant, is barred from maintaining a subsequent action involving the same mishap when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence. ’ ’ The reason for the limited exception is that in the specific situation to which it applies the plaintiff has already had his day in court upon the issue of the servant’s negligence and as a matter of public policy is not entitled to a second trial upon that exact issue. We repeatedly emphasized in the Davis case that the first judgment is res judicata, under the exception, only when it is conceded that the servant was acting in the scope of his employment, for only in that situation can it be known with certainty that the earlier decision against the plaintiff was based upon the issue of negligence.

The case at bar does not fall within the exception to the general rule. In the federal court the Mathieson company relied upon three defenses, all involving issues of fact that were submitted to the jury: First, Frisby was a guest in the truck, so that Mathieson would not be liable for ordinary negligence on the part of Hathcote. Second, Hathcote was not acting within the scope of his employment in allowing Frisby to ride in the vehicle, so that Frisby was a trespasser toward whom Mathieson did not owe a duty of ordinary care. Third, Hathcote was not negligent. The federal court case, submitted to the jury without interrogatories, resulted in a general verdict for the defendant. It is possible that the jury believed Hathcote to have been negligent but nevertheless exempted Mathieson from liability, upon a finding that Hathcote was acting outside the scope of his employment in permitting Frisby to ride in the truck. "We cannot be certain that the appellant lost the first case upon the sole issue of Hathcote’s negligence. The exceptional bar of res judicata is therefore inapplicable, and this action can be maintained.

Beversed,


author: George Bose Smith, J., Carleton Harris, Chief Justice Ed. F. McFaddin, Associate Justice

text:
    Loveless v. Diehl.
    5-2841
    364 S. W. 2d 317
    Supplemental Opinion on rehearing delivered February 18, 1963.

      Rolland A. Bradley, for appellant.

      Robert W. Henry, for appellee.
   George Bose Smith, J.,

on rehearing. This is an appeal by the sellers from a decree directing specific performance of a contract for the sale of land. In our original opinion, in the belief that we were achieving substantial justice, we set aside the chancellor’s award of specific performance and instead limited the purchasers to their monetary damages, which we fixed as the difference between the contract price and the slightly greater sum for which the purchasers had agreed to sell the property to a third person, 235 Ark. 805.

This possibility of substituting damages for specific performance was not mentioned in the original briefs. In their petition for rehearing the appellees earnestly insist that our decision did not in fact reach a completely just result. Briefing the legal point for the first time, counsel contend that the court’s denial of specific performance is not warranted in the circumstances of this case.

After reconsidering the question we have concluded that the petition for rehearing is well-founded.

Our prior decisions recognize the possibility that in a few unusual situations a court of equity may in its discretion deny the plaintiff the right of specific performance. But the remedy of specific performance, in giving the complaining party exactly what he bargained for, ordinarily affords complete and perfect relief and therefore is usually to be awarded as a matter of course.

The point was discussed in Sims v. Best, 140 Ark. 384, 215 S. W. 519, where we said: “Finally, it is insisted that the right to specific performance is not absolute, but is a matter of discretion with the chancellor. "While this is true, the discretion is a sound judicial discretion, controlled by established principles of equity, and where the contract is in writing, is certain in its terms, is for a valuable consideration, is fair and just in all its provisions, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree its specific performance as for a court of law to award a judgment of damages for its breach. ’ ’ (Italics added.) It will be noted that every one of the conditions just mentioned (a written contract, certainty, etc.) is present in the case at bar.

Much to the same effect is this holding in Dollar v. Knight, 145 Ark. 522, 224 S. W. 983: “Where land or any estate or interest in land is the subject-matter of the agreement, the jurisdiction to enforce specific performance is undisputed, and do,es not depend upon the inadequacy of the remedy in the particular case. It is as much a matter of course for courts of equity to decree a specific performance of a contract for the conveyance of real estate, which is in its nature unobjectionable, as it is for courts of law to give damages for its breach.” (Italics added.)

In the present case we find no valid reason for a denial of specific performance. To the contrary, the equities' in the case strongly demand that this remedy be afforded. The purchasers, according to the great weight of the evidence, expended some $5,000 or more, in money or in labor, in improving the property. Apparently the land in its improved state is worth more than the contract price, for otherwise the sellers would hardly be so strenuously resisting this suit for enforcement of the agreement. To deny specific performance, and to award instead an amount of damages far below the buyers’ expenditures in improving the property, would result in the sellers’ being unjustly enriched for their culpable refusal to carry out their promise.

The only reason that occurs to us for a denial of specific performance is the fact that the buyers entered into an agreement to sell the land to Dr. Hart, It is plain enough, however, that they had a perfect right to resell the land if they wanted to. Whether they kept it, sold it, or gave it away was of no concern to the sellers. To refuse specific relief on account of the proposed resale would establish an unsound precedent, diminishing the transferability of property, since in similar situations prospective buyers would be reluctant to bind themselves to a purchase contract, for fear that it might prove to be unenforceable.

Now that the appellees’ right to specific performance has been reinstated there remain three issues which were argued in the original briefs but which we did not find it necessary to decide in our original opinion.

First, the appellants insist that the purchasers are not entitled to prevail, for the reason that they failed to make a physical tender of $21,000 in cash within the period allowed for the exercise of their option to buy the property.

This argument fails to distinguish the two meanings which the term tender may have. When a duty of performance rests upon only one of the contracting parties, as in the case of an open account or promissory note, an actual offer of the money owed is essential to a valid tender. But the law is otherwise when both parties are under a duty to perform, and the question is whether one of them has made a sufficient offer of performance to put the other in default. Williston discusses this distinction clearly and accurately:

“It is said that the strict rules of tender are not applicable to a conditional offer to perform a concurrent condition; that what is essential is that it shall appear to the court and shall have been made clear to the other party to the contract that the exchange agreed upon would be carried out immediately if the latter would do his part. This requirement involves both ability on the part of the plaintiff to perform and an indication of that ability to the other party. The actual production of the money or other thing which the plaintiff is to give is said to be unnecessary.
“As the courts have said ‘the word “tender,” as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to perforin in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness. ’ ’ ’ Williston on Contracts (3d Ed.), § 833.

Diehl testified that about two weeks before the expiration of his lease he told Loveless that he was exercising his option to purchase, that he had a man who was ready to pay for the property, and that he wanted a deed. Loveless promised to execute the deed and voluntarily added that the Federal Land Bank had a loan against the land and that he would get the abstract of title from the Land Bank so that it could be examined. Thereafter Loveless failed to make any move toward carrying out his agreement to sell, and as soon as the time expired he refused to consider the matter further. At no time during the life of the option did Loveless either demand or put himself in a position to demand that the purchase money be physically tendered. The chancellor’s finding that the purchasers made a sufficient offer of performance is not against the preponderance of the evidence.

Secondly, the appellants contend that the chancellor should not have charged them with $2,600 as the rental value of the land, at the rate of $100 a month, during the period between the expiration of the lease and the entry of the decree. The complaint was filed sixteen days after the termination of the lease and of course did not contain a prayer for rents, as none had then accrued. The undisputed proof showed that the land was rented for $100 a month both under the Loveless-Diehl lease and thereafter, and, further, that this was the fair rental value of the property. When the chancellor entered his decree 26 months after the inception of the controversy he treated the complaint as having been amended to conform to the proof and awarded the buyers a judgment for the rental value of the land.

The court was right in charging the sellers with the rental value of the land while they were in possession, but he should have gone farther and charged the purchasers with interest at the legal rate upon the unpaid purchase price during the same period. The two charges are equitably offsetting and should go together. The sellers are charged with the rental value because they have had the use of the buyers ’ land, and the buyers are charged with interest because they have had the use of the sellers’ money. Both charges are ordinarily made in situations where the creditor, such as a mortgagee, for example, has been in possession of the debtor’s property. Holcomb v. Bowe, 154 Ark. 543, 243 S. W. 803; Hamner v. Starling, 183 Ark. 948, 50 S. W. 2d 615; Zini v. First Nat. Bk., 228 Ark. 325, 307 S. W. 2d 874; Hughes, Arkansas Mortgages, §§ 521 and 525. To make either charge without the other is evidently unwarranted, for it gives-the favored party the use of both the land and the money. On this point the decree must be modified to require the purchasers to pay interest upon the purchase price and to require the sellers to pay interest upon each monthly installment of rent from its accrual.

Finally, by cross appeal the Diehls contend that the Lovelesses waived their right to collect the milking equipment note by repossessing that property. We think the chancellor was right in holding that the repossession was merely incidental to the sellers’ action in taking control of the farm as a whole and so did not amount to a waiver of their right to enforce the note. Inasmuch as the purchasers had been deprived of the use of their property the chancellor absolved them from payment of interest upon the note, which we think to be a proper balancing of the equities. When the purchasers obtain specific performance of the contract they will be entitled to the milking equipment and will be under a duty to pay for it.

The decree is modified as indicated, and the cause is remanded so that the account may be stated in accordance with this opinion and a final decree be entered.

Johnson, J., not participating.

Harris, C. J., and McFaddin, J., dissent.

Carleton Harris, Chief Justice

(dissenting). I originally voted to reverse this case because of the fact that, in my opinion, no proper tender of the $21,000.00 was made to Loveless by Diehl, or anyone in the latter’s behalf. However, with the same feeling as that expressed in the present majority opinion (the belief that we were achieving substantial justice), I joined in the original opinion handed down by this court.

It is true that the substitution of damages for specific performance was not argued in the original briefs; however, the complaint filed by appellees, after asking for specific performance, prays, in the alternative, for damages.

I am still of the view that no proper tender was made and I think this true even under the discussion by Williston, quoted by the majority. A portion of that quotation reads as follows:

“ ‘As the courts have said “the word ‘tender,’ as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so, and notice to the other party of such readiness.” ’ ”

I cannot ascertain from the record that either Diehl or Dr. Hart had the “present ability” to make the payment of $21,000.00. In fact, there is no contention that Diehl was able to make the payment himself, but he testified, as stated by the majority, that “he had a man who was ready to pay for the property. ’ ’ This, of course, ivas a reference to Dr. Hart. Let us, therefore, examine the record for the purpose of determining Hart’s ability to pay that amount.

Dr. Hart first testified that he could have raised the money “in a matter of 48 hours.” But he then became more specific in his testimony as follows:

“You were talking about whether I had the money. I had some money available. I had some property both in Kansas and in Arkansas and I was wanting to use this property in Arkansas as collateral and had hoped to borrow enough money locally with this collateral, which was a three hundred acre farm in Conway County, to purchase the lands here locally without having to jeopardize the business venture in Kansas. I would rather have had that locally. I had talked to the bank, The First State Bank, Mr. Tom Wilson and he had approved a loan of $10,000.00 to me if I needed it and I asked several people. I had talked with Mr. Atchison about it. I had done some banking with both banks and I talked to him about it to see what he thought and, of course, we discussed the value of the real estate, whether it was worth so much money. Then, I went over to see Mr. Ligón. I’ve had some experience with Federal Land Bank in Kansas and familiar, more or less, with their interest rates and I was asking Mr. Jimmy Ligón about the possibility if they would like to finance it and he told me that it might be valuable for me to contact Mr. Loveless and talk with him; that he was of the opinion that Mr. Loveless, possibly, would carry part of the note; that he might be interested in carrying part of the note for me to purchase the property from Mr. Diehl and that was the reason that I went to see Mr. Loveless.”

Further, from Dr. Hart’s testimony:

“Q. All right. Now, have you at all times since then been ready, willing and able to go on and purchase it if — at the price you agreed on then?
A. Yes, sir, I have.
Q. You are willing and able now?
A. Yes, sir.
Q. Within a reasonable time, perhaps a very feiv days you can raise the money and pay Mr. Diehl so he can pay Mr. Loveless in cash?
A, That’s correct. Yes, sir.”

The transcript reflects the following testimony by Mrs. M. Coburn, a real estate broker, with whom the property had been listed for sale:

“Q. Now, did you ever have any conversation with Dr. Hart that was here on the stand about the purchase of the place?
A. Yes. Dr. Hart came to my office with —. It was along about Thanksgiving and they wanted to know if the place was listed and I told them we had it listed and he said he would like to buy the place and I thought we were going to perhaps negotiate a deal for it, but he mentioned that he had to —. I mentioned that the way it was set up, it would have to be all cash and he said he could raise the all cash, but he’d have to sell some property or malee arrangements on other property and that he was going back to Kansas and that he would see us a little later. Well, I tried repeatedly to call him on the phone and I never could get him and I didn’t know what happened to him and I heard later that he was trying to buy it through Speaker, so I don’t know if that was a true rumor or not.”

Dr. Hart denied the pertinent statements of this particular conversation, but, to me, his own testimony is sufficient to establish that he did not have $21,000.00 in cash ready for payment to Loveless before December 15, 1959. Under the contract, Diehl had until that date to exercise his option. Loveless testified that Dr. Hart talked with him on December 12 or 13 and discussed buying the place by paying $7,000.00 down, and the balance on terms, but no agreement was reached. Hart did not again talk with Loveless about purchasing the property until after the lease agreement (and option) had expired. Dr. Hart likewise testified that he did not talk with Loveless the second time until December 16.

The majority state,

“The purchasers, according to the great weight of the evidence, expended some $5,000 or more, in money or in labor, in improving the property. Apparently the land in its improved state is worth more than the contract price, for otherwise the sellers would hardly be so strenuously resisting this suit for enforcement of the agreement. To deny specific performance, and to award instead an amount of damages far below the buyers’ expenditures in improving the property, would result in the sellers’ being unjustly enriched for their culpable refusal to carry out their promise.”

I should like to point out that Diehl, entirely voluntarily, wanted to sell this property to Dr. Hart for $22,-000.00, which means, according to the majority statement just quoted, that he would lose $4,000.00 by making the sale. In other words, since he was willing to lose $4,000.00 (if he expended $5,000.00 on the place) there certainly was no reason for this court to go beyond the figure that he was willing to accept himself. Diehl was willing to accept $1,000 more than his purchase price, which was the amount of damages we awarded him. Nor can I see that specific performance is called for either legally or equitably, when the sole beneficiary of this holding by the court will be Dr. Hart, a rank outsider — who never had a contract — who was not a party to the litigation — who suffered no loss — and who, according to my view, never did tender to Loveless the $21,000.00 in cash.

I, therefore, respectfully dissent to the granting of the rehearing.

Ed. F. McFaddin, Associate Justice

(dissenting). I dissent from the opinion of this Court granting a rehearing; and stoutly maintain that the opinion of December 3, 1962, was correct and should stand. In that opinion there was this language:

“Under the situation as it existed in December 1959, the judgment of $1,000.00 gives the Diehls all the relief that a deed from the Lovelesses would have given them. The Diehls admitted that they could not have purchased the property except by obtaining the money through resale to Dr. Hart. He was ready, able, and willing to purchase in December 1959, but was not bound to do so thereafter. Furthermore, the Diehls prayed for damages in the alternative to specific performance, and we conclude that the amount of $1,000.00 is the amount of damages they established in connection with the option to purchase; and this conclusion eliminates any rental claims of the Diehls after December 15, 1959. In thus awarding the clearly established damages in lieu of specific performance, we are exercising the sound discretion which a court of equity has in cases involving-specific performance. Such discretion has been recognized in: Orr v. Orr, 206 Ark. 844, 177 S. W. 2d 915; Cole v. Salyers, 190 Ark. 53, 76 S. W. 2d 669; and Simms v. Best, 140 Ark. 384, 215 S. W. 519. See also Jamison Coal Co. v. Goltra (8th Cir.), 143 F. 2d 889; 154 A. L. R. 1191; and see also 49 Am. Jur. p. 13 et seq., ‘Specific Performance’ § 8 and § 9.”

The present opinion granting the rehearing uses this language:

“Our prior decisions recognize the possibility that in a few unusual situations a court of equity may in its discretion deny the plaintiff the right of specific performance. But the remedy of specific performance, in giving the complaining party exactly what he bargained for, ordinarily affords complete and perfect relief and therefore is usually to be awarded as a matter of course

The opinion quotes from Simms v. Best, 140 Ark. 384, 215 S. W. 519, and Dollar v. Knight, 145 Ark. 522, 224 S. W. 983, following the above quoted language. But the opinion on rehearing fails to quote this language from Dollar v. Knight:

“ It is allowable in the exercise of a sound discretion to deny specific performance ‘ where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities.’ Watkins v. Turner, supra.”

The case at bar comes within the last quotation from Dollar v. Knight, because (a) the case is not clear; and (b) there are considerable countervailing equities. The dissenting opinion of the Chief Justice in this case shows that it is not entirely clear that the Diehls made a sufficient tender of any kind; and there are certainly countervailing equities because the sum of $1,000.00 is all that the Diehls would have gained if they had received the deed under the contract; and to grant them judgment for that amount is to end the litigation. In Watkins v. Turner, 34 Ark. 663, Judge Eakin denied specific performance because the case was not clear.

Furthermore, I desire to make reference to the case of Cole v. Salyers, 190 Ark. 53, 76 S. W. 2d 669, which is more recent than any of the cases cited in the opinion that is granting a rehearing. Cole brought suit for specific performance; there was uncertainty as to the power of the agent to give time for Cole to act. In denying specific performance because of such uncertainty, this Court used this language:

“ ‘Courts of equity have always reserved the right of exercising a sound discretion in suits for specific performance and generally refuse relief where the case is not clear, or where the complainant is in the wrong, or there are considerable countervailing equities. In such cases equity refuses to interfere, and leaves the parties to their rights and remedies at law.’ Watkins v. Turner, 34 Ark. 663; Smith v. Price, 125 Ark. 589, 189 S. W. 167; Dollar v. Knight, 145 Ark. 522, 224 S. W. 983.”

Also in Cole v. Salyers, Cole as plaintiff had, as an alternative to specific performance, prayed for damages. This Court refused damages, not because of the absence of the right of specific performance, but because no damages were shown. The Court said:

‘ ‘ The appellant asked in the alternative, in the event he should not be able to procure specific performance, that he have damages. The proof indicates that, under the prevailing conditions, the value of the property ivas not substantially in excess of $900. That being true, there could be ho damages, even if there were a breach of contract. ’ ’

Original opinion delivered Dec. 3, 1962 (235 Ark. 805).

The plaintiffs’ prayer to the complaint in the case at bar was in this language:

‘ ‘ WHEREFORE, Plaintiffs pray that defendants be required to specifically perform said lease agreement and the option therein contained, and that plaintiffs be adjudged to be entitled to conveyance of said lands from defendants; that, in the alternative, defendants be required to reimburse plaintiffs for expenditures made by plaintiffs in making permanent improvements to and upon said lands in the sum of $7,000.00, and for judgment against defendants for breach of contract in the sum of $2,000.00; for the costs herein, and for all other relief to which they may be entitled. ’ ’

When the plaintiffs prayed for damages as an alternative to specific performance, the court of equity has the right to decide whether to award specific performance or damages; certainly when the case is not clear and when there are countervailing equities, as in the case at bar. Without prolonging this dissent, it is sufficient to say that I stoutly maintain that the opinion of December 3, 1962 reached a practical result in giving the Diehls $1,000.00 as damages, which is all they would have received if the deed had been delivered to them; and the opinion of December 3, 1962, therefore, would have ended the litigation. Now the majority is continuing the litigation by remanding it for further consideration by the Chancery Court.

       Emphasis supplied.

       Emphasis supplied.

       Emphasis supplied.

       Emphasis supplied.


author: Paul Ward, Associate Justice.

text:
    Smith v. Smith.
    5-2929
    365 S. W. 2d 247
    Opinion delivered February 18, 1963.
    [Rehearing denied March 25, 1963.]

      F. G. Grow, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

Pursuant to a petition filed by appellant herein (Minnie Hazel Smith) the Chancery Court of Nevada County, on December 1st, 1958, ordered appellee herein (James Leslie Smith) to pay her $18.75 per month for maintenance. No divorce was asked, and there were no minor children involved. The record discloses that appellee, after being cited for non-payment once or twice, made all payments up to (at least) November 13, 1961.

On the last mentioned date the Chancery Court of Miller County granted appellee a divorce from appellant. Appellant was served with notice of the divorce proceedings and was present when the decree was rendered, but made no objections of any kind, and did not prosecute an appeal from the decree. The decree states that appellant sought no affirmative relief. In other words, appellant did not ask Miller County Chancery Court to grant her alimony or maintenance.

Later, on April 2, 1962, appellant filed a petition in the Chancery Court of Nevada County to punish appellee for failure to make the maintenance payments for the first three months of 1962. The trial court refused to hold appellee in contempt, stating;

“. . . there is no further liability on the part of the Defendant, to pay any other or further alimony to the Plaintiff herein, and he is relieved of any and all liability of any and all kinds, by reason and virtue of the Decree of Divorce heretofore granted in the Chancery Court of Miller County ...”

In prosecuting an appeal from the above order, appellant relies on two points for a reversal which we now discuss.

One. It appears to be the contention of appellant that the Miller County Court, in the divorce proceeding, had no jurisdiction to grant or deny alimony to her since the Nevada County Court had already made her a monthly allowance of $18.75 for maintenance. In Mr. Smith’s complaint for divorce (in Miller County) there appears this allegation: “. . . the Defendant is gainfully employed and has an income of her own and that she is not entitled to any alimony or money judgment of any kind against this Plaintiff.” In her answer to the above allegation Mrs. Smith pleaded “res judicata”, stating the matter had already been adjudicated by the Nevada County Court. The Miller County Court granted Mr. Smith an absolute divorce but did not grant any alimony to Mrs. Smith.

Appellant does not question the jurisdiction of the Miller County Court to grant the divorce, and, since she was personally served, it must be admitted the court had jurisdiction over her person. If Mrs. Smith had asked the Miller County Court for alimony or maintenance the court had jurisdiction to grant or deny the same. In the case of Tracy v. Tracy, 184 Ark. 832, 43 S. W. 2d 539 we said “The general rule is that the final order and decree supersedes an order for temporary alimony. . . .” In Wagster v. Wagster, 193 Ark. 902, 103 S. W. 2d 638, we cited and approved the above statement or rule, and then went on to state:

“That is the general rule where both parties are present, and where the court has jurisdiction over both issues, divorce and alimony. It has, however, never been held by this court that the granting- of a divorce, where no personal service has been had on the defendant, is a bar to the alimony granted by another court that did have jurisdiction over both parties. ’ ’

It follows from what we have heretofore said that the trial court was correct in refusing- to hold Mr. Smith in contempt of court for refusing to continue the monthly payments of $18.75.

Two. In her brief appellant says it is felt that the Second Division Chancellor had no authority to issue any type of order on July 26, 1962. The order referred to is the one (signed by “Ben Shaver, Chancellor Second Division ’ ’) refusing to hold Mr. Smith in contempt. Appellant concedes that Judge Shaver was Chancellor of the Second Division of the Nevada County Chancery Court. Appellant’s objection is based on an instrument signed by the Chancellors of the First and Second Divisions purporting to assign the trial of cases in the Second Division to the First Division after July 1,1962. We find no merit in this contention. In the first place the transfer agreement was for the convenience of the two chancellors, it does not purport to increase or diminish their jurisdiction, and they were at liberty to waive or change its provisions at any time. Moreover, appellant made no objection to the presiding chancellor during- the entire trial. We are reluctant to believe the chancellors meant for one of them to try a case and for the other one to decide it.

Affirmed.


author: Sam Robinson, Associate Justice. Carleton Harris, Chief Justice

text:
    Superior Forwarding Co. v. Southwestern Transp. Co.
    5-2866
    364 S. W. 2d 785
    Opinion delivered February 18, 1963.

      LaTourette & Rebinan, G. F. Gunn, Jr., St. Louis, Mo., House, Holmes, Butler S Jewell, for appellant.

      Lloyd M. Roach, Tyler, Texas, Louis Tarlowslci, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Superior Forwarding Company, a common carrier operating trucks over highways in this State, petitioned the Arkansas Commerce Commission for authority to operate over four specific routes as follows:

No. 1. Between Jonesboro and Little Rock.
No. 2. Between Jonesboro and Stuttgart.
No. 3. Between Corning and Harrisburg.
No. 4. Between Little Rock and West Memphis.

Appellees, other carriers operating in the territory involved, protested the granting of such authority. The Commission granted the petition in part. Appellant was authorized to operate between Harrisburg and Jonesboro, and between Jonesboro and Hoxie. The remainder of the petition was denied.

East Texas Motor Freight Lines has authority to operate intrastate between Little Rock and the Missouri line, through Hoxie. Previously, with approval of the Commission, this permit had been leased to Superior. By reason of this leasing arrangement with East Texas Motor Freight, Superior had authority to operate between Little Rock and Hoxie. The Commission, therefore, did not give consideration to Superior’s petition to operate between those points, and so stated in its order. Since 1959 Superior had been authorized to operate between Little Rock, Hot Springs, Malvern, Pine Bluff, and intermediate points.

There is a practice in the transportation business known as “tacking”. This consists in transportation companies combining rights granted by separate permits so as to enable the carrier to furnish through service to points it is authorized to serve by the separate permits. In other words, by tacking its authority to haul from Harrisburg to Jonesboro, and its authority to haul from Jonesboro to Hoxie, and the authority it had under the lease from East Texas Motor Freight to haul from Hoxie to Little Rock, along with its authority to serve Hot Springs, Pine Bluff, etc., it could furnish straight through service between all those points. That is what happened here, and that is what this appeal involves.

The order of the Commission did not prohibit tacking and therefore, apparently everyone concerned considered that the authority granted to Superior did authorize the carrier to tack, and that Superior intended to do so. In their brief, appellees, the protesting carriers, state: ‘ ‘ Tacking together separate grants of operating authority enables a motor carrier to furnish a through service, if there be a point common to the separate authorities and operations are ■ conducted through a common point, where the certificates contain no restrictions against tacking. Appellant admitted it proposed a tacking of routes, if its application was granted.” (Emphasis ours.) Again appellees state: “In the absence of the Court directed restriction against tacking, appellant would be permitted to operate a through service ... ”. Appellees further state: “Arbitrarily, it [the Commission] refused, in spite of these findings, to specifically prohibit joinder or tacking, thereby granting authority for a through service . . .

Realizing that Superior would be able to tack since that procedure had not been prohibited by the Commission, appellees herein filed a petition with the Commission for a rehearing on that point and asked that Superior be denied the right to tack. The Commission overruled the petition, and by denying appellees’ motion to amend the original order by inserting a provision prohibiting tacking, the Commission made it clear that the authority granted to Superior allowed tacking. Appellees here, appealed to the Circuit Court. There, the matter was heard by the Court on the record made before the Commission and the order of the Commission denying the petition to prohibit tacking by Superior was reversed. Superior has appealed to this Court.

The practice of tacking is manifestly so reasonable and beneficial to the public that it should not be prohibited except in the most compelling circumstances, and such circumstances are not shown to exist here. Ordinarily, it would be useless and utterly ridiculous to require Superior to unload at Jonesboro, freight originating at Harrisburg, and load it on another truck to make the trip to Hoxie, and then unload it again and reload it for the trip to Little Rock, when Superior has authority to operate between all the points mentioned. Of course, it would actually cost a great deal more to handle freight in that manner, and the shipper or consignee would eventually pay the bill.

But, if by tacking Superior would be able to furnish, such competition that in the long run it would not be in the public interest, tacking should be prohibited; mere competition in itself, however, is no sound reason to deny the public the additional service. Atlanta-New Orleans Motor Freight Co. v. United States, 197 F. Supp. 364 (1961). In that case the Court quoted from Norfolk Southern Bus Corp. v. United States, 96 F. Supp. 756, as follows: ‘ ‘ Competition among public carriers may be in the public interest and the carrier first in business has no immunity against future competition. [Citations omitted]. Even though the resulting competition causes a decrease of revenue from one of the carriers, the public convenience and necessity may be served by the issuance of a certificate to a new competitor. ’ ’

Appellees offered no evidence in support of their motion that Superior be denied the right to tack. Their principal argument is that the record shows that the Commission denied Superior the authority to haul straight through because adequate service of that kind was being rendered by appellees. But by tacking, Superior could do the very thing the Commission denied it the right to do. Appellees stated in their brief: “. . . the Arkansas Commerce Commission has specifically found that the public convenience and necessity does not require any service from Jonesboro to Little Rock, and other points served by the appellees, because appellees are adequately and satisfactorily serving the public,

We do not construe the findings and order of the Commission as denying Superior the right to furnish through service; and neither did the Commission so construe its order, as evidenced by the fact that appellees’ petition to prohibit tacking was denied by the Commission. As we construe the order of the Commission, tacking was anticipated, and the denial of that part of appellant’s original petition for authority to haul from Hoxie to Little Rock was due to the fact that Superior already had that authority and would be permitted to tack. In this respect the Commission said: “For practical purposes, applicant holds interstate authority over substantially all of the routes embraced in this application. Vehicles are stationed at all terminals for road and pickup and delivery service. If this application is granted, it is proposed to give overnight delivery service to all points in Arkansas.” The Commission further said: “The record is clear that motor carrier service between Corning, Pocahontas, Newport, Jonesboro and Harrisburg is inadequate to meet the need of present shippers, not to mention the plans of such shippers for expansion of their business. Inasmuch as applicant is presently operating in intrastate commerce between Little Rock and the Arkansas-Missouri State line over U. S. Highway 67 with service at all intermediate points, and the statement of applicant that duplicate operating rights are not sought, no consideration will be given to a grant of authority over said route.” (Our emphasis.)

Moreover, in the Commission’s order in question there is set out some of the evidence considered in granting appellant additional authority. The Commission said: “The representative of a machine products company in Jacksonville [this is between Hoxie and Little Eock] testified he has 21 competitors in St. Louis that get overnight service to Jonesboro. He recently lost a $4,000 job due to inability to guarantee overnight delivery from Jacksonville to Jonesboro. Outbound shipments amount to about 2,000 pounds. The witness is not presently offered single line service which he considers essential to points in Arkansas ivhere his customers are located. [Our emphasis.]

“A manufacturer of shoe lasts located at Walnut Eidge also receives lasts from Jonesboro and Harrisburg to be repaired and returned. Its outbound daily volume amounts to between 2 and 4,000 pounds for Jonesboro, Paragould, Searcy, Harrisburg, Conway, and Eussellville. Presently he is getting better delivery service to St. Louis, Missouri, than to Harrisburg, Arkansas. He requires overnight service and prefers single line service for speed of delivery and redtiction of damage to merchandise.” (Our emphasis.)

The effect of the Commission’s order and denial of the motion to prohibit tacking is that tacking is permitted, and we should not lightly regard the findings of the Commission. This Court in Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, quoted as follows from Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S. W. 2d 716: “ ... it must be remembered that we are dealing with the finding of a tribunal erected by the Legislature for the special purpose of investigating and determining matters of the nature here involved; and the finding of such a tribunal on a fact situation may not be upset by the courts unless the finding is clearly against the weight of the testimony. ’ ’

Appellees cite a long list of cases from other states holding that the authority to tack must be based on convenience and necessity of the public, the same as any other authority is granted the carrier, and that the burden is on the applicant carrier to show such convenience and necessity. Appellant cites federal cases holding that the burden is on the one opposing the tacking to show that it should not be allowed. Our statutes do not specifically cover the point, nor has this Court had occasion to rule on that issue, and we do not reach it now, because by overruling the petition to prohibit tacking the Commission has specifically passed on the question of whether tacking in this case should be allowed and we cannot say that the finding of the Commission in that respect is contrary to the weight of the evidence. It follows, therefore, that the Circuit Court erred in overruling the Commission.

Reversed.

Harris, C. J., and MoFaddin and Ward, J. J., dissent.

Carleton Harris, Chief Justice

(dissenting). By combining certificates already held, and joining routes at the common point; of Hoxie, appellant is enabled to render direct service to Little Rock, Pine Bluff, Searcy, Hot Springs, and numerous other points.

The great weight of state court decisions is to the effect that a motor carrier may not tack or combine certificates having a common point, so as to render a through, service, unless there is proof that public convenience and necessity require the through service, and unless the regulatory commission finds that the public need does require the service. Appellee cites cases from Michigan, Wyoming, Kentucky, Oklahoma, Ohio, New York, Florida, and Pennsylvania, wherein the courts held as above stated. In fact, I find no state decision that holds to the contrary.

I do not consider the proof sufficient to establish that public necessity and convenience require additional service. Five or six witnesses (representing concerns at Jonesboro, Walnut Ridge, Corning, Harrisburg, and Jacksonville) testified to a need for service, but I find no testimony that indicates any need for added service between Jonesboro and Little Rock, Pine Bluff, Stuttgart, Hot Springs, Malvern, Arkadelphia, Searcy, and other points, which Superior can now serve. Several witnesses testified as to the adequacy of the present service that is being rendered by other companies, and, to me, the absence of any testimony for the need of additional service from some of the larger cities mentioned, is rather conspicuous.

In fact, in turning down appellants application for a permit to operate between Jonesboro and Little Rock, Jonesboro and Stuttgart, and other routes applied for, the commission, after summarizing the present service offered by protesting carriers, found as follows:

“As seen, it appears that protesting carriers aré offering adequate service between points on the routes applied for, with the exception of the route between Hoxie-Walnut Ridge, Jonesboro and Harrisburg.”

This finding necessarily included service between the cities mentioned in the first and third paragraphs, and I therefore, am of the opinion that the commission should have prohibited Superior from “tacking.”

It should also be borne in mind that even if there had been proof of the need of additional service, under our decisions, existing carriers must be afforded an opportunity to improve their service, and fail to make such improvement, before a new carrier may be certificated. Fisher v. Jonesboro Transfer Co., 234 Ark. 40, 350 S. W. 2d 516: Mo. Pac. R. R. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Taylor v. Black Motor Lines, Inc., 204 Ark. 1, 160 S. W. 2d 859; Arkansas-Best Freight System, Inc. v. Missouri Pacific Freight Transport, Inc., May 29, 1961; Potashnick v. Fikes, 204 Ark. 924, 965 S. W. 2d 615; Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907. This, of course, has not been done in the present case.

The majority states.

“Appellees cite a long list of cases from other states holding that the authority to tack must be based on convenience and necessity of the public, the same as any other authority is granted the carrier, and that the burden is on the applicant carrier to show such convenience and necessity. Appellant cites federal cases holding that the burden is on the one opposing the tacking to show that it should not be allowed. Our statutes do not specifically cover the point, nor has this Court had occasion to rule on that issue, and we do not reach it noio, because by overruling the petition to prohibit tacking the Commission has specifically passed on the question of whether tacking in this case should be allowed and we cannot say that the finding of the Commission in that respect is contrary to the weight of the evidence.”

I do not quite understand the italicized language for it definitely appears to me, that in permitting appellant the privilege of tacking, the majority is holding that the applicant carrier does not have to show public convenience and necessity. This is, as heretofore pointed out, contrary to every state decision that I have found, and I believe this to be the first state court holding to this effect. Inasmuch as Superior’s operations in this litigation are of an intrastate nature, it would appear that decisions from sister states should be persuasive, rather than decisions in federal cases involving interstate commerce. However, as I interpret the quoted statement of the majority, it likewise is not placing on the protesting carriers the burden of showing that tacking should not be allowed. I am unable to comprehend how this case can be determined without that issue being passed upon. Actually, it seems to me that the majority is passing on the question, and is taking the federal view, but even so, I feel that the testimony introduced by protestants established that the additional service is not necessary, and my thoughts in this connection are substantiated by the finding of the commission itself (heretofore quoted) that the present carriers are offering adequate service.

For the reasons herein stated, I respectfully dissent.

I am authorized to state that Justices MoFaddin and Ward join in this dissent.

       Emphasis supplied.


author: Jim Johnson, Associate Justice.

text:
    Baker v. John Deere Co.
    5-2887
    364 S. W. 2d 802
    Opinion delivered February 18, 1963.

      William H. Drew, for appellant.

      Ghowning, McHaney, Mitchell, Hamilton S Burrow, for appellee.
   Jim Johnson, Associate Justice.

This is a suit by the assignee of eight promissory notes against the obligor for the payment of thrpe of the notes, after the obligor had asked the assignee for the total of all she owed and had paid to the assignee its quoted “pay-off” amount by check marked “payment in full of all indebtedness”, which amount was in fact the total amount owed on only five of the eight notes.

In 1956 and 1957, one Gr. L. Chapman farmed lands owned by appellant, Ophelia Baker. He had purchased farm equipment from Missco Implement Co. in Blythe-ville in 1955 and 1957, and gave three title-retaining promissory notes, which were assigned to appellee, The John Deere Company of St. Louis, and held at Memphis for collection. Chapman had also purchased equipment from Chicot Implement Co. in Lake Village during 1956 and 1957, and gave five notes therefor, which were also assigned to appellee and held at Little Rock for collection. In the latter part of 1957, Chapman abandoned his crop and absconded to Oklahoma, leaving appellant with a mortgage on Chapman’s crops and equipment, and in order to salvage a part of the debt, appellant accepted a bill of sale to this security, including the equipment covered by the notes.

In November 1957, there was about $33,000.00 due on all the notes. In January 1958, appellant paid appellee $11,562.03 and assumed the balance by endorsement of the notes. In December 1958, appellant asked Chicot Implement Co. for the total pay-off amount, who in turn requested this information from appellee’s Little Rock office, who advised Chicot Implement Co. that the net amount due was $16,796.59. Appellant paid this amount by check marked “Payment in full of all indebtedness of Ophelia Baker or Gr. L. Chapman”. About a month later, appellee advised her that it had made a mistake in the pay-off figure by omitting the three notes held in Memphis and requested payment of $3,117.38. After appellant refused to pay this additional amount, appellee filed suit in Chicot Chancery Court, praying that appellant’s account be reopened, corrected and reformed to include the amount of the three omitted notes. The trial court found that there was an account stated between the parties, that the account should be reopened, surcharged and restated because of mutual mistake, and granted judgment to appellee for the amount sued for. From the judgment comes this appeal. ■

For reversal appellant argues primarily that there was an accord and satisfaction. The trial court found that' there are two elements necessary to constitute an accord and satisfaction, which are: (1)' a ' disputed amount involved, and (2) there is a consent to accept less than the claimed amount in settlement of the whole. McMillan v. Palmer, 198 Ark 805, 131 S. W. 2d 943. After a detailed review of the testimony, the trial court found that while a dispute as to the amount may have existed prior to December 1958, concerning certain credits, these credits were forgiven by appellant and that no dispute existed between the parties when appellant gave appellee her check for $16,796.59. The court then found that since there was no dispute between the parties, the second issue, i.e. consent to accept less than the claimed amount in settlement of the whole, was therefore moot. The trial court further found that a mutual mistake existed between the parties, stating that appellee “never agreed to accept or take less than was due it, nor did defendant [appellant] contend, in the final analysis that she owed the plaintiff less than the full amount of the notes.”

Appellant testified, “I wasn’t expecting them to make a mistake and companies like that are not supposed to make mistakes and I took them at their word — I was honest in my part and figured they was too.”

In the landmark case of Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881, this court approved the following definition of a mutual mistake, where each party thought it was receiving everything due it on the contract and that neither consented to take less than what was actually due, but the net result was different, there arose a mutual mistake.

From what has been said relative to the principal points and after a careful review of the complicated record (most of which consisted of depositions) relative to other arguments for reversal, we are unable to say that the Chancellor’s findings are against a clear preponderance of the evidence.

Stricklen v. Mitchell, 234 Ark. 31, 350 S. W. 2d 319.

Affirmed.