author: George Rose Smith, Justice.

text:
    Jerry Spears v. El Dorado Foundry, Machine & Supply Company
    5-4231
    414 S. W. 2d 622
    Opinion delivered May 15, 1967
    [Rehearing denied June 5, 1967.]

      Shackleford & Shackleford, for- appellant.

      M. P. Matheney, for appellee.
   George Rose Smith, Justice.

This is a suit brought by the appellee upon a written contract by which the appellant and two other men guaranteed the payment of an open account owed to the plaintiff by Southern States Mechanical Contractors, Inc. The appellant insists that his liability as a guarantor was discharged by the • appellee’s action in extending the time for payment and in taking Southern States’s promissory note in place of the open account. The chancellor rejected this defense, but we are of the opinion that it should have been sustained.

R. L. Clinton, J. R. Gardner, and the appellant were officers of Southern States. On October 27, 1961, they signed the following letter, addressed to the appellee: “This is to advise you that, because of our special interest in the above named Corporation, we, the undersigned do jointly guarantee the account of Southern States Mechanical Contractors, Inc. up to a limit of $6,-000.00.”

' Six months later Spears, with the knowledge of the appellee company, sold his stock in Southern States (for $292.69), withdrew from that concern, and went in business for himself. Later on Spears obtained a discharge in bankruptcy, but he failed to schedule his obligation to the appellee and so was not released from it.

At the time the guaranty agreement was executed Southern States owed the appellee $5,074.48. On June 11, 1962, the appellee for the first time took a promissory note from Southern States for the amount due, the note bearing interest at six per cent and being payable in ninety days. The appellee discounted the note at a bank and continued to sell merchandise to Southern States on credit. When the note reached maturity Southern States paid the interest, made a payment on the account, and executed a renewal note for the balance still due. Similar renewal notes were executed and discounted over a period of nearly two years, the final note being dated March 17, 1964. Clinton and Gardner, the other guarantors, signed the notes, but Spears knew nothing about them.

Southern States finally became insolvent and went into receivership, paying two cents on the dollar. The appellee was unable to collect anything from Clinton or Gardner. At last, more than three years after Spears had left Southern States, the appellee demanded that he pay the amount still due — $3,276.93. Spears’s refusal to pay led to this suit, in which the appellee sought and recovered not only the face amount of the claim but also the interest and attorney’s fees provided for in the last promissory note.

- The guaranty, with its stated limitation of $6,000, was a continuing one which would remain in force until it was revoked as to future transactions. First Nat. Bk. v. Waddell, 74 Ark. 241, 85 S. W. 417, 4 Ann. Cas. 818 (1905). (In citing the Waddell case we should explain that the word “not” which appears in the next to the last line on page 246 of the Arkansas Report was inserted by a typographical error and was not part of the original text that was being quoted.)

The appellee’s substitution of interest-bearing notes, payable in ninety days, for the open account, payable on demand, discharged Spears’s liability as a guarantor. We considered a similar situation in Morrilton v. Moose, 185 Ark. 1051, 49 S. W. 2d 1044 (1932), where the appellees guaranteed the payment of a bank account owned by the city of Morrilton. The city accepted interested-bearing certificates of deposit, due in one, two, and three years, in lieu of the account. In holding that the sureties were discharged we said: “In the instant case negotiable instruments which might have been sold or transferred to a third party were taken in the stead of a checking account and created a new contract not only in form, bnt in substance, which precluded the city of Morrilton from withdrawing its money from the bank either in whole or in part and placed the sureties in a position where they could not protect themselves.” That reasoning is equally applicable to the case at bar.

Reversed and dismissed.


source: Caselaw Access Project

author: Paul 'Ward, Justice.

license: Public Domain

text:
    Jimmy C. Gossett et al v. State
    5255
    414 S. W. 2d 631
    Opinion delivered May 15, 1967

      Brown, Compton & Prewett, for appellant.

      Joe Purcell, Attorney General; Bon Langston, Asst. Atty. Gen., for appellee.
   Paul 'Ward, Justice.

Edward Easley and Jimmy C. Gossett and his wife were charged with the “crime of possessing burglary tools”. Upon trial they were convicted as charged and sentenced to two years in the penitentiary.

Appellants were charged and tried under the provisions of Ark. Stat. Ann. § 41-1006 (Repl. 1964) which, in all material parts here, reads:

“Any person who . . . has in his custody . . . any tools, false key, lockpiek, bit, nippers, fuse, force screw, punch drill, jimmy, bit, or any material, implement or other mechanical device whatsoever, adapted, designed or commonly nsed for breaking into any vanlt, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter, or window of a building of any kind, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than [2] years, nor more than ten [10] years.”

The facts are not in dispute. Early one morning a cream colored Buick car was seen parked at Charlie’s Drive-In which is located in the City of Magnolia. The occupants of the car appeared to be tampering with a cigarette machine placed outside of the Drive-In building. A policeman, who had been promptly notified, apprehended appellants in a Buick car similar to the one above mentioned. There was found in the car a tire tool, two screw-drivers, a lug wrench, and a bar used to remove tires from car wheels. Appellants were arrested, and were charged and convicted as above mentioned.

At the close of the State’s testimony appellants moved the court to direct a verdict in their favor. The motion was denied, hence this appeal.

It is our conclusion that the court erred in refusing to grant appellants’ motion.

It appears from the record that all the tools found in appellants’ possession are in common, daily use in connection with the operation of automobiles — except, perhaps, the screw-drivers which are commonly used in homes and shops. The sheriff, who was a witness for the State, testified, in substance: I know what these tools are; they are two screw-drivers, a lug wrench, and a bar that is commonly used to take tires off cars wheels— I carry one in the back end of my car; most cars are equipped with a lug wrench — I have one in my car; the bar is used to mount tires or take tires off of a wheel— that.is the purpose of it; the screw-drivers are in common use in households and are carried in automobiles.

It is true, as shown by the testimony, that any one of the above mentioned tools could be used to pry open a door or break into a house, but so could a pocket knife. Such a showing is not sufficient for a felony conviction under the statute previously quoted. The burden was on the State to prove beyond a reasonable doubt that at least one of these “tools” was designed or commonly used in committing burglary. It is our firm conviction that the State failed to meet this burden.

The case of Satterfield v. State, 174 Ark. 733, 296 S. W. 63, reversed a conviction obtained under the same statute here involved where the evidence was less favorable to the accused than here. In the cited case the accused had in his car two bolt cutters, four files, one hammer, two Stills on wrenches, a flashlight, and a pistol. In that case the Court said:

“"We cannot attribute to the Legislature the intention to prohibit the making, mending, designing, setting up or having in possession of the common, ordinary everyday work tools of a mechanic, plumber, carpenter, farmer or other person who may require such tools in business, trade or profession. If so, the act would be unconstitutional and void.”

The State relies on the case of Prather v. State, 191 Ark. 903, 88 S. W. 2d 851. That case, however, is not controlling or even persuasive in this case because the accused had in his possession nitroglycerin.

Reversed.

BrowN, J., disqualified.


author: Paul Ward, Justice.

text:
    Interstate Life & Accident Insurance Co., v. Aline Ellinberg
    5-4233
    414 S. W. 2d 857
    Opinion delivered May 15, 1967

      Macom & Moorhead, for appellant.

      George E. Pike, for appellee.
   Paul Ward, Justice.

This is an action to collect on an insurance policy issued by the Interstate Life & Accident Ins. Co. (appellant) to the husband (now deceased) of appellee — Aline Ellinberg. Suit was filed, under the policy, by appellee and, upon trial, the jury returned a verdict in her favor.

On appeal, appellant relies on one point:

“The Court erred in not granting appellant’s request for a directed verdict in its favor upon the conclusion of the evidence, because there was no substantial evidence on which a verdict could be based. ’ ’

. Set out below is a summary of the essential, and undisputed, background facts.

The policy was issued on March 22, 1965; it purported to pay $1,000 to the beneficiary (appellee) upon the death of Mr. Ellinberg who died December 17, 1965; an application for the policy, signed by the deceased and appellant’s agent, furnished certain information given by the deceased; the application (as filled out and signed) and the policy are made a part of the record, and; the decisive issue is whether the policy was invalidated because of false information contained in the application. The material questions and answers contained in the application are set out below:

15. “Q. Are you now in good health and free from physical impairment or deformity.?
A. Yes.
16. Q. Have you ever had an operation? .
A. Yes, appendectomy 1942.
17. Q. Have you ever been advised to have an operation?
A. Same as No. 16.
19. Q. Have you ever had any ailment listed (twenty diseases are listed, one of which is ‘high or low blood pressure’) ?
A. None.”
23. “Give below all causes for which you have con-consulted a doctor in the last five years.
A. None.”

The material parts of the policy are set out below.

“If this policy was originally issued on the weekly payment basis, and if, within two years before the date of issue of this policy you received institutional, hospital, medical or surgical treatment or attention, this policy will be void, unless (1) the claimant shows that the treatment was not material to the risk, or (2) reference to the treatment is contained in the application for this policy, or (3) the policy has become incontestable. If the policy is void, the premiums will be refunded.”

The policy was issued on a weekly payment basis.

Testimony. Set out hereafter is a brief summary of the testimony introduced in evidence.

Dr. Hester, for appellant: I treated the deceased between March 22,1963 and March 22,1965; treated him for asthmatic bronchitis, for asthma seven or eight times; his blood pressure was elevated; deceased knew he had high blood pressure; I had deceased in the hospital several times.
Mrs. Gilbert, a witness for appellant, testified: I am employed at the DeWitt City Hospital, in charge of keeping records; the deceased was admitted to the hospital once in September and twice in November, 1964. •

Appellee, in her brief, states the decisive issue in this case as follows: “The question, therefore, in this case is whether or not there is. any testimony in this record to show that the ailment was more than a mere temporary, trifling or unimportant affliction.”

Put on that basis, we thinlt the case must be reversed, because, we think there is such testimony — as pointed out previously. Appellee testified that her husband “died from, a heart attack”. Dr. Hester not only testified the deceased had high blood pressure and that he knew about it but he further testified, that asthma could, induce coronary thrombosis. He stated: “The problems which you see with asthma as far as your car-dial is concerned is a' right-sided heart failure which comes on over a period of time due to the thickening of the right side of the heart due to the fibrosis of the lungs . ...” As previously pointed out the policy would be void if deceased failed to reveal the facts that he had received hospital or medical treatment within two. years before issuance of the policy. The record is conclusive that he did receive such treatment and within the stated time. Also we think the treatments were for ailments more than “mere temporary, trifling or unimportant”. It is pointed out that a doctor’s testimony in matters of this nature are entitled to more weight and consid-reation than that of lay witnesses. This was pointed out iii the case of Woodmen of the World v. Brown 194 Ark. 219 (p. 223) 106 S. W. 2d 591.

The case must therefore be and it is hereby reversed.

Reversed.


author: Lyle Broww, Justice.

text:
    Elton Gordon et al v. Street Improvement District No. 1 of Gillett et al
    5-4181
    414 S. W. 2d 628
    Opinion delivered May 15, 1967

      John W. Moncrief, for appellants.

      Macom So Moorhead and Townsend So Townsend, for appellee.
   Lyle Broww, Justice.

Two complaints were filed by a total of six property owners (appellants here) challenging the formation of, and validity of assessments levied by, Street Improvement District No. 1 of Gillett. The trial court held the District to have been legally formed and the challenged assessments valid.

The District was formed in 1964 and covered the entire city, or town, of Gillett. At that time a part of only two streets in Gillett were hard-surfaced. The new program called for the hard-surfacing of a great majority of all business and residential streets. These suits were filed in July and August 1965, shortly after the ordinance was passed assessing the benefits to the property owners.

Appellants list nine points to be relied upon for reversal. .The points are not listed in the argument, but from, a careful examination of matters argued, we discern three contentions. We have many times held that points not argued in, the brief are -waived. This Casé points up one good reason for the rule. Absent argument of points, we would have to explore a. record consisting of 689 pages, an abstract consisting of 147 pages, and numerous detailed exhibits. We proceed to consider the three points which are argued.

1. The assessors and commissioners of the district arbitrarily and illegally accented the assessments made by the county assessor of the value of the improvements. The argument does , not cite us to any testimony to support this contention, nor do we find, any in the abstract. Two of the district’s assessors testified, at length. They estáblished a well-recognized formula for assessing benefits — such elements as property value, superficial area, frontage, location, improvements, and relation to business and other establishments. The board held some thirty meetings and all decisions on assessment factors were made when at least two of the assessors were present. The services of a registered professional engineer were utilized. All three assessors signed the original assessment. The assessment on a small number of tracts wás revised and that certificate was signed by two of the assessors. If any of the tracts in the revised assessment were owned by appellants it is not pointed out in the abstract or the brief. The trial court approved-these records, and in the absence of citation to the contrary we must assume he was correct.

2. The second contention of appellants is: “The evidence shows the partiality and discrimination as between Sullivan, Gordon, Fred Morgan, Yizzier, Lehman, M. M. Morgan and Pratt appellants, on the one hand, and certain town officials and some of the appellees on the other.” From an examination of the abstract, we find the conclusion of the trial court on this point to be fully justified by the evidence. His finding was stated in these words:

“Even.though an effort was made to show that the assessors gave favored treatment to the mayor, members of the council and others, the record does not reflect that the assessors deviated in the slightest from the established method and formula used in assessing the benefits. On the contrary, the record reflects that they consistently used the same criteria and formulae for each and every parcel and tract of real property located within the confines of the street improvement district.”

Two of the assessors testified for a substantial part of the three-day trial. They were closely examined and cross-examined with respect to the assessments on tracts of alleged “favored” citizens. The testimony of the landowner-appellants in this regard consisted mostly of personal opinions to the effect that they had been mistreated. Their testimony was not based on benefits measured by the well-developed guidelines used by the assessors. A summarization of the testimony would serve no useful purpose and unnecessarily extend the opinion.

3. Finally, appellant F. Lehman asgerts a wrongful and excessive assessment of his farm land. Preliminarily, Lehman contends that he was fraudulently induced to sign a petition for the creation of the district. Part of Lehman’s farm extends into the city limits and is improved inside the city. He was assured, so he says, that his farm would not be affected by any tax. Boles v. Kelley, 90 Ark. 29, 117 S. W. 1073 (1909), holds a similar contention to be unavailing when it is not shown that signatures procured by fraud were sufficient to reduce the number of remaining signers to less than a majority. There was no such allegation in the case at bar.

Finally as to the allegation of excessive assessment: The north portion of Mr. Lehman’s farm is inside the city limits. That portion is platted in lots and blocks, but functionally it has remained in acreage. There appears to be roughly forty acres. His property line abuts several of the streets which will be paved. The present improvement on this property is a modern home at the south end of Second Street. That street will be paved. Mr. Lehman also has an elevator in the northeast corner of the property and within a few hundred feet of streets to be paved. He does custom drying of rice, oats, and soybeans. That portion of Lehman’s farmland inside the city will abut fourteen blocks of improved streets. The annual taxes are $219.80. Lehman figured it “acreage-wise” and it amounts to $4.86 per acre. The chancellor found Lehman’s assessments to be neither arbitrary, discriminatory, capricious, nor excessive.

Most of the protesting landowners testified. Essentially, they gave their opinion that their assessments were excessive, particularly because of the absence of direct and immediate benefits to be received from the improvement. They also made comparisons with assessments levied on their neighbors ’ properties. They showed no knowledge of the many criteria used by the assessors. Under a basic rule of law enunciated by this court on at least four occasions, it is most difficult to establish excessive assessment by the landowners’ type of testimony. In Improvement Dist. No. 1 of Clarendon v. St. Louis Southwestern Ry., 99 Ark. 508, 139 S. W. 308 (1911), this court said:

“When the assessment of the benefits arising from, and the proportionate cost of, a local improvement has been made upon the property specifically benefited thereby, by the proper officials in the manner prescribed by law, it devolves upon the party attacking same to show that the amount of these assessments is excessive or unequal. It has been held that the amount of the benefits which such officers have found and determined to accrue to each lot and parcel of real property in a district by reason of the improvement will be presumed to be correct and just, and tile courts will not disturb same until tbe contrary bas been shown by tbe evidence. Such evidence must consist, not merely of opinions that the assessments are excessive, but of facts, which ‘will overturn the prima facie fairness and equality of the assessment established by the returns of the assessors.’ ”

The findings of the chancellor are in all respects affirmed.


author: JohN A. Fogleman, Justice.

text:
    Boyce E. Gross & Deloris Gross v. W. S. Young
    5-4233
    414 S. W. 2d 624
    Opinion delivered May 15, 1967
    [Rehearing denied June 5, 1967.]

      Mobley & Bulloch, for appellants.

      Richard M. Priddy and John G. Rye, for appellee.
   JohN A. Fogleman, Justice.

Appellants, husband and wife, seek to reverse a decree of the chancery court cancelling a deed by which appellee, grandfather of one of appellants, conveyed certain lands to them reserving a life estate.

The deed was executed by appellee on June 14, 1963. Suit for cancellation was filed March 23,1966. Ap-pellee alleged in his unverified complaint that he went to the home of his grandson, Boyce Gross, to live about May 9, 1963, and that he made arrangements with Gross whereby he would convey the property to the latter if Gross would furnish a home to him as long as the former lived. He further alleged that he executed and delivered the deed in order to carry out this agreement and that the consideration was the agreement on the part of the grandson and his wife to furnish him a home. Although appellee stated that he was 92 years of age at the time of filing the complaint, there are no allegations of mental incapacity or undue influence. The only basis alleged for cancellation was that on September 19,. 1964 Gross told appellee, with an oath, to take his trunk and ieave. Appellee claimed that this conduct amounted to fraud and failure of consideration. Appellants, in their answer, admitted the execution and delivery of the deed but denied all other allegations of the complaint. After hearing all the evidence, the chancellor announced his holding that, considering the advanced age of appellee at the time of the. transaction, the relationship of the parties, and testimony to-prior deeds, the deed would have to be cancelled without regard to whether the agreement was made or not. Decree, from which this appeal is taken, was accordingly entered. In this finding and action we find reversible error.

"While the chancellor did not find there was any agreement between the parties, appellee’s testimony completely negated the allegations of the complaint.

Appellee had five children, two boys and three girls, only three of whom were living at the time he testified. The mother of Boyce Gross was one of these children. She died when Boyce was two or three weeks old and appellee and his wife brought him to their home and raised him. None of the other four children were ever married. The three living children all resided at appel-lee’s old home place. Although appellee claimed to be a resident of Pope County, he had worked in southeast Arkansas after 1937, coming back in 1955 and staying six years. Thereafter, he went back to southeast Arkansas but returned tó Pope County in 1963. He visited frequently in his grandson’s home during all these years, staying as long as a week. He testified that he was fond, of his only grandchild, loved him and had confidence in his integrity. He went to the home of this grandson to live on May 9, 1963. He said that Boyce was just about like íps own child. Appellee rode with Gross to the latter’s work one day and, on the way, told Gross that he was not going back anymore but would get a place in Pope County. Gross then said that ap-pellee could live with him as long as he wanted to. On a later date appellee walked alone to the office of a lawyer for . the purpose of talking about making a will. Later he went back and the lawyer, now deceased, prepared a deed to appellants. He said that Gross had been with him on this trip but had gone back to his work before the deed was written. Appellee took the deed home and gave it to Gross. Thereafter, Gross thought there was something wrong with this deed in that it did not describe a four-acre tract properly. Boyce Gross had Mr. Charles Gardner, a Russellville attorney, look it over and appellee went to this lawyer’s office a few days later and signed new deeds, one to appellants and one to his son, John Young. Both deeds recited that the consideration was $1.00 and other good and valuable considerations paid. Appellee said that he just gave his son part of his land and appellants part of it.

Appellee did not say anything to Gross about giving him any land and did not talk to either of appellants about giving them land until the first deed had been made. On cross-examination appellee gave this explanation for deeding the land to his grandson:

“Q. Now you never did — let me rephrase that question. Mr. Youiig, you never did have a discussion with Mr. Boyce Gross and Deloris Gross that they agreed to take care of you if you agreed to convey this property did they! They never did make such an agreement as that did they?
A. No, sir.
Q. You just thought you’d give it to them?
A. Boyce said I could stay with him as long as I wanted to and I was giving him the property to satisfy him. That was paying him for keeping me;
Q. All right, sir, and you also might have given it to. him as a gift because you liked him, is that right?
A. No, I’d done give him all I could stand to give him. I give him the property to make it safe so he could get his pay for keeping me.
Q. Well sir, he never did ask yon to give btm anything for payment for keeping yon did he?
A. No, sir.”

Appellee testified that he had made other substantial gifts to appellants, both before and after the making of the deed.

On behalf of appellants Mr. Gardner testified that Mr. Yonng told him that he had the original deeds prepared because he was personally fond of Gross and that his sons had been living on his property for many years and taking the income but that Gross had not participated. Appellee expressed a desire to Gardner to take care of Gross and John Yonng, whom he considered to be a-favorite son. While the testimony is not clear as to the content of the original deeds which were probably destroyed, Gardner said there was an error in one or both of them. He also said that he recommended to appellee that a life estate be reserved in these-deeds. He further said that he told appellee he would not have him execute the deeds on the first day he came to the office nor would he permit him.to sign them if either Boyce Gross or John Young were present, but if appellee wanted him to prepare the deeds, he could come back sometime by himself. He testified that appellee appeared the next day, apparently by himself, and executed the deeds.

Appellee does not agree with Gardner’s version of the preparation of these deeds. He testified that he gave Gross the original deeds and never saw them again. He said Gross had Gardner prepare the new deeds and then took him down to sign them. He denied having any conversation with Gardner about the deeds and said that Gardner just showed him where to sign. He did not read them, thinking they would he copies of the original deeds.

It is true that where a deed is executed in consideration of an agreement by a grantee to support the grantor and this agreement is made by the grantee for the fraudulent purpose of securing the deed and without the intention ,to carry it out, the deed will be set aside in equity for fraud. Hendrix v. Thomas, 235 Ark. 791, 362 S. W. 2d 22. It is also true that this court is committed to the doctrine that a grantor may, in equity, have a deed rescinded and the title reinvested in him whenever he has conveyed land to a grantee in consideration of an agreement by the grantee to support, maintain and care for the grantor during’ the remainder of his .natural life and the grantee neglects or refuses to comply with the contract. Hendrix v. Thomas, supra. In this case, however, there is no evidence to show there was any such agreement. The testimony of the grantor positively negates this. His acts were motivated by the love and affection he had for that grandson whom he had raised as if he were his own child, and gratitude for the offer of a home for his declining years. Natural love and affection has always been held to be sufficient consideration for a deed where the relationship of the parties is such as to justify the presumption that love and affection exist. Faulkner v. Byland, 201 Ark. 1185, 147 S. W. 2d 37. No matter how much the grandfather’s confidence may have been misplaced, no matter how reprehensible we may think the subsequent conduct of the grandson to be, the making and delivery of the deed by appellee was a purely voluntary act on his part and the vesting of title was complete upon delivery of the deed. Ferguson v. Haynes, 224 Ark 342, 273 S. W. 2d 23.

It is ifot clear, to as on just what grounds the chancellor cancelled this deed. His reference to the age of the- grantor, the relationship' of the parties and their dealings might léad to the conclusion that he felt that the deed was procured through undue influence of Boyce Gross over his grandfather. He may have meant to indicate some degree of mental incompetency. Not only was there no allegation of mental incompetency in the pleadings, but there is a total failure of proof in that regard. What this court said in Richard v. Smith, 235 Ark. 752, 361 S. W. 2d 741, is appropriate here:

“There was recently before us the case of Donaldson v. Johnson, 235 Ark. 348, 359 S. W. 2d 810, which involved a woman of advanced age who suffered from diabetes and. other disorders and would have intervals in which she was mentally unstable but at other times was perfectly competent. She deeded her home to her granddaughter and in that case we said:
‘The test of mental competency to execute a deed is found in Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009, where we quoted Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510, as the applicable rule in cases of this kind.
“If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in hi,s 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 interest m dealing with (mother 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. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590 ; Seawel v. Dirst, 70 Ark. 166, 66 S. W. 1058 ; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 ; McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888.” [Emphasis added]’ ”

It is crystal clear that appellee met this test. The trial judge, in stating that he would permit some leading by counsel in examing appellee because of his advanced age, commented that his memory was very good as to these events. Appellee’s testimony clearly demonstrates his mental capacity.

There is also a total failure of allegation or proof of undue influence. Notwithstanding the confidence of appellee in Boyce Gross, the former’s own testimony shows that there was no effort on the part of Gross to influence the old gentleman in any respect. Mr. Young acted as a free agent in disposing of his property. Obviously, his greatest affection was directed toward his only grandson and one of his sons, to both of whom he deeded property. He also seemed to have felt that there had been some discrimination against his grandson, in that the latter had not shared in the income from the home place as had Mr. Young’s children.

In Boggianna v. Anderson, 78 Ark. 420, 94 S. W. 51, this court said:

“*** It is not sufficient that the grantor or testator was influenced by the beneficiary in the ordinary affairs of life, or that he was in close touch and upon confidential terms, with him; but there must be a malign influence resulting from fear, coercion, or any other cause which deprives the grantor or testator of his free agency in disposing of his property. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590.”

We find no evidence to meet this test.

Reversed and dismissed.

       Appellee testified that these gift's of a value of over $2,000.00 were “not much”.

       The error pertained to ,the description of a four-acre tract.

      While the originals were not available and no one testified as to their content, the. inference is strong that Mr. Yoking had deeds to both Boyce Gross and John Young prepared by the first lawyer he saw.


author: J. Feed Jones, Justice.

text:
    Pulaski Federal Savings & Loan Association, A Corporation v. Donald S. Woolsey
    5-4213
    414 S. W. 2d 633
    Opinion delivered May 15, 1967

      Wright, Lindsey &Jemdngs, Edward L. Wright, Jr., for appellant.

      Reed & Blackburn, G. E. Blackburn, for. appellees.
   J. Feed Jones, Justice.

This is an appeal from a decree of the Pulaski County Chancery Court wherein mortgagéd property was sold under a decree of foreclosure hut a money judgment against the mortgagor was denied.

The record reveals that on March 11, 1964, Donald St .Woolsey and wife, for value received, gave Pulaski Federal Savings & Loan Association their promissory note for $22,000.00 payable in monthly installments of $141.76 and secured by a mortgage on property owned by Mr. and Mrs. Woolsey. The note contained a thirty day acceleration clause.

On November 12, 1964, the Woolseys conveyed the property to William and Mary Prim, and Mr. and Mrs. Prim assumed payments of the note to Pulaski Federal under an agreement between the Prims and Pulaski Federal, wherein the Woolseys were not released, but were specifically retained as primary obligors on the note. No payment was made on the note from June 1965, until November 12, 1965, when the rights under the acceleration clause were exercised by Pulaski Federal and suit was filed praying a joint and several personal judgment against the Woolseys and the Prims for the balance of the unpaid indebtedness on the note in the amount of $21,571.16, together with interest, attorney’s fee. and cost for a foreclosure of the mortgage lien on the property.

The case was tried on August 11, 1966, and on August 30, 1966, th chancellor decreed a personal judgment against the Prims for $21,648.36, together with interest at the. rate of ten per centum per annum from March 10, 1966, and ordered sale of the property under foreclosure and the proceeds applied to the judgment. The decree included $500.00 attorney’s fee hut personal judgment against the Woolseys was denied.

On September 2, 1966, notice was given by the Commissioner in Chancery that the property would he sold on September 29,1966, under the foreclosure decree. On September 28, 1966, the Woolseys filed a motion in part as follows:

# * *
“As matters now stand, these defendants, Donald S. Woolsey and Betty J. Woolsey, have no monetary interest in the outcome of a forced sale of said property, however, should the plaintiff be successful on appeal .in securing the right to a personal judgment, defendants would then have a monetary interest in the- outcome of the Commissioner’s Sale.
“WHEREFORE, defendants pray that an order he issued from the Court suspending the Commissioner’s Sale and appointing a receiver to procure a tenant, collect rents and hold the proceeds of such rents subject to the orders of this Court until a final determination of this matter is determined by the Supreme Court or the time for appeal expires without the perfecting of such appeal.”

Also on September 28, 1966, Pulaski Federal filed notice of appeal to this court from that portion of the final decree which denied personal judgment against the Woolseys.

The motion to suspend the Commissioner’s sale was denied on September 29, 1966, and on September 29, 1966, the property was sold under the foreclosure decree and Pulaski Federal purchased it for the highest and only bid of $18,000.00.

Pulaski Federal has perfected its appeal to this court relying on the single point for reversal as follows:

“The Court erred as a matter of law in denying personal judgment on the note against the Wool-seys.”

"We agree with the appellant. There is no question hut that property may he sold under a mortgage foreclosure and a judgment rendered for the recovery of the debt against the defendant personally. Ark. Stat. Ann. § 51-1106 (1947).

The general rule as announced in 59 C. J. S. § 774 is as follows:

“Effect of Foreclosure
.. .the personal liability of a mortgagor is released and extinguished by a foreclosure of the mortgage only to the extent of the value of the premises, in the case of a strict foreclosure, or, in the case of a foreclosure and sale, to the extent of the proceeds applicable to the mortgage debt. In other words, if the mortgagor was originally liable for the mortgage debt, he remains liable for any unsatisfied balance, including unpaid costs and expenses. The rule is not affected by the fact that the mortgagee bid in the premises at the foreclosure sale, for much less than their value, if no fraud or inequitable conduct is shown; and the fact the land increased in value after the foreclosure sale, enabling the mortgagee to make a profit, does not affect the liability of the mortgagor. .Where a foreclosure sale is not completed, the mortgagor’s personal liability for a deficiency is not extinguished.”

Between the time the foreclosure suit was filed in this case on November 12, 1965, and the decree was entered on August 30, 1966, a period of nine months, considerable effort was made by appellees to bring the account current, and considerable indulgence was exercised by appellant in* permitting them to do so. Appel-lees were never able to pay all the delinquent payments qnd finally, appellant refused a partial payment of $188.00 and proceeded with the foreclosure.

Appellees were parties defendant in the foreclosure suit. They filed an answer admitting all the material allegations in the complaint except default in payment which they denied. Appellees filed no counter claim or cross complaint and upon final decree filed no appeal or cross appeal to this court.

Appellees now seem to argue that if appellant had accepted the payment of $188.00 tendered by appellees, and had accepted other payments in similar amounts which appellees could and would have made; and if appellant had credited all the payments so made to the principal and interest on the note rather than principal, interest, insurance and taxes which were included in the agreed monthly payments; then the payments of principal and interest would have been within $199.00 of current, and for that reason it was inequitable for appellant to accelerate the payment of the remaining installments on the note. We find this argument without merit.

All the payments made by appellees were properly credited to the indebtedness and were properly deducted in the chancellor’s decree.

The case of Crone v. Johnson, 240 Ark. 1029, 403 S. W. 2d 738 (1966) cited by appellees, is not in point with the case here. In the Crone case, the purchase mortgagor was current with his payments until a windstorm damaged the mortgaged property. He was the beneficiary under an insurance policy with loss payable clause in favor of appellee. The insurance check covering the loss' was made, payable to both parties and neither would endorse the check so the other could cash it. The mortgagor repaired the damage to the property and in doing so he missed two mortgage payments. The mortgagee undertook to accelerate the' maturity of the other payments and sued for the full amount of the indebtedness and for foreclosure. The chancellor in that case allowed the acceleration and ordered the insurance money applied on the debt. This court found that both parties were at fault and reversed with directions to apply the money on the delinquent payments and then on repairs'.

In the case of Johnson v. Guaranty Bank & Trust Co., 177 Ark. 770, 9 S. W. 2d 3, this court said:

“The stipulation for accelerating the timé of payment of the whole debt may be waived by the mortgagee, especially when it is made to depend upon his option. A court of equity will also relieve against the effect of such provision, whére the default of the debtor is the result of accident or mistake, or when it is procured by the fraud or other inequitable conduct of the creditor himself.
“Under our decisions, the stipulation in a mortgage for the whole debt to mature upon default of a part of the debt is not treated as a forfeiture clause, but rather as a stipulation for a period of credit on condition. A breach of the clause can only be relieved against when some one of the equitable grounds above stated are established. It was not shown that the failure of the mortgagors to make the payments as stipulated in the mortgage was attributable to the plaintiff or its officers. No excuse was offered for the nonpayment of the levee taxes except that the defendants were short of money, and this [is] not sufficient. It is claimed that the failure to pay the purchase money note and the accrued interest on January 1, 1927, was due to the fault of the mortgagee, and an effort was made to place the blame upon its officers who represented it in the transaction, but in this the chancery court was justified in finding that the defendants have failed.
, # * #
“It was the duty of the defendants to pay the installments as they fell due, and they could not rely on any confusion that resulted from a misunderstanding on their part, which was not the result of any inequitable conduct of the plaintiff or its officers, and' which, was not caused by any misrepresentations made by them. The chancery court made an express finding that plaintiff did no act amounting to a waiver by it of its rights under the acceleration clause, and, under our familiar rules of practice, the finding of facts by a chancellor must be upheld upon appeal, unless clearly against the preponderance of the evidence. Such is not the case here.” (emphasis supplied).

The chancellor, in the case before us, obviously found that appellant did no act amounting to a waiver by it of its rights under the acceleration clause in this case. Had the chancellor found otherwise, no decree would have been entered against the Prims for money judgment and for foreclosure. Certainly the chancellor’s finding in this regard is not against the preponderance of the evidence, and the correctness of the decree was not challenged.

The chancellor’s finding that the payments were in default is also sustained by the evidence and the decree was not challenged on this point. The judgment against the Prims and the foreclosure of the mortgage decreed by the chancellor was inconsistent with the denial of personal judgment against appellees.

Appellees stated in their' motion, supra, that they had “no monetary interest in the outcome of a forced sale of said property,” unless appellant should be successful on appeal. That proposition, as well as most of the other contentions of appellees, was settled in the cose of McCown v. Nicks, 171 Ark. 260, 284 S. W. 739, where this court dealt with a very similar situation as the one we have here, except the mortgage debtors are reversed. • - .. ...

In the McCown case, a trustee sold a tract of land to one Willis for $11,400.00' evidenced by promissory notes secured by vendor’s lien retained in the deed. Nicks purchased the land from Willis and assumed the payment of the purchase money notes. Nicks failed to pay one of the notes and on January 12, 1921, recon-veyed the land to Willis, who reassumed the payment of the unpaid purchase money notes executed by him for the purchase of the land.

On June 2,. 1922, action was commenced against Nicks and Willis for judgment on the notes and to foreclose the lien* Nicks denied personal liability on the notes and ordered the property sold under the lien but the trial, court decreed the balance due on the note and ordered the property, sold under, the lien but dismissed the complaint against .Nicks for want of equity. The property was sold at foreclosure where it was purchased" by appellant for much les,s than the balance due on the notes, and the appeal was from that portion of the decree dismissing the complaint as to Nicks.

In reversing the trial court, this court said:

“So long as Nicks’ personal liability was thus undetermined, it is not correct to Say that he had no interest in the property pledged ,to, secure the purchase money notes, and that it was wholly immaterial to him whether the land under decree was sold for enough to satisfy-thé judgment. So long as the issue was unsettled as'to his personal liability, Nicks was bound to know that it was to his interest to have the property at the foreclosure sale sell for enough, if possible, to liquidate the amount of the decree..
*
“There is no inconsistency whatever in appellant’s accepting the . proceeds of the sale of the property under the decree as a payment on such judgment, and then seeking by their appeal to have appellee held personally liable for the balance due on' such decree. To. be sure the appellants would only be entitled to one satisfaction of their judgment, but, since the proceeds of the foreclosure sale did not pay the amount of the judgment, if the appellee be personally liable therefor, the appellants had the right to appeal from the judgment of the trial court holding to the contrary.
j* • *
“A plaintiff in a foreclosure suit does not, by causing a sale under the decree of foreclosure before taking an appeal, thereby waive his right to appeal from that part of the decree fixing personal liability for a deficiency of proceeds of such sale.”

Wé are of the opinion that the chancellor erred in dismissing the complaint as to the Woolseys. The decree of the chancellor will be reversed as to Woolseys and this cause remanded with directions to render a decree against theni also.

Reversed and remanded.


author: Conley Byrd, Justice.

text:
    Pacific Insurance Company of New York v. Anna Belle Martin
    5-4234
    414 S. W. 2d 594
    Opinion delivered May 15, 1967
    [Rehearing denied June 5, 1967.]
    House, Holmes & Jeivell; By: Hon F. Hamilton, for appellant.

      White & Young, James K. Young, for appellee.
   Conley Byrd, Justice.

Appellant, Pacific Insurance Company of New York, was the corporate surety bondsman, pursuant to Ark. Stat. Ann. § 67-1238 (Repl. 1966), for M & M Securities Company, Inc., a bonded and licensed securities broker under Act 254 of 1959 (Ark. Stat. Ann. §§ 67-1235 — 67-1262 (Repl. 1966). Pacific appeals from a judgment in favor of Anna Belle Martin for $1,838, together with 6 per cent interest and $500 attorney’s fee taxed under Ark. Stat. Ann. § 67-1256 (Repl. 1966): The basis of appellee’s judgment was that an agent of M & M Securities Company, Inc., misrepresented the value of 2,000 shares of stock in Allied Companies, Incorporated, which he exchanged with appellee for 1,838 shares of First Security Life Insurance Company common stock. Judgment by default was entered against M & M.

For reversal, appellant alleges that the court erred in admitting appellee’s testimony as to the value of the First Security stock; that on the record the trial court should have granted a judgment notwithstanding the verdict for $385.98, the value placed upon the First Security stock by appellant’s expert witness; and that the trial court erred in awarding an attorney’s fee because no tender of the stock was made to the dealer, M & M Securities Company, Inc., prior to entry of the judgment. The first two interrelated issues will be discussed together.

The testimony shows that appellee, a lady 53 years of age with a tenth-grade education and a farmer by experience, had had no practical experience with securities such as stocks; and that on January 14, 1964, she owned 1,838 shares of First Security common stock which she traded to M & M for 2,000 shares of Allied. When asked what she paid for the stock, she stated $1,-838, but this answer was struck from the record by the trial court. Thereafter the only testimony about the value of the First Security stock was her testimony that the agent for M & M represented to her that it was worth $1 per share, whereas the Allied stock was worth $1.15 per share — i. e., that her First Security stock was worth $1,838 but that the Allied stock which she was receiving was worth over $2,000. Appellee also testified that the Allied stock was then of absolutely no value. There was no cross-examination of appellee.

Dayton Covington, a stock broker with Trulock & Company, Inc., of' Little Rock, was called as an expert witness by appellant. He testified, based upon two over-the-counter transactions of First Security stock, that the stock sold for 20 cents and 21 cents per share. His opinion was that on January 14,1964, a share of First Security common stock was not worth more than 21 cents.

While we have held that an owner’s testimony on value of personal property is competent evidence, Pettit v. Kilby, 232 Ark. 993, 342 S. W. 2d 93 (1961), it is seen that in this case appellee did not pretend to know the value of her First Security stock. Therefore, we must agree with appellant that there was no competent testimony here to show that the value of the 1,838 shares of First Security stock was in excess of that testified to hy Mr. Dayton Covington. Upon this state of the record, we hold that the trial court should have granted appellant judgment notwithstanding the verdict for $385.98.

Appellant contends that the trial court erred in awarding an attorney’s fee under Ark. Stat. Ann. § 67-1256, supra, because no tender of the Allied stock was made to M & M, the stock dealer, prior to the entry of the judgment. In making this contention, appellant relies on People ex rel. Harley v. Hendrie, 263 Mich. 613, 249 N. W. 12 (1933). The Michigan court decision is based upon 2 Comp. Laws of Mich. 1929, Ch. 188, § 9788, which provides that in case of sale contrary to law the sale shall be voidable and.the person making such sale “. . . shall be jointly and severally liable to such purchaser, upon tender to the. seller or in court of the securities sold..., for the-full amount paid by such purchaser.” (Emphasis supplied.)

Our statute with respect to the allowance of attorney’s fee and a tender, Ark. Stat. Ann. § 67-1256, supra, provides as follows:

“(a) Any person who
# * *
“(2) offers or sells a security by means of any untrue statement. . . is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at six per cent [6%] per year from the date of payment, costs, and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security and any income received on it, or for damages if he no longer owns the security. “(c) Any tender specified in this section may he made at any time before entry of judgment.” (Emphasis supplied.)
# # #

With reference to the tender, the record shows that appellee’s counsel mailed the Allied stock to appellant’s counsel on October 26, 1966, and it was returned to ap-pellee’s counsel on October 27, 1966; that on October 28, 1966, counsel for appellee attempted to file the stock with the clerk of the court in which the action was pending; and that on November 1, 1966, the clerk returned the stock certificate to counsel for appellee. While the record shows that the judgment was dated October 27, 1966, it was entered nunc pro tunc on November 7,1966. In view pf the fact that M & M, the securities dealer, wholly defaulted and made no appearance in the litigation, we hold that under the circumstances here the foregoing was a sufficient tender to permit the allowance of attorney’s fee under Ark. Stat. Ann. § 67-1256, supra.

Therefore, we hold that the trial court should have entered a judgment notwithstanding the verdict for the amount of $385.98, together with interest and attorney’s fee. If appellee., before the issuance of the mandate herein by the clerk,, enters a remittitur for the difference between the principal sum of $385.98 plus interest and the sum of $1,838 plus .interest allowed by the trial court, the judgment will be affirmed. Otherwise the matter will be reversed and remanded .for a new trial.

Habéis, 0. J., not participating.


author: Carleton Harris, CMef Justice.

text:
    James Pitcher v. Henry A. Baltz, dba Lawrence County Implement Company
    5-4239
    414 S. W. 2d 859
    Opinion delivered May 22, 1967

      Rhine & Rhme, for appellant.

      Kirsch, Cathey & Brown, (Ray A. Goodwin), for appellee.
   Carleton Harris, CMef Justice.

A Greene County jury returned a verdict for Henry A. Baltz D/B/A Lawrence County Implement Company, appellee herein, against James Pitcher, appellant herein, on October 12, 1966, in the total amount of $3,244.47, hearing interest at the rate of 10% per annum until paid. Subsequently, the court awarded an attorney’s fee in the amount of $324.45, representing 10% of the principal and interest found to be due, together with costs! From the judgment so entered, appellant brings this appeal.

The testimony of the parties is in irreconcilable conflict. Baltz tesitfied that a salesman of his company, Bay Cox, sold Pitcher a second hand 141 International combine in September, 1962. Evidence on behalf of appellee reflects that appellant traded in a John Deere combine, leaving a balance dne in the amount- of $3,000.00. Under the terms of this transaction, $1,000.00 was dne in November of the same year, and $1,000.00 in each of the next two years. Appellant gave to appellee’s salesman a note in the said amount, with the last two installments bearing interest from date. Thereafter, according to Baltz, Pitcher and his father came to the implement company office on December 13, 1962, advising that he was not able to meet the $1,000.00 payment that was a few weeks past due. After a discussion, including an agreement to cancel certain repair bills which appellant had sustained in repair of the combine, and which had been occasioned by its use during the fall of 1962, Pitcher paid the sum of $600.00, and executed a new nóte for $2,400.00, interest being computed on the installments that would be due in November, 1963, 1964, and 1965, respectively.

It might be mentioned that, according to appellee, at the time of the September transaction, appellant had also executed appellee’s customary retail order form for used equipment, which reflected the transaction in its entirety. Baltz stated that, at the time of the December agreement, Pitcher not only executed a new note, as heretofore stated, but also executed a new copy of the retail order. This retail order reflects a total purchase price of $4,250.00, an allowance of $1,250.00 for the combine traded in by appellant, the cash payment of $600.00 made by Pitcher, the unpaid cash balance of $2,400.00, time price differential of $439.98, and the schedule of payment installments which would be due in 1963, 1964 and 1965. Appellee testified that he then returned the September note, and September order to Pitcher, since the new contract had been entered into.

The only matter in which the litigants agree is that $600.00 was paid on December 13; however, Pitcher says this amount was paid as a matter of relieving him from his September contract of purchase, and that he told Baltz to pick up the combine.

Thereafter, appellee negotiated the installment note to International Credit, with recourse upon appellee provided appellant failed to make his payments. None of the installments were ever paid by Pitcher, appellee making all payments to avoid default under the note. Following the last payment, International reassigned the note to Baltz, who repossessed the combine, sold same, and sued Pitcher for the deficiency, together with attorneys’ fee as provided in the note.

Appellant denied executing the December note, and stated that he had signed the note and order sued on in September in blank; he contended that these blanks had been subsequently filled in by appellee and constituted the alleged December note. Pitcher testified that he kept asking for the note that had been executed (in September) , but Baltz never would return it to him. He also contended that, under the September agreement, the balance due was $2,400.00, rather than $3,000.00.

Actually, the only question presented was whether Pitcher executed a noté, and order, in December, 1962. For reversal, appellant first asserts that the court erred in admitting, over his objection, certain evidence offered by appellee, and in restricting and limiting certain evidence offered by appellant. The second assertion for reversal is that the court erred in granting, on appellee’s motion, after the jury had been dismissed, judgment for the attorneys ’ fee, over the written objection of appellant.

Appellant constantly objected to the court’s action in permitting Mr. Baltz to testify concerning the terms of the September note, stating, “We object. The note is the best evidence, and we ask that the note be introduced.” Of course, under appellee’s theory, the note could not be introduced, for Baltz. stated it had been given to Pitcher in December when the new note and order were executed. Obviously, the note could not be introduced by the appellee if it had been turned over to the appellant.

Appellant also asserts that, though permitting counsel for appellee to question his witness relative to ’the September transaction, the court refused to permit the appellant to testify relative to some phases of the September transaction. The argument is without merit for two reasons. In the first place, it appears that áll óf the facts desired to be placed in evidence concerning the September transaction were, before the trial was -;over,, testified about, and in the next place, when the court ruled adversely to appellant on a particular question (concerning the September transaction) no offer of proof was made,, and we are without knowledge, as, to what the answer might have been. Appellant’s father testified in complete detail as to appellant’s version of the transaction which purportedly occurred at the,timé of the signing of the September note. The court also, originally, refused to permit Pitcher to testify. that appellant signed the note in blank. However, this testimony was later admitted, and, in fact, an instruction wa? given embodying appellant’s theory. .Defendant’s- . (appellant’s) Requested Instruction No. 1, .as . amended, was given to the jury, as follows:

“If you find that the note introduced'in'this suit', upon which the plaintiff bases his right- to obtain'judgement against this defendant was not filled out,, showing the principal and the time and amount of'payments and due dates according to their agreement, and without,der fendant’s knowledge and consent, you are instructed to find for the defendant.”

Appellant also complains' that his. testimony about the transaction in September was limited, the court instructing the jury to the effect that any testimony about the September transaction was permitted only for the purpose of determining the accuracy of the testimony of the parties with regard to what happened in December, 1962, and for no other purpose. This ruling was correct. Let- it he borne in mind that the note sued on was, according to appellee, executed in December. The answer to this litigation, after all is said and done, depends entirely upon the December transaction, i.e., did Pitcher'pay-the $600.00 on the $1,000.00 payment due in order to .renegotiate a new- loan — or did Pitcher pay the $600.00 as a matter of terminating the contract. The testimony relating to what happened in September when the' 'original purchase was made is only pertinent and important insofar.' as it sheds light on what agreement was entered into in December — or perhaps more simply stated, the September transaction was only pertinent to the extent that it evidenced which man was telling the truth about the December transaction.

.Each side offered additional witnesses concerning the original' agreement in September, and appellant of: ¿e'fecí the testimony of his father and wife, who, according'to! his statement, were present at the time of the December transaction. These were fact questions, and accordingly, to be determined solely by the jury. The jury found for appellee,' aiid this finding set at rest all fact questions’ involved in the litigation.

•; "!Appellant next complains that two days after the jury rendered its verdict, appellee’s attorney, by oral motion,' requested the court to allow judgment for a reasonable attorney’s fee in the amount of $324.45. Appellant objected,, and asked for leave to reduce his exceptions to writing, the request being granted. The arguments in'support of .appellant’s objection are that the matter of an attorney’s fee should have been presented to the jury and no evidence was presented either to the jury or to the court relative to the proper amount that would constitute a reasonable attorney’s fee. The arguments/ are without merit. There was no reason for the question of attorney’s' fee to be presented to the jury, for appellee’s counsel was not entitled to a fee until after the' jury had rendered a verdict in his client’s behalf. Appellant complains that no evidence was offered to the court, but this argument is without merit for two reasons. For one, though counsel for appellee requested the judge to withhold the entry of the judgment for at least one week, in order that appellant might have an opportunity to offer testimony with respect to the reasonableness of the fee allowed, and although the judgment was not actually entered for several weeks, apparently no effort was made by appellant to present any evidence. In awarding an attorney’s fee, it is not necessary that testimony be offered as to the reasonableness of the fee where the court has an opportunity to become familiar with the case and the nature of the services rendered. In Tech-Neeks, Inc. v. Francis, et al, 241 Ark. 390, 407 S. W. 2d 938, we said:

“The court allowed a $1,500.00 attorney’s fee, and appellant contends that this amount is excessive. It is mentioned that no testimony was offered through other attorneys as to the amount that would constitute a reasonable fee, but this was not necessary. In Phoenix Insurance Company of Hartford v. Fleenor, 104 Ark. 119, 148 S. W. 650, this court said:

‘“It is also true the record does not show that any proof was taken upon the question of a reasonable attorney’s fee before one was fixed by the court, but he had the whole matter before him, was familiar with the case, and the service done by the attorneys therein, and we cannot say that there was no evidence warranting his fixing the amount of the fee, which was a matter within the discretion of the court. Neither do we think the amount allowed is excessive.’ ”

The note sued upon provides for the payment of reasonable attorney’s fees incurred in collecting same, and we are of the opinion that the 10% fee allowed by the Greene Circuit Court was entirely reasonable.

Finding no reversible error, the judgment is affirmed.

FoglemaN, J., not participating.

       The same situation existed when appellant asked a question of Mr. Bal’tz on cross-examination relative to the sale price of the combine (in September). The court sustained an objection to .the question, but appellant did not offer to show what the answer would have been.


author: Carleton Harris, Chief Justice.

text:
    R. G. Johnson and C. R. Richardson v. David Gates, et al
    5-4240
    415 S. W. 2d 329
    Opinion delivered May 22, 1967

      Eugene Coffelt, for appellants.

      Hardy Croxton and Eli Leflar, for appellees.
   Carleton Harris, Chief Justice.

This litigation arises as a result of a school election in Bogers School District No. 30 of Benton County, held on September 27, 1966, at which time the electorate approved a 55 mill school tax. Appellants are taxpayers and qualified electors in the district, and they instituted suit as a representative action, maintaining that the tax was illegally passed. Appellees demurred, and after a hearing, appellants refusing to plead further, the court dismissed the complaint. From the judgment so entered comes this appeal.

Numerous allegations, as to irregularities of the election, were made in the complaint, hut only one is argued on appeal, vis., that the ballot is an illegal and void ballot. The first section of the ballot provided for the election of a member of the board of school directors; the second section provided for the election of a member to the county board of education; the third section provided for the election of a member at large of the county board of education, and the fourth section, at issue in this litigation, reads as follows:

“Vote on measure by placing an “X” in the square above the measure either for or against:

For tax □

Against tax □

“The 55 mills tax includes (a) 17 mills for the maintenance and operation of schools; (b) 29 mills for the retirement of existing bonded indebtedness which has been previously voted and is a continuing annual building fund tax until the bonds are paid; and (c) 9 mills of this tax is to be collected annually and will constitute a continuing annual building fund tax until the payment in full of the principal and interest of a proposed bond issue of $1,000,000, which will run 20 years and will be issued, for the purpose of erecting and equipping new school buildings, and making improvements and additions to present school facilities.
“The surplus each year arising from the building fund taxes, after providing for principal and interest maturing that year and the next six months’ interest on all the outstanding bonds, may be used by the District for calling bonds for payment prior to maturity or for other school purposes.”

Appellants ’ contention is set forth in the following statement in their brief:

“Every citizen and voter expects .tó levy a school tax for the operation of the schools of Arkansas in the several school districts. This he was not permitted to do in the case at bar. The voter was not perinitted to vote for the school millage without voting for the building fund of 9 mills and on the other hand was not permitted to vote for the 9 mill building fund without voting for the school millage and still on the other hand was not permitted to vote for the school millage and against the building fund and still on the other hand was not permitted to vote for the bhilding fund and vote against the school millage. ”

Further

“There will be much said by the appellees in regard to Amendment No. 40 of the constitution of Arkansas, but let it be said that Amendment No. 40 to our constitution specifically provides that the election shall be held under the supervision of the School Board to provide for the levy of Tax mills for the maintenance of school, the erection and equipment of school buildings and the retirement of EXISTING indebtedness.”

It is true that this litigation is controlled by Amend-No. 40. That amendment provides as follows:

“The General Assembly shall provide for the support of common schools by general law, including an annual per capita tax of one dollar, to be assessed on every male inhabitant of this State over the age of twenty-one years; and school districts are hereby authorized to levy by a vote of the qualified electors respectively thereof an annual tax for the maintenance of schools, the erection and equipment of schodl buildings and the retirement of existing indebtedness, the amount of such tax to be determined in the following manner:
“The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for tbe foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. If a majority of the qualified voters in said school district voting in the annual school election shall approve the rate of tax so proposed by tne Board of Directors, then the tax at the rate so approved shall be collected as provided by law. In the event a majority of said qualified electors voting in said annual school election shall disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding annual school election.
“Provided, that' no such tax shall be appropriated for any other purpose nor to any other district than that for which it is levied.”

We do not agree with appellants’ contentions, which relate to the first paragraph of the amendment. It will be noted that that paragraph authorizes school districts to levy an annual tax for the maintenance of schools, and compliance with this provision' is not questioned in this litigation; there is also an authorization of a tax for existing indebtedness, and the tax is further authorized for “the erection and equipment of school buildings. * * ” It is observed that the ballot in question provides for all three of these matters, and the purpose of the 9 mill tax is the “erecting and equipping new school buildings.” This is clearly in accord with the provisions of Amendment No. 40. Appellants’ assertion is predicated on an erroneous, interpretation that the indebtedness created -by the erection and equipment of school buildings must already be in existence before a tax can be properly voted for its retirement; under their view, a tax for a proposed indebtedness for erection and equipment of school buildings cannot be approved. However, the amendment provides for “the erection and equipment of school buildings and retirement of existing indebtedness.” Both are included.

Appellants admit that the only new. tax which appears on this ballot is the 9 mills which is to be collected annually in payment of the principal and interest for the proposed building program. Accordingly, if the voters did not desire to approve the 9 mills, they could have simply voted against the entire tax levy of 55 mills, and the rate would have remained at 46 mills, adequately providing for maintenance and operation, and already existing bonded indebtedness. Thus, we do not have before us a situation where there are two, or more, questions presented to the voter, i. e., the board is not seeking, in addition to the 9 mills, an increase in the tax rate for maintenance and operation of schools, or an increase in the millage for retirement of existing indebtedness. Of course, if such were the case, the persuasiveness of appellants’ argument would be strengthened, and more in point, but such circumstances do not exist.

Judgment affirmed.


text:
    Donzell Cook, Adm’x. v. J. D. Pitre
    5-4205
    414 S. W. 2d 854
    Opinion delivered May 22, 1967

      Bernard Whetstone, for appellant.

      Brown, Compton & Prewett,- for appellee.
   Paul Ward, Justice.

This is an action to recover damages for the alleged unlawful killing of Luther. Cook, on February 25, 1965, by J. D. Pitre.(appellee).

Suit was filed by Donzell Cook (widow of deceased) as administratrix .of the Estate (appellant), alleging, in material parts, that; appellee wrongfully, wantonly, and maliciously shot the deceased in the back at a distance of seventy five yards, and that deceased had an earning capacity of approximately $2,000-a year. The prayer was for damages for the Estate,, the widow and children.

For answer, appellee iadmils the killing but alleges he shot deceased following his attempt to'; escape after having been arrested for burglary. H.e further alleged that the shooting was justified under the law in that he acted as a “ reasonable and prudent person in the exercise of his duty as a citizen-to arrest'and-prevent the escape of a felon”. . " -

Upon trial the jury found in favor of appellee, and appellant seeks a reversal.on two points of alleged error. One, “as a matter of law, the appellee was not justified in killing her husband and that a verdict should have been directed in her favor”-. Two, relates to the admissibility of certain testimony.

One.. We do not agreé with appellant’s contention on this point. ' .

It is first pointed out that appellant‘finds no fault with any instruction, given to the jury, and noné is found or discussed in her brief. It must therefore, be. assumed that the trial court correctly instructed, the jury as to the law as it applies to this case.

Ark. Stat. Ann. § 41-2238 (Repl. 1964) reads, in material parts:

“If any officer or private person attempt to take a person charged with . . . burglary, robbery . . . or any other crime made a felony by the statute laws of this State; and he be resisted in the endeavor to take the person accused, and by reason of such resistance the person so resisting be killed, the officer or private person so killing shall be justified.”

The next- section (41-2239)' reads:

“Ah officer or private person, to be justified, in killing-a person, accused of any felony as herein provided, shall have used all reasonable efforts to take the accused without success, and there must have been, in all probability, no prospect of preventing injury from such resistance, or the escape of the person accused..’? ■

Following-the above section is § 41-2240, which reads:

.“Justifiable homicide may consist in unavoidable necessity without any will or design, and without any inadvertence or negligence in the party killing.”

Burglary is defined by Ark. Stat. Ann. § 41-1001 (Repl. ' 1964) as follows: ' •

“Burglary is the unlawful breaking or entering a house, .tenement, railroad car, automobile, airplane, or. any other building, although not specially named herein . .... by day or night, with the intent to commit any felony or larceny.”

Ark. Stat. Anri.§ 43-404 (Repl. 1964) reads:

“A private person may make an arrest, where he has reasonable grounds for believing that the person arrested has committed a felony.”

Testimony. Set out below, in some detail, are the pertinent facts as disclosed by the record.

On February 25, 1964, the appellee was a conductor on the Chicago Rock Island and Pacific Railroad. Prior to this time, various railroad cars owned by the Rock Island had been broken into and various articles taken. A discussion between employees of the railroad was had and appellee decided he would make a stakeout of one of the cabooses on February 25, 1964. The appellee entered the caboose, locked it from the inside, and went into a washroom and began his wait. At the time, the appellee was armed with a .45 pistol which belonged to a fellow employee, but the pistol did not have a shell in the chamber. Some 10 to 15 minutes later, the appellee heard someone on the platform of the caboose, and heard noises which indicated to him that a glass pane was being taken out of the door, and the door being unlocked. The appellee waited a few seconds and then stepped from the washroom and confronted Luther Cook who had entered the caboose. Appellee then told Cook “lets go”. The appellee then instructed Cook to go out the door and they proceeded towards the roundhouse. On the way to the roundhouse appellee told Cook he was taking him to jail. When the two men reached the roundhouse Cook broke and ran. The appellee shouted to Cook to stop and when he did not respond, he fired a warning shot near his feet. Appellee again shouted to Cook and when he did not stop appellee fired a second warning shot, but Cook continued to run. The appellee pursued Cook, and the pursuit led from the railroad yard and out into the residential section near the yard. During the time which appellee was pursuing Cook, the appellee passed various persons and asked these persons to call the police. It was beginning to get dark, and the. appellee, after pursuing Cook for some 40 minutes, again shouted to Cook to stop, and when Cook continued to run, the ap-pellee fired a third shot, trying to hit Cook in the leg or close enough to his feet to cause him to stop. This third shot hit Cook in the lower portion of his back.

Applying the above factual situation to the sections of the statutes copied previously, we find that the jury, under unchallenged instructions, was justified in finding the killing was justified, and therefore find the trial court did not err in refusing to direct a verdict for appellant.

In the early case of Carr v. State, 43 Ark. 99 (p. 105) this Court said:

“ ‘A private person may make an arrest where he has reasonable grounds for believing that a person arrested has committed a felony.’ ”

The Court also approved the following statement:

“ ‘If a person, having actually committed a felony, will not suffer himself to be arrested, but stand on his own defense, or fly, so that he can not possibly be apprehended alive by those who pursue him whether private persons, or public officers, with or without a warrant, from a magistrate, he may be lawfully slain by them.’ ”

In Rayburn v. State, 200 Ark. 914 (p. 919), 141 S. W. 2d 532, we said :

“A private citizen, who is not an officer, may arrest, without a warrant, one who has committed a felony.”

Two. (a) Appellant argues the trial court erred in refusing to allow testimony purporting to show three other persons were allowed to plead guity to a misdemeanor for stealing items from the railroad cars on prior occasions.. Also it is argned that it was error to allow appellee to show the deceased was drawing Social Security benefits. We find no reversibe error in either instance. What offenses others may have committed in the past could have no bearing on the offense with which the deceased was charged here. The nature of each offense obviously depends on the facts of that particular case. Nor do we understand how appellant was prejudiced by showing a source and the amount of deceased’s income. Appellant, in her complaint, alleged he had an annual income of $2,000. Also, none of this testimony had any-bearing on the question of appellee’s justification for shooting the deceased.

Affirmed.


author: Lyle Brown, Justice.

text:
    John Ed Grayer v. State
    5265
    414 S. W. 2d 870
    Opinion delivered May 22, 1967

      G. David Furrow, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   Lyle Brown, Justice.

This Rule 1 appeal comes from a judgment of the Crittenden Circuit Court. Petitioner, John Ed Grayer, appellant here, sought discharge from the penitentiary under a petition for writ of habeas corpus, and relief was denied.

A jury convicted appellant in 1958 of burglary and grand larceny. That conviction was reviewed by this court in Grayer v. State, 234 Ark. 548, 353 S. W. 2d 148 (1962). That review was under certiorari and it was held that the circuit court “had jurisdiction to try and convict him in 1958 for crimes committed in 1952 upon an information filed in 1957 as shown in the record.” The holding there was without prejudice to appellant’s later filing a petition for a writ of habeas corpus.

In 1962, appellant filed a petition in the Crittenden Circuit Court. A full-scale hearing was conducted, appellant appearing in person and by court-appointed counsel. Grayer’s testimony, along with that of his witnesses, was received in evidence. His prayer for discharge was refused. There was no appeal from that decision. Instead, he filed two more petitions for writs of habeas corpus in 1962 and 1963. Again, there were no appeals from adverse decisions.

Then in 1965, Grayer revived his efforts to gain freedom, proceeding under another petition for a writ of habeas corpus. Again his release was denied and that decision is the basis for this appeal. (Here it should be noted that the two-year interval between the filing of the petition and the submission of this appeal was not due to unreasonable delay on the part of the trial court.)

First, the trial court held that Grayer’s petition was not verified. This would have been a proper ground for dismissal after giving petitioner a reasonable opportunity to make verification. The trial court, under the circumstances before it, waived this defect, and its extensive findings reflect that relief was not denied for failure to verify.

Appellant contends he was denied a speedy trial in 1958. He pleads double jeopardy. He claims unlawful detention and illegal search. Finally, he states that a confession and his past criminal record were used against him unlawfully. We reject these contentions for two reasons.

In the first place, it will be remembered that the conviction of 1958 was the result of a jury trial. He was represented by counsel in that trial, and he does not here assert that trial counsel showed non-diligence in any respect. Every allegation here made was open to him at the time of that trial. In fact, the trial court, in examining the petition and amended petition now before us found “that the points upon which the said petitioner relies in his various petitions for writs of habeas corpus filed herein are substantially identical and are, in substance, the same contentions made by the said defendant (petitioner) m Ms original trial...” [Italics supplied.] In making these findings the trial court had before it the record of the case in which appellant was convicted. If those conclusions of the trial court were incorrect, we have no doubt but that the pertinent parts of the trial record would have been incorporated in the transcript now before ns.

Secondly, appellant is in error in asserting that “he should have also been given the opportunity to be present at the hearing held upon his petition in this cause. ’ ’ In conformity with Rule 1, paragraph (C), the trial court examined the motion alongside the records in the case. On that basis written findings were made that the prisoner was not entitled to relief. "When the petition can be processed under paragraph (C) the presence of the prisoner is not necessary.

Paragraph (H) of Rule 1 provides that all grounds for relief available must be raised in the original petition for a writ of habeas corpus. Any grounds not there raised cannot be used as a basis for a subsequent petition. The trial court found that the points now raised are substantially identical to those in previous petitions.

In Evans v. State, 242 Ark. 92, 411 S. W. 2d 860 (1967), we said: “It was not the purpose of Criminal Procedure Rule No. 1 to give a person convicted of a crime a holiday from the penitentiary for the purpose of a hearing, but to .conscientiously protect his constitutional rights.” Appellant Grayer was given a jury trial, a review by this court of the jurisdiction of the trial court, and a full-scale hearing in 1962 on his initial petition for a writ of habeas corpus. On that occasion he had his holiday from the penitentiary. He never appealed from the trial court’s ruling. He has subsequently filed six petitions of various types in the Crittenden Circuit Court. According to the record before us, every one of those petitions had been given consideration by the trial court. So it is apparent to us that appellant has had both his holiday from the penitentiary and conscientious protection of his constitutional rights.

Affirmed.

FoglemaN, J., disqualified and not participating.