author:
Paul Ward, Associate Justice. Ed. F. McFaddiN, Associate Justice,
      J. Seabork Holt, J., dissenting.

text:
    Brown Shoe Company v. Fooks.
    5-1513
    310 S. W. 2d 816
    Opinion delivered March 3, 1958.
    [Rehearing denied March 31, 1958]

      Renderer, Nolde & Kleinschmidt, St. Louis, Mo.; Mehaffy, Smith & Williams by Robt. V. Light, for appellant.

      D. Leonard Lingo and Harry L. Ponder, for ap-pellee.
   Paul Ward, Associate Justice.

The Workmen’s Compensation Commission and the Circuit Court, on appeal, awarded appellee compensation (for a limited time) based on an occupational disease. Appellant, the employer, seeks a reversal on one ground only — ‘ ‘ That there was not sufficient competent evidence in the record to warrant the making of the order or award.”

The following background facts are undisputed: Ap-pellee, Clara C. Fooks, was employed by appellant, Brown Shoe Company, at its factory in Pocahontas from January 1947 until sometime in 1951, and also from March 17, 1956 until July 23, 1956. In the performance of her duties she sat on an adjustable steel chair or stool at a sewing table for a substantial portion of her eight hour workday. As a gauge stitcher, she worked at a sewing machine taking the shoes from a rack that was brought up to her. For some six weeks before July 23, 1956, appellee noticed pains in the buttock region, and on that date her doctor diagnosed her ailment as Ischial Bursitis. She had been unable to work up until the date of the hearing.

Dr. J. K. Farrish, Jr., a local physician, who examined appellee on July 23, 1956, testified that her complaint at that time was pain in the region of the ischial tuberosity of the pelvis. This bursa is located on what is known as the tail bones in a workman’s language. It is bones on which human beings sit with a great majority of their weight. She related to me symptoms which were pain aggravated by sitting. After I obtained the statement from her I examined her, and the examination revealed that the bursa over the ischial tuberosity was tender and enlarged. In answer to a hypothetical question Dr. Farrish, in speaking of appellee’s condition stated: “I would say that it had been caused by the trauma, by the injury of sitting — to use a laymans term.” The Doctor also stated that pressure, more or less constant pressure, is recognized as one of the causes of bursitis, but it is possible for one individual to develop bursitis from a particular kind or degree of pressure where other individuals could experience the same kind and degree of pressure and not develop bursitis. There are two bones known as the ischial tuberosity. The ischial bone is part of the pelvic girdle and it is the bone on which human beings sit, and it is near the lower part of the pelvis. Bursitis is caused by trauma which is local injury; infection, or calcium deposits.

By agreement the testimony of Dr. J. S. Speed, selected by appellant, was introduced in the record. He examined appellee on November 20, 1956, and reported in substance: Patient’s chief complaint is pain over the ischial bones, that is the buttock region on which a person sits: His examination shows some pain in the region of the ischial tuberosities probably due to the pull of the hamstring muscles; there is no distention or enlargement of the ischial bursa and no evidence of any inflammatory lesion in the soft tissues over the ischial tu-berosities ; The X-ray shows a very small area of calcification apparently in the ischial bursa on the right side. His diagnosis was: VIschial Bursitis, mild, right and left side.” He further stated: “It is probable that this is an occupational type of disability which should clear up in a reasonable period of time without any residual permanent disability.”

Based on all the testimony presented to it the full commission found: “That claimant’s Ischial Bursitis is an occupational disease suffered as a consequence of the duties of her employment with the respondent employer herein.” This finding was affirmed on appeal to the Circuit Court. There is, we think, substantial evidence to affirm the Commission and the judgment of the Circuit Court.

The applicable law is found in § 81-1314 Ark. Stats. Supplement. Subsection (a) (5) of the above section reads: “The following diseases only shall be deemed occupational diseases, except as othei’wise provided in § 43 (11) (§ 81-1413).” Following the above is set out in sub-section (a) (4) the names and descriptions of a large number of occupational diseases, among which is this: “Synovitis, Temosynovitis, or Bursitis due to an occupation involving continual or repeated pressure on the parts affected.”

It is not insisted by appellant that § 81-1413 mentioned above has any bearing on this appeal, but it is strenuously insisted that appellee is barred from receiving compensation under the evidence when considered in connection with the provisions of sub-paragraph (a) (7) of said § 81-1314, which, in so far as it relates to this case, says: “An employer shall not be liable for any compensation for an occupational disease unless such disease shall (a) be due to the nature of an employment in which the hazards of such disease actually exists, (b) and are characteristic thereof and peculiar to the trade, occupation, process, or employment, and (c) is actually incurred in his employment . . .” The letters (a), (b) and (c) have been inserted in the above quoted portion for clarity and convenience.

It is our understanding that appellant is not relying on the language in sub-division (a) or (c) above. At any rate we think the evidence clearly sustains the Commission’s findings in those respects. Appellant does rely heavily on the language used in sub-division (b) above. ‘

At the outset of appellant’s brief this statement is made: “. . . the only question presented by this appeal is whether claimant’s Ischial Bursitis is an ‘occupational disease’ under the provisions of the act.” Following this the burden of the argument is that the record contains no evidence to show that Ischial Bursitis is characteristic of or peculiar to the occupation in which appellee was engaged.

In the first place it is noted that, under the wording of the statute (81-1314 (a) (7)), the disease need not he peculiar to the occupation, hut may he peculiar to the process or employment. These last two emphasized words, we think, have reference in this case, to sitting in one position continuously for long hours and not to manufacturing shoes. It was not incumbent on appellee to show that this process or type of employment could cause Ischial Bursitis because the only medical testimony in the record is to the effect that it actually did. This, we think, made out a prima facie case in favor of ap-pellee under § 81-1314 (a) 4. We agree with the commission that “It is absolutely of no moment whether Is-chial Bursitis is prevalent among claimant’s co-workers or not . . .” If it were otherwise, then the first person to be affected would have no such evidence available. It would appear useless to burden appellee with producing evidence to show Bursitis is characteristic of and peculiar to a process which required her to sit on a stool eight hours a day in the face of undisputed evidence that such did cause her to contract the ailment.

Appellant’s specific argument is that appellee should be denied recovery because she did not introduce evidence to show Ischial Bursitis is characteristic of and incidental to a process (of employment) which required her to sit on a stool or chair 8 hours a day, five days a week. When this argument is examined carefully we think it appears untenable under the law and facts of this particular case. The undisputed facts are that appellee has Ischial Bursitis, that it is caused by constant and repeated pressure on the parts affected, that the process in which she was engaged caused this very kind of pressure. The law (Ark. Stats. § 81-1314 (a) 4) conclusively presumes that Bursitis may be caused by “continual or repeated pressure” — the exact kind of pressure to which appellee was subjected except that the pressure to which she was subjected was both continual and repeated. If that kind of pressure is not characteristic of and peculiar to the work or process in which appellee was engaged, then the statute is meaningless because otherwise the description of a process which would satisfy the statute defies the imagination. The key word which appellant seems to overlook is “hazards” in said subsection (7). The question is not whether the disease is characteristic of and peculiar to the kind of work ap-pellee was doing, hut whether the hazard (of such disease) bore such relation. There can be no doubt here that there was a hazard or risk involved in the character of work appellee was doing because it actually did cause her ailment. No less was the hazard peculiar to a process which entailed continual and repeated pressure on the tail bone for 8 hours a day for five days a week, because such abnormal pressure on the affected parts is not incident to many other processes of employment.

If it be conceded, and we do, that the exact meaning and application of the words referred to above are not crystal clear in the context in which they are used, then we think they should be interpreted in the light most favorable to appellee. This rule has been announced many times by this court. See: Arkansas National Bank of Hot Springs v. Colbert, 209 Ark. 1070 (at page 1073), 193 S. W. 2d 806, and the cases cited therein.

We have read and considered several cases from other jurisdictions cited by appellant, but find nothing in them contrary to the conclusion we have reached. These cases are: Champion v. Gurley, 299 N. Y. 406, 87 N. E. 2d 430; American Maize Products Co. v. Nichiporchik, 108 Ind. App. 502, 29 N. E. 2d 801; Schmitt v. Industrial Commission, 224 Wis. 531, 272 N. W. 486; Fernandez v. Kiernan-Hughes Co., 23 N. J. Super. 394, 93 A. 2d 41; Edlund v. Industrial Commission, 122 Utah 238, 248 P. 2d 365, and; Stokes v. Miller, La. App., 50 So. 2d 509. We find that some of these cases deal with an “injury” or “accident” as opposed to an “occupational disease,” and, in the others, it is not shown that the ‘ ‘ disease ’ ’ was mentioned in the statute as an occupational disease as in the case here.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.

Harris, C. J., and Holt and RobiNsoN, JJ., dissent; McFadbiN, J., concurs.

Ed. F. McFaddiN, Associate Justice,

concurring. The Court is sharply divided in this case. Three Justices support the Commission’s conclusion that an occupational disease was established. Three Justices vote to reverse the Commission’s holding, as they are of the view that no occupational disease was shown. Since I am concurring to affirm the judgment, it is incumbent on me to state my reasons. My view is that no occupational disease was established; but I vote to make the ward to Mrs. Fooks since I am of the opinion that she suffered an accidental injury arising out of and in the course of her employment. Thus, Mrs. Fooks recovers, but with a majority of the Court holding that no occupational disease was established. With the foregoing explanation, I come now to the process by which I reach my conclusion.

In Triebsch v. Athletic Mining, 218 Ark. 379, 237 S. W. 2d 26, the workman suffered a disability. The Commission denied recovery because it found that no occupational disease had been shown. We agreed that no occupational disease had been established; but we held that the worker should recover because he had suffered a disability arising out of and in the course of his employment; and we said:

“But on the accidental injury phase of the case, the uncontradicted evidence shows that the claimant suffered an accidental injury within the purview of our cases, such as: Herron Lbr. Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; McGregor v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S. W. 2d 310; and Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31. . . .
“In Murch-Jarvis Co. v. Townsend, supra, the worker became disabled from inhaling fumes and dust in the course of Ms work in a smelter room. We held such disability to be ‘ an accidental injury within the meaning of our Workmen’s Compensation Law,’ saying: ‘There are numerous cases from other jurisdictions holding that a disease, or an aggravation thereof, resulting from inhalation of dust particles or fumes may constitute an accident, or injury, within the meaning of the particular act involved. ’
“In Batesville White Lime Co. v. Bell, supra, the inhalation of dust particles caused heart trouble. We held such to be an accidental injury, saying: ‘Now there is nothing in the proof in this case to justify a conclusion that the injury to appellee’s heart by breathing the excessive amount of dust was one which appellee might have reasonably expected or anticipated. Certainly it was accidental as far as he was concerned; and there is much authority for a holding that an injury, not necessarily the result of one impact alone, but caused by a continuation of irritation upon some part of the body by foreign substances may properly be said to be accidental.’ ”

Likewise, in the case of Scobey v. Southern Lbr. Co., 218 Ark. 671, 238 S. W. 2d 640, the worker suffered a disability by inhaling emery dust which caused him to die of cancer of the lungs. There was no trauma in the sense of a physical blow, but there was a disability arising out of and in the course of the employment; and a recovery was allowed by this Court.

So, in the case at bar, Mrs. Fooks has suffered a disability arising out of and in the course of her employment in that she suffers from ischial bursitis; and she is entitled to recover compensation for such disability arising out of and in the course of her employment. But, as I see the record, there is no evidence of a substantial nature that ischial bursitis is an occupational disease “peculiar to the trade, occupation, process, or employment.” The words just quoted come to us from § 81-1314 of our Statutes, and it is only when those conditions are met by proof that an occupational disease can be said to have been established.

For the reasons herein stated, I concur in the recovery.

J. Seabork Holt, J., dissenting.

We have consistently held since onr earliest construction of our Workmen’s Compensation Law (as early as Birchett v. Tuf-Nut Garment Manufacturing Co., 205 Ark. 483, 169 S. W. 2d 574) that it does not call for general accident insurance and was never intended so to do. In my view, the effect of the majority opinion here is to take steps on the road toward making our compensation law, in effect, general accident insurance.

Bursitis, under the Workmen’s Compensation Law, is listed as an occupational disease along with a long list of other occupational diseases. However, the following limitations for recovery of any compensation for any of these listed diseases (including bursitis) are set out in Ark. Stats., 1947, § 81-1314a, (7), and first must be met: “An employer shall not be liable for any compensation for an occupational disease unless such disease shall be due to the nature of an employment in which the hazards of such disease actually exist, and are characteristic thereof and peculiar to the trade, occupation, process, or employment, and is actually incurred in his employment. . . .”

Appellant’s liability, as I see it, must turn on the construction to be placed on the above statutory language, which appears not to have been heretofore construed by this court. Obviously, the lawmakers must have had some purpose in enacting it. To me it simply means what it says, and that is, before any occupational disease is com-pensable, the burden is on the claimant to show that her disability was within the terms of the act, and that the disease (bursitis) was due not only to the nature of the employment in which the hazard of the disease existed, but the burden was on her to go further and show that such disease was characteristic of such employment and peculiar to the particular disease. There is no prima facie presumption that appellant’s claim comes within the provisions of the law. See John Bishop Const. Co. v. Orlicek, 224 Ark. 182, 272 S. W. 2d 820. There is not one scintilla of evidence that I can find in this record that even tends to show that bursitis was characteristic of and peculiar to the kind of employment in which appellee was engaged. There was no evidence that any other employee at appellant’s plant, doing similar work as appellee, or of any other employee in any plant in the United States doing similar work, had ever suffered bursitis. ITow then can it be said that the employer here could have known, or must have known, that bursitis was characteristic of and peculiar to the occupation in which appellee was engaged here. It is also significant that among the literally thousands of stenographers, telephone operators, executives, lawyers, judges and other employees throughout this nation who do their work sitting in chairs, as appellee here, appellee has been unable to cite one single case in this nation similar to the one here and decided by an appellate court. Surely the legislature must have thought and intended in all fairness to employers, that they should first have fair warning of any hazards attached to the employment, such as we have here, before liability would be saddled on them.

I would reverse the judgment and remand to the Circuit Court with instructions to direct the Commission to dismiss the claim.


source: Caselaw Access Project

author: Sam RobiNsoN, Associate Justice.

license: Public Domain

text:
    Blythe v. Coney.
    5-1459
    310 S. W. 2d 485
    Opinion delivered March 3, 1958.

      L. A. Hardin, for appellant.

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

The issue in this ease is whether the erroneous assumption of the parties to a purchase contract that there was a sufficient supply of city water to a dwelling house constitutes a mutual mistake of a material fact giving the purchaser the right to rescind.

Appellants, R. W. Blythe and wife, owned some property in Pickthorne’s Addition to the City of North Little Rock, Arkansas, in which they had acquired a substantial equity and on which they were making payments of $39.95 per month. Sometime in May of 1956 they, through appellee Horace Woodall, looked at a house being built by appellee Howard E. Coney in the John Barrow Addition to the City of Little Rock, Arkansas, being the street address of 3025 Elm. At this time the utilities had not been connected to the house. Subsequently a trade was entered into whereby the appellants were to trade the equity in their home in North Little Rock, estimated at $2,500.00, as a down payment on the Elm Street property, leaving a balance of $7,000.00 due to Mr. Coney, which was to be paid on an installment basis of $60.00 per month. Although an offer had been made and accepted, the contract was not actually signed until June 7, 1956. Mr. Woodall notified the appellants that they could move into the house, although it was not completely finished, and accordingly appellants moved on June 7, 1956. When they arrived in their moving van, water company employees had just connected the water meter, and Mr. Coney met appellants with the keys to the house and the contract, and demanded that they sign the contract before he delivered the keys.

Appellants say that as soon as they got the moving van unloaded they went to the hydrant to get the children a drink and there was no water; that they waited about an hour and when there was still no water, they called Mr. Woodall, who said, “Now, Bob, don’t get alarmed about that, we will take, care of that. It is a brand new house and there will be a few little things not right, but we will take care of it.” Appellants continued to call Mr. Woodall about the water and he continued to promise them that they (Woodall and Coney) would do something about it. In September, appellants checked with the city water department and were informed that they could not expect any change in the water supply in the near future. There is persuasive evidence that after Mr. Coney and Mr. Woodall were advised of the information obtained at the city water department, appellants were led to believe that Mr. Coney and Mr. Woodall would get them another house with a sufficient supply of water. After the parties failed to get together on a settlement, this suit was filed by appellants to set aside the contract of purchase.

Coney filed a cross-complaint asking for foreclosure of the balance due ($6,907.63) under the acceleration provisions of the purchase contract. The trial court dismissed appellants’ complaint for want of equity and entered a foreclosure decree in favor of Coney. A sale was had under the decree and Coney bought the property in for $7,211.76.

On appeal appellants rely on two points: First, that the contract should have been cancelled for a material misrepresentation amounting to fraud, concerning the supply of water, and, second, that if the parties were ignorant of the character and amount of the water supply, then there was a mutual mistake which would justify the cancellation of the contract.

Appellants have the right to rescind the contract because of a mutual mistake involving the availability of sufficient water to make the house livable. Therefore it is unnecessary to determine the first point relied on by appellants; but we point out that if appellees had knowledge of the insufficiency of the water supply, appellants would have been entitled to rescind, under the circumstances, on the theory of fraud by silence. Clauser v. Taylor, 44 Cal. App. 2d 453, 112 P. 2d 661.

The overwhelming evidence shows that in the summer time during peak use of water, not only appellants, but all of the residents in the vicinity of 31st and Elm Streets, are without water from early morning until around midnight practically every day. In order to have water to wash their faces in the mornings, the appellants and others in the area must fill the bathtub the night before. The used water from the bathtub, in turn, has to be saved to flush the commode. An engineer for the city water department corroborated the testimony of the residents of the area from, water pressure tests made with a recording meter. The reason for the inadequate water supply or pressure is the slight difference between the mean- elevation of the area above sea level, 420 feet, as compared to the source of the water, which is only 500 feet.

A contract can be cancelled or rescinded for a mutual mistake of a material fact. First National Bank of Wynne v. Coffin, 184 Ark. 396, 42 S. W. 2d 402. In that case Coffin purchased some farm property, under fence from the First National Bank of Wynne. > Neither party knew that the property had been platted and subdivided with streets laid out and dedicated to the City of Wynne. It was held to be a mutual mistake of a material fact and to constitute grounds for rescission.

We think the assumption- of the parties in this instance that there was a sufficient water supply to the house constituted a mutual mistake of a material fact under the circumstances, and appellants have the right to rescind the contract.

Since appellees led appellants to believe that something would be worked out to correct the mistake involved, they are not in a position to claim that the appellants are estopped to rescind the contract because they made payments after becoming aware of the true facts. First National Bank of Wynne v. Coffin, supra.

Reversed with directions to enter a decree not inconsistent herewith.


author: Ralph W. Robinson, Special Associate Justice. Paul Ward, Associate Justice,

text:
    Moss v. Gardner.
    5-1366
    310 S. W. 2d 491
    Opinion delivered March 3, 1958.

      Lasley & Lovett, for appellant.

      William H. Drew, for appellee.
   Ralph W. Robinson, Special Associate Justice.

The question to be determined on this appeal is whether the parties to a sales contract can waive, and by express contract have waived, the implied warranties afforded by the Uniform Sales Act.

On May 9, 1955 appellee, Dr. B. M. Gardner, purchased a new McCormick hay baler from Moss Truck & Tractor Company, a partnership composed of W. E. Moss and W. E. Moss, Jr. Dr. Gardner traded in an old hay baler and paid $359.49 in cash, and for the balance of the purchase price executed a title retaining note to Moss for $1,359.82 as the balance due for the new hay baler. When the note was not paid at maturity and Moss filed action, Dr. Gardner claimed that he had rescinded the entire sale because of breach of implied warranty. He claimed that the hay baler -was defective in that it did not tie the bale of hay when baled; that he had repeatedly notified Moss of the defect; that such defect had not been corrected; and that Gardner therefore had the right to rescind the entire trade because of Section 68-1469 of the Arkansas Statutes, 1947 annotated. Dr. Gardner relied on the implied warranty stated in § 68-1415 of the Arkansas Statutes, 1947 annotated.

Moss claimed, inter alia, that all implied warranties had been expressly excluded from the sale because of the contract which Dr. Gardner had signed, and which is more fully detailed herein.

The Chancery Court found in favor of Dr. Gardner and granted him all claimed rights of rescission. As a prerequisite to such relief granted Dr. Gardner, the Chancery Court found:

‘ ‘ There is an implied warranty of fitness in the machine (Haybaler) sold by the plaintiffs and cross defendants, W. E. Moss and W. E. Moss, Jr., partners, doing business as Moss Truck & Tractor Company, and this implied warranty is in full force and effect even though there is an express warranty in the contract of sale limiting the International Harvester Company’s liability to furnishing any new parts for those which, in the judgment of company, might have been shown defective.”

There were many other issues in the Trial Court which we need not discuss, because our holding on the matter of implied warranty makes it unnecessary for us to consider any of these other matters.

The contract of purchase which Dr. Gardner signed with Moss contained this language:

“The Warranty on the back hereof is in lieu of all other warranties express or implied and all other obligations or liabilities on the part of the Seller. THE PURCHASER ACKNOWLEDGES RECEIPT OF A COPY OF THIS ORDER, WHICH, TOGETHER WITH THE WARRANTY ON THE BACK HEREOF, IS UNDERSTOOD TO BE THE ENTIRE CONTRACT RELATING TO THE SALE OF THE EQUIPMENT COVERED BY THIS ORDER.”

On the back of the contract, this is the warranty referred to in the above language:

“The International Harvester Company warrants each item of new McCormick Farm Equipment to be free from defects in material or workmanship under normal use and service. The obligation of the Company under this warranty is limited to furnishing new parts for those parts that prove, in the Company’s judgment, to be defective in material or workmanship within six (6) months after delivery by the Seller to the original Purchaser. New parts will be furnished free of charge to the Purchaser at the Seller’s place' of business.
“The above warranties are in lieu of all other warranties expressed or implied and all other obligations or liabilities on the part of the Company, and no person, agent or dealer is authorized to give any other warranties on the Company’s behalf or to assume for it any other liability.”

Dr. Gardner gave an affirmative answer to inquiry as to whether he had read the warranty on the contract.

Assuming that the hay baler was entirely defective and that it violated the implied warranties stated in § 68-1415 Arkansas Statutes, which is § 15 of the Uniform Sales Act, nevertheless, Moss contends that all of these implied warranties were expressly excluded from this transaction because of the above quoted language, and Moss cites us to § 68-1471 Arkansas Statutes (which is Section 71 of the Uniform Sales Act) and which reads in part:

“Where any right, duty or liability would arise under a contract to sell or a sale, by implication of law, it may be negatived or varied by an express agreement or by the course of dealing between the parties or by custom, if the custom be such as to bind both parties to the contract or the sale.”

The eases are uniform in holding that the said quoted language from. § 71 of the Uniform Sales Act allows parties to contract away and exclude from their transaction all implied warranties under the Uniform Sales Act, and all express warranties except those contained in the contract. 117 A. L. E. 1344.

The question for determination then is whether or not a sales contract under the Uniform Sales Act can exclude from the transaction all implied warranties under the Statute, and whether of not tinder this contract the implied warranties have been waived. The contract that Gardner signed with Moss says:

“The above warranties are in lieu of all other warranties express or implied and all other obligations or liabilities on the part of the Company, and no person, agent or dealer is authorized to give any other warranties on the Company’s behalf or to assume for it any other liability. ’ ’
“Provided, however, on items of new McCormick farm equipment where a special' warranty is printed in the owner’s manual furnished with such equipment, in every such case such printed warranty shall be controlling and to the exclusion of all other warranties express or implied.”

This language is too clear to admit of doubt. It excludes all implied warranties under the statutes and leaves Dr. Gardner only the right to claim under the express warranties stated on the reverse side -of the contract, and which we have heretofore copied. There can be no serious claim made that these express warranties were violated. Dr. Gardner has signed a contract specifically waiving all his implied warranties, and the Chancery Court was in error in holding that he had any implied warranties, in the light of the contract he signed.

It is not for us to moralize on the matter; there is ample evidence here that this hay baler was defective; and we seriously doubt if a sales agency or management can ever build customer good will by relying on the printed form of a contract in the face of testimony of this nature. If manufacturers and sales agencies continue to resort to such fine print on the back of the contract, it may be that a person buying an expensive piece of machinery will have to take his lawyer around with him to tell him the legal implications resulting from the signing of such a contract. The transaction here will not build customer good will and better friendships; but, since the enactment of the Uniform Sales Law and according to the strict letter of that law, Dr. Gardner by executing this contract waived all of his implied warranties, and so the decree of the Chancery Court must be reversed and the cause remanded, with directions for the Chancery Court to enter judgment for the amount sued for.

Harris, Chief Justice, not participating; Ward, J., dissents.

Paul Ward, Associate Justice,

dissenting. I do not agree with the majority in its interpretation of the contract between Dr. Gardner and Moss.

It is conceded that, under § 68-1415 of Ark. Stats., Moss was hound to give Dr. Gardner a hay baler which would bale hay, and it must also be conceded [as it is impliedly conceded by the majority opinion] that this was not done.

In addition to the above warranty provided by law, the parties had a right to enter into any additional contract. This they did. The additional contract was that Moss would furnish certain parts under certain conditions. This was separate and distinct from that created by statute.

Thus we are dealing with two separate contracts or warranties, (a) That one created by law, and (b) the one made by the parties.

To my mind it is clear that the words “. . . all other warranties express or implied” relate to contract (b) and means that Moss would not, under that contract, be expressly or impliedly hound to do more than furnish certain parts under certain conditions. In other words, Moss was bound, under contract (b) to do something in addition to contract (a) and not in lien thereof.

Is any one naive enough to believe that Dr. Gardner would have bought the hay baler if Moss had explained to him that the contract of sale was as the majority now interprets it! Would not Dr. Gardner have been foolish to pay out a large sum of money for something he might not be able to use? Does anyone believe that Moss would ever sell another hay baler to anyone under this kind of a sales contract if he explained it in advance as the majority has interpreted it? If not, then it must be assumed that Moss understood the contract with Dr. Gardner as I have interpreted it, or he meant to deceive him. For one, I do not believe Moss meant to deceive Dr. Gardner.

       Arkansas adopted the Uniform Sales Act by Act No. 428 of 1941 (see 68-1404 et seq. Ark. Stats.).

       Moss also claimed (a) that the hay baler had been repaired so that it would tie the bales of hay properly; and also (b) that Dr. Gardner had waited too long to attempt to exercise a rescission of the Contract.


author: Rex W. PerkiNS, Special Justice. George Rose Smith, J., Sam RobiNsoN, Associate Justice,

text:
    Roman v. Smith.
    5-1373
    314 S. W. 2d 225
    Substituted opinion on rehearing delivered July 1, 1958.
    Original opinion delivered March 3, 1958.

      George■ E. Pike, for appellant.

      Beinberger & Eilbott, for appellee.
   Rex W. PerkiNS, Special Justice.

The appellants’ decedent, John A. Smith, and appellee Ada Davidson Smith were husband and wife from February 10, 1946 to December 10, 1954. Prior to the time of such relationship the decedent purchased eighteen (18) United States Grovernment Savings Bonds, Series E, payable to Sgt. John A. Smith P. O. D. (payable on death) Miss Ada Davidson.

On September 24, 1954 the decedent filed a divorce proceeding against the wife in the Arkansas County Chancery Court, Southern Division, being Case No. 5946. The decree of divorce and an approval of a property settlement agreement was rendered on the wife’s cross-complaint on December 10, 1954; and in that decree the Court retained jurisdiction of the cause for such further orders as might be necessary to enforce the rights of the parties.

The property settlement agreement approved by the Court, among other things, provided: “First Party (John A. Smith) agrees to pay to Second Party (Ada Davidson Smith) Forty Thousand Dollars ($40,000.00) in cash and deliver to her United States Savings Bonds in the face amount of $1,800.00, the said bonds being identified as those which are now kept in a lock box in a bank in the City of DeWitt.”

The settlement agreement was fully performed as agreed, except $1,780.00 in cash was paid to the wife in lieu of delivering the $1,800.00 in United States Government Bonds. The following notation appeared on the original of the property settlement agreement: “Cash $1,780.00 substituted for Bonds, and draft for $40,000.00 received, (s) R. A. Eilbott, Jr. Attorney for Ada Smith.”

Subsequently on October 30, 1955 John A. Smith died. Mildred S. Roman and George Smith, the appellants, were appointed joint administrators of his estate by the Arkansas County Probate Court, and as such they found the United States Series E. Savings Bonds mentioned in the property settlement agreement in his safety deposit box. The names of the payees had not been changed from the time of their original issue.

On May 9, 1956 the administrators filed an intervention in the case of John A. Smith v. Ada Davidson Smith, No. 5946, in the Chancery Court of Arkansas County, Southern District, alleged in substance the facts set out hereinabove, and prayed: For an order of this Court directing the said defendant to endorse the bonds, in order to complete the settlement; and in the event of her failure to do so, that appropriate action be taken to require her to endorse the said bonds; and for such further relief as the petitioners may be entitled to in a court of equity. On May 19, 1956 the wife filed a demurrer to the intervention, and an answer thereto, and a cross complaint claiming said bonds and praying for an order for delivery. Also, on May 19, 1956 the wife petitioned the Arkansas County Probate Court, Southern Division, in the Matter of the Estate of John A. Smith, Jr., deceased, for an order directing the administrators to deliver the bonds in question to her. Both the Chancery case and the Probate case were consolidated for trial purposes by agreement. The Trial Court reserved its ruling on the demurrer in the Chancery case until all the evidence was in, at which time an order sustaining the demurrer was entered. Both parties to the Chancery proceeding have appealed.

The appellants first contend that the Arkansas County Chancery Court had jurisdiction to enforce the property settlement agreement and to determine the rights to the proceeds of the United States Savings Bonds. In the original proceedings in the case of John A. Smith v. Ada Davidson Smith, Arkansas County Chancery Court, Case No. 5946, the Court entered a divorce decree in which a property settlement agreement was approved, and jurisdiction was reserved for the specific purpose of rendering such further orders as may be necessary to enforce the rights of the parties. After the death of appellants’ decedent John A. Smith, the appellants, as administrators of the estate of John A. Smith, deceased, filed an intervention in the Arkansas County Chancery Court, Southern District, seeking to enforce their rights as successors to the interest of John A. Smith, deceased; in the United States Savings Bonds under the property settlemeny agreement. Ap-pellee resists the intervention on the ground that the Court had no jurisdiction, which position was sustained by the Trial Court. The appellants, Mildred S. Roman and George Smith, as administrators of the estate of John-A. Smith, deceased, were privy in law and estate to John A. Smith, deceased; and, therefore, they had a right to intervene in the Chancery suit to claim the rights of John A. Smith, deceased, under the property settlement agreement over which the Trial Court had specifically retained jurisdiction for the purpose of rendering such further orders as may be necessary to enforce the rights of the parties. Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, 15 R. C. L. 1015.

Appellants next contend that as representatives of the estate of John A. Smith, deceased, they are entitled to the proceeds from.the bonds in suit. In opposition, appellee contends that under the United States Treasury Regulations the form of registration of these bonds is conclusive of ownership, and that this Court cannot enter an order affecting either the ownership of the bonds or the proceeds received therefrom contrary to the registration. In this respect she contends that the case is controlled by the following provisions of the Treasury Begulation:

Sec. 315.4 of said regulations provides for the registration of savings bonds in the names of two persons in the alternative as co-owners and no other form of registration establishing co-ownership is authorized. Begistration may also be made in the name of one person payable on death to another. Sec. 315.11 makes savings bonds nontransferable and payable only to the owners named thereon except under circumstances not pertinent to this litigation. Sec. 315.45 specifies the manner in which bonds registered in the names of two persons as co-owners shall be paid. It provides (1) payment will be made to either co-owner upon his individual request during the lifetime of both; (2) any bond will be reissued to any designated person during the lifetime of both co-owners upon the request of both where the co-owners are divorced or legally separated or their marriage annulled after the issuance of the bond; and (3) if either co-owner dies without having presented and surrendered the bond for payment or authorized reissue, the surviving co-owner will be recognized as the sole and absolute owner of the bond, and payment or reissue will be made only to such survivor as though the bond were registered in his name alone. Sec. 315.46 specifies the manner in which bonds registered in the name of one person payable on death to another shall be paid. It provides (1) payment will be made to the registered owner during his lifetime upon his individual request as though no beneficiary had been named in the registration; (2) any bond will be reissued to name the beneficiary designated on the bond as co-owner, to the registered owner, to eliminate the beneficiary, or to substitute another named beneficiary, or to name another person as co-owner, upon the consent of the designated beneficiary, and to name the beneficiary as the owner upon proof of the death of the registered owner; and, (3) if the registered owner dies without having presented the bond for payment or authorized reissue and is survived by the beneficiary, upon proof of such death and survivorship, the beneficiary will be recognized as the sole and absolute owner of the bond, and payment or reissne will be made only to such survivor, as though the bond were registered in his name alone. Sec. 315.13 provides for the recognition of conflicting claims as to the ownership or interest in such bonds as between co-owners when established by a valid judicial proceeding providing such proceeding does not give effect to an attempted voluntary transfer inter vivos of the bond, or would defeat or impair the right of survivor, conferred by these regulations upon a surviving co-owner or beneficiary. This section further provides that a divorce decree ratifying or confirming a property settlement agreement between husband and wife, or otherwise settling their respective interests in savings bonds, will be recognized and will not be regarded as a proceeding giving effect to an attempted voluntary transfer inter vivos.

These are the sections of the regulations under which the bonds in suit were issued and are part of the terms of the contract between the United States and John A. Smith in his lifetime, and which appellee contends abolutely bar the appellants from a recovery in this case. In effect she says that under these regulations and the contract the appellants’ decedent could have requested payment to himself as the registered owner and surrendered the bonds for that purpose during his lifetime; but that he made no attempt to pursue this remedy although he lived for more than eleven months following the divorce decree and property settlement agreement. The result was that the appellants’ decedent, the registered owner of the bonds in suit, died without having presented and surrendered them for payment or reissue. This, the appellee contends, made her the absolute owner of said bonds as provided by the regulations under which they were issued. She disposes of the property settlement agreement with the assertion that it is an attempted voluntary transfer inter vivos of the bonds involved which would defeat her right of sur-vivorship, and that her rights to the bonds, regardless of the provisions of the property settlement agreement, or tlie substitution of the cash for bonds, depended entirely upon her surviving the appellants’ decedent.

In support of this proposition she refers to Myers v. Hardin, Adm., 208 Ark. 505, 186 S. W. 2d 925; Jones v. Hardin, Adm., 211 Ark. 273, 200 S. W. 2d 95; and Taylor v. Schlotfelt, 218 Ark. 589, 287 S. W. 2d 890. In the Myers case the Court held that the United States Bonds issued to a decedent and payable after her decease to a named beneficiary, became on her decease the absolute property of the named beneficiary without regard to the provisions of the will of the deceased which made no specific reference to ■ the bonds. The Jones case is a related case of Myers v. Hardin, supra. The Taylor case held that a guardian cannot cash United States Bonds issued to his ward and a co-owner during the life of his insane ward unless the proceeds are required for the maintenance of his ward; and the death of the ward completes the gift of the bonds to the co-owner. These cases fail to provide a solution to the problem here because the beneficiaries had made no attempt to dispose of their interest in the bonds for a valuable consideration before the death of the registered owner, and the effect of such a disposition of interest on the ultimate ownership of the bonds was not discussed or decided by this Court.

Many cases from other jurisdictions have been examined, and no case has been found where the court permitted a surviving owner of United States Savings Bonds to repudiate a property settlement agreement or a contract of any nature under which a surrender of interest in bonds was made to the other owner for a valuable consideration, and upon the surviving owner’s claim to the absolute ownership thereof for the sole reason that such deceased owner had not, during his lifetime, cashed the bonds or taken steps to have them reissued in his name alone. In Tharp v. Besozzi, Ind. App., 144 N. E. 2d 430, Thelma C. Tharp and one Arthur Morrison were one time husband and wife, and during the period of such relationship they acquired United States Savings Bonds, Series E, which were held in their joint names with right of survivorship. The wife filed suit for divorce against the husband, and while said suit was pending the parties entered into a property settlement under the terms of which the husband retained the United States Savings Bonds. The property settlement agreement was fully performed, and on October 4, 1946 a divorce decree was rendered which did not incorporate or ratify the agreement. The husband died on November 15, 1953, without having cashed or surrendered the bonds and having them reissued in his name alone. The wife claimed the proceeds from the bonds and relied on the Treasury Regulations cited hereinabove. The Court held that although the bonds represented a contract between the United States of America and the registered owner of the bonds, the United States could not be compelled to pay any person other than the registered owner; nevertheless the wife should surrender the bonds in controversy for cash in compliance with the treasury regulations and pay the proceeds therefrom over to the administrator of the deceased husband’s estate. See Lemon v. Foulston, 169 Kan. 372, 219 P. 2d 388.

The Supreme Court of Louisiana has held that the Louisiana Statutes of descent and distribution apply to co-owned United States Savings Bond held by a decedent, and even though the federal law controls as to the payee of such bonds, it does not prevent the Louisiana law from determining how the proceeds therefrom shall be distributed. Succession of Gladney, 223 La. 949, 67 So. 2d 547. In Ibey v. Ibey, 93 N. H. 434, 43 A. 2d 157, it was held that where a husband purchased United States Savings Bonds and made them P. O. D. to others to defraud his wife of her downer interest, a constructive trust would be imposed upon the proceeds therefrom held by such payees. In Chase v. Leiter, 96 Cal. App. 2d 439, 215 P. 2d 756, it was held that the Treasury Regulations could not be used as an instrument of fraud, so a constructive trust was declared in the proceeds of United States Savings Bonds as a means of compelling performance of an agreement to make a joint will. Accord: Anderson v. Benson (D. C. Neb.), 117 F. Supp. 765; Union National Bank v. Jessell, 353 Mo. 467, 215 S. W. 2d 474.

In this case, appellee received all that she was to get under the property settlement agreement which was at least approved in part hy the Chancery Court, and now she seeks to get a part of that property which was set aside to the appellants’ decedent solely because he neglected to cash the bonds or have them reissued in his name alone during his lifetime pursuant to the Treasury Begulations. Such a construction of the Treasury Begulations is not supported by the authorities, and certainly is contrary to the principles of equity and fair dealing.

Insofar as the United States of America is concerned the bonds in suit are the absolute property of the appellee, and this Court cannot compel the G-overnment to pay them to anyone else or to recognize the interest of anyone else in them except as expressly provided by the Treasury Begulations under which they were issued. See notes 140 A. L. R. 1435, 161 A. L. R. 170, 188 A. L. R. 245, and 173 A. L. R. 550. But this is not an action against the United States for the payment of the bonds in suit, nor is it a proceeding to compel the United States to recognize the appellants’ interest in them. This suit merely seeks to compel the appellee to surrender the bonds in suit for cash in compliance with the Treasury Begulations. The United States will satisfy its obligations under the bonds by paying the proceeds in accordance with the terms of its contract to the named beneficiary — the appellee in this case, and there is nothing in the law or regulations which prevents this Court from declaring a constructive trust in the proceeds of the bonds in order to prevent flagrant and unfair dealings or even fraud. See Anderson v. Benson, supra; Chase v. Leiter, supra; Ivey v. Ibey, supra; Tharp v. Besozzi, supra; Union National Bank v. Jessell, supra. Since the federal regulations require that the bonds be cashed “voluntarily”, the court cannot compel the appellee to cash the bonds. It should, however, enter a money judgment against the appellee for the value of the bonds, which will be surrendered to her upon satisfaction of the judgment.

The judgment . and decree are reversed and the causes remanded to the lower courts for further proceedings in accordance with this opinion.

Harris, C. J., disqualified and not participating; Holt, McFaddiN and RobiNsoN, JJ., dissent.

George Rose Smith, J.,

concurring. I join in the opinion of Special Justice Perkins, but there is another matter that seems to me to confirm the conclusion reached. Under § 315-46 of the Treasury Regulation these bonds, during the lifetime of John A. Smith, could have been cashed by him alone, but they could not have been reissued in his name alone without the consent of his former wife. At the time of the divorce décree the bonds had matured and were bearing 3 per cent interest. Had Smith cashed the bonds and reinvested the proceeds in Series E bonds he would not for several years have received interest at the 3 per cent rate, as bonds of this series bear a lesser rate of interest when first purchased. Hence it was to Smith’s advantage to continue to receive the higher rate of return by not cashing the bonds. Two disinterested witnesses testified that Smith actually stated that this was his reason for not cashing these bonds. Doubtless that testimony was inadmissible, but even without that evidence he might have had that reason for leaving the bonds undisturbed, and, in view of his apparent care in money matters, I am inclined to think that ivas the reason for his inaction.

Sam RobiNsoN, Associate Justice,

dissenting. When the so-called intervention was filed in May, 1956, asking that the appellant be required to indorse the bonds in order to complete the settlement in the divorce case, the court had lost jurisdiction. WTien Smith paid the $40,000 plus $1,780, there was nothing left undone; the judgment had been satisfied.

Now as to the merits: Smith did not need the indorsement of his former wife to enable him to cash the bonds. If he had wanted to deprive her of the proceeds of the bonds in the event of his death, there was nothing to keep him from cashing the bonds in his lifetime. He had possession of the bonds for almost a year after the divorce was granted, with full power and authority to cash them at any time. All the bonds matured before Smith’s death.

The decision of the majority is based entirely on the assumption that Smith “neglected to cash the bonds or have them reissued in his name alone during his lifetime.” In my opinion there is not a scintilla of evidence in the record, direct or circumstantial, to support such an assumption. On the contrary, the evidence is that the bonds were not cashed for the simple reason that Smith did not want to cash them. In the event of his death he wanted his divorced wife to get the comparatively small amount of money represented by the bonds. The bonds had been purchased by Smith before he and appellee were married. The bonds were made payable to John A. Smith, but.on his death they are payable to “Miss Ada Davidson,” who later married John A. Smith and is the appellee.

The Smiths were married in 1946 and lived together as man and wife until 1954. No children-were born of this union, and John A. Smith is not survived by any children; neither is he survived by father or mother or brothers or sisters. At the time of his death he was worth more than $200,000. From the proven facts, I think there is a reasonable inference that Smith did not cash the bonds because he wanted his former wife to have that small amount additional in the event of his death. One thing for certain, there is not any evidence that he failed to cash the bonds through negligence. Ordinarily a person who accumulates more than $200,000 is not very negligent about money matters.

I am authorized to say that Mr. Justice Holt and Mr. Justice McFaddiN join in this dissent.


author: CarletoN Harris, Chief Justice.

text:
    Edwards v. Griffin.
    5-1483
    310 S. W. 2d 798
    Opinion delivered March 10, 1958.

      S. M. Bone and Chas. F. Cole, for appellant.

      W. M. Thompson and Erwin & Bengel, for appel-lee.
   CarletoN Harris, Chief Justice.

Dr. E. A. Gibbons, a non-resident, owned certain lands in Independence County. He died intestate in 1918, and was survived by Ms widow, Mrs. Mina Gibbons, and three children, Mrs. Marie "Wanderscheid, Balph Z. Gibbons and Cecil C. Gibbons. Mrs. Mina Gibbons had only a life estate in the property.

Appellee, Clyde Griffin, leased these lands from Mrs. Gibbons, for the term of five years, the lease to expire December 31, 1955, and later obtained another lease from Mrs. Gibbons which was to commence upon the expiration of the first lease, and was to run another five years, expiring December 31, 1960. Mrs. Gibbons died October 12, 1955. On March 17, 1956, Edwards purchased the lands from the remaindermen, and being unable to obtain possession of the property from Griffin and his sub-tenant, Barney Young, instituted suit in the Chancery Court asldng that appellees be restrained and enjoined from interfering with his right to enter said lands. The case was transferred to Circuit Court, and after preliminary motions had been disposed of, proceeded to trial. The jury returned a verdict in favor of appellees for the possession of the property under the terms of the lease; judgment was accordingly entered, and from such judgment comes this appeal.

Appellant contends that, after the death of Mrs. Gibbons, the appellees became tenants by sufferance, or merely at will; contends that it was necessary that the lease, (executed in September, 1955, by Mrs. Gibbons) in order to remain in effect, be ratified in writing by the remaindermen, and that there was no written ratification of the lease by them; and finally, that appellees’ defense falls within the statute of frauds.

Appellant moved for an instructed verdict at the conclusion of his evidence, and at the conclusion of all the testimony, on the premise that the lease, being executed by a life tenant, became void and expired upon Mrs. Gibbons’ death, and that appellees were thereafter tenants by sufferance, or at will; that the heirs had not given any lease, and that the testimony showed no ratification by any of them as to the lease executed by Mrs. Gibbons. Both motions were overruled by the court.

As stated in the Iowa case of Sanders v. Sutlive Bros. & Co., 163 Iowa 172, 143 N. W. 492:

“It is a general rule that upon the death, of a tenant for life, all interest of Ms lessee ceasés. * * * the lessee has no greater rights than his lessor, and the estate held by him is subject to be defeated by the death of a tenant for life. * * * Upon the termination of the lease * * * in the absence of facts showing to the contrary, the further occupancy of the lessees with the consent of the owners would be assumed to be as tenants at will. * * * The presumption thus ereated is not a conclusive one, but it is subject to be met and overcome by proof that the parties had, by their agreement or acts, determined upon or recognized a different tenancy.
“The lease under which appellants now claim the right of possession by its terms was to commence May 15, 1910. Before the arrival of that time, the lessor was dead. Her estate in the property having been limited to. her lifetime, no rights could be claimed by the-lessees under such second lease unless after the death of the lessor it was adopted by her heirs . * * *
‘ ‘ To ascertain the rights of the parties, we must therefore turn to the evidence, in its application to the question of adoption or acceptance of the contract of lease, and also as to the knowledge which the grantee in the deed had of the claim of Sutlive Bros.”

In the Sanders case, the court held the proof established that the lease bad been ratified by the remaindermen. Accordingly, whether appellees were merely tenants at will depends upon tlie proof in this case. We agree with appellant that upon the death of Mrs. Gibbons, it became necessary that the remaindermen ratify the lease before appellees could successfully claim any rights thereunder. We also agree that oral ratification would not be sufficient. As stated in Words and Phrases, Yol. 36, page 131:

“ ‘Ratification’ is equivalent to original authority, and, where a statute requires the original authority to be in writing, on principle, the ratification must also be.”

It was not necessary, however, that the ratification be endorsed on the lease itself, but any writing, denoting recognition and approval, would amount to ratification. Allegany Gas Co., to Use of East Penn Development Co. v. Kemp, 316 Pa. 97, 174 Atl. 289.

After a study of the evidence, we conclude there was sufficient evidence to submit to the jury the question of whether the lease had been ratified in writing. Appellant admitted that he received a letter from Cecil Gibbons, a son of Mrs. Mina Gibbons, on January 16, 1956, relative to a prior conference the two had had in regard to a sale of the land. The letter contains the following language:

“After our telephone conversation last Thursday, I again discussed selling our land in Independence County, Arkansas, to you with my brother and sister and our attorney, Mr. Prank Sehwirtz of Bellevue, Iowa.
As a result of this conference we agreed that we would sell the land to you for a cash payment of $30.00 an acre, subject to the existing lease now held by Mr. Clyde Griffin of Newark.
The selling price would therefore be $10,720.00 subject to the lease held by Mr. Griffin, which would be assigned to you. In order that you will be fully informed as to the text of the lease, I am enclosing a copy thereof.
I am sending copies of this letter to both Mr. Clyde Griffin and Mr. Barney Young so that each will be fully informed of our intentions. It is hoped that if yon are still interested in buying the land at the above figure, a satisfactory arrangement can be worked out between you and the lessee, in order that the transaction can be completed. * * *”

Edwards says this was only an offer of sale, which he rejected, pointing out that the selling price offered in the letter was $10,720, whereas the sale was actually consummated for an agreed sum of $10,150. Gibbons also wrote a letter on the same date to Griffin, enclosing a copy of the letter to Edwards, and stating:

“ * * * So if Mr. Edwards wants to buy and can work out the lease with you, we will let the land go.
In the event that Edwards does not want to buy, we will probably place the land in some dealer’s hands for sale, under the same conditions stated in Edwards’ letter. * * *”

The deposition of Gibbons, taken by interrogatories, (the witness being in Rock Island, Illinois) was read to the jury. Gibbons stated that he received a reply from Edwards to his letter of January 16th, in which Edwards offered $10,160 for the land (which offer was later accepted), and that relative to the lease, Edwards stated:

“The lease speaks for itself, and there is nothing that can be done about it unless there is a non-compliance of same.

When questioned by cross interrogatories as to whether the terms of the sale agreement were different from the original offer, Gibbons twice stated: “The selling price was different.” While it is true that Gibbons also testified; “I personally never signed any lease or ratified one in writing, and to the best of my knowledge, neither did my brother or sister,” a pertinent fact was testified to by tlie witness in answer to tbe very next question.

“CROSS INTERROGATORY NO. 11.
“When you and the other heirs of Dr. E. A. Gibbons conveyed the lands to Mr. J. G. Edwards, was it your intention and belief to convey same free of any lease on the lands, and did you believe at the time you executed the deed to Mr. Edwards that you were conveying same free of any lease on the lands ? Explain fully.
“Answer:
“As is ascertained by Cross Interrogatory No. 6, Mr. Edwards was furnished a copy of the lease during the initial negotiations, and the land was sold to him only after receipt from him, Mr. Edwards, of affidavit stating that he was fully aware of the existence of said lease, and that he assumed all the responsibility of the lease. Affidavit on file in Rock Island.”

Thus, we find the following evidence on behalf of ap-pellees: First, on January 16, 1956, Edwards was sent a copy of the lease by Gibbons, and notified that the sale of the property would be subject to the lease; second, Griffin was notified by letter of the same fact; third, according to Gibbons, Edwards had recognized that he would have to buy subject to the lease, and fourth, the only difference in the accepted agreement and original offer was a reduction in price. As stated, there was ample evidence to warrant submission of the issue of ratification to the jury.

Appellant contends that the court erred in giving its instruction V. Such instruction was as follows:

“You are instructed that under the law a lease by a life tenant which does not take effect until after her death, or which was not supposed to take effect until after her death, would expire with her death unless you find from a preponderance of the evidence that the lease was subsequently ratified by the owners of the land or someone acting as their agent.
‘ ‘ If you. find by a preponderance of the evidence that Mrs. Mina Gibbons executed a lease to the lands in question prior to the time of her death in October, 1955, for a period of five years beginning on January 1, 1956, with the defendant, Clyde Griffin, and you further find from a preponderance of the evidence that Cecil Gibbons, acting as the agent of the heirs of Mrs. Mina Gibbons and the heirs at law of Mina Gibbons and E. A. Gibbons, did, prior to the date of the sale of said lands, to-wit; the 23rd day of March, 1956, recognize and ratify said lease, and the plaintiff Edwards had knowledge of such ratification, you are instructed that ratification may be by writing or by some other act. or acts or word or deed signifying acceptance of the terms thereof, then your verdict would be for the defendants for the possession of the property in question under the terms of the lease.” The portion of the instruction complained of related to the court’s definition of ratification, vis., “you are instructed that ratification may be by writing or by some other act or acts or word or deed signifying acceptance of the terms thereof, then your verdict would be for the defendants for the possession of the property in question under the terms of the.lease.” Appellant particularly assails the use of “word”, and such argument is sound since the lease could not be orally ratified. No general objection was made, and the specific objections made did not go to that particular point. The record reflects that counsel for appellant stated:
“We certainly object to that instruction; they are dealing with a written lease; that is- all anybody ever furnished him; that is what the defendants have set out and what they stand on.”

Further objection was made by counsel as follows:

“I call attention to the court that there was no proof whatsoever to show that the alleged ratification by Mr. Cecil Gibbons to Clyde Griffin was ever communicated to J. G. Edwards, and that Mr. Edwards had made diligent inquiry as to the right or rights under which the defendants Clyde Griffin and Barney Young were in possession, and was advised that there was a lease executed by a life tenant who bad died, and that be bad discharged ail responsibility required of him by law as to taking possession by him.”

The first objection apparently is directed to the contention that at the death of Mrs. Gibbons, appellees’ rights expired, and they became tenants by sufferance; though it might also be construed that the objection went to the fact that the lease itself showed no ratification. As previously set out herein, objections on these grounds are of no validity since ratification in writing was sufficient, and the portion of the instruction dealing with written ratification was correct. The second objection to the instruction dealt with a contention that the alleged ratification of the lease was never communicated to appellant. Neither objection relates specifically to the court’s instructing the jury that the contract could be ratified orally.

Appellant argues that at any rate, there is nothing in the record showing a ratification of the lease by the other Gibbons heirs, and no evidence to establish Cecil Gibbons as their agent or to show that he had any authority to act for the other two. We find this contention to be without merit. In the first place, certainly Edwards must have recognized that Cecil Gibbons was acting for his co-owners, for all of his negotiations were entirely with Cecil. While Gibbons ’ discovery deposition was taken, no questions were asked by either side as to his authority to act. In his letter to Edwards of January 16th, Gibbons commented that “* * * I again discussed selling our land in Independence County, Arkansas, to you with my brother and sister * * *” However, the clearest evidence that Gibbons had authority to act for his brother and sister is the fact that they joined in the execution of the deed to Edwards, though all negotiations had been carried on entirely with Cecil Gibbons.

Finding no reversible error, the judgment of the Circuit Court is affirmed.

       The facts are very similar to the instant litigation. Margaret Rigler, wife of Lorenz Rigler, deceased, held only a life estate in certain property. She entered into a contract of lease with Sutlive Brothers for a period of five years; before the expiration of this lease, another lease at the same rental was entered into between the parties, the term specified being from May 15, 1910, to May 15, 1920. Mrs. Rig-ler died intestate on March 6,1910, survived by two daughters. As in the instant case, her death occurred slightly more than two months before the expiration of the first lease. The remaindermen subsequently sold the property to one Sanders, and litigation resulted to determine whether the lease had been previously ratified by such remaindermen.

       Emphasis supplied.

       Emphasis supplied.

       Edwards stated he did not remember making such a statement, and did not believe that he did.

       The latter part of the answer was ruled out by the court as the opinion of the witness.


author: J. SeaborN Holt, Associate Justice.

text:
    College Club Dairy, Inc. v. Ames.
    5-1477
    311 S. W. 2d 532
    Opinion delivered March 10, 1958.
    [Rehearing denied April 21, 1958]

      Ulys. A. Lovell, James Evans, Bex W. Perkins and E. J. Ball, for appellant.

      W. B. Putman, for appellee.
   J. SeaborN Holt, Associate Justice.

On March 19, 1955, this suit was filed hy appellant, College Club Dairy, Inc., against B. 0. and Peggy Ames, a partnership doing business as Medosweet Dairy, to foreclose a real estate mortgage, and a chattel mortgage on certain auto trucks, as security for a past due note in the amount of $16,193.35, alleging that there was due appellant $12,293.35 on the note, $8,182.74 for milk furnished, and $2,100.00 on an unpaid check. It was further alleged that appellees were insolvent, prayed for a receiver to take charge of the assets and preserve the going business. Following a hearing the trial court on March 22, 1955, appointed Lewis Legg receiver who, after qualifying and making a $20,000 bond, procured an order from the court directing him as receiver to purchase milk from College Club Dairy and pay for same out of gross operating income. Complying with this order Legg bought milk from appellant until October 8, 1955, when appellant refused to continue selling milk to the receiver until the receiver had paid appellant $6,457.76 which it was alleged the receiver was behind in his payments to appellant for milk. Following this action of the College Club Dairy, the receiver, with the court’s permission, began purchasing milk from the Hiland Dairy in Missouri, for cash on delivery. Expenditures for Hi-land milk from October 10, 1955 to November 22, 1955, totaled $11,010.24. On February 13, 1956, the court ordered and directed the receiver ‘ ‘ to file his final accounting herein as of the close of business on January 31, 1956 and that he deliver all assets in his hands as such receiver to the defendant, B. G. Ames, as of the beginning of business on February 1, 1956.” The court retained jurisdiction. After considerable delay and following a contempt citation the receiver, as directed, did on November 15, 1956, file an accounting. It appears that the receiver had, in compliance with the order of the court of February 13, 1956, and several months prior to filing his account, delivered the assets in his hands to the appellees.

The receiver’s accounting is briefly summarized by the appellant as follows: “The receiver’s accounting, filed with the receiver’s report, shows cash, accounts receivable, machinery and equipment of $17,725.68; and received over the accounting period of $79,254.13, making a total of $96,979.81. Expenditures for salaries, help, milk, truck expense, repairs, taxes, office supplies, maintenance, insurance, utilities, and hospitalization for Bill Gr. Ames, $73,706.17. Payments on obligations existing prior to March 22, 1955, trade accounts, notes and interest, plus an assignment to the First National Bank in Springdale, Arkansas — $10,202.83; Assets on hand at the close of Receivership: Cash: $307.90; Accounts Receivable: $3,652.91, and machinery and equipment: $9,-110.00, making a total of $13,070.81. The liabilities prepared from records without audits showed $28,498.83, and the accounts payable by the receiver totaled $6,-945.13, of which $6,228.41 was due College Club Dairy, Inc., by tiie receiver for milk purchased by the receiver from the College Club Dairy, Inc.” And, in an amended report . . . “that, at the time of termination of receivership (final accounting), there was on hand milk, cream, butter and dairy products of the value of approximately $800.00; asking that the original report be amended to show this amount and to credit the receiver therefor.” Exceptions were filed to this report generally as to the manner of expenditures and as to the purpose for which expenditures were made by the receiver. The trial court sustained an exception to the item of $124.00 expended by the receiver on a group insurance policy for Ames, but refused to charge the receiver with the milk bill item to College Club which the court found to be $6,228.00, but further held that “all other objections filed to the receiver’s account should be dismissed and overruled.”

On this appeal, appellant relies on the following three points: “1. The appellant alleged sufficient facts in its complaint to constitute a cause of action . . . 2. Appointment of a receiver in a chattel mortgage and real estate mortgage foreclosure is legal and proper . . . 3. A creditor furnishing goods and supplies to a receiver pursuant to the order of the court is entitled to a priority as to the funds received from the sale of such goods and supplies. The trial court erred in holding to the contrary.”

It appears from the briefs before us and the oral argument that the only issue for our determination is appellant’s contention in his third point above, that as a creditor furnishing goods and supplies to a receiver pursuant to the order of the court, appellant is entitled to a priority as to the funds received from the sale of such goods and supplies, amounting to $6,228.00.

We find no evidence in the record of any fraud or culpable negligence on the part of the receiver in the discharge of his duties, such as would impose liability on him and his bondsmen. Clearly, we think the $6,228.00 claim with which appellant seeks to surcharge the receiver’s account, is one that arose from the sale by appellant of milk to tlie receiver for resale, in carrying on the receivership and was, therefore, properly classified as an operating expense, by the receiver, and was a claim payable from the assets in the hands of the receiver. It appears, however, at the time of the receiver’s final accounting (February 4, 1956) that assets totaling $13,070.81 were in his hands, including $3,960.81 in cash and accounts receivable, and an additional $800.00 in inventory of dairy products. "While it appears that on this date, February 4, 1956, liabilities exceeded the assets, but with the exception of the $6,228 College Club claim and small claims amounting to about $716.72, all other liabilities arose prior to the receivership, and College Dairy would have been justified only in claiming a preference over these pre-existing claims, and would not be entitled to a preferred status as to any claims that arose after, and during, the receivership — and the trial court correctly so held. “The general rule is that costs and expenses of a receivership, including compensation for the receiver, counsel fees, and obligations incurred by him in the discharge of his duties, constitute a first charge against the property or funds in receivership . ' . . this rule governs the payment of operating expenses of a receivership.” 45 Am. Jur. Receivers, Sec. 275. Appellant, however, instead of asserting its claim against the assets that remained in the hands of the receiver, at the time of his accounting, stood by without objection and permitted all of these assets to be delivered to the appellees in accordance with the trial court’s order. We do not mean to hold that appellant, College Club Dairy, does not have the right to collect this just debt of $6,228, but he cannot collect it from the receiver or his bondsmen.

The decree is affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    State ex rel. Ark. Publicity & Parks Comm. v. Woodward.
    5-1479
    310 S. W. 2d 803
    Opinion delivered March 10, 1958.

      Bruce Bennett, Atty. General; Bussell J. Wools, Asst. Atty. Gcn’l., for appellant.

      Hugh M. Bland and Shaw, Jones & Shaw, for ap-pellee.
   Ed. F. McFaddiN, Associate Justice.

The appeal herein must be dismissed because of lack of a final and appealable order.

Woodward filed suit to quiet title to certain lands; and the Arkansas Publicity and Parks Commission (hereinafter called “Commission”) demurred to the complaint. The Court overruled the demurrer in an order which reads:

“IT IS THEEEFOEE CONSIDEEED, OE-DEEED, ADJUDGED, AND DECEEED that the demurrers of the defendant be and the same are hereby overruled since the Court has jurisdiction of the parties and subject matter herein and the defendants are given 20 days to file an answer to the amended complaint of the plaintiff. The defendants objected to the action of the Court and asked that their objections be noted of record and the same is hereby done.”

From the foregoing copied order the Commission has attempted this appeal. In Radford v. Samstag, 113 Ark. 185, 167 S. W. 491, an appeal was attempted from an order overruling a demurrer to the complaint. We said: “The chancery court in overruling the demurrer did not adjudge tlie rights of the parties, and consequently there was no final order from which an appeal could he taken.” In Arkansas State Board of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269, we reviewed many of our cases, all to the effect that when there is no final order, an appeal will not lie.

Therefore, the appeal is dismissed.


author: Minor W. Millwee, Associate Justice.

text:
    Burnett v. United States Fidelity & Guaranty Co. of Baltimore, Md.
    5-1492
    310 S. W. 2d 806
    Opinion delivered March 10, 1958.

      Parker Parker, for appellant.

      Joe Goodier and K. M. Parsley, for appellee.
   Minor W. Millwee, Associate Justice.

This appeal involves the validity of an order of the Yell Probate Court denying appellants’ petition for the appointment of a distributee of an estate as personal representative in succession.

A. S. McCray died intestate in Yell county June 13, 1952, survived by Ms sister, Miss Jessie McCray, as Ms sole lieir at law. On July 1, 1952, Jessie McCray and Herbert Scott were appointed co-administrators of the A. S. McCray estate. Jessie McCray died intestate August 17, 1954, and appellant, Fred C. Burnett was appointed administrator of her estate. Herbert Scott continued the administration of the A. S. McCray estate and filed a final accounting therein on January 5, 1956, showing a balance of $428.52 remaining in the estate which he requested be turned over to Fred C. Burnett as administrator of the estate of Jessie McCray after payment of any remaining court costs. Burnett filed exceptions to the final accounting of Herbert Scott and these exceptions were also adopted by the other twelve appellants, who are cousins and heirs of Jessie McCray and A. S. McCray and entitled to 11/13 of the A. S. McCray estate. Herbert Scott died September 10, 1956, before action had been taken on his final accounting and the exceptions thereto.

On November 19, 1956, appellants filed a petition requesting the probate court to appoint the appellant, Mrs. Ora Cowger, one of the cousins and distributees, as administratrix in succession of the A. S. McCray estate. Appellee, United States Fidelity & Guaranty Co., surety on Herbert Scott’s bond, filed a response alleging it would be inequitable, unfair and unjust for Mrs. Cowger as an interested party to be both plaintiff and defendant in the accounting litigation and requested the court to appoint some disinterested qualified person to serve as special administrator for the purpose of resolving the accounting problem presented. Appellee also filed its petition to adopt the pleadings and settlement of its principal, Herbert Scott, as co-administrator of the A. S. McCray estate. This appeal is from an order of the probate court denying appellants’ petition and permitting appellee to adopt the final settlement' of Herbert Scott as its own settlement.

We do not agree with appellants’ contention that the probate court was without discretion to deny their petition for the appointment of Mrs. Ora Cowger as ad-ministratrix in succession under our statutes. Section 73 of the Probate Code (Ark. Stats., Sec. 62-2204) provides : “When a personal representative dies, is removed by the court, or resigns and such resignation is accepted by the court, the court may, and if he was the sole or last surviving personal representative and the administration is not completed the court shall, upon the motion or petition of an interested person, appoint another personal representative in his place.”

Appellants argue that when the above section of the Probate Code is construed along with Sec. 70 (Ark. Stats., Sec. 62-2201) it became mandatory that the court appoint Mrs. Cowger. It is argued that since she was not disqualified under subsection (b) of this section, she was entitled to the appointment under the third and fourth subdivisions of subsection (a) which provide that letters of general administration may be granted to one or more persons in order of priority, as follows:

“(3) To one or more of the persons entitled to a distributive share of the estate or his or her nominee, as the court may in its discretion determine, if application for letters be made within forty days after the death of the decedent, in case there is a surviving spouse, and if no surviving spouse, within thirty days after the death of the decedent.
“(4) To any other qualified person.”

In view of the time limitation stated it seems clear that the preference accorded a distributee under subdivision (3) applies to the initial appointment. However, we recently held the statute did not make it compulsory for the court to make an appointment in the order of priority mentioned and that, for sufficient cause, and in unusual circumstances, it might well refuse to do so. Brod v. Brod, 227 Ark. 723, 301 S. W. 2d 448. In construing a prior similar statute (Sec. 8, Pope’s Digest) we said: “The court is not required to appoint blindly a member of the preferred class where there is no member of that class qualified or where the applicant of that class is not qualified, or who, in the opinion of the court, will not best manage and improve the estate, even if otherwise qualified.” Woodruff, Adm. v. Miller, 209 Ark. 759, 192 S. W. 2d 527.

Here the only incomplete item of administration is the settlement of the final accounting to which both the administrator of the Jessie McCray estate and most of the heirs of A. S. McCray have filed their exceptions. In these circumstances we hold it was within the court’s discretion under Sec. 62-2204, supra, to refuse to permit Mrs. Cowger, an interested party, to assume the dual role of assailant and defender of the accounting proceeding. The judgment is accordingly affirmed.


author: George Rose Smith, J. Ed. F. McFaddiN, Associate Justice,

text:
    Hughes v. Yates.
    5-1455
    311 S. W. 2d 179
    Opinion delivered March 10, 1958.
    [Rehearing denied April 7, 1958]

      James W. Steinsieh and Oscar Fencller, for appellant.

      Marcus Evrard and James M. Gardner, for appel-lee.
   George Rose Smith, J.

This is a boundary line dispute involving a narrow triangular piece of land that separates the Hughes property to the north from the Yates property to the south. The chancellor decreed that the triangle in issue belongs to Yates and his wife, who were the plaintiffs.

In 1948 Ed Rogers, the common grantor of these litigants, owned a tract of land, then planted in cotton, lying on the east side of Highway 61 in or near Blythe-ville. This tract extended for 800 feet along the highway and was 400 feet in depth. Rogers decided to divide the tract into eight residential lots, each having a frontage of 100 feet on the highway. In selling the lots Rogers did not put on record a plat of the land; instead, he executed deeds containing metes and bounds descriptions based on the original government survey.

Apparently Rogers thought that his tract was a perfect rectangle, lying square with the compass, but in this he was mistaken. According to the government survey the north line of the section in which the Rogers tract was situated does not run exactly east and west. The angle at the northwest corner of the section is only eighty-nine degrees, so that the north line deviates southward by one degree as one travels from west to east. This deviation was in effect contained in the description of the Rogers tract when he acquired title in 1937. Furthermore, when Rogers decided to subdivide bis cotton field in 1948 his north line was marked by a fence which also deviated southward and which was owned by his neighbor to the north, Ada Tharpe Morgan.

On July 16, 1948, Rogers conveyed to Hughes and his wife the north two lots in the tract, having a frontage of 200 feet on the highway. This deed was recorded on July 27. The description in this deed proceeds to the northwest corner of the Rogers tract for a point of beginning and then continues: . . and run thence East along the South line of lot owned by Ada Tharpe Morgan a distance of 400 feet, thence South 200 feet, thence West 400 feet to the East right-of-way line of U. S. Highway No. 61, thence North along the East right-of-way line of said U. S. Highway No. 61 a distance of 200 feet to the point of beginning.”

On August 6, 1948, Rogers conveyed to Yates and his wife the next lot to the south, having a frontage of 100 feet on the highway. The description in this deed proceeds to a point 200 feet south of the northwest comer of the original Rogers tract, for a point of beginning, and then continues: . . and run thence East 400 feet, thence South 100 feet, thence West 400 feet to the East right-of-way line of U. S. Highway No. 61, thence North along the East right-of-way line of U. S. Highway No. 61 a distance of 100 feet to the point of beginning.”

The two couples built houses on their respective lots and had lived in them for some seven years when this suit was filed in 1956. The Yateses attempted to bolster their position by a claim of title by adverse possession; but the chancellor rejected this contention, and his conclusion is supported by the weight of the evidence. The issue thus narrows down to that of determining the legal effect of the two deeds in question.

The Hughes deed was executed and recorded before that of Yates; so its description is controlling if the two descriptions overlap. The Hughes description begins at the northwest corner of the Rogers tract and runs “thence East along the South line of lot owned by Ada Tharpe Morgan a distance of 400 feet,” thence south 200 feet, thence west 400 feet to the highway, and thence north 200 feet to the point of beginning. It is evident that the first call must be taken to run along the Morgan boundary fence, rather than due east, under the familiar rule that courses must yield to natural or artificial monuments. Paschal v. Swepston, 120 Ark. 230, 179 S. W. 339; Meyer v. Board of Imp. of Pav. Dist. No. 3, 148 Ark. 623, 231 S. W. 12. This construction is in this instance confirmed by the fact that Bogers’ own boundary line also deviated to the south, and it is not to be presumed that he attempted to convey land that he did not own.

With the north line of the Hughes lot thus established as running slightly south of due east (the variation amounts to 8.2 feet along the eastern boundary), we think it clear that the effect of the Hughes deed is to describe a parallelogram, 200 by 400 feet in size. The parties evidently intended for the east and west lines of the Hughes parcel to be 200 feet in length and for the opposite sides to be parallel.

The Yates deed, unlike the Hughes deed, makes no reference to the Ada Tharpe Morgan line; it simply describes an exact rectangle, lying square with the compass. Hence the two descriptions actually overlap to the extent of the triangle in controversy, and Yates is in the unfortunate position of having received a deed to property that his grantor had already sold to someone else.

During our study of the case it has been suggested that the shortage should be apportioned between the two grantees, but that principle is not applicable here. An apportionment is appropriate when lots are sold by reference to an erroneous plat that shows more land than is actually owned by the common grantor. “But this rule is only to be availed of when the land is conveyed by reference to a plan, or there is some declaration in the deed indicating a purpose to divide the land according to some definite proportion, and when also there is no other guide to determine the locations of the respective lots.” Bloch v. Pfaff, 101 Mass. 535; accord, Adams v. Wilson, 137 Ala. 632, 34 So. 831. Here there was no plat nor any reference in the Hughes deed to a comprehensive plan on the part of Rogers. If such a plan existed it was only in the mind of Rogers, and he was at liberty to abandon it after executing the conveyance to Hughes. In these circumstances the Rogers-Hughes deed must be given the construction that it would have received in a controversy between the grantor and the grantee; its legal effect cannot be altered by the extraneous fact that Rogers later executed an independent deed containing an overlapping description.

Reversed and remanded for the entry of a decree granting the appellants’ prayer that their title to the disputed triangle be confirmed.

McFaddin, J., dissents.

Ed. F. McFaddiN, Associate Justice,

dissenting. I am of the opinion that the decree rendered by the Chancery Court should be modified rather than reversed. The purpose of this dissent is to call attention to a rule that the majority has refused to apply. A detailed factual statement is necessary to show why I consider the rule to be applicable.

There is involved only a triangular strip tapering from a point to a width of 12.22 feet at the base. The real cause of the suit is the fact that the north line of Section 10, here involved, does not run due east and west. The west side of Section 10 is on a true north and south line. The north line of Section 10 should run due east from the northwest corner; but, instead, the line actually runs one degree forty-five minutes south of due east; and this variation to the south of due east amounts to a variation of 12.22 feet in a distance of 440 feet to the east. As aforesaid, this variation of the north line of Section 10 accounts for this lawsuit.

The center line of U. S. Highway No. 61 is the west side of Section 10. The highway right-of-way is eighty feet wide, so that forty feet of the right-of-way is taken off the west side of Section 10; and all of the lots here involved have been laid off facing west on the U. S. Highway. A parcel of land referred to as the ‘ ‘ McGhee Lot” is in the extreme northwest corner of Section 10 and fronts on U. S. Highway No. 61. The south line of the “McGhee Lot” is parallel with the north line of Section 10; i.e., runs east one degree forty-five minutes south. Immediately south of the “McGhee Lot” there is a lot owned by Ada Tharpe Morgan, fronting on U. S. Highway No. 61. The south line of the Morgan lot is likewise parallel with the north line of Section 10; i.e., runs east one degree forty-five minutes south.

Immediately south of the Morgan lot, Ed Rogers owned a tract that had a frontage of eight hundred feet on U. S. Highway No. 61 and a depth of four hundred feet; and was bounded on the south by Marr Avenue in the City of Blytheville. Rogers divided his tract into eight lots, each with a frontage of one hundred feet on U. S. Highway No. 61, and each having a depth of four hundred feet to the east. He sold his lots by metes and bounds rather than by lot and block designation. But the fact that the lots were sold in accordance with a common plan is shown by the dates of the various deeds from Rogers to his grantees covering the eight lots. The dates of the deeds of these lots (considering the lots from north to south) are as follows: Rogers to Hughes, July 16, 1948; Rogers to Yates, August 6, 1948; Rogers to Reece, July 24, 1948; Rogers to Hall, July 24,1948; Rogers to Huffman, July 19, 1948; and Rogers to Marr, July 16, 1948.

Appellant Hughes purchased from Rogers his two most northern lots (adjoining the Morgan property), and thus had a frontage of two hundred feet on H. S. Highway No. 61, with a depth of four hundred feet. A short time later, Appellee Yates purchased the lot just south of Hughes, and had a frontage of one hundred feet on U. S. Highway No. 61 with a depth of four hundred feet to the east. The Hughes south line was and is the Yates north line; and that is the line in dispute in this litigation.

When Yates purchased his lot there was a well identified stake at the southeast corner of his lot ; and the south line of Yates’ property runs true east and west from his southwest corner to his southeast corner. The trouble arose between Hughes and Yates when it was discovered by them that the distance from Hughes’ northeast corner to Yates’ southeast corner was only 287.88 feet instead of being three hundred feet, as their deeds stated. Hughes insisted that he was entitled to his full two hundred feet; and Yates insisted that he was entitled to his full one hundred feet. There had been no possession by either party for sufficient time to work any limitations; neither had there been any agreed boundary. When Hughes undertook to move Yates’ fence, Yates invoked equity for relief. The Chancery Court gave Yates the prayed relief, and Hughes has appealed.

When Hughes and Yates discovered a total shortage of 12.22 feet on their combined east lines, these litigants had at least three courses open to them: (a) they could have called on their common grantor to make good any shortage; (b) they could have interpleaded all other owners of lots down to Marr Avenue and asked for a general determination; (c) or they could have taken the course that they have actually pursued; i.e., litigate between themselves as to their boundary line. Absent — as here — (a) any sufficient evidence of adverse possession, and (b) any evidence of agreed boundary; but established —as here — a shortage of 12.22 feet on the back (or east) line of their lots, then these two litigants, as between themselves, should apportion their shortage in proportion to their deed calls; i.e., Hughes was supposed to have two hundred feet and Tates one hundred feet, or a total of three hundred feet. There is a distance of only 287.88 feet, or a shortage of 12.22 feet. The shortage of 12.22 feet should he absorbed two-thirds by Hughes and one-third by Tates; that is, Hughes should absorb 8.1466 feet of the shortage and Tates should absorb 4.0733 feet of the shortage. This would mean that Tates would begin at his southeast corner and go north on his east line only 95.9266 feet to reach his northeast corner. Then Hughes would begin at Tates’ said northeast corner and go north on Hughes’ east line 191.8533 feet to Hughes’ northeast corner, which will reach the south line of the Morgan lot.

In arriving at the result just stated I have applied the rule given by the textwriter in 8 Am. Jur. 796, “Boundaries,” § 71, which is as follows: “If, after a tract of land has been subdivided into parts or lots and title thereto has become vested in different persons, it is discovered that the original tract contained either more or less than the area assigned to it in a plan or prior deed, the excess should be divided among, or the deficiency borne by, all of the smaller tracts or lots in proportion to their areas. . . . The sequence of lot numbers on the plat of lots is immaterial in the application of the rule. The sequence of sale of the lots is likewise immaterial. . . .” Cases supporting the text are found in the annotations contained in 97 A. L. R. 1230; Ann. Cas. 1912A, p. 1273; 23 A. S. R. 392; and 45 A. S. R. 186. I call attention to the fact that the quoted language says “plan” and not “plat”; and I have shown the “plan” by giving the dates of the deeds from Rogers; so I consider the quotation above to be the applicable rule of law in the case at bar.

Had the present litigants seen fit to interplead all the other lot owners down to Marr Avenue, the entire shortage of 12.22 feet might have been apportionable between all of the eight lots sold by Rogers; but when the present litigants elected to settle the difficulty between themselves alone, then — as I see it- — they should absorb, between themselves alone, the entire 12.22 feet shortage on the east end of their lots. The decree rendered by the Chancery Court readied a result only sligiitly different from the views herein expressed; hut I would remand the cause for a decree to be entered in accordance with this dissent.

       The description in the deed from Rogers to Hughes is as follows: “Beginning at a point 466 feet and 8 inches South of the intersection of the North line of Section 10, Township 15 North, Range 11, with East right-of-way line of U. S. Highway No. 61, and run thence East along the South line of lot owned by Ada Tharpe Morgan a distance of U00 feet, thence South 200 feet, thence West 400 feet to the East right-of-way line of U. S. Highway No. 61, thence North along the East right-of-way line of said U. S. Highway No. 61, a distance of 200 feet to the point of beginning.” (Italics my own.)

       The description in the deed from Rogers to Yates is as follows: “Beginning at a point 666 feet and 8 inches South from where the North line of Section 10 aforesaid intersects the East right-of-way line of U. S. Highway No. 61, and run thence East 400 feet, thence South 100 feet, thence West 400 feet to the East right-of-way line of U. S. Highway No. 61, thence North along the East right-of-way line of U. S. Highway No. 61 a distance of 100 feet to the point of beginning.”

       1 have named the other owners and the dates of their deeds from Rogers to show that Rogers sold his property under a common plan.