author: George Rose Smith, J.

text:
    Keenan v. Williams, Chancellor.
    5-768
    283 S. W. 2d 688
    Opinion delivered November 14, 1955.

      Richard Mobley, for petitioner.

      Robt. J. White, for respondent.
   George Rose Smith, J.

This is an application by the petitioners for a writ of prohibition to prevent the respondent from proceeding with a chancery case in which these petitioners are the defendants. It is the petitioners ’ contention that the complaint in the court below fails to state a cause of action cognizable in equity.

The complaint was filed by three taxpaying landowners and a judgment creditor of Carden’s Bottom Drainage District No. 2. The plaintiffs allege that the defendants, who are the commissioners of the district, have been guilty of mismanagement in conducting the affairs of the district. Specifically, it is charged that the defendants have failed to select a depository for the funds of the district, have failed to require the district’s treasurer to give bond, have not kept account books, have refused to report annually the district’s financial status, have received $2,148.60 in tax collections without accounting therefor, have illegally spent $9,104.70 of the district’s funds, and, after the expiration of the time allowed for the assessment of damages resulting from the construction of the improvement, have unlawfully issued certificates of indebtedness for such damages in the amount of about $16,000. It is asserted that the commissioners are refusing to collect taxes from landowners holding such certificates and are permitting the purported damages to be offset against the assessment of benefits. The prayer is that the defendants be ordered to select a depository, to account for the money wrongfully spent, and to submit to a complete audit of the district’s affairs; that the defendants be enjoined from paying any sums upon the certificates of indebtedness; and that they be deemed officers of the court for the purpose of being compelled to comply with the court’s decree.

The petitioners rely primarily upon Ark. Stats. 1947, § 21-556, which requires the commissioners of drainage districts to file annual financial statements in the office of the county clerk. It is insisted that the statute provides an exclusive remedy in the county court and by implication divests the chancery court of any jurisdiction over such charges of mismanagement as are made in this complaint.

We do not attribute to the statute the comprehensive effect that the petitioners are able to discern in it. It merely requires the commissioners to file an annual statement of the financial condition of the district, to the end that the information may be a matter of public record, open to public inspection. The statute does not direct that any notice be given of the filing of the yearly report, nor does it require that any court take jurisdiction in the matter. In short, the statutory procedure is administrative rather than judicial. There is, it is true, a clause providing for an auditorial examination of the annual statement, but in a similar situation it was held that an act investing the state comptroller with authority to audit county records did not keep a taxpayer from suing in equity to restrain the misuse of county funds. Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353.

This complaint asserts that the defendants have misspent funds of the district, have failed to account for specific tax monies, and have undertaken to pay certificates of indebtedness that are invalid. The plaintiffs ask that the misuse of public money be enjoined and that the commissioners be treated in effect as receivers. See Dickinson v. Mingea, 191 Ark. 946, 88 S. W. 2d 807.

It cannot be doubted that these matters are within the jurisdiction of equity. The state’s policy is declared by the constitution, which authorizes any citizen of a county, city, or town to institute suit to prevent the enforcement of illegal exactions. Art. 16, § 13. Even though the constitution does not expressly refer to improvement districts it has been repeatedly held that, in harmony with the constitutional policy, equity has jurisdiction of suits to prevent the misapplication of improvement district funds. Huddleston v. Coffman, 90 Ark. 219, 118 S. W. 1010; City of Bentonville v. Browne, 108 Ark. 306, 158 S. W. 161; Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175. Whether equity has jurisdiction of every count in this complaint need not be decided on the pleadings alone; doubtless many of the issues will be clarified by the proof. It is enough to say at this stage that the petitioners’ request for a writ of prohibition should be granted only if the complaint states no ground at all for the intervention of equity. That broad assertion cannot be made.

Writ denied.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Canard v. State.
    4818
    283 S. W. 2d 685
    Opinion delivered November 14, 1955.

      Ivan Williamson and Ben B. Williamson, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

This appeal involves the interpretation of Act 44 of 1953 [Ark. Stats., § 43-2324, Supplement] and its application to a situation where a person, upon a plea of guilty, is given a suspended sentence for one year in the penitentiary and the suspension is revoked by the trial judge more than a year later.

Appellant, Johnny Canard, on December 3, 1953, pled guilty to the crime of grand larceny in the Circuit Court of Stone County. At the same time the presiding judge signed this order <£. . . Johnny Canard is hereby sentenced to serve one year in the state penitentiary at hard labor, which sentence is hereby suspended on recommendation of all the parties hereto, upon the good behavior of the defendant for said period of time, and upon the payment of all the costs of this action.” On the original criminal docket sheet, which is a part of the record, in the case styled “State of Arkansas v. Johnny Canard,” appears the following notation: “12/3/53 D. waives arraignment — plea of guilty — suspended sentence of one year . . .”

On May 2, 1955 the presiding judge of the Stone Circuit Court, upon a showing by the prosecuting attorney that Canard had violated the conditions of his suspended sentence by law violations in February 1954 and by failing to pay the costs, revoked Canard’s suspended sentence and ordered him to begin serving the sentence formerly announced. From this order of revocation Canard has appealed to this court.

We have reached the conclusion that, under the above factual situation, the trial court had no authority on May 2, 1955 to revoke the suspended sentence given appellant on December 3,1953. This conclusion has been reached after a careful analysis of the various Acts of the Legislature relative to this situation and the interpretations placed thereon in our former decisions.

The first announcement of the Legislature relative to this matter was Act 76 of 1923. Section 1 of this Act gave Circuit Courts in criminal cases, upon a plea of guilty or a verdict of guilty, the authority “to postpone the pronouncement of final sentence and judgment” (emphasis supplied). Section 2 gave the trial judge the power to revoke the suspension and postponement mentioned in Section 1.

Act 158 of 1945 [Ark. Stats., $ 43-2326] gave all courts of record authority “to suspend the execution of jail sentences or the imposition of fines, or both in all criminal cases pending before said courts” (emphasis supplied).

Act 262 of 1945 [Ark. Stats., § 43-2324] reenacted Section 1 of the 1923 Act above mentioned and added the following: “Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence” (emphasis supplied).

Act 358 of 1949 purported to amend Act 76 of 1923. The Act referred to Pope’s Digest, § 4035, but evidently meant to refer to § 4053 which is the same as the 1923 Act. It provides that “all postponements of final sentences . . . shall run from the date of the plea or verdict of guilty and for the period of the statute of limitation for each offense and at the expiration of said period of limitation shall expire in like manner as if sentence had been pronounced.”

In 1953 Act 44 was passed which is exactly like Act 262 of 1945 except that it applies to “criminal trials in all courts of record” while said Act 262 applied to “criminal trials in Circuit Court(s)” (emphasis supplied).

This court in the cases of Davis v. State, 169 Ark. 932, 277 S. W. 5, and Ketchum v. Vansickle, 171 Ark. 784, 286 S. W. 948 [both decided after the 1923 Act but before the 1945 Acts] made a clear cut distinction between (a) the act of postponing the date of pronouncing sentence and (b) the act of postponing the execution of a sentence already pronounced. The 1923 Act dealt with situation (a) while Act 158 of 1945 dealt with situation (b). Therefore it was held in the Davis case, supra, that where the trial court first pronounced sentence and then attempted to postpone the execution thereof the action was void and the defendant could later be made to serve out his sentence. In speaking of the 1923 Act the court there said: “Indeed, the Act only gives the circuit court authority to postpone the pronouncement of final sentence and does not give it authority to stay the execution of a sentence already pronounced.” In the Ketchum case, supra, the same factual situation obtained and the decision there was rested on the decision of the Davis case, supra. It is noted that in both of these cases the suspension was for an indefinite period of time.

In the case of Calloway v. State, 201 Ark. 542, 145 S. W. 2d 353, decided in 1940, the factual situation is not entirely clear. Apparently Calloway pled guilty and was sentenced to 10 years in the penitentiary with a provision that the sentence should be suspended during good behavior. This is much the same factual situation as that of the case under consideration. However when the court, within the 10 year period, revoked the suspended sentence the trial court apparently considered that it had only postponed the pronouncement of sentence because in referring to the same the order states: “That pronouncement of such sentence should be suspended during the good behavior of defendant. ’ ’ This court treated the case as coming under the provisions of the 1923 Act and held that the trial judge had a right to revoke the suspension of sentence [before the 10 year period expired].

In the case of Bodner v. State, 221 Ark. 545, 254 S. W. 463, where apparently the sentence was pronounced and execution thereof suspended this court treated the case as coming under the provisions of Act 262 of 1945 [Ark. Stats., § 43-2324] and applied that statute.

A careful reading of some of the above mentioned decisions leaves the impression that a clear distinction has not at all times been made between (a) the act of postponing the pronouncement of the sentence and (b) the act of postponing the execution of a sentence already pronounced. However we are convinced, after a careful analysis of Act 44 of 1953 in its relation to all the previous Acts mentioned above, that no distinction need now be made, and that it is immaterial whether the trial court actually (a) postpones the pronouncement of the sentence or (b) postpones the execution of the sentence already pronounced. It is obvious that a great deal of confusion and hardship was inherent in the practice of trial courts in giving indefinite suspensions, and that the Legislature, by enacting the several statutes set forth above, intended to remedy this situation. They accomplished this by providing [in the 1953 Act] that the suspended sentence should begin to run on the day of the plea or verdict of guilty and that it should terminate on a definite date fixed by the trial judge in the order of suspension. It is also provided in the last paragraph of Section 1 of the 1953 Act just how the suspension may be revoked. This paragraph reads: ‘ ‘ Provided however, the court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence” (emphasis supplied).

We think the facts in the case under consideration fall squarely within the provisions of Act 44 of 1953 as we have interpreted it above. Appellant’s plea of guilty was received by the court on December 3, 1953 and on that day he was given a “suspended sentence of one year. ’ ’ The trial court had the authority to revoke that sentence, either for bad behavior or for failure to pay costs, at any time previous ot December 3, 1954, but we think he had no authority to revoke it on May 2, 1955.

It is also argued by the State that the payment of costs was a condition precedent and that the suspended sentence did not start to run until the costs were paid. This contention of course cannot stand in the face of the statute which specifically says that the suspended sentence shall begin “running from the date of the plea or verdict of guilty.”

The above views call for a reversal and dismissal of the judgment of the trial court, and it is so ordered.


author: Sam Robinson, Associate Justice.

text:
    Burke v. Lee.
    5-765
    283 S. W. 2d 689
    Opinion delivered November 14, 1955.

      Wright, Harrison, Lindsey & Upton, for appellant.

      H. B. Stubblefield, for appellee.
   Sam Robinson, Associate Justice.

In this case appellants contend that the grantor and grantee made a mutual mistake in the description of property intended to be conveyed, and that such a mistake is one of fact. They seek to have the deed reformed. Appellee maintains that the mistake, if any, is one of law and that under our prior decisions the deed cannot be reformed.

Appellants are devisees under the will of Lula Dubisson; appellee is the only child of D. J. Dubisson and the residuary devisee under his will. On December 18, 1939, D. J. Dubisson and his wife Lula acquired as an estate by the entirety the east % of Lots 1, 2 and 3, Block 281 of the city of Little Rock. On June 23, 1949, Dubisson deeded to his wife Lula of E % of Lots 1, 2 & 3 in Block No. 281.” In February, 1950, Lula died. Later D. J. Dubisson died, and appellee Greraldine Dubisson Lee, being the residuary devisee under his will, acquired whatever interest if any Dubisson owned in the property under consideration at the time of his death. Evidence was introduced at the trial going to show that it was Dubisson’s intention to deed all of his interest in the property to his wife Lula, and that he thought he had done so. It makes no difference here about the admissibility of such evidence, because assuming that it was Dubisson’s intention to deed all of his interest to his wife, the deed fails to accomplish that purpose, and this was a mistake of law.

Undoubtedly, Dubisson thought that by owning the property with his wife as an estate by the entirety, they each owned an undivided one-half interest, and that by conveying to his wife one-half interest in the entire property he was conveying all of his interest. If he had owned an undivided one-half interest of course the deed would have carried out his intention, but such was not the nature of the estate he owned. It was an estate by the entirety. His mistake was not as to the description of the property. He thought he owned an undivided one-half interest and he executed a deed accordingly. He did what he intended to do, but by operation of law the deed did not effect the result intended. This was a mistake of law.

In support of their contentions in the matter, appellants cite Spaulding Manufacturing Company v. Godbold, 92 Ark. 63, 121 S. W. 1063, 135 Am. St. Rep. 168. There, reformation was allowed. It was proved that the property was purchased by individual partners instead of by the partnership. By mistake the partnership was named as grantee in the deed. But that case is not analogous to the situation here. If Dubisson had employed a scrivener to prepare the deed and by mistake the wrong person had been named as grantee, the Spaulding case would then apply.

Appellants also rely on Wood v. Wood, 207 Ark. 518, 181 S. W. 2d 481. There this court said: “The lower court’s decree was necessarily based on a finding that there was a mutual mistake when the appellees executed and the appellant accepted from them a deed conveying an interest in the land — the dower and homestead interest of the widow — which they did not own.” Obviously a mistake of fact was involved in the Wood case. Other cases cited by appellants are equally inapplicable.

In Rector v. Collins, et al., 46 Ark. 167, this court said: ‘ ‘ The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal results of an act which he performs, is no ground for either defensive or offensive relief. If there were no elements of fraud, concealment, misrepresentation, undue influence, violation of confidence reposed, or of other inequitable conduct in the transaction, the party who knows, or had an opportunity to know, the contents of an agreement or other instrument, cannot defeat its performance, or obtain its cancellation or reformation,' because he mistook the legal meaning and effect of the whole, or of any of its provisions. Where the parties with knowledge of the facts, and without any inequitable incidents, have made an agreement, or other instrument, as they intended it should be, and the writing expresses the transaction as it was understood and designed to be made, then the above rule uniformly applies; equity will not allow a defense, or grant a reformation or rescission, although one of the parties, and — as many of the cases hold — both of them, may have mistaken or misconceived its legal meaning, scope, and effect. The principle underlying this rule is that equity will not interfere for the purpose of carrying out an intention which the parties did not have when they entered into a transaction, but which they might, or even would, have had if they had been more correctly informed as to the law; if they had not been mistaken as to the legal scope and effect of their transaction.”

Crews v. Crews, 212 Ark. 734, 207 S. W. 2d 606, is controlling. There, Mrs. Crews executed to her husband a deed for one-half interest in the property involved. Later Mr. Crews died, and Mrs. Crews in an attempt to show that the property was an estate by the entirety testified that it was her intention to create such an estate. The court said: ‘ ‘ The effect of her deed was not to ere-ate an estate by the entirety, but to vest in Crews an undivided one-half interest in the property. . . . While appellee testified that she thought the deed she was executing to Crews would create an estate by the entirety as to the ‘home place,’ it was not shown that any fraud or deception, as to the contents of the deed, was practiced on her. Mere mistake of a party as to the legal effect of an instrument does not vitiate the instrument or afford ground for reformation.”

Appellants further contend that appellee is estopped to claim title to the property because her predecessor in title accepted benefits under the will of his wife Lula which were inconsistent with his ownership of the property. It is true Dubisson did accept such benefits under the will of his wife, but the benefits he accepted were less than he was entitled to and such acceptance on his part gives rise to no principle of estoppel. Appellants rely on Hudson v. Union & Mercantile Trust Company, 155 Ark. 605, 245 S. W. 9. But, in that case Mrs. Hudson claimed a dower interest in a certain fund. Relying on her election to take dower, the administrator on order of the probate court paid the balance of the fund on preferred claims. Later Mrs. Hudson claimed the entire fund. In these circumstances, the court held that she was estopped. It can readily be seen that the principle of estoppel involved in the Hudson case is not present in the case at bar.

The decree is affirmed.


author: Lee Seamster, Chief Justice.

text:
    Hixson Coal Co. v. Furstenberg, Admx.
    5-752
    284 S. W. 2d 120
    Opinion delivered November 21, 1955.
    [Rehearing denied December 19, 1955.]

      Rose, Holland do Holland, for appellant.

      G. L. Grant and Lulce Arnett, for appellee.
   Lee Seamster, Chief Justice.

The Arkansas Workmen’s Compensation Commission rendered an opinion, whereby Frank H. Furstenberg, was awarded benefits under the provisions of the Arkansas Workmen’s Compensation Act. The award of benefits was predicated upon a finding that Furstenberg contracted silicosis, an occupational disease, while in the employment of the Hixson Coal Company, appellant herein. On appeal to the Logan Circuit Court, Northern District, the action of the Commission was affirmed. Upon appeal to this court, it is the contention of the appellants that Frank H. Furstenberg did not contract silicosis while working in the Hixson Mine, nor was he subjected to his last injurious exposure to the hazards of such occupational disease, while working in the Hixson Mine. The appellants also earnestly insist that Furstenberg’s claim is barred by the statute of limitations, since Furstenberg did not give notice of the injury to Hixson, as required by law.

Shortly after this cause was appealed to this court, Frank H. Furstenberg died. This cause is revived against Theodora Furstenberg, administratrix of the estate of Frank H. Furstenberg, appearing as appellee herein.

The record reveals that Frank H. Furstenberg had worked in coal mines since 1905. He was employed by the Watson Coal Company from 1936 to 1946, at which time the Hixson Coal Company took over the operation of the Watson Coal Company. Furstenberg continued to woik for the Hixson Coal Company until December of 1949; when he terminated his employment with Hixson and went to work for the Sims Coal Company, as a pumper. On November 7, 1950, he terminated his employment with the Sims Coal Company, where he was employed as a pumper and was subjected to little, if any, dust. Shortly thereafter, he went to work for the Jewel Mining Company, in the capacity of a wall boss. He was compelled to terminate this employment on March 15, 1951, when the disabling effects of silicosis rendered him totally disabled.

It is generally conceded that Furstenberg became afflicted with silicosis while engaged in his occupation as a coal miner. The question before the Commission was not whether Furstenberg had silicosis, but where he received his last injurious exposure to the disease. In silicosis, the injury may occur many years before the disease becomes manifest, as the accumulated effects of the deleterious substance are of a slow, insidious nature.

After a careful review of the record, it is apparent that Furstenberg became afflicted with his silicotic condition, prior to the time of his employment with the Jewel Mining Company. There is ample competent evidence in the record to show that the disease was actually incurred in his employment with the Hixson Coal Company, even though disablement did not occur until March 15, 1951. Furstenberg had acquired enough harmful quantities of the silica dust by December, 1949, so as to produce or cause the disease for which claim is made in this case. There is evidence that he was last injuriously exposed to the hazards of such disease, in December of 1949, while in the employment of the Hixson Coal Company.

Furstenberg testified that for approximately two years prior to his termination of employment with appellant, Hixson Coal Company, he was bothered with breathlessness; it progressed to such an extent that he could not walk out of the Hixson Mine without resting, and finally got to the point that it became necessary to ride out, being unable to walk. This testimony was corroborated by the statements that Furstenberg made in 1949, to the Veterans Administration, in his application for non-service connected disability benefits. These statements were to the effect that he was compelled to terminate his employment with the Hixson Coal Company, due to the fact that his physical condition had progressed to a point that he was unable to perform his work in the Hixson Mine. Furstenberg, at this time, was of the opinion that his breathlessness was caused by asthma.

Furstenberg was admitted to the Arkansas Tuberculosis Sanatorium on March 26, 1951. After an examination, he was classified as a case of far advanced tuberculosis and silicosis. In the doctor’s opinion, Furstenberg was totally and permanently disabled. Subsequent examinations were made by other qualified doctors, and in each instance he was diagnosed as being totally disabled by reason of silicosis. Competent medical reports disclose the beginning of the silicotic condition in 1943; which, at that time, was not disabling. Continued exposure and inhalation of the silica dust brought on the progression of the disease.

From a review of the record, we are unable to say that there was no substantial evidence to support the findings and action of the Arkansas Workmen’s Compensation Commission. We have many times held that the Workmen’s Compensation Law should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant. The rule is firmly established that the findings of the Commission, which is the trier of the facts, will not he disturbed on appeal if supported by substantial evidence. Meyer v. Seismograph Service Corp., 209 Ark. 168, 189 S. W. 2d 794; Harris Motor Company v. Pitts, 212 Ark. 145, 205 S. W. 2d 21; Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.

The claim was filed within the time prescribed by statute, therefore, the appellants’ last contention that the claim is barred by statute is without force and cannot be sustained.

Affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Burns v. Ford, Admx.
    5-769
    283 S. W. 2d 866
    Opinion delivered November 21, 1955.

      Wayne Foster, for appellant.

      Gordon Sullivan, John Bailey and Harry C. Robinson, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee as administratrix in succession, on October 4, 1954, obtained a judgment for $3,500 in a tort action against appellant, Catherine Burns, and caused execution to issue. A levy was made on Lots 5 and 6, Block 21, Brack’s Addition to the City of Little Rock, which property appellant scheduled as exempt claiming it to be her homestead. A traverse was entered by appellee and on a hearing the trial court, March 16, .1955, denied appellant’s schedule on the ground that at the time she purchased the property levied on, she was not the head of a family and that the homestead that she had held in other property, — Lot 6, Block 28, Brack’s Addition to Little Rock, — she had voluntarily sold and had been abandoned by her. From the judgment is this appeal.

For reversal appellant relies on two points: “(1) Under Arkansas law one possessing a homestead may sell the same and acquire a valid homestead in another tract with the proceeds thereof, provided the sale of the original homestead is not accompanied by circumstances constituting abandonment. (2) There was no evidence before the court in this cause upon which the court could predicate a finding that the sale of appellant’s original homestead was accompanied by circumstances constituting an abandonment of same. ’ ’

These points will be considered together. The material facts appear not to be in dispute and are to the following effect. Catherine Burns, acquired a homestead in Lot 6, Block 28, Brack’s Addition to the City of Little Rock in 1914, which property is not involved in this action, and continued to live on said property until about August 9, 1943, when she voluntarily sold said property. On September 27, 1943, appellant purchased Lots 5, 6, 7 and 8, Block 21, Brack’s Addition to the City of Little Rock and constructed a residence on the property, which she has occupied for several years. At the time appellant purchased this property, which is the property involved here, she was divorced from her husband (said divorce having been granted in 1930) and both of her children were of age, married and lived separate and apart from her.

We hold that the finding of the trial court was correct in the circumstances. At the time appellant sold Lot 6 in Block 28 above, she was unmarried, her children were of age, married and had moved away. She was then not the head of a family. The property involved here and levied on was acquired by her September 27, 1943, when she was neither married nor head of a family, and after she had voluntarily abandoned her homestead. The principles of law announced in the case of Beeson v. Byars, 187 Ark. 966, 63 S. W. 2d 540, control here. In that case the facts were that: “The land in question had been for many years the homestead of John Beeson, hut his son had moved away and his wife had died, and for some years John Beeson had lived alone on the land. It is insisted — and correctly so — that John Beeson’s homestead right was not lost by the removal of his son from the homestead |nd the death of Mrs. Beeson. . . .

“The land ceased to he the homestead of John Bee-son on November 19, 1929, at which time he sold and conveyed it to D. C. Cathey. Notes given by Cathey for the purchase money were not paid, and in January, 1931, Cathey reconveyed the land to John Beeson. The testimony established the fact very clearly that, when Beeson sold the land to Cathey, he surrendered possession thereof and removed therefrom, and went to the home of D. C. Cathey about 2% miles away, in fact he had removed from the farm upon the death of his wife and after living with D. C. and Jack Cathey for something over two years he returned to live with Arthur Clements on the land in suit. . . .

“While, as we have said, John Beeson did not lose his right of homestead because he had been left without family, he did lose his homestead right when he sold and surrendered possession thereof. Wooten v. Farmers’ & Merchants’ Bank, 158 Ark. 179, 249 S. W. 569; Gray v. Bank of Hartford, 137 Ark. 232, 208 S. W. 302.

“Having abandoned the homestead, that right was not reacquired when Beeson returned to the land to live in the home of his tenant. To reimpress the homestead right upon the land it was essential that Beeson be then a married man or the head of a family. Section 3, article 9, Constitution.

“In other words, while Beeson might have retained his homestead right, even after he had ceased to be a married man or the head of a family, yet, when he abancloned Ms homestead right by the sale thereof and the removal therefrom, he could not thereafter, without being a married man or the head of a family, reacquire that right.” See also Stone v. Bowling, 191 Ark. 671, 87 S. W. 2d 49.

Affirmed.

Mr. Justice RobiNSON not participating.


author: Ed. P. McFaddiN, Associate Justice.

text:
    Metcalfe v. Nichol.
    5-766
    283 S. W. 2d 853
    Opinion delivered November 21, 1955.

      Sam Rorex, for appellant.

      Clayton Farrar and Ray S. Smith, Jr., for appellee.
   Ed. P. McFaddiN, Associate Justice.

TMs appeal involves the guardianship of General Metcalfe. The inherent question is what is for the best interest of the ward: the questions actually posed relate to (a) the qualifications of the guardian, (b) requirements as to notice of annual reports, and (c) correctness of fees allowed the guardian and her attorney.

General Metcalfe is a retired officer of the United States Army; and the appellee, Mrs. Marjorie Nichol, is his step-daughter. General Metcalfe has no children or descendants; and the appellant, who lives in Seattle, Washington, is his only brother and nearest blood relative. General and Mrs. Metcalfe were married when Mrs. Marjorie Nichol was a small child, and the General has stood in loco parentis to her and she in loco filiae to him. Colonel Nichol was an officer under General Metcalfe when the Colonel and Mrs. Nichol were married. In 1950, Colonel Nichol was stationed at the Army-Navy Hospital in Hot Springs when General Metcalfe retired; and the General and Mrs. Metcalfe moved to Hot Springs to live Avith Colonel and Mrs. Nichol. Both General and Mrs. Metcalfe became victims of senility and, Avith their consents — in apparently lucid intervals • — ■ the Probate Court of Garland County in March, 1951, appointed Mrs. Nichol guardian of the persons and estates of Mrs. Metcalfe and General Metcalfe. Mrs. Metcalfe is now deceased ; and this case relates only to the guardianship of General Metcalfe, who has been in Port Roots Hospital in Little Rock from 1951 until and after the time of the hearing from Avhich comes this appeal.

At the inception of the guardianship, General Metcalfe’s estate, largely in stocks and bonds, was inventoried and valued at $90,235.96. Mrs. Nichol filed her first annual account in March, 1952, and it Avas approved by the Court. She filed her second annual account in March, 1953, which Avas likewise approved by the Court. In March, 1954, she filed her third annual account; and thereupon the appellant resisted the account and claimed: (a) that Mrs. Nichol Avas never qualified to be guardian of General Metcalfe; (b) that the approvals of the first and second annual accounts were void because no notice had. been given to the appellant; and (c) that the allowances to the guardian and her attorney were excessive. The Probate Court held against the appellant on all points; and this appeal has resulted.

I. Mrs. Nichol’s Qualifications as Guardian. Colonel and Mrs. Nichol were living in Hot Springs on the grounds of the Army-Navy Hospital, and General and Mrs. Metcalfe were living with them at the time Mrs. Nichol was appointed guardian of General Metcalfe, as heretofore stated. The appellant says that the domicile of Colonel Nichol is the domicile of Mrs. Nichol (Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993); and that Colonel Nichol was here in Arkansas as an Army Officer and therefore not domiciled in the State within the purview of our holdings in such cases as Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876, and Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502. These cases relate to domicile for divorce imrposes and not to mere residency for guardianship purposes. In § 57-606, Ark. Stats., in discussing venue for the appointment of a guardian, the Statute says that the venue shall be “. . . (1) in the County of this State which is the domicile of the incompetent; or (2) if the incompetent is not domiciled in this State but resides in this State, then the County of his residence; . . .” The quoted language shows that the framers of our Probate Code (Act 140 of 1949) recognized the clear distinction between domicile and residence. Then in the next section of the Probate Code (§ 57-607, Ark. Stats.), in stating the qualifications of a guardian, the language is: “A natural person, a resident of this State ... is qualified to be appointed guardian of the person and of the estate of an incompetent. . . .” The use of “resident” — in the section immediately following the one using the word “domicile ’ ’ — shows that the Legislature knew and appreciated the difference between domicile and residence in prescribing the qualifications of a guardian to be merely a resident. Sub-section (e) of § 57-607, Ark. Stats., further emphasizes this distinction by stating that a nonresident natural person “. . . possessing the qualifications hereinbefore enumerated (except as to residence) wbo bas appointed a resident agent to accept service of process in any action or snit with respect to the guardianship and caused such appointment to be filed with the Court ... is qualified for such appointment. ’

We hold that Mrs. Nichol was legally qualified as a residént to become guardian of her step-father, General Metcalfe. Furthermore appellant’s attack on Mrs. Nichol’s qualifications may be a collateral attack at the present stage of the proceedings (see Sharp v. Himes, 129 Ark. 327, 196 S. W. 131; and Swindle v. Rogers, 188 Ark. 503, 66 S. W. 2d 630); hut we do not rest our opinion on that point.

II. Approval of the First and Second Annual Reports. Appellant complains that no formal copies of these reports were ever served on him, and claims such service was required by § 57-611(5), Ark. Stats. The Veterans Administration of the 'United States received and approved each of the accountings; and there was no effort at concealment. Appellant does not claim that he would have suggested any changes if he hád been served with á legal summons. His only complaint is that he dislikes' to think of his brother being confined in the Hospital at Fort Hoots.

Assuming, without deciding, that appellant was entitled to receive notice of such reports, the facts show that he had knowledge by having written for and received copies of the reports from the Clerk of the Probate Court. Furthermore, there are in the evidence numerous friendly letters from Colonel Nichol to appellant, telling him of General Metcalfe’s condition and of visits made by the Nichols to Fort Roots to see the General, and of auto rides, shopping trips and dinners to which the Nichols had General Metcalfe, with the approval of the staff of the Fort Roots Hospital. General Metcalfe stood in loco parentis to Mrs. Nichol, and she certainly stood in loco filiae to Mm, because be was living in her home as her step-father at the time of the guardianship. Her love for him is attested by the letters and other matters in the file. On the other hand, until this guardianship, the appellant had seen General Metcalfe only at rare intervals and his visits were years apart. We conclude that the Trial Court was correct in refusing appellant’s contention as regards the first and second annual reports.

III. Third Annual Report. When Mrs. Nichol and her attorney filed this report, they caused a copy to be sent to the appellant; and he complains that the fees allowed Mrs. Nichol.and her attorney are too large. These were $1,200.00 to Mrs. Nichol and $1,200.00 to her attorney. As we stated heretofore, the estate was valued at $90,235.96 in 1951. In this third annual report filed in March, 1954, the net worth of the estate, after paying the guardian and attorney fees here attacked and after paying all other expenses, had increased to $119,405.40. It is, therefore, evident that there has been prudent handling of the estate. Mrs. Nichol had her attorney spend one day a month with General Metcalfe to personally see that he was well and happy, and we have previously commented on the visits that the Nichols made to General Metcalfe. We get the picture that this fine old soldier is being as well cared for as possible; that his guardian and her attorney are faithfully performing their duties; and that the Probate Court was correct in making the allowances.

Affirmed.

       Later when Colonel Nichol was transferred to an Army Post in Texas, Mrs. Nichol attempted to comply with Subsection (e) by appointing her attorney, Honorable Clayton Farrar, as attorney for process.


author: MmoR W. Millwee, Associate Justice.

text:
    H. B. Deal & Co. v. Bolding.
    5-774
    283 S. W. 2d 855
    Opinion delivered November 21, 1955.

      Jale Eoggard, Leo F. Laughren and Elliott D. Levey, for appellant.

      Melvin E. Mayfield, Stein é Stein and Surrey E. Gilliam, for appellee.
   MmoR W. Millwee, Associate Justice.

Appellees, hereinafter called plaintiffs, are 15 laborers and mechanics who were employed by either or both the appellants, H. B. Deal & Company, Inc., and McG-raw Construction Company, Inc., hereinafter designated as defendants, in the construction of the Ozark Ordnance Works at El Dorado, Arkansas, at various times in the years 1942 and 1943. The construction was under a fixed-fee written contract between the H. B. Deal & Company as principal contractor and the United States of America, which required said company and its subcontractors to pay all laborers and mechanics on the job at a rate of not less than one and one-half times the basic rate of pay for all hours worked by them in excess of eight hours in any one calendar day. The defendant, McGraw Construction Co., operated under a written subcontract Avith II. B. Deal & Company in the construction of the government facility.

On April 12, 1943, part of the plaintiffs brought an action against the McGraw Company to recover overtime pay for work done at various times in the construction project over the period in question. A similar action was brought by the other plaintiffs against both defendants on December 16, 1946. The two cases were eventually consolidated for trial before the circuit judge sitting as a jury. In response to certain interrogatories filed by plaintiffs the court required defendants to set out the number of hours each plaintiff worked each day and the amount of money paid each, plaintiff at each weekly pay period as disclosed by the original time records. The information so furnished was accepted as true by most of the plaintiffs and formed the basis for the judgments rendered in their favor. Other plaintiffs offered independent proof of the number of hours worked each day in conflict with the time records. After taking the cases under advisement the court rendered separate judgments in each case for the several plaintiffs in varying amounts on November 16, 1954.

The first assignment of error relates to the applicable statute of limitations. It is urged that the trial court erred in sustaining plaintiffs’ demurrer to that part of the defendants’ answers which pleaded the three-year statute of limitations [Ark. Stats., § 37-206] as a bar to the actions. Both actions were filed within five years, but not within three years, of the last work performed by the plaintiffs. Thus, the effect of the court’s action was to sustain plaintiffs’ plea that the actions were based on a written contract and controlled by Ark. Stats., § 37-209, which provides that all actions on written contracts shall be instituted within five years after the cause of action accrues.

The actions by plaintiffs are on the written contract between the United States Government and H. B. Deal & Company for the construction of the ordnance plant, and particularly Art. 10, Sec. 2, thereof which reads: ‘ ‘ The Constructor shall compensate laborers and mechanics for all hours worked by them in excess of eight hours in any one calendar day at a rate not less than one and one-half times the basic rate of pay of such laborers and mechanics and shall include a stipulation in each subcontract that laborers and mechanics will be paid at a rate not less than one and one-half times their basic rate of pay for all hours worked by them in excess of eight hours of any one calendar day.” A copy of this contract was made a part of the subcontract between the defendants under which the McGraw Company, as subcontractor, assumed all the' obligations placed on the Deal Company by the principal contract with reference to hours and rate of pay of the workmen. In H. B. Deal & Co., Inc. v. Marlin, Judge, 209 Ark. 967, 193 S. W. 2d 315, we held that the foregoing provision was placed in the contract for the benefit of the laborers who were entitled to maintain an action thereon as third party beneficiaries. Again in H. B. Deal & Co., Inc. v. Head, 221 Ark. 47, 251 S. W. 2d 1017, we affirmed a judgment in favor of plaintiff laborers for overtime pay in an identical action based on this provision of the written contract.

Defendants argue that the instant actions are either founded on separate oral contracts of employment, or, that said written contract was in legal effect oral because it was necessary to introduce parol evidence to identify the parties and maintain the action. The case of Kordewick v. Indiana Harbor Belt R. Co., 7 Cir., 150 Fed. 2d 753, supports this contention although it was based upon a different type labor contract between a union and a management committee. The court held that under Illinois law there was no written contract within the meaning of a ten-year statute of limitations unless the parties thereto could be ascertained from the instrument itself. This holding is in conflict with the rule generally followed in those jurisdictions where the question has arisen. Actions by third persons based on written contracts which are made for their benefit are generally held to be within the statute of limitations governing-actions on wx-itten contracts. 53 C. J. S., Limitation of Actions, § 60; 34 Am. Jur., Limitation of Actions, § 91.

In Stover v. Winston Bros. Co., 185 Wash. 416, 55 P. 2d 821, there was involved a written contract between a city and a contractor for the construction of a dam at a fixed wage scale. In a laborer’s action against the contractor for the difference in wages actually paid and wages specified in the third party written contract, the court held that it was not essential that the plaintiff be named in the contract or that his identity be ascertained at the time the contract is made so long as he is one of the class for whose benefit the contract is made. This is the effect of our own holding in the previous Deal cases, supra. See also, Moore v. Illinois Central R. Co., 180 Miss. 276, 176 So. 593; Union Pac. R. Co. v. Olive, 9 Cir., 156 Fed. 2d 737; Bogart v. George K. Porter Co., 193 Cal. 197, 223 P. 959, 31 A. L. R. 1045. These cases are in line with the general rule to the effect that the necessity of introducing evidence extrinsic to a written contract to identify a party named therein, to show performance, or to establish the amount of money to which plaintiff is entitled under such contract where there is an obligation to pay some amount, does not render inapplicable a statute of limitations pertaining to written contracts. See Anno: 129 A. L. R. 603 and cases there cited. The fact that oral proof was required to identify plaintiffs as third party beneficiaries under the written contract and to establish the amount due each thereunder does not prevent the five-year statute of limitations [Ark. Stats., § 37-209] from applying here. It follows that the trial court correctly sustained plaintiffs’ demurrer to defendants’ plea of the three-year statute as a bar to the actions.

Defendants next say there was an accord and satisfaction of the claims sued upon by reason of plaintiffs’ endorsement of weekly pay checks upon the back of which was printed: “Endorsement of this check by payee constitutes receipt in full of the sum appearing under the heading of ‘net amount due’ for wages covering the period and the class of work performed on the face of this check.” It should first be noted that the endorsement in question does not provide that it is in full satisfaction of all claims of the payee, as is usually the situation in those cases upon which defendants rely. Moreover, it is also undisputed that defendants did not purport to make the payments represented by said checks in full satisfaction of their claims for overtime pay under the written contract. According to the pleadings and proof, plaintiffs accepted the checks without any knowledge of the provisions of the written contract relating to overtime pay while such provision was at all times well known to defendants, who failed to apprise plaintiffs thereof or to post a copy of said contract at tbe work site as required under its terms. According to the endorsement recital, it is a receipt for certain sums appearing on the faces of the checks. None of the checks were introduced but it is undisputed that the sums stated on the face thereof did not purport to cover overtime pay and that plaintiffs did not accept them in satisfaction of their claims for overtime labor under the provisions of the written contract. Since there was no controversy as to the sums appearing on the face of the checks which were not received in satisfaction of the claims for overtime pay, the trial court correctly refused to hold there had been an accord and satisfaction by reason of the endorsement. McGehee v. Cunningham, 181 Ark. 148, 25 S. W. 2d 449.

Defendant, H. B. Deal & Co., next insists that the court erred in rendering judgment against it in favor of the plaintiffs, Bolding and Purifoy, for overtime wages earned during a period when each was employed by defendant, McGraw Construction Co. Aside from the fact that this question was not raised below, it appears that defendant, H. B. Deal & Co., failed to include a provision for overtime pay in the subcontract with McGraw Construction Co. as required by the principal contract with the U. S. Government. H. B. Deal & Co. will be reimbursed by the U. S. Government for any judgments against it herein. Of course, plaintiffs can have only one satisfaction of their respective judgments and, under all the circumstances, we cannot say the court erred in rendering judgment against both defendants for overtime wages earned during the periods in question.

It is next argued that the trial court did not have jurisdiction of the person of the intervenor, Glendel Cloud. The record reflects that Oliver L.'Cloud was a plaintiff in the original action against H. B. Deal & Co. and that summons was duly served on said defendant. Thereafter, Cloud mad.e an oral assignment of said claim to. his wife, Glendel, prior to his death in February, 1951. Mrs. Cloud then intervened in the action as assignee ,of her deceased husband’s claim and counsel for defendant was notified by registered letter of such intervention and received a copy thereof. There was no dispute as to the amount of the claim and the only purpose of the intervention was to substitute the widow as plaintiff instead of her deceased husband. IT. B. Deal & Co. is a non-resident corporation and contends that it was necessary that a copy of a summons upon the intervention be served upon the Secretary of State in compliance with Ark. Stats. § 27-340 in order to acquire jurisdiction over the person or intervenor. Counsel overlook the fact that the intervention did not involve a new cause of action or an independent proceeding. It is only where a supplemental pleading asserts a new cause of action that it is incumbent upon a plaintiff to obtain a new service of process. Nance v. Flaugh, 221 Ark. 352, 253 S. W. 2d 207. No new cause of action resulted from the filing of the instant intervention.

Defendant Deal & Company also contends the court erred in rendering judgment in favor of plaintiff Hawk because of insufficient evidence to show that he worked more than eight hours a day. While Hawk accepted the time record as showing the dates he worked, he denied that it correctly showed the number of hours worked. He repeatedly testified that he worked at least 10 hours every day during the periods in question. This was substantial evidence and sufficient to support the judgment of the trial court sitting as a jury.

There was no error in allowing 6% interest on the amount found owing to each plaintiff from the date of his last work to the date of judgment. In their argument to the contrary, defendants say the long delay in the trail of the case was due to the fault of the plaintiffs. The record clearly reflects that the delay was occasioned by' a number of circumstances, including the filing of numerous motions and other pleadings over a long period by both sides. Defendants did not file their answers until January, 1954, and the cases were tried at the next term of court five months later. It also appears that counsel on both sides and the court deemed it advisable to await the outcome of some cases pending in other appellate courts which involved some questions also raised in the instant cases before proceeding with the trial. Defendants did not request an earlier hearing and stipulated that no objection was ever made to the trial court’s methqd of handling the cases. In Lyle v. Latourette, 209 Ark. 721, 192 S. W. 2d 521, relied on by defendants, we held that when interest once begins to run on a claim, it continues to run pending decision by the courts, if the delay is not the fault of either party. The record here does not warrant a finding that the delay was due to plaintiffs’ fault.

Defendant, McGraw Construction Co., contends the court erred in rendering judgment in favor of intervenor, Lora Hodnett, because a written assignment of the claim of her deceased husband showed it was against H. B. Deal'& Co. There is no dispute in the amount of said claim nor that the work was done for the McGraw Company. Mrs. Hodnett testified that her husband made an oral gift of his claim to her prior to his death in June, 1951. In drafting a written assignment of the claim as previously directed by the husband, counsel inadvertently and erroneously described the claim as one “against II. B. Deal & Co., Inc. ’ ’ Even if the written assignment was ineffective to bind the McGraw Company in the circumstances, there was substantial evidence to support a finding that intervenor was the lawful owner of her deceased husband’s claim under an oral gift.

The judgments are affirmed.


text:
    Kansas City So. Ry. Co. v. Smith.
    5-775
    283 S. W. 2d 860
    Opinion delivered November 21, 1955.

      Hardin, Barton, Ilardin & Garner, for appellant.

      Shaver, Tackett é Jones, for appellee.
   George Rose Smith, J.

The appellee recovered judgment for $1,205 as the value of nine head of cattle killed by the appellant’s trains. The case involves eight distinct incidents, two cows having been killed upon one occasion by the same train, and resulted in nine separate verdicts for the plaintiff. The appellant admits that its trains killed eight of the nine animals but contends that it was entitled to an instructed verdict upon each count of the complaint. For convenience of discussion the eight counts may be divided into three subdivisions.

I. Upon five of the occasions — those of April 20, May 14, August 4, August 29, and September 25, 1954— the railway engineer made no effort either to stop the train or to slacken its speed after discovering cattle on or near the railroad track. Although there is evidence that a cow may be seen for as much as half a mile away, the jury were justified in believing that no attempt is made to reduce the train’s speed when an animal is sighted at a distance. The engineers and firemen explain that ’ the sounding of the whistle may startle a grazing beast and cause it to run across the track in fright. Hence the trainmen think it best to try to slip past the animal without disturbing it unnecessarily. If, however, the cow shows any indication of getting upon the tracks the whistle is blown in repeated short blasts in an effort to scare the animal back. There is much testimony from which the jury might have concluded that even when a beast is seen to be approaching the track no attempt is made to slacken speed unless the distance is so great that the train can actually be brought to a standstill in time to avoid a collision.

This practice of continuing at full speed unless a complete stop can be made does not as a matter of law absolve the railroad company from the presumption of negligence that arises from the statute, Ark. Stats. 1947, § 73-1001. In several cases the failure to moderate the train’s speed has been a basis for, or a factor supporting, the view that the statutory presumption has not been indisputably overcome. St. Louis, I. M. & S. R. R. Co. v. Hagan, 42 Ark. 122; St. Louis & S. F. R. Co. v. Carlisle, 75 Ark. 560, 88 S. W. 584; Chicago, R. I. & P. R. Co. v. Williams, 221 Ark. 404, 253 S. W. 2d 349.

Varied situations are presented by the case at bar. The cow killed on August 29 was sighted half a mile away. When the train was “a thousand feet or less” from the animal the engineer first observed an indication that the cow would come upon the track. He blew the whistle — -“that’s all I could do” — but the cow “made a sudden dash on the railroad track to get across and almost made it.” From other testimony it is reasonable to believe that by a routine application of the service brakes the train’s speed could have been materially reduced over a distance of 1,000 feet, and still more so at half a mile. It cannot be said as a matter of law that the jury were wrong in thinking the animal would have escaped had any effort at all been made to slow the train.

The other four incidents in this first group all involve the railway’s practice of making no attempt to slacken speed when an animal is first observed. In the instance that is perhaps most favorable to the appellant, that of August 4, the engineer testified that the cow was 200 feet away when he discovered her on the tracks. This testimony is to some extent contradicted by the fireman, who said that the animal was grazing on the .side of the track when he first saw her at a distance of only seventy-five feet. In passing it may be remarked that such inconsistencies in the testimony have been held to justify the jury’s conclusion that the witnesses are discredited. Little Rock & F. S. Ry. Co.v. Jones, 41 Ark. 157; St. Louis S. W. Ry. Co. v. Hutchison, 79 Ark. 247, 96 S. W. 374; Missouri Pac. R. Co. v. Bain, 170 Ark. 594, 280 S. W. 625. But, apart from these discrepancies in the proof, the jury had all along the problem of deciding whether a slackening of the train’s speed would have avoided the accident. To what extent a moving train may be slowed over a given distance is not a matter which the jury may be taken to know from everyday knowledge; proof is needed. Since the appellant offered no evidence on this point, taking the position that no reduction in speed is called for unless a full stop is possible, it cannot be said that the presumption of negligence was incontrovertibly overcome in any of these instances.

II. On two occasions — those of April 26 and May 4 — the engineer did apply the brakes in an attempt to stop his train. In the latter instance the testimony is so contradictory that the jury, under the cases last cited, was-not required to believe either eyewitness. The engineer says that the accident occurred at 9:50 a.m.; that he sighted a herd of cattle crossing the tracks; and that he applied first the service brakes and then the emergency brakes in his attempt to stop. The fireman, in testimony that we cannot bring into harmony even by a careful study of the record, stated on direct examination that he observed fifteen or twenty cattle crossing the tracks, but he says the incident happened at night — ■ "I distinctly remember because it was dark.” He could not then be sure that one cow had been fatally injured, but on the return trip the next morning he saw the animal’s dead body. Yet on cross-examination this witness stated, ivithout explanation, that the occurrence was in the daytime. If the testimony cannot be reconciled by a study of the record it could hardly be harmonized by the jury upon a single hearing.

In the other instance, that of April 26, the statutory presumption was clearly overcome by the defendant. The engineer testified that he saw from 50 to 100 cattle on the track at night, that he began sounding the whistle, and that he immediately applied the emergency brakes but was unable to stop in time. Many cases hold that such uncontradicted proof rebuts the presumption of negligence. Kansas City, F. S. & M. Ry. Co. v. King, 66 Ark. 439, 51 S. W. 319; St. Louis, I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; Chicago, R. I. & P. Ry. Co. v. Fowler, 186 Ark. 682, 55 S. W. 2d 75. Indeed, the appellee’s only argument on this count is that the headlight might have been defective. This contention is based solely on the engineer’s statement that all headlights are not of exactly the same brilliance, Avhieh obviously falls short of proof that the light in question ay as inferior.

III. The appellant denies that a train struck the appellee’s ball on September 19 and contends that the evidence is insufficient to show that the animal was killed by a train. We think the evidence supports the verdict. The bull was found, seriously injured, about 200 yards from the track. A witness, searching for the animal, was able to find it by starting at the track and following the trail left by the beast as it dragged itself to a mudhole. A section foreman told the plaintiff’s son that the bull had been killed by a train and might be destroyed. It is argued principally that no witness described any marks on the bull that might have resulted from the impact with the train. The quick answer to this contention is that, with the exception of the section foreman, no witness was asked about such wounds, although there was every opportunity for the question to be put. When the section foreman saw the animal it was mired down with only its back showing; so his failure to see any marks falls short of proof that there were none.

The judgment is affirmed except as it relates to the cow killed on April 26; that part of the judgment, in the sum of $120, is set aside and the cause dismissed.


text:
    Wentworth Military Academy v. Marshall.
    5-777
    283 S. W. 2d 868
    Opinion delivered November 21, 1955.

      Jameson é Jameson, for appellant.
    . J. E. Simpson, for appellee.
   Paul Ward, Associate Justice.

Appellees, Mr. and Mrs. B. 0. Marshall, enrolled their son, Edwin, in the Wentworth Military Academy about the first of September, 1953, agreeing to pay the Academy, the total sum of $1,770.50 for a full school term of approximately nine months. Edwin attended the Academy until the Christmas vacation period and voluntarily failed to return. At that time appellees owed the Academy a balance of approximately $875.50 based on the charges for a full term.

The Academy filed suit against appellees for the said balance due and after a hearing the trial court directed a verdict for the Academy, appellant, in the sum of $884.24, being the balance due plus interest. On appellees’ motion the trial court then set the verdict aside and granted a new trial, from which order appellant prosecutes this appeal.

We have reached the conclusion that the trial court was right in the first instance and that it was error to set aside the first judgment and grant a new trial.

On September 1, 1953 Mrs. Marshall signed an application for the admission of her son to the Academy in which it was stated that said application was “subject to provisions and regulations published in your current catalogue.” A copy of the catalogue referred to had previously been mailed to appellees and a copy is made a part of the record. On page 61 of said catalogue under the heading of Refunds and Reductions there appears the following paragraph:

“Students are admitted to the Academy only on condition that they remain the entire year, unless suspended, dismissed, forced to withdraw on account of sickness or graduated from Junior College. In case of suspension, dismissal, or voluntary withdrawal, no money paid on tuition or other fees will he refunded and any unpaid balance shall become immediately due and payable. The terms set forth in this catalogue constitute the Academy contract and entrance in the Academy constitutes acceptance of this contract for the full year. ’ ’

On September 7,1953, at the time Edwin entered the Academy his father signed an Agreement with the Academy showing in detail the expenses of his son “at the Academy for the entire school year from Sept. 7, 1953, to May 31, 1954.” This Agreement shows the total expenses for the school term to be $1,770.50. It further shows receipt of payment as of that date in the sum of $370.50 with $175 due October 1, 1953 and the same amount due on the first of each month thereafter up to and including May 1, 1954.

It is not disputed that Edwin quit the Academy voluntarily the latter part of December 1953 and did not return or offer to do so. He did however finish out the school term at Berryville.

Under the above factual situation appellees were obligated to pay the full amount for one full term of school.

The trial court, in setting aside the first judgment, gave as his reason the fact that the contract on which “plaintiff’s cause of action was based is unenforcible because of lack of mutuality. ” In reply to-this appellant takes the position that the contractual relationship existing between appellant and appellees was what is termed a unilateral contract, citing 12 Am. Jur., page 512, § 14, where it is stated that: ‘ ‘ The doctrine of mutuality is inapplicable to unilateral contracts.” We, however, do not think this contention on the part of appellant is a complete answer to the reason given by the trial court for its action. It is true of course that appellant has signed no paper or agreement obligating it to keep Edwin Marshall in school for the fnll term and provide him while there with board and free tuition, but the fact remains that when they accepted Edwin as a student they thereby became obligated to fulfill all the provisions set forth in the catalogue and they were thereafter bound just as they would have been had they signed a wi'itten contract.

We surmise that the trial judge felt there was no “mutuality” because he was under the impression that the Academy was not obligated to keep Edwin in school for the full term and that it could discharge him at its own volition and without cause. We do not think this is a fair interpretation of the contractual obligation imposed on the Academy by the terms of the contract. At page 48 of said catalogue under the heading “Regulations” there is this paragraph:

“The Academy reserves the right to demand the withdrawal of any student without the making of specific charges. If a boy’s presence is felt to be unwholesome, or if he has a degrading influence on those around him, or has been guilty of conduct unbecoming a gentleman, he will be asked to leave.”

In our opinion the above quoted paragraph imposes on the Academy the obligation to keep a student for the entire school year and that it would have no right “to demand the withdrawal” of such student except for one of the reasons therein stated. We can understand the wisdom of the Academy not being obligated to prefer “specific charges.” To have to do so would compel the Academy unnecessarily to embarrass the student or his parents.

Although the exact issue presented here has never been directly passed on by our court, it has been considered by many text writers and by other courts. In Williston on Contracts, § 1352 the rule applicable here is stated this way:

‘ ‘ In several cases the right of a school to recover the full annual tuition charge when the pupil was expelled for proper cause, or left without reason before the close of the year has been allowed. The only justification for this can be the fact, if it is a fact, that one less pupil involves no saving of expense to the school.”

In American Law Reports, Annotated Volume 69 at page 712 we find this statement:

“Although a few cases assert different views, it has been held generally that, where a contract for schooling is for a specified period, for which a definite payment is to be made, even where it covers hoard as well as tuition, and there is no general stipulation for a deduction or refund in the event of inability to attend (and particularly if the contract provides that no deduction will he made for absence) the entire contract price becomes payable, regardless of nonattendance by the pupil or student for part or all of the time. ...”

In the case of Hall v. Mt. Ida School for Girls, Inc., 258 Mass. 464, 155 N. E. 418, 50 A. L. R. 1495, appellant paid a full year’s tuition for her granddaughter to attend appellee school. The granddaughter married within two or three months after the school term began and was expelled, and appellant sued. The trial court permitted recovery, hut the Supreme Court reversed that judgment. It was stated in the opinion that it was agreed ‘ ‘ that contracts for hoard, lodging and instruction at a private school for a specified time have always been held to he entire contracts and not divisible. ’ ’

In Peirce v. Peacock Military College, (Tex.) 220 S. W. 191, where the same issue as here was presented the court in holding that the school was entitled to recover for a full term, among other things, said:

“We find that contracts made with schools for hoard, lodging, and tuition, which contain provisions clearly showing that the contract is for an entire session and that no deduction is to he made if the student leaves before tbe expiration of the session, have been held to authorize a recovery of the price stipulated to be paid for the entire session. ’ ’

Somewhat the same reasoning used and the same conclusion reached in the above cited cases will be found in William v. Stein, et al., 166 N. Y. S., 836 and Hitchcock Military Academy v. Myers, 76 Cal. App. 473, 245 Pac. 219.

The case of M. F. Teeter v. Horner Military School, 165 N. C. 564, 81 S. E. 767 [annotated in 51 L. R. A. at page 975, et seq.j holds that the school could collect the full amount designated for a full term of school where the student was expelled and where the catalogue contained rules for discipline similar to the ones in the case under consideration. In that case the catalogue provided that “applicants are accepted with the express understanding that they will submit to our authority in every respect. A boy whose conduct is hurtful to the scholarship and morals of his associates will be expelled. ’ ’

This court held in the case of Kentucky Military Institute v. Cohen, 131 Ark. 121, 198 S. W. 874, that the school could not recover the full amount where the student was expelled without good reason. Of course this question need not be considered here because Edwin was not expelled but voluntarily quit school.

Appellees for an affirmance rely on Holton v. Cook, 181 Ark. 806, 27 S. W. 2d 1017, 69 A. L. R. 709, but that case is easily distinguishable on the facts from the case under consideration. There the student became physically unable because of defective eyesight to continue in the school until the end of the term. This fact was recognized by the court and made the basis of the conclusion there reached. The court there distinguished its holding from the Hall case and the Peirce case above cited.

Since there is no dispute about the amount involved here and since it is not denied that Edwin left the school voluntarily, it is our conclusion that the contractual relationship created by the instruments above mentioned imposed the liability on appellees to pay the balance due for a fall term. Therefore the cause is reversed with directions to the trial court to enter judgment in accordance with this opinion.

Justice Millwee dissents.


text:
    Hall v. Milham.
    5-779
    284 S. W. 2d 108
    Opinion delivered November 28, 1955.

      Kenneth C. G of felt, for appellant.

      McDaniel & Grow, for appellee.
   Lee Seamster, Chief Justice.

Appellee, S. P. Mil-ham, instituted ejectment proceedings in Saline Circuit Court against appellants, Dewey Hall and wife, Ocie Hall, for possession of a lionse and about 20 acres of land in Saline County, Arkansas. Further, the appellee sought judgment against appellants in the sum of $3,500, for an alleged indebtedness. The appellee later amended the original complaint and sought judgment for rent of said property at the rate of $75 per month, from the date of notice to appellants to vacate the property, until possession is restored to appellee.

Appellants answered with a general denial and filed a cross-complaint, seeking specific performance on an alleged oral contract with appellee, whereby, the appellee purportedly agreed to execute and deliver to appellants, a deed to the 20 acres of land, in return for appellants’ promise to live with him and care for him the rest of his life. In the alternative, appellants sought judgment against appellee, in the sum of $5,000, which represented the sum expended by them to repair and remodel the appellee’s home. Thereafter, on appellants’ motion, the cause was transferred to equity.

The cause was tried on October 7,1954, at which time the Chancellor took the matter under advisement and rendered a decree on December 31, 1954. The trial court dismissed the appellants’ cross-complaint for want of equity and because appellants did not pay certain court costs. The court decreed that appellee should receive judgment against appellants in the sum of $50 a month, for the occupancy and use of the dwelling house by the appellants, from the date of notice to appellants to vacate the property, until possession is restored to appellee. Judgment was also rendered against appellants, in the sum of $15 per month, for rental of a block house which is located on appellee’s property. This appeal follows.

The appellants have listed three points for reversal, they are: (1) the Chancellor’s decree is against the preponderance of the evidence, in his holding that appellee did not agree to deed his property to appellants for valid consideration, and in his holding that appellee should not be required to perform the agreement; (2) the Chancellor erred in his failing in the alternative to award judgment against appellee and in favor of appellants for the amount of money appellants spent in repairing tlie appellee’s property; and, (3) the Chancellor erred in directing that appellee recover rental on the property, for the reasons set forth in Nos. 1 and 2 of these points, and for the further reason that the care the appellants gave appellee would more than offset any rental for their use of the property.

Appellee, S. P. Milham, is a 78-year-old, unmarried bachelor, who has resided near Benton, Arkansas, all of his life. He is the uncle of Dewey Hall, one of the appellants herein. For a number of years, the appellants lived in Homer, Louisiana, where Dewey Hall carried on the trade of a master plumber. According to the testimony of the appellants, the appellee had lived alone most of his life and since he was getting old he felt the need of someone to live with him and care for him the remainder of his life. Consequently, in the early part of 1952, the appellants sold their home in Homer, Louisiana, and went to live with appellee under an oral agreement that the latter was to deed to the appellants the house and 20 acres of land in consideration of the care and attention to be bestowed upon the appellee during his lifetime. Further, the appellants contend that appellee also agreed to will them all of his real estate holdings, as well as personal effects. The appellants contend that they occupied the appellee’s premises pursuant to that agreement; spent about $5,000 of their own money in repairing and remodeling the house; fed appellee and took care of him until June, 1953, at which time appellee instituted this suit and moved out of his house. There was other testimony from disinterested witnesses that tended to corroborate the testimony of the appellants.

This testimony was stoutly denied by the appellee, who testified that he allowed appellants to move into his house, under an agreement that they could remain there until they built their own house. He maintained that this arrangement was only temporary and appellants agreed to board him, do his laundry, and pay the utility bills in lieu of rent. Appellee testified that he did not obligate himself or promise to convey the lands in question to the appellants in consideration for appellants’ promise to live with him and care for him, bnt rather, he told them that he wonld will them his property at his death, and thereafter did make a will to that effect. He contends that appellants are indebted to him in the sum of $3,500, less any sums expended by appellants for repairs to his house.

There is a decided conflict in the testimony as to whether appellee was forced to leave his home on account of intolerable treatment by the appellants, Dewey and Ocie Hall. It is true that appellants testified that an oral contract was entered into for their personal services in consideration for an immediate delivery, by appellee, of a deed to the 20 acres of land; but the evidence reveals that this purported agreement was never carried out since appellee has never delivered a deed to the appellants. There were no witnesses to his purported agreement. However, there is sufficient evidence to show that appellee agreed to will the appellants all of his property, in return for their promise to live with him and care for him the rest of his life.

The validity of an oral contract to make a will has long been recognized and such contracts have often been enforced by the courts. As in other contracts, a promise to make a will cannot be enforced without consideration. In the instant case, the appellants, in consideration for the promise of the appellee to will them his property, have agreed to render personal services or perform acts in the future. In other words, the agreement to make a will is supported by a prospective rather than a past consideration. We have often held that equity will not decree specific performance of an executory contract to perform personal services, for the obvious reason that there is no method by which its decree could be enforced. The jurisdiction of equity will not be exercised to decree a specific performance, however inadequate may be the remedy for damages, where the contract is of such a nature that obedience to the decree could not be compelled by the ordinary processes of the court. See Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, 94 S. W. 922; Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S. W. 694. The trial court was correct in refusing specific performance in this instance.

We think the trial conrt erred in dismissing the cross-complaint of the appellants and in rendering judgment against them for $65 a month rent. By reason of the agreement between the parties, the appellants sold their home in Homer, Louisiana, and moved into the home of appellee; fed and carried forth their part of the agreement for 14 months; expended considerable money and labor in improving the appellee’s property, with the expectation that the property would eventually be theirs. The appellee voluntarily left his home, at the end of 14 months and made it impossible for the appellants to care for him. At this time, he changed his will leaving the property to other persons and instituted this suit.

The appellants have expended the sum of $2,800, in material and labor for improvement of appellee’s property, for which they have not been reimbursed. They are entitled to a judgment against appellee for this amount. Ross v. Springstun, 219 Ark. 228, 242 S. W. 2d 116; Walker v. Eller, 178 Ark. 183, 10 S. W. 2d 14.

• Judgment is rendered in favor of appellants against the appellee, in the sum of $2,800. The appellee will have 60 days after the filing and recording of the mandate in which to pay said amount. The appellants will be required to vacate the premises within 10 days, after payment of the judgment by the appellee. Should appellee fail to.-.pay said judgment .within the time allowed, the premises will be ordered sold to satisfy the judgment.

The decree dismissing appellant’s cross-complaint and the judgment for rent against appellants, are reversed and the case is remanded with direction to enter a decree not inconsistent with this opinion. The cost of both courts shall be borne by the appellee.

Reversed and remanded.


author: J. SeaboeN Holt, Associate Justice.

text:
    Hardin v. State.
    4814
    284 S. W. 2d 111
    Opinion delivered November 28, 1955.

      George F. Edivardes, for appellant.

      Tom Gentry, Attorney General of Arkansas, Thorp Thomas, Assistant Attorney General, for appellee.
   J. SeaboeN Holt, Associate Justice.

A jury found Joe Hardin (appellant) guilty of second degree murder for killing Charles Brittain, but did not fix the penalty. Thereupon the court assessed his punishment as fifteen (15) years in tlie State Penitentiary. This appeal followed.

I.

For reversal appellant assigned sixteen alleged errors. Assignments 1, 2, 3, 4, 8 and Supplemental Assignments 2 and 4 cover the sufficiency of the evidence. We think, however, after reviewing the record that there was ample substantial testimony to support the jury’s verdict. The facts were to the following effect: Willie Pearl Walker (an eye witness) testified in substance that August 26, 1954, she asked appellant if he had any Avhiskey and he said he did not. Later that same day, about 7 or 8 p.m., she along with Isaac Penny, Virgie Reed, Charles Brittain and two others (not identified) went to Hardin’s home for whiskey. They found him there alone and remained for about an hour or two. Hardin produced some whiskey and they began drinking. During .this time Hardin went into another room and on his return announced that someone had stolen his gun, whereupon, she and the victim, Brittain, went with Hardin to search for the gun. When they could not find it, Hardin directed her to call Isaac Penny and when she did so Isaac ran. Hardin then closed the door and told them they were not going to get out. Hardin then went into a hack room, returned with a gun which he pointed at Brittain and said, “Your friend got out hut you ain’t going to get away.” Brittain said, “I haven’t got your gun.” Hardin then fired and Brittain fell in a chair in the middle of the room. Brittain got up in a few minutes, stumbled, started into another room when Hardin fired again and hit him in the hack. Before the last shot, Hardin struck Brittain on the side of the head with a whiskey jug, breaking the jug. When Hardin shot the second time Brittain fell.

Dr. C. H. Smith testified that the victim was brought to the emergency room of the hospital where he treated him for a gunshot wound in his back just left of the spine. “Q. Could you tell from the wound as to what type of instrument had made the wound? A. It appeared to be a shotgun. Q. What condition was he in at the time you examined him, or treated him? A. When I first saw him, he was conscious and rational, but he lapsed into unconsciousness in just a few minutes. Q. What time of the night did you last attend him? A. I imagine it was around 9 or 10. Q. Was he still living at that time? A. Pie was. Q. Was his condition caused by the wound Avhich you have just described? A. It was.”

His condition continued to ‘ ‘ deteriorate ’ ’ which was caused “from the hemorrhaging of the wound.” Brittain was so nearly dead that any attempt to do anything rather than try to improve his condition would have resulted in immediate death. He died that night.

Other witnesses tended to corroborate Willie Pearl Walker’s testimony and also the fact that Brittain exhibited no weapon and they saw none. We find no evidence that Brittain was armed. The jury was the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Herron v. State, 202 Ark. 927, 154 S. W. 2d 351. It is also the jury’s province to weigh the evidence on the issue of self-defense, relied upon by appellant, and accept what they believed to be true and reject any that they thought to be false. Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621. There was no error in the trial court’s refusal to direct a verdict for appellant at the conclusion of the State’s case, and again refusing his request to direct a verdict at the conclusion of all the testimony. The rule is well established that when the evidence is sufficient, as here, to support a conviction a refusal to direct a not guilty verdict was not error. Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892; Ruffin v. State, 207 Ark. 672, 182 S. W. 2d 673. As indicated we find ample substantial evidence that the victim’s death was caused by the gunshot wound inflicted on him by appellant.

II.

Appellant next contends (Assignments 5, 6 and 7) that the court erred in allowing the State’s counsel to interrogate him as to his activities in the liquor business. “Q. Does Joe Hardin sell whiskey there? A. No, he gave us some. By Mr. Edwardes: We object to that . . . By Mr. Mathis: He is claiming this man was shot in a defense of his home. I want to show that it was a place of business where he regularly sold whiskey.” We think there was no error. The court firmly admonished the jury not to consider the question propounded for any purpose. The question was answered in the negative. We think the court’s admonition to the jury removed any possible prejudices to appellant in the circumstances.

III.

Next appellant argues (Assignment 9 and Supplemental Assignment 6) that the court erred in instructing the jury that appellant assumed the burden of proof to sustain his plea of self-defense. On this point the trial court in conformity with § 41-2246, Ark. Stats. 1947 (C. & M. Dig., § 2342, and Pope’s Dig. § 2968) instructed the jury in this language: “The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless the proof on the part of the state is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing homicide,” and “again, it is the duty of the court to admonish you that the defendant starts out in the beginning of the trial with the presumption of innocence in his favor. This is a presumption that begins with the trial of the case and continues throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt.”

This identical question was answered contrary to appellant’s contention in the case of Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, wherein we said.

‘ ‘ The court gave an instruction conforming to § 2968, Pope’s Digest, which reads: ‘The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.’ It is argued that this instruction cast upon the defendant the burden of proving his innocence, inasmuch as he admitted the killing. Such, however, is not the effect of the instruction when read in connection with instruction No. 11, given by the court, reading as follows: ‘Under the law the defendant is presumed to ho innocent. This presumption is evidence in his behalf and protects him from a conviction at your hands until his guilt- is established to your satisfaction beyond a reasonable doubt. ’

“This assignment of error is disposed of by the opinion in the case of Tignor v. State, 76 Ark. 489, 89 S. W. 96. A headnote in that case reads as follows: ‘Where the jury are instructed, in a murder case, that the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, as provided by Kirby’s Digest, § 1765, they should be further instructed that on the whole case the guilt of the accused must be proved beyond a reasonable doubt. ’

“The judgment in that case was reversed because, after giving § 1765 of Kirby’s Digest (which appears as § 2968, Pope’s Digest) as an instruction, the court did not further charge the jury that on the whole case the guilt of the accused must be proved beyond a reasonable doubt. Here, however, the instruction numbered 11 copied above, does what the court there said should have been done.”

We find no error in the giving of the above instructions in the circumstances.

IV.

Appellant argues (Assignment 10 and Supplemental Assignments 3 and 5) that there was error committed by the court by calling the jury in after they had been out approximately two hours and inquiring: “The Court: Without telling the Court how you stand, do you know numerically about how you are divided. A. Yes. Q. Will you give me just that infoi'mation — how you are divided numerically? A. It is two to ten; that’s right, it’s two to ten. The Court: - Gentlemen, the Court would be very reluctant to keep you unless you think there is a possibility of reaching some agreement. At the same time, the Court would say to you that it is to the interest of the State of Arkansas and to the defendant for you to reach an agreement in this case, if at all possible, and of course without any individual juror waiving any conscientious conviction he has. I have another jury out, and I would like to ask you to bear with the Court another ten minutes and see if you can come to some agreement in this case. All right, you may retire, and if you are not in by the time the other jury comes in, I will check with you. ’ ’

It further appears that the jury at 5:20 p.m. returned into open court and the record reflects: ‘ ‘ By the Court: Gentlemen, have you made any progress since you last reported! Member of the Jury: Yes, sir, your Honor, we have made a little progress. The Court: That is fine; would you like to try to finish up this afternoon, or would you like to recess and resume deliberations at 9:00 o ’clock in the morning ? Member: Let me a.sk you this; it has been put to me by some of the jurors. If.we can agree on the charge, is it permissible for the Court to set the sentence! The Court: That is correct. However, that applies only to some degree less than first degree. The court can set the punishment on any degree less than first degree. Now, does that answer the question? Member: That answers the question.”

We find no error in the court’s action in this connection. What Ave said in Jackson v. State, 94 Ark. 169, 126 S. W. 843, where a similar instruction or admonition was given to the jury, applies with equal force here. “It Avill be obseiwed that the court did not express any opinion as to the Aveight of the evidence, nor change in any manner the instructions already given; nor did the court urge the jurors to yield their individual convictions as to the result of the case. The statement amounted to no more than an admonition to the jury as to their duty to return a verdict, and this Avas guarded by the concluding remark that nothing that Avas said should influence the verdict. We find no prejudice in the remarks. Johnson v. State, 60 Ark. 45.” So here the court did not even suggest, much less instruct the jurors to yield their individual convictions in reaching their verdict, but, in effect, did no more than admonish them to do their duty.

Appellant’s further contention that the court erred in refusing to allow him time for additional argument after the above instruction or admonition to the jury, we hold to he without merit. Here the court’s admonition was not, in effect, a new instruction on some new issue, such as would entitle appellant to reargue the case, what he did in the circumstances was within the sound discretion of the court, and we find no abuse. “The subjects and range, as well as the length, of the argument of counsel, must necessarily he left to the sound discretion of a presiding judge. And, unless grossly abused to the prejudice of a party, is- not the subject of review here.” Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724.

Y.

Finally, appellant stoutly insists that the trial court erred in limiting the time to argue this murder case to twenty minutes on each side over his objections and exceptions. An answer to this contention is that this assignment of alleged error was not preserved or brought forward in appellant’s motion for a new trial and may not now be considered by us. In the very recent case of Watkins, Broomfield and Matlock v. State, 222 Ark. 444, 261 S. W. 2d 274, we reaffirmed this rule in this language': ' “Under bur long established rule, an error not preserved in the motion for a new trial cannot be considered by us on appeal, (. . . State v. Neil, 189 Ark. 324, 71 S.W. 2d 700; Suit v. State, 212 Ark. 584, 207 S. W. 2d 315).”

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Simmons v. Hancock.
    5-773
    284 S. W. 2d 116
    Opinion delivered November 28, 1955.

      Bruce Bennett and William I. Prewett, for appellant,

      T. 0. Abbott, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant claims that someone forged her name to a warranty deed which has been of record since 1937. The Chancery Court held that the signature was that of the appellant; and this appeal has ensued.

In 1954 appellees (J. A. Hancock and wife) filed this suit to have their title quieted against the appellant (Mrs. Annie Mae Simmons). The complaint alleged that the appellant executed a warranty deed to Mrs. Hancock in 3937, but was now claiming that the deed was a forgery. Appellant, by answer and cross-complaint, alleged that the 1937 deed was a forgery, and that the Hancocks had all the time been the tenants of appellant.

Only a factual question- is presented; and the evidence is in sharp dispute. Mrs. Simmons testified that in -1937 the property was worth in excess of $3,000.00; that she rented it to Mr. Hancock for $15.00 a month; that he executed to her four rental notes totalling $360.00 as evidence of rents to mature; that from 1937 to 1950 Mrs. Simmons was a nurse in New York and other places outside Arkansas; that the Hancocks paid the monthly rental to Mrs. Simmons ’ mother until her death in 1948; and that in 1950 Mrs. Simmons learned that no rents were then being paid. Other witnesses testified as to payments by Mr. Hancock to appellant’s mother. The original deed in question was dated and acknowledged on November 26, 1937. Mrs. Simmons testified — and she was corroborated by a number of witnesses- — that she was not in Arkansas on that date. She also testified that she did not know the man who, as Notary Public, claimed to have taken her acknowledgment.

On behalf of the appellees, the Notary Public who took Mrs. Simmons’ acknowledgment to the deed on November 26, 1937, testified that his certificate of acknowledgment was true and correct. J. A. Hancock testified that he and his wife purchased the property from Mrs. Simmons just as recited in the deed — i.e., the assumption of an outstanding mortgage and the execution of the four vendor’s lien notes totalling $360.00. The four notes —marked paid — were introduced in evidence; and on the back of one of the notes was the admittedly genuine and contemporaneous signature of Mrs. Simmons. This signature was compared with the questioned signature of Mrs. Simmons on the deed. An employee of an El Dorado Bank — whose duties for almost fifteen years had been to pass on the genuineness of signatures — testified that, in his opinion, the admitted and the questioned signatures were both made by the same person.

We mention also one other significant matter. Each of the four notes had typewritten in it the description of the property here involved. Mrs. Simmons testified that none of this typewritten matter was in any of the notes when she received them or endorsed the one note as aforesaid. But even so the printed portion of each note said: “This note is given as part of the purchase price on the following described lands in Union County, Arkansas, to-wit: (lines for description). A lien is reserved on said property as security for the payment of this note, . . .” Thus Mrs. Simmons admittedly endorsed her name on the back of a note which said it was for the purchase price of property and that a lien was retained for the purchase price.

From the evidence herein recited, and other in the record, the Chancery Court found that the questioned deed was genuine. We have examined the original instruments and we cannot say that the Chancellor was in error.

Affirmed.

       The deed was to the former wife of J. A. Hancock. After her death her heir conveyed the property to J. A. Hancock, who is the appellee. He has since remarried.

       Mrs. Simmons explained this by statin# that she endorsed the note to hypothecate it for a loan, which she later repaid, and thereupon the note was redelivered to her.