author: J. Fred Jones, Justice.

text:
    Lee KNOX v. GOODYEAR STORES, Inc.
    5-5851
    479 S.W. 2d 875
    Opinion delivered May 8, 1972

      Dan McCraw, for appellant.

      Curtis L. Ridgeway Jr., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Lee Knox form an adverse decision of the Garland County Circuit Court apparently on a summary judgment in favor of Goodyear Stores, Inc. in a replevin action, The appellee, Goodyear Stores, Inc., sold a television and a lawn mower to Knox under time payment contracts and retained a security interest in the merchandise. Knox defaulted in payments and Goodyear filed suit in replevin. The lawn mower could not be found but possession of the television was delivered to Goodyear under bond.

Knox filed an answer denying the validity of the contract and alleging usury as a defense. He also alleged that Goodyear failed to properly comply with terms of the Federal Truth-in-Lending Act. A pre-trial order was entered wherein the court, among other things, found:

“That the parties appeared by counsel for pre-trial and agreed to try the case before the court sitting as a jury.
That the parties stipulate that defendant may proceed by the filing of a Motion for summary judgment which, if granted would permit defendant to recover the TV set or its value and if such Motion be not granted then plaintiff shall recover on its complaint and the possession of the merchandise sold defendant.”

This stipulation added nothing to Knox’s right to file a motion for summary judgment, but in any event, he did file a motion for summary judgment without supporting affidavit. The motion alleged that the contract was usurious on its face; that the exhibited contract constituted the entire transaction between the parties and that there were no other material facts in controversy. The motion then contradicted itself with this statement:

“A further fact question is raised herein under the said Federal Law pertaining to the recovery by the defendant of a reasonable attorney’s fee.”

Then follows an affidavit of Knox’s attorney as to the services he had rendered his client.

In response to the motion for summary judgment, Goodyear filed an affidavit stating that its agent had made an error in calculating the interest on the contract, and that there were disputed questions of fact raised by the pleadings and to be determined by the court. Goodyear then filed an affidavit of Ed Hogaboom, a public accountant, stating that an attached report of an examination of the Knox account for Goodyear is correct to the best of affiant’s knowledge and belief. The report to Goodyear was to the effect that all of the Knox contracts had been examined by Mr. Hogaboom and after giving credit for unearned finance charge in the amount of $58.25, there was less than 10% interest actually charged Mr. Knox on his account.

It would appear from this affidavit and report that Hogaboom had examined all items in the account of Knox with Goodyear over a considerable period of time and concluded that when the finance charges on all the purchases were averaged out and proper credit given for unearned finance charges, the overall interest charges on all the purchases amounted to less than ten per centum per annum.

Hogaboom did not testify and Knox filed a motion to “quash” the affidavit together with the attached report. Upon this state of the record the trial court entered judgment as follows:

“On this 3rd day of August, 1971, defendant’s Motion to Quash and defendant’s Motion for summary judgment came on to be heard upon the pleadings and other matters and things, from which the court finds:
1. That defendant’s Motion to Quash plaintiff’s response to defendant’s Motion for Summary Judgment should be overruled and denied.
2. That plaintiff’s contract with defendant was not usurious.
3. That defendant’s Motion for Summary Judgment should not be granted.
IT IS, THEREFORE, ordered and adjudged that plaintiff be and is hereby entitled to possession of the GE color T.V., M923EMP, 0036 14867, taken under Writ of Replevin issued herein and that the plaintiff is the lawful owner thereof.”

The appellant Knox designated the following points for reversal:

“The court erred in overruling the appellant’s motion to quash appellee’s response to appellant’s motion for summary judgment.
The court erred in finding that the contract was not usurious.
The court erred in not giving relief to the appellant under the Truth-In-Lending Law.”

Goodyear argues that its contract with the appellant was not usurious, and that even if one isolated sales contract may appear on its face to be usurious, usury cannot be charged unless an illegal interest rate was intentionally imposed. Goodyear then argues as follows:

“The appellant attempts to single out one transaction from many transactions between Goodyear Stores, Inc. and the appellant, Lee Knox to support his position that the transaction in question was usurious. The case in the lower Court was decided upon Motion for Summary Judgment with supporting affidavits, and the appellee calls the Court’s particular attention to the Affidavit of Hogaboom and Keck, Certified Public Accountants, contained in T.37 through T. 40. According to this analysation, Mr. Ed Hogaboom, after careful examination of the various contracts executed between Lee Knox and the said Goodyear Stores, Inc. found that Mr. Knox was not in fact charged a rate of interest which was in excess of ten percent of the unpaid principal balance.
We must assume that the trial Court gave particular significance to this Affidavit and found factually that a usurious rate of interest was not charged. Certainly, since no testimony was taken, there is nothing in the record of this case to indicate that the Court was in error in its determination.
It must be pointed out that this is not the usual case that comes before this Court under attack for usury, and clearly the Court cannot close its eyes to the total contractual' relationship existing between the parties when a claim of usury is made.
Appellant therefore submits that the anaylsation of the contractual relationships between appellant and appellee as made by Mr. Ed Hogaboom is correct, and that the lower Court’s opinion is clearly supported by the evidence and therefore should be affirmed.”

We have difficulty in following Goodyear’s reasoning in this argument. We are only concerned with one contract alleged to be usurious in this case, and of course the burden of proving usury rests on the one alleging it. But when such proof is made or when a contract is usurious on its face, the burden shifts to the one who would sustain its validity in proving it is not usurious. Nineteen Corp. v. Guaranty Financial Corp., 246 Ark. 400, 438 S.W. 2d 685. Goodyear continues its argument as follows:

“Even though one of the Contracts between appellee and appellant appears on its face to be usurious, there is no evidence that usury was actually intended or that any effort was ever made to collect a usurious rate of interest.
The Contract in question, which forms the basis of appellant’s appeal, is the Contract between the appellee and the appellant for a G.E. color T.V. which appears at T.15. The writer finds it impossible to demonstrate to this Court how this error occurred without attaching additional documents to this Brief.”

In support of this argument Goodyear attached, as appendix to its brief, a copy of what purports to be a chart it uses in figuring finance charges in Arkansas. This chart was not offered in evidence at the trial and there is no testimony in the record relating to it. Goodyear simply invites us to examine the chart for a determination of how its salesman erred in figuring the interest charged to Knox in the contract and from which Mr. Hogaboom apparently concluded, and so advised Goodyear, that the contract was not usurious.

We certainly agree with Goodyear’s statement that “this is not the usual case that comes before the court under attack for usury,” but we do not try law cases de novo on appeal. Even if we did so, we would not know where to begin in this case because both parties seem to agree that there are unresolved and controverted questions of fact in this case. We certainly cannot accept the conclusion of law reached by Mr. Hogaboom in his report to Goodyear as determinative of the issues of usury in this case. Knox filed a motion for summary judgment which was resisted by Goodyear and the motion was denied. The parties agreed to try the issues before the court without a jury. Goodyear did not file a motion for summary judgment but apparently summary judgment was rendered in favor of Goodyear on the affidavit of Hogaboom that he had examined the account books of Goodyear and after giving proper credit for unearned interest on the account of Knox, had reported to Goodyear that the account was not usurious.

Our summary judgment statute, Ark. Stat. Ann. § 29-211 (Repl. 1962) is an adoption of Rule 56 of the Federal Rules of Civil Procedure, and summary judgment will only lie where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weathers v. Springdale, 239 Ark. 535, 390 S.W. 2d 125. Where there are essential issues of fact still unresolved the record does not justify a summary disposition of the litigation. Griffin v. Monsanto Co., 240 Ark. 420, 400 S.W. 2d 492.

Where justiciable issues are present and unresolved, the pleadings are not subject to a motion for summary judgment and the case should be tried as to the unresolved issues on the merits. Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646. The object of procedure for summary judgment is not to determine an issue, but to determine whether there is an issue to be tried; Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76, and the denial of a summary judgment in favor of the one requesting it does not call for a summary judgment in favor of the one opposing it.

We conclude that this case must be reversed and remanded to the trial court for trial on its merits.

Reversed and remanded.

Fogleman, J., not participating.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    J. W. WHISENHUNT et al v. PIKE COUNTY BOARD OF EDUCATION et al
    5-5883
    479 S.W. 2d 854
    Opinion delivered May 8, 1972

      Dan McCraw, for appellants.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellees.
   Conley Byrd, Justice.

Appellants J. W. Whisenhunt, Louis Smith and Kenny McGrew filed an affidavit for appeal from the actions or nonactions of the Pike, Hot Spring, Garland and Montgomery County Boards of Education. Attached to the affidavit was a petition signed by thirteen persons alleged to be qualified electors of Glenwood School District No. 43 of Garland, Pike and Hot Spring Counties. The petition requested that Caney Township of Montgomery County be annexed to the Glenwood School Disctict No. 43. The record of the proceedings before the Garland County Board of Education was certified and filed. Since the other County Boards either refused to act or took no action at all, appellants petitioned the trial court to issue a writ of certiorari to the Pike, Hot Spring and Montgomery County Boards for a record of the proceedings before them in regard to the petitions. The trial court denied the request for the writ of certiorari.

Upon appeal appellants assert that since their petitions were being presented pursuant to Ark. Stat. Ann. § 80-414 (Repl. 1960), they were entitled to the writ of certiorari as a matter of right. We do not agree. As we read Ark. Stat Ann. § 80-414 County Boards of Education are only required to act in two instances — i.e. (1) they must consider formation of a district upon a petition of a majority of the qualified electors in the area affected, and (2) they may call an election upon petition of ten percent of the qualified electors in the territory affected. Here neither the affidavit for appeal nor the petition for writ of certiorari alleges any facts that would require any action on behalf of the County Boards involved.

Affirmed.


text:
    James STROUTHERS v. STATE of Arkansas
    5702
    479 S.W. 2d 870
    Opinion delivered May 8, 1972
    [Rehearing Denied June 5, 1972.]

      Louis W. Rostek, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant James Strouthers was charged with murdering Marshall Stout. The jury found him guilty of murder in the first degree. For reversal he contends:

“I. The Court erred in admitting the confession of the defendant, and in giving State’s Requested Instruction No. 1-A as to the admissibility of said confession.
II. The Court erred in admitting into evidence a cigar box with an alleged hole that purportedly came from the defendant’s alleged pistol.
III. The Court erred in refusing Defendant’s Requested Instruction No. 3, and in giving State’s Requested Instruction No. 2 and No. 8 which failed to include a finding of Murder in Second Degree or Manslaughter.”

The record shows that Marshall Stout’s body was found in a pool of blood near the front door of his liquor store a little after 10:00 p.m. on October 6, 1970. Investigation by the police revealed a trail of blood from near the rear of the store to the front, blood on the wall near a telephone and on the telephone itself, and that cause of death was a bullet wound in the right upper chest through the arm pit.

Billy Joe Pye testified that appellant dated his twin sister. He was with appellant in North Little Rock around October 1, 1970, and appellant sent him to Stout’s liquor store to rob Mrs. Stout. As a result of an altercation with Mrs. Stout, he was sent to the Pulaski County Penal Farm from October 6th to October 26th. After he was arrested, appellant told him that he was going to kill Mr. or Mrs. Stout because Pye was arrested for something he didn’t do. The next time appellat saw Pye, he told Pye he had killed Mr. Stout.

Appellant when first arrested was given the Miranda warnings and refused to sign a waiver of his rights. The next day he made known his desire to make a statement. As a result thereof, Sergeant Gene Barrentine called in Mrs. Faye McGlochlan, a clerk typist, and took a statement from appellant.

According to the statement appellant admitted going into the store and telling Mr. Stout to hand him a bottle of whiskey. When Stout turned around to get the bottle, appellant put a gun on him and informed him that it was a holdup. He got about a hundred dollars. After making sure there was no more money in the cash register, he shot Mr. Stout while standing two or three feet from him. He and Betty Sue Pye then ran out the front door. They heard Mr. Stout shoot one time. After running out the front door, they went east on Broadway, ran through an alley and ducked across the railroad tracks to Jones High School.

Robin Davis of McGehee, on October 6th had parked his diesel truck rig at either 3rd or 2nd at Cornish, almost in front of an alley, to fill out his log book. While there he heard a shot and thereafter saw appellant and a woman running down the alley. He placed the time as being about 25 minutes before 10:00 p.m.

POINT I: The trial court held a Denno hearing on the voluntariness of the confession and found that the confession was voluntary. In addition, the trial court submitted the voluntariness of the confession to the jury. We find no merit in the contention that the court erred in admitting the confession. The evidence on the issue of voluntariness is sufficient to sustain the trial court’s finding. Furthermore, no error was committed in also submitting the issue to the jury. See Hall v. State, 242 Ark. 201, 412 S.W. 2d 603 (1967).

POINT II: The trial court did not err in admitting the cigar box into evidence. The record shows that it was a prosecution theory that the .25 claiber slug found in the door casing first passed through the cigar box and that the slug was fired by Stout. To substantiate that theory Sgt. Don Spear fired a .22 shot through the lid of the box at close range. There is nothing in the record to support appellant’s contention that the alleged hole purportedly came from his gun’s slug.

POINT III: Prior to Act 124 of 1971, Ark. Stat. Ann. § 43-2152 (Repl. 1964), required that in the case of premeditated murder the jury must determine whether the accused be guilty of murder in the first degree or murder in the second degree. See Walton v. State, 232 Ark. 86, 334 S.W. 2d 657 (1960). However, Act 124, supra, repealed the above statute. Under this state of the law. a trial court does not err in refusing an instruction on a lesser degree of an offense when the evidence does not justify the giving of such instruction. See Gilchrist v. State, 241 Ark. 561, 409 S.W. 2d 329 (1966). Upon the evidence in the record, appellant was either guilty or not guilty of premeditated murder. We can find no evidence to justify giving an instruction on any lesser degree of murder.

Affirmed.


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

text:
    Winfred C. MULLEN v. Lois Thompson WAFER, Executrix, Estate of Rufus W. WAFER
    5-5873
    480 S.W. 2d 332
    Opinion delivered May 8, 1972
    [Rehearing Denied June 19, 1972.]

      Floyd J. Lofton, for appellant.

      Howell, Price, Howell ir Barron, for appellee and cross-appellant.
   Frank Holt, Justice.

The appellant instituted this action for rescission of a written contract between him and appellee’s deceased husband. The Chancellor denied rescission, found the contract to be severable in its terms, and reduced the agreed purchase price for Wafer’s accounting business. From that decree appellant brings this appeal and appellee cross-appeals. For reversal appellant contends that the contract is completely unenforceable because it is one for personal services. On cross-appeal appellee asserts that the contract is enforceable in its entirety.

The deceased, Rufus Wafer, was a public accountant. On August 19, 1969, appellant and Wafer made a written agreement “preliminary in nature” by which appellant purchased Wafer’s “accounting business and equipment including all accounts in connection therewith” being conducted by Wafer from his offices. It was agreed that subsequently the parties would “execute a security agreement note covering this transaction.” The purchase price was $30,000. A down payment of $5,000 was made at the time of this written agreement and the $25,000 balance was “to be paid annually on or before April 16 of each year beginning in 1970 and continuing for a period of five years.” Wafer, the seller, agreed “to remain active in the accounting business with buyer [appellant] for a period of two years during which time Buyer shall pay” Wafer an annual salary of $1,625 to be paid at the rate of $125 per week “for thirteen consecutive weeks beginning January 1, 1970 and January 1, 1971.” Further it was agreed that Wafer would receive 1/2 of the income from any new business which he brought to appellant, and this percentage would apply as long as the new account continued with appellant. Wafer also agreed “to cooperate fully with the Buyer if effecting a satisfactory transfer of accounts including introduction of Buyer to clients and giving all encouragement possible to the continuation of business relations.”

It appears from the oral argument that on December 1, 1969, or about 3 1/2 months after the written agreement, Wafer moved from his offices and business address and began occupying offices with appellant. From the record it appears that on January 1, 1970, in accordance with their preliminary agreement, appellant and Wafer executed additional writings which consisted of a promissory note for the $25,000 balance and a security agreement. The latter acknowledged Wafer to have a security interest in all the equipment, supplies and accounts he had sold to appellant “and all additions and accessions thereto” to secure the balance of the purchase price reflected in the promissory note. The note was payable in annual installments in accordance with the terms of the original agreement. Less than a month thereafter, or on January 27, 1970, Wafer died. Thereupon appellant filed his complaint seeking a rescission of the contract of sale and cancellation of the note on the basis that the contract was contingent upon Wafer providing personal services and that Wafer’s death made performance impossible. The appellee answered and counter-claimed for specific performance of the contract. Appellant’s demurrer to appellee’s counter-claim was denied and following a trial on the merits of the case, the Chancellor reduced the $25,000 purchase price balance to $12,500.

In reply to appellant’s argument that the contract is unenforceable because it is one for personal services, the appellee asserts that the contract provides only for the sale of the accounting business and the transfer was performed and effected before Wafer’s death. Appellee argues that the only personal characteristics of the contract consisted of Wafer’s agreement that he would work for appellant as a salaried employee for 2 years and Wafer would receive 1/2 of the income from any new business he brought to appellant. Appellee contends that these aspects of the contract were not “conditions precedent to the transfer of the business.” Neither the appellant nor the appellee on cross-appeal favors us with an abstract of the testimony. The appellant designates the pleadings and decree. Both parties rely upon the written instruments to support their respective contentions.

The contracts before us consist of the preliminary writing on August 19, 1969, and the note and security agreement dated January 1, 1970. When we analyze these writings, we are of the view that it was contemplated by the parties that the contract embodied and provided for the personal services of Wafer, the seller. We have long recognized the principle that when parties contract for personal services the death of one who is to render these services will result in the contract being unenforceable. Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S.W. 622. There we stated:

“It is a well settled principle in the interpretation of contracts that where parties contract for a service that is purely personal, or with reference to the continued existence of some particular thing constituting the subject matter of the contract, if the person dies or the thing ceases to exist, then the performance of the contract will be excused because impossible...”

See also Collins v. Woodruff, 9 Ark. 463. In 17A C.J.S., Contracts § 465, the general rule is:

“Contracts to perform personal acts are considered as made on the implied condition that the party shall be alive and capable of performing the contract, so that death or disability, including sickness, will operate as a discharge, termination of the contract, or excuse for nonperformance. . .”

In the case at bar, the contract provides for the sale of a professional accounting business with the understanding that the seller would remain active in the business and assist the buyer for two years. Beginning January 1, 1970, the seller was to receive an annual salary of $1,625, which was to be paid at the weekly rate of $125 during the first 13 consecutive weeks of each of the 2 years. We think this specific provision for this particular period of time is significant because it coincides with the time of the year when income taxes are due and payable. It is during this time, of course, that the servicing of an accountant’s customers’ accounts for income purposes is particularly important. Furthermore, the $5,000 annual payment was due on or before April 16 of each year. This provision also reflects the importance of this period of time to the parties. Inasmuch as Mr. Wafer died on January 27, 1970, or within a month following completion of these writings, we must hold that his death cancelled the personal services aspect of the contract. Of course, his death at this time made it impossible to “cooperate fully” with appellant in effecting “a satisfactory transfer of accounts,” which included introduction of Wafer’s clients to appellant and “giving all encouragement possible to the continuation of business relations” (emphasis added). Appellant specifically contracted for Wafer’s services for a period of two years.

In the circumstances, we agree with the Chancellor that the contract is severable and can be apportioned. See Jones v. Gregg, 226 Ark. 595, 293 S.W. 2d 545 (1956); Harris Lbr. Co. v. Wheeler Lbr. Co., 88 Ark. 491, 115 S. W. 168 (1908); Duffie v. Pratt, 76 Ark. 74, 88 S.W. 842 (1905); Collins v, Woodruff, supra. Therefore, the sale of the physical assets for the separately agreed contract price of $4,682.20 is enforceable. It appears that these physical assets consisted of office equipment and supplies necessary in appellant’s accounting business. The contract being unenforceable with reference to personal services and enforceable with respect to the sale of the physical assets, the decree is accordingly affirmed as modified.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I would affirm this decree without modification. This appeal was brought here on an abbreviated record. The record designated consisted only of the pleadings, the orders and decree of the chancery court. The first point for reversal has to do only with alleged errors in the overruling of appellant’s demurrer to the complaint. The other points for reversal are:

II. The Court erred in awarding damages to the counterclaimant, because the writings do not provide for such a remedy.
III. The Court erred in not construing the writings against the author, to-wit, Mr. Wafer.
IV. The Court erred in finding that the Contract for personal services was severable.

The agreement between the parties contained the following clauses:

Seller agrees to sell and Buyer to buy the accounting business and equipment including all accounts in connection therewith presently being conducted by Seller from his offices at Pyramid Life Building, Little Rock, for the sum of Thirty Thousand Dollars ($30,000.00), Five Thousand. Dollars ($5,000.00) to be paid down, receipt of which is acknowledged, and Five Thousand Dollars ($5,000.00) to be paid annually on or before April 16 of each year, beginning in 1970 and continuing for a period of five years. # # #
In the security aggrement to be executed all equipment, supplied and accounts shall secure the payment of the purchase price. * * *
It is further agreed that fifty percent of the income of all new business brought in by Seller at any time hereafter shall be paid to Seller for such period as that account shall continue as part of the business of the Buyer.

The security agreement contains the following:

Winfred C. Mullen, Northeast Corner of Fifth and Victory Streets, Little Rock, Arkansas (hereinafter called “Debtor”), for a valuable consideration hereby acknowledged, hereby grants to Rufus W. Wafer, (hereinafter called “Security Party”), a security interest in the following property and any and all additions and accessions thereto (hereinafter called the “Collateral”):
All equipment, supplies and accounts (from Wafer & Co.) to secure payment of the Total Debt of Twenty-five Thousand Dollars ($25,000.00), and all extensions and renewals thereof; all other indebtedness at any time hereafter owing by Debtor to Secured Party as well as the discharge of all obligations imposed upon Debtor hereunder.

Clearly, the equipment, supplies and accounts purchased were not personal services.

The record brought up and the arguments made, both in appellant’s brief and in oral argument, show that appellant was contending that the decree should be reversed as a matter of law. I do not agree that it should be and cannot agree that the matter before us is only a question of law.

In the court’s decree, I find the following:

* * * from the evidence taken ore tenus at the bar of the Court, the Court doth find that the provisions of the contract sued upon are severable and that the rescisión of the contract and cancellation of the note as prayed for by the plaintiff should not be granted; that plaintiff was an experienced businessman and was aware that Mr. Wafer was getting along in years, had heart trouble, and that it would not be expected that the business would pay for itself within one year.
The Court further finds that while the death of Rufus W. Wafer does not vitiate the contract, that plaintiff was not properly servicing some of the accounts and was not properly crediting income from the accounts to Wafer in the bookkeeping; that while an exact computation is not possible under the present existing proof, the Court finds that in equity plaintiff should have the benefit of a reduction in the purchase price by reason of Rufus Wafer’s inability to assist the plaintiff in bringing his customers to the plaintiff and assist him in keeping them. That the contract price should be reduced in the total sum of $12,500100 and that defendant should have judgment on her cross-complaint for the balance due under the contract — namely, $12,500.000

In my opinion, no one can say as a matter of law that the contract was one for personal services only or that the contract was not severable. The question whether a contract is one for personal services is to be determined from all the facts and circumstances of the particular case. This rule is expressed in Carlock v. LaSalle Extension University, 185 F. 2d 594 (7th Cir. 1950). That case is so closely parallel to this, that I think it should govern. If so, I do not see how*the majority arrives at the modification. Not only is it necessary, in order to do so, to say as a matter of law that the contract was for personal services, except for the sale of equipment and supplies, but also it requires overlooking the fact that the accounts of Wafer and Company were sold.

While it is true that we will indulge no. presumption that the portions of the record omitted from an abbreviated record without objection support the action of a trial court, it is necessary, that the appellant bring up sufficient record touching upon the points urged by him to demonstrate error. Statutory provision for abbreviation of the record certainly should not relieve the appellant from demonstrating that error from the record before the court. While we cannot presume that those portions of the record not before us support the findings of the trial court, we cannot presume that they do not, as the majority has done. From the record before us, I cannot say that the chancellor made an incorrect determination. See Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 442.

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


author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. W. F. LEMLEY et al
    5-5884
    479 S.W. 2d 855
    Opinion delivered May 8, 1972

      Thomas B. Keys and Kenneth R. Broom, for appellant.

      Williams ir Gardner, for appellees.
   Frank Holt, Justice.

In this eminent domain proceeding, the appellant acquired certain lands from appellees which were necessary in the construction of Interstate 40 and its facilities. A jury awarded $14,500 as just compensation to appellees. For reversal of that judgment, the appellant asserts that the trial court erred in permitting a witness, Roy Jackson, on re-direct examination, to testify regarding a sale he had made to the City of Morrilton, and, also, that the court erred in not striking the before value figure of this witness.

Appellee Jackson was one of the owners of the property acquired by appellant. On direct examination he gave his opinion as to just compensation. On cross-examination, the reasonable basis for his valuation was tested by the appellant. Then on re-direct examination, he was asked if he had recently sold land to the City of Morrilton. He replied that the city had paid him $400 an acre for some land for right-of-way purposes approximately 3/4 of a mile from the property in litigation. Also, that “It was a voluntary sale, nothing forced about it[.]” and the transaction was not a condemnation proceeding. Following appellant’s objection to the testimony, the court then questioned the witness with reference to the similarity of the land sold to the City of Morrilton and the land in litigation. Upon re-cross examination, the landowner was asked if the sale to the city entered into his thinking about the value of the land in this present action. “Well, it’s comparable land, and I didn’t set the price. They set the price.” The court overruled the appellant’s objection as to the admissibility of the appellees’ evidence and permitted the testimony to be considered by the jury. We must agree with the appellant that this was prejudicial error.

The rule is firmly established that the price paid by a condemnor is inadmissible in establishing the fair market value of other lands acquired in a condemnation proceeding. Yonts v. Public Service Co. of Ark., 179 Ark. 695, 17 S.W. 2d 886 (1929). There the rationale of this rule is stated:

“. . .Evidence showing what the [condemnor] seeking to condemn has paid for other lands would probably be taken by the jury as indicating the market value, when, as a matter of fact, it does not tend to show the market value of the land. A [condemnor] condemning land might be willing to give more than it was worth and the owner of land might be willing to take less than it is worth, that is, less than its market value, rather than have a lawsuit. Moreover, when a [condemnor] seeks to get land or condemn it for public uses, having the power to condemn, the landowner would probably come to some agreement with him rather than have a lawsuit, and this agreement would show a compromise rather than the market value of the land.”

In other words, this is not a true sale transaction between a willing buyer and a willing seller which is necessary to establish a fair market value of the lands. In the case at bar, the incompetent evidence was not elicited on cross-examination by the condemnor as occurred in Arkansas Power & Light v. Harper, 249 Ark. 606, 460 S.W. 2d 75 (1970). There we held the condemnor was not in a position to complain about a situation it created. Since the inadmissible evidence in the case at bar was adduced by appellees it was clearly contrary to our well established rule, and we must reverse the judgment and remand the cause.

Reversed and remanded.


author: Carleton Harris, Justice.

text:
    Andrew EASTRIDGE, Sr. v. The RELIABLE LIFE INSURANCE Company
    5-5887
    480 S.W. 2d 131
    Opinion delivered May 15, 1972

      Arnold if Arnold by: William Lavender, for appellant.

      Atchley, Russell, Hutchinson if Waldrop by: Dale Edwards, for appellee.

      Lloyd R, Haynes, for appellants.

      Carpenter, Finch if McArthur, for appellees.
   Carleton Harris, Justice.

Appellee, Reliable Life Insurance Company, issued four life insurance policies on the life of Andrew Eastridge, Jr., the policies reflecting Andrew Eastridge, Sr. as sole beneficiary. Young East-ridge had applied for the policies and signed the application on July 23, 1970, and the application was forwarded to the insurance company’s home office by the agent who had taken the application, John M. Gibson. The company required its local agents to collect two weeks premiums in advance before submission of application, but this particular application was forwarded to the company without Mr. Gibson collecting the advance premiums. The home office issued the policies and Gibson’s local account was debited in the amount of $5.08, representing two weeks premiums, and the policies were forwarded to Gibson on or about July 51, 1970. Gibson still had not collected any money to cover his debit, and he did not deliver the policies. On the morning of August 2, 1970, Andrew Eastridge, Jr. died in an automobile accident. Claim was made to appellee for the insurance proceeds, but the company denied the claim and filed an action in the Miller County Circuit Court seeking a declaratory judgment declaring that the company had no liability to Andrew Eastridge, Sr. upon the life insurance policies in question. Eastridge answered, denying the allegations and counterclaimed seeking the policies’ proceeds, and asserting that young Eastridge had paid to an agent of the company all premiums due; that the policies were in full force and effect on the date of the death of Andrew Eastridge, Jr. The case was tried before a jury and a verdict returned for appellee. From the judgment so entered, appellant brings this appeal. For reversal, only one point is relied upon, viz, “The lower court erred in refusing to give defendant’s requested interrogatory, said interrogatory asking the jury to determine if plaintiff’s course of conduct in debiting their agent’s account amounted to a payment of a due premium”.

After completing the court’s instructions to the jury, the court gave an interrogatory reading as follows:

“Ladies and gentlemen of the jury, do you find that on, or about, July the 31st, 1970, Andrew Eastridge, Jr., did pay to an agent of Reliable Life Insurance Company the initial premium on the policies of insurance which has been issued to him on July the 27th, 1970.
Answer ‘yes’ or ‘no’. There is a spot for each answer.”

Appellant requested an additional interrogatory as follows:

“If the answer to Interrogatory No. 1 is no, do you find that Reliable Life Insurance paid the premium due by making a debit to the account of agent John Gibson?”

The court refused this interrogatory.

Gibson testified that young Eastridge signed the application for the policies on the 23rd of July, and that the application was sent in on the 25th, a Saturday morning. He said that no premium had been collected because Eastridge told him, when making the application, that he didn’t have the money at that time, but if Gibson would return the following Monday, he (Eastridge) would pay him. Gibson said that he returned the following Monday, but that Eastridge still did not have the money, and he went back on the 31st of July to collect the premium of $5.08 but Eastridge said “he still didn’t have the money”. No premium receipt was ever given to East-ridge since he never did pay the premium. Gibson stated that when he learned that Eastridge had been killed, he went to his immediate supervisor, Paul Dowd, and told him that no premium had ever been collected on the policies and the two of them felt that it would be cheating the company to not mention the matter; the company, whose home office is at Webster Grove, Missouri, was notified.

There is no dispute but that the company required the advance payment of the initial premium, although it appears that some agents would send in an application without collecting the premium, though not advising the company of that fact. In his brief appellant argues several theories, and cites the case of Southern Farm Bureau Casualty Insurance Co. v. Mitchell, 229 Ark. 964, 319 S.W. 2d 830, such case holding that an agent’s oral promise to issue a written policy on a truck constitutes a binding agreement. That case is no authority in the instant litigation at all. In the first place, there is no evidence anywhere in the record that Gibson told Eastridge that the policies would be issued and the premiums would be collected later. In Southern Farm Bureau, Gibbs was a general agent and had the power to bind his principal by an oral promise to insure the truck. Also, in the present case, the theory of a waiver of the initial premium by the company is advanced. Again, such an argument contains no merit for the company could not waive something that it knew nothing about, and it never learned that the initial premium had not been paid until notified by the Texarkana office, which was after the death of Eastridge. Not only that, but Gibson was only a soliciting agent, and accordingly could not have bound the company. A “Course of Business” theory is also argued by appellant, but it can readily be seen that the interrogatory sought embraces no such contention. In addition, this case was tried solely on the proposition that the premium had been paid by young Eastridge to Gibson. Of course, the jury verdict settled that question adverse to appellant.

It is apparent from reading the requested interrogatory that it embraces no theory of waiver or course of business. Neither does it incorporate the theory of a third party (the agent Gibson) paying the premium for the applicant and extending personal credit to the latter (and there is no proof at all to this effect). To the contrary, the interrogatory inquires of the jury if they found Reliable Life Insurance paid the premium due. In fact, it would not appear that the form of the interrogatory is consistent with any recognized manner of satisfying the requirement of premium payment, and it is quite confusing, in that it requests the jury to find whether the Reliable Life Insurance paid Eastridge’s premium to Reliable by the debit entry. The court did not err in refusing this interrogatory.

Affirmed.

      James Dillard, Manager of the Reliable Life Insurance Company at Texarkana, explained the debit charge: "Every application that comes to the home office are charged back to the agent on his life register.” He said that the company doesn’t “keep an eagle eye on every one of them and every application that’s turned in, and ask them did you collect” but that the home office does assume “that any applications that come in, are collected on, and are automatically charged to him.”

      Mike Easley, a friend of the deceased, testified that Eastridge borrowed five dollars from him to pay his insurance, and he saw young Eastridge hand Gibson the five dollar bill. This was emphatically denied by Gibson.


author: George Rose Smith, Justice.

text:
    UNITED STATES FIDELTY & GUARANTY CO. v. Willis B. SMITH, Jr.
    5-5891
    480 S.W. 2d 129
    Opinion delivered May 15, 1972

      Atchley, Russell, Hutchinson ir Waldrop by: Victor Hlavinka and Charles M. Bleil, for appellant.

      Smith, Stroud, McClerkin ir Conway by: Willis B. Smith Sr. and R. Gary Nutter, for appellee.
   George Rose Smith, Justice.

This is an action brought by the appellee upon an automobile insurance policy which provided coverage for loss by fire but contained an exception exempting the insurance company from liability for loss caused by a mechanical breakdown or failure. At the trial the principal question — one of fact— was whether the loss fell within the main coverage or within the exception. The trial'court, sitting without a jury, found for the plaintiff. The appellant contends that there is no substantial evidence to support the finding of liability.

There is no dispute about the controlling principles of law, which were stated in a somewhat similar case: Standard Acc. Ins. Co. v. Christy, 235 Ark. 415, 360 S.W. 2d 195 (1962). The plaintiff’s proof having established a prima facie case, the insurer then has the burden of showing that the loss falls within the exemption contained in the policy, that being an affirmative defense. Hence the question here is whether there is any substantial evidence to support the trial court’s finding that the loss was not caused by a mechanical breakdown or failure.

A prima facie case of liability was presented by the plaintiff’s testimony that firé broke out under the hood of his vehicle after he had driven a distance that appears to have been from 15 to 20 miles. Smith testified that before the flames appeared there had been no red lights or anything else to indicate that the car, a Jeep, was not operating properly.

The defendant’s theory was that damage to the interior of the engine has been caused not by fire but by an overheating that resulted from a mechanical failure, the thermostat in the cooling system having failed to open. One of the insurer’s own witnesses, however, testified that if a stuck thermostat had caused the engine to overheat, the ensuing pressure would have forced the water out of the radiator. It is admitted that after the fire there was still water in the radiator. The same witness also stated that he did not think the car could have been driven from 15 to 20 miles with the thermostat stuck. Those statements leave the cause of the damage in such doubt that the trial court’s rejection of the insurer’s affirmative defense cannot be said to be contrary to all the substantial evidence in the record.

The appellant also contends that the trial judge should have allowed the witness Tucker to state his opinion, as an expert, that a test conducted after the occurrence showed the thermostat to have been defective. The determination of the qualifications of an expert witness lies within the discretion of the trial court. Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968). Here the witness Tucker, upon being closely questioned with respect to his qualifications, was unable to cite any training or experience that clearly qualified him as an expert with respect to the question at issue. We are unable to say that the trial court abused its discretion in refusing to receive Tucker’s opinion in the matter.

The judgment is affirmed, with an award of an additional $300 attorney’s fee to the appellee.


author: Lyle Brown, Justice.

text:
    McILROY BANK v. FIRST NATIONAL BANK OF FAYETTEVILLE
    5-5897
    480 S.W. 2d 127
    Opinion delivered May 15, 1972

      Ball ir Gallman, for appellant.

      Paul Jameson, for appellee.
   Lyle Brown, Justice.

This is a contest between two banks to determine which, if either, is entitled to the proceeds of a judgment taken in favor of a creditor who was indebted to both banks. The appeal is taken from a finding by the chancellor that appellee had priority under the Uniform Commercial Code.

In September 1964 Mr. Carney became indebted to Mr. Watson and executed a note for $2,500. Watson delivered the note to appellee, First National Bank, as one of several items of security for a substantial loan. A security agreement and financing statement were executed and the note was listed therein. The note was a negotiable instrument; there was nothing on the face of the note which might give notice to anyone that it was security for a debt owed First National.

In August 1969 First National permitted Watson to withdraw the note from its files, presumably for the purpose of collection. A little over a year later, Watson obtained judgment against Carney on the note. McIlroy Bank learned of the judgment and forthwith initiated garnishment proceedings against the judgment because Watson was delinquent in a large debt to McIlroy. First National intervened in the garnishment proceedings, asserting its secured interest in the note which was the basis of the Carney judgment.

We think that when First National surrendered possession of the note it lost the security interest it previously held.

Ark. Stat. Ann. § 85-9-304 (1) (Add. 1961) provides that “A security interest in chattel paper or negotiable' documents may be perfected by filing. A security interest in instruments (other than instruments which constitute part of chattel paper) can be perfected only by the secured party’s taking possession, except as provided in subsections (4) and (5).” Looking at subsections (4) and (5) to discover what the exceptions to possession would be for perfecting an interest in an instrument we find that those sections only pertain to temporary perfection (21 days). Since Watson had possession of the Carney note for more than a year, those subsections would not apply. In § 85-9-304, comment 1, it is recited: “With respect to instruments subsection (1) provides that, except for the cases of ‘temporary perfection’ covered in subsections (4) and (5), taking possession is the only available method [of perfection].” Then § 85-9-305 provides, “. . . A security interest is perfected by possession from the time possession is taken without relation back and continues only so long as possession is retained, unless otherwise specified in this Article (chapter).” Under § 85-9-302, Purpose of Changes 3, the comment is that “under this Article. . . filing is not effective to perfect a security interest in instruments. See Section 9-304 (1).” The term “instrument” is defined, among other things, in § 85-9-105 (1) (g) as a negotiable instrument.

First National next argues that if it did not have a secured interest it did have a valid equitable assignment of the note. Watson, upon transfer of the note back to him, held it for over a year and reduced it to judgment without the knowledge of First National. He therefore retained exclusive control of the note, which action would be contrary to First National’s contention that it had an equitable assignment. Additionally, the UCC does not permit assignments of negotiable instruments. Under §§ 85-3-201 — 208, the note must be transferred or negotiated.

First National next contends that McIlroy cannot reach the judgment by garnishment. We have held in two cases that a judgment debtor (in this case Carney) is not subject to the process of garnishment of the judgment. Trowbridge & Jennings v. Means, 5 Ark. 135; Tunstall v. Means, 5 Ark. 700. In Trowbridge this court said: “But we are clearly of the opinion that, after the rendition of judgment against a debtor, he is not subject to garnishment.” First National’s position is correct. We do not agree with appellant that the cited cases have been limited by St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 349, 3 S.W; 56 (1886). That case was not concerned with a final judgment.

Finally, First National argues that the UCC does not apply to a right represented by a judgment, citing § 85-9-104 (h). Mcllroy argues, and rightly so, that every incident which would come within the provisions of the Code occurred prior to the judgment. Watson did not obtain the judgment against Carney until January 1971, and thus it would be from that date forward that the Code would not apply.

Succinctly summarizing, First National lost its priority by surrendering possession of the negotiable instrument and, secondly, Mcllroy’s garnishment of the Carney judgment is of no avail.

Reversed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    Martha Sheffield WHATLEY and Betty Sue Sheffield WRIGHT v. Louise CORBIN
    5-5877
    480 S.W. 2d 142
    Opinion delivered May 15, 1972

      Young ir Patton, by: Nicholas H. Patton, for appellants.

      McKay, Chandler & Choate, for appellee.
   John A. Fogleman, Justice.

Appellants ask us to reverse the decree of the chancery court confirming the validity of a deed from J. Glen Sheffield (now deceased) to his sister Louise Corbin and his wife Imogene Sheffield. Appellants are the surviving daughters and sole heirs at law of Sheffield. They contended in the chancery court that the deed was not supported by valuable consideration and that the grantor was not competent to execute the deed. They contend here that the chancellor’s findings are not supported by the evidence. Appellants do not argue, however, their point as to consideration. It is sufficient to say that, in the absence of fraud or undue influence, a voluntary conveyance which consititutes a present grant is not invalid as between the parties and their privies. McCuiston v. Rollman, 243 Ark. 668, 420 S.W. 2d 925; Cannon v. Owens, 224 Ark. 614, 275 S.W. 2d 445; Ferguson v. Haynes, 224 Ark. 342, 273 S.W. 2d 23; O’Connor v. Patton, 171 Ark. 626, 286 S.W. 822.

Appellants had the burden of showing by clear, cogent and convincing evidence that the grantor in the deed did not have sufficient mental capacity at the time the deed was executed to enable him to exercise reasonable judgment concerning the matter of the execution of the deed in protecting his own interests. Braswell v. Brandon, 208 Ark. 174, 185 S.W. 2d 271; Richard v. Smith, 235 Ark. 752, 361 S.W. 2d 741.

We have consistently followed this oft-reiterated rule stated in Pledger v. Birkhead, 156 Ark. 443, 246 S.W. 510:

If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory without prompting the extent and condition of his property and to comprehend how he is disposing of it and to whom and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.

We have carefully reviewed the evidence as abstracted and are unable to say that the chancellor incorrectly held that appellants failed to meet their heavy burden. No useful purpose would be served by a detailed review of the evidence. Appellants relied almost entirely upon the testimony of J. B. Rochelle, III, M. D., who testified regarding medication given Sheffield during his last illness from notes made by nurses at the hospital and who had almost no recollection of the patient’s condition or of any visits to or conversations with him. The treatment began on November 4, 1968, nearly four months before the execution of the deed. This physician entered Sheffield in a hospital on January 3, 1969, for a stay ending January 17, 1969, following diagnosis of a lung cancer which had spread to his esophagus and liver. Sheffield was again admitted to the hospital on February 7, 1969, and remained there until he died on March 2, 1969. Medicines prescribed for him would have had a sedative effect on the usual person and some of them would blunt the memory for near-term effects. The dosage indicated on the date the deed was signed could have affected Sheffield’s judgment and would have caused the doctor to question his ability to reason, and, in the doctor’s opinion, in all reasonable medical probability, Sheffield’s judgment would have been impaired. While notes indicated that Sheffield was in a semistuporous state on February 20, 1969, there were no notes indicating the existence of such a condition on February 25, 1969. The doctor did not advise Sheffield of his condition prior to his entering the hospital and did not think that he did thereafter. He did not know what effect the medication had on Sheffield. When he saw Sheffield on three occasions between hospital stays, he found Sheffield capable of understanding what this doctor talked to him about. While he talked to Sheffield during daily visits to him in the hospital, he could not recall what he talked to Sheffield about, or whether Sheffield talked or not. He found that sedation administered did not affect Sheffield as it would a normal person. He could not say that the medication did blunt Sheffield’s near-term memory. The doctor visited Sheffield on the day the deed was executed, but did not recall any conversation, and could not testify as to his mental condition on that day. Dr. Rochelle could not say that the medication he prescribed was actually administered, except that he would have noticed if less narcotics than he prescribed had been given.

Appellee, the sister of Sheffield, who was a grantee in the deed, testified that he was very alert on the occasions when she visited him.

A secretary for Sheffield’s lawyer related that Sheffield specifically asked the lawyer to omit the property which was the subject of the deed in question from a will prepared for Sheffield and signed by him on January 29, 1969, because he intended to make other disposition of it. The deed was later prepared in this lawyer’s office and taken to the hospital by this secretary, who testified that it was signed in her presence. She took his acknowledgment and said she would not have done so it she had thought he did not know what he was doing. She had known him for 10 years.

Sheffield’s mother stated that one of his daughters, an appellant here, did not invite him to the daughter’s wedding, did not mention his name in connection with it and did not come to his funeral. She said that Sheffield, between hospital stays, had told her that he was going to will his town property to his wife and deed the other property to his wife and his sister Louise Corbin. She said that he had deliberately refrained from taking sedation on this occasion so that his mind would be clear, and had “walked the floor all night” until advising her of his decision about 2:00 a.m.

Richard C. Allen, pastor of St. James Episcopal Church in Texarkana, testified that he had baptized Glen Sheffield two days after the execution of the deed. He had visited Sheffield in the hospital almost daily. On these visits he found Sheffield responsive to him and the subjects of his conversation. He testified that even when heavily sedated Sheffield responded upon being “roused.” He said that he would not have proceeded with the baptism if he had not thought Sheffield knew what he was doing.

Since we cannot say that the evidence of lack of mental capacity is clear, cogent and convincing, the decree is affirmed.


text:
    Mr. and Mrs. Homer RABJOHN, Mr. and Mrs. Jack B. DeLILLE, Mr. and Mrs. Joe L. COOPER v. Lloyd ASHCRAFT and Cynthia A. ASHCRAFT
    5-5879
    480 S.W. 2d 138
    Opinion delivered May 15, 1972

      Lloyd R. Haynes, for appellants.

      Carpenter, Finch & McArthur, for appellees.
   John A. Fogleman, Justice.

This appeal arises from a decree settling a boundary dispute. Appellants contend that appellees had not acquired title to the contested strip by adverse possession, that appellees had slept too long on whatever rights they had and that appellants had gained title by adverse possession, if not otherwise.

Appellees acquired title to the east four acres of the SEM SE!4 SWA of Section 2, T 1 S, R 13 W by deed dated September 13, 1955. Testimony that they had been in possession under a contract to purchase since 1947 is not disputed. The area in dispute lies along the western boundary of this tract. It consists of a strip approximately 8.4 feet wide running the entire length of this boundary. A survey made for appellees discloses that their tract contains more than four acres if the disputed strip is within their boundaries. The chancery court’s decree found that appellees’ contention as to the location of the boundary was sustained by the evidence that the boundary between appellees’ property and that of the respective appellants, each of whom owns a tract lying immediately west of the Ashcraft land, was located along an old fence line as portrayed on the plat of the survey made for appellees. In the chancellor’s findings at the conclusion of the trial, he specifically found that appellant’s predecessor in title built the fence, regarding it as the property line and that subsequent conveyors of the properties regarded the fence line as the property line, so that the boundary had become fixed long before either Rabjohn or DeLille purchased the respective tracts they own.

The surveyor for appellees, Orson Jewell, testified that when he made the survey on April 2, 1970, he found an old fence line 264 feet west of the eastern boundary of the Ashcraft tract, evidenced by a few old posts and some strands of barbed wire. Jewell said that the old fence posts with barbed wire lay along the strip where the Cooper property and the Ashcraft property adjoined. None of the posts was along either the Rabjohn or the DeLille property. He did find an old crosstie in line with the fence posts and barbed wire implanted in the ground at the extreme southern boundary with about five feet of the post above ground level. He could not recall any fence attached to it, but assumed that it was a fence post. He found iron pins where chain link fences had been placed by Rabjohn and DeLille, approximately 8.5 feet east of the line the surveyor designated as the old fence line.

George Fox testified that he had owned a six-acre tract which included the lands of all the appellants until he sold it to Otis Conway around 1950. Fox said that the Ashcraft tract was owned by a man named Holland when Fox owned the six acres west of it. There was no fence between the two tracts when Fox bought the six acres, but he built a wire fence, using a tape to measure distances. According to Fox, Holland had established corners marked by pins in the ground before the fence was erected, and he put the fence post near the pin on Holland’s southwest corner. He said that the fence, consisting partially of barbed wire and partially of hog wire, was still there when he left the property. Fox also testified that during his ownership he discovered that some surveyors had located the property line a few feet west of the fence. He reported this fact to Ashcraft and gave his consent to movement of the fence to this new line, but said that the fence was in its original location when he left the property and that, as far as he knew, it was never moved.

Otis Conway testified that he bought the six-acre tract in 1953 and sold acres to Joe Mann in 1962 and the balance to appellant DeLille in 1969. He confirmed Fox’s testimony that the fence was there when he purchased the property and that Ashcraft mowed grass up to the fence. He also testified that there was no dispute about the line until Mann had the property surveyed in 1962. Conway said that he showed both the survey line and the old fence line to DeLille when the latter purchased the tract he now owns. Conway said that the fence was falling down at that time, and was in bad shape when he made the sale to Mann. He stated that he had maintained the area adjacent to the fence, but never went over the fence. Conway regarded the fence as the boundary up until 1962 and told Mann so at the time of the sale to him.

Ashcraft testified that the fence was in place when he first moved onto the property he purchased from Holland, and that he subsequently maintained the fence. He said that he had set the crossties on the line and nailed the fence to them. He claimed that the fence was still there when DeLille purchased his property and that DeLille removed the fence and built his own chain link fence. Ashcraft said that the fence line was first questioned after Mann had purchased the property to the west and new survey “stobs” were put down. He said that no owner objected to the fence as the property line, prior to occupancy by Rabjohn, Cooper and DeLille.

Mann described the fence as a “drift fence.” He said that there was a wire of some kind there, but that he stacked lumber and built a road and a water line into the disputed portion and tore down the old fence in 1962 without objection by Ashcraft. Rabjohn testified that when he purchased his property in 1965, the eastern boundary was covered with growth, and that the old fence was there but not standing. He said that the posts were rotted and lying on the ground and part of the wire was completely absent. His fence has been in place for six years. Later Ashcraft told him that the fence was on the Ashcraft property.

DeLille found one strand of wire running from a pole into rocks and underbrush when he purchased his tract in 1969. He said that the only wire he found was in two little muscadine vines. He admitted that before his purchase Conway told him that Fox had built the fence. He testified that Conway said he owned the fence. When DeLille walked around the property before his purchase, he found a crosstie near one corner of the property and another near his northern boundary.

Appellants contend that seven years had not elapsed between the date of appellees’ deed in 1955 and the filing of the plat of Mann’s survey in 1962 and that in his testimony Ashcraft never stated that he intended to claim any land other “than what he actually thought was his.” For these reasons, appellants contend that Ashcraft failed to establish adverse possession. Even if we could say that appellants were correct in these contentions, they overlook the fact that the chancellor’s decree is not based upon Ashcraft’s adverse possession, in spite of the fact that there was considerable evidence which might have supported such .a finding. It seems clear to us that the decree is based upon a finding that the George Fox fence constituted an agreed boundary or boundary by acquiescence.

The proprietors of adjacent lands may establish a binding arbitrary boundary line, by agreement, which may be parol. Vaughn v. Chandler, 237 Ark. 214, 372 S.W. 2d 213; Deidrich v. Simmons, 75 Ark. 400, 87 S.W. 649. Such an agreement becomes binding if the location of the true line is in doubt or dispute, and the parties enter into possession pursuant to it, even though their possession does not extend for the full statutory period of seven years. Vaughn v. Chandler, supra; Moeller v. Graves, 236 Ark. 583, 367 S.W. 2d 426; Robinson v. Gaylord, 182 Ark. 849, 33 S.W. 2d 710. The agreement need not be express, but it may be inferred from long-continued acquiescence of the parties and occupation according to such line, or from other actions of the parties. Kittler v. Phillips, 246 Ark. 233, 437 S.W. 2d 455; Barnes v. Young, 238 Ark. 484, 382 S.W. 2d 580; Vaughn v. Chandler, supra; Robinson v. Gaylord, supra; Deidrich v. Simmons, supra. Quite apart from the inference of some parol agreement, a boundary may also be established by adjoining owners by acquiescence in a clearly established line as the boundary over a period in excess of seven years, whether preceded by a dispute or uncertainty as to the line or not and without the necessity of adverse user to the line. Vaughn v. Chandler, supra; Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S.W. 2d 836; Morton v. Hall, 239 Ark. 1094, 396 S.W. 2d 830. See also, Kittler v. Phillips, supra; Clay v. Dodd, 238 Ark. 604, 383 S.W. 2d 504; 12 Am. Jur. 2d 621, Boundaries, § 86. Whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line and thus apparently consent to that line, it becomes the boundary by acquiescence. Palmer v. Nelson, 235 Ark. 702, 361 S.W. 2d 641. When the adjoining owners occupy their respective premises up to the line they mutually recognize and acquiesce in as the boundary for a long

period of time, they and their grantees are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one, although it may not be. Seidenstricker v. Hiltzendorff, supra; Tull v. Ashcraft, 231 Ark. 928, 333 S.W. 2d 490. See also, Gregory v. Jones, 212 Ark. 443, 206 S.W. 2d 18; Harris v. E. B. Mooney, Inc., 211 Ark. 61, 199 S.W. 2d 319; Robinson v. Gaylord, supra; 11 C.J.S. 656, Boundaries, § 84.

Since the location of a boundary is a disputed question of fact, we must affirm the decree, unless the chancellor’s finding is against the preponderance of the evidence. Kittler v. Phillips, supra. We cannot say that it is in this case.

The fact that appellees were in possession under a contract of sale until they received a deed does not diminish the effect of the mutual acquiescence of appellees on the one hand and Fox and Conway on the other, even though the Ashcrafts’ acquiescence might not have been binding on their vendor. The contract of sale created an equitable estate in the Ashcrafts. Holland was only a constructive trustee holding the naked legal title for the Ashcrafts, and was required to convey it to them upon payment of the purchase price. McKirn v. McLiney, 250 Ark. 423, 465 S.W. 2d 911. Their actions while‘in possession of the tract under the contract, insofar as the parties here are concerned, were as binding as if they had held the legal, as well as the equitable, title.

We find no merit in appellants’ contention (relying upon Riley v. Norman, Admr., 39 Ark. 158) that appellees slept on their rights too long. This, we take it, is an effort to invoke the doctrine of laches although the question involved in Riley had to do with the statute of limitations. Laches does not come into play prior to the running of the statute of limitations, in the absence of some intervening equity which requires application of the doctrine. Vesper v. Woolsey, 231 Ark. 782, 332 S.W. 2d 602. Cooper did not plead laches. He is in no position to assert error in this respect. See McKim v. McLiney, supra; T. M. Dover Mercantile Co. v. Dover, 187 Ark. 859, 62 S.W. 2d 971. While Rabjohn and DeLille pleaded both defenses, DeLille did not acquire his property until 1969, and Rabjohn purchased his tract in February or March of 1965. The Rabjohn fence was erected in May 1965, and the DeLille fence was erected after June of 1969. Ashcraft objected to each soon after the respective fences were erected. His suit was filed in April 1970.

Laches depends upon more than a mere lapse of time. We find no evidence on the part of appellants showing how appellees’ delay in bringing suit worked to the disadvantage of appellants by any change of circumstances or relations of the parties or caused any loss of evidence so that the enforcement of the claim asserted in this suit became inequitable. On this state of the record we find no reason for a bar for laches. Me Kim v. McLiney, supra.

We likewise find no merit in appellants’ argument that appellees were barred by adverse possession beginning with the platting of a subdivision by Mann, the stacking of lumber and placing water lines and a roadway onto the strip by Mann and the erection of the fences by Rabjohn and DeLille. We find no indication that appellants raised this defense in the trial court. Even if it were not too late to raise this defense on appeal, we could not say that appellants had met their burden of proving it by a preponderance of the evidence.

The decree is affirmed.

       Sec Havlik v. Freeman, 214 Ark. 761, 218 S.W. 2d 364.


text:
    Wilma A. BISHOP v. Charles G. BISHOP
    5-5872
    480 S.W. 2d 145
    Opinion delivered May 15, 1972

      Branscum, Schmidt ir Mazzanti, for appellant.

      Spitzberg, Mitchell 6- Hays, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Wilma A. Bishop from a divorce decree rendered in favor of Charles G. Bishop upon his complaint against her in the Pulaski County Chancery Court.

According to the pleadings and evidence of record, the parties were married in 1951 following their courtship while married to their former spouses, and on the same day, or in the day following, Mr. Bishop’s divorce from his former spouse. The serenity of Mr. and Mrs. Bishop’s marriage to each other was interrupted by turbulent episodes which increased in number and severity until finally on May 1, 1968, they separated and have not lived together since that date. The Bishops had three children, a daughter 18 years of age and married; a daughter 17 years of age and in college, and a son 15 years of age. The children continued to live with their father following the separation and the two younger children were living with him at the time the present suit was instituted.

Mrs. Bishop filed suit for divorce in July, 1968, and Mr. Bishop apparently filed a counterclaim. The counterclaim is not in the record but the complaint simply alleged general indignities, not specifically set out. The chancellor denied a divorce to either party in that case under a finding that the evidence as to the alleged grounds for divorce did not preponderate in favor of either party. In that case the chancellor awarded a continuance of $300 per month maintenance money previously awarded to Mrs. Bishop.

The present action was filed by Mr. Bishop on August 31, 1970, alleging indignities occurring both prior and subsequent to May 1, 1968, and also alleging that Mrs. Bishop had not lived with him since deserting him without cause on May 1, 1968. Mrs. Bishop filed an answer and counterclaim in which she denied the allegations contained in the complaint and in which she alleged indignities on the part of Mr. Bishop. She prayed for continuation and increase in separate maintenance. On July 9, 1971, she amended her complaint and in addition to separate maintenance she prayed in the alternative, that should a divorce be granted, it be granted to her together with an award of her property rights. On August 3, 1971, Mr. Bishop, by leave of the court, amended his complaint specifically alleging three years’ separation.

The chancellor found that Mr. and Mrs. Bishop had intentionally lived separate and apart without cohabitation for three years. He found that in addition to the three years’ separation as ground for a divorce to either party, Mr. Bishop had also established additional grounds for divorce but he awarded the decree to Mr. Bishop because he in effect found, that Mr. Bishop was the injured party and Mrs. Bishop was not entitled to the statutory property award to which she would have been entitled had the divorce been granted to her and Mr. Bishop had not been the injured party. The chancellor found, however, that Mr. Bishop had withdrawn the sum of $12,000 from a joint checking account in a bank and he ordered Mr. Bishop to restore to Mrs. Bishop one-half of this amount in the sum of $6,000. The chancellor directed that Mr. Bishop continue to manage and collect rents on certain rental property held by the parties as an estate by the entirety and to remit to Mrs. Bishop one-half of the net rental income from the property. The chancellor also awarded $200 per month to be paid as alimony to Mrs. Bishop, said payments to continue during her life or until her remarriage or further orders of the court.

On appeal to this court Mrs. Bishop designated the points she relies on for reversal as follows:

“1
Where in a previous hearing for divorce the Court finds neither party is entitled to a divorce, and enters a decree for separate maintenance, subsequent trial of divorce for purposes of finding fault should consider only issues occurring subsequent to the decree of separate maintenance as all previous issues as to fault are res judicata.
2
The Court’s failure to award the wife the divorce and an equitable property settlement was against the preponderance of the evidence and an abuse of discretion.
3
Plaintiff’s testimony about a majority of the issues was uncorroborated except for the testimony of two of the three children who were obviously biased and prejudiced against their mother.
4
Failure of the Court to order a master to determine the value of the husband’s property previous to decreeing a property settlement where extensive commercial property is involved and the wife is not financially able to hire appraisers, constitutes an abuse of discretion.
5
Causing á warrant for arrest to be issued as the only new grounds for divorce, where the Court in a previous decree had found neither party entitled to a divorce, is not sufficient to deprive the wife, who has raised three children to near maturity, of a reasonable and equitable property settlement.”

The conclusion we reach on the first point also disposes of the last two.

Point 1

When both parties were denied a divorce in 1968, they had only been separated approximately two months and the three years’ separation was not a ground alleged or relied on by either party. The fifth statutory ground for divorce as set out in Ark. Stat. Ann. § 34-1202 (Supp. 1971) provides that a divorce may be granted where either party “shall offer such indignities to the person of the other as shall render his or her condition intolerable.” This was the ground alleged in the 1968 action and it was on this alleged ground that the chancellor found the evidence did not preponderate in favor of either party. The question before the chancellor in that case was which of the parties, if either, offered such indignities to the person of the other as to render his or her condition intolerable. The chancellor in that case, unlike the chancellor in the case at bar, was not concerned with the question of who was the injured party, under the seventh statutory ground for divorce in § 34-1202 which is as follows:

“Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby amended, or both.”

The case of Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620, contained facts almost on all fours with those in the case at bar and our decision in that case was adverse to Mrs. Bishop’s contentions under her first point here. We do not belabor this opinion by extensive quotes from Narisi but in that case we held that evidence found insufficient for the granting of a divorce on grounds of indignities is not res judicata when offered in proof as to who is the injured party for the purpose of determining property rights between the same parties in a subsequent divorce action based on three years’ separation. In concluding the opinion in Narisi we said:

“In view of all of the foregoing, there can be no doubt that the Trial Court in the first instance, and this Court on appeal, possesses broad powers, not only as to alimony, but as to property rights, when the divorce is granted to either party under the seventh subdivision of § 34-1202, Ark. Stats. * * *
. . . [W]e have reviewed the entire record in this case, along with Mrs. Narisi’s offer to prove, and also the entire record in the first Narisi case. We have concluded that the allowances made by the Chancery Court for Mrs. Narisi are fair and just under all of the circumstances existing.” (Emphasis added).

We conclude, therefore, that Mrs. Bishop’s first point is without merit.

Point 2

Mr. Bishop owned and operated a service station and it appears from the record that Mrs. Bishop had a considerable appetite and capacity for beer and a considerable doubt as to Mr. Bishop’s fidelity to his marriage vows. The record also indicates that Mr. Bishop went to extreme measures, at least on one occasion, in attempting to force Mrs. Bishop to return to their home and live with him. In her testimony Mrs. Bishop summed up her version of their difficulty as follows:

“Q. . . . explain some of the problems that you and Mr. Bishop were having prior to your separation.
A. Well, all I can say is one word. Women.”

Mrs. Bishop testified that her husband operated a service station and would never come home until late, and that she had seen him with other women. She said that she never could get him home on time for meals and when he did get home he would accuse her of nagging. She said that Mr. Bishop’s work at the service station required him to work late, but that when she would call the service station he was never there. She testified that soon after she and Mr. Bishop were married he got drunk one night and bragged about the women he had been to bed with. She said she didn’t know when these affairs took place but they occurred after Mr. Bishop was married to his first wife. Mrs. Bishop then testified, in part, as follows:

"Q. All right. Now, getting on up to the date that you actually separated, the night. Would you tell us what happened, Mrs. Bishop?
A. Well, he was late coming in from the station, and I had called over there and he admitted this to me. He wanted me to understand that he had taken this woman home. His idea was that he visited her father and it was about eleven o’clock when he came in, and we got into quite an argument , and I asked him to leave, and he started, and Brenda said, ‘Well, if he goes’ — she was crying — she said ‘If he goes I am going.’ * * * So, he said he wasn’t going anywhere. That is all he wanted, was for me to say that, and I said, ‘Well, if you don’t, then I will,’ and I did, and I drove — got into the car and took a few things, and drove down to my sister’s, got down there on May the first, around six o’clock.
Q. Now, where does she live?
A. She lived in Pineville, Louisiana.”

Mrs. Bishop testified that when she went to her sister’s home in Louisiana, she did not want Mr. Bishop to know where she was because he had threatened to kill her on many occasions and she was afraid of him. She testified that within about a month she returned to Little Rock and rented an apartment near the service station Mr. Bishop operated. She said that her sister and her mother and a friend, Mrs. Houchin, knew where she was living at that time; that she talked to her children by telephone but did not give them her telephone number or address because she was afraid Mr. Bishop would find out where she was and she did not want him to find her. She said that she obtained a job and worked for approximately six weeks and that Mr. Bishop learned where she lived through an automobile agency in Searcy where she had purchased an automobile and that Mr. Bishop and their son came over to where she was living. She said that Mr. Bishop whispered to her out of the hearing of their son that she would be sorry for her actions and that on the following day, which was sometime in October or November following their separation in May, he came to her apartment and she then testified as follows:

“. . . he burst in the door and started beating me and said that I had bought a tank of gasoline for a man in Bald Knob, and I tried to reason with him, and I couldn’t. He tried to smother me. He choked me. He did everything there was to do, and I finally knew that he was going to kill me, so I just agreed to go with him. He said, ‘You are going back over there and raise those children, so I agreed to go with him, and I said, ‘The girls and I will come back and I will move this stuff.’ ”

Mrs. Bishop testified that following this incident she filed her original suit for divorce and she offered in evidence some photographs which had been placed in evidence at the original trial, showing bruises on her face and arms caused by her altercation with Mr. Bishop on this occasion. She testified that after this confrontation with Mr. Bishop she agreed to return home and did so, she then continued her testimony as follows:

"Someone, he or Mary one, took the stuff out of my car or his, and just piled it in the kitchen floor, so when he got — he left, and I didn’t know where he was and I called the station and they said he just left, and about that time he came in, and when he came in, I said, ‘If you don’t want people to see your handiwork,’ I said, ‘Go get me some beer.’ I wasn’t going— I didn’t know where he was—
Q. Where were you at this time?
A. We were back at 6012 Mablevale.
* # *
... so he left and got some beer and came back and opened it, and I was drinking a diet cola. I told him I didn’t want it, so he picked up my drink and drank that, and then I got the beer' and put it back in the refrigerator and didn’t touch it. When he left I called Mrs. Houchin, and told them what happened, and they came over and got me, or I followed them back to their house.
* * *
Q. Well, now, what happened?
A. He found out from the children that I wasn’t there, so he reached over and — he said that in his testimony —he reached over and got his guns and came down there with two loaded guns.
*.y. Jf. *JF "7r
Q. Mrs. Bishop, you were at the Houchins now?
A. Yes. I was at the Houchins, is what I am telling now. He came down there with two loaded guns, a forty-five and a thrity-eight, and he wanted me to come out of the house, and Mr. Houchin told him that I didn’t want to go, and Elmo had gotten his gun out and just left it standing, and I picked it up and took it to — the gun to Elmo. He is a small man and Charlie could easily overpowered him, but he knew that he could use the gun, so he didn’t attempt to. He just stood there with this loaded gun, and in the meantime we had tried to get an Order for his arrest or whatever you call it, and the office of the District Attorney’s office was closed, so when he appeared we called the police and they came out and it was one of his friends, and by that time Dorothy had gone around and persuaded him to unload the guns, and the guns were unloaded when the police got there.”

Mrs. Bishop then testified as to displays of affection between Mr. Bishop and his niece. She said that she and Mr. Bishop had the sum of $12,000 in a joint bank account and that Mr. Bishop drew it out. She testified that Mr. Bishop’s former wife had been previously married and her husband was killed by a burglar. She testified that Mr. Bishop, among others, had been questioned in connection with the matter and on cross-examination Mrs. Bishop testified that Mr. Bishop had told her he was taken in and questioned in the matter and then Mrs. Bishop testified as follows:

“Q. How many times, on the basis of that knowledge, Mrs. Bishop, have you told your children that their father was a murderer?
A. I did not tell ’em until, oh, recently. Recent years, I think.
Q. Well, how many times before you separated from him in 1968 did you make that statement to them?
A. I don’t recall. I may have told them one time, but I don’t recall everything I told — any—
Q. And, it based on — ? Excuse me.
A. —any more than — They have not been told very many times.
Q. But, it was based on the same information you have given about it, that you have given the Court?
A. Well, I looked it up in the paper.
Q. All right. Now, why would you tell the children; that is Mr. Bishop’s children, is that right?
A. They are our children.
Q. Yes. Why would you tell his children and your children that their father was a murderer?
A. Well, the stories that he was going ¿round telling on me.
Q. What was he telling on you?
A. He was telling th¿t I was an alcoholic, and that I was running around and I was crazy, and he told— and he was telling—
Q. Who was he telling these things to?
A. Neighbors and friends.
Q. But, you told his children that he was a murderer; is that right, in retaliation?
A. I told them exactly what I said here, that they were taken in, he and Irene were.
Q. But, did you tell the children, actually use the term ‘murderer’ in talking to your children?
A. I probably did.
Q. And, you did that in retaliation, you say, for Mr. Bishop’s telling neighbors and friends that you were an alcoholic and you were crazy; is that right?
A. No, it wasn’t in retaliation. I just—
Q. I thought you said it was because—
A. I thought they should know it.
Q. Why did you think they should know?
A. So they would know what kind of man he is. Q. Their father?
A. Yes.”

On cross-examination Mrs. Bishop testified that on May 1 when she and Mr. Bishop separated he got home around 11 O’clock at night and when she inquired where he had been, he told her that a friend’s daughter had left an automobile at the service station to be repaired; that he had taken the daughter home and had visited awhile with her father who had just returned from the hospital following an operation. She said she checked out his story and it was not true. Mrs. Bishop also testified that after she left Mr. Bishop he employed a divorcee as a housekeeper; that she lived in the home with Mr. Bishop and the children and on one occasion Mr. Bishop took her on a hunting trip.

Mr. Bishop testified that his and Mrs. Bishop’s marital difficulties were caused by her drinking beer to excess and unjustly accusing him of chasing around with other women. He testified that Mrs. Bishop consumed approximately 18 cans of beer a day and on different occasions would call him at the service station where he worked and request him to come home and bring beer. He testified that Mrs. Bishop constantly and falsely accused him of having affairs with other women and as to the occurrence on the date of their spearation Mr. Bishop testified that about 8:50 a daughter of a friend of his brought a pickup truck into his service station to have some work done and that he suggested to her she leave it to be worked on the following day and that he agreed to drive the young lady home. He said that he did drive her home and visited awhile with her father who was ill and had just returned from the hospital. He said that he went home about 10 o’clock and when he got there, he could tell that Mrs. Bishop was angry and that after he went to bed she raised up on one elbow and he then testified as follows:

“. . . she raised up on one elbow, and said, ‘who in the H— were you out with tonight?’ I said, ‘Oh, mother, I been working hard.’ I said, ‘Please don’t start that stuff again,’ and she said, ‘Don’t give me that,’ and she hauled off and kicked me like a kangaroo with both feet, and tried to kick me out of the bed almost and struck back like that with my arm. I knocked her feet back just like that and I said, ‘I don’t do that.’ And, she said, ‘Why in the — don’t you get out of here and get a divorce?”

Mr. Bishop then testified that Mrs. Bishop left him and that he begged her on numerous occasions to return. Mr. Bishop denied that Mrs. Bishop had any cause to accuse him of infidelity and while he admitted that he had employed a housekeeper who lived in the home after Mrs. Bishop left, and while he admits he took the housekeeper with him on a camp-hunting trip, he said that the housekeeper had her own separate room in the home and he denies any impropriety in the setup.

This is by no means the full extent of the testimony adduced at the trial but it is more than enough to show its general tenor, and is enough in our opinion, to show that the chancellor did not abuse his discretion as alleged by Mrs. Bishop under her second point.

Point 3

Two of the Bishop children testified to the effect that the difficulty between their parents was occasioned by Mrs. Bishop drinking beer; flying into temper tantrums and accusing Mr. Bishop of being out with some woman when he would come home late from the service station he operated. There is no evidence of collusion in this case and we find no merit in the third assignment of error.

Point 4

The evidence indicated that Mr. Bishop receives a salary of 110,00o and that he owns some rental property bringing in approximately $16,000 gross in rents annually. One piece of this property is owned jointly by Mr. and Mrs. Bishop and accounts for approximately $2,700 of the annual gross rental income. The full extent and nature of the property was before the chancellor when he awarded to Mrs. Bishop one-half of the $12,000 deposited in their joint checking account and one-half of the rental income from the jointly owned property, and we are unable to say that the chancellor abused his discretion in not inquiring farther into the exact market value of the property owned by Mr. Bishop. In the light of out holding on Point 1, supra, we find it unnecessary to discuss Point 5.

From the overall evidence in this case we are unable to say that the chancellor’s finding that Mr. Bishop was the injured party is against the preponderance of the evidence; and we are unable to say that the chancellor abused his discretion in the awards made to Mrs. Bishop in the decree.

The decree is affirmed.

      Mr. Bishop sold the service station during the separation and was on a salary at time of trial.