author: Lyle BrowN, Justiee.

text:
    HermaN B. Young et al v. Ark. State Highway Commission
    5-4217
    415 S. W. 2d 575
    Opinion delivered June 5, 1967

      Harold Sharpe and Spitzberg, Bonner, Mitchell & Hays; By: John P. Gill, for appellant.

      John B. Thompson and Philip N. Gowen, for ap-pellee.
   Lyle BrowN, Justiee.

This is an appeal by the landowners from a jury award in an eminent domain proceeding. Appellants Herman B. Young and wife own two rectangular tracts which are traversed by Interstate 40 in Monroe County. From one of these tracts, appellee, the Highway Commission, took fee title to 42.54 acres and temporary construction easements totaling 3.27 acres. From the other tract the commission acquired fee title to 32.50 acres and, a temporary easement on 1.66 acres. The jury awarded $14,000 for the first described taking and $7,000 for the second.

The landowners advance three points for reversal. These points will be numbered, italicized, and discussed in sequence.

1. The court erred in refusing to instruct on severance damages.

The landowners submitted an instruction which recited that “the property condemned constituted only a part of the lands owned by the landowner” and that “the landowner is entitled to just compensation for the fair market value of the land actually taken . . . and also the actual amount of compensation for the lowering, if any, of the fair market value of the remainder land . . . ” In other words, appellant sought an instruction measuring his compensation by the value of the lands taken plus damages to the remainder.

Many cases could be cited which set out our measure of damages in partial-taking cases. It has long been the difference between the market value of the whole tract before the taking, and the market value of that part which remains after the taking, less any enhancement peculiar to the lands. St. Louis, Arkansas and Texas R. R. v. Anderson, 39 Ark. 167 (1882); Myers v. Arkansas State Highway Comm’n, 238 Ark. 734, 384 S. W. 2d 258 (1964). In the case at bar the trial court gave such an instruction without objection.

Three alternative formulas are recognized for measuring just compensation in partial-taking cases: (i) The value of the port taken rule; (ii) Value of the part taken plus damages to the remainder rule; and, (iii) The before cmd after value rule. One authority contends the last method “more easily skirts the danger of double counting of damages and comes closer to a, true approximation of the actual damage suffered by the owner.” 1 Orgel, Valuation Under the Law of Eminent Domain, § 48-64 (2d Ed., 1953). The distinction between the second and third formulas is narrow, but the important point here is that they are alternatives. Therefore, it would be inappropriate to instruct the jury as to both formulas, as requested by appellants. This, does not mean that evidence of the value of the lands taken plus' damages to the remainder is not admissible. In fact, it is appropriately considered by appraisers as two of the many guides for determining “before and after values.” For example, all the appraisers in this case followed that procedure. All of the value witnesses diminished the value of the lands remaining because of severance.

A number of our cases point out that in a partial taking, the landowner is entitled to the value of the lands taken plus damages to lands not taken. Clark County v. Mitchell, 223 Ark. 404, 266 S. W. 2d 831 (1954) ; Ross v. Clark County, 185 Ark. 1, 45 S. W. 2d 31 (1932); Hempstead County v. Huddleston, 182 Ark. 276, 31 S. W. 2d 300 (1930). In Ross, the court in fact instructed the jury on that criteria, doubtless because of the very narrow distinction between that rule and the before and after rule. Whether it is error to ever use, in an instruction, the criteria in Ross is not before us. We do, however, hold in the case here that it was proper for the trial court to refuse to instruct on both bases of recovery.

Finally on this point, appellants contend that they were “prohibited from presenting to the jury the explanation of the law” as reflected by their proffered instruction. We know of no reason why counsel could not present to the jury a resume of severance damages which the many witnesses testified they used in arriving at the “before and after” values. The standard instruction given by the court, without objection, on full compensation, covered every admissible element of damage, of which severance was only one.

2. A witness may not express an opinion on the fair market value of property if the basis for that opinion is a sale of that property itself.

Witness H. K. McMurrough-qualified as an expert appraiser and testified for the commission. In discussing comparable sales he gave the price paid by the Youngs for the subject property. That sale was in the same year of condemnation. A recent sale of the identical property —assuming* a bona fide and voluntary transaction — is admissible. Orgel, Valuation Under the Law of Eminent Domain, § 134 (1936); Jahr, Law of Eminent Domain Valuation and Procedure, § 136 (1957). McMurrough testified that he considered other sales he believed comparable.

Under Point 2, the landowners also argue the trial court erred in refusing their motion to strike the entire testimony of witness McMurrough. Particularly with reference to one of the tracts, McMurrough did not return to inspect the land after Young had apparently cleared approximately 815 acres. The clearing was completed before the agreed date of taking. A motion to strike McMurrough’s appraisal on that acreage, made in proper form, would have been well taken. However, appellants’ motion to strike went to the witness’ entire testimony. Had that motion been granted it would have, in effect, told the jury to disregard testimony that was admissible. McMurrough described the acreage in each tract, the amount of land taken, the division of the tracts by the new highway, the amount appellants recently paid for the land, and the condition of the roads during a rainy season. That testimony was clearly admissible. When part of a witness ’ testimony is competent it is proper to refuse a motion to exclude his entire testimony. Arkansas State Highway Comm’n. v. Carpenter, 237 Ark. 46, 371 S.W. 2d 535 (1963); Arkansas State Highway Comm’n. v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802 (1963).

3. The jury must return separate verdicts for damages resulting from taking the fee and damages resulting from taking temporary easements.

Appellant cites a single authority — Jackson v. Denno, 378 U. S. 368 (1963). This landmark criminal case held that the voluntary nature of Jackson’s confession should be determined prior to the admission of the confession to the jury adjudicating guilt or innocence. We fail to see the applicability of that decision to this case.

Appellant did not ask for separate verdicts. No objection was made to the use of general verdict forms. In fact, under the circumstances it would not have been appropriate to submit separate verdict forms covering the temporary easements. This is true because in evaluating damages the landowners’ witnesses combined the easement acreage with the fee simple title acreage. In other words, they treated the easement acreage as a taking in fee. No witness gave the jury a separate opinion as to just compensation for the temporary coxistruction easements.

Affirmed.


source: Caselaw Access Project

author: Lyle BrowN, Justice. J. Fred Jones, Justice,

license: Public Domain

text:
    L. R. Argo v. Joe Blackshear et ux
    5-4249
    416 S. W. 2d 314
    Opinion delivered June 5, 1967
    [Rehearing- denied July 26, 1967.]

      Odell Pollard and Jerry Cavanea-u, for appellant.

      Reed & Blackburn, for appellee.
   Lyle BrowN, Justice.

Joe and Bessie Blackshear, appellees and parents of eight-year-old Phyllis Black-shear, recovered judgment for the death of Phyllis which occurred in a- traffic mishap. Phyllis was crossing a highway in Cleburne County and was struck by a car driven by appellant, L. R. Argo. The sole question on appeal concerns the action of the trial judge in setting aside the interrogatories answered by the jury and resubmitting the ease to the same jury on a general verdict.

The case was first submitted on four interrogatories. The answers found driver and pedestrian equally negligent and fixed total damages to the parents at $18,000. Each interrogatory was signed by the foreman and the jury poll verified unanimity. A conference immediately ensued between court and counsel. All of the conversation is not recorded but it is apparent that counsel for appellee parents requested the trial judge to ascertain of the jurors whether it was their intent that the parents not recover. Addressing the jury, the court inquired:

“I have to go rather carefully on this, this is very delicate, I want to know if it was the jury’s finding and your intention that you intended for your answers to reflect that the plaintiffs in this case would not recover any amount from the defendant. ..”

The foreman responded — and the jury affirmed by nods — that they wanted the parents to recover $18,000. The judge further inquired if that was their intention “even though you found that Phyllis Blackshear contributed 50% of the negligence to cause the accident.” Again the answer was in the affirmative.

The judge ruled that the interrogatories “caused some confusion in the minds of the jury, especially as to the effect of their answers.” He then proceeded to give AMI 2102 (comparative negligence). Additional argumeüt was allowed the attorneys to permit them to cover comparative negligence. The jury was then given a general verdict form. It returned an award of $18,000.

Counsel are not in agreement as to all that transpired between the return of the interrogatories by the jury and its reconvening to consider the general verdict. "We find our recitation of events to be borne out by the record. The lawyers’ disagreements are due principally to the failure to record all the conversations between court and counsel outside the hearing of the jury. However, there is no dispute about the facts we have recited and which really control the decision is this case.

The trial court committed reversible error. The cause was submitted to the jury under Ark. Stat. Ann. § 27-1741.2 (Repl. 1962), being submitted on “written questions susceptible of categorical or other brief answer ...” Collectively the answers constitute a special verdict. If the answers are consistent with the law and the evidence, and if a poll of the jury reflects the answers to represent the findings of the jury, they must be accepted as the verdict in the case. The interrogatories, the answers, and the poll of the jury meet all these prerequisites. See, 89 C. J. S., Trial § 571. It then becomes the duty of the trial judge to enter the verdict. That verdict remains, unless of course it is subsequently set aside on statutory grounds.

When the jury was polled and further questioned by the judge as to their intentions in answering the interrogatories, at no place did they retract the findings on total damages and apportionment of negligence. The only additional information supplied was to the effect that they wanted to see plaintiffs recover the full $18,000. This pointedly illustrates the value of interrogatories. Jurors honestly answer four relatively simple questions, not knowing the legal effect will be contrary to their personal wishes. Additionally, this situation justifies the rule that for the judge to specifically inform the jurors as to the effect of their answers on the ultimate judgment is reversible error. 90 A.L.R. 2d 1041. As said by this court in Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344 (1961): “The reason for the rule is that the special interrogatories are intended to elicit the jury’s unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.”

In Skidmore v. Baltimore & O. R. R., 167 F. 2d 54 (2d Cir. 1948), Judge Frank discusses extensively the pros and cons of general and special verdicts. That decision favors special verdicts and emphasizes that when special verdicts are employed, the judge should not give any charge “beyond what is reasonably necessary to enable the jury to answer intelligently, the questions put to them.” Under that procedure “the appeal to the jurors ’ cruder prejudices will frequently be less effective. ’ ’

A judgment on the general verdict was entered. We hold that judgment to be erroneous. We reverse and remand with directions to set aside that judgment and direct that the special verdict of the jury be entered.

JoNes and Byrd, JJ., concur.

J. Fred Jones, Justice,

concurring, I would reverse the trial court but I would remand for a new trial rather than for entry of verdict.

When this accident occurred, the appellee was traveling in a southerly direction on blacktop Highway 25. He was driving a Chevy II stationwagon weighing 3,020 pounds and was pulling a boat and trailer weighing over half as much as the stationwagon. When about 150 or 200 yards distance from the Blackshear residence, he saw Ella Jo, an older sister of Phyllis, come from the driveway of her home onto the highway and cross the highway from east to west. Appellee did not recall seeing or meeting other traffic in the vicinity of the accident.

Appellee testified that just seconds after he saw Ella Jo cross the highway, he saw Phyllis about eight or ten feet before she entered the highway, or just after she entered the highway. She had her head turned toward her left looking south on the highway when he saw her. She entered the highway running diagonally from east northwesterly across the highway and appellee applied his brakes when he first saw Phyllis. The automobile skidded 153 feet south, all on the west side of the highway, and struck Phyllis near the west edge of the blacktop.

With this testimony from the appellee himself, I am of the opinion that the trial court was attempting to set aside the jury verdict on the interrogatories and grant a new trial in the proper exercise of its discretion. If this was the intention of the trial court, it, of course, committed error in the manner it went about accomplishing its purpose.

Even though the trial court may still set aside the verdict and grant a new trial if it feels such procedure necessary and justified by the record in this case, I would reverse and remand for a new trial.

Byrd, J., concurs.


author: JohN A. FoglemaN, Justice.

text:
    Frank E. Read v. State
    5261
    415 S. W. 2d 560
    Opinion delivered June 5, 1967

      Larry S. Patterson, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   JohN A. FoglemaN, Justice.

This appeal comes from an order denying appellant’s petition for post conviction relief from consecutive sentences of twelve years on one count of robbery and eight years on another, and a sentence of three years on a charge of burglary, to be concurrent with the latter sentence on robbery, all imposed on April 15, 1960. To all of these charges appellant had entered pleas of guilty on the day sentences were imposed, competent counsel having been appointed for him by the trial court on April 8. The trial court heard the petition on September 19, 1966. In addition to the petitioner, his mother, Mrs. Katherine Read, his father, John L. Read, his sister, Johnnie Camp, his brother, Thomas T. Read, and his wife testified in his behalf.

The trial judge made detailed findings against the contentions of appellant. These findings were based for the most part on testimony of the following on behalf of the state: Three police officers on duty at the time of appellant’s arrest, who were on the lookout for the person or persons who committed the crimes with which appellant was charged;.a state police officer who took a statement from appellant on the day of his arrest; one James Puryear, an alleged victim of a felonious assault with which appellant was charged, but on which he has not been tried or sentenced; the Honorable Royce Weis-enberger, now chancellor of the sixth district, the prosecuting attorney at the time of the arrest and sentencing; and the deputy prosecuting attorney at the time, Judge John Wilson, now Municipal Judge at Hope.

The points urged for reversal allege error of the trial court in its findings based upon the following contentions :

1. The sentences were based upon an invalid arrest and an invalid search and seizure;
2. The statement of appellant was coerced because appellant was held and questioned incommunicado without benefit of counsel and without being allowed to contact his family for assistance;
3. Appointed counsel was not competent because appointment was made at such a time that they were not effective to prepare his defense.

We will discuss these points in the order listed. In considering the search and appellant’s statement, it is well to remember that no prejudice could result from either since he pleaded guilty and' nothing was ever introduced in evidence against him. Medley v. Stephens, 242 Ark. 215, 412 S. W. 2d 823. There was substantial evidence to support the finding of the trial court that the arrest without a warrant was lawful and the search reasonable. City police officers Shirley and Rowe and state policeman Ward were informed of certain robberies which had taken place in Hope on the night of April 7th and were patrolling the city. Ward was in the neighborhood of the Puryear and Hartsfield homes when he saw a Cadillac automobile driven across a yard and then heard something like a pistol “popping” near the Puryear home. He was behind the houses across the street when he saw the city police car turn in and the Hartsfield car backing out the driveway at the Harts-field residence; he also saw the abandoned Cadillac. He went to the police station after the arrest. He did not see anyone interrogate Read.

Officers Shirley and Rowe (who were accompanied by Police Chief Brown, now deceased) made the arrest. Officer Shirley testified in substance: After I was given a report on the type vehicle whose occupant had committed a robbery, I saw appellant while I was standing in front of the police station after 1 a.m. I got in the police car, got an assistant and tried to overtake the vehicle in which I saw appellant but lost it in a cloud of dust as it passed a truck by going onto the right shoulder of the highway. Later, I saw the vehicle again and attempted to overtake it but while I was turning around, it passed a truck and I lost it. While trying to locate the automobile, we* heard something like pistol shots and saw lights at the Puryear home and found confusion there. After a conversation with Puryear, who had some pistol wounds, we drove east on Highway No. 4 and noticed an automobile backing out of the Herbert Hartsfield driveway. I did not recognize the driver, seeing only the back of his head, but I knew it wasn’t Harts-field. After the police car was stopped so- the car could not get out the driveway, I got out and stopped at the left rear fender of the car; Officer Rowe went around to the right side of the car and opened the door. I went to the left door and opened it; I recognized that this was Hartsfield’s car and saw Hartsfield and his wife inside the screen door; the appellant was arrested, searched and placed in the police car.

Officer Rowe’s testimony was substantially the same as that of Officer Shirley except that Rowe said he thought the driver of the car at the Hartsfield house was Hartsfield himself and that he made the statement that he was going to ask Hartsfield, whom he knew, if he had seen anything* of the party they were looking for. He said that he did not recognize that it was not Hartsfield until he had opened the car door and partially entered the car when he told appellant to stop and struck the latter with a pistol when he failed to do so.

James Puryear told of a threat by appellant to kill him after Puryear saw appellant in the driveway of the Puryear home about 3:30 or 4 in the morning. Puryear said that after the threat he grabbed appellant and the gun and that appellant shot him after a scuffle in the doorway and kitchen of the house. Puryear told of reporting the matter to officers Shirley, Rowe and Brown who came to his house immediately after the shooting.

An officer may make an arrest without a warrant when he has reasonable grounds for believing that the person arrested has committed a felony. Ark. Stat. Ann. § 43-403 (Repl. 1964); Lane, Smith & Barg v. State, 217 Ark. 114, 229 S. W. 2d 43; Russell v. State, 240 Ark. 97, 398 S. W. 2d 213.

In view of the passage of over six years, the excitement of hot pursuit of an armed felon, and the fact that officers Rowe and Shirley approached the Harts-field vehicle from opposite sides, the minor discrepancy as to the recognition of the driver is insignificant.

Nothing was found upon search of appellant except a gun holster. The search incident to the arrest was lawful. Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327. There was also substantial evidence to support the finding that appellant’s statement was not coerced. It was taken by Milton Mosier of tbe Arkansas State Police at tbe sheriff’s office about 10:30 a.m. Mosier testified that tbe statement was voluntary, that be made no promises or threats to appellant, nor did be coerce him in any manner. It was taken on tbe same day (April 8th) appellant was taken to court. Mosier could not be sure whether the statement was before or after appellant’s arraignment, but felt that it was before because he gave the original of the statement to one of appellant’s court appointed attorneys.

There was testimony that appellant was not interrogated en route to the city jail when he only made a statement that he could show the officers where he “ditched” a car. Hé was taken to the police station about 5:30 a.m'. Officer Shirley said that appellant was then in a jovial mood, saying that he supposed he would get life, but there wasn’t any use crying over spilt milk. Shirley and Rowe went off duty shortly thereafter and knew of no interrogation of appellant.

The only evidence of the use of any physical force was that at the time of arrest and a later assault by James Puryear on appellant, while the latter was in custody of the officers shortly after the arrest. Appellant admitted that the officers restrained Puryear after he struck appellant. Appellant also said that the officers struck him with pistols at the time of the arrest, several times rather than once. His major contention in this regard, though, was that he was questioned after he asked to be allowed to see an attorney ; was not allowed to communicate with anyone, particularly members of his family; and was told by some man that if he fought, it would go harder on him, but if he would confess, they would try to get the judge to go a little easier on him: He said the man who took his statement told him it would go harder if he did not confess because the judge was already mad at him.

The rules laid down in Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, do not apply here. Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882; Jackson v. State, 241 Ark. 850, 410 S. W. 2d 766.

Appellant also claims that he asked one of the court appointed attorneys to call his family. He states that he never heard from any member of his family before his sentencing. Neither of the attorneys could recall appellant’s alleged request. Appellant’s mother learned of his arrest by means of a television report on a' Fort Worth station. His father heard that appellant was in difficulty near the time of his arrest from someone who heard of it on television. He was told that it took place at Hope. He made no effort to contact appellant because of a feeling that appellant would contact him if the former needed him and felt that he could help. He further testified that he did not hear from appellant until months later. Appellant’s wife was advised while visiting at her mother’s home through a letter from a friend. She also received a letter from appellant while he was in the county jail at Hope. None of these parties got in touch with appellant or did anything to help, although they obviously knew that he was in jail at Hope. The trial judge stated that appellant made no request on appearance in court that his family be contacted. The inaetion of these members of appellant’s family tends to corroborate testimony that appellant did not request that they be called.

It is undisputed that two attorneys were appointed by the trial court to represent appellant oh the day of his arrest. While a statement made by appellant was promptly furnished to his attorneys, each said he made an independent investigation of the charges, talking to some of the witnesses. One of the attorneys conferred with appellant two or three times. The other partioi-pated in a thirty-minute conference with appellant and the other attorney. Although Bead contended that one of them asked that he be allowed not to represent appellant, this is flatly denied by the attorney. After the investigation and conferences, both recommended that appellant plead guilty to the charges on which he was sentenced, feeling that this was to appellant’s best interest. It is significant that appellant pleaded not guilty to four of the seven counts of felony with which he was charged. Pour days elapsed between appointment of counsel and the entry of defendant’s pleas. Another three days passed before sentence was imposed. We find sufficient evidence to support the finding that appellant had competent and effective counsel.

Appellant attacked the constitutionality of the imposition of consecutive sentences as provided by Ark. Stat. Ann. § 43-2311 (Repl. 1964). This contention appears to be without merit. It was not urged in appellant’s brief nor were any authorities cited. Maples v. State, 226 Ark. 485, 290 S. W. 2d 627.

Affirmed.

Brown, J., disqualified and not participating.

       This statement was a confession of the robbery of two service stations in Hope, the attempted theft of the Hartsfield automobile, several felonies in Texas by which he attained the automobile in whjch he came to Hope and a pistol, and the shooting of Puryear, which he claimed to be in self defense.


text:
    Piggott State Bank v. State Banking Board et al
    5-4194
    416 S. W. 2d 291
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Smith, Williams, Friday & Bowen, for appellant.

      Glenn F. Walther, for appellee.
   JohN A. FoglemaN, Justice.

This is an appeal from a judgment of the Pulaski Circuit Court refusing, on certiorari, to set aside the action of the State Banking Board granting a charter upon the application of Harold Jinks and others for a state hank at Piggott to be known as Peoples Bank of Piggott. Application for the writ and the' setting' aside of that action was made by Piggott State Bank, a state hanking institution long in business at Piggott. Two hearings were held by the State Banking Board with the same result. In the interval between them the personnel of the Board changed so that two new members participated in the second hearing.

Minutes of the Board show that the application was considered at a meeting held on March 24, 1966. At that meeting the proponents and opponents were heard separately. By a vote of 3 to 2 a motion to grant the charter, subject to approval of deposits of the new bank for insurance by the Federal Deposit Insurance Corporation, was tabled for ten days. During this period the Board recommended to the Bank Commissioner that the attorney for the opponents be permitted to file a brief summarizing objections to the granting of the charter. On April 4th a telephone poll on the granting of the charter resulted in a vote of 3 favoring and 1 opposed, the Chairman abstaining.

Appellant, an opponent, filed a petition for certiora-ri in the Pulaski Circuit Court. It complained that the opponents were unduly restricted in presenting their objections, having been denied a continuance and allowed only one and one-half hours to present their ease. The petition was granted. After the trial court reviewed the transcript of the proceedings before the State Banking Board, it remanded the matter to the Board with directions to hold another meeting and to cause oral testimony heard to be made a matter of record for inclusion in a transcript. The circuit court also required that a quorum of the Board be present to act on the charter, holding the telephone poll to have been improper.

After the second hearing on June 9th the charter was granted, subject to Federal Deposit Insurance Corporation’s approval for insurance, by the vote of four members, the Chairman abstaining. Appellant then applied to the Pulaski Circuit Court for a supplemental writ of certiorari, asking that the court approve or disapprove the application. The writ was granted, and Peoples State Bank of Piggott was permitted to intervene. After the trial court considered the record and briefs of the interested parties, it found that there was substantial evidence to support the action of the State Banking Board. The judgment dismissed the petition for certiorari and directed the granting of the charter.

The State Banking Board is required by statute, upon submission to it of an application for a charter filed with the State Bank Commissioner, to make such investigation as shall enable it to determine the fitness of the applicants, the need, from the public standpoint, for the proposed institution, and all other questions bearing directly or indirectly upon the need or desirability of the proposed institution from the public standpoint, and to promptly approve or disapprove the application. If the Board approves, the Bank Commissioner may, in the event he also approves the application, grant the charter. Ark. Stat. Ann. § 67-205 (Repl. 1966).

We find no provision for appeal to the courts from any decision of the Board, such as provided from actions of the Savings and Loan Association Board, on which the review is limited to a determination whether the findings of the Board are supported by substantial evidence. Ark. Stat. Ann. § 67-1811.

The business of banking is closely related to the public welfare and within the police power of the state. The peculiar relationship of banking corporations to the public, their depositors, is such that it is the duty of the state to see that those who embark upon the enterprise are entitled to the confidence of the public and that those who entrust their money to these institutions are protected. Holland v. Nakdimen, 177 Ark. 920, 9 S. W. 2d 307, 62 ALR 484. The power extends to the regulation or even the prohibition of the business except on snch terms as the state may prescribe. State v. Huxtable, 191 Ark. 10, 12 S. W. 2d 1.

Thus, it is essential and appropriate that an agency snch as this Board be vested with broad powers and discretion on questions snch as are presented on applications like this. At least two of the members are required to be active bankers. It is required that the State Bank Commissioner recommend one member, the Arkansas Bankers Association two members, the Governor appoint one without recommendation, and that the four members recommend a fifth.

The holding of this court in Newton v. American Security Co., 201 Ark. 943, 148 S.W. 2d 311, is appropriate here. There it was said:

“It has been uniformly held by this court that where boards are lawfully appointed and charged with the duty to investigate and determine certain facts, the court cannot substitute its judgment for the judgment of the board, and the judgment of the board provided for the purpose of ascertaining the facts is controlling unless there is evidence that it was arbitrarily exercised. Mo. Pac. R. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Jernigan, Commissioner v. Loid Rainwater Co., 196 Ark. 251, 117 S. W. 2d 18; Lion Oil Refining Co. v. Bailey, 200 Ark. 436, 139 S. W. 2d 683; Department of Public Utilities v. Arkansas Louisiana Gas Co., 200 Ark. 983, 142 S. W. 2d 213.”

In a case involving the State Banking Department -when its Securities Division denied an application for a loan broker’s license, (Jernigan, Bank Commissioner v. Loid Rainwater Co., 196 Ark. 251, 117 S.W. 2d 18) this court said:

“It must be remembered that the duty imposed by law of investigating and determining whether a license should be granted or refused is not imposed upon this court nor upon the learned judge.from whose order this appeal comes. He, in the first instance, and we, upon appeal, may review this action to determine whether there has been an arbitrary decision, or an abuse of discretion, but we should regard and uphold the decision of the Securities Division of the State Banking Department unless it be made to appear that there was an abuse of discretion or an arbitrary decision. St. Louis S.W. Ry. Co. v. Stewart, 150 Ark. 586, 235 S.W. 1003; Rural Special School Dist. v. Common School Dist., 183 Ark. 329, 335, 35 S.W. 2d 587; Sections 170 and 171, chapter Public Officers, 22 R.C.L. 490; Sections 290, 291, and 293, chapter Officers, 42 C.J. 1033. ’’

In view of the fact that the act in question does not require any hearing, 'reduction of evidence to writing, or formal findings, there might be considerable doubt whether the action of the board would support a proceeding by certiorari. See Dixie Downs, Inc., v. Arkansas Racing Commission, 219 Ark. 356, 242 S.W. 2d 132; Annotation 102 ALR 534; 14 Am. Jur. 2d 800 et seq., Certiorari, § 24. We bypass that question, however, as a hearing was held and a transcript of the testimony made.

There is some authority that there must be substantial evidence to support the findings of certain state boards. See, e.g., Department of Public Utilities v. Arkansas Louisiana Gas Co., 200 Ark. 983, 142 S. W. 2d 213.

Even though appellant brought out many factors which would have great bearing on the credibility of witnesses for intervenor and the weight to be given their testimony because of possible interest or bias and offered substantial evidence that there was no public need for the proposed new bank, we find that there was substantial evidence upon which the board might have based its findings. We cannot say that the action of the Board was arbitrary, or an abuse of discretion.

Harold Jinks, Special Assistant to the Regional Director of the Post Office Department, a Piggott resident and president of the proposed hank, testified. He said that while the economy was booming, Piggott was not booming; that there was more vacant space on the town square than there was in depression years; that transportation was inadequate. He made comparisons of per capita bank deposits and per capita loans in Piggott with other towns in Arkansas, showing that these amounts were lower in Piggott than in other localities, including some in Clay County in an area where banks were said to be competitive with the present bank in Piggott. He expressed the opinion that banking facilities in Piggott were not adequate and that this lack contributed to a condition of stagnation in the town.

A. B. Boyd, Jr. of Campbell, Missouri, who lives eleven miles from Pig’gott and is a stockholder in a cotton gin at Piggott and the owner of a two-third’s interest in a gin at Pollard, testified. He said that he did business with the State Bank of Campbell and Piggott State Bank. He related that the bank at Campbell is a par bank but the Piggott State Bank is not. Loans obtained by the gins from appellant were at a higher interest rate than he paid oh loans at Campbell. He stated that 50% of the checks he received in his business around Pig’gott were drawn on banks in other localities and that a lot of banking business leaves Piggott. He asserted that appellant required a greater ratio of security than the bank in Campbell.

Myron Rodgers, former President of the Chamber of Commerce at Piggott and presently a member of the Board of Directors thereof, who is a poultry jobber operating from Helena to Crystal City and Pestus in Missouri, in part of Tennessee and west to Newport and Pocahontas, operating 38 trucks and having a warehouse of a value of $50,000, testified on behalf of the applicants. He said that he had never made an application for a loan at the Piggott State Bank that was declined until after the application for a new bank at Piggott was filed. When he made this application, the bank there was not interested, according to him. He claimed to know of two other persons, not named, who applied for loans which were declined by the Piggott State Bank who borrowed money from another bank. He stated that two medical students, whose loans would have been guaranteed by the federal government, were refused loans at the Piggott State Bank but that after the current application was filed, one of them was loaned the money he requested.

George Cook, who was engaged in the general insurance and real estate business in Piggott, testified that he borrowed money at Caraway because he did not feel that he had had proper treatment at Piggott State Bank since he purchased stock in the new bank. He said that be had paid 8% interest at Piggott and 5% at Caraway on about the same security. He also said that people he dealt with issued 25% to 30% of their checks on banks other than Piggott State Bank. Most of them, he said, were drawn on banks in Rector and Kennett, Missouri.

Ralph Williams, farmer, cattleman, grain buyer and feed dealer, all of whose business interests were in the Piggott area, also testified for the applicants. He stated that 50% of the people with whom he dealt gave checks drawn on banks other than the bank at Piggott. Two of the principal places on which the checks were drawn were Rector and Kennett. Loans for which he had applied at the Piggott bank, more than four years previously, were declined but he obtained them from the banks at Kennett. The security offered in all instances, he said, was warehouse receipts, principally on soybeans.

E. J Latta, who had worked at a bank in Chaffee, Missouri for 22 months and for the Federal Deposit Insurance Company as a bank examiner for seven and one-half years, had worked for Piggott State Bank for four and one-half years. He stated that he had discovered, after he left Piggott State Bank, that it had the most conservative loan policy of any bank that he was ever in and that interest rates were relatively higher than in most other banks. He was recently employed by Clay County Propane Company, formerly Irby Butane Gas Company in Piggott, but presently employed with Federal Housing in Little Rock. He estimated that 40% of the checks they received from customers in the trade territory were drawn on banks other than the Piggott State Bank. He stated that Piggott State Bank did not offer savings account service on passbooks or Christmas Savings Plan, or automobile drive-in windows, but limited their facilities to checking accounts and certificates of deposit. He also stated that Missouri banks file more than half as many financial agreements (financing statements?) in the Eastern District of-Clay County as do the three county banks combined.

Chester Pearman, a witness for appellant, was executive vice president and cashier of Cotton Exchange Bank of Kennett, Missouri. He stated that prior to 1960 there were two banks in Kennett, but after the third bank was chartered it had deposits of $3,500,000 and the deposits in his bank had grown $1,200,000 even though he thought they were “overbanking” when the third charter was granted. He said that this was because of division of existing business and such growth as the community had. The big bank in Kennett, he said, had increased $1,000,000 to $1,500,000.

A very persuasive case was made by appellant as to the highly competitive banking situation in the trade area in Clay and Greene Counties in Arkansas and in the neighboring territory in Missouri and the adequacy of the banking facilities in Piggott. Many of the witnesses for protestants were bank officers who, according to the testimony, were in areas where banking was competitive. All thought the existing banking facilities were adequate and that there was no need for a new bank at Piggott and that the granting of a charter would be adverse to the public interest. But we do not determine where the preponderance of the evidence lies, nor do we determine the credibility of the witnesses or the weight to be given to their testimony, — this is all a function of the State Banking Board.

It is not the function of this court, on appeal from a circuit court, to determine where the preponderance of the evidence lies. Decisions in cases appealed from chancery courts, in which our trial is de novo, do not constitute authority on this question. Moreover, certiorari lies only for the purpose of review for errors of law, one of which may be the legal sufficiency of the evidence to sustain the judgment of the tribunal, but a court cannot review merely for errors of judgment or try the matter de novo. Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Veteran’s Taxicab Co. v. City of Ft. Smith, 213 Ark. 687, 212 S. W. 2d 341; McCain v. Collins, 204 Ark. 521, 164 S.W. 2d 448. It has been said that a board’s action will not be set aside on certiorari unless there is an entire absence of substantial evidence, in which case the board action is deemed to be arbitrary. Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S. W. 2d 826.

Appellant complains that the proceedings were so irregular and prejudicial to appellant as to require reversal. In part, this contention is based upon failure to follow strict rules of evidence. A hearing before a board does not cease to be fair because rules of evidence and procedure governing judicial proceedings are not followed or evidence has been improperly rejected or received. The hearing cannot be said to be unfair unless the defect might have led to a denial of justice or an element of due process is absent. Kuhl v. Arkansas State Board of Chiropractic Examiners, 236 Ark. 58, 364 S. W. 2d 790.

Another basis of this contention is the charge that one of the board members displayed bias and prejudice toward the protestants, their witnesses and their attorney. Even thong’h there may appear to have been some attitude of hostility on the part of this member, the chairman took steps to keep the proceedings orderly and to see that a full hearing was given. We find no statutory rule, nor is any pointed out, for disqualification of a member of this board. No effort was made to disqualify this member or to have him excuse himself, nor was any objection made to his participation in the hearing, although he was a member of the board at the time of both hearings. Nor was this contention made a basis of either the original or supplemental petition for certiorari. Even if he were disqualified, the determination would only be voidable and the irregularity is waived by the.failure to object. 1 Am. Jur. 2d 863, Administrative Law, § 68. We are unable to say that there was error on the part of the trial court in failing to void this proceeding on the basis of this contention. The fact thát the same result' was reached at the conclusion of both hearings with the change in membership that took place has some bearing on this determination.

There is one respect in which the order of the circuit court is in excess of its jurisdiction, on certiorari, and it must be modified in that respect. The order directs the State Banking Board to forthwith issue a charter to Peoples Bank of Piggott. The State Banking Board can only approve or disapprove the application. After its approval, the Bank Commissioner may, in the event that lie also shall approve the application, grant the charter. Ark. Stat. Ann. § 67-205 (Repl. 1966). The judgment of the circuit court, then, is modified to eliminate that portion directing the issuance of a charter.

Affirmed as modified.

       It is stated by tbe parties that the Chairman, in a letter, later expressed his dissent from the action of the Board.

       In this regard appellant pointed out that the witness had not taken into consideration the deposits, in or loans by a savings and loan association. A much more favorable comparison existed when this was taken into consideration. However, it was not shown in which of the towns and cities with which this comparison was made there were such associations, except that it was testified there was no such association in certain of the towns in Clay County.


author: J. Fred Jones, Justice.

text:
    Fred Peters et ux v. Cecil M. Hubbard and Larry Hubbard, d/b/a George Hubbard & Son, and Nutrena Mills, Inc.
    5-4198
    416 S. W. 2d 300
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      M. C. Lewis Jr. and William W. Green, for appellants.

      Wootton, Land & Matthews, and Clayton Farrar, for appellees.
   J. Fred Jones, Justice.

This is an appeal from the Garland 'County Chancery Court wherein Fred and Nellie Peters were plaintiffs and George Hubbard & Son and Nutrena Mills, Inc. were defendants. The suit was first filed in Circuit Court and transferred to chancery. The plaintiffs sought damages for breach of four interwoven and inter-related contracts, two of which were alleged to be oral and two written. Both of the defendants, the Hubbards and Nutrena, demurred to .each of the four causes of action in the complaint, and all the demurrers were sustained by the chancellor. The plaintiffs refused to plead further and standing upon their complaint, as amended, have appealed to this court.

Appellants designate the following as points they rely on:

“I. The court erred in sustaining the demurrer of the defendants-appellees Hubbard.
“A. The complaint as amended stated good causes of action and there was no defect.
“1. For the cause of action, it alleged an oral agreement between the parties, with definite terms, completely performed by Plaintiffs-Appellants, and breached by Defendants-Ap-pellees.
“2. For the second cause of action, it alleged a written agreement, a copy being attached and made a part of the Complaint as an Exhibit performed by Plaintiffs-Appellants, and breached by Defendants-Appellees.
“3. For the third cause of action it alleged a written agreement, a copy being attached and made a part of the Complaint as an Exhibit performed by Plaintiffs-Appellants, and breached by Defendants-Appellees.
“4. For a fourth cause of action it alleged an oral agreement with definite terms, performed by Plaintiffs-Appellants, and breached by Defendants-Appellees.
“II. The court erred in sustaining the demurrer of the Defendant-Appellee Nutrena Mills, Inc.
“A. The Complaint as amended stated good canses of action and there was no defect.
“1. Performance by Defendant-Appellees Hubbard to two oral and two written agreements with Appellants was an original undertaking by the Defendant-Appellee, Nutrena Mills, Inc., who was a third party to each agreement and a beneficiary thereof with substantial benefits therefrom.
“2. The four causes of action were properly alleged as to be discussed under Point I.”

It is difficult indeed to determine from the pleadings filed by appellants, where one cause of action stops and another begins.

As near as we can tell, from the entire record, the alleged four separate contracts, on which the four separate causes of action were based, apparently intended to cover the productive life span of chickens in successive flocks of laying hens to be perpetually renewed by culling and replacement. Apparently it was intended that the contracts were to be renewed from time to time and to continue in force until a long-term monthly payment loan from third parties to appellants, made in connection with the construction of the chicken house, was repaid in full.

Apparently recognizing the difficulty in distinguishing one alleged contract from another, the appellants have designated the four separate alleged contracts as four separate causes of action, A, B, 0, and D, in their complaint, and we shall so deal separately with each cause here.

More in nature of pointing up the problem than in stating the solution, the complaint, as amended, is set out here in some detail.

Under canse “A” the complaint alleges:

“That the plaintiffs, Fred Peters, and Nellie Peters, are owners of real estate known as Route 1, Box 140, Pearcy, Arkansas; that the Defendants are engaged in the poultry, chicken, egg and feed business; that in December of 1962, the Plaintiffs and the Defendants entered into an agreement, for and in consideration of the promises of the Defendants jointly for automatic contract renewals of egg production agreements, and pullet feeding agreements, with the furnishing of feed and chickens by the Defendants, the Plaintiffs entered into an agreement with the Defendants under which the Plaintiffs were to construct a large chicken liouse with a 6,000 chicken capacity and to purchase equipment including a feeder, which equipment was necessary for the operation of the chicken houses and maintenance of a poultry and egg producing farm; that in reliance upon the. promises and agreements of the Defendants, the Plaintiffs borrowed money and mortgaged their property and constructed a 6,000 capacity chicken house at a cost of $3,220.80, not including the labor of the Plaintiff, Fred Peters, which was in addition to the other costs, and purchased a Big Dutchman feeder at a cost of $1,047.81; that in order to do the construction and in order to make the purchase of the equipment, it was necessary for the Plaintiffs to mortgage their home and property and to go in debt with large monthly payments; that the Defendants knew that it was necessary for the Plaintiffs to borrow money for the chicken house construction and the purchase of the equipment, and agreed with the Plaintiffs and represented to them that they would furnish chickens to the capacity of the Plaintiffs’ chicken houses and furnish feed and provide an outlet for the eggs and poultry and agreed with the Plaintiffs that the pullet raising’ and egg production agreements would be 'automatically renewed.
“That the Plaintiffs were instructed by the Defendants to secure as long financing térms as were possible, that in reliance upon the agreements by the Defendants and those instructions, the Plaintiffs borrowed money on a long-term basis; that the Plaintiffs completely performed by constructing the 6,000 capacity chicken house and purchasing the feeder and equipment necessary for the feeding and raising of poultry and the production of eggs.
“That under the agreement 6,000 chickens to the capacity of the Plaintiffs were to be furnished on January 1, 1963; that the Defendants entered into a partial performance, but did not deliver any chickens until March 2, 1963, and then did not deliver and never have delivered 6,000 chickens to the capacity of the Plaintiffs and in accordance with the agreement.
“That subsequently the Defendants breached individual egg production and pullet raising agreements and completely breached their covenant to automatically renew such agreements; that as a result of the failure to completely perform and as a result of the breach of the Defeñdants of the agreement with the Plaintiffs, the Plaintiffs have been greatly damaged; that their chicken house has become worthless to their damage in the amount of $3,-220.00; that the feeder has become worthless to their damage in the amount of $1,000.00; that as a result of the breach by the Defendants, the Plaintiffs have incurred a net loss of earnings in the amount of $295.00 per month, totaling $13,570.00, after allowing credit for earnings from partial performance by the Defendants. That the Plaintiffs are entitled to recover from the Defendants jointly and severally the total sum of $17,790.00 for the Defendants’ breach of contract.”

In response to a motion to make more definite and certain, appellants amended this cause of action “A” as follows:

“The Agreement entered into in December of 1962 by and between the Plaintiffs and the Defendant, Nntrena Mills, Inc. and the Defendant, Cecil M. Hubbard and Larry Hubbard, a partnership, d/b/a George Hubbard & Son, was an oral agreement;
‘ ‘ The duration of the agreement was for the length of time it took to clear the cost of construction of the chicken house and to pay for the special feeder equipment, and for the length of time that it took to repay the money and mortgage necessary to construct the chicken house and purchase the equipment; that Plaintiffs specifically performed within one year their original duties under the agreement by purchasing the equipment and constructing the chicken house and obtained long term financing in accordance with the instructions of both Defendants.”

The amendment to this cause of action then continued with eight additional lengthy paragraphs relating, primarily, to additional poultry and egg producing contracts and agreements to renew the contracts, and to Nutrena’s agreement to guarantee that Hubbard & Son would carry out their agreements. To copy the amendment in full would unduly lengthen this opinion and a full copy is not necessary for a determination of the question before us.

The Arkansas statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962), provides as follows:

“No action shall be brought; ... to charge any person, upon any special promise, to answer for the debt, default or miscarriage, of another; * * * to charge any person upon any contract, promise, or agreement, that is not to be performed within [1] year from the making thereof; unless the agreement, promise or contract, upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.”

Appellant’s cause of action “A,” as amended, alleges that the agreement was oral and that its duration was until a long term indebtedness for the chicken house is paid off. This cause of action also alleges that the Hubbards agreed to enter into additional contracts and then the complaint alleges damages for breach of apparently the same contracts appellants allege that ap-pellees agreed to enter into.

We conclude that the complaint in cause of action “A” does not state a cause of action on a contract to be performed within one year and that the chancellor was correct in sustaining the demurrers to this cause of action.

For their cause of action “B” appellants alleged:

“That on the 22nd day of January, 1963, the Defendants entered into a pullet feeding agreement with the Plaintiffs, a copy of which is attached as Exhibit ‘A’ and made a part hereof as though set out herein word for word. That under said agreement Defendants were to furnish 3,690 pullets on or about January 17, 1963; that in accordance with said agreement, the Defendants were to furnish the Plaintiffs with the necessary feed, grit and poultry medication for the purpose of proper feeding and care of the pullets; that in the agreement it was provided that the pullets were to be cared for and left with the Plaintiffs until they reached twenty weeks of age; that the Plaintiffs were to be paid one cent per bird per week for their services in growing and earing for said birds; that the Plaintiffs fully complied with the agreement, but that the Defendants breached the agreement by failing to comply with said agreement to the Plaintiffs’ damage in the amount of $738.00, which Plaintiffs should recover from the Defendants.”

By amendment to this cause of action, appellants alleged :

“Defendants, George Hubbard & Son, never delivered the pullets as called for in Exhibit- ‘A.’ ”

Exhibit “A” to the complaint on this cause of action is designated “pullet feeding agreement,” and although dated January 22, 1963, under its terms appel-lee, George Hubbard & Son, agreed to deliver to appellants 3,690 pullets on or about January 17,1963, which appellants agreed to grow and care for until 20 weeks of age. Under the terms of this agreement, appellants were to receive for their services one cent per bird per week, based on the total of salable birds at 20 weeks of age oh March 2, 1963. This written agreement is signed by the appellee, Hubbard & Son, as well as the appellants, and by amendment to their complaint appellants allege “defendants, George Hubbard & Son, never delivered the pullets as called for in Exhibit ‘A’.”

We conclude that cause of action “B” in appellants’ complaint, was good against appellee, Hubbard & Son, on demurrer, and that the chancellor erred in sustaining the Hubbard demurrer to this cause of action.

For their cause of action “C” appellants alleged:

“That on the 2nd day of March, 1963, the Defendants entered into an egg production agreement with the Plaintiffs, a copy of which is attached as Exhibit ‘B’ and made a part hereof as fully as though set out herein word for word. That under said agreement, Defendants were to furnish 3,561 Hyline chickens as layers on that date; in accordance with said agreement, the Defendants were to furnish feed and the Plaintiffs were to furnish services and collect eggs for which the Defendants were to pay; that in the agreement it was provided that only the feeds of Nutrena Mills, Inc. were to be used; that said layers were to be left with the Plaintiffs until they reached the laying age of eighteen months and thereafter so long as it was economically sound; that the Plaintiffs were to pay five cents per dozen for medium to large eggs and three cents per dozen for peewee and small eggs; that Plaintiffs fully complied with the agreement, hut Defendants breached said agreement by picking up said layers on May 26, 1964, when there was still four months to go on said contract to Plaintiffs’ damage for loss of earnings in the amount of $1,214.08, which Plaintiffs should recover from the Defendants.”

The amendments to this cause of action add nothing to its validity on demurrer, but Exhibit “B” filed with the complaint is entitled “Dealer-producer egg production agreement.” Under this agreement, appellee, Hubbard & Son, agreed to furnish to appellants approximately 3,561 twenty weeks old chickens and to supply the chickens with feed, and to pay appellants specified amounts for various size eggs produced by the chickens. Appellants were to feed and care for the chickens and gather, sort, and crate the eggs. This agreement was to remain in effect until the 20 weeks old birds reached the age of 18 months. This agreement contained a provision for continuing the agreement if the birds continued to be productive after they became 18 months of age. This agreement was dated March 2, 1963, and was signed by appellants and the appellee, Hubbard & Son. Appellants allege that appellee breached this contract by picking up the chickens on May 26, 1964, and four months before the expiration of the agreement under the terms of the agreement.

We conclude that cause of action “C” in appellants’ complaint, was good against appellee, Hubbard & Son, on demurrer, and that the chancellor erred in sustaining the Hubbard demurrer to this cause of action.

For their fourth cause of'action “D” appellants alleged:

“That in May of 1963, the Defendants entered into an egg production agreement with the Plaintiffs whereby Defendants were to furnish 2,200 laying hens by August, 1963; that subsequent to the delivery of the 2,200 chickens, the Defendants also delivered to the Plaintiffs 200 additional chickens to be layers; that Plaintiffs fully performed, but the Defendants breached the contract by picking up said layers on May 26, 1964, when there was eight months production to go under the agreement as to laying age; that by the breach of the contract by Defendants, Plaintiffs incurred a loss of earnings and were damaged in the sum of $1,365.60, which they should recover from the Defendants. ’ ’

And by amendment to this cause of action, appellants alleged:

“The agreement of May, 1963 was an automatic renewal of the agreements attached as Exhibit ‘A’ and Exhibit ‘B’ of the original Complaint; the agreement was made on or about May 1, 1963, and the terms were the same as the terms of the written agreements Exhibit ‘A’ and Exhibit ‘B’; the duration of the specific agreement as to 2,200 chickens was to be the same as that under the written agreements in Exhibit ‘A’ and ‘B;’ the agreement made on or about May 1, 1963 was an oral automatic renewal of the written agreements listed as Exhibit ‘A’ and Exhibit ‘B’; the 2,200 chickens were delivered on or about May 16, 1963 and were approximately one month old when delivered.
“The 200 additional chickens were delivered on or about June 30, 1963, and were approximately four months old when delivered.
“The damages in the amount of $1,365.00 were computed on a basis of average production of the chickens being 113.8 cases at $1.50 a case or $170.70 per month for a loss of eight months production, based on production average, totaling $1,365.60.”

The oral agreement alleged in this fourth cause of action “D” appears to be based on an agreement to renew the two written agreements, Exhibits “A” and “B,” sued on under causes of action “B” and “C.”

Apparently the oral contract alleged in cause of action “D” was to take effect immediately and during the life of the two written contracts, and was intended to renew the written agreements some several months before they were to expire by their own terms.

In any event, the written egg production agreement as set out in Exhibit “B” under'cause of action “O,” was to commence when the chickens were twenty weeks old and terminaie when they were eighteen months old, a period of more than one year. The performance under this oral contract in cause of action “D” being for a period of more than one year, it falls within the statute of frauds and we conclude that the chancellor correctly sustained the demurrers to this cause of action.

If Nutrena’s alleged agreement to guarantee performance by Hubbard was an oral agreement, it falls within the statute of frauds. We find nothing in this entire record to even remotely indicate that the appellee, Nutrena Mills, Inc., ever entered into a written contract agreeing to do anything. A contract by appellants and appellee, Hubbard, and witnessed by an agent of Nutrena does not make Nutrena a party to the contract.

We conclude that the chancellor was correct in sustaining the demurrers filed by Nutrena to all four of the causes of action alleged in the complaint.

The decree of the chancellor sustaining the demurrers of appellee, Nutrena Mills, Inc., to all causes of action alleged in the complaint is hereby affirmed, and the cause dismissed as to appellee, Nutrena Mills, Inc.

The decree of the chancellor sustaining the demurrers of appellee, Hubbard & Son, to the first and fourth causes of action “A” and ‘D” is hereby affirmed.

The decree of the chancellor sustaining the demurrer of appellee, Hubbard & Son, to second and third causes of action on the written contracts in causes “B” and “C” is hereby reversed and. this cause remanded for further proceedings toward a trial on the merits in causes of action “B” and “C” alleged against the ap-pellee, Hubbard & Son.

Reversed and remanded.


author: J. Fred Jokes, Justice. JohN A. Foglemak, Justice,

text:
    JohN Dix v. Cleda Olds, et al
    5-4209
    415 S. W. 2d 567
    Opinion delivered June 5, 1967

      M. V. Moody, for appellant.

      Loohadoo, Gooch & Loohadoo, for appellee.
   J. Fred Jokes, Justice.

This is an appeal from a decree of the Garland County Chancery Court wherein John Dix was awarded a money judgment against Louis E. Dodd, Irene Dodd and Paul G. Goodwin for $1,395.25 balance due on a street or roadway surfacing contract, but which denied a materialmen’s and laborer’s lien on the land. Dix has appealed from that portion of the decree denying the lien.

On January 23,1959, Lessie Plemmons conveyed the land involved to Goodwin and wife by warranty deed with lien retained to secure the balance of purchase price in the amount of $20,000.00. On May 22, 1961, Plem-mons assigned the note and lien to Donnelly, and on July 7, 1966, Donnelly sold and assigned the note and mortgage to Cleda Olds.

On July 7, 1961, the Goodwins sold the property to Dodd, reserving in the deed of conveyance a vendor’s lien to secure the balance of purchase price in the amount of $40,000.00, and in October 1961, Dodd platted the property into lots and blocks to be known as “Wooded Hills Subdivision” and executed and filed a bill of assurance in connection therewith. The bill of assurance, or a part of it, is of record in this case, it refers to a plat and survey as being attached and made a part of the bill of assurance, but the plat and survey is not in the record before us.

On or about April 30, 1962, Dix entered into a contract with Dodd and his wife through their agent, Goodwin, under which Dix agreed to furnish materials and labor in black topping’ streets and roadways in the subdivision. This contract apparently was an oral contract and upon completion of the work, Dix was paid a part of the amount due under the contract leaving a balance of $1,395.25.

Dix filed his suit in 'Chancery Court against the Dodds and Goodwin asserting the balance of indebtedness due and a lien on all the lands, premises, and improvements described in the bill of assurance, and Dix prayed judgment for the balance due on his contract and for a foreclosure of the lien claimed.

The Dodds and Goodwin filed answer admitting that they contracted with Dix for an asphalt surface on a certain road in the subdivision, and alleging that Dix had breached the contract as to quality of asphalt to be used. They counter claimed for cancellation of the contract and damages for breach and denied all other allegations of the complaint.

With the issues thus joined between the parties here, the matter apparently lay dormant on the Chancery Court docket for a period of four years. In the meantime numerous other suits, counter claims, and cross complaints, by intervention and otherwise, were filed in connection with the property involved, including a petition to foreclose the original purchase mortgage lien held by Cleda Olds. A pretrial conference was held on February 15, 1966, and all the causes of action were consolidated.

A decree was entered on July 14, 1966, reciting that all parties were present in person or by attorneys; that the cause was submitted on the petition and on the record and the argument of counsel, and the chancellor found that a lien should be denied to Dix, but that he was entitled to judgment for $1,395.25 and a decree and judgment was entered accordingly against Louis E. Dodd, Irene Dodd and Paul G. Goodwin.

Dix has appealed and relies on two points as follows :

“I. The lower court erred in refusing the award to the plaintiff, John Dix, a laborer’s and material-man’s lien on the property described in appellant’s statement, for labor and material furnished by him and used in constructing, laying, surfacing and pouring of asphalt on the streets, roads and roadway between the 30th day of April, 1962 and the 22nd day of October, 1962, prior and superior to all other liens and claims against the said described properties.
“II. The within cause is not fully developed and the appellant should be granted a lien and the properties determined among all the claimants.”

The record indicates that this case was submitted to the chancellor on the petition and on the record and on the argument of counsel. There is no testimony or other evidence in the record pertaining to the contract between the appellant and appellees as to the balance due on the contract, and no evidence as to the alleged breach of the contract and damages claimed by the appel-lees. A contract for the surfacing of a road in the subdivision is admitted by appellees, and appellees have not appealed from that portion of the decree awarding a money judgment against them for the balance claimed by appellant, and from the record before us we are unable to say that the issues before the chancellor as between the parties here, were not fully developed.

The complaint alleges labor performed and materials furnished in the surfacing of streets and roadways in the subdivision and claims a lien on all the lots and blocks in the entire subdivision. The answer admits a contract for the surfacing of one roadway in the subdivision. The record contains no evidence of what lots or blocks abut on the streets where the labor was performed and materials furnished and there is no evidence in the record as to what portion, if any, of the subdivision was improved.

Apparently the lien claimed by appellant in this case was under our general Mechanics’ and Material-men’s Liens statute, Ark. Stat. Ann. § 51-601 (1947), providing as follows:

‘ ‘ Every mechanic, builder, artisan, workman, laborer or other person who shall do or perform any work, or furnish any material, fixtures, engine, boiler or machinery for any building, erection, improvement upon land, or upon any boat or vessel of any kind, or for repairing same, under or by virtue of any contract with the owner or proprietor thereof, or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act [§§, 51-601, 51-604—51-626,] shall have for his work or labor done, or materials, fixtures, engine, boiler or machinery furnished a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same are situated, to the extent of one acre; or if such building, erection or improvement be upon any lot of land in any town, city or village then such lien shall be upon such building, erection or improvements, and the lots or land upon which the same are situated-, or if such erection or improvement be upon any boat or vessel, then upon such boat or vessel, to secure the payment of such work or labor done, or materials, fixtures, engine, boiler or machinery furnished as aforesaid. Any original or principal contractor or his assignee who shall be paid the contract price or any portion thereof, and who shall fail or refuse to discharge the liens created by this section, to the extent of the contract price received by Mm, shall be deemed guilty of an offense and punishable as follows(Emphasis supplied) .

The Materialmen’s Lien Law is in derogation of the common law and must be strictly construed. Scott v. LeGrande, 225 Ark. 1022, 287 S.W. 2d 456.

It is true, as pointed out by appellant, this court in the case of Leiper v. Minnig, 74 Ark. 510, 86 S. W. 407, held that a labor and material bill for the construction of a sidewalk, over which the public had an easement, across the front of three privately owned lots was secured by the statutory lien properly perfected. We can find no instance, and appellant has cited none, where this court has ever extended the application of this lien statute to bills for labor and materials used in improvements made on public streets. Even in the sidewalk cases the lien only applies to the lot on which the sidewalk is located and this court has never held, and insofar as we have been able to determine no other court has ever held, that a statutory lien for improvement in building a sidewalk on a city lot attaches to all the lots and. blocks in an entire addition or subdivision.

We conclude that if the legislature had intended to create a statutory lien on all land that may be improved by labor and materials, it would have separated the improvement from the land subject to lien, and would have said “improvement to land” instead of “improvement upon land,” and would have extended the lien to the land so improved rather than confine it to the land “upon which the same are situated.”

Although the record before us reveals no testimony, the decree recites that all the parties were present in person or by attorneys and that said cause was ‘ ‘ submitted to the court on said petition and on the record in this cause and the argument of counsel,” so we are unable to say that the decree is against the preponderance of the evidence.

The decree of the chancellor is affirmed.

Foglemak, J., concurs.

JohN A. Foglemak, Justice,

concurring. I concur in the result in this case because the lien claimant failed to make any proof as to the location of the roadways, streets, etc., built by him. The burden of showing on which property he was entitled to a lien was on him. If there had been any evidence on which to base the same, I would hold that appellant was entitled to a lien upon the rights of the owner in the streets and roadways, subject, of course, to the public easement, and on the lots abutting the same, still owned by appellees at the time of the making of the improvement, on the authority of Leiper v. Minnig, 74 Ark. 510, 86 S. W. 407.

The interest which the public acquires by dedication of land for a highway or street is merely an easement

or right of passage over the soil, the original owner still retaining the fee and all rights of property not inconsistent with the public use. Taylor v. Armstrong, 24 Ark. 102; Lincoln v. McGehee Hotel Co., 181 Ark. 1117, 29 S. W. 2d 668. When the streets are vacated or abandoned, they revert to the abutting owner. Town of Hoxie v. Gibson, 150 Ark. 432, 234 S.W. 490. The statute providing for mechanic’s and materialmen’s liens is remedial in nature and must be liberally construed in favor of the lien claimant. White v. Chaffin, 32 Ark. 59; Buckley v. Taylor, 51 Ark. 302, 11 S. W. 281; Wildwood Amusement Co. v. Stout Lbr. Co., 178 Ark. 977, 12 S. W. 2d 911; Brown v. Turnage Hardware Co., 181 Ark. 606, 26 S.W. 2d 1114; Geisreiter v. Standard. Lbr. Co., 187 Ark. 893, 63 S.W. 2d 347; Rea v. Lammers, 212 Ark. 792, 207 S.W. 2d 740; United States v. Westmoreland Manganese Corp., 134 F. Supp. 898.


author: CoNley Byrd, Justice.

text:
    Gene Wirges v. State
    5216
    415 S. W. 2d 548
    Opinion delivered June 5, 1967.

      G. Thomas Eisele, for appellant.

      Joe Purcell, Attorney General; Lance L. Hanshuw, Asst. Atty. General, for appellee.
   CoNley Byrd, Justice.

Appellant, Gene Wirges, contends, among other things, that his first-degree perjury conviction should be dismissed because the alleged false statement in the indictment was not sustained by the proof.

The indictment charged Gene Wirges with the crime of perjury in the first degree in that he did willfully testify falsely while under oath in the Conway County Circuit Court case of Scott v. Wirges, by stating “that he, the said Gene Wirges, did not write any portion of the Bird Town Birdie Column, which appeared in the ■July 4, 1963 issue of the Morrilton Democrat.”

The proof offered by the state was that, in the trial of the Scott v. Wirges case, appellant testified as follows :

‘ ‘ Q. How long have you been the editor and publisher of those papers?
A. For the last six years-.
Q. You are the defendant in this lawsuit in which Mr. Judge Scott is suing you for $200,000.00?
A. That’s correct.
Q. Now, there is an article complained of. Have you read it?
A. Yes, sir.
Q. Did you write it?
A. No, sir.”

In Blevins v. State, 85 Ark. 195, 107 S. W. 393 (1908), Mr. Blevins was convicted of perjury upon an indictment alleging that he had falsely testified that he had paid to E. B. McGuire the sum of $445. The proof showed that Blevins had testified that he met a man who pretended to be E. B. McGuire and paid him the money and took his receipt therefor. In dismissing the conviction, we there held that the proof must, in order to sustain a perjury indictment, conform to the allegations thereof; otherwise an acquittal of the charge would follow. See also Clemons v. State, 150 Ark. 425, 234 S.W. 475 (1921), where we said:

“.. ."We think that the result of a substantial variance between the allegations and the proof is necessarily a failure of proof, for the proof must conform to the allegations, and, unless it does, there is no evidence to sustain the verdict. . : .”

We think this case is governed by our holding in the Blevins case, supra, for there is a great difference in asking a man generally if he wrote an article and asking him specifically if he wrote any portion of it. Therefore, because of the variance between the allegation and the proof with respect to the statements allegedly made by appellant, this cause is reversed and dismissed.

Our dismissal of this cause upon this point makes it unnecessary to discuss other alleged errors.

Reversed and dismissed.