author: JohN A. Fogleman, Justice.

text:
    Floyd Broomfield & Nancy Broomfield, et al v. E. L. Broomfield & Ella May Broomfield, et al
    5-4154
    413 S. W. 2d 657
    Opinion delivered April 17, 1967

      Shaw & Shaw, for appellant.

      Shaver, Tackett & Jones, for appellee.
   JohN A. Fogleman, Justice.

Appellants are two sons of Millard W. Broomfield joined by their respective wives. Appellees are another son, the son’s wife and daughter, and the only daughter of the decedent. Millard W. Broomfield died intestate on January 1, 1964 at the age of 85 years. This litigation commenced as a suit by appellants and other heirs with partition of seventy acres of land being a part of the relief sought. This land was admittedly once owned by the decedent. Appellants contend that h(e owned the lands at the time of his death. Appellees ask confirmation of title in E. L. Broomfield and his wife and daughter, claiming that they are owners of the tract by virtue of conveyance to them by a warranty deed signed by M. W. Broomfield and bearing date of September 29, 1952. They say that this deed was delivered to appellee E. L. Broomfield in June, 1963, at the home of the decedent. Appellants contend that this deed was without consideration and never delivered by the decedent, and that he never intended to deliver it. They further contend that possession thereof was attained by the grantees by fraudulent and unlawful means. On disputed evidence, by a margin which he characterized as “razor-thin”, the chancellor found that the weight of the evidence supported a finding that the deed was delivered by the decedent in his lifetime. A review of some of the evidence is necessary to the determination of this appeal on trial de novo.

It is undisputed that Millard W. Broomfield lived on the property for many years and continued to reside on the land in question and pay the taxes thereon until his death. The 1962 taxes were paid on September 19, 1963. The deed was not recorded until January 31, 1964. The office manager for the Little River County Agricultural Stabilization and Conservation Office (ASC) for fifteen years testified that the decedent made applications for financial assistance in carrying out ASC farm programs. Two of these applications were signed by the decedent as owner in 1963, one in April and one in July. The records of the office showed that Millard W. Broomfield was the owner-operator of the farm. Appellees admit that the decedent carried on these transactions in this way for more than ten years prior to his. death and do not contend that he ever relinquished control of the land during his lifetime. Appellee E. L. Broomfield seeks to explain this by saying that he retained a life estate in the property in his agreement with the E. L. Broom-field family. The deed contains no reservation of a life estate.

Ernie Crow, a witness for whose credibility both E. L. Broomfield and his counsel vouch, testified that he became interested in purchasing the farm in July, 1963. Upon inquiry of Millard W. Broomfield, he was told that he could buy the land for $9,000.00 and the cattle for $3,000.00. Broomfield said he would make a warranty deed to the place. Crow did not follow up because he didn’t like the location and didn’t think the house was good enough for the price. Appellee E. L. Broomfield tried to explain this by saying:

“He seemed to be just more or less seeing if he could get an offer of what his property was worth more than anything because he didn’t sell it, didn’t follow up the sale.”

E. L. Broomfield testified that his father had the deed prepared and that he, his wife and daughter agreed to take care of the elder Broomfield, but the father was to do anything he wished with the farm in his lifetime— that he was to do what he pleased with the farm and handle it as he pleased. The agreement with his father was to become effective upon the latter’s death. He said that no one but he and his father were present when the deed was delivered in June, 1963, after his father had been to a doctor and thought he would not get well. His father told him not to record the deed until he passed away, and he agreed. He claims the deed, before delivery, was clipped to some papers on the wall in his father’s room with a clothespin, but presumed that he kept his other valuable papers in his trunk. He told no one except his wife about the delivery of the deed, feeling that no one else should know of it. If his father had asked him for the deed back, he would have given it to him.

The only evidence of delivery of the deed is the testimony of E. L. Broomfield himself. He seeks to excuse the non-appearance of his wife, a party to the suit, who he said knew he had the deed in his possession, by saying that she had been sick for two days. The record does not reflect any effort to continue the case until she was able to testify, to give her deposition or otherwise offer her testimony, although the chancellor’s, written memorandum opinion shows that the parties, the attorneys, the judge and the court reporter went past the E. L. Broom-field residence to take the testimony of another witness.. The failure of a party to testify in his own behalf is a suspicious circumstance against him when material facts within his own knowledge are charged against him in the pleadings and evidence. Felton v. Leigh, 48 Ark. 498, 3 S. W. 638. Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts. Fordyce v. McCants, 55 Ark. 384, 18 S. W. 371. Where the parties, have it within their power to explain suspicious circumstances connected with a conveyance, the court trying the case may regard their failure to do so as a circumstance against them. Smith v. Wheat, 138 Ark. 169, 35 S. W. 2d 335. See, also, Board of Commissioners of S. I. Dist. No. 359 v. City of Little Rock, 190 Ark. 27, 76 S. W. 2d 667. The unexplained failure of a party to produce a witness with special knowledge of a transaction, if within the power of the party to do so, raises the presumption that he would testify against the party. Rutherford v. Casey, 190 Ark. 79, 77 S. W. 2d 58 ; Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737. Other cases hold that an inference follows that the testimony would have been unfavorable. See, e. g., National Life Company v. Brennecke, 195 Ark. 1088, 115 S. W. 2d 855. At any rate, it does not satisfactorily appéar that the testimony of Ella May Broom-field could not have been obtained, so this, factor weighs heavily against appellees in determining where the preponderance of the evidence lies.

As against the uncorroborated testimony of E. L. Broomfield, a vitally interested party, there is other testimony which, together with the acts of the decedent in-consisent with a delivery of the deed, seems to preponderate. Both Floyd and Wade Broomfield testified about the interest of the former’s son in buying the land in November, 1963, and statements of the decedent with reference to such a sale. Both of them and the county welfare director testified that the father had made statements that if he gave anyone a deed to the place they would run him off. The statement to Wade was said to have been made while he was living with his father in 1963, up until October. According to Wade, his father kept his deeds, papers and money in a trunk. This trunk was opened in the presence of most of the family by J. B. Pond, a son-in-law of E. L. Broomfield, by cutting a hasp on the front. Shortly thereafter Pond pointed out to Wade Broomfield that the hinges on the back had been cut. It 'was admitted that Pond would testify that they appeared to have been freshly cut. There was also testimony that two straps had been put on the back of the trunk and that there were fresh marks on these straps which appeared to have been taken off and replaced.

In order for there to be a delivery of a deed, there must be an intention to pass title immediately and the grantor must lose dominion over the deed. This intention must be manifested by what is said and done by the grantor and grantee. Woodruff v. Miller, 212 Ark. 191, 205 S. W. 2d 181 ; Hunter v. Hunter, 216 Ark. 237, 224 S. W. 2d 804 ; Smith v. Van Dusen, 235 Ark. 79, 357 S. W. 2d 22. Enongh must be done to show that the instrument was considered to have passed beyond the grantor’s control and dominion. Graves v. Carlin, 194 Ark. 473, 107 S. W. 2d 542 ; Ransom v. Ransom, 202 Ark. 123, 149 S. W. 2d 937.

In determining the intention of the grantor and whether dominion of the deed has been lost, acceptance of a deed with instructions not to record it during the lifetime of grantor and the exercise of dominion over the property by grantor are significant factors. Woodruff v. Miller, 212 Ark. 191, 205 S. W. 2d 181 ; Graves v. Carlin, 194 Ark. 473, 107 S. W. 2d 542. Of course, this would not be true in cases such as Lindsey v. Christian, 222 Ark. 169, 257 S. W. 2d 935, where the language of the deed had the effect of reserving a life estate.

The acts of a grantor in continuing to occupy the lands and exercising all the rights of unlimited ownership, including the payment of taxes, are contradictory to an intention to pass title immediately, an element necessary to establish delivery. Smith v. Van Dusen, 235 Ark. 79, 357 S. W. 22 ; Ransom v. Ransom, 202 Ark. 123, 149 S. W. 2d 937.

Cases such as Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244, relied on by appellees, where the grantor provides by express words in the deed that it shall take effect upon his death, have previously been distinguished from a case such as this, where an oral reservation is alleged, in Woodruff v. Miller, 212 Ark. 191, 205 S. W. 2d 181.

The case of Johnson v. Young Men’s Building & Loan Assn., 187 Ark. 430, 60 S. W. 2d 925, also relied upon by appellees, has many distinctions. There the deed was attacked as fraudulent by subsequent creditors rather than those who would have inherited the. property. The husband and wife grantors had acquired the property as tenants by the entirety, investing funds of both, as well as some belonging to their only son, then a minor. They desired to destroy the effect of these tenancies so that upon death of either, his or her interest would not pass to the other hut to the son. The wife had died before the suit was instituted. The father testified that they operated the property for the son for many years. ¡.The deed was placed in a safe to which all three had access and the matter was fully explained to the son by the wife. Advice of eminent counsel was had in the preparation of the deed. After the death of the wife, the deed was placed of record and the son gave his father a power of attorney. The father testified that they always conferred with the son about the business interests. The bank account was put in the son’s name about the same time the deed was recorded and the power of attorney apparently authorized the father to draw checks thereon. The court accepted the failure to have the deed recorded as being consistent with the purpose of the grantors to retain possession and control of the property until the death of one of them. It also said that a retention of such control under these circumstances was not always inconsistent with the grant or intention of delivery of the deed. We feel that this case is distinguishable upon these peculiar facts. Insofar as it may appear to be in conflict with later cases herein cited, we think the latter state the proper rules applicable to a case such as this.

This case is strikingly similar to Ransom v. Ransom, 202 Ark. 123, 149 S. W. 2d 937, where counsel for the grantee in a deed purporting to convey title outright conceded that his client did not expect then or thereafter to take possession of any of the land unless something happened- to the grantor; that the grantor intended to keep his land as long as he lived and to do what he pleased with it; that grantee would not have interfered with grantor’s collection of rents and profits; and that grantee was not to get the lands until something happened to grantor. There this court reversed the finding of the chancellor that there had been a delivery of the deed in question. There is also a close parallel to Woodruff v. Miller, 212 Ark. 191, 205 S. W. 2d 181, where a finding against' delivery was affirmed. This court has never upheld a deed when (1) the parties did not intend to pass title immediately and (2) the grantor never lost dominion over the deed.

When tested by the established rules of law, here-inabove s.et out, we think the evidence that there was no delivery of the deed is clear, decisive and convincing and the finding of the trial court clearly against the preponderance of the evidence.

The decree is reversed and the cause remanded for the entry of a decree in conformity with this opinion.

       There were other heirs with their respective wives who were plaintiffs. During the pendency of the action, one of these heirs died and his widow and heirs at law were substituted. None of these parties appealed.

       Other property was involved but there is no issue as to it on this appeal.


source: Caselaw Access Project

author: JohN A. FoglemaN, Justice.

license: Public Domain

text:
    Don Bivens v. State
    5259
    413 S. W. 2d 653
    Opinion delivered April 17, 1967

      Pryor & Barnes, for appellant.

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

Appellant seeks reversal of his conviction of voluntary manslaughter upon the ground that an admission of guilt by appellant was improperly admitted into evidence and that there was no other evidence that tended to prove his guilt.

On the night of the alleged offense, appellant attended a dance at the Lafayette High School gymnasium and while he was there a fight started. The deceased, one James Carpenter, and appellant were watching the fight from the bleachers when they became involved in a fight themselves, and rolled down to the floor at the bottom. There Carpenter was pulled off appellant by Ellis Wilkins, the latter’s cousin, and appellant admits that Carpenter had been cut and was bleeding at that time. It was shown that Carpenter died as the result of a stab wound.

Ellis. Wilkins said that after the fight, appellant gave him a large knife which he put in his pocket. After the police came he gave it to one Martha Johnson who took it home with her. Wilkins guessed that appellant started to help one of the participants in the first fight and that the deceased then jumped on appellant. He said that he went over where, the fight was going on because one of those in the first fight had previously beaten appellant up.

Martha Johnson, who was sitting with Ellis Wilkins when the fight started, said that she put the knife in her “bosoms”, took it home and put it in a box. She said her mother put it down the hole in an “outdoors, bathroom”, but got it out when the police asked her for it. She had seen something black and brown that looked like blood on the knife.

Dorothy Geneva Morgan said that while she was coming out the door of the “gym” she overheard Bivens say to Wilkins, “I tried to kiil the --”.

Sheriff Grover Linebarier, accompanied by his deputy Paul Parrish, arrested appellant at the latter’s home in Keystone in the early morning hours after the incident. He testified that on the way in, without questioning by the officers, appellant, on his own accord, said that he knew he cut the boy but he didn’t think he cut him that bad. The sheriff said that he had at the time of the arrest told appellant that the boy he had allegedly cut had died and they were going to take him in for further questioning. The sheriff stated that he had not warned appellant of his right to counsel and against self incrimination as they were not questioning him and were not prepared to take a statement, although he was arrested as the only suspect.

No objection was made to the testimony of the sheriff, there was no motion to strike any part of his testimony, and there was no motion for a directed verdict of acquittal. The sufficiency of the evidence and the admissibility of appellant’s statement to the sheriff were first questioned in a motion for new trial. In that motion appellant states that his admission was rendered inadmissible because appellant was not advised of his. right to counsel and his right against self incrimination.

Appellant’s contention as to insufficiency of evidence for want of corroboration of his extrajudicial “confession” might properly have been raised by motion for a directed verdict. Ark. Stat. Ann. § 43-2117 (Repl. 1964), While it has been held by this court that the sufficiency of the evidence to sustain the verdict of a jury will be reviewed even in the absence of a request for a directed verdict [Murray v. State, 249 Ark. 32, 397 S. W. 2d 812], the failure to make the motion is some indication that appellant’s counsel probably felt at that time there was sufficient corroborating evidence to make a question for the jury. The statute only requires that an extrajudicial confession be accompanied by other proof that such an offense was committed. Ark. Stat. Ann. § 34-2115 (Repl. 1964). The test of the correctness of the verdict is not whether there was sufficient evidence to sustain a conviction, but whether there was evidence that such an offense was committed or, in other words, proof of the corpus delicti. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26 ; Forester v. State, 224 Ark. 19, 272 S. W. 2d 320 ; Hargett v. State, 235 Ark. 189, 357 S. W. 2d 533 ; Clay v. State, 236 Ark. 398, 366 S. W. 2d 299 ; Stewart v. State, 237 Ark. 748, 375 S. W. 2d 804.

The evidence showing that decedent died as a result of a stab wound, that he and appellant were engaged in some kind of physical altercation and that appellant tried to dispose of a knife of which he had possession is ample proof that a crime was committed and to connect appellant with it, in the absence of his admission or confession. A confession by an accused that he shot the prosecuting witness was held sufficiently corroborated on a charge of assault with intent to murder by testimony by the latter that someone shot him. Johnson v. State, 135 Ark. 377, 205 S. W. 646. In the absence of evidence suggestive of any means other than violence as cause of death, identification of a skeleton as that of defendant’s wife who was last seen with the defendant before she disappeared following a quarrel with him was held sufficient corroboration of a confession in Hall v. State, 209 Ark. 180, 189 S. W. 2d 917. The discovery of blood in the deceased’s cabin and a trail of blood leading to a river where his body was recovered was held sufficient in Penton v. State, 194 Ark. 503, 109 S. W. 2d 131. Where death of deceased was caused by gaping head wounds which appeared to have been inflicted with a hammer of the type found at appellant’s employer’s place of business with blood stains on it, there was sufficient corroboration. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26. Evidence that when defendant brought' his wife to a hospital, she had multiple contusions, lacerations, bruises and abrasions about the head and face, which appeared to have been recently inflicted and that there were bloody articles of clothing and blood spots and loose hair found about their home, together with a medical opinion that death was caused by a swelling of her brain caused by a blow, was held sufficient evidence of the corpus delicti in Forester v. State, 224 Ark. 194, 272 S. W. 2d 320. The evidence on behalf of the State hereinabove mentioned was sufficient corroboration of appellant’s statement to the sheriff.

The remaining question about admissibility of the statement of appellant to the sheriff is based on a contention that one interrogated while in custody must be warned of his right against self incrimination and that he has a right to counsel, retained or appointed, during interrogation. This contention can be disposed of on the basis that there was a knowing and intelligent waiver of this contention by the failure of appellant to object to the introduction of the testimony, or to move to strike it, or to even move for a directed verdict on insufficiency of evidence. Before an alleged error in a felony case of a degree less than capital may be considered by this court, there must be an objection calling for a ruling by the trial court, an exception to an adverse ruling, the matter brought into the record by bill of exceptions and carried forward into a motion for new trial which serves only to assign the ruling of the trial court as error. Ford v. State, 222 Ark. 16, 257 S. W. 2d 30 ; Bell v. State, 223 Ark. 304, 265 S. W. 2d 709 ; Carter v. State, 230 Ark. 646, 326 S. W. 2d 791.

In Tiner v. State, 239 Ark. 819, 394 S. W. 2d 608, it was held that alleged error in permitting a sheriff to testify as to statements made to him by a winess, first raised in the motion for new trial, could not be considered by this court. Here appellant was a high school senior whose grade average of C’s and B’s and age (16) at which he reached this stage of his education would indicate at least average. intelligence. It must be presumed that he made a full disclosure of all circumstances, including his statements, to the capable counsel by whom he was represented, an attorney at the bar of the court where appellant was tried. In this regard it is noted that the defendant called the deputy sheriff, Paul Parrish, as his witness. He interrogated him about statements made by appellant during the investigation, at the home in which appellant resided, and before the arrest. A statement of appellant at that time was virtually the same as that later made voluntarily to the sheriff. Under these circumstances, we find no basis for review.

The rule has been applied even when violation of constitutional rights was asserted as the bar to admission of evidence. See Hardaway v. State, 237 Ark. 966, 377 S. W. 2d 813, and Crabtree v. State, 238 Ark. 358, 381 S. W. 2d 729, where the fruits of alleged illegal searches and seizures were involved. A party cannot speculate upon what the testimony of the witnesses will be and then at the end of the trial demand as a matter of right that incompetent testimony be excluded. Turner v. State, 192 Ark. 937, 96 S. W. 2d 455.

This latter contention, even if it had been timely raised, is not well founded. This court has held that spontaneous admission of guilt by one taken in custody on a warrant of arrest without any process of interrogation was not inadmissible on the grounds asserted here. Turney v. State, 239 Ark. 851, 395 S. W. 2d 1. Miranda v. State of Arizona, 38 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974, does not affect this holding. The statements rendered inadmissible by that decision are those obtained by in-custody interrogation, without adequate warning as to the constitutional rights here asserted. The opinion in the Miranda case clearly states that volunteered statements of any kind are not barred by the Fifth Amendment.

The judgment is affirmed.


author: J. Fred Jokes, Justice. Cowley Bybd, Justice,

text:
    Paul Burke Jr. v. State
    5241
    413 S. W. 2d 646
    Opinion delivered April 17, 1967

      Donald Poe, for appellant.

      Joe Purcell, Attorney General; Don Lamgston, Asst. Atty. General, for appellee.
   J. Fred Jokes, Justice.

Paul “Sonny” Burke, Jr. was convicted of arson in the Circuit Court of Polk County, and was sentenced to five years in the state penitentiary with three years suspended. He assigned thirty-seven errors in his motion for a new trial which was overruled by the trial court. He has appealed to this court and relies on seven points for reversal.

The facts stated briefly are as follows:

About seven thirty or eight o’clock on December 19, 1963, Buck Cureton’s barn and rent house, near Vander-voort in Polk County, were destroyed by fire. The barn was about two hundred yards and the rent house about a quarter of a mile from Cureton’s dwelling house. The night was cold and damp, a light mist was falling and freezing as it fell. When Cureton discovered the fires, the barn was ready to collapse. Burning bales of hay were falling from the barn loft, but the fire at the rent house was “a very small fire.”

About two years later, on December 23, 1965, appellant was charged with the crime of arson on information filed by the prosecuting attorney. He entered a plea of not guilty at arraignment on January 17, 1966, and was tried to a jury and convicted on July 25, 1966.

At the trial of the case, witnesses testified that the appellant, in the company of Baram Powell and Harold Gentry, was seen in the vicinity of the Cnreton property on the evening before the fire. Harold Gentry testified that he was with the defendant and Baram Powell in the vicinity of the Cnreton property, bnt he didn’t remember the date nor did he know the exact location of the Cnreton property. A part of Gentry’s testimony is as follows:

“Q. Tell us what yon recall about what happened there arounl Yandervoort. That is, where did yon go?
A. Well, now, I don’t know where yve went. We drove down the road from Yandervoort and went down maybe a mile or two. I don’t know, and we turned around and went back the same way we came from. We turned around and went back for about the same distance, probably the same place, turned around and went back and we left, and the next place ¡that I knowcd where we were, that I know for sure whore it was other than driving down the road, was at Big Boy’s Grocery.”

The evidence indicates that the Cureton property was between Yandervoort and Big Boy’s Grocery.

Barom Powell testified that he was with the defendant and Gentry in the vicinity of the Cureton property on the day before the fire and that they were drinking; that they drove by the Cureton property three times and then returned to the defendant’s home and continued drinking. That the following night he and the defendant, and the defendant’s wife, returned to the Cure-ton property; that he and the defendant got out of the pick-up truck, climbed a fence and walked several yards out into the Cureton property and when in sight of a barn, the appellant announced that he was going to burn the barn and that the witness was going to burn the other building. The testimony on this point is as follows:

“Q. What car were yon in?
A. In my pickup. And we got there Sonny said, ‘This will be good enough — ’
Q. Got where?
A. To that place.
Q. To what place?
A. This Buck Oureton place.
Q. All right.
A. And me and Sonny got out and got over the fence and got off there a little hit and I said, ‘What are we fixing to do?’, and he said, ‘Well, you’re going to burn this place over here, and I’m going to bum this one.’ And I said, ‘No, I’m not,’ and I went back to the pickup.
Q. Was any inducement offered to you to do the work?
A. I believe he said something about twenty-five dollars if I would burn it. ’ ’

According to this witness he got back into the pickup with the defendant’s wife who drove the pickup some distance and turned it around and drove back to near where the defendant had climbed the fence, and that ap-pllant again climbed the fence leaving the Cureton property and got into the pickup.

Then the witness was asked the following question, and gave the following answer:

“Q. When he got into the pickup did you see any fire.?
A. I just saw a glow out to the left out there. It was going pretty good.”

At page 93 of the transcript, Jerry Hackworth testified as follows:

“Q. Tell us what Paul Burke said.
A. I don’t know how it come about, but he said him and his wife and Baram Powell was supposed to have burned the barn, and that him and his wife backed out and he burned it.
Q. Now who backed out, did he say?
A. Baram and Carolyn.
Q. What else did he say?
A. That he burned it his self. ’ ’

The defendant testified in his own defense and denied being in the vicinity of the Cureton property in the company of Powell and Gentry on the day prior to the fire. He denied being in the vicinity of the Cureton property on the night of the fire as testified by Powell and denied that he made the statements attributed to him by Hackworth.

We now take up the points relied on by appellant in the order presented.

Appellant contends for his first point, that the state failed to establish corpus delicti and that the fire was incendiary. He cites the cases of Hancock v. State, 204 Ark. 174, 161 S. W. 2d 198, and Johnson v. State, 198 Ark. 871 S. W. 2d 934, as authority on this point.

In the Hancock case only one barn burned and in the Johnson case a trailer loaded with dry cotton burned. In the Johnson case the exhaust from a tractor pulling the trailer was directed upward through a four foot pipe and the fire started near the top of the load of cotton.

In the case at bar, two buildings several hundred yards apart burned simultaneously on a still “drizzly” night. One of the fires was well under way while the other was still small when discovered. In the total absence of any evidence that the fires could have been of other than incendiary origin, the question was properly submitted to the jury and the jury was justified in the conclusion it reached.

For his second point, appellant contends that the witness, Baram Powell, was an admitted accomplice and his testimony has to be corroborated to support a conviction. He cites the Johnson case, supra, and Froman and Sanders v. State, 232 Ark. 697, 339 S. W. 2d 601, as authority on this point.

No accomplice was involved in the Johnson case, and in Froman v. State, the prosecuting witness, waited in a car while a robbery was committed, she inquired as to whether or not the victim had been injured, the money from the robbery was counted out and divided in her apartment, and although she denied receiving any of the money, she harbored the defendants in her apartment.

In holding that the witness was an accomplice as a matter of law in the Froman case, this court applied the rule as to whether or not the accomplice could be convicted as a principal or accessory in the same case, and concluded that she could have been, citing Havens v. State, 217 Ark. 153, 228 S. W. 2d 1003.

In the case of Simon v. State, 149 Ark. 609, 233 S. W. 917, this court said:

“The test, generally applied to determine whether' or not one is an accomplice, is., could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abbetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice ; but, unless a judgment of conviction could be had, he is not an accomplice.
# * #
“The term ‘accomplice’ can not be used in a loose or popular sense so as to embrace one who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related, but distinct offense. To constitute one an accomplice, he must take some part, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescense or silence, in the absence of a duty to act, is not enough, however, reprehensible it may be, to constitute one an accomplice. The knowledge that a crime is being or is about to be committed can not be said to constitute one an accomplice. Nor can the concealment of knowledge, or the mere failure to inform the officers of the law when one has learned of the commission of a crime.”

This court has defined an accomplice as one who could himself be convicted of the crime charged against the defendant, either as principal or accessory. Henderson v. State, 174 Ark. 835, 297 S. W. 836. This court has also said that a witness is not an accomplice if he cannot be indicted for the offense, either as a principal or accessory. McClure v. State, 214 Ark. 159, 215 S. W. 2d 534.

The question of whether or not a witness is an accomplice is a question of mixed law and fact in the trial of a criminal case. Edmonson v. State, 51 Ark. 115, 10 S. W. 21 ; Jackson v. State, 193 Ark. 776, 102 S. W. 2d 546. When that question is submitted to a jury, its findings on the subject are final, unless the testimony shows conclusively that the witness was an accomplice. Redd, v. State, 63 Ark. 457, 40 S. W. 374.

The question was properly submitted to the jury in the case at bar, and the jury found that Baram Powell was not an accomplice. There is no testimony showing conclusively that Powell was an accomplice, and his testimony did not have to be corroborated in order to sustain a conviction on his testimony.

Having concluded that the witness, Powell, was not an accomplice in the crime of arson in this case, we do not reach the sufficiency of the corroboraitng evidence under the third and fourth points relied on by appellant.

For his fifth point, appellant contends that the comments of the trial judge on Jerry Hackworth’s testimony were prejudicial error.

The court and attorneys were having some difficulty getting Jerry Hackworth, one of the state’s witnesses, to talk loud enough to be heard by the jury. Appellant’s counsel objected to the testimony on direct examination because the witness had not made himself audible, and requested that the witness be disqualified if he could not talk loud enough to be understood. The court overruled the objections and stated:

“If he can’t talk loud enough for the jury to understand him, they won’t get his testimony and, it won’t be anything but in your favor. ’ ’

Hackworth was a state witness and was on direct examination at the time the objection to his testimony was made and overruled. We find no objection in the record to the comment made by the trial judge.

Appellant contends as his sixth point that the remarks and actions of trial judge and sheriff in the presence of jury, when the jury reported for further instructions, were prejudicial error.

One of the jurors asked the question:

“Why was the case put off this long?” The record then appears as follows:

“THE COURT: That’s a question, of course, that I have no idea about, and I am not in a position to answer it, and I have to leave it there . . . Did you mean to inquire of the Court why the case was put off so long in coming to trial after the Information was filed on December 23, 1965?
JUROR: Yes, sir.
THE COURT: The reason for that was that. Judge Bobby Steel disqualified himself and asked me to try the case. I am fairly busy myself, and I just didn’t get up here any sooner.
JUROR: Thank you.
THE COURT: If it pertained to why it was so long before they filed the case on the 23rd of December, 1965,1 don’t know anything about that.
SHERIFF HENSLEY: Joe, you tell them.
MR. POE: I want my exceptions saved to the giving of that admonition by the Court.
THE COURT: For the record, Sheriff Hensley said Joe can tell you.’ The Gourt heard him and stopped him. Nothing more was said by Mr. Hensley and Mr. Hardegree did not say anything.”

It is not clear from the transcript whether the “admonition” complained of by appellant was an admonition to the sheriff, when the court “stopped him,” or whether the statement to the juror was being referred to as an “admonition” by appellant’s counsel, but in any event we are unable to see how the defendant could have been prejudiced on this point.

For his seventh point, appellant contends that instruction No. 10 was an erroneous declaration of law, and again cites the Froman case, supra.

Instruction No. 10 was an instruction on the sufficiency of corroborating evidence to sustain a conviction on the testimony of an accomplice. In the Froman case, supra, the majority opinion found that the witness was an accomplice as a matter of law and that there was no corroborating evidence. In the case at bar there was coorroborating evidence which was considered by the jury along with the question of whether witness Powell was an accomplice. We find no prejudicial error in the giving of the instruction.

The judgment of the trial court is affirmed.

Affirmed.

Bybd, J., concurs.

Cowley Bybd, Justice,

concurring. I concur on the basis that there was sufficient testimony to corroborate the testimony of Baram Powell, even if he were an accomplice.


author: J. Fred Jokes, Justice.

text:
    Lee H. Burford v. State
    5251
    413 S. W. 2d 670
    Opinion delivered April 17, 1967

      Shillmm & Burrow, for appellant.

      Joe Furcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Fred Jokes, Justice.

Lee H. Burford was convicted in the Crittendon County Circuit Court and sentenced to three years in the state penitentiary for the crime of sodomy, consisting of an unnatural sex act with one David Arthur Paris.

Burford has appealed to this court and relies on the following three points for reversal:

‘ ‘ 1. The Circuit Court of Crittenden County, Arkansas erred in denying motion of the Appellant for directed verdict, upon conclusion of the State’s case in chief and at the close of evidence on behalf of Appellant, as a matter of law, there being no corroboration of the commission of the criminal offense charged.
‘ ‘ 2. The court erred in permitting certain testimony of witness David Gunn to be admitted into evidence over objection of Appellant.
“3. The Circuit Judge committed error in permitting the jury to return for instructions of the Court as to whether or not, if the defendant was found guilty, they could permit the court to fix punishment which clearly indicated the jury could not agree on a verdict, and the court should have declared a mistrial. ’ ’

The record in the case presents the following facts:

About 11:00 p.m. on December 4, 1965, the appellant met Paris in Memphis, Tennessee. They drove across the river to Arkansas in appellant’s station wagon automobile and the vehicle was parked on a little used side road under the Arkansas end of the Mississippi River bridge.

About 11:00 or 12:00 p.m. officers Busby and Gunn of the Arkansas State Police, while patroling the area came upon the defendant’s parked automobile. Seeing no one in the parked station wagon, the officers directed the beam of a flashlight into the station wagon and found the defendant and Paris naked from the waist down lying on their sides in the seat of the station wagon with the appellant lying behind and close against Paris. Both men were arrested and charged with sodomy.

Paris entered a plea of guilty and he testified as a state’s witness at the trial of appellant. Paris testified in detail as to an act of sodomy committed on him by appellant, including penetration of the body as required by Ark. Stat. Ann. § 41-814 (Repl. 1964).

Appellant’s first point is without merit. The crime of sodomy may be proven by circumstantial evidence only. Hudspeth v. State, 194 Ark. 576, 108 S. W. 2d 1085. Certainly no higher degree of evidence is required in corroborating the testimony of an accomplice than is required for conviction. In the case of Beasley v. State, 219 Ark. 452, 242, S. W. 2d 961, this court said:

“The rule in this state is that the corroborating evidence need only tend to connect the defendant with the commission of the offense, and not that such evidence of itself be sufficient, and where there is sufficient evidence tending to connect tbe defendant with the offense, its sufficiency is a question for the jury, together with that of the accomplice.”
Appellant’s second point is also without merit.

The accomplice, David Paris, admitted to officer Gunn what had transpired in the appellant’s automobile. The appellant stood about seven feet away when the admission was made and the appellant remained silent. Paris testified to later statements made by appellant in jail which indicated appellant had heard Paris make the first statement. The admission of this, evidence was not error.

In the case of Moore v. State, 151 Ark. 515, 236 S. W. 846, a statement offered in evidence was not made in the presence of the defendant and a denial was made by the defendant as soon as he heard about the statement, but in that case this court said:

“Proof of damaging statements against an accused person, made in the presence of the accused, are admitted upon the theory that the jury might find that the silence of the accused, in the face of accusation was a tacit admission. Of course, such testimony might, or might not, have the probative value, the circumstances of the case being such that the jury might find that the accused was not called upon to make denial; but this would be a question for the jury under the circumstances of each particular case. Here, however, Thomas’ statement was made not only in appellant’s absence, but was denied by appellant as soon as he was advised the statement had been made.”

See also Martin v. State, 177 Ark. 379, 6 S. W. 2d 293 ; Polk v. State, 45 Ark. 165 ; and Sheptine v. State, 133 Ark. 239, 202 S. W. 225.

As to appellant’s third point, Ark. Stat. Ann. § 43-2306 (Repl. 1964), states, as follows:

“Court to fix punishment. — When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment, and render judgment accordingly.”

In case of Ward v. State, 236 Ark. 878, 370 S. W. 2d 425, the trial court instructed, along with other instructions when the case was submitted to the jury, that if the jury was unable to set a punishment, the court would do so. This court laid down the following rule— holding the above practice to he error.

“Thus, it appears, we have not previously announced any required rule in this regard to guide the trial courts. So, after careful consideration, we now hold that the jury should not he told initially they can let the court impose the punishment hut should he told only after they report they have reached a verdict of guilty hut are unahle to agree on the punishment to be imposed.” (emphasis supplied).

We are of the opinion that the jury had reached its verdict on the guilt of the appellant when the inquiry complained of hy appellant was made by the juror. We find no error in the court’s answer to this inquiry.

The judgment of the trial court is affirmed.

Affirmed.

Fogleman, J., disqualified.


author: Conley Byrd, Justice.

text:
    T. C. Dingle, et al v. City of Eureka Springs et al
    5-4190
    413 S. W. 2d 641
    Opinion delivered April 17, 1967

      M. D. Anglin, for appellant.

      James E. Coate, for appellee.
   Conley Byrd, Justice.

Appellants, T. C. Dingle, et al., instituted this action in the Chancery Court of Carroll County, Arkansas, to compel the city of Eureka Springs, by and through its duly elected officials, to hold a special election for the purpose of changing its city commission form of government to a mayor and aider-man form. Appellants, in filing with the city clerk their petition containing 211 signatures, were proceeding under Act 497 of 1965 (Ark. Stat. Ann. §§ 19-110-111 Supp.. 1965]). The city clerk rejected the petition and this mandamus action followed.

The trial court agreed with the position taken by the city that the petition was an initiative petition under Amendment 7 to the Constitution of the State of Arkansas, and dismissed the action for mandamus upon a demurrer because the petition had not been filed with the city clerk more than 60 days before the November general election.

In Knowlton v. Walton, 189 Ark. 901, 75 S. W. 2d 811 (1934), we held that such a procedure as petitioners are here following was wholly independent of the Initiative and Referendum Amendment to the Constitution, and that the election called for under the act there involved was not controlled by the election provisions of Amendment 7. Therefore we hold that the chancellor was in error in interpreting Act 497 as being a proceeding under the Initiative and Referendum Amendment. There is nothing in the Initiative and Referendum Amendment limiting the power of the legislature to pass an act authorizing a city to change its form of government at a special election to he called by its mayor on the petition of a certain number of voters therein, i

In view of our decision ion April 3, 1967, in Catlett v. Republican Party; 242 Ark. 283, 413 S. W. 2d 651, it would also appear that the chancery court had no jurisdiction of this cause of action and that, upon remand hereof, same should be transferred to the circuit court. Of course, our holding in the ¡Catlett case does not affect the jurisdiction given to chancery courts under the Initiative and Referendum Amendment having to do with the sufficiency of local petitions filed with the county clerk or city clerk, as the case may he.

For the reasons herein set forth, this cause is reversed and remanded.


author: CaRletoN Harris, Chief Justice.

text:
    Jimmie McKine v. State
    5246
    413 S. W. 2d 860
    Opinion delivered April 4, 1967
    [Rehearing denied May 15, 1967.]

      Floyd G. Rogers, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   CaRletoN Harris, Chief Justice.

Jimmie McKine, appellant herein, was convicted of the charge of Driving "While Intoxicated (second offense) in the Municipal Court of the City of Fort Smith, Arkansas. He appealed to the Circuit Court of Sebastian County (Fort Smith District), and was found guilty by a jury, sentenced to ten days in the County Jail, fined $250.00, and his driver’s license suspended for a period of one year. From the judgment so entered, McKine brings this, appeal.

We are unable to consider this appeal on its merits, for though the transcript has been thoroughly explored, no order granting the appeal by the Circuit Court is shown. This is a requirement of the law. Ark. Stat. Ann. §§ 43-2708 and 43-2709 (Repl. 1964). See also McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805.

It might be added, however, that a majority of the court would also affirm the case on the merits.

Appeal dismissed.


author: CarletoN Harris, Chief Justice. JohN A. FoglbmaN, Justice,

text:
    Special School District of Fort Smith and Chris D. Corbin, Supt. v. Mr. Ruby C. Lynch
    5-4158
    413 S. W. 2d 880
    Opinion delivered April 24, 1967

      Daily & Woods, for appellants.

      Hardin, Barton, Hardin & Jesson; By: Robert T. Dawson, for appellee.
   CarletoN Harris, Chief Justice.

Mrs. Ruby C. Lynch, who had taught in the Fort Smith public school system for twelve years, held a teaching contract with the Fort Smith School Board for the 1964-65 term, the school term commencing September 3, 1964, and continuing for one hundred and eighty-two days. On December 9, 1964, following a series of absences due to illness, Mrs. Lynch, appellee herein, directed a letter to Mr. Chris D. Corbin, Superintendent of Schools, requesting a leave of absence for the balance of the school term; on December 11, Dr. George W. Allen, appellee’s physician, directed a letter to the superintendent to the effect that she was unable to fulfill her contract by reason of illness. On December 31, Mr. Corbin advised by letter, “We will be glad to grant you a leave of absence in terms of the policy listed in our Administrative Policy Handbook.” The handbook was a pamphlet published and distributed to the personnel of the school system. The pertinent provisions to this litigation are found in Chapter v, entitled “Absence of Employees.” Under Section 1, “Leave of Absence,” the following provision is found:

“Granting of a leave by the Board of Directors signifies its intention to re-employ the person upon -termination of his leave, with one proviso: there must be a vacancy which, in the judgment of the superintendent of schools, the returing employee is qualified to fill.”

Section 6 provides:

“Whether or not the employee wishes to return to the school system he must, thirty days before expiration of his leave, signify to the superintendent of schools, in writing, his intention to return to the employ of the Board of Education or to submit his resignation.”

At the same time that Mrs. Lynch requested a leave of absence, she also applied to the Teachers Retirement Board for disability benefits, and was accepted, disability payments commencing the first of the year. Mrs. Lynch received disability checks thereafter, but she only cashed these checks through the month of July, 1965, all checks received subsequent to that date being returned. Sometime in May, appellee orally notified Mr. Corbin that she desired to again teach with the commencement of the fall term.

“Yes, I went to see him in May and told him what my doctor had told me, that if I kept on progressing as well as I was then doing, that I wonld he able to teach in the fall.”

There was no further communication between the parties until August 9, when appellee wrote Corbin and requested that her leave be terminated, and that she be returned to her teaching position. Corbin then called her over the telephone, and apparently read to her the provision under Section 1, cited at the outset of,.this opinion. Mrs,. Lynch remembered that he said something about “it was at his discretion as superintendent.” The board did not give Mrs. Lynch a contract, and on August 31, 1965, she instituted suit in the Sebastian Chancery Court, seeking a Writ of Mandamus directing the school board and Corbin, appellants herein, to issue to her a 1965-66 teaching contract, and also asking that they be restrained from entering into any other teaching contracts until her contract had been issued. On trial, appellants contended that appellee did not comply with the necessary requirements for reinstatement as an active teacher, as set forth in the provisions under which she was granted a leave of absence nor did she follow the designated procedure for removing herself from the disability retirement rolls to regain her status as physically qualified to teach.

The court found that appellee was entitled to her contract under the provisions of Ark. Stat. Ann. § 80 1304(b) (Supp. 1965), and held that she was entitled “to recover of and from the defendant compensation at the then prevailing contractual rate for teachers of her experience minus any and all amounts paid to the plaintiff by the State Teachers Retirement Board from October 1, 1965, to September 1, 1966.” From the decree so entered, appellants bring this appeal.

For reversal, appellant relies upon four points, but these are interrelated, and we do not deem it necessary to discuss each one separately.

Actually, the question is whether, in changing her status from an active teacher to that of an inactive one on leave and drawing disability, did Mrs. Lynch still retain the identical rights of a teacher who completed her contract, or was it first necessary that she follow established procedures to become reinstated to active standing?

Mrs. Lynch testified that she was given leave until the end of the school year (the evidence reflected that the school year ended June 4, 1965). Admittedly, she never gave any written notice to either Mr. Corbin or the school board until August 9 that she would be physically able, and ready, to teach when the fall term commenced. She did orally notify Mr. Corbin some time in May or early June, but, according to her testimony, heretofore quoted, she advised Mr. Corbin that her doctor said, “If I kept on progressing as well as I was then doing, that I would be able to teach in the fall.” It is at once obvious that, even though the oral notice had been given thirty days before the end of the term, and even if the oral notice be considered as substantial compliance with the notice provision, such notice would still be defective, for it is indefinite and conditional, dependent entirely on whether her health continued to improve. Accordingly, if Mrs. Lynch was bound by tbe provisions found in Chapter 5 of the Administrative Policy Handbook, heretofore quoted, she cannot prevail in this litigation, for those provisions were not complied with.

The Chancellor held that the only question was whether the specific language of Ark. Stat. 80-1304 could be amended by the terms of the Teachers Retirement Law, or by the Administrative Policy Handbook, which had been adopted by the local school board, and he held that the section referred to was controlling. The pertinent part of that section is as follows:

“Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the school year next succeeding the date of termination fixed therein, which renewal may be made by indorsement on the existing contract instrument; unless, during the period of such contract or within ten (10) days after the termination of said school term, the teacher shall be notified by the school board in writing delivered in person or mailed to him or her at last and usual known address by registered mail that such contract will not be renewed for such succeeding year, or unless the teacher during the period of the contract or within ten (10) days, after close of school shall deliver or mail by registered mail to such board his or her written resignation as such teacher, or unless such contract is superseded by another contract between the parties..”

It is admitted that the board did not send Mrs. Lynch a ten-day written notice that her teaching contract would not be renewed. The Chancellor apparently gave no consideration to the last quoted phrase, “ unless such contract is superseded by another contract between the parties [Emphasis supplied.] ” We think the court erred in reaching its determination, and this is true whether the provisions (listed in the Administrative Policy Handbook) under which Mrs. Lynch was. granted leave are held to be a new contract, or whether such provisions are considered a part of appellee’s 1964-65 teaching contract, entered into between the board and Mrs. Lynch on May 18, 1964. It may be that the italicized phrase primarily has reference to a new teaching contract (for the ensuing year), but, unquestionably, the parties here did enter into a new agreement, whatever it may be called. The Chancellor adopted the theory, here argued by appellee, that Mrs. Lynch never lost her standing as a regular teacher, but, under any theory, it is evident that her status as a teacher had changed, for she was not teaching at the end of the school year,, and regular teachers with contracts do teach until the school year has ended. We think the provisions of the statute, relied on by the Chancellor, can only have reference to those teachers who have fulfilled their contracts, and who are thus eligible to be “carried over” to another school year. Mrs. Lynch, of course, did not comply with her contract, though such non-compliance was through no fault of her own.

However, even if we should consider that the taking of leave was not accomplished under a new contract, it would still appear that she violated the terms, of her own teaching contract. This contract, inter alia, states:

u* * * that the teacher will conform to all the requirements, rules and regulations that the board has adopted or may hereafter adopt.”

The provisions under Chapter 5 at issue in this litigation are included in the official publication of the board of directors of the Special School District of Fort Smith, and were expressly included as a part of ap-pellee’s teaching contract. So — Mrs. Lynch did not comply with the requirement of notifying the superintendent of her intention to return to active status, whether that requirement be considered as necessitated under a new agreement (under which she was granted leave) — or under her teaching contract.

The doctrine of equitable estoppel also precludes Mrs. Lynch from recovery against the school board. In Williams Manufacturing Company v. Strasberg, 229 Ark. 321, 314 S. W. 2d 500, we said:

“* # * One cannot ‘have his cake and eat it too.’ He cannot accept benefits under a contract, and at the same time, avoid his obligations under such agreement. Appellee received a substantial benefit from the shipment of fall shoes, and having accepted that benefit, he cannot refuse to compensate the company because of their alleged breach.”

Here, Mrs. Lynch received and accepted a valuable benefit from the school board, one incidentally that the board was not statutorily required to give. Having accepted the leave benefits as provided in the Administrative Policy Handbook, she cannot now be heard to say that the requirements for a return to active status are meaningless and without force or validity.

It might also be mentioned that there was. no guarantee of reemployment, even if Mrs. Lynch had complied with all prerequisites, for the agreement permitting leave clearly states that reemployment is subject to a vacancy, “which, in the judgment of the Superintendent of Schools, the returning employee is qualified to fill.”

Since, admittedly, the written notice signifying her intention to return was not given, and finding no evidence that would operate as a waiver of the requirement of written notice, it actually becomes unnecessary to discuss the question of appellee’s failure to comply with the requirements of the Teacher Retirement System for removal from the disability retirement roll. Of course, a school board would not knowingly employ a teacher who might not be physically able to carry out the duties of the position, and the testimony reflects that, commencing with the 1961-62 school year, Mrs. Lynch had been absent quite a bit. Appellee strongly argues that the requirements of the rule relative to removal from the disability roll were waived by the conduct of the parties, but, as stated, because the failure of appellee to give the notice, heretofore considered, is fatal to her eause of action, further discussion could only be in the nature of dictum.

Reversed.

BrowN and Foglemajst, JJ., concur.

JohN A. FoglbmaN, Justice,

concurring. I concur in the result, but I would reverse and dismiss for want of jurisdiction. The chancery court is totally devoid of jurisdiction to issue a writ of mandamus, which appellee admitted was the only remedy sought. I am not unmindful of Ark. Stat. Ann. § 33-101 (Repl. 1962) which is § 1 of Act 54 of 1939, but it is patently unconstitutional. It violates Article 7, §§ 11 and 15. The former provides that the circuit court shall have exclusive jurisdiction of all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other court provided for by the Constitution. A more apt example of a legislative attempt to extend or enlarge the jurisdiction of courts of equity could not be found.

That the writ of mandamus is a common-law writ and within the jurisdiction of the circuit court only should be without argument, being a remedy at law. 34 Am. Jur. 810, Mandamus, § 4. It is a common-law writ as distinguished from an equitable one and was unknown to the equity practice. 34 Am. Jur. 812, Mandamus, § 6 ; 55 C. J. S. 47, Mandamus, § 17b. In sustaining the jurisdiction of a circuit court, this court said that mandamus is essentially a proceeding at law. Faulkner Lake Drainage Dist. v. Williams, 169 Ark. 592, 276 S. W. 604. It is designed for the enforcement of legal rights. Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. 2d 427 ; Bingham v. McGehee, 185 Ark. 707, 49 S. W. 2d 358 ; Barney v. City of Texarkana, 185 Ark. 1123, 51 S. W. 2d 509.

The legislature is without authority to give the chancery courts any jurisdiction they eould not exercise at the time of the adoption of the Constitution of 1874. It can vest chancery courts, only with jurisdiction in matters of equity. German Nat’l Bank v. Moore, 116 Ark. 490, 173 S. W. 401 ; Wilson v. Lucas, 185 Ark. 183, 47 S. W. 2d 8 ; Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543. Their jurisdiction is fixed and permanent, and cannot be enlarged or abridged. Any law passed for the purpose of divesting, enlarging, diminishing, abridging or changing it is unconstitutional. Hester v. Bourland, 80 Ark. 145, 95 S. W. 992 ; Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579. In Patterson v. McKay, supra, this court said it did not offer a more extended discussion of this matter for the reason that it thought the principle must be universally recognized.

This court has held other legislative acts unconstitutional for this, reason. Among them are:

An act providing for contest of primary elections in the chancery court was held unconstitutional. Hester v. Bourland, 80 Ark. 145, 95 S. W. 992.

An act purporting to give the chancery court jurisdiction to oust an incumbent officeholder for corruption in office. Gladish v. Lovewell, 95 Ark. 618, 130 S. W. 579.

In matters of which-it has no jurisdiction, the judgments of a chancery court are void. Raney v. Hinkle, 80 Ark. 617, 95 S. W. 993 ; Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002. The disregard of such void judgments would not constitute contempt. Miller v. Tatum, supra. They would not be res judicata in any future action. Weathers v. City of Springdale, 239 Ark. 535, 390 S. W. 2d 125. A fundamental want of judicial power cannot be supplied bv acquiescence of the parties. Sheffield v. Heslep, 206 Ark. 605, 177 S. W. 2d 412 ; O’Dell v. Newton, 224 Ark. 541, 275 S. W. 2d 453 ; Catlett v. The Republican Party of Arkansas, 242 Ark. 283, 413 S. W. 2d 657. The lack of jurisdiction of the subject matter cannot be waived by any act of the parties. Sugar Grove School Dist. No. 19 v. Booneville Special School Dist. No. 65, 208 Ark. 722, 187 S. W. 2d 339. Consent of the parties cannot possibly confer jurisdiction of the subject matter. Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999 ; Weathers v. City of Springdale, supra.

Whether the question is raised by the parties or not, it is not only the power but the duty of a court to determine whether it has jurisdiction of the subject matter. 20 Am. Jur. 2d 453, Courts, § 92 ; 21 C. J. S. 175, Courts, § 114.

I would dismiss, rather than remand with directions to transfer to a court of law, because I think appellee has sought to have the court control the discretion of the Superintendent of Schools and the Directors of the School District. The appellee had no right to a leave of absence under her contract, nor do there appear to be any statutory provisions governing the same. Provision for such leaves, then, becomes a discretionary matter with the school board. They exercised this discretion by providing administrative policies in connection therewith. While these regulations provide for re-employment of a teacher granted leave thereunder, after proper notice by the teacher, there is the proviso that there must be a vacancy which, in the judgment of the superintendent of schools, the returning employee is qualified to fill. Certainly the physical ability of appellee to perform -was an element to be considered by the superintendent and I feel that the evidence is clear that by the time this ■was established (assuming that it was established) the superintendent did not feel, in his judgment, that ap-pellee was qualified to fill any vacancy then existing.

It is elementary that mandamus will not lie to compel performance of an act that is discretionary. Smith v. Sullivan, 190 Ark. 859, 81 S. W. 2d 922 ; Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548 ; Hardin v. Cassinelli, 204 Ark. 1016, 166 S. W. 2d 258 ; State ex rel Pilkinton v. Bush, 211 Ark. 28, 198 S. W. 2d 1004 ; Village Creek Drainage Dist. of Lawrence Co. v. Ivie, 168 Ark. 523, 271 S. W. 4. It will only lie to compel performance of a purely ministerial act or to require, but not control, the exercise of discretion. Arkansas State Highway Comm. v. Mabry, 229 Ark. 261, 315 S. W. 2d 900 ; Dotson v. Ritchie, 211 Ark. 789, 149 S. W. 2d 603 ; Satterfield v. Fewell, 202 Ark. 67, 202 S. W. 2d 949. It cannot be used to correct an erroneous decision already made by an officer or tribunal. Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548 ; Mance v. Mundt, 199 Ark. 729, 135 S. W. 2d 848 ; Mobley v. Conway County Court, 236 Ark. 163, 365 S. W. 2d 122 ; Dotson v. Ritchie, supra ; State ex rel Latta v. City of Marianna, 183 Ark. 927, 39 S. W. 2d 301. It will not be granted to review the exercise of discretion by an officer or board. Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S. W. 2d 10.

I also think that mandamus would not lie because it is essential to the issuance of the writ that the legal right of the petitioner to the performance of the act be clear, undoubted and unequivocal, so as not to admit of any reasonable controversy. Naylor v. Goza, 232 Ark. 515, 338 S. W. 2d 923. The petitioner failed to make such a showing as to invoke this writ, regardless of whether she was entitled to other relief or not.

I am authorized to state that Brown, J., joins in this concurring opinion.

       It is not definite, from the evidence, whether this was late May or early June.

       Mrs. Lynch testified that Corbin told her at the time of her visit in May that shei would have to have a doctor’s certificate, but that he would have Dr. Bost, a member of the school board, contact her doctor (Dr. Allen) as a matter of determining Allen’s views relative to her health. Corbin testified that this was done, but that Bost subsequently indicated that he did not think Mrs. Lynch was ready to go back to teaching.

       We do not discuss the question of the jurisdiction of the' Chancery Court to issue Writs of Mandamus, since the Chancellor ignored this prayer in the complaint, and based the relief granted on the theory that appellants had breached the contract with ap-pellee.

       Her written notice of August 9 was accompanied by a statement from Dr. Allen. Even then, his statement is not absolute: “It is my professional opinion that she will be able [Emphasis supplied] to resume teaching school in the fall semester of 1965."

       According1 to the evidence, she only taught 39% days in the 1964-65 school term, was absent 30 days during the 1963-64 school year, 23 days during the 1962-63 school year, and 22 days during the 1961-62 school year.

       According to Hoyt R. Pyle, Executive Director of the Teacher Retirement System, a person desiring to he removed from the disability payroll must first request consideration of her case by the retirement system’s medical board, and must present a properly executed medical report from her doctor, which states that she has fully recovered, and is physically able to return to teaching. The board would then be in a position to act on the request.


author: George Rose Smith, Justice. JohN A. Foglemaet] Justice,

text:
    A. L. Sosebee et al v. Raymond T. Boswell, Trustee for Blaylock Investment Corporation
    5-4142
    414 S. W. 2d 380
    Opinion delivered April 24, 1967
    [Hehearing denied May 29, 1967.]

      Young & Rostech; By O. M. Yotmg and Smith, Williams, Friday & Bowen; By George Pihe Jr., for appellant.

      Griffin Smith, for appellee.
   George Rose Smith, Justice.

This is a foreclosure suit brought by the appellee Blaylock Investment Company to enforce a deed of trust securing a loan made by Blaylock to the three appellants, Dr. and Mrs.. Sosebee and Valley View Developers, Inc. The chancellor rejected the borrowers ’ plea of usury and entered a decree of foreclosure. Inasmuch as we find that the testimony of Blaylock’s own witnesses, establishes a clear-cut case of usury we need discuss only that issue.

For several years, before the loan was made in 1965 the Sosebees, acting through the Valley View corporation, had been attempting to develop a residential addition to North Little Rock. The venture was in serious financial trouble, with materialmen and other creditors pressing their claims. The Sosebees applied to Blaylock Investment 'Company, a loan broker, for a loan of $118,-000, of which $78,700 was to be used to pay creditors and the remaining $39,300 (which was never actually advanced) to develop and sell 51 lots in the subdivision. Blaylock refused to lend any money to Sosebee for construction purposes, because it believed him to be an incompetent builder. It did agree to finance the development and sale of the 51 lots, which it considered to have a value of about $223,000. The parties expected all the lots to be sold during the three-year life of the loan.

William G-. Cooksey, Blaylock’s Arkansas manager, testified that the company did not think the interest upon a subdivision loan such as this one to be a great enough return for the risk involved. Moreover, Blaylock itself did not make long-term investments in such loans: “All of our loans wind up with institutional investors.” Hence, before closing the Sosebee loan, Blaylock sought (a) an institutional investor and (b) an opportunity to make for itself a profit in addition to whatever interest might be involved.

Both objectives were accomplished. Blaylock obtained a firm written commitment from Standard Life & Accident Insurance Company by which Standard agreed to purchase the $118,000 loan. Standard was to receive a 1% commitment fee from the borrowers, and Blaylock was to receive a 1% service charge from them —both items, admittedly being chargeable as interest. The loan, bearing interest at 6% per annum, was payable over a period of three years in three equal principal installments.

Blaylock also procured from the Sosebees a side contract (called an Escrow Agreement) by which Blay-lock expected to increase its profit. The pivotal question in the case is whether that additional profit must be treated as interest. If so, the loan was usurious; otherwise not.

The Escrow Agreement was in the form of a letter, addressed to Blaylock, which the Sosebees and Valley View were required to sign. The agreement is so hard to summarize accurately that we quote its essential provisions:

“In consideration of your . . . procuring for the undersigned the sum of $118,000.00 in development financing and your undertaking to provide permanent FHA and/or VA financing for residences to be constructed upon the captioned lots, which undertaking shall include your finding the necessary funds, processing the applications for FHA and/or VA loan, and when approved by The FHA and/or VA and your investors the closing of such mortgage loans, the undersigned [do] hereby agree ... to place in escrow with you at the time each lot . . . is released from the blanket $118,000.00 mortgage covering such lot, the sum of $150.00 for each such lot. If the builder of a residence upon the respective lot closes his permanent FHA and/or VA financing upon said lot through your company, after approval of the property and borrower by the investor and the FHA and/or VA, the said sum of $150.00 shall be refunded to the undersigned when such respective loan is closed. It is understood and agreed that you shall make such mortgage loan after approval of the borrower and the property for such loan by the FHA and/or VA and your investor, at yonr then going discount rate, but not to exceed the discount and other charges, then in force and charged by Federal National Mortgage Association in the purchase of such mortgage notes.
“As to the monies, escrowed attributable to any lot, if permanent financing relating to such is not closed through your company within three (3) years from date hereof, such monies, are to be forfeited to you as liquidated damages, processing fees, and refund of legal charges and expenses incurred and to be incurred by you. This forfeiture to be complete without notice or the necessity of demand by you; upon failure of the events hereinabove set forth to occur within the time limit set forth. The said forfeited liquidated damages to be applied and disbursed by you without accounting to the undersigned in any manner ... in your "uncontrolled discretion, it being agreed, however, that upon the happening of either event the undersigned shall have no further or additional liability arising out of this agreement. The closing of a loan through the facilities of another lender, except for short term construction loans, shall be cause for immediate forfeiture of the fee applicable to a given lot without regard to the time element specified above.
“Should, on any date prior to maturity, the development loan be prepaid in a lump sum payment then the undersigned [do] hereby agree ... to place in escrow with you at the time the mortgage is retired in full the sum of $150.00 for each individual lot covered by the mortgage on the date of prepayment. The final disposition of these escrowed funds shall be made in exact accord with the provisions applicable to releases, covering individual lots.”

This Escrow Agreement is to be tested by two well-settled principles: First, any profit exacted by the lender must be treated as interest if it depends upon a con-tingeney not within the control of the debtor. As we said in Hollan v. American Bank of Com. & Tr. Co., 159 Ark. 141, 252 S. W. 359 (1923): “When the lender stipulates for the absolute repayment of principal and interest at the highest legal rate, and for a further profit payable upon a contingency not under the control of the borrower, the contract is usurious. Furthermore, even the chance [our italics] of the lender’s, receiving excessive profit under the transaction or arrangement is more than the lender is legally entitled to require. * * * A fortiori is the contract usurious when the contingency under which the excessive interest is payable is under the control of the lender.”

Secondly, the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business. Such outlays are fundamentally for the lender’s benefit and cannot, by whatever device, be shouldered off upon the borrower. On this point our recent decisions are unequivocal. Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307 (1952) ; Winston v. Personal Finance Co., 220 Ark. 580, 249 S. W. 2d 315 (1952).

The Escrow Agreement manifestly flouts both principles. These borrowers had not even a semblance of control over the contingency that would avoid the forfeiture of each $150 deposit. On this point the appellees make this assertion in their brief. “It should be pointed out here that all Sosebee had to do to avoid forfeiture of the $150 per lot was to send the customers to Blay-lock and have Blaylock make them a loan.” The short answer to this twofold suggestion is that both possibilities were patently beyond Sosebee’s control. Sosebee’s responsibility to the moneylenders was that of selling lots. It did not lie within his power to compel the purchaser of a lot to apply to Blaylock for a loan.

Again, even if the purchaser did elect to seek a Blaylock loan Sosebee had no voice in the lender’s decision to approve or disapprove the application. In the first paragraph we have quoted from the Escrow Agreement it is stated no fewer than three times that each loan must he approved by Blaylock’s investor. At the oral argument counsel for the appellees insisted that Blaylock was contractually bound to make a loan to any purchaser whose credit rating was acceptable. True, but all that assertion really means is that Blaylock promised to do business as usual, making only such loans as any other similar lending agency would have been equally glad to make. It is significant that Blaylock offered ho discount, financial advantage, or other inducement for its supposedly valuable promise to provide long-term financing for those who bought lots in Valley View Subdivision.

The Escrow Agreement likewise runs counter to the rule that the lender’s overhead expenses cannot be foisted off on the borrower as something other than interest on the loan. The contract, quoted above, declares that the escrow deposits are to be forfeited as “liquidated damages, processing fees, and refund of legal charges and expenses incurred and to be incurred” by Blaylock. Blaylock’s manager, Cooksey, came up with this lame explanation: “The $150.00 is a fee that we have determined from past experience that would cover our expense and justify us. committing ourselves for a period of three years. . . We, of course, have to maintain our office and our staff. We have to contact banks for verification of applicants’ deposits, many cases the employers.” In short, Blaylock had overhead expenses that stemmed not from Sosebee’s duty to sell lots but from its. own business of lending money.

Especially pertinent to the issue of usury is the third paragraph that we have quoted from the agreement. Here Blaylock guaranteed to itself its profit of $150 a lot even if the loan made by its investor should be prepaid in full before any lots were sold and thus before Blaylock had incurred any risk or any expense. If tlie prepayment were accomplished by a refinancing of the debt, the new mortgagee, according to the appel-lees’ reasoning, could have legally exacted from Sosebee precisely the same Escrow Agreement that Blaylock required. In that event Sosebee would have been unconditionally bound to pay $150 a lot to one lender or the other, and often to both, since it would not be possible for both lenders to finance the improvement of a particular lot. Similarly, if all the lots were bought by a single purchaser who paid cash for the property, thus liquidating the Sosebee loan, Blaylock would pocket $150 a lot without having lifted a finger to earn it.

The appellees argue in their brief that the transaction was shielded from usury by the forfeiture’s being contingent. They say: “Forfeiture was contingent on non-compliance [on Sosebee’s part]. The presence of a contingency eliminates any aspect of usury. Dunbar v. State Building & Loan, 171 Ark. 232, 284 S. W. 2d [1926].” This statement is much too broad. In the first place, the insertion of the contingency itself may be a' cloak for usury, as in Doyle v. American Loan Co., 185 Ark. 233, 46 S. W. 2d 803 (1932). Secondly, the Dunbar case, relied on by these appellees, involved a loan made by a bona fide building and loan association. "We distinguished such transactions, in O’Brien v. Atlas Finance Co., 225 Ark. 176, 264 S. W. 2d 839 (1954), where we bottomed our decision upon an observation that applies equally well to the Escrow Agreement now before us: “If this transaction is not usurious, then any transaction can be dressed up so as not to. constitute usury although it would be clear that it was merely a scheme to evade the usury laws.”

The decree must be reversed and the cause dismissed.

Habéis, O. J., and Fogleman, J., dissent.

JohN A. Foglemaet] Justice,

dissenting. This appeal comes from a decision of the chancellor that the transaction did not constitute usury. We must, in order to reverse, say that his findings of fact were clearly against the preponderance of the evidence, or that the evidence viewed in the light most favorable to appellee, shows that the transaction was usurious as a matter of law. I do not agree that either situation prevails.

This court has not abrogated the rule that the burden of proof is upon the party who pleads usury to show clearly that the transaction was usurious. Wallace v. Hamilton, 238 Ark. 406, 382 S. W. 2d 363 ; Smith v. Mack, 105 Ark. 653, 151 S. W. 431 ; Jones v. Phillipe, 135 Ark. 578, 206 S. W. 40 ; Briant v. Carl Lee Bros., 158 Ark. 62, 249 S. W. 577. The defense of usury against payment of a prima facie obligation must be established by clear and convincing evidence and not by mere preponderance. Hollan v. American Bank of Commerce & Trust Co., 159 Ark. 141, 252 S. W. 359 ; Baxter v. Jackson, 193 Ark. 996, 104 S. W. 2d 202 ; Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009. This rule has been modified only in cases where the lender includes some hidden and unitemized charge in the transaction. The burden is upon the lender to satisfactorily explain the hidden item. Universal CIT Corporation v. Lackey, 228 Ark. 101, 305 S. W. 2d 858. Usury will not be presumed, imputed or inferred when the opposite conclusion can reasonably be reached. Cammack v. Runyan Creamery, 175 Ark. 601, 299 S. W. 1023 ; Hill v. Jacobs, 187 Ark. 1162, 60 S. W. 2d 564 ; Brown v. Fretz, 189 Ark. 411, 72 S. W. 2d 765 ; Brittain v. McKim, 204 Ark. 647, 164 S. W. 2d 435.

There is no hidden or unitemized charge in this case. All dealings were open and above board. Dr. Sosebee knew exactly what the transaction was. However reluctant he may have been to make the agreement, he was not overreached in the dealings. A collateral contract required by a lender entered into contemporaneously with a contract for lending and borrowing of money where the collateral agreement is itself lawful and made in good faith, does not invalidate a contract for loan of money as usurious, although the lender might gain some advantage or the effect might be to exact more from borrower than would accrue to lender from a legal rate of interest. Hogan v. Thompson, 186 Ark. 497, 54 S. W. 2d 303 ; Leavitt v. Marathon Oil Co., 186 Ark. 1077, 57 S. W. 2d 814 ; Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009. The position which a court of equity should take is well stated in the affirmance of a decree finding that a transaction was in good faith and not usurious in Johnson v. Chicot Bank & Trust Co., 128 Ark. 640, 194 S. W. 29 :

“* * * Even if it be found that Simms took advantage of the necessities of the Johnsons to drive a hard bargain, and purchased the land at less than its true value, it does not necessarily follow that the transaction was usurious, but on the other hand, if the testimony showed that the conveyance of the land at a grossly inadequate price was merely a scheme to disguise an usurious transaction, then a court of equity should look through the form of the transaction to the substance and declare it to be vo'id.”

Unquestionably this court has always scrutinized suspicious transactions that might constitute covers to conceal usurious interest in order to determine the true nature of the transaction. Hartz v. Wilson, 205 Ark. 965, 171 S. W. 2d 956. This court has been most reluctant in these cases to overturn decisions of chancellors involving determinations whether the lender acted in good faith or the transaction was a cloak for usury as pointed out in Griffin v. Murdock Acceptance Corp., 227 Ark. 1018, 303 S. W. 2d 242.

A contract requiring payment for services rendered and not exclusively for money advanced is not usurious. Ayers & Graves v. Ellis, 185 Ark. 818, 49 S. W. 2d 1956. A contract for payment of a commission of 1%% of the amount of notes, and invoices given a bank against which the hank advanced money to a mill company at 10% interest by credit to its account was held to he for compensation for services and trouble in keeping the account in this, manner for the mill company and not to render the loan usurious. Citizens Bank v. Murphy, 83 Ark. 31, 102 S. W. 697.

Notes and mortgage given to cover money and merchandise to be furnished by payee with interest at 10% per annum, was not rendered usurious by agreement that p'ayee would charge a commission of 10% for the first year and 20% for the second year on the price paid by him to jobbers and wholesalers on merchandise furnished the maker by. him, if made in good faith for securing a profit on the goods and not to evade the usury laws. Briggs v. Steel, 91 Ark. 458, 121 S. W. 754.

In Leavitt v. Marathon Oil Company, 186 Ark. 1077, 57 S. W. 2d 814, the collateral contract required was a lease of a filling station, bulk sales station and equipment worth $7,500.00 by borrower to lender for $1.00 per month. The transaction was held not usurious in the absence of a corrupt agreement between the parties making the lease a device or cloak for usury which the lender intended to exact and the borrower to pay.

An agreement between a cotton factor and cotton planters by which the former was to loan substantial sums of money at 10% per annum to the latter to enable them to make a cotton crop and the latter were to ship at least 200 bales of cotton which factor was to undertake to sell or to pay $1.25 per bale liquidated damages for each bale less than the required number was held not to make the transaction usurious. Blackburn v. Hayes, 59 Ark. 366, 27 S. W. 240. Such an arrangement was held to he valid even where a contention was made that the cotton was not being sold at the highest market price. Scott v. McCraw, Perkins & Webber Co., 119 Ark. 133, 177 S. W. 901. The same result was reached when the agreement required a bank to ship one* bale for each $10.00. advanced. Allen-West Comm. Co. v. Peoples Bank, 74 Ark. 41, 84 S. W. 1041.

An agreement requiring that straitened rice farmer pay his lender a salary for assistance and advice about cultivating and harvesting a rice crop for which money was loaned was held in good faith and valid. Cain v. Stacy, 146 Ark. 55, 225 S. W. 18.

Appellee is trustee in a deed of trust to secure the payment of an indebtedness of appellants to Blaylock Investment Corporation, a firm of mortgage bankers, approached by Dr. Sosebee on behalf of appellants. As mortgage banker, Blaylock is not really a money lender. Its normal procedure is to approach an institutional investor on a proposed loan for a commitment from the investor to purchase the loan at some future date. Blaylock then loans the money to the borrower on the terms agreed upon for the commitment in order to expedite the deal. In this case a firm commitment was obtained from Standard Life and Accident Insurance Company to purchase the loan on or before May 15, 1966. The purpose of Blaylock in making this type of loan at all was in order to promote its usual business — that of handling loans on individual residences, just as the purpose of the cotton factors in the cases above cited was to promote their usual business of selling cotton. Blaylock would not have made any subdivision loan at any interest rate if they were not going to get at least an opportunity to get the home owner loans. They sought and obtained an advantageous agreement insuring solicitation on their behalf by appellants and guaranteeing themselves an entree to prospective lot purchasers for the placing of individual home loans. In order to insure performance, they provided for liquidated damages, just as the cotton factors did. They did not require the payment of this amount until a lot was sold and the liquidated damages were to he returned to appellants if Blaylock actually handled the permanent "financing for a residence constructed on the particular lot. Blay-lock’s undertaking was to provide FHA or YA financing by finding the necessary funds, processing the applications and closing the loans approved by FHA and YA. Such loans were to he at the going discount rate, not to exceed discount rates and charges then charged by Federal National Mortgage Association in the purchase of notes. The only requirement was that the borrower and property meet the requirements for the loan by the FHA or VA and the investor whose funds were obtained by Blaylock. This is a service which requires some care and skill and knowledge of the money market and available investors. It would definitely be an advantage to lot purchasers, most of whom would not have the slightest idea about obtaining this type of financing. It should be a matter of common knowledge that there are times when our economy is such that loans of this type become difficult to obtain. A guaranteed source of this financing would naturally promote the sale of lots, and each purchaser would be informed of Blaylock’s undertaking. If only 14 of 51 lot purchasers obtained their loans through Blaylock, the transaction could not possibly, under any construction, result in the payment by appellants under both the loan and the collateral agreement of an amount in excess of 10% per annum on the loan.

I submit that the only fact question for the court below was whether or not the collateral agreement was entered into in good faith. No one contends that it is in and of itself illegal. I do hot see how it can be said that the*chancellor’s finding is clearly against the preponderance of the evidence. I also submit that the agreement cgnnot be considered usurious because of the fact that it is not obvious or apparent that more than 10% of the amount of the loan would be paid as interest on the note and liquidated damages, under the contract. In this I do not agree with the majority’s application of sqme of our earlier decisions.

I contend that the holding in Dunbar v. State Building & Loan Association, 171 Ark. 232, 284 S. W. 2, is applicable and requires a holding for appellant.

.“The test laid down by this court to determine whether a loan of money by a building and loan association to a stockholder therein is usurious and void is to ascertain whether the contract is an unconditional agreement to pay more than 10 per cent per annum for the use of money, or whether an agreement to pay more is dependent upon a contingency. Before the agreement can be characterized as usurious, a contract to pay more than 10 per cent per annum for the use of money by a stockholder therein must depend upon the happening of a certain event. If dependent upon a contingency, the agreement is not such a usurious contract as is inhibited by our Constitution and law. If there is an element of uncertainty and hazard in the contract relative to the amount of interest to be paid, this contingency ex-eludes the idea of usury in the agreement.” [Emphasis. mine]

Here is the application there made:

“In the contract before us it is clearly provided that Annie Spears Dunbar should receive, in the settlement of her loan, her full share of the profits which the association might earn during the period her stock was maturing. Although she was required to pay a small amount as. interest in excess of 10 per cent per annum, the interest payments, had she made them, would have automatically been reduced by earnings of the association upon her monthly payments in case of a full performance of the contract on her part. Just what interest she might have paid under the contract had she matured her stock and liquidated her loan by a surrender thereof cannot- be computed, as the time her monthly payments were to continue was dependent upon the maturity - of her stock through the payment of dues and the net amount earned on her monthly payments. If loaned out immediately and continuously, the monthly interest payments might have been compounded for her benefit many times. This element of hazard or contingency in the contract eliminated any usury from the agreement.” [Emphasis mine]

The contingency there was certainly not under the control of the borrower. This rule is not altered in the slightest by the holding in Doyle v. American Loan Co., 185 Ark. 233, 46 S. W. 2d 803. To the contrary, it is recited as a well settled rule. It was said to be equally well settled that a merely colorable contingency or hazard would not prevent excessive interest charges from being usurious. There the loan was for six months and the maximum 10% was withheld. The contingency was that borrower would not have to pay if he died or suffered permanent and total disability, loss of eyesight, loss of a hand or foot, or damage of more than 50% to his household furniture. The court held this to be a cloak or device for usury because the lender was not an insurance compcmy. A more obvious device could not be found. Had the lender been an authorized insurer, the transaction would not have been usurious. Blaylock is engaged only in the business of rendering the services called for by the escrow agreement in this case.

I cannot agree that the decision in O’Brien v. Atlas Finance Company, 223 Ark. 176, 264 S. W. 2d 839, limited legal, bona fide collateral agreements to building and loan associations. Such a limitation would be unconscionably, and probably unconstitutionally, discriminatory. There the borrower was actually paying his loan in monthly installments by paying on an investment certificate issued by lender at 2% interest. No such transaction is involved here. This transaction is much more comparable to the building and loan association practice than to the investment certificate of certain finance companies.

Neither can I agree with the application of Hollan v American Bonk of Comm. & Trust Co., 159 Ark. 141, 252 S. W. 359, by the majority.'The language quoted therefrom in its opinion is an excerpt from a textbook and all except the last sentence is dictum. The last sentence was correctly applied, but the earlier part is contrary not only to earlier cases, but to Dunbar v. State Building & Loan Association, 171 Ark. 232, 284 S. W. 2, a case, decided three years later. I submit that the actual holding in the Hollan case is consistent with that of the Dimbar case. Hollan was an, automobile dealer. The bank contended that a note bearing 8% interest payable thirty days after date was not rendered usurious because of a 1% brokerage charged, since it was contemplated that the maturity would be extended if the borrower had not sold enough ears to pay the note. The court held that the clear preponderance of the evidence was against the bank’s contention. The court said that the payment of the 1% brokerage was not based upon a. contingency, having been taken out when the loan was made. It added that the time for payment was not within the option or control of the borrower but that extensions and renewals were wholly optional with the lender and a matter of its grace and favor. The language of a textwriter should not supersede the decisions of our own court. Dr. Sosebee and Valley View certainly could not force any purchaser to go to Blaylock but there certainly would have been an excellent opportunity for solicitation by them.' On the other hand, Blaylock could not turn down any borrower who could meet reasonable credit and security requirements. The contingency, then, was not subject to control by the lender, and it seems to me that appellants did have some control over it.

The vice president of Blaylock explained how the amount of $150.00 per lot was selected. It is an amount determined from past experience which would cover their expense in committing themselves to obtain or maintain institutional investors who would accept the permanent residential loans, even in tight money markets, over a period of three years and to process loan applications by unsuccessful applicants for which Blaylock would not otherwise he compensated. This is something different from a service charge for overhead expense on a loan actually made as was the situation in Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307 and Winston v. Personal Finance Co., 220 Ark. 580, 249 S. W. 2d 315. Blaylock did not include any of its overhead expense connected with this loan in arriving at the $150 figure, nor does it seek to require appellant to bear that burden.

How can we say that there is a clear or even fair preponderance of evidence that the conclusion reached by the chancellor is one that could not reasonably be reached?

Possible usury based upon a collateral contract not consummated and upon which suit was not brought is not a defense to an action for the amount of money loaned and for foreclosure of the mortgage securing it. Mitchell v. Day, 193 Ark. 942, 104 S. W. 2d 198. This is another reason why the chancellor should be affirmed, as this case is strikingly similar. In the Mitchell case, the lender agreed to loan $2,000.00 at 8% upon the security of a mortgage on certain land, if borrower would deed him another tract of land. Lender advanced $983.63, but refused to make further advances because of defects in borrower’s title to the mortgaged property and returned the deed to the other property. Thereafter, upon borrower’s ultimate refusal to perform, lender brought suit on the note and to foreclose the mortgage. Here, appellee seeks only, to have judgment for the amounts actually advanced and no recovery is sought on the collateral agreement. The contract here was never consummated in the sense of the above holding. Appellant wholly failed to furnish the required payment and performance bond for the work of certain contractors worded to protect the lender’s priority and to insure that necessary development of the lots be accomplished. All parties knew that this development was necessary in order for appellants to be able to retire the loan. Only three.lots were sold before acceleration of the debt, so only three deposits against liquidated damages were made. Thus the contract was not consummated. While I find no definition of the word ‘‘consummate” in the Arkansas cases, the facts in the Mitchell case clearly indicate that court had in mind the definition given in Black’s Law Dictionary and supported by most of the authorities listed under the definition in Words and Phrases. It is:

“To finish by completing what was intended; bring or carry to utmost point or degree; carry or bring- to completion; finish; perfect; fulfill; achieve.”

To consummate a contract is to carry it to its ultimate completion. Schulman v. City of New York, 178 Misc. 593, 35 NYS 2d 100.

Since the majority do not reach the question of propriety of acceleration of the debt, I will not discuss it at length. It is sufficient to say that both the failure to furnish payment and performance bond protecting the lender’s priority and insuring the development of the property constituting the security as. required by the security instrument and the failure to pay interest when due have adequate evidentiary support.

I would affirm the decree of the trial court.

I am authorized to state that Harris, C. J., joins in this dissent.

       am not unmindful of Dickinson-Reed-Randerson Co. v. Stroupe, 169 Ark. 277, 275 S. W. 520 ; Tisdale v. Tankersley, 192 Ark. 70, 90 S. W. 2d 225 ; and Tisdale v. Maness, 192 Ark. 465, 92 S. W. 2d 380, wherein it was held that a fair preponderance of the evidence was all that was necessary. Later cases have restated the “clear and convincing rule”. All three of these easeja affirmed the trial court and in each of the first two, evidence that seems to have shown clearly that there was usury was presented. The third might actually have applied the “mere preponderance” rule hut cited no authority.

       Blayloek also placed these loans with institutional investors and received a fee from them for doing the collecting and bookkeeping, amounting to from one-fourth to one-half of one per cent of the interest paid on the loan. They would also receive a fee of 1% of the loan at the time it was placed.

       For some reason appellee had five houses on other property for sale which he “could not close” and on which he unsuccessfully tried to borrow money from Blaylock. Blaylock’s vice president said that the money market as to government insured loans' had been in a state of turmoil for about six months.