author: Ed. F. MoFaddin, Associate Justice.

text:
    Cheney, Commissioner of Revenues v. Belote.
    5-932
    289 S. W. 2d 665
    Opinion delivered April 30, 1956.

      O. T. Ward, for appellant.

      Willis V. Lewis, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is an appeal by the Commissioner of Revenues of the State of Arkansas (hereinafter called “Commissioner”) from an adverse decree of the Pulaski Chancery Court in two cases consolidated for trial in that Court. In one case the Chancery Court made permanent an injunction which prevented the Commissioner from collecting taxes claimed, to be due the State; and in the other case the Chancery Court denied the Commissioner the right to proceed to collect taxes claimed to be due the State. The taxes involved are the 2% Gross Receipts Tax under § 84-1903 et seq., Ark. Stats., and the Special 3% Excise Tax under Act 252 of 1951 (as now found in § 48-411 Ark. Stats. Cum. Pocket Supp.). The claimed amounts arose out of the operation of the Virginia Liquor Store at 517 "West Eighth Street in Little Rock. Although the listed appellee in this Court is Arcie B. Belote, the real appellees are J. E. Ebbert and Ebbert Industries, Inc. An uncontested decree was rendered against Belote in favor of the Commissioner, and from that decree there has been no appeal. J. E. Ebbert and Ebbert Industries, Inc., prevailed in the Chancery Court, and the Commissioner has appealed.

On May 28, 1954, the Commissioner made an audit of the Virginia Liquor Store covering the period from October 1, 1951, to December 31, 1953, and ascertained a sales tax delinquency of $655.74 and a 3 Jo excise tax delinquency of $1,037.50. Notice of such amounts was promptly sent by registered mail to J. E. Ebbert at 517 West Eighth Street. No reply being received, the Commissioner issued a tax deficiency assessment, as provided by § 84-1910 et seq., Ark. Stats., and filed said certificate in the office of the Circuit Clerk of Pulaski County, as provided by § 84-1912 Ark. Stats.

Thereupon, on July 26,1954, J. E. Ebbert and Ebbert Industries, Inc., filed suit No. 100538 in the Pulaski Chancery Court to enjoin the Commissioner and the Sheriff of Pulaski County from proceeding to collect any moneys that were claimed due from the Virginia Liquor Store; and a bond of $1,500.00 was filed to support the injunction. Shortly after the filing of the above suit, the Commissioner filed suit No. 100698 in the Pulaski Chancery Court against Arcie B. Belote, J. E. Ebbert and Ebbert Industries, Inc., alleging that the State was entitled to collect the delinquent taxes as shown by the audit here-inbefore mentioned, and that J. E. Ebbert and Ebbert Industries, Inc., had taken over .the Virginia Liquor Store, and were operating same without a retail dealers sales permit, as required by the Gross Receipts Law. The .prayer was for the sale of the merchandise and fixtures to pay the claim of the State of Arkansas in the. amount of $1,693.24, with interest and costs. Upon issues joined, the two suits were consolidated and tried in the Pulaski Chancery Court, and resulted in a decree (a) giving the State an unsecured decree against Arcie B. Belote for the amount sued for; and (b) denying the State all relief against J. E. Ebbert and/or Ebbert Industries, Inc. From that decree the Commissioner has appealed and brought up the entire record.

The evidence established that for some time prior to April 9, 1954, Arcie B. Belote, wife of Bill Belote; owned and operated a liquor store at 517 West Eighth Street in Little Rock; that J. E. Ebbert was secretary-treasurer and owner of 51% of the stock of Ebbert Industries, Inc., a corporation controlled by him and his wife; and that about April 9,1954, Mr. Ebbert undertook to purchase for Ebbert Industries, Inc., the Virginia Liquor Store. Mr. Ebbert testified that, while investigating the store, he checked with wholesale liquor dealers to ascertain any outstanding bills due by Virginia Liquor Store, and also went to the Sales Tax Division of the State Revenue Department and talked to Mr. E. R, Henr dricks, the Director of the Sales and Use Tax Division. Mr. Ebbert said that on that visit he learned that there was some question about sales tax remittances for the two most recent months, and that these were later paid by someone.

Mr. Ebbert testified that about ten days after the said trip to the Sales Tax Division, he visited the Alcoholic Beverage Control Board and obtained a liquor license for Ebbert Industries, Inc., to operate the Virginia Liquor Store. He said that be tben purchased the Virginia Liquor .Store from Mrs. Belote for Ebbert Industries,- Inc., and placed two clerks in charge, and that he only visited the store occasionally. He testified that his corporation, Ebbert Industries, Inc., operated several places, and that he knew the difference between the Sales Tax Division, and the Alcoholic Beverage Control Board, heretofore mentioned. Mr. Ebbert also testified that in May, 1954, he made another visit to Mr. Hendricks in the Revenue Department to pay the April sales tax; and that the receipt was issued to the “Virginia Liquor Store,” as were all subsequent receipts. In other words, there is no evidence that the State ever issued any receipt to Ebbert Industries, Inc., in the operation of this liquor store, or ever issued any retail dealers sales permit to Ebbert Industries, Inc.

The case at bar is ruled by the case of Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687, which is not cited in any of the briefs. If the Chancery decree should be affirmed by us, then the fears expressed by the minority in Thompson v. Chadwick, supra, would be completely realized; because, in the case at bar, all that J. E. Ebbert claimed that he did was (1) to go to the Revenue Department and ask if any tax was due; and (2) upon being advised that two months were in arrears, he arranged to have those two months paid; and (3) he claimed he made application for a retail dealers sales permit. If such inquiry by Ebbert can prevent the State from enforcing its tax collection laws, as set up in § 84-1907 et seq., Ark. Stats., then it would be better that the State employees should never give any answers to any inquiries, for fear some waiver might be claimed. But in Thompson v. Chadwick, supra, the majority was careful to point out that it was only when the State issued a new retail dealers sales permit to the purchaser that the State lost the right to enforce its claim against the new owner on a subsequently discovered delinquent assessment against the former owner. In Thompson v. Chadwick we said:

“So the Commissioner had from May 7th to May 24th to determine whether Donan had paid all taxes dne the State. If the Commissioner had been dissatisfied or uncertain as to the correctness of Donan’s return, then a permit should not have been issued to Chadwick until all doubts had been removed as to the full payment of tax by Donau. ’ ’

In the case at bar, the facts show that Mr. Ebbert was never able to obtain a new retail dealers sales permit as required by § 84-1913 Ark. Stats. Mr. Hendricks said that the records of his Department bore the notation that no new permit was to be issued for operation of Virginia Liquor Store. Mr. Ebbert did not state that he had received a new permit, but claimed that he had applied for one and “thought” it had been issued. In short, Mr. Ebbert never received a new permit from the State of Arkansas issued to him or to Ebbert Industries, Inc., to operate the Virginia Liquor Store; and, until the State issued a new permit, then the State had not waived its statutory rights under § 84-1907 et seq., Ark. Stats. Such is our holding in Thompson v. Chadwick, supra.

It follows that the Chancery Court decree is reversed and the cause is remanded, with directions to vacate so much of the decree heretofore entered as is adverse to the Commissioner; and to dismiss the injunction and render judgment for the State on the injunction bond filed for the amounts claimed, up to the full obligation of the bond; and if there be due amounts in excess of the bond, to allow the State to proceed as it sees fit to enforce its lien under § 84-1912 Ark. Stats, for the balance due.

       Section 84-1913, Ark. Stats., is specific in this regard. This section also says: “A permit is not assignable and shall be held valid only for the person in whose name it is issued and for the transaction of business at the place designated therein. The permit shall at all times be conspicuously displayed at the place of business for which issued in a position where it can be easily seen. Said permit shall be in addition to all other permits now or hereafter required by the Statutes of the State of Arkansas.”

       Mr. Ebbert’s testimony showed some confusion on this point. He said that when he went to the Revenue Department to make inquiry, before closing the deal, he took the sales tax permit of the Virginia Liquor Store and surrendered it and made application for a new permit for Ebbert Industries, Inc. This visit to the Revenue Department was ten days before Mr. Ebbert went to see the Alcoholic Beverage Control Board to obtain a liquor license. It seems strange that ten days before Mr. Ebbert made the purchase of the Virginia Liquor Store, and while he was still inquiring as to outstanding bills, he would have in his possession the retail dealers sales permit of the Virginia Liquor Store, which § 84-1913 required to be at all times displayed in the store; and it also seems strange that Mr. Ebbert would have surrendered the permit and made application for a new permit ten days before he went to see the Alcoholic Beverage Control Board to see if he could get a liquor license.


source: Caselaw Access Project

author: Ed. F. McFaddiN, Associate Justice.

license: Public Domain

text:
    Hammett v. Cannon.
    5-936
    289 S. W. 2d 683
    Opinion delivered April 30, 1956.

      Williamson & Williamson, for appellant.

      Chas. F. Cole, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is the second appearance of this case in this Court. See Cannon v. Owens, 224 Ark. 614, 275 S. W. 2d 445.

On the first appeal we held that the deed of certain lands conveyed to Mrs. Mary Yannatter a life estate, with remainder to her daughter and son-in-law, Lizzie Cannon and Clint Cannon; hut we remanded the case so that the appellees in the first appeal (appellants in this appeal) might offer their evidence as to other defenses against the remaindermen. Such defenses were (a) duress and undue influence practiced by Lizzie Cannon and Clint Cannon on Mrs. Mary Yannatter; and (b) non-perform-anee by Lizzie Cannon and Clint Cannon of their promise to take care of and support Mrs. Mary Yannatter during her lifetime. On remand the evidence was offered on the said defenses and the Chancery Court held the evidence insufficient to defeat the deed; so the beneficiaries under Mrs. Yannatter’s will are the present appellants and Lizzie and Clint Cannon, the remaindermen in the deed, are the present appellees.

I. Undue Influence and Duress. The Notary Public who prepared the deed of June 28, 1948 — from Tubbs and wife to Mary Yannatter for life and remainder to Lizzie and Clint Cannon — testified that he went out to see Mrs. Yannatter before preparing the deed and ascertained how she wanted it, went back to his office and prepared the deed, then went back to Mrs. Yannatter and read the deed to her. He asked her, “Is that the way you want it to be?”; and she said, “Yes, that is what I want. That is the way I want it.” The grantors in the deed were apparently present at the aforesaid conversation, yet they were not called as witnesses. In short, any evidence as to undue influence or duress is entirely too sketchy to justify a decree defeating the deed on that ground. The Chancellor affirmatively stated: “There will be no finding of fraud, duress or undue influence.” We cannot say that such conclusion is against the preponderance of the evidence.

II. Non-performance of Promise of Support. The deed of June 28, 1948, contained no restriction on the remainder: that is, the deed did not say that Lizzie Cannon and Clint Cannon had promised to support and care for Mrs. Yannatter during her lifetime as a consideration for receiving the property at her death. The present appellants, therefore, had the two-pronged burden of proving: (a) that such a promise of support was a consideration of the deed; and (b) that such promise was broken by Lizzie and Clint Cannon so as to amount to fraud. On this angle of the case the Trial Court made this finding in announcing his decree:

“To vary a written instrument the proof must be very clear, and the agreement would have to be clearly established in all its terms; and I find that proof in this case has not been established to the extent required by law; and I further find that if there was such an agreement that the proof doesn’t establish that the plaintiffs here failed and refused to carry out their part of the contract. ’ ’

The appellants say that the Chancery decree is against the preponderance of the evidence on both prongs of the support matter. Typical of the evidence offered to prove the agreement of support is that of J. T. Smith, the Notary Public who prepared the deed. He testified that at the time the deed was prepared, Mrs. Vannatter told him that the Cannons were to “. . . take care of her. ’ ’ But there was an entire absence from the deed of any such provision and we have already detailed the testimony of the Notary Public as to reading the deed to Mrs. Vannatter. An agreement, to provide care and support, is one thing; and a mere expectancy or hope, that the remaindermen will provide care and support for the life tenant, is another thing. The hope or expectancy of the life tenant does not make a definite agreement by the remaindermen.^ We cannot say that Mrs. Vannatter’s conversation with the Notary Public evidencéd more than a hope or expectancy on her part.

The strongest circumstance to support the claim of an agreement, to provide care and support for Mrs. Van-natter, was the fact that some time after the deed had been recorded, Clint Cannon took Mrs. Vannatter to an attorney so she could execute her will; and this will stated:

“In consideration of their taking care of me, living with me and furnishing me a home for the balance of my natural life in my present home one mile West of Mountain View, Arkansas, in which they now live with me, I do hereby GIVE and BEQUEATH nnto my beloved daughter, LIZZIE CANNON, and her husband, CLINT CANNON, my said above mentioned home and the 15 acres of land upon which it stands. In case my said daughter, Lizzie Cannon and her husband, Clint Cannon, cease, fail and/or refuse to live with, support and care for me for the balance of my lifetime in my said home, then this bequest shall become null and void and the above mentioned homestead property shall go in equal shares to my Four daughters, Lizzie Cannon, Pearl Martin, Cordelia Taylor and Edna Hammett, share and share alike.”

Even though this will was subsequently revoked, it is argued by appellants, and with much plausibility, that this provision in the will — executed after the deed— showed that Clint Cannon and Lizzie Cannon had made such a promise of support to Mrs. Vannatter. This provision in the will is a strong argument; but the fact still remains that if any such agreement of support had been made before the deed was executed, Mrs. Vannatter would most probably have included it in the deed rather than in a subsequently drawn will. The quantum of evidence, to establish a promise of support made as a consideration for the deed, must be more than a preponderance. In Viesey v. Wooten, 220 Ark. 962, 251 S. W. 2d 593, we said:

“The preponderance of the evidence here does not show that, as part of the consideration for the conveyance of the property to the Wootens, they were to look after Martha for the rest of her life. And, even if there had been such a preponderance of the evidence, a mere preponderance would not be enough to ingraft on the deed a consideration other than that expressed therein.”

The Chancellor held that the evidence in the case at bar did not measure up to the quantum required; and from a careful study of the record, we cannot say that the Chancellor was in error. There is no need for us to consider the matter of non-performance of the alleged promise, since we hold that the evidence is not sufficient to establish the promise. . Letters relied on by the appellants, written by the Cannons to Mrs. Vannatter, are not as broad as the appellants assert. The rights of Lizzie and Clint Cannon vested at the time of the deed; Mrs. Vannatter had the place for life, and the Cannons had only the remainder. During Mrs. Vannatter’s lifetime the Cannons did not try to take the place from her. They became entitled to it on her death.

Affirmed.

       Proving the consideration is entirely different from proving an express trust by parol evidence, so cases cited by the appellee on express trust are not in point.

       This will was dated September 17, 1948. There was an earlier will dated August 12,1948, which contained a somewhat similar clause.


author: MiNor W. Millwee, Associate Justice.

text:
    Jewell v. General Air Conditioning Corp.
    5-938
    289 S. W. 2d 881
    Opinion delivered April 30, 1956.
    [Rehearing denied May 28, 1956.]

      " Richard W. Hobbs, for appellant.

      House, Moses & Holmes and E. B. Dillon, Jr., for appellee.
   MiNor W. Millwee, Associate Justice.

Appellee, General Air Conditioning Corporation, is a contractor and wholesale distributor of air conditioning and refrigeration equipment at Little Rock, Arkansas, and will hereinafter be referred to as “General.” Appellants, Ñat F. Jewell and wife, hereinafter called “Jewell,” are partners in the sale and installation of air conditioning and refrigeration equipment at Hot Springs, Arkansas. Jewell was a dealer in equipment sold by General from 1951 to 1953, inclusive, and the parties joined in several contracts for the installation of such equipment.

On November 23, 1954, General brought suit against Jewell to reopen, surcharge and restate an alleged account stated entered into by the parties October 12, 1953, under which alleged errors in Jewell’s favor occurred either through mutual mistake of the parties or by a mistake of fact on the part of General and fraud on the part of Jewell. The answer of Jewell pleaded an accord and satisfaction or compromise of the accounts between the parties as a complete defense to the suit. This appeal is from a decree in General’s favor in the sum of $3,091.00.

Jewell first contends the chancellor erred in refusing to hold that a written settlement of accounts executed by the parties constituted an irrevocable accord and satisfaction, or compromise, instead of an account stated, as the court found. In this connection it is also argued that there is no evidence to support the court’s finding that errors amounting to $3,091.00 in said written settlement occurred through a mutual mistake of facts by the parties. We cannot agree with counsel in these contentions.

According to . the evidence General and Jewell were indebted to each other in varying amounts over the period from 1951 to 1953 on joint installations of air conditioning equipment in certain business buildings in Hot Springs. In 1951 they were jointly involved in installations at tbe S. H. Kress Store and St. Joseph Hospital, which jobs were completed prior to December, 1951. Jewell kept inadequate records and did not furnish General with statements of its charges for labor and materials on these and subsequent jobs. In closing out the two contracts for accounting and income tax purposes on December 31, 1951, General estimated the amount due by it to Jewell on the two jobs at $3,000.00 and Jewell was credited with this amount on General’s books. Jewell’s continued failure to keep proper records or furnish General with statements of the amounts due it precluded a balancing of accounts from time to time. In the summer of 1953 the account had grown so large that General’s president insisted upon a settlement. After some negotiations, General furnished Jewell with an itemized statement of what the latter owed it on September 25, 1953, and Jewell furnished General with a similar statement of the amount owing to Jewell on October 3, 1953.

On October 12, 1953, the parties entered into a written letter agreement settling the accounts between them. Each party accepted the account previously rendered to the other as stating the correct amounts due each other, except for a minor mathematical correction, and Jewell paid General $521.21, which represented the difference between the two accounts, in full settlement of the contracts specified in the letter agreement. At the time of the settlement, neither party recalled the $3,000.00 estimated credit given Jewell December 31, 1951, and this credit was overlooked and not taken into consideration in reaching the settlement. The result of this mutual mistake was to credit Jewell with $3,000.00 more than it was entitled to receive inasmuch as the charges under the Kress and St. Joseph Hospital contracts were included in the settlement. In the annual audit of General’s books for 1953 which was completed in February or the early spring of 1954 the auditors discovered the $3,000.00 error and required General to set the amount back on its books as a charge against Jewell. In June, 1954, General demanded payment of the $3,000.00 and also the sum of $91.00 represented by an additional error in Jewell’s favor which appeared on the face of the Jewell statement of account used as a basis of the 1953 written settlement.

While Mr. and Mrs. Jewell testified they had no knowledge of the $3,000.00 error until June, 1954, they admitted that they noticed the discrepancy when General rendered statements to Jewell in January, 1952. It is also undisputed that each party accepted at face value the .respective statements of account which formed the basis of the written settlement of October 12, 1953, and that neither party noticed or considered the $3,091.00 error at that time. While Mr. Jewell also testified the parties were still in dispute about certain items and that he waived his rights to certain profits in consideration of the settlement, we think a preponderance of the evidence supports the chancellor’s conclusion that each party through mutual mistake thought it was receiving everything due it on the contracts involved in the written settlement and that neither consented to take less than what was actually due it in reaching the settlement of their respective accounts at that time.

We also hold that a preponderance of the evidence supports the trial court’s finding that the letter agreement of October 12, 1953, constituted an account stated, and not an accord and satisfaction as contended by Jewell. An account stated has been defined as an account balanced and rendered with an assent to the balance, express or implied. Brown v. Southern Grocery Co., 168 Ark. 547, 271 S. W. 342, 40 A. L. R. 383. We have also held that an account stated is only prima facie correct, and may be impeached for fraud, mistake or error. Drake v. Howell, 177 Ark. 1156, 9 S. W. 2d 565. In the early case of Roberts v. Totten, 13 Ark. 609, it was held that a court of equity will not suffer an account stated to be conclusive upon the parties where there has been any mistake, omission, fraud or undue advantage by which it is in truth vitiated and the balance is incorrectly stated. See also, St. Louis Cooperage Co. v. Jackson, 121 Ark. 633, 182 S. W. 534; Loewer v. Lonoke Rice Milling Co., 111 Ark. 62, 161 S. W. 1042.

An accord and satisfaction generally involves a contract whereby the debtor agrees to pay and the creditor to receive a different consideration or a snm less than the whole amount of the debt in satisfaction of the' larger sum. As the textwriter says in C. J. S., Accord and Satisfaction, Sec. 1: “An ‘accord’ is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is, or considers himself, entitled to; and a ‘satisfaction’ is the execution, or performance, of such an agreement.” In summarizing the court’s conclusion in McMillan, Administrator v. Palmer, 198 Ark. 805, 131 S. W. 2d 943, Judge Baker said: “In accord and satisfaction there are certain elements that must usually or ordinarily be considered. First, there is a disputed amount involved. Second, there is a consent to accept less than the claimed amount in settlement of the whole. In this case there was no dispute. There was an actual agreement upon the amount that should be paid. 1 Am. Jur., Accord and Satisfaction, §§ 19 and 30. 1 O. J. S., Accord and Satisfaction, §§ 1, 2 and 3. 1 B». C. L., Accord and Satisfaction, § 3.” So here, we conclude that a preponderance of the evidence fails to show any dispute in the amounts owed by the parties or that Jewell consented to take less •than what was actually due it under the contracts involved in the written letter agreement at the time of its execution.

Even if the settlement of October 12, 1953, constituted an accord and satisfaction, the authorities generally seem to hold that it may be rescinded if it was executed through a mutual mistake of material facts. 1 C. J. S., Accord and Satisfaction, Sec. 43; 1 Am. Jur., Accord and Satisfaction, Sec. 72; Road Improvement List. No. 4 of Conway County, Ark. v. Wilkerson, 5 Fed. 2d 416. However, we do not reach this question since we think the chancellor was correct in holding that the letter agreement of the parties merely constituted an account stated and not an accord and satisfaction.

Jewell finally contends the chancellor erred in refusing to hold that General was barred by laches or estoppel from maintaining the instant suit. Since neither laches nor estoppel was pleaded as a defense below, the court was not afforded an opportunity to pass on such issues and the attempt to raise them for the first time on appeal comes too late. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089; Bell v. Lackie, 210 Ark. 1003, 198 S. W. 2d 725; Steele v. Steele, 214 Ark. 500, 216 S. W. 2d 875.

Affirmed.


author: George Bose Smith, J. Sam RobiNsoN, Associate Justice

text:
    Taylor v. City of Pine Bluff.
    4839
    289 S. W. 2d 679
    Opinion delivered April 30, 1956.
    [Rehearing denied May 21, 1956.]

      Kenneth C. G of felt, for appellant.

      Wilton Steed, for appellee.
   George Bose Smith, J.

The appellant was charged with having kept his grocery store open on seven separate Sundays, in violation of state law. Ark. Stats. 1947, § 41-3802. The trial court directed a verdict of guilty upon each count, as is permissible in a misdemeanor ease when the proof of guilt is undisputed and the punishment is by fine alone. Huff v. State, 164 Ark. 211, 261 S. W. 654. The jury assessed the minimum fine of $25 for each offense.

The appellant’s principal contention is that the Pine Bluff police are enforcing the statute with such discrimination as to deny to the appellant the equal protection of the laws. The trial court rejected the appellant’s offer to prove that, pursuant to a policy adopted by the mayor or the city council, the police have singled out grocery stores in the enforcement of the Sunday law. According to the proffered evidence the police arrest everyone who operates a grocery on Sunday, but they allow business to be done on that day by such concerns as drug stores, hotels, filling stations, restaurants, funeral homes, bakeries, tourist courts, bus stations, city park concessions, and sporting goods stores. It is argued that this proof should have been admitted and would have established a defense to the charges.

Needless to say, the mere fact that a law is not strictly enforced in every instance is not ordinarily a defense in a criminal case. The accused cannot as a general rule escape punishment by proving that someone else has committed the same offense with impunity. Nevertheless, it was settled by the decision in Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, that purposeful discrimination in the enforcement of an ostensibly fair law may violate the constitution. If the unlawful administration of the statute results “in its unequal application to those who are entitled to be treated alike, ’ ’ there is a denial of equal protection. Snowden v. Hughes, 321 U. S. 1, 64 S. Ct. 397, 88 L. Ed. 497.

Thus the question is whether the Fourteenth Amendment requires that Sunday laws apply alike to grocery stores and to the other businesses mentioned in the appellant’s offer of proof. In other words, if the state statute applied by its terms to grocery stores alone, would it be valid?

This question would not receive the same answer in all jurisdictions. The problem has often arisen in connection with statutes and ordinances containing enumerated exceptions to the general prohibition against the doing of business on the Sabbath. All courts agree that some classification is permissible under the equal protection clause and under similar guaranties in state constitutions, but there is no uniformity of opinion as to the exact point at which classification becomes so unreasonable as to be arbitrary.

In some states the issue of discrimination has been tested on the basis of the various commodities that can or cannot be lawfully sold on Sunday. According to this view if one merchant is allowed to sell a certain article on the Sabbath the same privilege must be granted to everyone else. Consequently grocers have been successful in attacking laws that allow drug stores to operate on Sunday, merely by showing that grocery stores and drug stores sell at least a few of the same items. Allen v. City of Colorado Springs, 101 Colo. 498, 75 P. 2d 141; Ex parte Hodges, 65 Okla. Crim. 69, 83 P. 2d 201. In what is perhaps an extreme example of this view it was held that the owner of a monument works could challenge as discriminatory a law that allowed cemeteries to conduct business on Sunday. Gaetano Bocci & Sons Co. v. Town of Lawndale, 208 Calif. 720, 284 P. 654.

It does not seem to us that the equal protection clause restricts the legislature. to classifications based on the type of, commodity being sold. The legislature might reasonably believe that it is necessary and desirable to allow pharmacists to fill prescriptions on Sunday. It might also find that druggists are unwilling to open their stores for that limited activity alone and' that medicines can be made available to the public on Sunday only by permitting all departments of the drug stores to remain open. Hence it does riot necessarily follow that because the druggist sells a bar- of soap on Sunday the grocer has a constitutional right to do the same. A study of the cases indicates that to test discrimination solely on the basis of the article sold is apt to result in abolishing all exceptions to Sunday laws, for businesses are tending more and more to overlap.one another’s activities.

We prefer to give full effect to the presumption of constitutionality that attends every statute and to uphold the statutory classification in the absence of proof indicating that there is no reasonable basis for the distinctions laid down by the legislature. Under this view, which prevails in many jurisdictions, Sunday laws applicable only to grocery stores and meat markets have been held to represent a reasonable classification. People v. DeRose, 230 Mich. 180, 203 N. W. 95; State v. Somberg, 113 Neb. 761, 204 N. W. 788; see also Theisen v. McDavid, 34 Fla. 440, 16 So. 2d 321; State v. Towery, 239 N. C. 274, 79 S. E. 2d 513, appeal dismissed, 347 U. S. 925, 74 S. Ct. 532, 98 L. Ed. 1079. It is our conclusion that a Sunday law applying only to grocers would be valid and that therefore the appellant is entitled only to be treated in the same manner as other grocers. The trial court correctly refused the defendant’s offer of proof.

Two remaining contentions may be answered quickly. It is said that the appellant was prejudiced by a remark made by the city attorney in his opening statement to the jury. Apart from the fact that the court admonished the jury not to consider the remark, the argument is refuted by the fact that the court directed verdicts of guilty, leaving only the matter of the punishment to the jury. Since the jury imposed the minimum fine in each case the appellant cannot have been harmed.

We are also urged to declare as a matter of common knowledge that public necessity requires grocery stores to he open on Sunday. We do not know this to he true; rather to the contrary, in many communities such stores are closed on Sunday without apparent detriment to the public welfare. Moreover, the statute puts the issue of necessity on an individual basis, as it provides that “necessity on the part of the customer” may he shown as justification for commercial activity on the Sabbath. Ark. Stats., § 41-3803. It may he doubted whether this exception was meant to permit business as usual on Sunday, without regard to the needs of any particular patron.

Affirmed.

BobiNSON, J., dissents.

Sam RobiNsoN, Associate Justice

(dissenting). I dissent for the reason that, in my opinion, there has been purposeful discrimination against the appellant in violation of his rights under the Fourteenth Amendment to the Constitution of the United States. Appellant was convicted of violating Ark. Stats. § 41-3802 by keeping his grocery store open on Sundays. The statute provides: “Every person who shall, on Sunday, keep open any store or retail any goods, wares and merchandise, or keep open any dram shop or grocery, or who shall keep the doors of the same so as to afford ingrees [ingress] or egrees [egress], or retail or sell any spirits or wine, shall, on conviction thereof, be fined in any sum not less than twenty-five [$25.00] dollars, nor more than one hundred dollars [$100.00].” Thus, it will be seen that it is a violation of the law to keep open any store or retail any goods, wares and merchandise on Sunday.

Amendment No. Fourteen to the Constitution of the United States provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The sole question here is whether the appellant has been denied that protection. Tbe statute prohibiting the sale on Sunday of goods, wares and merchandise, on its face, is fair, and no contention is made that it is invalid ; but the manner of enforcement is in violation of the Fourteenth Amendment. Although a law is fair on' its face and impartial in appearance, yet, if it is applied and administered in an unequal manner it is within the prohibition of the Constitution.

In Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220, the court said: “The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution.” Although the statute prohibits the sale of any goods, wares or merchandise on Sundays, the law enforcement officers are permitting other places of business to remain open and are allowing the barter and sale of almost every known kind of merchandise, except groceries.

It was held in Tarrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, that an actual discrimination is as potential in creating a denial of equal rights as a discrimination made by law. A large latitude is allowed to the states for classification upon any reasonable basis and what is reasonable is a question of practical details into which fiction cannot enter. Kidd v. Alabama, 188 U. S. 730, 23 S. Ct. 401, 47 L. Ed. 669. In the absence of any showing of reasonable basis for the discrimination by the administrative officers, as here, the court has no right to conjure up possible situations which might justify the discrimination. Mayflower Farms v. Ten Eyck, 297 U. S. 266, 56 S. Ct. 457, 80 L. Ed. 675. Discrimina-tions are not to be supported by mere fanciful conjecture and cannot stand as reasonable if they offend the plain standards of common sense. “That is to say, mere difference is not enough: the attempted classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.’ Gulf, Colorado & Santa, Fe Ry. v. Ellis, 165 U. S. 150, 155, 17 S. Ct. 255, 41 L. Ed. 666. Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision. ’ ’ Hartford Steam Boiler Inspection and Insurance Company v. Harrison, 301 U. S. 459, 57 S. Ct. 838, 81 L. Ed. 1223.

Drug stores are permitted to stay open on Sunday and it is a matter of common knowledge that they sell a large assortment of merchandise. In fact, variety or department stores would be more appropriate names; they sell all kinds of goods, including home appliances and wearing apparel. We know that sporting goods stores, also allowed to do business on Sunday, sell guns and ammunition, fishing tackle, boats and motors, shoes, boots, clothing, stoves, electrical appliances, and almost everything a person needs for hunting, fishing and outdoor activities. Bakeries are permitted to remain open, and we know that they sell practically nothing that is not sold in grocery stores. Certainly there is nothing obnoxious about the grocery business that would justify discrimination ; in fact, such discrimination as is shown here cannot be justified on any reasonable basis. And although classification is permitted without denying the equal protection of the laws, a classification based on no adequate reason is invalid. Kansas City Southern Railway Co. v. Road Improvement District No. 6 of Little River County, Arkansas, 41 S. Ct. 604, 256 U. S. 658, 65 L. Ed. 1151, reversing 139 Ark. 424, 215 S. W. 656, 217 S. W. 773. The Supreme Court of the United States said, in Power Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165, reversing 169 Ark. 748, 276 S. W. 599: ‘ ‘ The clause in the Fourteenth Amendment forbidding a State to deny to any person within its jurisdiction the equal protection of the laws is a pledge of the protection of equal laws, Truax v. Corrigan, 257 U. S. 312, 333, 42 S. Ct. 124, 66 L. Ed. 254; Atchison, Topeka & Santa Fe Ry. Co. v. Vosburg, 238 U. S. 56, 59, 35 S. Ct. 675, 59 L. Ed. 1119, and extends as well to corporate as to natural persons, Smyth v. Ames, 169 U. S. 466, 522, 18 S. Ct. 418, 42 L. Ed. 819; Gulf, Colo rado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 154, 17 S. Ct. 255, 41 L. Ed. 666; Santa Clara County v. Southern Pacific R. R. Co., 118 U. S. 394, 396, 6 S. Ct. 1132, 30 L. Ed. 118. It does not prevent a State from adjusting its legislation to differences in situation or forbid classification in that connection; but it does require that the classification be not arbitrary but based on a real and substantial difference having a reasonable relation to the subject of the particular legislation. Truax v. Corrigan, supra, p. 337; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, supra, 155; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78; Ft. Smith Light & Power Co. v. Board of Improvement, ante, p. 387.”

The legislature of the state has not seen fit to discriminate against grocery stores by placing them in a category separate and apart from other mercantile establishments, and provide that they must remain closed on Sundays while other places of business are permitted to remain open; and for the administrative officers of the state to take it upon themselves to inflict such discrimination is clearly contrary to the plain provisions of the Fourteenth Amendment. Hence, I respectfully dissent.


author: George Rose Smith, J. Sam BobiNson, Associate Justice.

text:
    Leek v. Brasfield.
    5-918
    290 S. W. 2d 632
    Opinion delivered April 30, 1956.
    [Rehearing denied June 18, 1956.]

      Brockman & Brockman, for appellant.

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

This action was brought by the appellee to recover damages for the inundation of his farm in Desha County. The complaint asserts that the flooding of the land was due to the defendant’s wrongful conduct in preventing the repair of a dam that protected the plaintiff’s farm. The jury awarded damages to the plaintiff in the amount of $550. The basic question in the ease is whether the defendant’s conduct amounted to an actionable wrong.

The plaintiff’s land lies a mile or more below the defendant’s farm on a drainage canal constructed by Cypress Creek Drainage District. At a point between the two farms, where the artificial drain leaves the bed of Cypress Creek, the district long ago constructed a dam across the creek bed in order to divert the water into the canal. In the spring of 1953 some unknown person cut this dam. The cutting of the dam was beneficial to the defendant, as it provided an additional channel for the escape of water that might otherwise have backed onto his property. But the breach in the dam was detrimental to the plaintiff, whose lower land was exposed to the danger of the flood water’s coming through the gap in the dam.

The plaintiff and another landowner, R. B. Stimson, asked the commissioners of the district to repair the dam. The commissioners, feeling, that it was the district’s duty to mend the break, authorized Stimson to employ a contractor to do the work. Stimson arranged for W. A. Spradlin to repair the dam.

Spradlin proceeded toward the dam site with a piece óf heavy equipment that had cost some thirteen thousand dollars. As Spradlin was making a preliminary survey of his task he met the defendant; upon this encounter the plaintiff bases his cause of action. The jury were warranted in believing that the defendant threatened to tie up Spradlin’s expensive equipment in a court proceeding if Spradlin went forward with the project. Spradlin, who considered the job a minor undertaking that he had accepted as an accommodation to the landowners, yielded to the defendant’s threats and abandoned the work. Within a month or so there were heavy rains which flooded the plaintiff’s lands. There is evidence to show that the damage would not have occurred if the dam had been repaired.

The appellant first argues that Spradlin’s attempt to mend the break was illegal and might in fact have been enjoined if suit had been filed. This contention is without merit. The district was undoubtedly authorized by law to repair the damage to its drainage system. The commissioners, instead of attending to the matter themselves, duly empowered Stimson to employ someone to do the work. We perceive nothing in this situation giving rise to any cause of action on the appellant’s part.

It seems plain that the appellant did not have an unqualified privilege either to obtain an injunction or to threaten to do so. “Litigation and the threat of litigation are powerful weapons. . . . The use of these weapons of inducement is ordinarily unprivileged if the actor has no belief in the merit of the litigation or if, though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication.” Best., Torts, § 767, Comment b. If the appellant had actually brought the suit, maliciously and without probable cause, he would have exposed himself to liability in damages for malicious prosecution. Harr v. Ward, 73 Ark. 437, 84 S. W. 496; Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017.

In insisting that he was at liberty to threaten to file a lawsuit the appellant cites cases holding that such threats do not constitute duress and should be resisted by a man of ordinary firmness. This argument, however, merely shows that the appellant’s conduct may not have been a tort of which Spradlin could have complained; it does not reach the issue of whether that conduct resulted in an actionable injury to the appellee.

It is our opinion that the court properly submitted the issue to the jury. It cannot be doubted that the ap-pellee could have asserted a cause of action against whoever actually cut the dam. The wrongful act of preventing repair was just as injurious to the appellee as the wrongful act of cutting. On this point we adopt the reasoning followed in Parrish v. Parrish, 21 Ga. App. 275, 94 S. E. 315. There two trees on the defendant’s land had been blown over by high winds and had fallen across a stream, forming a barrier that gradually obstructed the natural flow of the water. The plaintiff, who owned the adjoining land upstream, asked that the trees be removed, but the defendant refused either to remove them or to allow the plaintiff to do so. A heavy rain fell and resulted in the plaintiff’s land being flooded. The court held that a cause of action existed, upon the theory that even though the original obstruction was not chargeable to the defendant his subsequent conduct amounted to a tortious maintenance of the condition.

The appellant pretty well concedes that he could not lawfully have used physical violence to prevent the repair of the dam, but he argues that it was permissible for him to achieve his purpose by the use of words alone. From the plaintiff’s point of view, however, it makes no difference which method was followed to accomplish the intended result. The tort lies in the fact that the defendant’s deliberate intermeddling kept the dam from being mended. 11 One who, without a privilege, to dp so, intentionally prevents a third person from giving to another aid necessary to his bodily security, is liable for bodily harm caused to the other by the absence of the aid which he has prevented the third person from giving.” Best., Torts, § 326. While the quoted statement is limited to torts resulting in bodily harm the same principle is applicable to cases involving damage to property. Best., 1948 Supplement, Torts, § 497.

It is suggested that the elapse of a month between the defendant’s wrongful conduct and the actual injury to the plaintiff should prevent recovery. This suggestion involves questions of proximate cause and of the plaintiff’s duty to take additional measures to protect his land. There was no request below that these matters be submitted to the jury, and we are not willing to say as a matter of law that the short time interval was fatal to the plaintiff’s right of recovery.

On the principal issue in the case it is our conclusion that the plaintiff’s proof presented a question for the jury. With respect to the appellant’s other contentions we find no error in the admission of certain testimony or in the giving of an instruction requested by the plaintiff.

Affirmed.

BobiNsoN, J., dissents.

Sam BobiNson, Associate Justice.

I dissent, for the reason that I do not believe a mere threat of filing a lawsuit, such as the one appellant suggested, is actionable.

The appellee Brasfield was the plaintiff in the Circuit Court. He alleged that he had been damaged by water overflowing his land due to a break in a dam or levee, and that the appellant Leek is liable for such damages because he had, by threats, prevented Spradlin from repairing the levee. At the trial, it developed that the alleged threat consisted of Leek, in effect, telling Sprad-lin, the contractor engaged to do the repair work, that he (Leek) was going to be damaged if the break was repaired; that he did not believe Spradlin had a legal right to repair the levee, and that if. he persisted.in doing so a lawsuit would be filed against him.. The evidence further developed that before Leek expressed his final views to Spradlin, he conferred with his attorney.

Leek made no threat of any physical violence. In fact, he instructed Spradlin as to the road to take in order to get to the break in the levee. Leek’s language was not abusive nor insulting; by no process of the imagination can his words to Spradlin be construed to mean that he threatened to do anything other than what he had a legal right to do, and that was, to seek redress in the courts for any damages he might sustain. Even if Leek’s threat to take the matter to court should be considered as morally wrong in the circumstances, it would not give rise to a cause of action. In Cooley on Torts, 4th Edition, page 4, it is said: 1 ‘ An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judged by the standard of strict morality ; nor is it likely that any government ever will. ’ ’ So far as I have been able to ascertain, this is the first time any court has held that a threat to file a lawsuit, in itself, gives rise to a cause of action.

In 17 American Jurisprudence, page 892, § 17, it is said: “It is the well-established general rule that it is not duress to institute or threaten to institute civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights. It is never duress to threaten to do that which a party has a legal right to do, and the fact that a threat was made of a resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud such as will avoid liability on a compromise agreement. ’ ’

Appellee takes the position that, since Leek threatened to test the issue in the courts, he, appellee, had the right to let the break in the levee go unrepaired, wait for the water to overflow his land, and then make Leek pay for the damages merely because Leek threatened to appeal to the courts for the enforcement of any rights he had. In the future, when anyone is threatened with a lawsuit, in the event he takes certain action, he can safely refrain from doing the act, whatever it may be, and if he is thereby damaged, he can then collect from the one who threatened litigation.

The established law that a threat of litigation in itself does not give rise to a cause of action should”"not be disposed of by saying that this law applies to Spradlin but does not affect Brasfield. Spradlin was the contractor employed to do the work. If he had no cause of action against Leek because of the threat to file a lawsuit, Brasfield certainly had no cause of action because of the alleged threat. There is no contention that Brasfield was not fully informed as to everything that transpired; sufficient time elapsed between the threat of litigation made by Leek and the time the land was overflowed that Bras-field could have taken any action he might have desired to enforce any rights he had.

If the threat by Leek is not actionable, then Brasfield has no cause of action, because a threat of filing suit is all that Leek did. Ordinarily, a mere threat is not actionable. In Cooley on Torts, 4th Edition, page 35, it is said:

“A threat to commit an injury is also sometimes made a criminal offense, but except in cases where a threatening gesture may constitute an assault, it is not an actionable private wrong. Damages cannot be recovered for a mere threatened injury. Many reasons may be assigned for distinguishing between this case and that of an assault, one of them being that the threat only promises a future injury, and usually gives ample opportunity to provide against it, while an assault must be resisted on the instant. But the principal reason, perhaps, is found in the reluctance of the law to give a cause of action for mere words. Words never constitute an assault, is a time honored maxim. Words may be thoughtlessly spoken; they may be misunderstood; they may have indicated to the person threatened nothing but momentary spleen or anger, though, when afterward reported-by witnesses they seem to express deliberate malice and purpose to injure. Even when defamation is complained of the law is very careful to require something more than expressions of anger, reproach, or contempt, before it will interfere; justly considering that it is safer to allow too much liberty than to interpose too much restraint. And comparing assaults and threats, another important difference is to be noted: In the case of threats, as has been stated, preventive remedies are available; but against an assault there are usually none beyond what the party assaulted has in his power of physical resistance. ’ ’

In 52 American Jurisprudence, page 380, it is said: “A mere threat to commit an injury is not an actionable private wrong, since it is only the promise of doing something which in the future may be injurious, and may never be carried into effect. ’ ’

In a note on the subject in 5 A. L. R. 1287 it is said: “It will be observed that it is held in the reported case [Brooker v. Silverthorne, 111 S. C. 553, 99 S. E. 350, 5 A. L. R. 1283] that an action will not lie for merely abusive language nor for language of a threatening nature unless it was such as to put a person of ordinary reason and firmness in fear of bodily hurt. ’ ’

“Because a person has a right to threaten to do that which he has a right to do, a threat to bring an action to enforce a lawful demand, or one which he in good faith believes to be lawful, does not constitute duress.” Wise v. Midtown Motors, 231 Minn. 46, 42 N. W. 2d 404, 20 A. L. R. 2d 735.

The majority opinion cites Parrish v. Parrish, 21 Ga. App. 275, 94 S. E. 315, but, when the facts in that case are considered, it will be seen that there is not much similarity between that case and the one at bar. There, a stream became clogged by fallen trees, and the property owner would not remove the obstruction nor permit his neighbor to do so. As a result, the water backed up on the neighbor’s property. Refusal of the owner of the property where the obstruction existed to permit his neighbor to come on the land to remove the trees from the water amounted to an affirmative wrongful act. The court stressed the point that one who is injured in his riparian rights may recover damages therefor. Of course, the neighbor would not dare go on the land without permission. He would have been guilty of trespassing, and might have been met with physical violence. Here, of course, Leek had no right to physically prevent the repairing of the levee, and he made no threat of any such attempt; he merely said he was going to court to enforce whatever rights he might have. Although he may have lost his ease in court, there would be no actionable wrong in his bringing suit; no malice on his part is alleged or proved.

The majority opinion cites Restatement, Torts, § 326, as authority for the proposition that one may be liable for preventing another from going to the aid of one in trouble, and cites Restatement, Torts, 1948 Supplement, § 497, to the effect that the rule also applies to cases involving damage to property; however, in my opinion, the cited authority does not imply that a cause of action may be based on a threat to bring a legal cause of action.

Appellant Leek had a perfectly legal right to file a suit to prevent the repair of the levee. He did not threaten to do anything other than what he had a legal right to do. This court said, in Ellis v. First National Bank of Fordyce, 163 Ark. 471, 260 S. W. 714: “It is not duress to threaten to do that which a party has a legal right to do, and the fact that a party threatens to bring suit to collect a claim constitutes neither duress nor fraud, and a compromise of such a claim is binding in law. ’ ’

And the court said, in Vick v. Shinn, 49 Ark. 70, 4 S. W. 60: “If there is in fact a cause of action when the threat is made, the plaintiff, by bringing suit, would only enforce a legal right; if there was no cause of action . . . , the party threatened should exercise the ordinary degree of firmness which the law presumes every man to possess, and meet the issue of the unjust suit. One cannot be heard to say that he had the law with him, but feared to meet his adversary in court. ”

That is exactly what has happened here. The appel-lee says, in effect: We have the law with ns. Leek had no legal right to prevent the closing of the gap in the levee, bnt, since he threatened to file suit, we were afraid to meet him in court.


author: Paul Ward, Associate Justice. George Rose Smith, J.,

text:
    James v. Humphrey, Auditor.
    5-950
    289 S. W. 2d 691
    Opinion delivered April 30, 1956.

      Herndon .& Sckoggen, for appellant.

      Tom Gentry, Attorney G-eneral, and Ren J. Harrison, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellants, as taxpayers of the State of Arkansas, brought this suit in the Chancery Court of Pulaski County to have declared illegal and void a large number of contracts for printing and supplies for the State of Arkansas awarded on bids received by the Secretary of State on July 1,1955. From an adverse decision appellants prosecute this appeal. To reverse the decree of the trial court appellants rely on the following grounds: First, the advertisement for proposals published by the Secretary of State did not advertise for separate sealed proposals as specifically required by Section 14-307 of the Statutes of Arkansas. Second, the bids were not submitted as separate sealed proposals. Third, the opening of bids by the Secretary of State as required by Section 14-318 of the Arkansas Statutes was not complied with in that bids from various bidders on the several contracts sealed together in one envelope were not opened at a public meeting at the time and place designated in the advertisement. On the contrary, such envelopes were merely slit and the contents afterward removed and tabulated. Fourth, that the keeping of the bids opened and unpublished over a period of five days, two of them being holidays, violated the secrecy of the proposals and renders contracts let thereon invalid.

In all parts material to this case said Section 14-307 provides as follows: The Secretary of State shall publish a notice in the paper “stating that separate sealed proposals for the furnishing of the supplies . . . are invited . . . ” and will be received at his office on the 15th day after the first publication. (Emphasis supplied.)

In like manner said Section 14-318 provides substantially as follows: “At the time and place designated in the said advertisement for the opening of bids the Secretary of State, in the presence of such persons as choose to attend, shall open all bids submitted, and shall award each of the said contracts, respectively to the person or persons who, after due deliberation, he [they] shall find to be the lowest bidder in the aggregate for the same.” Two or more contracts may be awarded to the same person.

There is no dispute about the facts as developed by the testimony, and it is agreed that the chancellor stated them correctly, as follows: ‘ ‘ The principal facts, as developed by the evidence, are undisputed. The Secretary of State advertised for proposals for the furnishing of printing and supplies under a number of different categories or classifications. Numerous printers and suppliers throughout the State submitted proposals on one or more of these categories. Some printers submitted bids on more than one classification. All proposals were submitted on forms supplied or approved by the State and each proposal was submitted on a separate form with a bond attached thereto. In some instances, however, several proposals were enclosed and sealed in the same envelope before delivery to the Secretary of State.

“At the appointed hour (11:00 A. M. on July 1, 1955), a number of the bidders assembled at the Office of the Secretary of State. The Secretary and his staff then proceeded to slit open the envelopes but, at that time, did not remove the contents from them. This activity was done in the private office of the Secretary of State which then contained his staff and approximately thirty interested bidders. Because of the crowded condition of the room, the Secretary of State indicated that more room was needed to spread out and properly tabulate and consider the various proposals. One of the bidders ‘moved’ that the interested spectators move out and leave the tabulation to the Secretary and his staff; whereupon most of the interested spectators left the private office of the Secretary of State. There is no evidence that the Secretary of State or his assistants asked that anyone leave. The door to this office was never closed and there was no indication that the spectators or other interested citizens could not view the proceedings, except for the limitation of space. The business of tabulating the bids continued for the next several days, interrupted only by necessary recesses for meals, and it was dispensed with at night and throughout an intervening weekend and holiday. Throughout this time several persons interested in the process observed the tabulation and examination of the bids. During the time actual tabulation was not being conducted, the proposals were kept in a safe in the office of the Secretary of State.”

We agree with the conclusion reached by the chancellor and in support thereof we adopt his language as set out in the decree: “The first two contentions of plain- ' tiffs may be dealt with together, as they refer to the ■ requirement in the statutes regarding the advertisement and submission of ‘separate sealed proposals.’ Plaintiffs contend that this phrase, as used in the statute, re-. quires the Secretary to advertise for and the bidders to submit proposals which are sealed separately; and they contend that the fact that several proposals from one or more bidders were sealed together in one envelope is a violation of the statutory requirement. I cannot agree with this position. The apparent reason for the requirement of separate proposals is to facilitate the comparison of one proposal to another and to safeguard the public against possible collusion in the submitting of bids. The requirement that the proposals be sealed is, of course, to protect against tampering with the proposal after it has left the hands of the bidder. These safeguards are protected even though several are sealed in the same container or envelope until, at a given time, they are opened by the proper authorities of the State. Thus, under the proof here, all proposals submitted were separate and were sealed in such a manner as to meet the requirement of the statutes. Parenthetically, a grammatical construction of the phrase also supports this view. In the phrase ‘separate sealed proposals’ the words separate and sealed are both adjectives modifying the noun proposals. The exact meaning being, therefore, that the proposals should be separate from one another and that they should be sealed. This does not precisely mean, as plaintiffs contend, that each proposal should be sealed separately from every other proposal. Had that meaning- been intended, the proper form of the phrase would have been ‘separately sealed proposals.’

“Plaintiffs also contend that the Secretary of State did not comply with the statute (Ark. Stats. (1947) Section 14-318) in opening the bids and that after opening them they were left unpublished for a period of five days, thus violating the secrecy of the proposals, and that either of these alleged violations rendered the contracts let on the bids invalid. Section 14-318, Ark. Statutes for 1947, provides that at the time and place designated in the advertisement the Secretary of State, ‘in the presence of such persons as choose to attend shall open all the bids submitted and shall award each of the said contracts respectively to the person or persons who, after due deliberation, they shall find to be the lowest bidder in the aggregate for the same.’ There is nothing in the evidence that indicates a violation of this portion of the statute. The bids were opened beginning at 11:00 A. M. on July 1, 1955, at the office of the Secretary of State, which was the time and place designated in the advertisement. Because of the number of proposals and the number of contracts to be bid upon, the task of examining, tabulating and comparing the proposals required considerable time. The phrase ‘after due deliberation’ from the quoted portion of the statute above indicates that the Secretary should take a reasonable time to determine the lowest responsible bidder for each contract. It would be impossible for the task to be completed at the exact instant of 11:00 A. M. There is no proof in this case to the effect that any person who chose to attend was prohibited from doing so; on the contrary, there is in this record the testimony of several who did attend and observe the tabulation from time to time. The fact that the bids were left open and unpublished for a period of five days was necessary because of the multiplicity of proposals coupled with intervening holidays. Certainly the statutes do not require the deliberation of bids to be conducted continuously until the final lowest responsible bidder has been ascertained. Thus, under the facts of this récord, the manner in which the Secretary proceeded to tabulate the bids after their original opening does not violate the statutes governing this activity. ’ ’

In accordance with the above, the decree of the trial court is affirmed.

Affirmed.

Justice George Rose Smith dissents.

George Rose Smith, J.,

dissenting. In 1874 the legislature adopted a detailed plan for safeguarding the integrity of competitive bids for certain public contracts. It seems to me that the majority opinion, by its failure to give effect to two provisions of the 1874 law, approves a procedure far more lax than that which the lawmakers meant to sanction.

The statutory scheme is a simple but effective one. ■ It is contemplated that a single advertisement will invite -bids for a number of different contracts, which must be let separately. To the end that the bids for each particular contract may be considered together the law requires that separate sealed proposals be submitted and that each proposal be indorsed to show the contract to which it pertains. Ark. Stats. 1947, §§ 14-307 and 14-313. In this way all the sealed bids for a particular contract can be grouped together and opened at the same time. It is required that the bids be opened in the presence of such persons as choose to attend. Ark. Stats., § 14-318. The contract is then awarded, after due deliberation, to the lowest responsible bidder. Ibid. The vital precautions against the possibility of fraud or collusion lie in the requirement that separate sealed proposals be submitted and that these proposals be opened in the presence of any interested persons who care to be present.

The procedure that is actually being followed is not that contemplated by the statute. A person who bids for more than one contract is permitted to inclose all his proposals in a single sealed envelope. This practice makes it impossible to assort the sealed envelopes and open simultaneously all those relating to a particular contract. Instead there is originally a. mere slitting of the envelopes ; it may be several days before the bids for a given contract are gathered together and compared. Yet the slitting of the envelopes effectively destroys the secrecy of every bid and leaves the way open for fraudulent manipulation in the interval that elapses before the bids are compared. Of course the issue is not whether such fraud has actually occurred; it is whether the law permits even the possibility to exist.

In approving the practice that now prevails the majority first hold that the requirement of “separate sealed proposals” is satisfied by the inclosure of several proposals in one envelope. In this view the words “separate” is considered as having been intended to prevent a bidder from lumping" two or more contracts together in one proposal. This interpretation of the law is unsound. Tie. legislature had already provided, by § 3 of tie act, tiat tie various contracts must be let separately. Ark. Stats., § 14-305. There was no need to repeat tie word “separate” in tie same sense in § .4 of tie.act; it would add nothing to what had already been said. In tie latter section tie word means something else: tiat tie various sealed proposals must themselves be separate from one another. (This construction is of course grammatically impeccable, as the'adjective “separate” can perfectly well modify tie complete concept of a “sealed proposal” as distinguished from a proposal tiat may be sealed or unsealed.) . •

Tie majority also hold tiat tie act of slitting tie envelopes meets tie statutory direction tiat tie bids be “opened” in tie presence of witnesses. This holding hardly seems to merit discussion. It is at least difficult to see why an interested person would make a trip to tie state capitol merely to observe tie slitting of envelopes. What he would be interested in is tie privilege of being present when tie contents of tie envelopes are withdrawn and made available for inspection. Tiat is tie privilege tiat is denied to him by tie majority’s decision.


author: Sam RobiNsoN, Associate Justice.

text:
    Cooper v. Chapman.
    5-908
    289 S. W. 2d 686
    Opinion delivered April 30, 1956.

      E. J. Butter, for appellant.

      Mann & McCulloch, for appellee.
   Sam RobiNsoN, Associate Justice.

While a guest in an automobile owned and operated by the appellant, R. O. Cooper, the appellee, Nettie M. Chapman, was seriously injured. She filed suit against Cooper, alleging that he operated the car in a willful and wanton manner which resulted in her injuries. The case was defended on the theory that the defendant Cooper’s conduct was not willful and wanton within the meaning of our guest statute. Ark. Stats., §§ 75-913-14-15. There was a judgment for Mrs. Chapman in the sum of $7,500.00, and Cooper has appealed.

After all the evidence was introduced, Cooper moved for a directed verdict on the ground that the evidence was not sufficient to take the case to the jury on the question of whether his operation of the car amounted to willful and wanton misconduct. His motion was overruled.

There were three passengers in the car in addition to Cooper: Mrs. Chapman, Mrs. Leslie and Mrs. Riley. The evidence shows that Cooper had been drinking to some extent; there is actual proof of only two drinks, but he had a bottle of whiskey with him in the car, and while at the hospital after the accident, an officer smelled alcohol on his breath. Mrs. Leslie, who was sitting in the back seat, testified that she looked at the speedometer and the car was traveling 100 miles an hour. Both she and Mrs. Chapman attempted to get Cooper to reduce the speed, but he continued at the high rate of speed until a moment before the wreck. Mrs. Leslie testified that he went off on the shoulder of the road, and then she said: ‘ ‘ The last thing I remember we were begging him to slow down.” On cross-examination, the witness testified that Mrs. Chapman complained to Cooper that he was going 100 miles an hour, and begged him to slow down. The witness further testified that both she and Mrs. Chapman repeatedly asked him to slow down, and that she stated to Cooper: “If you are going to drive that fast I would rather you would stop and let me out.”

Mrs. Chapman testified that she did not actually look at the speedometer, but she knew he was driving awfully fast. She asked him to slow down. “I told him he was flying too low.” On two different occasions, she asked him to slow down; Mrs. Leslie repeatedly asked him to slow down, and when he did finally slacken his speed it was only to the extent of reducing it about 15 miles an hour.

Cooper made the remark: “I didn’t know I was going a 100.” The car turned over with such terrific force that it knocked Cooper and two of the passengers unconscious; however, although Mrs. Chapman was seriously injured, she was not rendered unconscious. The car turned end over end; it did not collide with anything, Cooper merely lost control by reason of the terrific speed.

Mrs. Riley, another passenger in the car, testified for the defendant, but admitted on cross-examination that she had previously told one of the attorneys for the plaintiff that they were going over 100 miles an hour. Cooper admitted that Mrs. Chapman told him he was ‘ ‘ flying too low without wings. ’ ’ He also stated that the car would go over 100 miles an hour, and on another occasion, he had driven it 115 miles an hour.

Under the evidence in this case, the jury could have reached the conclusion that the car was going between 85 and 100 miles an hour at the time of the wreck; that the passengers, particularly Mrs. Leslie and the plaintiff, Mrs. Chapman, had repeatedly requested Mr. Cooper to slow down, but that he had not done so to any appreciable extent. Such terrific speed on the road from Forrest City to Wynne in the night time, over the protests of the passengers, is sufficient ground to base a finding of willful and .wanton misconduct. To sustain Ms argument that the evidence was not sufficient to send the case to the jury, appellant cites several eases, including Splawn, Admx. v. Wright, 198 Ark. 197, 128 S. W. 2d 248; Ward v. George, 195 Ark. 216, 112 S. W. 2d 30; Froman v. J. R. Kelley Stave & Heading Company, 196 Ark. 808, 120 S. W. 2d 164; Hodges v. Smith, 175 Ark. 101, 298 S. W. 1023; Haag v. Morgan, 225 Ark. 664, 284 S. W. 2d 866; Edwards v. Jeffers, 204 Ark. 400, 162 S. W. 2d 472; Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723, and Steward, Administrator v. Thomas, 222 Ark. 849, 262 S. W. 2d 901. But all of these cases can be distinguished on the facts. ■ We think the case of McAllister, Administrator v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40, is more closely in point with the facts of the case we have here. There, on evidence very similar to the evidence in the case at bar, it was held to be a question of fact for the jury as to whether the operator of the car was acting in a willful and wanton manner, and we think the McAllister case is controlling. In that case, we quoted from Splawn, Admx. v. Wright, supra: “Whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others must be determined by the facts and circumstances of each individual case. ” And, in Steward, Administrator v. Thomas, supra, we said: “It is one thing to persistently pursue a course of driving in a reckless and dangerous manner over the protest of the occupants of the car and an entirely different thing to act in a negligent manner on the spur of the moment.’’

Appellant further contends that the testimony of Officer Beech, a State Patrolman, expressing his opinion as to the speed at which the car was traveling at the time of the wreck, was inadmissible. He was asked if his investigation showed the speed of the vehicle just before the accident. The attorney for the defendant spoke up and said: “Let him qualify the witness.”

The court said: “The witness should be qualified, whether or not he examined the vehicle involved and he should state what other evidence he based his opinion on, if lie has any. First, do you have an opinion from your investigation as to the approximate speed of the vehicle at the time of the wreck? ’ ’

A. “Yes, sir.”

The court: ‘ ‘ Tell the jury upon what you base that opinion?”

A. ‘ ‘ The opinion is based on the distance the vehicle traveled after it got out of control. ’ ’

The court: “Proceed.”

Counsel for plaintiff then questioned the witness with reference to his opinion as to the speed the car was traveling and no further objection was made. Beech then testified that in Ms opinion the car was traveling about 95 miles an hour at the time of the mishap. In these circumstances, it cannot be said that there was any objection to the witness giving his opinion as to the speed of the car. If counsel for defendant was not satisfied as to the witness’s qualifications and the basis on which he formed his opinion as to the speed, he should have made a further objection, as the court had apparently complied with counsel’s request that the witness be qualified.

It is argued that there was error in the giving of several instructions and the failure to give others. We have carefully examined the instructions, and we find no error.

It is further contended that the verdict in the sum of $7,500.00 is excessive. Mrs. Chapman was seriously and painfully injured, her injuries consisting of a broken neck, six broken ribs, a leg broken in two places, and her knee was injured to such an extent that an operation may be required at a later date. Her back was burned, causing disfigurement; she suffered concussion, severe contusions and lacerations, and shock.

She was a waitress in a cafe at Forrest City, earning $21.00 a week and her meals, and tips which averaged about $10.00- a week. .Her hospital bill was approxi-xnately $1,200.00, and her doctor bill about $600.00. She was injured on the 16th day of April, 1955; the case was tried on the 17th day of August, 1955, and there was evidence that she might not be able to go to work for another year. We cannot say that the verdict was excessive.

Finding no error, the judgment is affirmed.


author: Lee SeamsteR, Chief Justice.

text:
    Hoskins v. Melton.
    5-943
    289 S. W. 2d 884
    Opinion delivered May 7, 1956.

      Louis Tarlowshi, for appellant.
    No brief for appellee.
   Lee SeamsteR, Chief Justice.

The appellee, B. E. Melton, transacting business as Melton Truck Line, filed an application with the Arkansas Public Service Commission for a certificate of public convenience and necessity to transport lumber, plaswood and treated timber, within the State of Arkansas by motor vehicle over eleven designated routes. The appellants herein, D. W. Hoskins, C. N. Fikes, H. J. Fikes, D. L. Baker and Arkansas Motor Freight Lines, Inc., appeared before the Commission and protested the granting of such certificate. Each of the appellants alleged they were certified common carriers in Arkansas and that each was authorized to haul lumber. They further alleged that no public need existed for the proposed service of appellee; that appellants were able to furnish the equipment to supply any additional needs of the public in hauling lumber in the state. After consideration of the testimony and evidence, the Commission issued a permit to the appellee.

The appellants appealed to the Pulaski Circuit Court, Second Division, from the Commission’s order granting appellee the permit. The court modified the Commission’s order and remanded the case to the Commission with directions to grant the applicant (appellee) a certificate of Public Convenience and necessity (permit) in accordance with the court’s conclusion of facts. The instant appeal is from the Pulaski Circuit Court’s order, approving the Commission’s action of granting a certificate of public convenience and necessity (permit) to the appellee.

For reversal, the appellants list the following points.

(1) The judgment of the Pulaski Circuit Court and the Order of the Public Service Commission are arbitrary and against the weight of the evidence, and in conflict with the principles enunciated by this Court in such cases as Missouri Pacific Railroad Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644, and Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907.

(2) The judgment of the Pulaski Circuit Court is erroneous and arbitrary in authorizing appellee to render any service and to render service to intermediate points along the highways shown in its judgment, since the record is wholly devoid of any proof tending to show public need for service to intermediate points, or elsewhere.

(3) The Amendment to Order, dated May 31, 1955, issued by the Public Service Commission, permitting order to become immediately effective, is arbitrary and unlawful in direct contravention of Section 7 (f) of Act 397 of 1955.

(4) The judgment of the Court, and order of the Commission, in granting appellee any authority to operate as a motor carrier is arbitrary and contrary to the weight of the evidence and contrary to § 2 and 9 (a) of Act 397 of 1955.

The evidence is clear -that appellants, with the exception of D. W. Hoskins, do not serve, nor do they have permits authorizing them to service the area which the appellee proposes to service. The appellant, D. W. Hos-kins, services some but not all of the area. The record reveals that none of the appellants transports plaswood. The evidence further reveals that appellee has the equipment and desires to serve the lumber producers in a large area situated around Nashville and southwest Arkansas. It is the intention of appellee to deliver their products to other portions of the State, namely central, northwest and northeast Arkansas.

We hold that a preponderance of the evidence sustains the Commission’s findings that there is a public need for the trucking service proposed by appellee in the area covered by the certificate. Potashnick Truck Service Inc. v. Missouri and Arkansas Transportation Co., 203 Ark. 506, 157 S. W. 2d 512; Southeast Arkansas Freight Lines Inc. v. Arkansas Corporation Commission, 204 Ark. 1023, 166 S. W. 2d 262.

Finding no error in the judgment of the trial court, the case is affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Calvert Fire Insurance Co. v. Eaton.
    5-957
    289 S. W. 2d 896
    Opinion delivered May 7, 1956.

      Kaneaster Hodges, for appellant.

      Harry L. Ponder and D. Leonard Lingo, for ap-pellee.
   J. Seaborn Holt, Associate Justice.

Appellee, No-land Eaton, purchased an automobile for $675 from E. C. Tate. Appellant,. Calvert Fire Insurance Co., carried collision coverage on the car, with the usual $50 deductible clause. On November 21, 1953, the day following the purchase of' the car, it was totally wrecked. Appellee brought this suit to collect from appellant $122 alleged due on the insurance contract. He alleged in his complaint: -‘On November 21, 1953, while said policy was in full force, plaintiff’s automobile was damaged in a collision. An adjuster, acting as agent for defendant, called upon plaintiff, and it was agreed between them that the automobile was a total loss, and that its actual cash value at the time of loss was $675.00. From this amount there was deducted $50.00 leaving a balance due from defendant to the plaintiff of $625.'00. The adjuster, acting for defendant, informed plaintiff that the salvage from the wreck had been sold by the adjuster to a third party for a net amount of $122.00 and that this amount would be paid by the purchaser to plaintiff. Eelying upon the assurance of the adjuster that $122.00 would be paid to him, plaintiff agreed to accept from defendant $503.00 representing the amount due him after deducting $50.00 and $122.00 from the agreed actual value of $675.00. The balance of $122.00 due to this plaintiff from defendant, under his policy of insurance, has not been paid, either by the purchaser, of the salvage, or defendant, although demand has been made.” Appellant answered with a general denial, and in addition pleaded that: “On December 22, 1953, Eoland Eaton and B. F. Eaton executed and delivered to the defendant, Calvert Fire Insurance Company, a Loss or Damage Agreement by the terms of which the said Messrs. Eaton represented and agreed that the total loss or damage resulting to them from the automobile mishap above mentioned was in the sum of $503.00 * * *

“In consideration of and in reliance upon the * * * Loss or Damage Statement, the defendant Company issued its draft in the amount of $503.00 on January 22, 1954 and, upon the direction of plaintiff, delivered the same to Commercial Credit Corporation of Jonesboro, Arkansas.
“The entire agreement of the parties in settlement of the loss was integrated into the above mentioned written instrument. The plaintiff cannot by parol engraft other or different terms upon the written agreement.
“The defendant Company issued and delivered its settlement draft in reliance upon the above mentioned Loss or Damage Agreement and plaintiff is estopped to deny or controvert its terms.”

Trial before the court sitting as a jury resulted in a judgment for appellee for the amount sought, and this appeal followed. For reversal appellant argues: “The Loss or Damage Agreement of the parties was an integration of all their parol understandings and the plaintiff cannot vary or add to it by parol testimony. Hence, the parol testimony of plaintiff and other witnesses was inadmissible; the defendant issued and delivered its settlement draft in reliance upon the Loss or Damage Agreement and the plaintiff is estopped to deny or controvert its terms; the Contract of Insurance provides there shall be no abandonment to the Company,” and appellee, was, therefore, bound by this release. Appellant would be right in its contention if there were no substantial evidence to substantiate appellee’s contention that the release agreement was obtained by misrepresentation and fraud, (whether intentional or unintentional) on the part of appellant’s agent, Sanders, in procuring the release agreement.

After a careful review of the evidence presented, we have concluded that there was substantial evidence of fraud as alleged by appellee. The evidence shows that appellant, insurance company, took possession of the salvage through its agent, Sanders, asked for bids and secured a bid from Charlie Metzler of $122 for the salvage. Sanders and appellee, Eaton, agreed that the cash value of the car was $675 less the $50 deduction, — or $625 —, and that the net amount due on the insurance contract was $625. Appellee Eaton testified that he was to get $625, that Mr. Sanders paid $503 and that that is all he, Eaton, has gotten out of it. He further testified that they wanted him to sign the release so that the car could he sold for salvage, that the insurance company was selling it for salvage, that he, Eaton, took no bids on the salvage and that Mr. Sanders did not read the release to him before he signed it and that he did not read it. “Q. Did Mr. Sanders tell you whether or not you would get $625, or get the benefit of it? A. Yes, sir. Q. What did he say? A. The way I understood the contract was written out $675.00. I had insurance to cover that. I still owe $137.00 on this wrecked car. Q. What did Mr. Sanders tell you about whether you would get $625.00? A. Yes, sir, or else I wouldn’t have signed any release on $503.00. . . . Q. Did Mr. Sanders tell you if you signed the release you would get your $625.00? A. Yes, sir.”

Q-. W. Sanders testified, in effect, that he makes up salvage descriptions, sends them to the Memphis office, which in turn accepts bids from interested parties. That he told Eaton that Metzler would pay him $122 if he sold the salvage to him, that his company (appellant) got the bid and no one contacted Metzler but the company.

R. C. Tate, the dealer who sold the car to Eaton testified: “Here is what Mr. Sanders told me— he told me that the owner of a car wouldn’t get the salvage in his name, * * * he couldn’t even bid on it. He told me that was the law, but he told me in this case, being as Mr. Metzler had bid on this he would get Mr. Eaton to sign a release and Mr. Metzler could pay him because the title had never been changed. Q. In other words, the title was in Mr. Eaton? A. That is right, I sold it late one afternoon and the fellow hit him that night. That is why he wanted him to sign the release and let Mr. Metzler pay him. Q. Because it was Mr. Eaton’s ear ? A. Because the title was still in Eaton’s name. ’ ’

From the above, as we have indicated, we think that there was substantial evidence, that the release involved here was obtained from Eaton by misrepresentation on the part of appellant’s agent, Sanders. . In other words, that the release was induced by Sanders.’-.promises to Eaton, that Metzler would pay him, Eaton, in addition to the $503.00, $122.00 for the salvage. In the case of Gold Shaft & Block Co. v. O’Keefe, 200 Ark. 529, 139 S. W. 2d 691, we said: “There can be no. doubt from the record in this case that appellee signed the release relying absolutely on G-ouldman’s statement that the property damage was not mentioned and that he would not have signed it otherwise, but was induced to believe by Gouldman that it was a release for the damages for personal injury. Under the circumstances the appellee had the right to rely on Mr. Gouldman’s statement.” In Lyle v. Federal Union Insurance Co., 206 Ark. 1123, 178 S. W. 2d 651, we said: “In the instant case, the jury should have been instructed that if it found that appellants and appellees agreed upon a settlement of appellants’ claim at the sum of $2,650 and appellants were led to accept and cash the drafts for a less amount, upon the assurance by agents of the insurance companies, that the balance due under the compromise would be paid, appellants were not bound by the acceptance of these drafts and would be entitled to recover the amount of the damage as shown by the testimony, less the amount paid thereon.” The principles of law involved in this Lyle Case would apply with equal force here. In the present case it appears that appellee, in his agreement with appellant, accepted the payment of $503 on the representation that there was a balance due, under the settlement, of $122 which would be paid to appellee and appellee was not estopped by accepting the draft for $503, since he was induced to accept it, as indicated, through misrepresentation, nor was appellee required to make any tender, in the circumstances. See Unionaid Life Insurance Company v. Harkey, 187 Ark. 87, 58 S. W. 2d 422.

Affirmed.