author: Pindall, Sp. J.:

text:
    Fitzgerald vs. Blocher.
    1. Pledge: Sale of.

    Where the subject matter of a pledge is divisable, the pledgee has no right to sell more than is necessary to satisfy the debt; and if he does so is responsible to the pledgor for the damage he may thereby sustain.
    2. ---:' Waiver, etc.

    The acceptance by the pledgor of the surplus arising from an illegal sale of the articles pledged, is no waiver of his right to damages resulting from, the sale.
    3. --: Notice of sale.

    Where the pledgor, at the time of malting the pledge, waives notice of sale, he cannot after the sale of the pledge complain of a want of notice.
    4. ---: Measure of damages for illegal sale.

    Where a pledgee of scrip sells more than is necessary to satisfy his debt, and pays the surplus to the pledgor, who buys other scrip to replace what, has been sold, the measure of damages is the difference between the price for which the excess sold, and that paid by the pledgor to replace it.
    APPEAL from Pulaski Circuit Court.
    Hon. S. W. Williams, Special Judge.

      Pose, for apellant.

      Howard, contra.

   Pindall, Sp. J.:

This was an action by Blocher against Fitzgerald to recover damages for the wrongful appropriation and sale of certain Arkansas State scrip deposited as a pledge by Blocher with Fitzgerald’s agents, as a collateral security for a note executed by Blocher to said agents for borrowed money. The note was dated December 11, 1874, and payable in 30 days (“ fixed”), to the order of Behen and Rumbough, agents, at the banking office of George Brodie & Sons, and contains a provision, to the effect: That having deposited or pledged to Behen and Rumbough as. security for the payment of this note, five thousand dollars in. Arkansas five per cent, interest bearing treasury certificates, and I hereby give to said Behen and Rumbough full power and authority to séll said collateral security or any part thereof at public or private sale, at the option of said Beben and Rum-bough, on the non-performance of the above promise, or at any time thereafter, without advertising the same or otherwise giving .me any notice.

The case was submitted to the court sitting as a jury, and resulted in a verdict for Blocher for $45.44.

The court found the facts to be, that plaintiff borrowed money of the defendant, gave his note for $1000, deposited $5000 in State scrip as security, with authority to sell when the note fell due. That when the note fell due, Rumbough, as agent for defendant, demanded- payment, and told plaintiff the scrip would have to be sold, but promised to see the defendant and if possible get him not to sell for a few days. That the whole of the scrip was sold at its full market value, four days after the note fell due, and defendant sold more than was necessary to pay the note; that to replace the amount thus sold in excess of what was necessary, it cost plaintiff $45.44 more than he received.

That the plaintiff replaced the scrip so sold within two weeks after the sale.

That plaintiff received price of the excess so sold, without remark, except that he had asked indulgence a few days before the sale. Neither the note or the scrip were at the bank of B'rodie & Son, where it was payable, when it fell due, but plaintiff never offered or tendered payment at said bank or elsewhere.

Upon the conclusion of facts the court finds the law to be: That defendant had a right to sell so much of the scrip as was necessary, and no more than was necessary to pay plaintiffs note. That for the damage done to plaintiff by selling the excess he is responsible to plaintiff. That the measure of damage is the difference, between the price for which the scrip was sold, and the price paid by plaintiff to replace it, and that plaintiff did not forfeit his right to recover this damage by accepting the price of excess of scrip so sold. That defendant is not liable to plaintiff for any supposed or real difference in the value between the price of the scrip necessarily sold, and the price paid by plaintiff thereafter to replace it.

The plaintiff asked the court to declare the law to be:

First — That before the defendant was authorized to sell the scrip deposited as collateral security for the payment of the note, demand for payment was necessary.

Second — That notice of the sale of said scrip to the maker of the note was necessary before said scrip could rightfully be sold.

Third — That said deposit was separable, no greater amount in value should have been sold than was sufficient to pay said debt.

Fourth — That if notice of the sale of said scrip was not given to the depositor, and the scrip was sold, the plaintiff should recover herein, and the measure of damages, is the highest market value of said scrip, at any time from the date of sale to the trial, less the amount of the note.

Fifth — That if demand of payment and notice of sale are found to have been made, and it is found that such deposited scrip was separable, and that more of said scrip was sold than was necessary to pay said note, then the plaintiff should recover herein, and the measure of damages is the difference between the price for which said excess of scrip was sold, and the highest market value of said excess from the date of sale to the date of trial.

These declarations were all refused except the third, which was given.

The plaintiff moved for a new trial, alleging these grounds :

First — Error in refusing to give the first, second, fourth and fifth declarations of law asked by'plaintiff.

Second — Error in the finding of facts.

Third — Error in the declarations of law given on its own motion.

The motion was overruled and exceptions reserved.

The' defendant asked the court to declare the law to be :

First — Under the contract sued on herein, on the non-payment of the debt, and the refusal of the plaintiff to pay the same on demand at maturity, the defendant had a right to collect all the collateral security pledged for the payment, and to apply the proceeds to the payment of the debt, and to pay the residue to the plaintiff.

Second — That defendant having sold the scrip and paid the debt out of the proceeds, and having paid over the residue to the plaintiff, which was accepted by him, such acceptance was a satisfaction of the sale and a waiver of any irregularity in the sale, which debars plaintiff from maintaining this suit.

Both these declarations were refused and exceptions saved.

Defendants motion for a new trial was based on :

First — Supposed error of the court in refusing to give the two declarations of law asked for by him.

Second — Because the court erred in the declarations of law given on its own motion.

Third — Because on the conclusions of law found by the court, the finding should have been for the defendant.

This motion was overruled and exceptions saved.

Each party took a separate bill of exceptions, but the evidence is not set out in either of them.

The defendant appealed to this court, and after the record was deposited here on his appeal, the plaintiff prayed a cross-appeal from the judgment of the court.

¥e will first advert to the questions arising on the appeal of Fitzgerald,

The court refused to declare as the law of the case: That under the contract the defendant had a right to sell all of the collateral security pledged, on refusal of the plaintiff to pay the secured debt on demand at the maturity of the note; but on its own motion, and also on the third declaration asked by plaintiff, declared the law to be, that if the deposit was separable, he had the right to sell so much of the scrip as was necessary to pay the amount of plaintiff’s note and no more ; and this forms appellant’s first exception.

In Olcott v. Bynum, 17 Wall., 62, Justice Swayne, in treating of a sale, made under a deed of trust, containing express authority to sell all the property conveyed, says: “ If enough of it to satisfy the amount due could be segregated and sold without injury to the residue, it would have been the duty of the mortgagees to sell.”

In Tatum v. Holliday, 59 Mo., 428, a sale was made under a deed of trust, which contained a provision that in case of default, in payment of the secured note, the trustee should sell the property or a part thereof, to satisfy the same. The court says: Where the property is susceptible of division, and will bring more by being divided and sold in separate parcels or lots, than by being sold in a body; or where by a sale of a part of the premises a sufficient amount can be realized to pay off the second debt, then it is the duty of the trustee to make the division and sell a portion accordingly, and if he fails in this, the sale will be held as invalid on the application of the party aggrieved.”

In Goode v. Comfort, 39 Mo., 313 property which was susceptible of division, was sold under a deed of trust, as a whole and at a sacrifice, and the sale was set aside, although the amount bid did not pay the debt, and the deed required the trustee to sell the property or so much thereof as will be necessary for that purpose.

In Howard v. Ames, 3 Met. (Mass.), 311, Ch. Justice Shaw in delivering the opinion of the court says: Where property, real or personal, is conveyed by a debtor to his creditor with a power to sell and dispose of it, and apply the property to the payment of the debt, the creditor in executing snch power becomes the trustee of the debtor, and is bound to act bona fide, and to adopt all reasonable modes of proceeding in order to render the sale most beneficial to the debtor, like any other agent, factor or trustee to sell. Like other trustees he cannot himself directly become the purchaser, or do the same thing through the agency of another.”

These principles merit our approbation and we think should apply to sales of pledged property, by the pledgee, when authorized by the terms of the deposit, to sell the property pledged to pay the debt, and perhaps for stronger reasons than exists in cases of mortgages with power of sale, or deeds of trust, because a pledge of personal property to secure a debt, unlike the securities above alluded to, does not pass the legal title to the pledgee, he simply holds the possession of the property as a security for the debt, and when the power to sell is conferred, acts strictly for the pledger, in whom the legal title still vests.

We accordingly find in the books treating of pledges, principles similar to the doctrines in the Massachusetts case cited.

Thus, 2 Parsons Cont., 120: “ The pledgee should not buy the pledge himself, and he should take all proper and customary precautions in the time and manner of sale, of notice or advertisement and the like, to protect effectually the pledger’s interest and property. Nor should he sell more than enough to pay his debt, if the pledge consists of parts ; and if the proceeds do not pay his debt, he may sue for the surplus.”

And in Edwards on Bailments, p. 236, it is said : The rule is, that the pawnee who sells the pawn or collects on the collateral security entrusted to him, is entitled to receive or recover the full amount of the chattels or choses in action deposited in pledge and apply the proceeds, first to the payment of his debt, that satisfied, the balance belongs to the pawnor. * * * There are cases, however, when he cannot collect beyond the amount of his debt.” See also Story’s Bailment, 314; Tyler Usury, Pawns, and Pledges, 600 ; Whitlock v. Heard, 13 Ala., 778.

The pledgee acquires no interest in the property, except as a security for his debt, and where a power of sale is granted in the contract, it is merely for the purpose of collecting the debt, and when the subject is divisable and a part sufficient to pay the -debt, there is no reason why more should be sold.

There was no error in overruling the first declaration of the defendant, or in giving the third declaration for plaintiff, nor in the declaration given on its own motion by the court on this point, and we concur with the Circuit Court in declaring as the law: That for the damage done to the plaintiff by selling more ■scrip than was necessary, defendant is responsible.

The second declaration asked by the defendant, was to the -effect that by accepting the proceeds of the surplus scrip sold by the defendant, the plaintiff ratified the sale, waived all irregularities and debarred himself from maintaining this suit.

The court refused to make this declaration, but did declare the law to be, that plaintiff did not vitiate his right to recover the damages he had sustained by accepting the price of the excess so sold.

The case of Hamilton v. The State Bank, 22 Iowa, 306, is cited by counsel, to sustain the exception to this ruling.

We think the case is distinguishable from the one at bar.

In that case Hamilton had pledged some United States bonds with the bank to secure over drafts, but gave at the time no power to sell, and the bank acquired no authority to sell, except of course under the law of pledges. Under that law the defendant bank could not have sold the collaterals without demand of payment, notice of sale, and only at public sale.

Hamilton became greatly in arrears to the bank, much more than the value of the property pledged. The agent of the bank applied to him for authority to sell the securities pledged, and did sell them, by the direction and express consent he claimed to have received from Hamilton, and passed the proceeds to his credit on the 5th April, 1865, leaving a large balance due the bank. Hamilton made some payment April 6th, leaving a small balance to his credit, which was placed on his pass-book and which he drew out on the 5th May ; on the 22d January, 1867, sixteen and a half months after he drew out the balance, he demanded the bonds and brought suit.

It was not pretended that the sale was made in accordance with the law of pledges, or under the contract of bailments, but the bank claimed that the sale was made by the direction and express consent of the plaintiff, given on the day of sale; this, was denied; and upon the trial of this issue, the jury were instructed : That if they found that the sale of the bonds was made by the consent of the plaintiff; or if they found that he accepted the credit on his bank account, although he did not know thereof until after the sale, then he cannot complain that the sale was not made in accordance with the law of pledges, or at most, not until he could show that the bonds did not realize the full, fair market value of the same.

In the case-at bar, if it was claimed that the sale of all the scrip was made by Blocher’s direction or with his consent, then his acceptance of the money, without objection, would have been a circumstance for the jury to consider as evidence of such agreement.

This case is just what the Iowa case was not, a sale made under the authority of the contract of bailment; no subsequent agreement of Blocher to the sale was sought. The defendant deemed lie had the right to sell all the scrip under the contract. Blocher’s acceptance or non-acceptance after the sale was not evidence of . the legal effect of the contract.

The contract of bailment was in writing, and must be construed by its terms, the after construction of neither party can control its legal effect, although if the terms of the contract were in doubt, the construction placed upon it by both parties, would be material; or if, as in the Iowa case, there was a dispute about the terms of the contract, the acts of the parties, the one in selling and the other in receiving proceeds of the sale without objection, would be evidence of the terms of the contract.

Was the acceptance of this money a waiver of BlochePs right to sue for the damages he sustained ?

A party may in most cases waive a strict performance of a contract, or surrender any right he possesses, and such waiver, or surrender may consist of acts in pais, but this never occurs unless intended, or where the act relied upon ought in equity to estop the party from denying it.” Diehl v. Adams Co., etc., 58 Pa. St., 452.

The whole question turns on Bloclier’s intention in accepting the money from the defendant. See Vroman v. Darrow, 40 Ill., 171, and it must be clearly and explicitly shown. Johnston v. Yale, 19 La. An., 212.

In Ingram v. Hartz, 48 Pa. St., 380, it was decided: That the receipt by a tenant of the balance remaining in the hands of the bailiff, above rent and costs from the proceeds of an invalid distress will not estop him from a denial that there was rent in .arrear, or of the legality of the warrant, in an action of trespass brought to recover damages therefor. That the receipt of the surplus was only a satisfaction of damages pro tanto.” In receiving the balance the court says the tenant did no act requiring him to rely upon the distress, he acquired no benefit by the sale of his own property. His right to the proceeds, not needed to discharge the rent, did not rest upon the trespass committed by his landlord, and the bailiff. It was simply a return to him •of what belonged to him before, in a converted state it is true, but not the less his, the return was a duty which devolved on the bailiff, and when he tendered the sum and it was accepted he could not fairly imply that his trespass had been condoned.

Upon what principle can it be said Bloeher is estopped from claiming damages for an illegal sale of his property, by accepting the proceeds of the sale.

Not upon the principle of an equitable estoppel in pais, “ for that doctrine proceeds wholly on the theory that the party to be estopped has by his declarations or conduct misled another to his prejudice, so that it would be' a fraud on him to allow the true .•state of the facts to be proven.” Martin v. Zellerbach, 38 Cal., 314.

Can it be said with truth that Bloeher, by accepting the proceeds of the sale, after the same took place, induced defendant to make the sale, or misled him to suppose he had a right to make the sale.

c: The principle underlying such estoppel, is that it would be a fraud in the party to assert what his previous conduct and admissions denied, when on the faith of that denial others have ■acted. And one who insists upon the acts of another as working an estoppel, must show that he acted upon the same, and was induced thereby to do some act which would result in an injury if the other is permitted to gainsay or deny the truth of what he did. For it is a well settled principle in such cases, that no man can set up another’s act, or declaration, as the ground of an estoppel, unless he has himself been misled or deceived by such act or declaration.” Simpson v. Pearson, 31 Ind., 5.

Finding no error in the judgment of the court against the appellant, we will now take up such of the points made on the cross-appeal, as have not been considered in discussing the questions arising on the first appeal.

The first point made is that demand for payment was necessary before the scrip could be legally sold.

The sufficient answer to this is, that the court found as a fact that the defendant’s agent did demand the payment, and as the evidence was not preserved by the bills of exceptions, this finding is conclusive in this court.

This makes it unnecessary for us to pass upon the effect the word “fixed” in the note should receive, the promise was to pay thirty days (fixed) after date. We think, however, it will appear that in the cases where demand of payment has been held necessary, when notice of sale was waived, the debt was either payable on demand, or an indefinite credit had been extended. 2 Chitty on Conts., 670.

His second point is, that notice of the sale, to the maker, was required before the sale could rightfully be made, and his fourth point related to the measure of his damages in such case.

The right to notice was expressly waived in the contract of bailment, and cannot now be insisted on. Mowry v. Wood, 12 Wis., 419.

His third point was sustained by the court below.

His fifth point relates to the measure of damages sustained by a sale of more scrip than was sold, and the highest market value between the date of sale and date of trial.

The court overruled this point and declared as the law that the measure of damages was the difference between the price at which the scrip was sold and the price paid for plaintiff to replace it.

The suit was for damages he had sustained by the illegal sale of the property; he accepted the proceeds, and re-purchased, in the absence-of any showing, we presume in a reasonable time, and this difference in price was the actual damage to him, and we see no reason why it should not have been the measure of his recovery. t

If the proceeds of the illegally sold scrip.had not been tendered to him, and he was unable to replace the scrip, and therefor lost the advantage of a rise in the price of his property, his damages might have been as asked in the instruction, but lie did accept the proceeds and repurchased tbe scrip at a loss of $45.44, and was thereby enabled to realize all the advantages by the appreciation of his property, he would have had, if defendant bad returned it to him. His actual damages were very clearly the amount it cost him above that which he received for it, and this is nota case, we think, for more than compensatory damages.

We think there is no error shown in the record for,winch the case should be reversed.

Chief Justice English did not sit in this case.


source: Caselaw Access Project

author: .Pinball, Sp. J.:

license: Public Domain

text:
    White, Sp. Adm’r., vs. Holman.
    1. Parties.
    In a proceeding to foreclose a junior mortgage, the mortgagee under a senior mortgage is not a necessary party.
    2. Biel oe Review.
    A decree can only be reviewed for errors of law apparent on the face of the proceedings sought to he reviewed, or for new matters that have arisen since the date of the decree.

      APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Wise, Carlton, and White, for appellant.

      Carroll & Jones, and Dodge & Johnson, contra.

   .Pinball, Sp. J.:

Ou a former appeal in the court, the court held that Holman, .under his title bond from 'Woodruff, had such an equitable interest in the lots in question, as was subject to sale and transfer. That his assignment of the title bond to Hardeman, made Hardeman his vendee of the lots, and gave him an equitable vendor’s lien upon the lots for the amount of the purchase note lie held against Hardeman, which he could enforce against the lots in the hands of Hardeman, or any purchaser holding under him with notice that the debt was unpaid. Holman v. Patterson’s heirs, 29 Ark., 364.

In the original bill filed by Holman v. Hardeman, Brewer and Woodruff to enforce this lien, and upon which the decree was founded, which this bill seeks to review, it was alleged that Brewer had notice that this debt was unpaid when he purchased the lots from Hardeman and took the assignment of the title bond, and at the time of bringing his suit, and it was said if this fact be true, the original decree was right, if Brewer was served with process, p. 364, but the transcript then before the court did not show that Brewer, had ever been served with process, or made a party to the suit in such a manner as to bind him by the decree, or to impress upon his vendees, the character of purchasers pendente lite. It was said if Brewer was not served in fact, and if that fact had been alleged by Patterson in his bill of review, Patterson would then have had ground to review the original decree, p. 363, but as Patterson did not aver to the contrary, the .intendment that he was served obtained, and the other facts alleged as grounds of review, not being sufficient, the cause was reversed and remanded with instructions to allow Patterson to amend, etc.

By the transcript now before us it appear that the alias subpoena issued for said Brewer, and returned and filed April 29th, 1861, was served on said defendant at the County of Jefferson, by the sheriff of said county, by delivering him a true copy of the same on the 9th day of March, 1861, and therefore the original decree was correct in accordance with the decision of this court, expressed upon the former hearing. 29 Ark., p. 364, unless the case has been changed by the amendments to the bill of review, made by the permission of this court after the cause was remanded.

After the cause was remanded, the death of Patterson was suggested on the record and his representatives made parties. When his administrators filed an amendment to his intestate’s bill, and subsequently a second amendment.

There were two additional points presented in these pleadings.

First it was developed that Woodruff had never been served with process in the original suit, and it was insisted that he was an indispensible party.

He held a prior lien by reservation of the title to secure the balance of purchase money due him.

It has been repeatedly held, that the relation of vendor and vendee, in such cases, a sale of real estate evidenced by title bond, with conditions to convey when the payment was made of the purchase money, bears a strong similitude to that of mortgagee and mortgagor, and in the former hearing of this case were so treated by this court, p. 364.

Woodruff occupying the attitude of mortgagee, and Holman holding nothing but the equity of redemption, which before the commencement of the original, he had transferred to Hardeman, and by him to Brewer, and the litigation was concerning these subsequent interests; a proceeding in the nature of a bill to fore- , close a junior mortgage. In such cases the mortgagee prior is not a • necessary party to the suit. The dercee could not affect his rights,, whether he was made a party or not, unless he consent to the sale of the property, in which case his prior lien may be first-paid, and the surplus appropriated to the subsequent liens. The court could have ordered a sale of the lots, subject to "Woodruff’s! prior rights, he was not therefore a necessary party. 2 Jones on Mortgages sec. 1459; Story Eq. Plead., 193; Barbour on Parties, 501.

The failure to make him a party is not ground for review.

It is also insisted that in as much as Noonan obtained a deed directly from Woodruff to himself, that Noonan and his grantee, Patterson, held under him and not in privity with Brewer, and as Woodruff was not served with process in the original suit, these parties are not pendente lite purchasers, as it is admitted they would be if they held under Brewer.

This position is untenable, because Noonan purchased of Brewer, and not of Woodruff, he was enable to get the title bond to him by Brewer, and the authority thereby conferred upon Woodruff by Brewer to convey directly to Noonan.

Noonan purchased the lots, obtained the possession, and held the estate in privity with Brewer, and it was the privity which enabled him to get the conveyance direct. Brewer was a party to the preceding suit, regularly served with process, and is affected by the decree rendered in that cause, and Noonan is bound by the decree, not so much on account of his supposed knowledge of the defects in his chain of title, or because he was required to use diligence in examining the records of the court, but from motives of public policy.

So also is Patterson, his deed from Noonan is dated 21st September, 1866, over three months after the decree was rendered for the sale of the land.

In the second amendment to the bill of review by the present ¡appellant, as a ground of error in the original decree, he shows that the said Noonan was a resident of the State of California, and that all intercourse between the residents of Arkansas with the residents of California was interrupted and prohibited by the Avar, Avhich existed for a portion of the time, between the states, and alleges for error in the original decree, that interest Avas calculated on Hardeman’s note during all the time of the non-intercourse between the states.

There are several ansAvers to this point.

It is not shoAvn that Hardeman Avas prevented or prohibited from paying his debt to Holman by the Iravs of Avar, or that Noonan had ever undertaken or become obligated to pay the note; but in this proceeding by bill of review, the objection cannot prevail, if these facts were sufficiently averred, for a decree can only be reviewed for errors of law apparent on the face of the proceedings in the original cause, without further examination of matters of fact, or for neAV matters, Avhich have arisen ■since the date of the decree, and not for any new proof which might have been used when the decree was made. Story Eq. Plead., 404, et seq; Dan’l. Ch. P and P., 1576.

The respective residence of these parties during the time of hostilities does not appear from the proceedings in the original ■cause, nor is there any allegation that the proof of the fact has' come to light, since the decree was made.

The court below upon the final hearing dismissed the original ■and amended bills, and made an order to carry the original decree into effect, and its judgment is in all things affirmed.

Harrison, J.: did not sit in this case.


author: English, Ch. J.:

text:
    Johnson vs. St. Louis, Iron Mountain & Southern R’y Co.
    Right of Way: Remedy, etc.

    Trespass for appropriation by defendant of a right of way; held that the statutory remedy was exclusive.
    APPEAL from Miller Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Williams & Battle, for apellant, submitted the case without argument.
   English, Ch. J.:

On the 18th August, 1877, Peter R. Johnson brought an action of trespass, in the Circuit Court of Miller County against the St. Louis, Iron Mountain & Southern Railway Company, alleging in substance that in the year 1873, the Cairo and Fulton Railroad. Company, since consolidated with the defendant company, constructed its road over the lands of plaintiff, without paying for the right of way, etc.

A demurrer was sustained to the complaint and plaintiff appealed.

The questions involved in the case were settled Cairo and Fulton R. R. Co. v. Turner, 31 Ark., 494; and the judgment-must be affirmed.


text:
    Breathwit vs. Rogers, Adm’r of McLendon.
    1. Compromise of private injury; compovMding criminal prosecution, etc.

    In all cases of offenses that involve damages to the injured party, for which he may maintain an action, it is competent for him, notwithstanding they are of a public nature, to compromise and settle his private injury as he may see fit; but an agreement for suppressing evidence, or for compounding a criminal prosecution for felony or misdemeanor, is void.

      2. Equity jurisdiction to compel surrender of void note.

      ■ The maker of negotiable paper which is void in the hands of the payee, may. in order to prevent its negotiation, maintain a bill in equity to compel its surrender for cancellation.
    APPEAL from Dorsey Circuit Court in Chancery.
    Hon. W. D. Johnson, Special Judge.

      McCain and Carlton, for appellant.

      Carroll <& Jones, contra.

   English, Ch. J.:

On the 22d day of August, 1876, Edgar McLendon filed a bill on the chancery side of the Circuit Court of Dorsey County, agairist ¥m. Breathwit, alleging in substance as follows :

That on the-day of May, 1876, plaintiff executed and delivered to defendant a promissory note for $200, payable on the first day of January, 1877; and to secure the payment of the note gave him a mortgage upon four bales of cotton. That the note was in possession of the defendant; and a certified copy of the mortgage made an exhibit to the bill.

That the note and mortgage were executed under the following circumstances: At the Fall Term, 1875, of the Dorsey Circuit Court, plaintiff was summoned to appear before the grand jury as a witness, and did appear and testify, by answering questions propounded to him, touching a charge of perjury against defendant then under examination before said grand jury, other witnesses being also examined. Afterwards plaintiff’ was summoned as a witness on behalf of the State, to appear before said Circuit Court to testify in the case of the State against William Breathwit,-defendant herein, on an indictment for perjury, and at the Spring Term, 1876, the venue in the case being changed to Bradley Circuit Court, on motion of defendant, plaintiff was required to enter into recognizance to appear as a witness for the State before said court at the Spring Term, 1876, where defendant was tried on the charge of perjury, and acquitted, plaintiff not being called to testify. That after the acquittal and discharge of defendant, he threatened plaintiff with two criminal prosecutions, one for slander and the other for perjury, growing out of and based upon the evidence given by plaintiff as a witness before the grand jury of Dorsey County as above stated. But proposed and offered to plaintiff that he would not prosecute said two criminal charges if plaintiff would execute a note to him for the sum of $200, payable on the 1st of January, 1877, and secure the payment thereof by a mortgage on the property of plaintiff.

Upon this threat, and the proposition offered defendant not to prosecute him as aforesaid, and for no other motive, consideration or purpose, and fearing ■ that defendant would put him to great expense to defend said prosecutions, although based upon false charges, and that said prosecutions would be injurious to his character, although wholly innocent of the false charges threatened, plaintiff was induced to execute the said note and mortgage, and did so execute and deliver them, without any other or further consideration whatever than above stated.

That said note and mortgage were executed without any consideration ; that the supposed consideration for which they were given, above stated, was illegal, fraudulent and void.

That said mortgage being duly recorded appeared on its face as a lien on four bales of plaintiff’s crop of cotton, and as an incumbrance upon so much of his personal property, and was a hindrance to the free and absolute use and control of the same.

Prayer, for a decree cancelling the note and mortgage, and that they be declared fraudulent and void, etc.

Defendant answered the bill, admitting the execution of the note and mortgage, but denying that they, or either of them, were executed for the consideration set forth in the complaint, and avers the truth to be that at the Eall Term, 1875, of the Dorsey Circuit Court, plaintiff maliciously and without probable caus'e instituted and prosecuted before the grand jury of said county a ceatain inquiry against defendant, and procured an indictment to be found against him, being the indictment mentioned in the complaint. And that plaintiff maliciously and without probable cause prosecuted said indictment against defendant ; and by means of such prosecution became liable to him in a large amount for damages, annoyance and expense in defending said indictment; and defendant was intending to report plaintiff to the Grange, and to institute a civil suit against him for damages aforesaid ; and in satisfaction of said damages and expenses, and to prevent any suit for damages and the exposure of plaintiff's misconduct before the Grange, and for no other or different consideration, plaintiff executed and delivered said note and mortgage to defendant.

That since the commencement of this suit the property mortgaged, or intended to be mortgaged, had been sold by plaintiff, and removed beyond the limits of the State.

The answer also contained a demurrer to the bill for want of equity.

The plaintiff demurred to the answer on the ground that it did not set forth facts sufficient to constitute a defense to the bill.

The court sustained the demurrer to the answer, and rendered a decree declaring the note and mortgage fraudulent and void; that defendant be forever enjoined from attempting to collect or assign the same, and that the mortgage be cancelled and held for ■nought, etc.

Since the case was brought here, the death of appellee, McLendon, was suggested, and his administrator, Abner D. Rogers substituted.

I. It is insisted for appellant that the demurrer to the answer reached back to the bill, and that the bill was bad for want of equity.

Any contract which can prevent or impede the due course of public justice, is invalid.

And the rule on this subject would appear to be, that in all cases of offenses which involve damages,to an injured party, for which he may maintain an action, it is competent for him, notwithstanding they are-also of a public nature, to compromise or settle his private damage in any way he may think fit; but that an agreement for suppressing evidence, or for stifling or compounding a criminal prosecution, or proceeding for a felony, or for a misdemeanor of a public nature, for example, perjury or the like, is void. 2 Chitty on Contracts (11 Am. Ed. by Perkins), p. 991.

A bond, note, or other promise, is void, if it be given in consideration of compounding a prosecution for felony, treason or a public misdemeanor. 1 Story on Contracts, sec. 569; Shaw v. Reed, 30 Maine, 105.

Taking the allegations of the bill to be true, as if upon demurrer, the note being for an illegal consideration, was void in the hands of the payee, but being negotiable paper, he might, if not restrained, assign it for value, before maturity to a person without knowledge of its illegality, and thereby cut off the defense of the maker. Plence a court of equity has jurisdiction to compel the payee of the note to surrender it up to be cancelled. Darst v. Brockway et al., 11 Ohio, 471.

In cases where agreements or other transactions are repudiated on account of their being against public policy, the circumstance, that the relief is asked by a party who is perhaps partieeps eriminis, is not in equity material. The reason is, that the public interest requires that relief should be given ; and it is given to the public through the party. Story Eq., sec. 208.

II. Does the answer set up a good defense to the bill ?

The answer denies that the note and mortgage were given to compound or stifle prosecutions for public offenses as alleged in the bill, but avers that they were given in consideration of appellant’s agreement not to bring a civil suit against McLendon for a malicious prosecution, etc.

This was a sufficient consideration for the note. 1 Parsons on Contracts, p. 438.

If the agreement of appellant not to expose the conduct of McLendon before the Grange, entered also into the consideration for the note, as it seems it did from the answer, this did not-vitiate the note, for he was under no legal duty to the public, that we are aware of, to expose or prosecute him before the Grange, which we suppose to be a moral and agricultural institution. It' is certainly not a court recognized by law, wherein offenses against the public may be prosecuted and punished.

"We think the answer, if true, set up a valid defense to the bill, and that the court erred in sustaining the demurrer to it.

Decree reversed, and cause remanded for further proceedings, etc.


text:
    Lavender vs. Hudgens.
    1. Jueobs : Discretion of Judge, etc.

    The judge who presides at the trial ot a cause possesses a discretion in past-sing upon the qualification of jurors.
    2. Verdict for one joint defendant, re-trial, etc.

    Upon the trial of an action for malicious prosecution against A and B, a, verdict was returned in favor of A and against B: a new trial was granted' B, the plaintiff did not move for a new trial as against A: upon the second trial the court, against the objection of B, treated both defendants as on trial. A was examined as a witness by both parties. Held, that the-whole record being before the court, it should have taken notice of A’s acquittal, without a plea to that effect; that by treating him as a defendant the court put him in the attitude of an interested witness, and inasmuch as it may have affected the weight of his evidence, it was sufficient ground for a new trial in favor of B.
    .3. Malicious Prosecution: Measure of damages.

    Where the plaintiff, in an action for malicious prosecution, has been prosecuted by the defendant maliciously and without probable cause, lie is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings and his person, and for all the expenses to which he has necessarily been subjected.
    ■4.--: Malice: Probable cause.

    If a party prosecute another on a criminal charge, he will be protected in so doing, however malicious his private motives may have been, provided there was probable cause.
    •5. - — : Justification under process.

    Where an arrest is made under a writ regular on its face, and issued by an officer having jurisdiction, it will be a justification to the officer making the arrest, but not to a party who instigated the prosecution with malice and without probable cause.
    ■6. Presumption of innocence.

    The legal presumption of innocence is to be regarded by the jury in every case, as matter of evidence, to the benefit of which the party is entitled.
    7. Malicious Prosecution: Probable cause; burden of proof.

    The want of probable cause is a material averment, in an action for malicious prosecution, and though negative in its form and character, it must be proved by the plaintiff, when put in issue, by some affirmative evidence. (As to what will constitute probable cause in a particular ease, see Op.)
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Carroll & Jones, for appellant.
   English, Ch. J.:

This was an.action for malicious prosecution commenced in the Circuit Court of Lincoln County, by William Hudgens against William D. Lavender and Zenas L. Wise.

The complaint alleges, in substance, that defendants falsely and maliciously and without any reasonable or probable cause whatever, charged the plaintiff before a justice of the peace with having feloniously passed a five dollar counterfeit bill in imitation of the currency of the United States, and caused the justice to issue a warrant for his arrest, and cause him to be arrested and taken before the justice and committed to answer the charge, and, with like malice and want of probable cause, prosecuted him before the grand jury, by whom an indictment for the charge was ignored.

The defendants filed a joint and several answer: First — Denying that they or either of them, falsely, maliciously and without probable cause, caused the plaintiff to be arrested, as alleged in the complaint; and, Second — Alleging probable cause, stating the facts and circumstances under which plaintiff was arrested.

The cause was submitted to a jury, and they returned the following verdict:

“We, the jury, find for plaintiff, and assess his damages at twenty-five hundred dollars, to be recovered from W. D. Lavender, and clearly exonerate and acquit Z. L. Wise, as he was performing his duty as an officer.”

Judgment was therefore rendered for the plaintiff against. Lavender for the amount of the damages assessed by the jury,, and for costs.

The plaintiff moved for no new trial as to defendant Wise.

The defendant Lavender moved for a new trial, which the-court granted, and upon his application for change of venue,, ordered ihe venue changed to the Circuit Court of Jefferson County.

In the Jefferson Circuit Court (November Term, 1876) the court required both the defendants to be put upon trial, and the-jury returned the following verdict:

“We, the jury, find for the plaintiff and assess his damages at three thousand dollars, to be recovered from W. D. Lavender.”

Lavender moved for a new trial, which the court refused, final judgment was entered against him on the verdict, and he took a bill of exceptions and appealed :

First — It appears from the bill of exceptions that during the formation of the jury, and after both parties had exhausted their peremptory challenges, “the court asked a juror, Sunenshine, if he had formed or expressed an opinion in this cause? The juror answered that he had heard Mr. Lavender speak of the case the day before on the cars, but did not know that he had formed an opinion. The attorney for Lavender asked said juror if he could give the parties to this suit a fair and impartial trial as though he had never heard of the case ? The juror answered: (I am a good friend of Mr. Lavender, but I think I can give the the parties a fair and impartial trial according to the testimony, but I say I am a good friend of Mr. Lavender.’ And therefore the court excused said juror for cause.”

Lavender excepted to this ruling of the court, and made it the seventh ground of the motion for a new trial.

The statute provides that no person who has formed and expressed an opinion concerning the matter in controversy in .any civil suit, which may influence the judgment of such person, shall be sworn in the cause as a juror. Gantt’s Dig., sec. 3656.

The fact that the juror was a friend of appellant did not disqualify him to serve as a juror. Jurors, like the court, are expected to forget their personal friendship for the parties on the trial of a cause, and upon their solemn oaths, render an impartial verdict according to the evidence. If the court excluded the juror merely because he was a friend to appellant, it was an error. But in addition to the fact that the juror had heard appellant speak of the case in the cars, on the day before, his frank avowal of his friendship for appellant, and the manner of this avowal, may have made the impression upon the court that he was biased, and would not be an impartial juror. The judge who presides at a trial, and who observes the appearance and manner of jurors, when upon voir dire, must necessarily exercise a judicial discretion in passing upon their qualifications. Benton v. State, 30 Ark., 343.

Second — The bill of exceptions further shows that appellant “asked the court to direct the jury and the parties that a judgment having been rendered for Z. L. Wise on a former trial of this cause, and that not having been disturbed, the said Z. L. Wise was not on trial in this cause, which the court refused to do, but on the contrary, instructed the jury that according to the pleadings and proceedings in this cause, the said Z. L. Wise was-to be tried with W. D. Lavender,” to which ruling of the court Lavender excepted, and made it the ninth ground of the motion for a new trial.

In the instructions given by the court to the jury, on the motion of plaintiff, the court treated both defendants as upon trial, and the third instruction (appellant objecting to each) is as follows: “In this case, if the evidence justifies it, the jury can find one of the defendants not guilty, and guilty as to the other, añd assess the damages against the one found guilty.”

It was not necessary for the defendant Wise to plead his acquittal on the former trial. The whole record was before the court, which was bound to take notice that he had been acquitted, and that the plaintiff had neither moved for nor obtained the grant of a new trial, and the court should not have required him to be put upon the second trial, but should have informed the jury that he was not on trial. Atkins v. State, 16 Ark., 574; Johnson v. State, 29 Ib., 34.

No verdict was rendered against "Wise on the second trial, and he is not complaining on this appeal, but may not appellant have been prejudiced by his being put upon trial?

He was examined as a witness by both parties, first by the plaintiff, then for the defense. If he had been legally on trial as a defendant, the plaintiff could not have compelled him to be a witness, against his consent. 1 Greenleaf Ev., sec. 353, etc.

On his examination by the plaintiff he testified, in substance, that on the 21st March, 1S72, he was clerking for Lavender, and William Kitch was his bookkeeper and cashier. Witness was also at the time County Attorney for Lincoln County. Plaintiff, on the day named, whom witness had never seen before, came to the store of Lavender. During the day Lavender spoke of the plaintiff, and said plaintiff had approached him to buy counterfeit money. Kitch had just changed a five dollar bill for plaintiff, and, hearing this, he went to the safe, got the five dollar bill out, examined it, pronounced it a counterfeit, showed it to witness and General Garrett, and they pronounced it a counterfeit, and Lavender said to witnesss, you being a County Attorney, ought to look after such cases, and, witness having fully satisfied himself that it was a counterfeit five dollar bill, he made an affidavit, and had plaintiff arrested, and the justice bound him over.

Here the affidavit made by witness was produced, and read to the jury.

Witness further stated that upon his affidavit, a warrant was issued by the justice of the peace (which was produced and read in evidence to the jury) upon which plaintiff was regularly, and according to the forms of law, arrested. The plaintiff was regularly tried by the justice of the peace, and bound over in the sum of $1000. The five dollar bill was sent to several banks at Little Rock, Pine Bluff and Memphis, and pronounced genuine. When the case came up before the grand jury, for examination, the five dollar note having been shown to be genuine, the grand jury ignored the bill.

On cross examination, for defense, witness stated that there was no bank near Auburn, where Lavender’s store was situated. That Kitch was quite an experienced business man, and witness regarded him as a good judge of money. From the statement of Kitch to witness, his own opinion of the bill, and the opinion of General Garrett, he would have had plaintiff arrested without any suggestion from Lavender. ■ Witness did not think that Lavender influenced him in the matter. He, witness, had plaintiff arrested because he was a stranger, and had, as he believed, passed a counterfeit bill, and he believed it to be his duty to arrest him. He was at the time boarding at Lavender’s house; had been in Lincoln County more than a year.

After the plaintiff had testified in his own behalf, and Lavender and Garrett had been examined for the defense, Wise was recalled on behalf of the defense, and testified in substance: That he was influenced in making the affidavit by the statement of Kitch particularly, and by his own judgment in the matter. Lavender did not urge the arrest. He did not say anything particularly about it. Witness was about the store all the evening except about half an hour. Did not remember of Lavender saying anything harsh to plaintiff. Witness was present during the whole trial before the magistrate. Lavender did not say anything to the magistrate, except to give in his testimony, that witness heard.

The testimony of Wise conduced to prove probable cause for the institution of the prosecution, which is such a suspicion as would induce a reasonable man to commence a prosecution, and it also tended to contradict some of the statements made by plaintiff on his examination.

The Constitution removed the incompetency of parties to a civil suit to be witnesses, but it did not affect the question of their credibility. This is a question for the jury.

The court below placed Wise on trial as a defendant, and thereby put him in the attitude of an interested witness. The jury were instructed to treat him as a defendant, and it must be presumed that they so regarded him. If he had not been placed in this attitude the jury might have attached more weight to his evidence than they seem by their verdict to have done. It cannot be affirmed that appellant was not prejudiced by'the ruling of the court in putting Wise upon trial.

Third — The appellee (plaintiff below) asked nine instructions to the jury, all of which the court gave except the seventh and eighth.

The first merely stated the character of the action, and is not objectionable, except that it indicated that there was more than one defendant on trial.

The second relates to the measure of damages in the action, and is as follows:

“If the jury should find for the plaintiff, they can fix any amount in damages which they deem proper from the evidence under $10,000 (the amount laid in the complaint). The plaintiff in this action is not required to prove any vindictive damages, but only the actual cost and expenses he was put to in defending the prosecution.”

When it is proven that the plaintiff has been prosecuted by the defendant maliciously and without probable cause (and malice may be inferred where want of probable cause is shown) the plaintiff is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings and his person, and for all the expenses to which he necessarily has been subjected. 2 Greenleaf Ev., sec. 456.

The second instruction is not, in its substance, objectionable, when considered in connection with instructions given for appellant.

The third we have above copied and remarked upon.

The fourth follows: “If the jury should find from the evidence that defendants, or either of them, was actuated by malice in prosecuting the arrest of plaintiff, the fact that he was arrested upon a warrant issued regularly is no justification to the defendants.”

If, says Mr. Starkie, a party prosecute another on a criminal charge, it is a rule of law, which seems to be founded upon principles of policy and convenience, that the prosecutor shall be protected in so doing, however malicious his private motives may have been, provided he had probable cause for preferring the charge. 2 Starkie on Evidence, 680.

If it was proven that the prosecution was actuated by malice and without probable cause, the fact that the plaintiff was arrested upon a warrant, issued regularly, was no justification; and, with this qualification, the fonrth instruction would have been correct.

In connection with this instruction, may be considered the" first moved for the defense, which the court refused, giving all of the others asked. It follows: “If the proceedings under which Hudgens was arrested, and of which he complains in this action, were regular, that is, issued by a competent officer upon a proper affidavit, and the writ upon such affidavit was regular and formal the plaintiff cannot recover in this action, and the jury will find for the defendant.”

The court properly refused this instruction. The writ being regular upon its face, and the justice of the peace having jurisdiction to issue it, was a justification to the officer making the arrest. But if appellant instigated the prosecution, with malice and without probable cause, he could not justify under the writ.

The fifth instruction given for plaintiff is that; “Every man is supposed to be of good fair character until the contrary is proven.”

As men do not generally violate the penal code (says Mr. Greenleaf) the law presumes every man innocent, but some men do transgress it, and therefore evidence is received to repel this presumption. The legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled. 1 Greenleaf Ev., sec. 34.

It was admitted on the trial that the plaintiff was of good character among his neighbors, but unfortunately he went down to Auburn, twenty miles from his home, where he was unknown, and the evidence conduces to prove, privately applied to Lavender, a stranger to him, to procure counterfeit money, failing to make his motive, if innocent, understood, which led Lavender and his clerks to suspect him of being dishonest, and under this suspicion the five dollar bill, which he had procured one of the clerks to change, was examined and pronounced counterfeit, and hence his arrest as stated by Wise, who was at the time County Attorney. It turned out that the bill was genuine, and the arrest was unfortunate for both parties. Had the plaintiff been as well known at Auburn as he was among his neighbors, it is probable the arrest would not have occurred.

The sixth instruction is: “If the jury believe from the evidence that under all the facts and circumstances as proven by the evidence, the defendants had no reasonable or probable cause to believe that the plaintiff had committed a felony, and still they procured his arrest, they are guilty.”

The want of probable cause is a material averment, and though negative in its form and character, it must be proved by the plaintiff, when put in issue, by some affirmative evidence. Probable cause for a criminal prosecution is understood to be such conduct on the part of the accused - as may induce the court to infer that the prosecution was undertaken from public motives. *. * The question of probable cause is composed of law and fact, it being the province of the jury to' determine whether the circumstances alleged are true or not, and of .the court to determine whether they amount to probable cause. Regularly, the facts material to this question are first to be found by the jury, and the judge is then to decide, as a point of law, whether the facts, as found, establish probable cause- or not. But if the matter of fact and matter of law, of which the probable cause consists, are intimately blended together, the judge will be warranted in leaving the question to the jury. Greenleaf Ev., sec. 454; 2 Starkie Ev., p. 567, etc., and notes.

The sixth instruction given for plaintiff, taken in connection with several of those given for the defense, in which the court, in effect, indicated the meaning of probable cause, is not objectionable.

■ The ninth follows: “If the jury find from the evidence that the plaintiff was arrested at the instance of the defendants upon the charge of passing a counterfeit five dollar bill, that prior to such arrest being made, no examination of said bill had been made by a judge of money, and that the plaintiff was imprisoned without any examination by such judge of money, these are circumstances the jury may consider in making up their verdict.”

What the jury understood from the language “judge of money,” as employed in this instruction, we do not know.

The testimony conduced to prove that a large amount of money was handled in Lavender’s store in the purchase of cotton, etc., and that Kitch, the cashier, Wise and General Garrett, who was at the store at the time, examined the bill, and believed it to be counterfeit. Kitch, whose deposition was read on the trial, states that he examined the bill, after being informed that the plaintiff had approached Lavender to obtain counterfeit or bogus money, and he was of the opinion that it was a counterfeit. That the judgment of the witness may have been influenced by the suspicion which the plaintiff labored under at the-time is probable. It was not necessary, however, to send the bill to a distant bank to be examined, before plaintiff could be arrested at a country store.

If Wise and appellant believed under the circumstances that the bill was counterfeit, and that plaintiff had knowingly passed it, and they acted upon that belief, in the discharge of what they deemed a duty to the public, there was probable cause for the-arrest, though the bill was afterwards ascertained to be genuine, and so, in effect, the court said to the jury in some of the instructions for the defense.

Fourth — The only remaining ground assigned in the motion, for the new trial, which we deem it material to notice, is that the-damages assessed by the jury were excessive.

The plaintiff was the only witness who placed any estimate on the damages which he had sustained by the prosecution.

The plaintiff, according to his testimony, was about fifty years of age, a poor man and unlettered. A Dutch peddler had told him that there were New York houses which sent out counterfeit money, and that Lavender was a good judge of money. He went down to Lavender’s store to purchase some seed potatoes,, and Lavender being pointed out to him, he took him aside and said something to him about counterfeit money, at which Lavender flew into a passion and abused him, etc.

He was under arrest about forty-eight hours, and had to travel' about thirty miles to get bail. Pie went to the court house three or four times between then and court to look around and see how his case was coming on. When court met, he went over and staid at court a week or so, and the case was thrown out by the grand jury, and lie went home. He thought he lost about a month about the case; thought his “expenses, horse hire and time and damages would amount to full $2500 for injury to feelings,” etc.

Lavender’s account of their first interview is as follows:

“The first time I ever saw or heard of plaintiff was about the 20th of March, 1872, when he came to my store at Auburn. He called for me, and said he wanted to see me privately. I went with him into the front room, no other person being in there. He then asked me if I was not an agent for a New York house ? I told him I was, for Cochrane, McLean & Co. He said he did not mean that ,• that he understood I was an' agent for some New York house to put out a lot of money. I said, oh yes! I have disbursed a good deal of money for cotton for my house, some $60,000. He said, I understood you was an agent for some New York house to sell counterfeit money, and I wanted to get some. I asked him sharply, who told you that? It vexed me to be so approached. He said a Dutch peddler had told him that I was the agent for that kind of a New York house. I said if you do not bring him to me in three days, I shall hold you personally responsible for thus approaching me. I told Mr. Wise, the County Attorney, and my clerks what plaintiff said to me, and told them they had better notice him; that from his approaching me about bogus money, he was probably a bad character,” etc.

The jury were liberal to the plaintiff in fixing his damages. They allowed him $500 more than he estimated his damages at in his testimony.

They no doubt looked at the fact that he was a man of good character among his neighbors, and had been prosecuted for passing counterfeit money, when he was in fact innocent. They perhaps did not attach sufficient consequence to the facts shown on the other side, that he was a stranger at Auburn, where his good character was not known. That he had placed himself under suspicion by an unfortunate approach to Lavender on the subject of counterfeit money. That if his motive in the approach was not' criminal, he had not so impressed Lavender, and that the witnesses present believed the bill which he had passed to the house to be counterfeit, and hence he was arrested.

We have above stated the general rule of law as to damages in suits for malicious prosecution; and this court would not be inclined to disturb a verdict on the ground of excessive damages, unless the record disclosed some evidence that it was the result of passion, prejudice, or corruption on the part of the jury. Sexton v. Brock, 15 Ark., 356.

But upon the whole record, we are of the opinion that the judgment should be reversed and the cause remanded for a new trial.


author: Harrison, J.:

text:
    Hyner vs. Dickinson.
    1. County Treasurer’s Bond : Approval of.

    When the official bond of the County Treasurer is presented to the County Judge, during the vacation of the Circuit Court, tor approval, he should see that the affidavits of the sureties are such as the statute requires; and if the affidavits are insufficient, but it otherwise appears that the bond is sufficient, the Circuit Court should not reject it, but should require affidavits, meeting the requirements of the statute, to be filed.
    2. ----: Sureties. Married woman.

    A married woman cannot bind herself as surety on an official bond.
    3. --: Same, non-resident.

    The court is prohibited by the Constitution from accepting a non-resident of the Stato as a suroty on the official bond of a county officer.
    4. ---■: Signing after delivery.

    The signing of an official bond Dy additional sureties, after it has been filed, is not warranted by law. Delivery is an essential part in the execution of the bond, and there could be no delivery after its filing.

      5.--: Objections to.

    Objections were filed to the sufficiency of the CouutyTreasurer’s bond, and demurrer thereto sustained, and the bond approved without hearing the objections: Held, the court erred, it should have heard the objections. -
    APPEAL from Chicot Circuit Court.
    Hon. Theodoric F. Sórbeles, Circuit Judge.
    ■ Reynolds, for appellant.

      Bishop, contra.

   Harrison, J.:

At a special election in Chicot County on the 17th day of March, 1877, John W. Dickinson, was elected County Treasurer, and on the 19th day of April following, he presented to the judge of the County Court, in vacation of the Circuit Court, his bond as such treasurer in the penal sum of $40,000, with M. L. Dickinson, M. W. Lewis, George S. Dickinson, J. H. Man-gum and James Cummins, as sureties therein, for approval, which was accepted and approved by the said County Judge ; and the same day filed in the office of the County Clerk.

Ernest Hyner, a citizen and tax-payer of the county, filed in the Circuit Court the following objections to the sufficiency of the bond:

First — That the affidavits of the sureties were not such as the statute required.

Second — That M. L. Dickinson, one of the sureties, was a married woman, and the wife of John ~VY. Dickinson, the principal in the bond.

Third — That M. W. Lewis and George ~W. Dickinson, two other sureties, were non-residents of the county; and

Fourth — That the amount or penal sum of the bond was not sufficient.

The objections were not sworn to.

The affidavits of the sureties filed with the bond were all in form the same as the following:

“State of Arkansas, 1

I do solemnly affirm, to the best of my knowledge and belief, that I am the owner of property, personal and real, in the said county, over and above that exempted by the Constitution, and above my liabilities, to the value of twenty-five thousand to fiftv thousand dollars. M. L. Dickinson.

Subscribed and sworn to before me, this 7th day of April, A. D.1877. W. B. Loktin, J. P.”

The value of the property owned by each of the sureties, over exemption and liabilities, as shown by the affidavits was as follows : M. L. Dickinson, $25,000 to $50,000; M. W. Lewis from $5000 to $10,000; George S. Dickinson from $5000 to $8000; J. H. Man gum, $3000; James Cummins $1000.

Dickinson filed a general demurrer to the objections. After which eighteen other persons signed the bond, but whether by permission of the court does not appear, and affidavits of some of them were filed. The addition of these signatures to the bond after the same had been approved by the County Judge, and filed, Hyner assigned as another objection.

The court overruled the demurrer, and yet refused to consider the objections, confirming the County Judge’s approval of the bond.

Hyner appealed.

The first section of the Act of March 1st, 1875, is as follows : “ Section 1. Be it enacted by the General Assembly of the State of Arkansas: That the official bonds of county or township officers, shall be approved by the Circuit Court; Provided, however, that the judge of the Circuit Court, or the judge of the county in vacation, subject to confirmation or rejection by the Cireuit Court, may approve the bonds of such officers in vacation,upon the securities in such bonds subscribing to an oath that they are worth the amount of the bond in property, in the county where such officer resides, subject to execution over and above all their debts, liabilities and exemption under the existing laws, stating therein the amount of real estate and value, and the amount of personal property and its value; and provided further, that if there should be more than one security, if the aggregate value of their property should be over and above the aggregate of their debts, liabilities and exemptions, and the amount of the bond required by law, the bond may be approved, and if the Circuit Court should confirm the approval of the bond, the bond and affidavits shall be filed and recorded in the recorder’s office-in a book provided for that purpose ; but if the court shall refuse to confirm the approval of the bond, it shall order a good and sufficient bond to be given fifteen days from its rejection ; and if a new bond is not given in that time, the office shall be deemed vacant and shall be filled in the manner now provided by law.”

. It will thus be seen that the amount and value of the real estate and of the personal property, each, owned by the surety, are required to be stated in his affidavit, and that in this particular the affidavits in the case were defective. The County Judge should have seen, before approving the bond, that they were such as the statute requires, yet if it were otherwise satisfactorily shown that the bond was sufficient, it should not be rejected, but the court should require affidavits meeting the requirements of the statute to be filed, and be recorded with the bond.

The common law incapacity of a married woman to contract, has been so far removed by sec. 7, of art. ix., of the Constitution, that she may devise, bequeath and convey ” her property, both real and personal, which is declared to be, so long as she majr ■choose, her separate property; and before the adoption of the Constitution, the Act of April 28th, 1873, had empowered her to “ bargain, sell, assign and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account.” Except as thus •enabled, her incapacity to bind herself by a valid contract, is the same as at common law.

Her power to charge her property in equity can, of course, have no relevancy to the question before us, as a court of equity never undertakes to enforce a penalty; and it only extends to such contracts as are in respect to the property, or for her personal benefit, as we held in Stillwell and wife v. Adams et al., 29 Ark., 346.

It is an express provision of the Constitution,, sec. 21, art. xix., that “the sureties upon the official bonds of all county officers shall reside within the counties where such officers reside.”

Whether M. W. Lewis and George W. Dickinson would, notwithstanding they did not reside in the county, be liable on the bond, is not a question for our consideration. The court was by the plain language of the Constitution, prohibited from accepting them as sureties.

The signing of the bond by others, after it had been filed, was unwarranted by law, and should not have been allowed. If it did not have the effect to make void the bond as to the sureties who had before signed it, as to which w*e need express no opinion, it certainly did not improve or strengthen it. Delivery is an essential part in the execution of a deed; as much so as signing, and when they signed the bond, it had already been delivered, and there was in fact no delivery by them.

The statute says: “ If the objections be sworn to, the burden of proof shall be on the officer to show that the securities in the bond are sufficient.”

The objections were not sworn to ; but the demurrer admitted' the truth of them. It is thus admitted, that M. L. Dickinson was a married woman and the wife of the principal in the bond; that M. W. Lewis and George W. Dickinson did not reside in the county; and that the penalty of the bond was not sufficient.

It also appears, that the value of the property of the other sureties Mangum and Cummins, is only $4000, and except Mrs., M. L. Dickinson, whose obligation was unquestionably void,, that of all of them did not exceed $22,000.

Notwithstanding the court overruled the demurrer, it approved the bond without hearing the objections, and in so approving the bond without hearing the objections, there was error.

The judgment is therefore reversed, and the cause remanded, that there may be a trial upon the objections.


text:
    Tignor vs. Bradley.
    1. Pleading before J. P. in attachment.

    An affidavit for attachment, filed before a justice of the peace, answers the-purpose of a complaint, or statement of the cause of action, and is a substantial compliance with the requirement of the statute.
    2. Landlord and tenant: When rent accrues.

    When land is leased for a year or shorter term, and there is no stipulation- or special custom shewn as to the time the rent becomes due, it will not. be due until the expiration of the year.
    3. Attachment Specific.
    Under the provisions of secs. 4101-2, of Gantt’s Dig., a landlord may have a specific attachment against the crop before his rent is due, but if he proceed by general attachment before the rent is due, he cannot recover in the action.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      N. T. White, for appellant.

      Martin, contra.

   Harrison, J.:

This was a suit, brought by the appellee against the appellant before a justice of the peace.

The plaintiff filed the following affidavit, which was the only statement of the cause of action:

“ Jack Bradley, v. Oliver Tignor.

The plaintiff, Jack Bradley, states that the claim in this action against the defendant, Oliver Tignor, is for money due for rent of land, about the 1st day of November, 1876; and that it is a just claim; that he ought as he believes to recover thereon one hundred and seventy dollars; and that the said defendant has removed five bales of cotton from the premises without the consent of the landlord Jack Bradley.

liis

Jack x Bradley.

mark

“Sworn to and subscribed before me this 28th day of November, 1876. A. Jackson, J. P.”

He likewise filed a bond, as in case of an ordinary attachment, :and an order of attachment against the defendant’s property, generally, was issued, which was levied on certain cotton and corn of the defendant. There was no service of process upon •the defendant, nor notice given of the pendency of the suit; but on the 9th day of December, 1876, the return day of the attachment, judgment was rendered against him, as upon default, for $170, the sum claimed in the affidavit. On the 14th day of December, 1876, the defendant appeared before the justice, and moved to set aside the judgment, and for leave to defend the suit, but his motion was overruled and he took an appeal to the ■Circuit Court.

In the Circuit Court the attachment was upon, the defendant’s motion quashed; and he then moved to dismiss the action upon the ground, that no account or written statement of the cause of action was fiied with the justice.

The court overruled the motion to dismiss, and the cause was tried by a jury which returned a verdict for the plaintiff for $170.

The defendant moved for a new trial; his motion was overruled, and he appealed to this court.

The appellant insists that the court erred in refusing to dismiss the action.

The affidavit answered the purpose of a complaint or statement of the cause of action, and was a substantial compliance with the requirement of the statute. Hanner et al. v. Bailey, 30 Ark., 681.

The plaintiff read to the jury a contract between himself and the defendant and his wife, by which he rented to them, from the 6th day of March, 1876, the date of said contract, until the 31st day of December following, eighteen acres of land, for which they agreed to pay him $170 rent; and he testified that the defendant occupied and cultivated the land under the contract, but had not paid the rent; that ten acres of the eighteen were part of thirty acres he had leased from Mrs. Mary A. Harding for a term of four years from the 1st day of January, 1873, the lease for which he read to the jury.

The evidence for the defendant conduced to show, that the lease from Mrs. Harding, though made to the plaintiff, solely, was in fact taken for the joint use and benefit of himself and his mother, the wife of the defendant, who, previous to her marriage with the defendant, assisted by the labor of her minor children in clearing the land, and preparing it for cultivation, and paid the expenses attending the execution of the lease, but that after the marriage of his mother with the defendant, the plaintiff pretended and falsely represented to them that the lease had expired, and by such misrepresentation induced them to rent the eighteen acres from him.

A landlord to enforce his lien on the crop, may have a specific attachment against the crop, before his rent is due, under the circumstances mentioned in sec. 4101, Gantt’s Digest, and as provided in sec. 4102.

In this case the attachment, which was quashed, whatever was the design or intention of plaintiff, was not specific or against the crop, but general and against all his property, and whether quashed or not, the plaintiff could not recovei’, if the rent was not due, when the suit was commenced.

When land is leased for a year or shorter term, and there is no stipulation, nor special custom shown as to the time the rent becomes due, it will not be due until the expiration of the term. Dixon v. Nicholls, 39 Ill., 372; Menough’s Appeal, 5 Watts & Serg., 432; Bordman v. Sylvester, 23 Pick., 295; Ridgeley v. Stillwell, 27 Mo., 128.

There was no evidence before the jury that the rent was due when the suit was brought; but on the contrary it clearly appears that it had not then become due.

There was not therefore sufficient evidence to justify a verdict for the plaintiff, and the court erred in refusing defendant a new trial, for which error the judgment is reversed, and the cause remanded with instructions to grant the defendant a new trial.


author: Jack Holt, Jr., Chief Justice.

text:
    James JOHNSON v. Martin “Bud” GILLILAND and Larry Huntsberger
    94-627
    896 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered March 20, 1995

      J. G. Molleston, for appellant.

      Kinard, Grave & Butler, P.A., by: Mike Kinard, for appellee Martin Gilliland.

      William H. Hodge, for appellee Larry Huntsberger.
   Jack Holt, Jr., Chief Justice.

This case requires us to decide whether the trial court erred in failing to apply certain statutes of limitations relating to the bailment or conversion of personal property. On appeal, three points are argued for reversal: (1) the trial court erred in finding that there was substantial evidence to support a finding that the complaint was filed within the time allowed by the statute of limitations; (2) the trial court erred in finding that there was substantial evidence to support the jury verdict finding that the boat and trailer in question were “capable of restoration” to appellee Gilliland; and (3) the trial court erred in failing to order a remittitur. We affirm the trial court as to the first two issues; however, there is merit in Johnson’s argument that a remittitur is in order.

In 1981 or 1982, appellee Martin Gilliland put his boat and trailer in a barn owned by Guy Johnson in Stamps, Arkansas, with an understanding that Mr. Johnson would keep it for him while he attended medical school in Grenada. Mr. Gilliland contends that he offered to pay rent several times but that Mr. Johnson refused, saying he was not using the barn for anything else.

In 1984, Mr. Gilliland’s son, when using the boat, damaged the engine and left it with another party. Later, Guy Johnson’s son, James, the appellant, returned the boat to the barn. In April 1988, James Johnson removed the boat from the barn and took it with him to Wickes, Arkansas, and then, two years later, to DeQueen, Arkansas. The boat remained in a state of disrepair and stood on a used-car lot run by James Johnson.

In March or May 1991, James Johnson sold the boat to appellee Larry Huntsberger for $3,000.00. After acquiring the boat, Mr. Huntsberger made numerous improvements to it, including rebuilding the engine. In the summer of 1991, Mr. Gilliland returned to get the boat and was told by Guy Johnson that his son James had taken the boat from the barn. Mr. Gilliland contacted the younger Mr. Johnson and asked for the boat, but James refused to give it back to him. Mr. Gilliland filed an action claiming that James Johnson unlawfully detained his property when he removed it from storage and for an order of replevin. Later, the father, Guy Johnson, and Larry Huntsberger were named party defendants, at which time Mr. Gilliland sought an order of delivery of the boat from Mr. Huntsberger. Appellant James Johnson was also charged with converting the motor boat to his own use.

In response to Mr. Gilliland’s complaint, the appellant, James Johnson, denied the allegations in general, asserting a defense of abandonment and also “the affirmative defense of the statute of limitation which was tolled prior to May, 1988, and adverse possession because prior to and subsequent to 1988, he exercised possession of the boat in question under a claim of right, openly, publically and notoriously.” James Johnson also claimed the right of set-off for storage costs against Mr. Gilliland.

A jury trial was held, and at the close of Mr. Gilliland’s evidence, the appellant, James Johnson, made a motion for directed verdict, claiming that the plaintiff had failed to meet all the evidence and that his open, notorious, and continuous use of the boat gave him the right of adverse possession, and that a period of more than three years had gone by since Mr. Gilliland placed the boat in possession .with Guy Johnson. Mr. Gilliland countered with the argument that James Johnson was actually acting as agent for Guy Johnsop because Mr. Gilliland was without knowledge of the fact that James Johnson possessed the boat. Further, Mr. Gilliland urged, the statute did not begin to run until he discovered that James Johnson was in. possession. The trial court denied James Johnson’s motion. At the close of the defendant’s case, James Johnson renewed his motion for directed verdict “on the grounds stated at the close of plaintiff’s case,” which was again denied by the trial court. .

The jury was instructed, without objection, on the laws of bailment, negligence and wrongful possession, as well as the affirmative defenses of adverse possession and James Johnson’s claim for “set off.” The jury was furnished with interrogatories relating to bailment, negligence, and damages. In rendering its judgment in favor of Mr. Gilliland, the jury found by way of interrogatories that there was gross negligence on the part of James Johnson which was the proximate cause of damages to Mr. Gilliland, and that James Johnson was not entitled to a set-off. In addition, the jury found that Mr. Huntsberger should be ordered to deliver the boat to Mr. Gilliland and that Mr. Huntsberger should have judgment on his cross-complaint against James Johnson for damages in the sum of $20,250. As mentioned previously, a motion for JNOV or new trial was made by James Johnson, predicated on the same grounds as his motions for directed verdict, but the motion was denied.

I. Statute of limitations

Mr. Johnson first asserts that there was no substantial evidence to support a finding that the statute of limitations for conversion had not run. He correctly states that the applicable statute of limitations is Ark. Code Ann. § 16-56-105(6) (1987), which provides a three-year statute of limitations for the “taking or injuring any goods or chattels.” We further note that:

“In suits to recover personal property, the statute of limitations and the principle of adverse possession are inseparably connected, on the theory that the statute does not begin to run until the possession becomes adverse, and a limitations statute relating to suits to recover personalty is affected by the doctrine of adverse possession by the defendant.”

Henderson v. First Nat’l Bank, 254 Ark. 427, 433, 494 S.W.2d 452, 456 (1973), quoting 54 C.J.S., Limitations of Actions, § 119. In other words, the statute of limitations for conversion of personal property and the running of time for adverse possession will be the same.

By James Johnson’s account, his father asked him to move the boat because he didn’t want it in his barn anymore. Mr. Johnson assumed that, from this request, his father wanted him to have the boat and that Gilliland had abandoned it. (Guy Johnson did not testify at trial, it was explained, because he was bedridden and paralyzed.) Mr. Johnson argues that the evidence required a finding that the three-year statute of limitations had run on adverse possession and conversion. He points out that the statute of limitations for replevin or conversion begins to run at the date of his possession and exercise of control over property and not at the time of the Gilliland’s demand for it. See Pickens v. Sparks, 44 Ark. 29 (1884). He then argues that it is undisputed that he exercised dominion and control over the boat in April 1988, and, therefore, that the statute of limitations had run when the suit was filed more than three years later in August 1991.

Mr. Johnson loses sight of the fact that the trial court was not required to direct a verdict based on one theory to the exclusion of all others. Even if the testimony about the removal of the boat in 1988 was undisputed, such a finding would not have entitled him to a directed verdict on Mr. Gilliland’s claim. As Mr. Gilliland correctly pointed out to the trial court in response to the directed verdict motion, there were other remedies available to him with limitations that would be triggered by the later act of Mr. Gilliland’s discovery that the boat was gone, thus permitting him to file his action within the proper time.

For example, in cases of bailment of personal property, the same three-year statute of limitations period for conversion applies, but it does not begin to run until there has been a demand by the bailor and a refusal by the bailee. Shewmake v. Shifflett, 205 Ark. 875, 171 S.W.2d 309 (1943); Lee County Nat’l Bank v. Hughes, 165 Ark. 493, 265 S.W.2d 50 (1924). The rule is essentially the same as between agent and principal. 3 Am. Jur. 2d. Agency, § 336 (1994). Similarly, in cases of fraudulent concealment, the period does not begin to run until the fraud has been discovered. Kurry v. Frost, 204 Ark. 386, 162 S.W.2d 48 (1942).

These theories of recovery were available to Mr. Gilliland, as well as conversion. Under these theories and the facts in this case, the statute of limitations would not have begun to run until Mr. Gilliland had asked for the boat and discovered it had been removed from the barn in the summer of 1991. Mr. Johnson does not dispute that these theories support the trial court’s ruling nor does he argue any error in the jury’s finding of responsibility, which was based on bailment and negligence instructions.

Obviously, the trial court found that the underlying issue was a matter of bailment and that the three-year statute of limitations did not begin to run until there had been a demand by Mr. Gilliland for the return of his property.

The case was submitted to the jury, without objection, with instructions on the laws of bailment, negligence, wrongful possession, as well as on Mr. Johnson’s affirmative defense of adverse possession. Simply put, the jury found in Mr. Gilliland’s favor. Under these circumstances, the trial court did not err.

II. Restoration of the boat

Mr. Johnson’s second argument is based on the jury’s verdict to have the boat delivered to Mr. Huntsberger. In his directed-verdict motion, Mr. Johnson argued that the boat was incapable of restoration to Mr. Gilliland, and, on appeal, he argues that the redelivery to Mr. Gilliland should be set aside on that basis. He argues that if property sought in replevin has become so intermingled with the bailee’s property so as not to be identifiable as the same property, the replevinor does not have to return the property. In support of this argument, Mr. Johnson cites Standard Inc., v. Standard Coin-op Distributors, 238 Ark. 489, 382 S.W.2d 888 (1964). It is not clear whether Mr. Johnson is arguing that such a case requires a finding that there is no further obligation to the true owner or simply that damages must be accepted in place of the property itself. In either case, Standard does not support Mr. Johnson’s contentions.

In the Standard case, the plaintiff had sent two dry-cleaning machines to the defendant for reconditioning. When the machines were not returned, the plaintiff made a request for them, but it was refused. The plaintiff filed for replevin, and, as a defense, the defendant argued that the plaintiff had not made a proper demand for a return of its goods because it was not able to identify its machines. The plaintiff prevailed and was awarded damages for the value of its machines.

On appeal, the defendant in Standard again argued that the plaintiff had failed to identify its goods and therefore had not made a proper demand. We pointed out that the only reason the plaintiff was unable to identify its machines was because the defendant had disassembled them and intermingled the parts with other like machine parts belonging to the defendant. We further held that, in such a case, the answer is not to deny the plaintiff his recovery, but to find that the action is one of conversion and to hold the defendant liable for the value of the property.

Obviously, this case does not support an argument that such intermingling denies the true owner any recovery. Alternatively, if Mr. Johnson is arguing that the boat was incapable of identification, there was no error to deny judgment notwithstanding the verdict on that basis. In Standard, there was simply no basis for the plaintiff’s identification of the constituent parts. Here, there was reasonable basis for Mr. Gilliland’s identification of the boat.

III. Remittitur

James Johnson argued below that the evidence did not support the jury’s verdict for $20,250, but instead, at most, $10,000. He requested a remittitur for the difference of $10,250. The motion was denied, and on appeal he argues that this denial was error.

Remittitur is a proper remedy to seek from this court on the grounds Mr. Johnson argues. While remittitur generally is requested from this court in order to lower punitive damages that are found to be grossly excessive or that appear to be motivated by passion or prejudice, McNair v. McNair, 316 Ark. 299, 870 S.W.2d 756 (1994), we have also held that it is appropriate when the compensatory damages awarded cannot be sustained by the evidence. Shepherd v. Looper, 293 Ark. 29, 732 S.W.2d 150 (1987). The standard of review in this case is that appropriate for a new trial motion, i.e., whether there is substantial evidence to support the verdict. See Ark. R. Civ. P. 59(a)(5).

We agree with Mr. Johnson that there was no substantial evidence to fully support the jury’s verdict. Mr. Huntsberger testified that he purchased the boat for $3,000, spent about $5,000 for new parts, and put in 200 to 300 hours of labor on renovations. He then stated unequivocally, when asked, that the fair-market value was $10,000: “[$10,000] is a fair-market value if I was trying — if somebody was trying to buy it from me today, yes.” While Mr. Huntsberger later testified in response to a leading question, that the $10,000 did not include his labor, he offered no further basis for a determination of what that labor was worth, or if he even considered it should be part of the boat’s worth. In fact, Mr. Huntsberger’s testimony on cross-examination confirmed his earlier statement that, in fact, he did not believe that his labor should put the figure beyond $10,000:

Q. If I understand correctly, then, you paid James Johnson $3000 for a boat which he says he thought was worth $1,800, but you wanted that boat and you wanted to upgrade it and you put $7,000 more in to upgrade it?
A. I wanted to put it back like it was.
Q. And if the jury should restore Mr. Gilliland to his boat, then you’re going to look to Mr. Johnson for $10,000, is that right?
A. I feel I should be compensated for what I have in it.

When all the testimony is read as a whole, it is clear that the only dispute on the value of the boat was whether it was a lower figure of $10,000 that he was claiming in court. Further, Mr. Huntsberger’s one response to a leading question on the exclusion of his labor, with no further testimony as to the value of that labor, is not a sufficient basis to support the additional $10,250 awarded. See Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973).

Ordinarily, a general verdict is a complete entity that cannot be divided, requiring a new trial upon reversible error. When, however, a trial error relates to a separable item of damages, a new trial can sometimes be avoided by the entry of a remittitur. Jacuzzi Brothers, Inc. v. Todd, 316 Ark. 785, 875 S.W.2d 67 (1994); Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993); White River Rural Water District v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992). As Mr. Johnson testified that the fair market value of the boat was $10,000, we have no hesitation in declaring that a remittitur is in order. Should Mr. Johnson submit a petition within seventeen days, requesting a remittitur of damages from $20,250 to $10,000, we will affirm as modified. Otherwise, as a general verdict cannot be divided, we must remand for a new trial of Mr. Huntsberger’s cross-complaint against James Johnson. See Jacuzzi Brothers, Inc. v. Todd, supra; Interstate Freeway Serv., Inc., v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992).

Affirmed as modified.

Roaf, J., not participating.