text:
    Associated Seed Growers, Inc. v. Johnson.
    5-1114
    297 S. W. 2d 934
    Opinion delivered January 21, 1957.
    [Rehearing denied February 18, 1957]

      Warner, Warner & Ragon, for appellant.

      Batchelor •& Batchelor and Ralph W. Robinson, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Associated Seed Growers, Inc., is engaged in producing and selling various kinds of seeds. The appellees purchased Logan Bean seed from appellant; the beans produced from such seed were defective, and, therefore, unsalable. Appellees filed this suit against the seed company, alleging the beans were unsalable because they were afflicted with a disease known as “common bean mosaic”; that the seed company had given express and implied warranties that the seeds were resistant to such a disease, which is seed borne. This suit is based on a breach of such alleged warranties. There was a verdict and judgment for appellees in the sum of $2,500.

The evidence was sufficient to take the case to the jury on the question of whether the beans were defective due to common bean mosaic. Appellant produced weighty evidence to the effect that the unsalable condition of the beans was not due to that disease, but there is substantial evidence to the contrary. It is not disputed that the beans were unsalable. Marshall Johnson, Harold Ballentine and Boyce Wofford qualified as experts, through many years of experience by producing and dealing in beans, testified that in their opinion the beans were unsalable because they were afflicted with common bean mosaic. Appellant questions the qualifications of the witnesses to testify as experts. True, they were not trained pathologists, but they had long years of experience with beans, and a witness may qualify as an expert by experience. The court said, in Nixon et al., Receivers v. Fulkerson, 128 Ark. 172, 193 S. W. 500: “The rule with reference to experts is that the witness must be ‘possessed of such experience, skill, or science in the particular subject or inquiry as entitles his opinion to pass for scientific truth. The knowledge contemplated by the rules is knowledge acquired, either from actual study or long experience, in the particular field toward which the inquiry is directed.’ ”

The principal issue on appeal is whether the seed company gave an express or implied warranty with regard to the fitness of the seed. Appellee, Johnson, acting for himself and the other appellees herein, bought the seed from appellant. Johnson had one of appellant’s catalogues; he testified that he studied the catalogue and referred to it in ordering seed. Furthermore, it was stipulated that Johnson used the catalogue in buying seed from appellant. The catalogue described the seed as being resistant to common bean mosaic.

Ark. Stats. § 68-1415 provides: “Implied ivarrcmty of quality or fitness. — Subject to the provisions of this act (§§ 68-1401 — 68-1480) and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

“(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.”

Ark. Stats. § 68-1412 provides: “Express warranty defined. — Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon . . .”

Appellant does not insist that the statement in the catalogue to the effect that the beans were resistant to common bean mosaic, coupled with the statutes set out above, would not be sufficient to constitute an express or implied warranty if that were the entire picture. But, appellant says that in making the sale of the beans, it limited the warranty or disclaimed the warranty. This brings us to a consideration of the facts surrounding the actual sale. The transaction came about in this manner: Johnson called Henry Hicks, the manager of appellant’s Memphis branch, and ordered the Logan Bean seed. Hicks told him that they did not have the seed at Memphis, but thought he might supply them out of their branch at Omaha, Nebraska. After talking to Johnson, Hicks ascertained that the seed were available at Omaha and wired Johnson that they would be shipped. The telegram stated: “SHIPPING TODAY FROM OMAHA VIA TRUCK TWENTY BAGS LOGAN. THANKS.” On the same day that the telegram was sent, Hicks wrote to Johnson as follows: “Following our long distance telephone conversation this morning we found that Logan beans were available at our Omaha warehouse and wired you that we were instructing immediate shipment via truck freight. Accordingly we have entered your order as follows: 2,400 lbs. Beans, Logan, f. o. b., Omaha, Nebraska, .29 1/2 per lb., volume discount 10% . . .’’In the upper right hand corner of the letterhead, in small type, was printed the following: “We warrant that the seeds, bulbs and plants we sell are, at the time of delivery, as described on the container within recognized tolerances: But we limit our liability on this warranty to the amount of the purchase price of such seeds, bulbs, and plants, and we give no other' or future warranty express or implied. Associated Seed Growers, Inc.” The tags on the sacks of beans containing the name and address of the purchaser also had printed thereon the identical disclaimer, as above set out. This disclaimer also appeared on the invoice.

The problem is: Was it a question for the jury to decide as to whether the disclaimer was effective in the existing circumstances. In the first place, it conld be said that the contract of purchase was completed when the seed company accepted the order from Johnson by wiring him to the effect that the beans were being shipped. Evidently both parties considered there had been an offer and acceptance. It is not reasonable to be-' lieve that Hicks would have taken the liberty of shipping the beans unless he had an order from appellees. Even if it could be said that the contract was not consummated until something further was done by the purchaser, the fact that he did not attempt to cancel the order upon receipt of the telegram left nothing else to be done by either party to complete the contract. Judge Hart said, in Rock v. Deason & Keith, 146 Ark. 124, 225 S. W. 317: ‘ ‘ The order signed by appellees on August 7, 1917, constituted an offer to buy the car load of flour from appellants and the acceptance by appellants on August 9, 1917, constituted a completed contract.” In the case at bar, the order was received and accepted by the seller without anything having been said regarding a disclaimer of the express or implied warranty that then existed. Of course, without both parties agreeing to it, a completed contract cannot be modified.

Appellant contends that since the order given by Johnson was not in writing he could not be held to it, and argues that therefore there was no contract, and cites the statute of frauds. But the purchaser would be the one in this instance that could take advantage of the statute, and not the seller, who.accepted the order by telegram, and by shipping the seed. Judge Holmes said, in Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N. E. 1083: ‘ ‘ The contract was made when the parties made their oral agreement. It does not matter that at that time it was not evidenced by a memorandum in writing. The statute of frauds could be satisfied later as effectually as at the time. It was satisfied by delivery of the bulbs. The general printed warning on the bill head that the defendant did not warrant seeds could have no effect unless it led to the inference that the old contract had been rescinded, and a new one substituted, by mutual agreement. Even if the bill had been receipted, it would not have excluded proof of warranty, and, whether there was evidence of a rescission or not, it did not establish one as matter of law.”

The courts are not in accord as to the effect to be given to disclaimers such as the one involved here, and appellant has cited several cases sustaining its theory. But we think the better view is as expressed by Judge Holmes in Edgar v. Joseph Breck & Sons Corp., supra, which is supported by such cases as Gray v. Gurney Seed & Nursery Company, 62 S. D. 97, 252 N. W. 3, and Davis v. Ferguson Seed Farms, Tex. Co. App., 255 S. W. 655, where the court said: “We will dispose of this contention of the parties by saying that if a warranty was actually made during the negotiations for the purchase of the seed, and not withdrawn or modified, it should be given effect, irrespective of the printed disclaimers. ’ ’ See also Moorhead v. Minneapolis Seed Company, 139 Minn. 11, 165 N. W. 484.

Over appellant’s objection, appellees introduced evidence to the effect that other beans of the same kind but of a different variety were planted at the same time, under the same conditions, on land adjacent to that on which the Logan beans were planted; that all of the beans were fertilized and cultivated in a like manner, and that all of the beans developed properly except the Logan beans from the seed obtained from appellant. Appellant contends this evidence was not admissible and cites J. S. Elder Grocery Company v. Applegate, 151 Ark. 565, 237 S. W. 92. In the case at bar, the evidence was admissible as tending to show that the reason the Logan beans failed to develop properly was due to something other than the condition of the soil and the cultivation of the crop. In the Elder case, California blackeyed peas failed to germinate, and the appellate court held it was error to allow the purchaser to show that soy beans planted about the same time did germinate, and that whippoorwill peas planted three weeks later germinated. The court pointed out that soy beans and blackeyed peas are two different things, and that, although the whippoorwill peas might he the same kind of peas as the California blackeyed peas, they were planted three- weeks later. There could have been sufficient moisture in the ground when the whippoorwill peas were planted, and not enough moisture to germinate the California black-eyed peas which were planted three weeks earlier. Thus, it can be seen there is quite a distinction between the Elder case and the case at bar. Here, the beans were of the same kind but of a different variety, planted on the same soil at the same time, and fertilized and cultivated in the same manner.

Appellant makes the further contention that there was no privity of contract between it and appellees herein, however, the record shows that the beans were purchased by Johnson for all of the appellees. Hence, there was a privity of contract. Kefauver v. Price, 136 Ark. 342, 206 S. W. 664.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Brun v. Rembert.
    5-1145
    297 S. W. 2d 940
    Opinion delivered January 28, 1957.

      Hardin, Barton, Hardin & Garner, for appellant.

      Holland <& Holland, for appellee.
   Carleton Harris, Chief Justice.

Appellee, (plaintiff below) was awarded a decree of divorce from appellant on September 12, 1944, by the Sebastian Chancery Court. The custody of the minor child, Juanita Marie Brun, was given to appellee, but no support payments for the child were ordered by the court at that time. Subsequent thereto, (May 31, 1946) the court entered an order directing appellant to pay the sum of $32.50 per month for the support of the child, then 13 years of age, and two payments were made under the order. No further payments were made, and on November 2, 1950, Juanita Marie attained her majority. The proof shows that she is presently married, and has a child of her own. On December 31, 1955, more than five years after the last payment became due, appellee filed suit against appellant seeking to reduce to judgment the delinquent payments in the amount of $1,657.50. The amount sought was not questioned, but appellant filed answer setting up other defenses. At the conclusion of the hearing the Chancellor granted the relief sought and entered judgment against appellant in the sum of $1,657.50, together with costs, and providing that execution might issue if judgment was not paid within ten days. From such holding of the Chancellor, comes this appeal.

For reversal, appellant primarily urges that this action is barred by the Statute of Limitations. This is evidently a case of first impression under this defense. Appellee argues that the' court in Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609, held against this contention. The opinion in the Pence case did not go into the matter of limitations, but rather was decided on the question of the mother removing the child without authority to a place unknown to the father, and thus depriving him of the opportunity to see and visit with said child. While the three year statute of limitations was pleaded in that cause, it was not passed upon by the trial court, and definitely was not passed upon by this court. It might be also stated that the facts in that case were vastly different from those here on appeal. There the child was still a minor so there was a present and continuing duty upon the father to support said child. It is recognized that child support is a family duty, and one which would be incumbent upon a father, even though there were no order requiring such support. McCall v. McCall, 205 Ark. 1123, 172 S. W. 2d 677. In the case before us, the order for' support payments was not a current cause; the child had attained her majority more than five years before the institution of this suit. Worthington v. Worthington, 207 Ark. 185, 179 S. W. 2d 648. This is an action for the benefit of the ex-wife; the amount sought will not go to the child. It is no more than an effort by a former wife to collect a debt.

All agree that some statute of limitations must apply. The sole question is “Which statute?” Appellant argues both the three and five year periods. The three year statute is set forth at Sec. 37-206, Ark. Statutes, Annotated. The ten year statute (Sec. 37-212) reads as follows: “Judgments and decrees — Ten years. —Actions on all judgments and decrees shall be commenced within ten (10) years after cause of action shall accrue, and not afterward.” Section 37-213 provides: “Actions not otherwise provided for — Five years. — All actions not included in the foregoing provisions shall be commenced within five (5) years after the cause of action shall have accrued.” The three year statute obviously was not meant to apply in matters of this nature, but appellant earnestly argues that the five year limitation does apply.

Section 29-101, headed “Judgments and Decrees,” reads as follows: “Judgment defined. — A judgment is the final determination of the rights of the parties in action.” Bouvier’s Law Dictionary defines a final decree as ‘ ‘ One which finally disposes of a cause, so that nothing further is left for the court to adjudicate.” Thus we find that a final decree is conclusive — nothing remains to he done. Appellee insists that the effect of the holding in Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398, wherein it was held that past due payments vest in the payee as they accrue, is to declare such vested payments a judgment as contemplated under Section 37-212. Since this section provides a ten year limitation period, appellee contends that her suit was brought in time. We do not concur with this thinking. It is true that in the Sage case, supra, we held that the trial court had no authority to modify payments which had already become due. The right of modification only extended to future payments. But this was merely to say that once a child support payment falls due, it becomes vested, and is to the payee “a debt due.” For example, one signs a note providing payments at regular intervals. As each installment falls due, the payee has a “debt due,” but still, no one would contend that it would not be necessary to sue on the note and obtain judgment. In order to enforce such a debt due, (support payments) it is necessary to ascertain from time to time the amount of arrearages due and then render judgment for the specific amount. Jones v. Jones, 204 Ark. 654, 163 S. W. 2d 528. A decree for future payments of permanent alimony is not a final decree upon which an execution may be issued, or which might become a lien on real estate. Jones v. Jones, supra; Frazier v. Hanes, 220 Ark. 765, 249 S. W. 2d 842. While the above mentioned cases refer to alimony for the wife, it has been held that payment of allowances for child support falls in the same category. Bucknam v. Bucknam, 176 Mass. 229, 57 N. E. 343. This is clearly implied in our statute. Ark. Stats. Sec. 34-1211, “Decree — Alimony — Care of Children. —When a decree shall be entered, the court shall make such order touching the alimony of the wife and care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable.” It is noted that the two are listed together, from which we gather that the General Assembly intended the right of support for the wife, and children, to be construed in the same manner. A thorough analysis of the aforementioned statute also serves to enlighten us as to what is meant by “Decree.” Apparently “decree” and “order” are considered as being separate. The statute does not recite “when a decree shall be entered, the court shall therein provide for provisions of alimony for the wife and care of the children,” but rather from the verbiage, as we construe it, the meaning is “when a decree shall be entered, the court shall also make such order touching the alimony of the wifé and care of the children. ’ ’

While appellee on the one hand insists that she already has a judgment, it is noticeable that her prayer for relief asks judgment against appellant. If appellee’s theory were correct, it, of course, would not be necessary to ask for judgment at all. It would only be necessary to issue execution.

In conformity with the above reasoning, we hold that accumulated or past due child support payments, are not a judgment, (or final decree) but only the right to a judgment. The order in a decree awarding future child support payments is not the decree itself, but only an order. This is true because such an order deals with things yet to he done. A judgment (or final decree) deals with matters already done, and is thus final. Since the order for child support is not a final decree as contemplated by the statute, it must therefore follow that the ten year statute does not apply, and the five year statute of limitations, (known as the “catch-all” because it covers all actions not previously covered by other limitation statutes) is the statute applicable to this cause. Appellee, accordingly, was not timely in instituting the action. It should be pointed out that the question as to a father’s liability for support payments more than five years delinquent hut while the child is still a minor is not adjudicated herein. This cause deals only with a plea of limitations, where suit was instituted more than five years after the minor attained her majority.

The cause is reversed and dismissed.


author: J. Seaborn Holt, Associate Justice.

text:
    Halbert v. Block-Meeks Realty Co.
    5-1146
    297 S. W. 2d 924
    Opinion delivered January 28, 1957.

      Joseph C. Kemp, for appellant.

      Spitzberg, Mitchell $ Hays and Beresford L. Church, Jr., for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Block-Meeks Realty Co., brought this suit against appellants, Roy Halbert and his wife Alice Halbert, for a 5% sales commission on the sale of certain real property in Little Rock. The listing price was $16,500. Trial before the court, sitting as a jury, resulted in a verdict for appellee for $825 and from the judgment is this appeal.

For reversal appellants rely on the following points : “1. The listing contract executed between the parties had expired before the sale by the defendants. 2. The plaintiff failed to prove that the sale was made ‘on information given, received or obtained through’ the plaintiff. 3. There is no proof that the plaintiff was the procuring cause of the sale. 4. The plaintiff failed to prove that it found a buyer ready, willing and able to buy according to the fixed price set out in the contract. 5. The evidence does not support a finding that the defendants received value in the amount of $16,500 for their property.” The trial court found against appellants on all of these contentions, and we think correctly so. The evidence shows that on July 27,1955, appellants entered into an exclusive listing contract with the appellee real estate firm for the sale of the property involved, No. 1 Myrtle Lane, from July 27, 1955 “till 8-15-55.” During this listing period there was evidence that Mr. Block, one of the appellees, attempted to bring about a sale or trade of the property to Mr. and Mrs. Roy Bosson and that on August 16, 1955, the Bossons conveyed their home to the Halberts as part of the consideration for the transfer of the property here involved, No. 1 Myrtle Lane, which was later conveyed by the Halberts to the Bossons. It appears that Block made a diligent effort to bring about the sale of the Myrtle Lane property to the Bossons, such deal to include Bosson’s equity in the Markham Street property. Roy Bosson testified, in effect, that he and his wife bought the Myrtle Lane property from Roy Halbert and his wife; they looked at the property shortly after July 25,1955; that the first contact he had with Halbert was when he, his wife, and daughter were visiting the property and Mr. Halbert came in; that later Halbert brought Mr. Block to Bosson’s Markham Street property to make an appraisal of it, and that Block examined the house thoroughly. Bosson did observe Block-Meeks signs on the Myrtle Lane property at the time. It was stipulated that the Bossons executed a deed to their Markham Street property to the Halberts August 16, 1955. Bosson further testified that it was a day or two before he and his wife executed this deed that he reached an agreement with the Halberts for the purchase of the Myrtle Lane property here involved. Roy Halbert testified to the same effect. The listing contract contained this provision: “If said property be sold or' disposed of during the period above stated, no matter by whom or in what manner, I agree to pay the BlockMeeks Realty Company a commission of Five (5%) as-compensation for the services of Block-Meeks Realty Company to be rendered herein.” As pointed out, it is-undisputed that the deed from the Bossons to the Halberts, conveying the West Markham Street property,, was executed August 16, 1955, and Bosson testified that his agreement with Halbert to sell the Halbert property to him was a day or two before the execution of this-deed. We hold that there was substantial evidence to support the finding of the trial court that the sale was made during the listing period and for the listing price, amounting to $16,500. In the circumstances here we think it was clearly the intention of the parties that the day of August 15, 1955, should be given an inclusive meaning, that is, that the contract did not expire till the end of that day. Mark Block testified that such was his understanding. “. . . no general rule can be laid down to determine whether the word ‘until’ is a word of inclusion or exclusion. A strictly literal definition would doubtless make it one of exclusion, but popular use is quite as likely to give it an inclusive as an exclusive sense. The use of the word in particular instances may be such as to leave no room for doubt as to its meaning, and, in such cases, the court will give it the meaning intended. Where the word is used with reference to a future day on which something is required to be done, ‘until’ may have an inclusive or an exclusive meaning, according to the use to which it is applied, the nature of the transaction which it specifies, and the connection in which it is used; and it may be held to include the day to which it is prefixed.” 52 Am. Jur., Time, § 25, p. 351. See also Thorn v. Delany and Pennywit, 6 Ark. 219, where we held that where an appellant had been given “until” July 5 to render a bill of exceptions, and the tender was made on that day, it was within the time allowed.

Under this contract we hold that appellee had an exclusive listing of the Myrtle Lane property, and when it was shown that the sale of this property was made by the Halberts to the Bossons within the listing time, it made no difference to whom or in what manner the Halberts sold to the Bossons, they conld not defeat appellee’s commission, even though the Halberts sold to a .stranger to appellee. It was not necessary under the plain wording of the contract for appellee to show that the sale was made on information given or received or obtained through appellee’s efforts, or that appellee had found a buyer, ready, willing and able to buy, for the contract contained no such provisions. In other words, during the listing period, appellants could not sell their property to anyone, without becoming liable to appellee for the commission specified in the contract. There was another provision of the contract which provided: “If said property be sold or disposed of after the above period on information given, received or obtained through this agency, I agree to pay the Block-Meeks Realty Company the commission as herein provided.” Obviously this provision would only come into play had the sale of the property here been consummated after, — and not before —, the expiration of the exclusive listing period, and under its terms appellee could recover its commission only on showing that the sale was made after the listing period “on information given, received or obtained through this (appellee’s) agency.” “While a contract employing a broker and providing for the payment of a commission to him may be valid, binding, and enforceable according to its terms, there is nothing special or peculiar about it which calls for its construction other than by the rules which govern the interpretation of contracts generally.” 12 C. J. S. § 59, p. 133. In Hardwick v. Marsh, 96 Ark. 23, 130 S. W. 524, in construing a contract on a real estate commission, we said: “. . . the contract expressly stipulated for a definite period of time within which the agent might make a sale. In such case the contract implies an exclusive right to sell within the time named, without the right of the principal to revoke the agency unless there is a reservation to the contrary . . . Now, if the principal cannot, under a contract of this kind, stipulating a definite time which the sale may he made revoke the agency directly,, it follows that he can not do so indirectly by making a, sale of the property himself, thereby putting it beyond the power of the agent to perform the contract. The revocation of the agency, either directly or by making a. sale of the property, is a breach of the contract on the part of the principal, and renders him liable to the agent for damages which the latter sustains thereby.” The principles of law announced in the case of Moore v. Holman Real Estate Co., 129 Ark. 465, 196 S. W. 479, also apply with equal force here.

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    S. & M. Oil Company v. Mosley.
    5-1123
    297 S. W. 2d 926
    Opinion delivered January 28, 1957.

      Garneal Warfield, for appellant.

      Grubbs & Grubbs, for appellee.
   Ed. F. McFaddin, Associate Justice.

This suit was brought by appellee, Jack Mosley, to have appellant, S. & M. Oil Company, declared a constructive trustee of a lot, and filling station thereon, in the City of Eudora, and to obtain performance of the constructive trust by the execution and delivery of a deed to appellee. The Chancery Court awarded the relief prayed, and this appeal resulted.

The background facts are largely undisputed. In the fall of 1951, Jack Mosley and W. R. Smith (acting for himself and other members of the Smith family) organized a corporation named “S. & M. Oil Company.” The corporation was (a) to become a bulk distributor for the “Pan-Am” products in the Eudora territory; and (b) to own and lease to Pan-Am Southern Oil Company (herein referred to as “Pan-Am”) a filling station in Eudora where “Pan-Am” products would be sold at retail. Mosley was to pay $10,000 for half of the corporate stock, and the Smiths were to pay a like amount for the other half. Mosley paid his $10,000, but the Smiths, instead of paying $10,000, only paid an amount between $800 and $1,800. As a result of the Smiths’ failure, the S. & M. Oil Company was in financial difficulties from the beginning. In the spring of 1952, “Pan-Am” took over the bulk plant operation and Mosley assumed the other liabilities of S. & M. Oil Company; and, by deed dated March 13, 1952, the S. & M. Oil Company duly conveyed to Jack Mosley the filling station property in Eudora. The validity of this deed is unquestioned.

The S. & M. Oil Company had borrowed from a bank in Eudora approximately $12,800, which had been used in the construction of the filling station. A New Orleans bank had agreed to make the S. & M. Oil Company a loan of $15,000, secured by a first mortgage on the filling station property and assignment of rentals; and “Pan-Am” had agreed to rent the filling station from the S. & M. Oil Company at a monthly rental, which was to be paid direct to the New Orleans bank to amortize the $15,000 loan. The Eudora bank money was a short term loan and was to be retired from the proceeds of the New Orleans bank loan. All of this matter was pending in March, 1952, when the S. & M. Oil Company deeded the filling station property to Mosley and he assumed the outstanding obligations of the S. & M. Oil Company. In May, 1952, the New Orleans bank was ready to take the first mortgage from the S. & M. Oil Company and advance the $15,000. But, in the meantime, the title had been transferred by the S. & M. Oil Company to Mosley.

The foregoing are the background facts; and we get now to the points in dispute. In order to prevent a delay in closing the loan with the New Orleans bank, the representative of “Pan-Am,” Mr. Mosley, and his attorney, Mr. Grubbs, went to W. ft. Smith and explained the situation to him and asked if he would agree that the title be transferred back to the S. & M. Oil Company and the mortgage and papers made to the New Orleans bank, and then the S. & M. Oil Company would re-transfer the title to Mosley, just as had been done in the deed of March 19, 1952, previously mentioned. W. R. Smith, secretary of the S. & M. Oil Company, acting for himself and the other members of the Smith family and the corporation, agreed to such proposition. Accordingly, Mosley and wife deeded the filling station property back to the S. & M. Oil Company; the mortgage and other papers were made to the New Orleans bank; the $15,000 obtained from that bank was used to retire the Eudora bank loan; and then W. R. Smith, acting for himself and the S. & M. Oil Company, refused to reconvey the filling station property to Mosley. He (Mosley) then brought this suit to have the S. & M. Oil Company declared a constructive trustee of the legal title to the filling station property, and to require that it be reconveyed to him. The Chancery Court granted the prayed relief and the correctness of that decree is the issue here.

We have a multitude of cases involving constructive trusts. Some of them are: Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; Barron v. Stuart, 136 Ark. 481, 207 S. W. 22; Moore v. Oates, 143 Ark. 328, 220 S. W. 657; Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Eason v. Wheeler, 167 Ark. 320, 268 S. W. 29; Davidson v. Edwards, 168 Ark. 306, 270 S. W. 94; Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88; Patton v. Randolph, 197 Ark. 653, 124 S. W. 2d 823; Ripley v. Kelly, 207 Ark. 1011, 183 S. W. 2d 793; and Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840.

From our cases, and from authorities generally, the following rules — applicable to this case — are clearly recognized: (a) a constructive trust in lands — as distinguished from an express trust — may be shown to have been established by parol, but such evidence must be clear, cogent and convincing; and (b) in the absence of family relationship or confidential relationship, the evidence required to establish a constructive trust must show that the original promise to reconvey was made with a fraudulent intention; and the mere failure to re-convey — standing alone — is not sufficient to establish the fraudulent intent.

With these two applicable rules before us, we conclude that the decree of the Chancery Court should be affirmed. Appellee presented the required quantum of evidence to show that Smith had agreed that the S. & M. Oil Company would reconvey the filling station property to Mosley as soon as the mortgage to the New Orleans bank had been consummated. In fact, Smith himself admitted as much on cross-examination:

“Q. Then, Mr. Smith, regarding the reconveyance of this property back to Jack Mosley, the only difference, as I understand, between your testimony and Mr. Mosley’s testimony is that he was also to execute another deed back to S. & M. Oil Company.

“A. I think that is substantially correct, other than perhaps some difference in detail.”

Furthermore, appellee established by the required quantum of evidence the fact that Smith did not unequivocally intend for the S. & M. Oil Company to re-convey the filling station property to Mosley after the New Orleans hank mortgage had been executed. As his reason for the S. & M. Oil Company refusing to reconvey the property to Mosley after the New Orleans bank mortgage had been executed, Smith claimed: that when the deed from S. & M. Oil Company to Mosley had been executed in March, 1952 — as heretofore recited — Mosley had agreed that he would execute and place in escrow an ultimate reconveyance transferring the filling station property back to S. & M. Oil Company, so that the ultimate equity in the filling station property — after the New Orleans bank had been paid in full — would be owned equally by Mosley on the one part and the Smith interests on the other part. So Smith contended in the present suit that the S. & M. Oil Company would not convey the property to Mosley unless and until Mosley made the ultimate reconveyance to the S. & M. Oil Company so that the equities could be ultimately divided as claimed by Smith.

When we remember that Mosley had paid $10,000 for capital stock in the S. & M. Oil Company and that the Smiths had paid no more than $1,800 for stock in the Company, the inequality of such payments to a “fifty-fifty” division in the ultimate equity becomes glaringly apparent; and the inequality makes unlikely any such agreement for ultimate reconveyance, as is claimed by Smith. The Chancery Court found that Smith did not offer sufficient proof to establish his alleged ultimate reconveyance of title to S. & M. Oil Company; and we agree with the Chancery Court on this point.

So with the ultimate reconveyance not being proved, the record stands in this shape: Smith admitted that there was to be an immediate reconveyance to Mosley from the S. & M. Oil Company after the execution of the mortgage to the New Orleans bank; and Smith has failed to prove any ultimate reconveyance by Mosley to the S. & M. Oil Company. Therefore, Smith never intended for the S. & M. Oil Company to execute the deed to Mosley unless and until Mosley executed the ultimate re-conveyance. Smith does not claim that when he had the conversation with Mosley, Clardy and Grubbs, he (Smith) ever mentioned the ultimate reconveyance. It remained undisclosed to those who heard him agree to the immediate reconveyance to Mosley.

In the light of the foregoing and other evidence in the record, we conclude that the decree should be affirmed.

       Mosley’s wife was a party plaintiff and is an appellee, but her only interest is a claim of dower, so we refer to Jack Mosley as “appellee.”

       As regards express trusts involving lands or tenements, the Statute requires that they can be proved only by some written instrument. See § 38-106 Ark. Stats.


author: Minor W. Millwee, Associate Justice.

text:
    Washington v. State.
    4857
    297 S. W. 2d 930
    Opinion delivered January 28, 1957.
    No brief for appellant.

      Tom Gentry, Atty. General; Boy Finch, Jr., Assistant Atty. General, for appellee.
   Minor W. Millwee, Associate Justice.

E. W. Lee resides in North Little Rock, Arkansas, where he has been employed at the shops of the Missouri Pacific Lines for 40 years. On December 9, 1955, approximately $6,200 in currency was stolen from Lee’s home on Locust Street. The money was kept in a small locked container in a closet which was also locked and represented savings by Lee and his former wife since 1929.

On or about December 30, 1955, the father of appellant reported to Little Rock detectives that he had information that appellant had been spending “some extra money” and had been seen with a “large roll” of money. A search was made for appellant and two other youths who had been staying at a hotel on Ninth Street and spending rather freely. Appellant was apprehended on the streets about 2 o’clock the next morning. He freely admitted to the officers that he broke in the Lee home, took the money and hid it under a vacant house on Vine Street. His description of the manner of breaking and entering corresponded with that previously given the officers by Lee. He was taken to the Vine Street address where he crawled under the house and brought out about $5,000 which included forty-five $100 bills and six $50.00 bills identified as belonging to Lee. Police also recovered two $100 bills from two companions to whom appellant had given the money to get them “to let him alone.”

At the trial held upon his plea of not guilty to burglary and grand larceny charges, appellant offered no evidence in contradiction of the foregoing proof adduced by the State. He has appealed from a verdict and judgment finding him guilty on both counts and fixing his punishment at the minimum of 2 years in the penitentiary for burglary and one year for grand larceny, the sentences to run concurrently.

The proof by the State is ample to sustain the verdict and there is no merit in the five assignments of error by appellant which question its sufficiency for that purpose.

The next assignment of error relates to the following answer given by Officer Jack Morgan when counsel for appellant asked him whether he knew appellant was a minor about sixteen years of age: “Yes, we had him one other time.” Appellant’s objection to the answer was promptly sustained by the trial court and the jury admonished not to consider it. If it be assumed that the answer was unresponsive to the question and erroneously given, any possible prejudice arising therefrom was cured by the court’s action. Howell v. State, 220 Ark. 278, 247 S. W. 2d 952.

Error is also assigned in the overruling of appellant’s objections to certain admissions which the police officers testified he made on the ground that his parents were not contacted. It should be noted that appellant’s father first contacted the officers. There is no proof that appellant was mistreated in any manner and no contradiction of the voluntary nature of the admissions. Under the law infants from the age of fourteen years are presumed capable of committing crime and of being responsible therefor in the same manner as in the case of adults. Gilchrist v. State, 100 Ark. 300, 140 S. W. 260. There is nothing to rebut this presumption in the instant case, or to require that appellant’s parents be contacted prior to interrogation by the officers. Under Ark. Stats., Sec. 46-302 it is also within the trial court’s discretion to impose either a penitentiary sentence or a sentence to the reform school upon minors under eighteen years of age convicted of a felony. Freeman v. State, 158 Ark. 262, 249 S. W. 582, 250 S. W. 522.

We have examined other assignments of error by appellant and find no merit in them. The judgment is accordingly affirmed.


author: George Rose Smith, J.

text:
    Spicer v. Spicer.
    5-1153
    297 S. W. 2d 931
    Opinion delivered January 28, 1957.

      Henry B. Whitley, for appellant.
    Keith, Clegg & Eckert, for appellee.
   George Rose Smith, J.

In 1947 the appellant, Frank "W. Spicer, brought this suit to reform a deed which he and his mother, Daisy Spicer, had made to the appellees in 1946. A summons was issued and apparently served, but for reasons not explained by the record the case was allowed to lie dormant for several years without any pleading having been filed by the defendants. In 1956 the appellees demurred to the complaint, upon the ground that Daisy Spicer is a necessary party to the suit, that she has not been made a party, and that the suit is therefore barred by limitations. This appeal is from an order sustaining the demurrer and dismissing the case.

The complaint alleges that on February 1, 1946, the plaintiff owned an undivided one-fourth interest in certain land, subject to the dower of Daisy Spicer. On that date the plaintiff and Daisy Spicer signed a quitclaim de.ed conveying the land to the defendants. Because the person who was to prepare the deed was busy Spicer signed it in blank, with the understanding that it would be completed later and that his oil and gas interest would be reserved by him. It is asserted that by mutual mistake the reservation of the plaintiff’s oil and gas interest was not inserted when the blank form was filled in. The prayer is that the deed be canceled for want of delivery, or, in the alternative, that it be reformed to include the reservation of the plaintiff’s mineral interest.

An entire complaint is not demurrable if any good cause of action is stated. Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749. In our opinion this complaint does not show on its face that the alternative cause of action for reformation is barred. Needless to say, the appellees do not suggest that the appellant’s right to reformation of the 1946 deed was already barred when this suit was filed in 1947. They merely insist that Daisy Spicer is a necessary party and that the plaintiff waited too long before bringing her into the case.

The trouble with this argument lies in its assumption that Daisy Spicer is a necessary party. As a general rule it is true that the grantors must be joined in a suit to reform a deed, but this is because each grantor is ordinarily a real party in interest. Oliver v. Clifton, 59 Ark. 187, 26 S. W. 817. With respect to the subject matter of this litigation the appellant was the sole grant- or, for he alone had any interest in the mineral reservation that is said to have been overlooked. Daisy Spicer joined in the deed for the purpose of conveying a separate property right — her vested dower as the widow of H. F. Spicer. As far as the complaint shows, Daisy Spicer is a stranger to this controversy; she has no pecuniary interest that can possibly be affected by a decree for or against the plaintiff. In these circumstances the rule that the grantors must be joined does not require that she be made a party to the suit. See Hargis v. Lawrence, 135 Ark. 321, 204 S. W. 755.

Reversed, the demurrer to be overruled.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Elmore, Admr. v. Dillard.
    5-1135
    298 S. W. 2d 338
    Opinion delivered January 28, 1957.
    [Rehearing denied March 4, 1957]

      Collins, Edwards, Core S Collins, for appellant.

      George E. Steel and Gordon B. Carlton, for appellee.
   Paul Ward, Associate Justice.

Harold Elmore died as the result of injuries which he received on November 16, 1954 while riding in an automobile being driven by O. J. Zacharias. The administrator of the estate of Harold Elmore filed suit against Zacharias, Louis Little, and two Buick agencies. One of these agencies, known as the Dillard Buick Agency, was located at Nashville, Arkansas and was owned by E. C. Dillard and B. Gr. Dillard. The other agency, known as the Stuart Buick Company, was located at DeQueen, Arkansas and was owned by Joe P. Stuart.

Appellant’s cause of action was predicated on the following: Zacharias, with the deceased and one Van Miller (all in the front seat), started to drive from DeQueen to Oklahoma City. They were to get two new Buick automobiles and drive them back — one for each agency. "When they were 2 or 3 miles out of DeQueen on Highway 71, and immediately after going over a rise in the highway, the automobile struck 5 or 6 horses which resulted in the fatal injuries to the deceased. The cause of action against Zacharias was based upon Ms negligence in driving at a fast, dangerous, reckless and unlawful rate of speed; in failing to keep a proper lookout for such animals; in failing to check the speed of his automobile when encountering the lights of an approaching automobile, and; in failing to avoid colliding with the said horses. Appellant sought damages against the two Buick agencies on the ground that Zacharias was their agent, and Little was charged with negligence in allowing the said horses to run at large.

Appellees answered: Zacharias denied that he was guilty of negligence and alleged that the deceased was guilty of contributory negligence; The two Buick agencies stated that Zacharias and the deceased were their employees, that they were fellow servants, and that therefore they (the Buick agencies) would not be liable for any injury to the deceased caused by the negligence (if any) of Zacharias. They both pleaded contributory negligence on the part of the deceased.

At the conclusion of all of the testimony the trial court directed a verdict in favor of the two Buick agencies on the ground that Zacharias and deceased were fellow servants. Thereafter the jury brought in a verdict in favor of Zacharias and Little. No appeal is taken from the verdict in favor of Little.

Appellant, on appeal, seeks a reversal on the following grounds: 1. It was error for the trial court to direct a verdict in favor of the two Buick agencies, and; 2. The verdict in favor of Zacharias is based on four separate erroneous rulings by the trial Judge.

We will examine these grounds in the order mentioned.

1. Although both sides devote a large portion of their briefs to the directed verdict, yet under the view we take, that question is immaterial and a determination thereof is unnecessary. Unless we find error in connection with the jury verdict in favor of Zacharias, this cause will not be reversed. Under the pleadings in this case, the jury would have to find Zacharias guilty of negligence before appellant could recover against Zacharias’ employer — in this case the Buick agencies or one of them. Conversely, if Zacharias was not negligent, as the jury has found, then his employer could not be held liable in any event.

This view, we think, is supported by decisions in this and other states. In Davis, Administratrix v. Perryman, 225 Ark. 963, 286 S. W. 2d 844, the suit filed by the administratrix was based on Perryman’s negligence .in operating a truck for the East Texas Motor Freight Lines. During the trial it developed that the administratrix had unsuccessfully sued said E. T. M. F. Lines for the same accident based on the negligence of its driver, Perryman. The trial court sustained Perryman’s motion to dismiss for the reasons above mentioned and we sustained the action of the trial court, stating, among other things, that “. . . other jurisdictions are overwhelming in holding that an action like the present one cannot be maintained when a previous action by the same plaintiff against either the master or the servant for the same alleged act of negligence has been finally decided against the plaintiff in the Courts . . .” (emphasis supplied). We also held in the case of Porter-DeWitt Construction Company, Inc. v. Danley, 221 Ark. 813, 256 S. W. 2d 540, that a jury’s verdict could not stand because of inconsistency where it found that a truck driver was not negligent and at the same time returned a verdict against the driver’s employer or principal where, as here, no independent acts of negligence have been established. A case more nearly in point with the one under consideration is Overstreet v. Thomas, et al., (Ky.), 239 S. W. 2d 939, where the court referred to and quoted with approval from the case of Graefenhan v. Bakestraw, 279 Ky. 228, 130 S. W. 2d 66, 69, stating: “. . . the trial court directed a verdict for the alleged principal, and the jury, under proper instructions, returned a verdict for the agent. On appeal to this court the judgment was affirmed, the court saying: ‘The conclusions we have reached made it unnecessary to consider the contention of appellant that the trial court erred in directing a verdict in behalf of the Falls City Sales Company. As the jury found for appellee Hosley, the driver of the truck, who was claimed by appellant to be the agent of the company, the verdict is conclusive as to non-liability on the part of the company in the circumstances here presented.’ ” It is our conclusion therefore that the jury verdict in favor of Zacharias in this case, if allowed to stand, precludes appellant from recovering against the Buick agencies.

2. We now examine appellant’s allegations of error attending the Zacharias verdict.

(a) Several weeks before the trial Zacharias gave a written statement to appellant’s attorney, which, according to appellant, in some measure contradicted portions of his oral testimony at the trial. It is appellant’s contention that the court erroneously refused to allow the statement to be introduced in evidence. The record fails to support appellant in this contention.

Appellant says the question “is whether or not the statement was admissible as against Zacharias as an admission and declaration against interest by party defendant.” Appellant did not ask to have the introduction limited to Zacharias only, and it was not admissible, as an admission, against his employer. See Casteel v. Yantis-Harper Tire Company, 183 Ark. 912, 39 S. W. 2d 306.

The court allowed appellant to read to the jury portions of the statement which appeared to contradict his oral testimony, and offered to allow other portions read. Appellant neglected or refused to accept this offer at the time. After all the testimony on both sides had been introduced, appellant asked to read the entire statement into the record, without asking to recall the witness. The court refused this request, and correctly so. One sufficient reason for the court’s ruling has already been given.

(b) By Instruction No. 16 the court told the jury that the permissible speed on the highways, outside of cities and in the absence of a special hazard, was 60 miles per hour. This instruction appears to be in accord with Ark. Stats. § 75-601.

Appellant raises no objection to the instruction except the one based on the testimony of Carlisle Crews. Crews, a maintenance man on the highway where the accident occurred, testified as follows:

Q. “What is the speed limit there?”

A. “At night it’s 50; in days, 60.”

Q. “Fifty-five miles per hour, and 60 miles per hour?”

A. “Yes.”

In the absence of a showing that a special hazard existed on the highway, or that there were signs specifying a particular speed, the statutory speed mentioned in the above section would control. Moreover there is no testimony that Zacharias was driving at any definite speed when the collision occurred. Whether or not Zacharias was driving at a reckless or careless speed was a question for the jury under proper instructions.

(c) The court gave an instruction on the contributory negligence of the deceased. Appellant does not object to the form, but contends there is no evidence to support it. In our opinion this contention is without merit. This question is most often presented to us when the trial court refuses to give such an instruction. We think the accepted and safest rule is to leave the question of contributory negligence to the jury where there is substantial evidence of such and we think there is in this case. Appellant stoutly maintains of course that Zacharias ivas guilty of negligence, yet the same acts of negligence attributable to Zacharias apply to a large degree to the deceased, who had the same opportunities to judge the speed of the car and the condition of the road ahead, and there is no evidence that the deceased made any complaint to Zacharias. If the jury had thought Zacharias ivas driving too fast or recklessly, it might have also concluded that the deceased should have objected. The general rule is that the occupant of a car has the duty of exercising ordinary care for his own safety. This rule is well stated in 65 C. J. S. Sec. 152, page 795, in this way:

“While an occupant of a vehicle is not required to exercise the same watchfulness as the driver, it is his duty to exercise ordinary care, including a reasonable use of his faculties of sight, hearing, and intelligence, to observe and appreciate danger or threatened danger of injury, and, if he fails to do so, and such failure contributes to the injury complained of as a proximate cause, he is guilty of contributory negligence.”

(d) The court gave the following instructions on unavoidable accident.

“7. The burden rests upon the one who seeks to recover to establish by a preponderance of the evidence that the accident complained of by him was not the result of an unavoidable accident. ’ ’

“8. An unavoidable accident is one not avoidable by precaution which reasonable men would be expected to take. Such an accident furnishes no basis for recovery. ’ ’

Appellant predicates error on the grounds' that unavoidable accident was not pleaded, and because the instructions do not correctly declare the law.

It is not necessary that unavoidable accident be specifically pleaded if the question is raised by the evidence. In 65 C. J. S., Sec. 264e, page 1192, we find this: “Ordinarily the issue of inevitable or unavoidable accident should be submitted to the jury where it is raised by the evidence; and such issue is raised when, and only when, there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties.” We thinlc that is the situation here. That there was a collision and an injury is conceded, but the only parties accused of negligence have been exonerated. In the last paragraph of the above citation we find this language: “. . . if the evidence is conflicting or different inferences can reasonably be drawn from the facts as to whether the injury was the result of negligence or inevitable accident, the question of defendant’s liability is properly left to the jury.”

Appellant thinks some language should have been added to the first sentence in Instruction No. 8 to the effect the precaution required was that of a reasonable man under the same or similar circumstances as those obtaining in the particular case. We think such language would have been proper, as was indicated in Newark Gravel Co. v. Barber, 179 Ark. 799, 18 S. W. 2d 331, but we do not think its absence from Instruction No. 8 is so prejudicial as to call for a reversal. Undoubtedly the jury knew the court’s instruction related to the occasion of the accident in question. In the Barber case no instruction was set out or approved, the court merely making a general remark concerning an inevitable accident.

Finding no error calling for a reversal of the verdict and judgment in favor of Zacharias, the entire judgment of the trial court must be upheld.

Affirmed.

Justices McFaddin and Millwee dissent.

Ed. F. McFaddin, Associate Justice

(dissenting).

I would reverse the judgment and remand the case for a new trial as to all the parties. My study of the case convinces me of three matters:

(1) The Trial Court committed error in directing a verdict in favor of the two Buick agencies. A question of fact was made for the jury as to whether Zacharias and Howard Elmore were fellow servants. The majority does not decide this point; but I think it is fundamental.

(2) The Trial Court committed error in giving the instruction on contributory negligence. There was no evidence whatsoever on contributory negligence and the majority fails to point out any such evidence;

(3) The Trial Court committed error in its instruction as to speed. While § 75-601 Ark. Stats, says that under some circumstances the speed is 60 miles an hour, yet the same statute also recognizes that the speed may be regulated by appropriate signs along the highway. Here is a portion of the Statute as to such speed:

“. Outside municipalities the stated speed as determined by the State Highway Commission (Commissioner of Revenue) upon the basis of an engineering and traffic investigation, which shall be effective when appropriate signs giving notice thereof are erected along the highway ...”

The witness Cruse was a maintenance man of the Highway Department, and he said that the speed was 55 miles per hour at night at the place where this mishap occurred. In view of the fact that the speed may be regulated by posted signs and that Cruse was a maintenance man and was testifying as to the speed, I think it clear that the evidence showed that the speed at the place of this mishap was 55 miles an hour at night. Therefore, the Court committed reversible error in instructing the jury that the speed was -60 miles an hour.

In view of the foregoing, I respectfully dissent from the affirmance.


author: Sam Robinson, Associate Justice.

text:
    Cook v. American Cyanamid Co.
    5-1134
    297 S. W. 2d 933
    Opinion delivered January 28, 1957.

      A. D. Chavis, for appellant.

      Cockrill, Limerick & Laser, for appellee.
   Sam Robinson, Associate Justice.

From the Chancellor’s order sustaining appellee American Cyanamid Company’s plea of res judicata to a complaint filed by appellant, Hazel Cook, on January 30, 1956, comes this appeal.

The complaint in substance alleged that appellant is the owner in fee simple of certain described lands to which she deraigned title through her mother, Ida Erickson, to one T. E. Smith; that T. E. Smith acquired the lands from the Globe Bauxite Company under a deed executed and delivered in 1921, which was lost before it was placed of record; and that appellee claimed title to the bauxite deposits because of the fraud of Louis Lagger and wife in retaining title to the said deposits in the deed they made to T. E. Smith in 1925 as a substitute for the lost 1921 deed from the Globe Bauxite Company— (it appears that Louis Lagger held the lands as trustee for the Globe Bauxite Company).

Appellee has brought into the record the case of Ida Erickson v. Certain Lands and American Cyanamid Company, which was filed in the Saline Chancery Court on October 6, 1952, and which sets forth the same identical allegations involved in the suit at bar. The record in the Erickson case shows that after the filing of ten different pleadings and motions, a stipulation of facts, the taking of Ida Erickson’s testimony, and an announcement by the parties that they rested, the Chancellor entered an order, on October 23, 1954, dismissing Ida Erickson’s complaint for want of equity. On March 1, 1955, a motion to set aside the decree was denied; and that on January 9, 1956 appellant’s motion to revive the same in her name was denied. No appeal has been taken from any of the proceedings in that case.

Appellant contends that neither the parties nor the issues in the two suits are identical. Her contention is that her mother, Ida Erickson, was asking for a decree of confirmation, which was denied, and that in the case at bar appellant is asking that a premature and fraudulent decree, referring to the decree in the Erickson case on October 23, 1954, be cancelled and set aside on the grounds of fraud.

The contention that the parties are not identical under the doctrine of res judicata is without merit. See Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, to the effect that a grantee, under the doctrine of res judicata, stands in the relation of privy to the grantor.

The contention that the decree of October 23, 1954 in the Erickson case was premature and fraudulent, in that it was made without notice to appellant, was the ground upon which appellant’s mother relied in her motion and amended motion to set aside the said decree.

Therefore, since no appeal was taken from the court’s order overruling the motion to set aside the decree in the Erickson case, that issue, too, is res judicata. Knights of Honor of the World v. Epps, 123 Ark. 371, 185 S. W. 470.

Affirmed.


text:
    Clark v. Rutherford.
    5-1056
    298 S. W. 2d 327
    Opinion delivered February 4, 1957.

      Rex W. Perkins and E. J. Ball, for appellant.

      James R. Hale, Price Dickson and W. B. Putman, for appellee.
   Carleton Harris, Chief Justice.

In 1930, Claud Rutherford and wife, Maud Rutherford, left Nebraska and moved to the home of Maud Rutherford’s parents, John and Ellen Clark, near West Fork, Arkansas. John Clark was the owner in fee simple of a 24 acre tract of land, and Ellen Clark, in her own right, was the owner of a 40 acre tract which joined it. A short time after the Rutherfords arrived, John Clark died intestate, leaving his widow, Ellen, the daughter, Maud, and two sons, Bert and D. N. Clark. According to appellees, these two sons entered into an agreement with appellee, Claud Rutherford, and his wife, whereby they agreed, that in consideration of Claud and Maud Rutherford remaining on the property and caring for their mother, (Ellen), they (the Clark brothers) would convey their interests in both their father’s and mother’s estates. Bert Clark executed a written instrument, but appellees rely entirely upon an alleged oral agreement with D. N. Clark. Claud and Maud Rutherford remained in the home with Ellen Clark until February 15,1952, when Maud died. In April, while Claud was away, visiting a sister in Oklahoma, Bert Clark obtained from his mother a warranty deed in favor of his brother, D. N. Clark, conveying the entire 40 acre tract, and also obtained a quitclaim deed in favor of D. N., conveying her interest in the 24 acre tract, which had belonged to her deceased husband. On May 10, 1952, Claud went to Oregon to visit his son, Ellis Rutherford (who later died). On the same date, D. N. Clark and wife executed a deed in favor of Bert, conveying to him an undivided one-half interest in the 40 acres, although this last deed was not placed of record until more than a year later. Ellen Clark died in February, 1953. On March 2, 1955, Bert executed a deed conveying his one-half interest in the 40 acres back to D. N., and on June 14, 1955, the two brothers filed a suit to partition the 24 acre tract alleging that they each owned an undivided one-third and that Burl Rutherford, (son of Claud and the deceased Maud Rutherford) and Lillith Rutherford, (wife and sole beneficiary of a deceased son of Claud and Maud, Ellis Rutherford) owned an undivided one-sixth each. Claud Rutherford then intervened, claiming title to both the 24 acre tract and the 40 acre tract by reason of the agreement with the two brothers to convey to him and his wife, contending that an estate by the entirety had been created, and that as the survivor, he held the property absolutely. His daughter-in-law, Lillith, answered and counterclaimed, alleging a one-half ownership in the property by reason of the same contract. At the conclusion of the trial, the Chancellor dismissed the petition of the Clark brothers, holding that the conveyances from Ellen to D. N. were invalid. The court did not find an estate by the entirety in Claud and Maud Rutherford, but vested title to the lands in defendants and intervener as follows: The 40 acre tract: Burl Rutherford, an undivided one-third interest; Lillith Rutherford, an undivided one-third interest; Claud Rutherford, an undivided one-third interest. The balance of the property: Burl Rutherford, an undivided one-sixth interest; Lillith Rutherford, an undivided one-sixth interest ; Claud Rutherford, an undivided two-thirds interest. There is no dispute between intervener and defendants as to the proportions they received under the decree. For reversal, appellants (Bert and D. N. Clark) argue three points, which we discuss in our own order.

I. An estate in expectancy cannot be the subject of an agreement to convey. The trial court erred in holding to the contrary.

II. Exhibit No. 1 to intervener’s testimony should be construed as a will and not as a contract. The trial court erred in holding to the contrary.

III. The evidence is insufficient to support the finding of the trial court that D. N. Clark agreed to will or convey his expectancy in the estate of Ellen Clark to Claud and Maud Rutherford, or that he agreed to will or convey his interest in the estate of his deceased father, John Clark, to Claud and Maud Rutherford.

I.

We do not agree with appellant’s argument here, inasmuch as this particular point has been passed upon in Bradley Lumber Co. of Ark. v. Burbridge, 213 Ark. 165, 210 S. W. 2d 284. In that case, a Mrs. Wells, through a quitclaim deed, purported for a substantial consideration to convey to Burbridge her interest in the lands “present and prospective.” Quoting from the language of Justice Robins, “As a contingent remainder-man she had a ‘prospective’ interest in the lands when she executed this deed, and she, by the plain language of her deed, conveyed this ‘prospective’ interest. Therefore, when this ‘prospective’ interest became, upon the death of Mrs. Isabella J. Burbridge, a vested one, it passed to appellee under this deed, which, though a quitclaim deed was fully effective to transfer title.” Quoting further, “Even if the deed executed by Mrs. Wells to appellee should be held ineffective as a conveyance of title, it could well be sustained as an assignment by her to appellee of any and all interest in the land, present or future, owned by her. It has frequently been held that an assignment of a future interest, or expectancy, though unenforceable at law, is valid in equity and may be enforced in the latter forum when such expectancy ripens into a present and enjoyable estate. ‘In equity, by the great weight of authority, there can be a valid assignment of . . . property to be subsequently acquired, and of contingent and expectant interests, ... A court of equity, for example, will uphold an assignment of an interest under a will, such as of a contingent bequest and legacy, to take effect on the happening of some future event, as the coming of age of the beneficiaries or the death of some person.’ 6 C. J. S., 1056. ‘Courts of equity have generally upheld assignments of expectancies by prospective heirs . . .’ 4 Am. Jur. 269.” Accordingly, one can agree to convey his expectancy in an estate, and appellants’ contention is not well taken.

II.

The instrument in question is as follows:

WEST FORK, ARKANSAS

Dec. 18, 1930

“I, Bert Clark sound in mind on this Nineteenth (19th) day of December Nineteen Hundred and Thirty (1930) of my own free will and accord will and bequeast to my sister Maud Rutherford my One third interest in the estate of my mother Elen Clark and the Estate of my deceased father John Clark.

“It being understood by and between me and my Sister Maud Rutherford and her husband Claud Rutherford that they Maud Rutherford and her husband Claud Rutherford are to remain on the estate of my Mother Elen Clark and the estate of my deceased father John Clark care for my Mother Elen Clark the ballance of her life. It being understood and agreed that my Sister Maud Rutherford and her husband Claud Rutherford are at the death of my Mother Elen Clark to have and to hold my one-third interest in the estate of my Mother Elen Clark and the estate of my deceased Father John Clark. Bnt this part of my estate only. This will to in know way connected or effect or have bearing on will made to my wife Clara Josephine Clark of my property and estate owned and accnmnlated by me and located in the State of Oklahoma. I will only to my Sister Mand Rutherford my part of the estate of my Mother Elen Clark and my deceased Father John Clark, said estate located in the County of Washington and State of Arkansas.

“It is agreed by me and between my Sister Maud Rutherford and her husband Claud Rutherford if My Mother is living at the end of four years after date of this will that my Sister Maud Rutherford and her Husband Claud Rutherford are to have and to hold my part of the estate of my Mother Elen Clark and the estate of my deceased Father John Clark.

/s/ Signed

Bert Clark.

Witness

/s/ W. E. Phillips

/s/ Clifton Karnes

/s/ Roy A. Karnes

“It is agreed and understood that I reserve my one-third interest in all mineral rights produced from the estate of my Mother Elen Clark and my deceased Father John Clark.”

This instrument was not prepared by an attorney, but by Bert Clark himself, and the question posed is whether it constitutes a will or a contract. While it is couched in terms of a will, it obviously is not meant as such. In determining whether or not an instrument is a will, it is necessary to ascertain whether there is testamentary intent; that is, is the estate in the beneficiary to be created upon the death of the maker of the instrument? Clearly such is not the intention here. The disposition of the interest of Bert Clark depended, not upon Ms death, hut upon the death of his mother. In conflict with this provision is the third paragraph, which provides that Maud and Claud Rutherford are to have and hold the interest of the maker (Bert Clark) if the mother (Ellen Clark) is living at the end of four years. In either event, the instrument cannot be considered as a will because nothing is dependent upon the death of Bert Clark. There is a further notation which provides that the maker reserves his one-third interest in the minerals. A reservation in an instrument can only be effected by conveyance or contract, and not by will. We hold the instrument to be a valid assignment of the interest of Bert Clark in his father’s estate, and an assignment of his expectancy in his mother’s estate.

III.

Appellees rely entirely upon an alleged oral agreement with appellant D. N. Clark. Appellee, Claud Rutherford, testified that D. N. Clark made the same agreement orally that Bert Clark had made in writing, hut this is vigorously denied by appellant. It is undisputed that to establish an oral contract to convey land, the evidence must be clear, cogent and convincing. McCombs v. McCombs, 227 Ark. 1, 295 S. W. 2d 774; McKie v. McClanahan, 190 Ark. 41, 76 S. W. 2d 971. One of the appellants’ witnesses, a Mrs. Karnes, testified that D. N. Clark told her that he had made an agreement with the Rutherfords, hut her testimony does not make clear as to what such agreement consisted of. A witness, Mrs. Hattie Watson, testified that she heard some conversation between Rutherford and D. N. Clark on the night before Rutherford left for Oregon and stated that ‘ ‘ she understood” Clark to ask Rutherford the question “What do you want done with your place?” This about summarizes the evidence for appellees. In contrast, from the inception of such alleged agreement, D. N. Clark refused to sign any deed or contract. A few days after the alleged oral understanding had been reached, the parties met in a law office in Fayetteville, and D. N. Clark there refused to sign any kind of instrument conveying his interest. Rutherford testified that he or his wife asked this appellant many times during the 21 years appellee and wife lived on the Clark place, to execute a deed or contract, but that Clark consistently refused. Nor did Rutherford apparently rely upon appellant making any conveyance. Numerous times during the trial, Rutherford stated that he never did think D. N. Clark would convey his interest. He stated he considered D. N. Clark a crook, that from the time they were in the lawyer ’s office he knew that Clark had no intention of making such a conveyance, that he would not believe anything D. N. Clark said, (in his words) “I couldn’t believe him any further than you could throw a bull by the tail.” Accordingly, it certainly does not appear that Claud Rutherford stayed on the place for 21 years in reliance upon a belief that D. N. Clark would convey his interest in the property. Clark’s contention is that Rutherford and his wife (Clark’s sister) were taken care of during the 21 year period in return for the services rendered to the mother, and that the intention of each of the appellants had only been to furnish their sister a home during her lifetime. The evidence does show that both the Clark boys gave some sums of money throughout the years for the support of their mother, paid the taxes on the properties for the entire period of time, and paid the insurance premiums for said period of time. Another circumstance deemed unfavorable to the cause of appellee, is that Rutherford left the home place on May 10, 1952, and went to Oregon. He returned about a year and a half or two years later for the purpose of disposing of some personal property, and then went back to Oregon. He does not appear to have exercised any acts of ownership during this period of time, having paid no taxes, nor borne any expenses relative to the maintenance of the properties. He furthermore testified that he learned on this return visit that D. N. Clark had received a deed from Ellen Clark, but that despite such knowledge, he made no effort to contact Clark, stating “There wasn’t no use.” Certainly it seems the normal reaction of one claiming property would be to contact the party alleged to have taken it from him, and then, failing to reach a satisfactory understanding, institute suit to enforce his rights. Rutherford returned to Oregon without taking any action whatsoever. His explanation was that he relied on the written contract with Bert as herein set out. D. N. did not join in the execution of that instrument, and is not bound thereby. Under the rule, heretofore mentioned, and repeatedly reiterated, “. . . we have many times held that a court of equity may grant specific performance of a parol contract to convey land only where the evidence of the agreement is clear, satisfactory and convincing.” McCombs v. McCombs, supra. We are of the opinion that appellees’ proof falls short of establishing their cause.

While we cannot say that the Chancellor erred in setting aside the deeds executed by Ellen Clark to her son, D. N., said appellant would still be entitled to his rights of inheritance in both his father’s and mother’s estates.

The decree of the court will therefore be reversed insofar as said decree divests D. N. Clark of his one-third interest in the properties under discussion. The cause is remanded with directions to the Chancellor to enter a decree not inconsistent with this opinion.

       While the Chancellor did not state his reason for setting aside such conveyances, allegations on part of the intervener, Claud Rutherford, were as follows: (1) They were not executed in the form or manner required by law; (2) at the time of their purported execution and delivery the said Ellen Clark was not mentally competent to execute them; (3) they were procured and obtained by and through fraud perpetrated by and on the part of the plaintiffs; (4) they were procured and obtained by and through undue influence brought to bear, exercised and perpetrated by the plaintiffs upon the said Ellen Clark; and (5) they were never delivered by the said Ellen Clark. * * *


author: J. Seaborn Holt, Associate Justice. George Rose Smith, J.,

text:
    General Air Conditioning Corporation v. Fullerton.
    5-1050
    298 S. W. 2d 61
    Opinion delivered February 4, 1957.

      DuVal Purlcins and House, Moses & Holmes, for appellant.

      G. C. Hollensworth and Martin & Haley, for appellee.
   J. Seaborn Holt, Associate Justice.

In the Spring or Summer of 1953, appellee Fullerton of Warren, Arkansas, bought on open account an air conditioner from appellant, General Air Conditioning Corporation located in Little Bock, Arkansas. The purchase price was $3,574.43. Appellant had Diet Hedrick, who appellee testified was appellant’s agent and representative, install the equipment. In November 1953 Fullerton had paid $1,000 on the account, leaving a balance due of $2,574.43 and on December 1,1953, Fullerton executed his promissory note to appellant for this balance, which bore interest at 5% and to mature on February 14, 1954. Appellee made no payments on this note before or after its due date, and appellant filed the present suit to collect the balance due. A jury trial resulted in a verdict in favor of appellee, Fullerton. From the judgment comes this appeal.

For reversal appellant relies on these points: “1. The court erred in refusing to direct a verdict in favor of appellant, (a) There was no effective accord, (b) There was no performance (fulfillment, execution) of even a supposed accord. 2. The trial court’s amendment to appellant’s Instruction No. 2 was error. 3. The court erred in giving to the jury appellee’s Instruction No. 2.” Appellee, as a complete defense to the note, “specifically pleads accord and satisfaction by which the defendant paid interest on the indebtedness and plaintiff agreed to receive back the equipment in question, which was delivered by defendant in the manner suggested by plaintiff and later ratified by plaintiff.” In effect, Fullerton testified that when he determined that he was unable to pay the balance due on the note he went to Little Rock in March or April 1954, and entered into an agreement with appellant whereby appellant agreed that it would accept and retain the original $1,000 payment made by appellee, together with the interest due on the note up to that time; that Fullerton was to hold the equipment, in effect, subject to appellant’s orders, until appellant sent its truck to pick it up, and that this agreement, in full settlement of the note, was carried out. He further testified that appellant was to send his truck from Little Rock for the equipment. Appellee also testified that appellant’s representative, Hedrick, in Warren sent one of his employees to appellee with instructions to take a sump pump, which was a part of the stored air conditioner, and appellee, after calling Hedrick, who informed him that he was acting, in effect, on appellant’s orders, turned the pump over to appellant’s agent, who sold it for $98, which appellant later on, without appellee’s consent, placed as a credit to appellee’s note. Appellee also testified that after his agreement with appellant to settle the note he had never had any agreement or understanding with appellant as to the value of the sump pump.

Appellant’s president, Mr. Wellons, testified in regard to the settlement: “Q. What I am asking you about now is any discussion you had on payment of the note after it became due. A. ... As a result of the conversation that he (appellee) and I had I told him that if he would return the goods to me promptly, we had been trying for a year to get some sort of a settlement. We had had promises and promises and promises, with no action, and that if in any of his regular trips to Lonoke he would return the goods to our place of business with immediacy being a prime consideration of it, . . . Q. You (Wellons) did have an understanding with Mr. Fullerton in Little Rock concerning the return of the equipment? A. As I have stated. Q. That’s right. It was your understanding he was going to return the equipment to you? A. That’s right. Q. And when he did the note would be cancelled? A. We would settle the note. Q. You were willing to accept the return of the equipment and cancel the note? A. When he paid the interest up to date, that is correct.” Appellant further testified, that he made an agreement with Fullerton to settle the note but in this agreement Fullerton was to deliver the equipment to appellant in Little Rock. Appellee stoutly denies this and testified that appellant agreed to send its truck to bring the equipment to Little Rock and that appellee told appellant, as an accommodation to appellant, that he, appellee, in the event one of his own trucks might be coming to Little Rock, would bring the air conditioner to appellant. Thus, we think that a question of fact was presented as to what the agreement was and whether it was carried out. Boiled down, the decisive issue in this case was the place of delivery of the property under the terms of the agreement. The jury found that the agreement to settle the note had been made and had been carried out, and we think there was substantial evidence to support the jury’s action.

We do not agree that the court erred in amending its Instruction No. 2 and in giving appellee’s Instruction No. 2, as appellant argues. Appellant’s Instruction No. 2 as modified and given by the court was as follows: “You are instructed that an accord and satisfaction is a new contract between two parties that constitutes a bar to an action on the original debt; that to constitute accord and satisfaction as a bar to this action you must find that the agreement was fully executed, unless you find that the mere promise was accepted in satisfaction. If you find then by a preponderance of the evidence that the mere promise to return the goods to General Air Conditioning Corporation was not accepted as full performance and the equipment was not returned or accepted at Warren, Arkansas, then you find for the plaintiff.” The appellant asked the court to give the instruction, leaving out the italicized words, “returned or accepted at Warren, Arkansas,” and substitute the following words ‘ ‘ completely returned or taken back. ’ ’ Appellant argues that the court, in refusing its request, erred. We do not agree, for according to appellee’s version of the agreement the equipment was to be, and was, returned to appellant at Warren, Arkansas, and accepted there, which completed the agreement.

Appellant next argues that the court erred in giving appellee’s Instruction No. 2 as follows: “You are instructed that, should you find from a preponderance of the evidence that plaintiff and defendant entered into an agreement by which the defendant agreed to pay the interest on the indebtedness and did pay such interest and plaintiff agreed to take back the equipment in question at Fullerton’s place of business in Warren, Arkansas and in fact did take back a part of the equipment, then you will find for the defendant. ’ ’ When this instruction is read in connection with No. 2 above and considered with all the instructions as a whole, we do not think it was erroneous. As indicated, it was for the jury here to determine, on the evidence presented, whether an accord and satisfaction, or an agreed settlement, had been reached by the parties. “It is well settled that the parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights and the substitution of new obligations is a sufficient consideration,” Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379. The evidence tended to show that an agreement had been reached by appellant and appellee to satisfy the note by delivering the property back to appellant at Warren, Arkansas, paying the interest due on the note up to the date of settlement, and as further consideration appellant accepted and retained the $1,000 already paid by appellee on the purchase price of the air conditioner. The agreement constituted the accord, and satisfaction was the doing of what the agreement called for.

We agree with appellant that the rule is that: “Nothing short of actual performance, meaning thereby, performance accepted, will suffice . . . Accord and part performance do not constitute satisfaction. It is merely executory so long as to its terms something remains, and the party to be charged is allowed what he has paid in diminution of the amount claimed,” Lyle v. Federal Union Ins. Co., 206 Ark. 1123, 178 S. W. 2d 651, but here, according to the testimony, there was a full performance accepted by appellant under its agreement with appellee. We think the admitted action of appellant, in sending its agent to the building in which the property was stored and taking a part of the equipment and selling it for $98, without previously having had an understanding with appellee as to the price to be paid for the sump pump, was strong evidence in justifying the jury in finding that appellant considered all the property as its own, and exercised its prerogative to take and sell all or any part of it. The above Instruction, No. 2, instructed the jury, in effect, that in the event it should find from the preponderance of the evidence that appellant had agreed to take back the equipment in question (of course, meaning all of it) at Fullerton’s place of business in Warren, Arkansas, and in fact did take back a part of the equipment, that they should then find for appellee. As indicated, the facts warranted the jury in ■finding that appellant had taken back all of the equipment at Fullerton’s place of business in Warren, and thereafter, it appears undisputed, took and sold the sump pump, a part of its property. Had the instruction read “or in fact did take back a part of the equipment” — instead of- — “and . . .”, then appellant’s objection might have merit. As pointed out, appellee’s whole case was based on full performance by appellee of the agreement, not on part performance- — and we think the court, in effect, so instructed the jury.

Affirmed.

Justice George Rose Smith dissents.

George Rose Smith, J.,

dissenting. This case does not involve a disputed or unliquidated claim that was settled by a compromise agreement. Fullerton did not question the amount of his original indebtedness, which was •evidenced by a promissory note; he merely asked the •creditor to accept in satisfaction of the debt something-less than payment in full. Such an agreement by the creditor is initially without consideration, but if the agreement is fully performed by both parties it discharges the original obligation under the doctrine of accord and satisfaction. As I read the record, the agreement in this case was not fully performed by the creditor, and therefore the accord was not followed by a satisfaction.

Wellons testified that Fullerton was to deliver the equipment to the appellant, but of course we must assume that the jury accepted Fullerton’s version of the transaction. In the course of his testimony Fullerton stated seven different times that by the agreement the appellant was to pick up the equipment at Warren. He also testified that he understood that the note would not be returned to him until the equipment had either been delivered by him or picked up by the appellant. Fullerton explained that after the agreement was reached the equipment was in fact placed in a safe place in his building at Warren, but he did not even intimate that the parties ever agreed upon the storage of the property as constituting full performance of the accord. To the contrary, he said again and again that the agreement required the appellant to come and get the property. His sole defense in the trial court was that the appellant failed to carry out its part of the contract.

It is plain enough that this defense must fail. Willis-ton puts the exact case: “Suppose the debtor within the time agreed or, if no time was specified, within a reasonable time tenders performance of his promise, but the creditor in violation of his agreement refuses to accept the performance in satisfaction of his claim and brings suit on the original cause of action. Even here, the unexecuted accord is no defense. The creditor’s claim is not satisfied. Tender is not the same as performance. To assert the contrary is to say that the debtor after making his tender has satisfied the debt, though he is still the owner of the thing which was agreed upon as the satisfaction.” Williston on Contracts (Rev. Ed.), § 1843. To the same effect is the Restatement of Contracts, § 417 (d) :• “If the creditor breaks such a contract, the debtor’s original duty is not discharged. ’ ’

Our own decisions support the rule that the defense of accord and satisfaction depends upon a full performance of the agreement by both parties. As we said in North State Fire Ins. Co. v. Dillard, 88 Ark. 473, 115 S. W. 154: “But where the agreement is not executed, and is not evidenced by any writing, then it is not a bar to an action on the original debt; and, not being a bar, it is immaterial why the agreement is not executed. It may be through the fault of either party, or it may be through the fault of neither, as was the case here, or through the interposition of a third party. Still, the promise is to satisfy, and until that promise is fulfilled the agreement has not become binding.” (My italics). In Grimmett v. Ousley, 78 Ark. 304, 94 S. W. 694, we likewise held that “the accord must be fully executed.” Additional cases need not be cited.

It is evident from the above that the case should be reversed for the trial court’s error in giving this instruction: “You are instructed that, should you find from a preponderance of the evidence that plaintiff and defendant entered into an agreement by which the defendant agreed to pay the interest on the indebtedness and did pay such interest and plaintiff agreed to take back the equipment in question at Fullerton’s place of business in "Warren, Arkansas, and in fact did take back a part of the equipment, then you will find for the defendant.” This is a binding instruction, not susceptible of being cured by other instructions, and is patently erroneous in telling the jury that if the agreement was only partly performed “then you will find for the defendant.”

The judgment should be reversed, but I do not agree with the appellant’s earnest contention that it is entitled to have judgment entered here in its favor. . It is true that when the creditor breaches the contract of accord the debtor’s original duty is not discharged, but it is also true that the debtor may be entitled to damages for the creditor’s breach of his agreement. Rest., Contracts, § 417 (d); Williston, § 1844. For this reason the case should be remanded for a new trial.


text:
    Porter v. Time Stores, Inc.
    5-1157
    298 S. W. 2d 51
    Opinion delivered February 4, 1957.

      Lyman L. Mikel, for appellant.

      Dobbs, Pryor é Dobbs, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellants, Nina Jean Porter, et al., sued Time Stores, Inc., and their employee, Bobby Hicks (appellees) to recover damages for personal injuries alleged to have resulted from a collision of an automobile in which appellants were riding and a car driven by Bobby Hicks. The complaint alleged that the injuries were caused by appellees’ negligence.

A jury trial resulted in a verdict for appellees and also a finding by the jury, on proper interrogatories submitted under our comparative negligence statute, (Act 191-Acts of Ark. 1955) that neither the appellees nor the appellants were guilty of any negligence, — in effect, that the collision was an accident. From the judgment is this appeal.

Appellants seek a reversal here, in effect, on the grounds that the verdict was contrary to the law and the evidence.

At the outset we are confronted with appellees’ contention that the judgment must be affirmed for failure of appellants to comply with Eule 9(d) of this court. We hold that appellees are correct in this contention. The record reflects almost a total failure to abstract the pleadings, or material parts thereof, or the evidence, all of which are referred to largely by reference. Eeference is made to a motion for a new trial and the order overruling it but neither of these documents is abstracted or summarized. The judgment is not abstracted. In a record containing approximately 144 pages, some 60 pages of which cover the evidence presented, appellants devote approximately 6 pages to abstracting the testimony. Clearly this short abstract, which appears to be of isolated excerpts only from extensive testimony, cannot be considered as an abstract of material facts so that the judges of this court could determine whether there is any substantial evidence to support the verdict of the jury. In the very recent case of Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452, we said: “Rule 9(d) of this court provides: ‘Abstract.- — -The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision . . .’ ¶. . . We are not required to explore the one record (transcript) that is presented to us, this duty rests on appellant, and it is further his duty, as indicated, to furnish this court such an abridgment of the record that will enable us to understand the matters presented. This he has not done. We said in Files v. Tebbs, 101 Ark. 207, 142 S. W. 159, ‘ This court, not having had the same opportunity as counsel in the case to become acquainted with this litigation and not being furnished the means for an intelligent consideration and review of it by an abstract as required by rule nine, necessarily cannot pass upon its merits without exploring the transcript, which, as has been often heretofore said, it cannot be expected to, and will not, do, and this without regard to whether such failure to furnish an abstract is relied upon for an affirmance by opposing counsel or not. Haglin v. Atkinson-Williams Hdw. Co., 93 Ark. 85, 124 S. W. 518; Brown v. Hardy, 95 Ark. 123, 128 S. W. 858; Jett v. Crittenden, 89 Ark. 349, 116 S. W. 665 and cases cited.’ See also Golden v. Wallace, 212 Ark. 732, 207 S. W. 2d 605; and Barrett v. Fort Smith Str. Steel Co., 220 Ark. 114, 246 S. W. 2d 414;” Thornbrough, Commissioner of Labor v. Danco Constr. Co., 226 Ark. 797, 294 S. W. 2d 336; Speed v. Mays, 226 Ark. 213, 288 S. W. 2d 953.

Affirmed.