author: George Rose Smith, J.

text:
    Hambrick v. Peoples Mercantile & Implement Co.
    5-1528
    311 S. W. 2d 785
    Opinion delivered April 7, 1958.

      Harold Sharpe, for appellant.

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

This is an action by the ap-pellee to recover $2,875.25 assertedly due under a conditional sales contract by which the appellee sold a used cotton-picking machine to the two appellants. The defendants admit the execution of the contract, hut they ely upon a breach of warranty as a basis for denying lability and for recovering their down payment. The ■rial court, having refused to permit the defendants to prove either an express or an implied warranty, directed a verdict for.the plaintiff.

With respect to the express warranty the court’s rejection of the proffered proof was correct. The defendants offered to show that the seller orally warranted the condition of the machine. The contract of sale, however, is in writing and recites that it constitutes the entire agreement between the parties. Parol evidence was therefore not admissible to prove the giving of an oral warranty. Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S. W. 553.

As to the implied warranty, it was formerly our rule that there is no implied warranty in the sale of secondhand goods. Brierton v. Anderson, 180 Ark. 12, 20 S. W. 2d 313. But the Uniform Sales Act, which our legislature enacted in 1941, provides with reference to goods in general that when the buyer makes known the purpose for which the goods are required and relies on the seller’s skill or judgment, there is an implied warranty that the goods shall be reasonably fit for the purpose. Ark. Stats. 1947, § 68-1415. Since this provision makes no exception for second-hand chattels it is properly construed to import a warranty when such goods are sold in the specified circumstances. Drumar Min. Co. v. Morris Ravine Min. Co., 33 Calif. App. 2d 492, 92 P. 2d 424; Moss v. Yount, 296 Ky. 415, 177 S. W. 2d 372. Here the appellants offered to prove the surrounding conditions that give rise to the implied warranty.

The appellee does not seriously dispute the fact that the Sales Act permits a warranty to be implied in the sale of used goods, but it insists that this particular contract explicitly negatived the existence of an implied warranty. We have recently held that § 71 of the Sales Act, Ark. Stats., § 68-1471, allows the parties to waive the implied warranties that would otherwise be afforded by the statute. Moss v. Gardner, 228 Ark. 828, 310 S. W. 2d 491. There, however, the waiver was clearly expressed; here the decisive question is whether the contract actually contains a waiver.

"We do not think that this agreement can fairly he said to exclude the existence of an implied warranty. The contract was prepared upon a printed form which contains this statement on its face: “This Order . . . together with the Conditions of Sale and Warranty and Agreement printed on the reverse side hereof constitutes the entire agreement between us. ’ ’ The better view is that a declaration of this kind is not alone sufficient to negative those warranties that arise by implication of law rather than by express agreement. Liquid Carbonic Co. v. Coclin, 161 S. C. 40, 159 S. E. 461; cf. Kanaster v. Berry, 212 Ark. 430, 206 S. W. 2d 13. The asserted waiver must therefore be found elsewhere in the agreement.

The printed matter on the back of the contract is divided into two sections, the second of which is entitled “WARRANTY AND AGREEMENT.” The nine paragraphs under this heading are printed in small type and set forth in detail the warranties given for “each new John Deere machine” and the remedies available to the buyer. One of these paragraphs reads in part: “This printed warranty and agreement constitutes the only warranty given and is in lieu, of all other warranties, expressed or implied . . .” Below this section appears the capitalized statement: “THIS WARRANTY DOES NOT APPLY TO USED OR SECONDHAND GOODS.”

Thus the express warranties apply to new machinery only, they are in lieu of all other warranties, and they do not apply to used goods. It seems plain that if the express warranties do not apply to second-hand goods, then those goods are equally unaffected by the concurrent declaration that the express warranties replace all other warranties. In our opinion the entire warranty section of the agreement is lifted from the contract when second-hand merchandise is involved, and that is the view that has been taken elsewhere when the exact question has arisen. New Birdsall Co. v. Keys, 99 Mo. App. 458, 74 S. W. 12; Buffalo Pitts Co. v. Alderdice, (Tex. Civ. App.) 177 S. W. 1044. The appellee relies principally on the decision in Dollen & Sons v. Carl R. Miller Tractor Co., 214 Iowa 774, 241 N. W. 307, but there the contract stated pointedly: “No warranty on second-hand or rebuilt tractors.” The court held that this clause was a negation of all warranties, express or implied. In the case at bar the contract must be construed against the seller, who prepared it. It failed to insert a declaration that there should be no warranty of second-hand goods and instead contented itself with the statement that such goods should not carry the warranty applicable to new machines. We therefore conclude that the implied warranty which the appellants sought to prove was not excluded by the agreement.

Reversed and remanded for a new'1 trial.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    United Steelworkers of America v. Walden.
    5-1521
    311 S. W. 2d 787
    Opinion delivered April 7, 1958.

      Méhaffy, Smith & Williams, by William A. Eldredge, Jr., for appellant.

      McMath, Leathermcm & Woods, for appellee.
   Paul Ward, Associate Justice.

The principal question presented by this appeal is: Does the record contain sufficient competent evidence to support the finding of the Workmen’s Compensation Commission that appellee’s husband, Dan Ed Walden, met his death while in the course of his employment? It is contended by appellant that Walden’s death did not arise out of his employment, but we think the facts and circumstances of this case are such that, if the principal question is answered in the affirmative, this contention becomes untenable. Also, appellant makes the contention, that the evidence affirmatively shows Walden’s death did not arise out of or in the course of his employment, but we deem it unnecessary to discuss this point separately because all facts and circumstances tending to support it will be considered in connection with the principal question. The testimony is, for the most part, not in dispute.

The body of Dan Ed Walden, who was at the time of his death and for several years prior thereto an employee of the United Steelworkers of America, was found submerged in a water filled mine, the property of the Aluminum Company of America, on the afternoon of February 29, 1956. It is more or less assumed, although by no means certain, that Walden met death 25 minutes after 4 o’clock on the morning of the same day because his watch was stopped at that position and because he had last been seen alive by Mr. Guy Bass at about 3 o’clock that morning. The Workmen’s Compensation Commission and the Circuit Court, on appeal, held that Walden’s death arose out of and occurred in the course of his employment, and appellant prosecutes this appeal for a reversal.

Appellant apparently overlooking no favorable argument or legal precedent, forcefully contends there is no competent evidence to support the Commission’s award; that at most there is only a possibility Walden was, at the time of his death, in the course of his employment, and; that the Commission, in reaching its conclusion “has based inference upon inference.” It is pointed out that the Commission said: “It is true that Dan Ed Walden’s death occurred under mysterious and inexplicable circumstances . . . His reasons for being where he was at the time he was cannot be known with certainty ... we must make certain inferences from the available evidence.” Our attention is also called to the rules announced in Farmer v. L. H. Knight Company, 220 Ark. 333, 248 S. W. 2d 111, that a claimant must carry the burden of showing death of an employee occurred in the course óf his employment, and that ‘ ‘ there is no prima facie presumption that the claim comes within the provision of the law.”

After a careful consideration of all appellant’s arguments and an examination of all supporting authorities, some of which we wül later mention, we are led to the conclusion that the judgment of the Circuit Court (sustaining the Commission’s award) should be affirmed. In justification of that conclusion there is set out below the material facts and circumstances contained in the record.

In summarizing the testimony we may, in some instances, be guided by. the rule approved in Simmon’s National Bank v. Brown, 210 Ark. 311, 195 S. W. 2d 539, that; ■ “ In determining the sufficiency of. the evidence, doubts should be resolved in favor of claimant, and the evidence should be reasonably and liberally construed in his favor.”

Dan Ed Walden, as an employee of appellant, was charged with the responsibility of servicing the needs of some 2,000 Union members employed by Alcoa and Reynolds Metal Company engaged in mining and processing aluminum ore in the Bauxite area. Many of these employees lived in the vicinity of Mt. Olive which is approximately 4 miles southeast of Bauxite and some in the vicinity of Sardis which is some 5 miles further in the same direction. In the process of mining ore large pits are dug in the ground and when the deposit of ore is exhausted the pit is abandoned and in many instances it seems these abandoned pits accumulate water. It was in one of these pits, Pit No. 14, that Walden’s body was found. This pit is located about 2 1/2 miles southeast of Bauxite, in the general direction of Mt. Olive and Sardis. Benton is located on highway 67 several miles west of Bauxite where Walden lived.

When any trouble affecting Union men arose it was Walden’s job to contact the necessary employees and to arrange for meetings designed to effect a settlement, and to contact witnesses. In performance of these duties Walden was on call at all hours. Approximately 85 percent of his work was done at night, and frequently he worked all night. These long hours at night were apparently necessary because some of the Union members worked at night and they could not be contacted while on the job. Sometimes it was necessary for Walden to contact Union members in the early morning hours before they reported for work.

On Wednesday; February 28 (the day before Walden’s body was discovered) Herbert Jarrett, who lives at Louisville, Kentucky and who is the Area Director of Public Relations for the Reynold Company, came to Little Rock for the purpose, apparently, of working with Walden and others in the settlement of several Union disputes and particularly to discuss problems relative to a fourth step grievance hearing to be held later that week. When Jarrett contacted Walden on Wednesday morning relative to the above matters, they agreed to go to the races at Hot Springs that afternoon. This they did in a car driven by Walden bnt owned and furnished to Mm by appellant. On their way back from Hot Springs that evening they picked np Guy Bass who lives at Benton and who is the Chairman of Local Steelworkers of America at Reynolds’ Hurricane Plant. Prom Benton the three of them drove to a Motel in Little Rock and discussed Union matters until around midnight when they drove Jarrett to the Marion where he was staying. During the discussion at the Motel relative to the forthcoming grievance meeting it developed that Walden wanted it to be held on Friday, but at Jarrett’s insistence it was agreed to advance the date to Thursday. Bass stated that he would have to rearrange his schedule to conform with the new hearing date.

On the way back to Benton, Walden and Bass visited the Hideaway Cafe on the old Benton-Little Rock road which was frequently patronized by Union members. After some time there Walden took a Mrs. Beck, at her request, to where she worked at a cafe on the main Hot Springs-Little Rock highway, thence Walden and Bass went to the latter’s home at Benton. At Bass’ home he and Walden sat in the car and continued to talk grievance matters until about three o’clock on the morning of Thursday the 29th. At that time Walden left without any explanation of where he was going or what he was going to do, and he was not seen so far as is known until his body was found in the water in Pit No. 14 that afternoon. There is no suggestion or reason to suspect Walden committed suicide.

Based on the above, appellant says that is no substantial evidence to support the Commission’s finding that Walden met his death while in the course of his employment, and that the award must have been based on speculation and unfounded inferences. While the question confronting us is a close one, we have reached a different conclusion. There are, we think, facts and circumstances which could lead to no other reasonable inference than the one reached by the Commission. The Commission had a right to consider the circumstances as well as the proven facts and also had the right to draw all reasonable inferences dedncible therefrom. In the Brown case, supra, we approved this statement: “Circumstantial evidence is sufficient to support an award of the commission, and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; neither absolute certainty nor demonstration is required.”

One circumstance in addition to those heretofore mentioned is the location of Pit 14 with reference to the Lit. Olive and Sardis communities together with the location and condition of roads in the surrounding vicinity. When Walden left Bass’ home he would normally have gone within 2 blocks of his own home in Bauxite to reach Pit 14. The road thus taken was a well improved road until he arrived at a point (hereafter referred to as Point “X”) opposite Pit 14 which was approximately % mile to the north. Prom “X” there is a well improved road running to Pit 14, but the road continuing-in a southeasterly direction from Point “X” in the general direction of Mt. Olive and Sardis was not so well improved. A short way before the road reaches Pit 14 it slopes into the water. Walden’s car was found several feet out in the water and his body was found several feet away from the automobile. Of course there is no way of knowing to a certainty just why Walden made this trip in the early morning hours or why he took the left hand road at Point “X” or why he drove into the Avater. It would seem to logically follow, hoAvever, that he was either endeavoring to contact Union members preparatory to the meeting the next day, or he was on some other mission not connected with the business at hand. We know of no fact or circumstance indicating the latter. As stated, there is no intimation of suicide and he had the reputation of being a reliable, energetic and conscientious worker. Certainly the circumstances surrounding his death are more compatible with a mission for Walden’s Union than Avith an independent one. This is certainly true since no independent mission has even been suggested. It is common knowledge that sometimes human actions and reactions defy logical explanations. It is pointed out by appellant that there is no testimony in the record of any individual whom he was supposed to see in preparation for the forthcoming meeting. We think it is reasonable to assume that such was the case; otherwise why did he want the meeting put off another day to make the necessary preparations? There is also some slight explanation of why Walden took the wrong road at Point “X.” Between Point “X” and Pit 14 there is an old unusable road connecting with the main road to Sardis. It could possibly be that he did not know the condition of this road and meant to use it. Also, if he had continued on at Point “X” instead of turning left he would have found another road turning left about a mile from Point “X”. This road also leads to Sardis. It is not unreasonable to assume that he might have been confused as to the road he was taking. If such confusion existed the reason for it is not material.

We have considered the numerous cases, many from other jurisdictions cited by appellant, but find nothing contrary to the conclusion herein reached. In Industrial Commission of Ohio v. Lewis, 125 Ohio St. 296, 181 N. E. 136, there was positive testimony showing the deceased might have been on an independent mission. The same is true in Damore v. Encyclopedia Americana (Mo.) 290 S. W. 2d 105, where the award of the Commission was sustained. In the case of White v. Arrow Drilling Company (Okla.), 288 P. 2d 754, the facts, in many respects, are amazingly similar to those of the case under consideration. There the Commission denied an award and the Supreme. Court affirmed the Commission, but the opinion contains language which distinguishes it from this case. The court said: “On the other hand there are circumstances indicating that he (deceased) was then on a mission of his own rather than on a mission for his employer. ’ ’

As pointed out by appellant, considerable liquor was consumed by Walden, Bass and Jarrett while they were together, and the Commission would have been justified in disbelieving much of Bass’ testimony because lie apparently consumed most of the liquor. However, a deletion of most of his testimony would not adversely affect appellee, and there is little indication that Walden was drunk. In fact it is not urged that he was.

Appellant admits Walden was within the scope of his employment up until he and Bass left Jarrett at the Marion hotel around midnight, but submits that he departed therefrom when he left the main highway to visit the Hideaway Cafe and never returned to it, but we do not agree. Considering the nature of Walden’s employment and the fact that Union employees frequented the place, the Commission might have concluded he went there for some purpose related to Union business. At any rate, the Commission would have been justified in finding Walden returned to his employment when he took Bass home and there continued discussing matters they had been discussing with Jarrett.

Under the well established rule that the Commission’s award will be sustained if it is supported by substantial competent evidence, we affirm the judgment of the trial court.

Affirmed.


author: Sam RobiNSON, Associate Justice. CarletoN Harris, Chief Justice,

text:
    Ark. State Highway Comm. v. Dupree.
    5-1516
    311 S. W. 2d 791
    Opinion delivered April 7, 1958.

      Mehaffy, Smith & Williams, by John Williams; W. R. Thrasher, Dowell Anders, Edward Boyett and Bill Demmer, for appellant.

      Catlett & Henderson, for appellee.
   Sam RobiNSON, Associate Justice.

This action was filed by the Arkansas State Highway Commission to condemn for highway purposes certain lands situated in Pulaski County. A fraction over 59 acres were taken from the appellees. The appellees filed an answer alleging that the 59 acres were part of a 3,000 acre tract; that the value of the land taken was $24,000; and that they had suffered damages in the sum of $50,000 by reason of a severance of the property. Later an amended answer was filed in which damages of $200,000 were alleged. There was a jury verdict in the sum of $100,-000. On appeal the Highway Commission contends that the verdict is excessive.

Appellees own a little over 3,000 acres across which the highway is to be constructed. A strip consisting of about 59 acres has been taken, leaving about 2,000 acres which will be on the west side of the highway and 1,000 acres on the east side. The highest valuation placed on the property taken is $200 per acre, which would make a total of about $12,000 as the highest value placed on the land taken. In addition, it would be necessary for the property owners to fence each side of the new high-w.*y, tlie highest estimate of the cost of such fencing being $5,400, which, added to the $12,000 for the land taken, would total about $17,400. This portion of the verdict is sustained by substantial evidence. The question is whether there is substantial evidence to sustain the balance of the verdict amounting to about $83,000, which the jury must have given as damages due to a severance of the property.

The property is located northeast of North Little Rock, the south line of the property being about six miles from the city limits. Appellees acquired the land in 1928 and have farmed it since that time, but the earnings of the place are shown only for the years 1954, 1955 ■and 1956: $13,019.76 for 1954; $11,585.88 for 1955; and $12,650.83 for 1956. One of the appellees, Mr. C. S. Du-pree, gives practically all of his time to the operation of the place, and two of his brothers give a portion of their time, but in arriving at the net amount earned by the farm, nothing was allowed for the work done by the owners.

The owners contend that the market value of the property has been depreciated to the full extent or in excess of the amount of damages allowed by the jury because of the severance. Several witnesses gave testimony to the effect that in their opinion the damages caused by the severance exceed the amount awmrded by the jury. If such evidence is substantial, the judgment must be affirmed. The witnesses on behalf of the landowners estimate the damages at from $87,000 to $161,-000, and witnesses on behalf of the Highway Commission give estimates of damage from a low of $8,200 to a high of $12,200. The assessed valuation of the entire 3,000 acres for 1956 is $21,815. Whether there is substantial evidence to support the verdict is a question of law. Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Mo. Pac. Transportation Co. v. Bell, 197 Ark. 250, 122 S. W. 2d 958.

On the wrest side of the strip taken for the new highway is a cattle barn and corrals. This is on the tract which would contain about 2,000 acres. There are no similar facilities on the east side. The barn is 100 ft. x 100 ft. and is used for storing seed and also feed for the cattle. Part of the feed is stored in temporary silos made of wire and paper. This method has been found to be more economical. There are four tractors on the place and four hired men. Feed for the cattle is moved in trailers attached to the tractors. There are five stock ponds and one borrow pit where the stock can drink. Two of these are on the east side of the new right of way. There are 1,200 acres of crop land, 1,000 acres in pasture and open timber, and 860 in timber. The number of acres in particular crops and the production given for one of the years are as follows: 203 acres in cotton (100 bales produced); 238 acres in hay;, .30 acres in beans; 60 acres in corn; 120 acres in silage. Mr. C. S-Dupree, one of the owners, values the place at $150' per acre straight across, for a total of $450,000. But he says that after the severance the property will be worth only $100 per acre, thereby giving $150,000 as his estimate of the damages due to the severance. It also appears that there will be a strip of land between a drainage ditch and the new road on which at the north end it will be difficult to operate four-row farm equipment. Mr. Dupree also says it will be difficult to cultivate any closer than about 20 feet from the highway fence, and this will cause some loss. He further contends that labor, equipment and livestock cannot be moved across the new highway and therefore the place cannot be worked as one unit. He further states that to move farming equipment across the highway it would be necessary to purchase insurance which would cost about $100 per month. According to undisputed evidence the Highway Commission will provide a grade crossing.

Mr. W. C. Wilkinson, of Summerville, Tennessee, is in the mortgage loan business. He testified that the value of the property before the taking was $308,770 and after the taking the value was reduced to $220,000, the damages amounting to $88,770. He testified in detail as to how he arrived at the valuation before the taking, but he gives no clue as to how he arrived at the amount of damages mentioned.

Mr. Floyd Fulkerson, wlio farms in Pulaski County, testified that appellees’ property is better suited for a large cattle operation than any other purpose and that it Avould support 800 or 900 head of cattle.. He gave an over-all value of $150 per acre before the taking, and stated that the damages Avould amount to about 25 per cent; that the damages due to the severance .would amount to approximately $129,000. Mr. Fulkerson gives no substantial testimony as to why the severance Avould reduce the property in value by 25 per cent when used as a large cattle operation. It is shown by the evidence that the OAvners now have 289 head of cattle on the property, but there is not a scintilla of evidence that they have ever made any money whatever out of cattle. Of course, it was to the interest of the owners to show the full earning capacity of the place, and yet they produced not one iota of evidence to the effect that they had ever made any money whatever out of cattle. If the place was worth from $450,000 to $600,000, as estimated by witnesses produced by the OAvners, then, based on the capacity to support from 800 to 900 head of cattle, there would be an investment of from $500 to ovar $600 in land to support one cow. The record is completely void of any evidence to the effect that a person could pay such a huge amount for land on which to run cattle, and make a profit. Of course, the amount of profit that could be made on the land from farming or raising livestock is of primary importance here as going to sIioav the value of the land, because there is no contention that the potential value of the property for industrial or residential purposes because of its location is lessened by reason of the new road.

Mr. William A. Payne, real estate appraiser engaged in the mortgage loan business, testified that the value of the property before the taking was $371,500 and after the taking $287,500, and he gave $87,000 as the amount of damages, including the cost of fencing. Of course, the witness could not arrive at a sound valuation Avithout taking into consideration what the property Avould produce, and Mr. Payne did not knoAV if any cotton is planted on the place, and thought the cotton allotment to be 2,200 acres. The Government pays $46 per acre if the land is placed in the Land Bank.

Mr. George Ed McCain has a place across the road from the property involved in this litigation. He places the damages at 20 per cent to 25 per cent of the total value of the place. Mr. McCain thinks the property is worth $200 per acre straight across, or $600,000 for the 3,000 acres, and that it will he depreciated $150,000 to $200,000 by the construction of the road. Mr. McCain gives no satisfactory basis for placing such a huge market value on the property or for the amount of damages he mentioned.

The owners have been operating this place since 1928 and there is no showing that they have ever made over $14,000 per year out of the property, and in arriving at this figure as to the profit made, nothing is allowed for the work the owners do in connection with the operation of the place. As heretofore stated, Mr. C. S. Dupree gives his full time to looking after the place, and his two brothers give part of their time. Certainly between the three of them their services would he worth at the minimum a total of $9,000, and when this charge is correctly made it would leave a net profit on the place of not over $6,000 per year. No witness says the place is worth from $380,000 to $600,000 because it would produce a net of some $6,000 to $14,000 per year from crops, and there is no showing that the owners have ever made a dime out of cattle.

This kind of case constitutes one of the most difficult problems with which this Court has to deal. The law is firmly established that if there is any substantial evidence to support a jury verdict it must be affirmed on appeal. But, as heretofore pointed out, the question of whether there is substantial evidence to support the verdict is not a question of fact, but a question of law. There is some evidence in this case to the effect that the appellees have been damaged over $160,000.. But does this mean that if there had been a jury verdict for that amount this Court would have to affirm it, when the Court does not think there is substantial evidence to sustain such a verdict?

In the Byars case, supra (221 Ark. 845, 256 S. W. 2d 738), we quoted from St. Louis Southwestern Ry. Co. v. Braswell, Administrator, 198 Ark. 143, 127 S. W. 2d 637, as follows (221 Ark. 852): “ ‘The difficulty is in differentiating between any evidence and substantial evidence . . . Must appellate judges close their eyes and their minds to the obvious fact that in a particular case the evidence, from its very nature, could not have been convincing, though it produced a given result? Shall we affirm that such evidence was necessarily substantial because it was favorably acted upon by the jury?’ ”

When the appellees are allowed the highest value placed by any witness on the land taken ($200 per acre) and the highest amount estimated for the construction of fences ($5,400) there is left a jury verdict of about $83,-000 for damages due to severance. When all the evidence in this case favorable to the appellees is considered, disregarding the evidence produced by the appellant and favorable to the appellant, we do not believe that it can be said there is substantial evidence to .support the verdict. And, although this Court is very reluctant to set aside the jury verdict, we would be derelict in our duty if we failed to set aside such a verdict when, after a careful examination of the record and the briefs in the case, we do not think the evidence is substantial to support the verdict. Of course, the next question is what would be a proper amount. We have reached the conclusion that a judgment for $62,400 can be sustained. If, within 15 judicial days, appellee will file a remittitur of $37,600,' the judgment will be affirmed. Otherwise, it will be. reversed and remanded for a new trial.

Harris, C. J., and MoFaddist, J., dissent.

CarletoN Harris, Chief Justice,

dissenting. I find no legal basis for reducing this judgment. I think it should be pointed out that there is no assignment of error in regard to the admission or exclusion of evidence, no complaint as to the instructions, nor to the argument of conn-sel. The remittitur is determined simply because the Court feels the amount awarded is too large, though it is conceded that a much higher figure of damage was testified to by some of appellees’ witnesses. The majority say this was not substantial evidence, but we have many times held that the testimony of neighbors and others familiar with the property is competent evidence. City of Little Rock, et al. v. Octavia S. Sawyer, et al., 228 Ark. 516, 309 S. W. 2d 30; Fort Smith and Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 440. In the latter case, this Court said:

“The question of market value is to be determined upon the testimony of those who have knowledge upon that subject or whose business or experience entitles their opinions to weight and is usually established by the opinions of witnesses who are familiar with the property taken, this being one of the recognized exceptions to the general rule that witnesses are required to state facts and not express opinions.

“ 'Intelligent men, who have resided a long time in the place and who are acquainted with the land in question, and say that they know its value, are competent although they are merchants or farmers and have never bought or sold land in the place. ’ *' * * ”

Appellant argues that the verdict is so excessive as to indicate that it must have been founded upon passion and prejudice; however, nothing is pointed out in the record to substantiate this argument, except that the highway was referred to several times as a “speedway,” a concrete culvert beneath the highway as a likely place for “water moccasins and snakes,” and a few other remarks of a similar nature — nor does it appear that appellant objected to any of these statements. It is hardly plausible to believe that these remarks “worked the jury into such a frenzy ” as to cause them to ignore all logic, and their oaths as jurors, and result in their bringing in a verdict based on outraged feelings.

It simply appears to me that this Court is substituting its judgment for that of the jury.

I therefore respectfully dissent.

Justice McFaddin joins in this dissent.


author: Carleton Harris, Chief Justice.

text:
    Bingham v. Zeno.
    5-1487
    312 S. W. 2d 181
    Opinion delivered April 14, 1958.

      TV. II. Howard and John Baxter, for appellant.

      Pat H. Mullís and Lloyd B. McCam, for appellee.
   Carleton Harris, Chief Justice.

Aaron and Esther Zeno, brother and sister, on May 8, 1948, instituted an action in ejectment in the Desha Circuit Court against B. H. and Mary Bingham. The Zenos claimed the land in question (160 acres) as heirs of Louis Zeno, their father, it being alleged that the Binghams had executed a deed to the property to Louis Zeno on May 6, 1937. The Binghams answered, and moved to transfer the cause to equity, alleging that the purported deed was in fact a mortgage, that the debt created thereby was long since cancelled, and specifically pleaded the statute of limitations. The cause was transferred to the Chancery Court. The Binghams died in 1950, and the ease was revived by order of the court in 1954. The heirs at law of B. H. Bingham appeared expressly for the purpose of presenting a motion to dismiss, alleging that the order of revivor was not obtained within the statutory period. This motion was overruled by the court, following which, Clemon Bingham, one of B. H. Bingham’s children, intervened in his individual capacity, rather than as an heir of B. H. and Mary Bingham, and alleged that the Binghams had, on December 20, 1945, by warranty deed, conveyed the land in question to him; prayed that the deed from his father and mother to Louis Zeno be declared a mortgage and alleged that all of the indebtedness was barred by limitations. On the same date (September 12, 1955), the court dismissed appellees’ complaint for lack of prosecution, and vested title to the property in the intervener, Clemon Bingham. On November 28, 1955, appellees filed their “Complaint and Motion to Vacate the Decree,” alleging they had not received notice of the date, time, or place of the trial for the cause of action, and that the trial was heard outside the district without an agreement of the parties. To such pleading, intervener, Clemon Bingham, filed his demurrer, and Clemon, Willie, and Excel Bingham, as heirs at law of B. H. and Mary Bingham, filed their demurrer. On December 20th, after a hearing the court vacated and set aside the decree of September 12th. On November 13, 1956, the cause was tried, at the conclusion of which the court (1) found that the deed from B. H. and Mary Bingham to Louis Zeno, dated May 6, 1937, was in fact a mortgage, and that the “indebtedness secured by said mortgage has been extinguished by payment, or long since barred by limitations; * * * ,” (2) vested title to the land in question in the intervener, Clemon Bingham, (3) gave judgment to the Zenos in the amount of $3,034.87, representing taxes paid by appellees or their father from 1936 through 1955, less $163.61, representing rentals received from the lands from oil and gas leases by appellees (both amounts including interest to the date of trial), or a net judgment of $2,871.26, together with interest at the rate of 6 per cent per annum from November 13, 1956, until paid, and impressing a lien on the lands to secure such judgment. Intervener, Clemon Bingham, brings this appeal, asserting first, that ap-pellees were “volunteers” in paying taxes on the property in controversy; second, that at most, appellees could only recover taxes paid three years prior to institution of suit, and third, that the trial court had no jurisdiction as the order of revivor was untimely. We proceed to a discussion of each point in the order named.

I.

Appellees claimed ownership of this land as heirs at law of their father, who held a deed from appellants ’ parents, and under such claim, instituted this suit. Of course, an owner of lands not only has the right to pay taxes on same, hut, if desirous of protecting his ownership, finds it incumbent to do so. While the court held this particular deed, in effect, a mortgage, the rule is the same. We have held in numerous cases that a mortgagee may protect his security by paying the taxes when the debtor has not done so. The Federal Land Bank of St. Louis v. Treece, 199 Ark. 1169, 138 S. W. 2d 90, Holloway v. Bank of Atkins, 205 Ark. 598, 169 S. W. 2d 868. Clemon Bingham testified that he had tried several times to pay the taxes, but that Zeno had already paid them; however, the record reflects that in most years these taxes were paid months after the tax books had opened. Appellant, therefore, had plenty of time in which to pay the taxes, had he really been anxious to do so. It would appear that he was not reluctant to accept the “free ride” and certainly the tax payments inured to his benefit. Accordingly, we find no merit in this contention.

II.

Here, again, we are unable to agree with appellant. Appellees had a right to pay their taxes and snch payments being made from the outset of their acquiring an interest in the property (i. e., before the original debt was barred by limitations), the statute of limitations as to the original debt was tolled. Dalton v. Polster, 200 Ark. 168, 138 S. W. 2d 64; Bell v. McIlroy, Trustee, 198 Ark. 1069, 132 S. W. 2d 815. Though giving judgment to appellees for the taxes paid, the trial court held the original indebtedness ‘ ‘ extinguished by payment, or long since barred by limitations.” It cannot be ascertained from the record whether the indebtedness was paid,- but certainly, .the statute was tolled against the original debt of $353, under the decisions just cited. However, appellees do not appeal from the trial court’s ruling, and we are therefore not concerned with that question.

III.

Appellant’s point is not well taken, though the Order of Revivor was not properly obtained. Clemon Bingham, in filing his intervention seeking affirmative relief, entered the litigation voluntarily I‘as he found it,” and cannot now be heard to complain of the proceedings held prior to the time of his intervention. In other words, though the suit against B. H. and Mary Bingham abated at their' deaths, the intervention by Clemon Bingham had the effect of beginning a new action by him, as alleged owner of the land. Oliver v. Howie, 170 Ark. 758, 281 S. W. 17.

Finding no reversible error, the decree is affirmed.

       From the testimony of Clemon Bingham:
      “Q. * * * what time of the year did you come in here and try to pay the taxes? A. Oh, in the fall — before the limit come on — er ruh —in the fall of the year. Q. Well, now, when is that now? A. What?— when the limits come— Q. Yes? — the end of the tax paying time? A. Oh, bout October — er 1st of October. * * * Q. Did you ever try to pay taxes early in the year when the tax books opened? A. Early in the year? Q. Yes? A. Naw, I hadn’t been around early in the year— er ruh — you mean somewhere round February or March — something like that? Q. You knew somebody else was paying them all this time? A. Yes, I knowed he was paying em. Q. What were you trying to do? —Get a free ride? A. Naw, I wasn’t trying to get a free ride. Q. Did you ever offer to pay Mr. Zeno when he paid the taxes? A. Naw sir, he hadn’t been a coming to me and say nothing bout no taxes.”

       The Binghams died in 1950, and the motion for revivor was not made until December 11, 1953, almost exactly three years after the death of B. H. Bingham (December 12, 1950). See Arkansas Statutes, Sec. 27-1016.

       We are not here concerned with the other heirs since they have not appealed. Apparently they claim no interest in the land, recognizing the deed to Clemon from B. H. and Mary Bingham. Willie and Excel Bingham, together with Clemon, however, in filing the demurrer, entered their appearance in the suit.


author: J. Seaborn Holt, Associate Justice.

text:
    Snell, Admx. v. Snell.
    5-1494
    312 S. W. 2d 188
    Opinion delivered April 14, 1958.

      Bobbie Jean Farabee, for appellant.
    No brief filed for appellee.
   J. Seaborn Holt, Associate Justice.

W. A. Snell died February 14, 1956. Lester "W. Snell and Mildred Snell Harding were bis adult children by his first marriage and he had a minor son, Luther, by his second marriage. About six days prior to his death ~W. A. Snell, while a patient in the Missouri Pacific Hospital in Little Rock, changed the beneficiary in two insurance policies in wliich appellant, Mrs. Snell, had been named beneficiary, — to the name of his daughter, Mildred. The two policies totaled $573.00.

In the trial court appellant, Ella Snell, contended that Mildred induced her father to make her the beneficiary in the two policies through fraud and undue influence. The court found this issue in favor of appel-lees, holding: “That the insurance money collected by Mildred G. Harding was properly paid to her, that there was no fraud or undue influence exercised on W. A. Snell, and that Mildred G. Harding should be given all right and title to the proceeds from” the insurance policies. From the decree comes this appeal.

For reversal appellant relies on these points: “1. That the testimony adduced by the appellee, Mildred G-. Harding was general, evasive and highly improbable and insufficient to support the decree. 2. The evidence of the appellee, if given its greatest probative value, is insufficient to support the decree,” and says “Appellant herein takes this appeal from that portion of the decree of the court finding that no undue influence was exercised by Mildred Harding to induce W. A. Snell to make her beneficiary of his insurance policies at a time when he was on his deathbed and had not visited with or spoken to her in ten years.”

The burden of proof was on appellant. After a careful review of all the evidence, we have concluded that the findings of the trial court are not against the preponderance of the testimony.

Mildred had been a widow for about ten years prior to her father’s death. She visited him twice while he was in the hospital and it was on her second visit that the beneficiary in the policies was changed. She testified: “Q. Did you say anything to him about his insurance? A. No, sir. Q. How did the change in beneficiary to your benefit occur? A. Well, I believe it was on my second visit. When I was leaving a man came into the room and my father said ‘Don’t go, this concerns you.’ That was the first time I knew about it. Q. Did you at any time while you visited there with him ask him to change it? A. Goodness no. I wouldn’t ask him because I did not know about it. Q. Did you consider that you had any particular influence over your father? A. Why goodness no, not after all those years I did not. Q. Did you call any of the insurance companies and ask them to come out? A. No. Q. Do you know who did make the call? A. Well I believe that Mr. Roberts called . . . Q. And did your father know what — seem to know what he was doing when he talked to you? A. Oh goodness yes. Q. Mentally he seemed'to be about normal? A. Yes, in fact I was surprised because he was so alert. Q. Had he already had this insurance — these insurance policies, tñe beneficiary under these two policies which he changed over to yon — had it already been transferred, the beneficiary that day, the last trip yon made to see him? A. I don’t know because he did not talk anything to me about those. Q. Did he give you the policies? A. No all the man had was just a receipt, I guess . . . Q. And what happened there at that time about the policies ? A. Well, when I was getting ready to leave and my father said for me to stay, that it concerned me. Q. What else did he say about it? A. That is all it was. They went on with their business. Q. Did you understand what they were talking about? A. Not exactly. I did not realize until daddy said it concerned me and he said ‘I am going to make this policy over to you.’ ” Only Mildred and the insurance agent were present when the change was made.

W. B. Boberts, a disinterested witness, testified: “A. I visited W. A. Snell at the Missouri Pacific Hospital where he was being hospitalized on account of a heart attack. He asked me to call the insurance agent and ask him to come to the hospital that he might have the two insurance policies changed so as to make his daughter, Mrs. Mildred Harding, his beneficiary. I complied with his request. Q. In what way did you assist him, if your answer to the preceding question is in the affirmative? A. I called the insurance agent and asked him to come to the Missouri Pacific Hospital so that W. A. Snell might discuss business with him. Q. Did he discuss any other business matters with you, and if so, will you explain in detail. A. Pie also stated to me that he planned to have his postal savings made payable to his son, Lester Snell, and daughter, Mrs. Mildred Harding, when he was able to leave the hospital. He stated that his wife was fixed all right financially and didn’t need the money. Q. How long had you known W. A. Snell prior to his death? A. I had known Mr. W. A. Snell for approximately thirty years. Q. In your opinion, what was his mental condition at the time he discussed his business with you and what was his mental condition up to the time of his death? A. It is my sincere opinion that Mr. Snell was of sound mind and knew what he was doing at the time he made these beneficiary changes. Also being in sound mind until the time of his death.”

On the question of undue influence, fraud and mental capacity, we have many times announced the governing rule as follows: “If the maker of a deed, will or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interests in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness whether produced by old age or through physical infirmities will not invalidate an instrument executed by him.” Ebrite v. Brookhyser, 219 Ark. 676, 244 S. W. 2d 625.

There was evidence offered by appellant which she argues tended to contradict that of appellees, some of which she abstracts as follows: “Lester Snell (twin brother of Mildred) admitted that he (his father) was breathing laboriously, and a totally disinterested witness, T. L. Hendricks, stated that he did not look well, did not feel good and was worried. Hendricks went on to testify that Snell did not seem anything like his normal self and stated to him (Hendricks) that his daughter was worrying him.”

It appears that appellant does not specifically question W. A. Snell’s mental capacity. However, as indicated, when this testimony, along with the other testimony, which we find to be no stronger, is weighed and considered we hold that it falls short of showing that W. A. Snell was induced by fraud or undue influence to change the beneficiary. We cannot say that the findings and decree of the court were against the preponderance of the evidence.

Affirmed.


author: Ed. F. MoFaddxN, Associate Justice.

text:
    Cowling v. Howard County, Ark.
    5-1526
    312 S. W. 2d 186
    Opinion delivered April 14, 1958.

      George E. Steel-, Wright, Harrison, Lindsey S Upton and Wm. M. Stocks, for appellant.' ' '

      W. G. Spencer and Don Steel, for appellee.
   Ed. F. MoFaddxN, Associate Justice.

The question here presented is the power of the County Court to disallow a portion of the monthly salary claim of the Deputy Tax Assessor. ■

During all the time herein involved, Jim Cowling was the duly elected, qualified, and acting Tax Assessor of Howard County. On January 1,1957 he duly appointed the appellant, Mrs. Nellie Cowling, as the Deputy Tax Assessor of Howard County. Her appointment and oath of office were duly filed and recorded. Her claim for salary for $450.00 for January, February, and March, 1957 (at $150.00 per month) was duly allowed and paid by order of the Howard County Court. Appellant filed her salary claim for $450.00 for April, May, and June, 1957 (at $150.00 per month); and the County Court disallowed the salary for April, making the notation, “$150.00 for April, 1957 disallowed — no service rendered.”

Appellant refused the $300.00 and duly appealed to the Circuit Court. There, on trial de novo, the $450.00 claim was allowed for $375.02. The Circuit Court found that appellant was entitled to full salary for May and June at $150.00 per month, but that she had only worked a portion of April so was entitled to only $75.02 for that month. From the refusal of the Circuit Court to allow the full salary of $150.00 for April, the appellant prosecutes this appeal; and from the allowance of any salary for April, the appellee, Howard County, prosecutes its cross appeal. It is not claimed that Howard County is without ample funds: the defense is that the County Court had the power to determine what amount, if any, should be paid to the Deputy Tax Assessor for services in any month.

Many interesting questions are briefed by able counsel for the parties; but we conclude that the salary allowance for the Deputy Tax Assessor is mandatory on the County Court. Such conclusion makes it unnecessary to consider the other questions, and requires a reversal on the direct appeal and a dismissal of the cross appeal.

It was stipulated that by the 1950 census the population of Howard County was 13,342. Act No. 426 of 1955 is captioned: “An Act to Classify Counties According to Population; to Fix the Compensation for County Assessors; to Provide for Deputy County Assessors, and their Compensation; to Provide for Payment of Expenses of the County Assessor’s Office; to Repeal Certain Laws in Conflict Herewith; and for Other Purposes.” The germane portions of the Act provide:

“Section 1. For the purposes of determining the salary of each County assessor of the Counties of this State, to determine the number of authorized deputies for each such assessor, and their salaries, but for no other purposes, the Counties of the State shall be classified according to population as determined by the United States decennial census, as follows . . .
‘ ‘ (h) Class 8 shall include all counties with a population of not less than 13,000 nor more than 15,000 people . . .
‘ ‘ Section 2. The compensation for each County Assessor, and his deputies, shall be as follows: . . .
“(h) Each County Assessor of a Class 8 County shall receive $3,600.00 per annum. Each such Assessor may employ one deputy with a salary not to exceed $1,800.00 per annum, or two or more part time deputies with salaries not to exceed, in the aggregate, $1,800.00 per annum . . .
“Section 6. The General Assembly of the State of Arkansas hereby finds that the assessed values of the real and personal property of this State are unequal, requiring a reassessment thereof, that inequities exist in the compensation received by County Assessors, and that many County Assessors’ offices are understaffed on account of changes in population; . . .

In Polk County v. Mena Star, 175 Ark. 76, 298 S. W. 1002, we said that the claims to defray the expenses of making assessments and tax books “. . . are imposed on the counties by law and about which the County Court is substantially without any discretion.” In Burrow v. Batchelor, 193 Ark. 229, 98 S. W. 2d 946, we held that the Legislature had the power to fix the salary of certain officials and to require payment of same by the County Court. In Parker v. Adkins, 223 Ark. 455, 266 S. W. 2d 799, the County Court ruled that it had the power to refuse to pay the salary of a Deputy Sheriff, the appointment of whom had been authorized by the Legislature. We held that the Act of the Legislature authorizing the Sheriff to appoint a Deputy for certain purposes made it mandatory on the County Court to pay the salary when the procedure for the appointment of the Deputy had been duly followed. We ruled: “In view of what has been said we do not believe this was in violation of the constitutional provision prescribing the jurisdiction of the County Court.”

By Act No. 426 of 1955 the General Assembly has authorized and empowered the Tax Assessor of Howard County to appoint a Deputy and has fixed the salary of such Deputy. The Tax Assessor of Howard County appointed only one deputy, being the appellant herein. The Tax Assessor testified that the Deputy performed all the services required of such Deputy and did so in a satisfactory manner. It was, therefore, the duty of the County Court to allow the salary claim of the Deputy, as such duty was imposed on the County Court by the Legislature.

The judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court with directions to enter judgment for the full salary claim of the appellant and certify such judgment to the County Court for payment. The appellant will recover all costs of all courts.


author: MiNor W. Millwee, Associate Justice.

text:
    Thomas v. American Radio & Television Inc.
    5-1527
    312 S. W. 2d 183
    Opinion delivered April 14, 1958.

      B. W. Thomas and Richard W. Hobbs, pro se, for appellant.

      Moses, McClellan & McDermott, for appellee.
   MiNor W. Millwee, Associate Justice.

Appellee, American Eadio & Television, Inc. is an Arkansas corporation engaged in the manufacture of radio, television and related electronic products. John D. Eeid was an employee and director of the corporation at a salary of $13,000 per year on November 20, 1950, when a resolution was passed by the Board of Directors, as follows:

“On motion made and duly seconded and unanimously carried, it was resolved that an accrual be set up on the books for John D. Eeid to set up the difference between $30,000 per year and $13,000 per year beginning November 20, 1950 to be payable to him by virtue of his special training, education and experience in the electronic field. This is to be, payable to him when the company is in a position to do so, the time to be decided at a later date.”

Any possible salary accrual to Eeid in excess of $13,-000 under the resolution terminated in April, 1951, when the company went into production exclusively for the United States Government under a naval contract and the government set the salary at $21,000. "When this contract expired in February, 1955, appellee fixed Eeid’s salary at $30,000.

On September 14, 1955, John D. Eeid was adjudicated a bankrupt. In his voluntary petition there was listed among his assets under “Choses in Action” a claim for “Accrued Salary at American Eadio & Television from 1951 $7,061.47.” On February 21, 1957, an order was entered in the bankruptcy proceedings confirming a sale of this claim to the appellants, B. W. Thomas and Eichard W. Hobbs, on sealed bids for the sum of $100.00. The order recited that it would be for the best interest of the bankrupt estate to accept said bid because of the “uncertain value” and “uncertain due date” of the claim.

On March. 20, 1957, appellants brought this suit against appellee for an accounting of all monies due and owing them by virtue of the assignment to them of Reid’s claim for accrued salary under the resolution of November 20, 1950. The instant appeal is from a decree entered on August 28,1957, in which the chancellor found that no sum of money was then due and owing to Reid or the appellants by appellee and the complaint Avas dismissed for want of equity.

Appellants contend the trial court erred in refusing to render judgment in their favor for $7,061.47 Avhich represents the difference in an annual salary to Reid of $13,000 and $30,000 from November 20, 1950 to April, 1951, Avhen the agreement set forth in the resolution terminated. They insist that under a proper construction of the last sentence of the resolution adopted on November 20, 1950, appellee’s promise to pay the increased salary Avhen “it is in position to do so” is an absolute, and not a conditional, promise, and tantamount to a promise to pay Avithin a reasonable time. Some courts so hold, but the great weight of authority is contrary to this interpretation of the agreement. “In a majority of the states in which the question has arisen and in Canada it is held that a promise to pay when the promisor “is able” (or a term of the same purport) is a conditional, and not an absolute, promise to pay, and that the prom-isee is not entitled to recover on such a promise unless the promisor is able to pay the debt. The minority vieAV is that a promise to pay when the promisor is able is an absolute, and not a conditional, promise; it amounts to a promise to pay Avithin a reasonable time.” 12 Am. Jur., Contracts, Sec. 303.

The cases supporting these conflicting views are collected in extensive annotations on the question in 27 L. R. A. (N. S.) 300; L. R. A. 1918A 902; 94 A. L. R. 721. See also Williston, Contracts, Sec. 804; Page, Contracts, Sec. 2597; Corbin on Contracts, Sec. 641. This court has never passed directly on the question and Ave find nothing in Merrill v. Sypert, 65 Ark. 51, 44 S. W. 462, or Excelsior Mining Company v. Willson, 206 Ark. 1029, 178 S. W. 2d 252, relied on by appellants, to indicate onr support of the minority rnle.

Under the majority rule, to which we subscribe, ap-pellee’s promise to pay the salary accrual to Reid is not an absolute bnt a conditional promise to pay; and it was incumbent on appellants to allege and prove the financial ability of appellee to pay the obligation before they were entitled to recover. The evidence on this point is not in serious dispute. In their attempt to discharge this burden of proof appellants presented the testimony, of John D. Reid and Paul Leird, another director of ap-pellee. According to their testimony and certain financial statements presented, the appellee was in much worse position financially at the time of the trial than in 1950 when the agreement was made. A net operating-deficit of approximately $560,000 in 1950 had increased to approximately $1,080,000 on July 31, 1957. There was a net profit of $114,374.43 for the year 1956 but the company still had a deficit of $995,000 at the end of that year and sustained a further net loss of $84,247 for the first seven months of 1957.

Appellee operates under an agreement with its creditors under which all its assets are pledged to the payment of certain mortgages held by the R. P. C. and others. One such creditor is a corporation in which some of appellee’s directors are stockholders and which became a purchaser of a portion of the mortgage indebtedness due the R. P. C. when the latter refused to further extend the time of payment. A preponderance of the evidence supports the conclusion that appellee was not in position to pay the salary accrual. But this does not mean that it may not still become liable and the contract enforceable when the ability to pay exists. Also if it should develop that appellee has deliberately prevented itself from becoming able, then the happening of the condition will be excused. Williston, Contracts, Sec. 804, supra.

Appellants also contend that the trial court erred in dismissing their complaint “with prejudice.” They say this is tantamount to a finding that they never will be entitled to again assert their claim regardless of appel-lee ’s f'utnre ability to pay. There may he some ambiguity in the decree in this respect although it does recite “that no sum of money is now due and owing” to appellants. While it was proper to dismiss appellants’ claim and complaint as being premature, such dismissal should have been without prejudice to further action if and when appellee’s future financial position warrants. The decree is accordingly modified to this extent and, so modified, is affirmed.

       Emphasis supplied.


text:
    Degen v. Acme Brick Co.
    5-1531
    312 S. W. 2d 194
    Opinion delivered April 14, 1958.

      Clinton R. Barry and D. L. Grace, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee.
   George Rose Smith, J.

This is a suit by the ap-pellee brick company to enforce a materialman’s lien against property belonging to the appellants, P. C. Degen and his wife. The Degens admit that the plaintiff furnished tile for the construction of a building on the land and also admit that the account is unpaid. They insist, however, that the plaintiff is estopped to assert its lien and must look to the contractor, Jim Bell, for payment. The chancellor entered a judgment against Bell, who made no defense, and, finding that no estoppel had been shown, awarded the brick company a lien against the property. The Degens have appealed.

The parties recognize the fact that. a materialman may estop himself from asserting the lien that would otherwise be available to him. Kennemore v. Robbins, 223 Ark. 384, 266 S. W. 2d 64. The question at issue is whether the appellants met the burden of proving their defense. We are of the opinion that the defense was established by the proof and should have been sustained by the trial court.

The material facts are really not in dispute. About September 1, 1956, Degen employed Bell to construct a commercial building and made an advance of $800 to be used for the purchase of tile. Degen then telephoned the brick company, got the manager on the line, and told him that the tile had been paid for and that the brick company should collect its money on delivery of the material. According to Degen the manager replied: “You don’t need to tell us a thing about Bell. We know Bell. Any time we sell him anything, we’re going to get the money.” The appellee’s objection to this testimony was correctly overruled, even though Degen was unable to recall the manager’s name. Wigmore on Evidence (3d Ed.), § 2155. We accept the testimony as the truth, not only because the manager was not called to deny it but also because the brick company admittedly directed its truckdriver to obtain Bell’s check for each delivery of material.

The building was erected during the month of September, and nearly all the tile had been delivered by September 15. As each delivery was made (with one immaterial exception), the appellee’s driver accepted Bell’s check for the material and marked the invoice paid. At the trial the brick company introduced proof to show that its driver did not have actual authority to mark an invoice as having been paid; but this is immaterial, as the agent’s apparent authority cannot be doubted. Since it is customary for a receipt to be given for the payment of money, an agent’s authority to receive payment ordinarily includes the authority to give a receipt. Best., Agency, § 72; Mechera on Agency (2d Ed.), § 962. Even though this rule does not invariably apply when the agent receives a check rather than cash, here the appellee instructed its driver to obtain checks and certainly knew that this order was being obeyed.

Early in October, the job having been completed, Degen settled his account with Bell, relying on the brick company’s receipted invoices for the tile. Some two weeks later the brick company informed Degen that all of Bell’s checks had been dishonored, for insufficient funds. At the trial it was brought out that the brick company had failed to deposit the checks promptly. Its Fort Smith branch followed the practice of accumulating checks for a period of time before sending them to the general office in Texas. Between September 1 and September 12 the brick company received seven checks from Bell; they were returned by the bank on dates ranging from September 27 to October 16.

Without enumerating the familiar elements of es-toppel, we think it enough to observe that the appellants’ proof satisfies every requirement. The brick company represented to Degen that it would collect its money as the tile was delivered and gave receipts indicating that this practice was being followed. Although the company’s manager had stated in effect that no credit would be extended to Bell, the unreasonable delay in the depositing of the contractor’s checks was equivalent to an extension of credit. If the checks of early September had been presented promptly and found to be worthless, it would evidently have been the company’s duty to notify Degen, which could and should have been done long before he settled his account with Bell in October.

The appellee insists that the appellants failed to prove that they have been damaged, in that Degen did not testify as to the amount of money paid to Bell in the final settlement. We do not regard this apparent oversight as a fatal defect in the proof. It may fairly be inferred that the sum was substantial, as the $800 advance to Bell was less than the brick company’s bill for tile alone. It would be wholly unreasonable to assume that the building was erected without labor costs and without the use of any materials except tile. The Degens’ proof was sufficient to make a prima facie case in support of their defense, shifting to the plaintiff the burden of going forward with a rebuttal. Degen testified at the trial, but the appellee did not then think it necessary to ask him what sum was involved in the settlement with Bell. Having neglected to develop its present contention when the opportunity was readily available in the court below, the appellee is not now in a position to complain that the appellants’ proof might have been more meticulously complete.

The decree is reversed, and, since the title to land is involved, the cause will be remanded for the entry of a decree dismissing the complaint insofar as it affects the appellants and their property.


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

text:
    United Transport Inc. v. Wilson.
    5-1522
    312 S. W. 2d 191
    Opinion delivered April 14, 1958.

      William H. Arnold III and Arnold & Arnold, for appellant.

      Shaver, Tackett & Jones, for appellee.
   Paul Ward, Associate Justice.

The question is: Was appellant’s employee, a truck driver, acting within the scope of his employment when he injured appellee? Over appellant’s objections, the question was submitted to a jury which gave appellee $1,250 actual damages and $500 exemplary damages.

We agree with appellant that the record contains no substantial evidence to support the above verdict and the judgment of the Court.

On December 31, 1957 Ernest Eugene Wilson, the estranged husband of appellee, was driving appellant’s truck from Memphis through Texarkana, enroute to Tulsa, carrying a load of automobiles, when he was contacted by appellee, his estranged wife. The two effected a temporary reconciliation and spent the night together. It was agreed that appellee would meet Ernest on his way back from Tulsa and return to Memphis (where they had formerly lived) with him, in convoy, driving her own car. Either because appellee left Ernest a note, as claimed by Mm, or because of a pre-arranged plan, as stated by appellee, Ernest went by the home of ap-pellee’s parents near Ogden (a short distance from Tex-arkana) about 2:30 A. M. on the morning of January 3, 1958. Appellee was at the home of her parents, and, supposedly, they were to get together there and proceed on to Memphis. What took place there determines the issue in this case.

Appellee’s version of the difficulty that followed, the cause of her injury, and the preceding circumstance is as follows: We were separated, and he was under a peace bond. I am in the process of divorcing him. It was dangerous for me to stay with him — he beat me up lots of times. He said he would be in about 11 o ’clock the night of the 2nd, but he wasn’t in until about 3 o’clock in the morning of the 3rd. We were to make the trip back to Memphis. When he arrived I said “I have the car packed but I am not ready. I think we should have a talk.” He said, “get in here. It’s warm in here,” meaning the cab of the truck. The motor was running. I told him I thought we should have a talk before I went back with him — we were having so much trouble. We started talking, and I didn’t believe I would leave. He said I shouldn’t go back to Memphis if I didn’t go with him. Then he cursed me, and I told him I wasn’t going to leave with him. We quarreled about property. I said I wouldn’t give him anything, and he wouldn’t give me the keys to the house in Memphis. We only discussed our personal affairs — matters strictly between the two of us. I finally got mad. He wanted me to get out. He said “get the hell out; I’m going.” He didn’t give me time. He pushed me and I fell. He let his foot off the clutch. The truck moved and I fell backwards. At the same time he shoved me he let off the clutch. I was injured, and stayed in the hospital until the doctor said I would be all right.

It clearly appears from the above factual statement, we think, that Ernest Eugene Wilson was not acting within the scope of his employment, as a truck driver for appellant, at the time appellee was injured, or during the events transpiring immediately prior thereto. We cannot escape the conclusion that Ernest was in no manner engaged in anything pertaining to his master’s business. The business in which he and his estranged wife were engaged at the time can hardly he described more clearly than was done by appellee herself. She said they only discussed personal relationship matters strictly between themselves. According to appellee’s own account her injury was the result of a personal quarrel and the willful acts of her husband. By no stretch of the imagination can we see how any of these acts tended in any way to promote the interest of appellant. The mere fact that Ernest was, at the time, an employee of appellant is not decisive of the question in favor of ap-pellee. The acts of Ernest which caused the injury complained of must have been in the discharge of a duty he owed his master before appellant here would be responsible. Many expressions from the opinions of this court sustain these asserted rules.

It was held that the negligent acts of an elevator operator were not within the scope of his employment in Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S. W. 439. In reaching this conclusion the court among other things said:

“The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of the master. It is therefore necessary to see in each particular case what was the object, purpose and end of the employment and what was the object and purpose of the servant in doing the act complained of. The mere fact that he was in the service . generally of the master . . . would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged. And if the servant steps aside from the master’s business to do an independent act of his own and not connected with his master’s business, then the relation of master and servant is for such time, however short, suspended; and the servant, while thus acting for a purpose exclusively Ms own, is a stranger to Ms master for whose acts lie is not liable.”

We find tMs expression in American Railway Express Co. v. Davis, 152 Ark. 258, 238 S. W. 50:

“We have frequently announced and steadily adhered to the rule that ‘the test of liability of a master for a tort committed by a servant is whether the act complained of was done in the prosecution of the master’s business — not whether it was done during the existence of the servant’s employment.’ ”

In American Railway Express Company v. Mackley, 148 Ark. 227, 230 S. W. 598, the court approved this rule:

“ ‘Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant.’ ”

Many other cases announcing the same rules in similar language could be cited. Some of them are: Wells Fargo & Company Express v. Alexander, 146 Ark. 104, 225 S. W. 597; Chicago Mill & Lumber Company v. Bryeans, 137 Ark. 341, 209 S. W. 69; Pickens v. Westbrook, 191 Ark. 156, 83 S. W. 2d 830; C. J. Horner Company v. Holland, 207 Ark. 345, 180 S. W. 2d 524; Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545; Page Lumber Company v. Carman, 214 Ark. 784, 217 S. W. 2d 930, and; Capital Transportation Company v. Armour & Co. (Ark.) 200 F. 2d 722. In the Carman case, supra, the court said, quoting, that, “If a servant completely turns aside from the master’s business and pursues business entirely his own the master is not responsible.” As stated in the Machley case, supra, the rules of law governing the liability of a master in this kind of case have been made plain, but the difficulty in most cases is in determining whether or not the servant has stepped aside from the employment. We do not find this difficulty here.

Considering the facts of this case in the light most favorable to appellee and applying the rules above an-nouneed, the only reasonable conclusion we can reach is that Ernest Eugene Wilson was not acting within the scope of his employment when he caused the injury to ap-pellee. For that reason the judgment of the trial court is reversed and the cause of action is dismissed.

Reversed.

Millwee and George Rose Smith, JJ., dissent.

George Rose Smith, J., dissenting.

It should first be observed that this case does not involve a material deviation from the servant’s authorized route, as was true, for example, in Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, L. R. A. 1918D, 115. Here the home of Wilson’s father-in-law abutted the highway that Wilson was traveling in the course of his employment; he parked on the shoulder of the road in order to talk with his wife. Had Wilson started his truck after the conversation and negligently struck a stranger standing by the road, it goes without saying that the liability of the master would have been an issue for the jury.

Here, however, the evidence indicates that Wilson acted willfully and maliciously, rather than with carelessness only, and the jury so found, by its award of punitive damages. This finding absolves the master of liability only if the undisputed evidence shows that Wilson’s intentional conduct was actuated solely by a personal motive.

“An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed. . . . It is the state of the servant’s mind which is material.” Rest., Agency, § 235. “The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act otherwise is within the service. . . .” Ibid., § 236. Mechem puts the matter accurately in § 1929 of his work on Agency: “It is obvious, therefore, that the question of the principal’s or master’s liability cannot always be determined merely by putting a label on the motive. Tlie motive is important, bnt it is important not so much, for the purpose of determining how the act was done as to aid in deciding whose act it was.” See also Prosser on Torts (2d Ed.), §63.

I do not understand our oivn cases to be contrary to the views just mentioned; indeed, the majority’s quotation from Sweeden v. Atkinson Imp. Co., 93 Ark. 397, 125 S. W. 439, 27 L. R. A. N. S. 124, is fully in accord with the position taken by the textwriters on the subject.

In this case I should agree with the majority if Wilson had simply pushed his wife violently from the truck; that conduct would undoubtedly have been actuated solely by a personal motive. But here Wilson said, ‘ ‘ G-et the hell out; I’m going,” and the starting movement of the vehicle contributed to the appellee’s injuries. Since I am unable to say positively and unequivocally that the purpose of serving his master’s business did not actuate Wilson “to any appreciable extent, ’ ’ I am of the opinion that the evidence presented a question for the jury.

Millwee, J., joins in this dissent.


author: CarletoN Harris, Chief Justice.

text:
    Walters v. Burnett.
    5-1523
    312 S. W. 2d 344
    Opinion delivered April 21, 1958.

      Claude A. Fuller, for appellant.

      Festus 0. Butt, for appellee.
   CarletoN Harris, Chief Justice.

This case is here for the second time on appeal. Appellee, A. P. Burnett, a non-resident of this state, listed certain property with Florence Loueks for sale or rent. Thomas Walters, appellant herein, entered into a contract with Mrs. Loueks, as agent of Burnett, to lease a certain residence, located in Eureka Springs, from November 1, 1956, to May 1, 1957, for an agreed monthly rental of $35.00. The lease also contained an option giving Walters the option to purchase said property for the sum of $4,250. On October 29, Walters instituted suit in the Carroll Chancery Court against Bnrnett, Florence Loucks, and one C. C. King’, alleging his option to purchase the property, and further alleging that King, a real estate agent in the city of Eureka Springs, was attempting to sell the property to some other person. The prayer, as to appellee, asked that Burnett be required to deliver possession of the property on November 1, and be required to comply with the terms and provisions of the contract between the two. Burnett, who was neither personally nor constructively served, demurred to the complaint on the grounds that same did not state facts sufficient to constitute a cause of action; further, waiving service of process, he denied the material allegations of the complaint, asserted that Walters had seized and entered upon the premises; denied that he had authorized any agent to execute the lease or that he had given Walters an option to purchase the premises, and asserted that such lease was wholly void for want of authority to support its execution. He further alleged that the acts of Walters had resulted in the loss of a cash sale of the property for the sum of $4,250, and asked that the cause be “relegated to appropriate court for ascertainment of damages herein.” King also demurred to the complaint, and Florence Loucks has never filed any pleading. The court sustained the demurrer in part, which action was appealed. On remand, the trial court entered the following order:

“Mandate from Supreme Court being filed herein and this cause coming on for consideration, after dismissal of appeal by Supreme Court, and the cause as to lease having become moot, and plaintiff refuses to plead further, and no relief being asked as to defendant Loucks and said defendant being in default. The motion of defendants to dismiss action is granted and this cause is dismissed at cost of plaintiff.”

From such action of the court comes this appeal.

Appellee points ont, and argues, that the snit was prematurely instituted, since no rights were to accrue to appellant under the contract until November 1, 1956, and the suit was filed on October 29, 1956. Without entering into a discussion of one’s right to institute litigation designed to protect u future interest, let it suffice to say that the suit actually was not commenced on October 29th, for the reason that appellant did nothing more than file the complaint. According to the record, no summons was issued for Burnett, nor was any affidavit made for publication of a warning order, and no such order was made by the clerk. Accordingly, no suit was commenced as to Burnett at that time. Am. Ry. Express Co. v. Reeves, 173 Ark. 273, 292 S. W. 109; Missouri Pacific Railroad Company v. McLendon, 185 Ark. 204, 46 S. W. 2d 626.

While the trial" court held that the cause as to the lease had become moot, appellee argues that the entire cause (including option) has become moot. It is, of course, true that appellant cannot presently lease the property from November 1, 1956, to May 31, 1957, but that fact, within itself, does not mean that he has lost his rights under the option. The allegations in the complaint recite that Walters stood ready to carry out the terms and provisions of the contract, and there is nothing in the record to indicate otherwise. The filing of the suit preserved any rights appellant might have under the agreement; as far as the record discloses, appellant was diligent in trying to assert and protect his rights, and Walters certainly cannot be penalized because the court ruled adversely to his contention.

Having disposed of the contention that the suit was prematurely commenced, and the further contention that the cause is now moot, we are left only with the propriety or legality of the trial court’s action in sustaining the demurrer in part, because of the invalidity of Section 3 of the lease agreement. This is the sole remaining question raised by this appeal. If Section 3 is valid, appellant’s rights cannot be adjudicated until other issues, raised by the pleadings, are determined. This brings ns to a discussion of the lease agreement. The lease consists of four paragraphs, but only three are pertinent to our discussion. The first three sections provide as follows:

“(1). The said Lessor hereby agrees and demise to said Lessee, the following described premises, vis:
The two-story residence situated at 256 Spring Street, in the City of Eureka Springs, Arkansas from the first day of November, 1956, to the 31st day of May, 1957.
(2) The said Lessee hereby and promises to pay to said Lessor, the sum of $35.00 on the 1st day of each and every month during the continuance hereof, as rent for said premises, and 10 per cent interest on the amount thereof, from the time any such payment shall become due, if Lessee shall make default.
(3) The Lessor, agrees to give an option to buy to said Lessee, said property at 256 Spring Street, Eureka Springs, up to May 31st, 1957, for the sum of $4,250.00. Lessee agrees to buy or vacate by May 31st, 1957. Lessor agrees to allow all rent paid in to be applied on the purchase price, terms of sale to be determined later.”

The court sustained Burnett’s demurrer to paragraph three and to all parts of the complaint based thereon, because of a want of consideration for the option contract, and because the contractual provisions are “indefinite, uncertain, and meaningless. ” We do not agree. We have held such agreements valid. Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468. There, this Court said:

“The parties to an agreement for the sale of land may also contract with the right, at the election of either party in the future, upon the performance or nonperformance of certain conditions, to treat the transaction either as a purchase and sale contract or a lease.”

As stated in Corpus Juris Secundum, Yol. 51, page 636 r

“ Where the lease and the option constitute bnt one contract, the provisions of which are interdependent, the consideration for the lease supports the option; in other words, the agreement to pay rent or do other acts, and the fulfillment of such obligations on the part of the lessee, will support the option as well as the right to occupy under the lease. Thus, an option to purchase contained in a lease is not subject to attack on the ground that it is unilateral and lacks mutuality in that it binds the lessor notwithstanding the lessee is not bound to purchase.”

The agreement to pay rent, accordingly, constituted sufficient consideration for the option to purchase.

Nor do we agree that the provisions of Section 3 are indefinite, uncertain, or meaningless. The description is sufficient to support specific performance. Ray v. Robben, 225 Ark. 824, 285 S. W. 2d 907. The price of $4,250 is certainly definite, and the time in which the option is to be exercised is stated with clarity. The ruling of the court was evidently based upon the language “terms of sale to be determined later”, but this language is not actually necessary to the validity of the agreement, and is, in a sense, surplusage. The elements essential to this option having been stated, viz., description, price, and time, the provisions of Section 3 are adequate. If the parties should be unable to agree upon the terms or conditions, it would simply mean that Walters would be required to pay cash for the property in exercising the option.

Accordingly, we conclude the trial court was in error in holding paragraph 3 of the lease void, and in sustaining the demurrer as to the alleged option contract and all parts of the complaint based thereon. The cause is remanded with directions to overrule the demurrer, and proceed in a manner not inconsistent with this opinion.

       See Walters v. Burnett, 228 Ark. 45, 305 S. W. 2d 549. The cause was remanded because no final order had been made from which an appeal would lie.

       The demurrer was sustained by the court, and no further pleadings filed or action taken as to King.

       See Sec. 27-301 and Sec. 27-357.

       Burnett filed his demurrer and answer on December 10, 1956, thus entering his appearance.