author: Jim Johnson, Associate Justice.

text:
    Fitzhugh v. Elliott.
    5-3073
    371 S. W. 2d 533
    Opinion delivered October 21, 1963.

      Cole é Scott, for appellant.

      Wootton, Land S Matthews, for appellee.
   Jim Johnson, Associate Justice.

This is a tort action for damages resulting from automobile collisions. On December 13, 1960, between 6:00 and 6:30 P.M., appellee J. Kathryn Elliott was driving a Ford car east on Page Avenue in Malvern, and turned north (left) into Olive Street. At the same time appellants were driving west. Appellant Marvin Holst, driving a Hudson car, was followed by appellant Rebecca Fitzhugh, driving a Buick. In the intersection appellee’s car collided with appellant Holst’s car, which, being knocked back, collided with appellant Fitzhugh’s car. Suit was filed February 15, 1961, and after answer, cross-complaint and amendments, the matter came to trial before the Hot Spring Circuit Court on August 20, 1962. After deliberation, the jury returned the following verdicts:

“We the jury, find the damages of the parties as being:

J. Kathryn Elliott $1,500.00

Kebecca Fitzhugh 300.00

E. D. Yates, Foreman

“We the jury, find that the negligence which was a proximate cause of Mrs. Elliott’s damages to be:

20% J. Kathryn Elliott

40% Marvin Holst

40% Kebecca Fitzhugh

100% Total

E. D. Yates, Foreman.

“We the jury, find that the negligence which was a proximate cause of Mrs. Fitzhugh’s damages to be:

J. Kathryn Elliott 20%

Marvin Holst 40%

Kebecca Fitzhugh 40%

Total 100%

E. D. Yates, Foreman”

Appellant Fitzhugh moved the court to set aside the verdict against her, alleging that there was no evidence in the record to support a finding of negligence on her part, and the court reserved judgment on that verdict. On November 20, 1962, another motion to set aside the verdict and motion for new trial was filed on behalf of both appellants. After oral argument November 23,1962, the court set aside the verdict against appellant Fitzhugh on appellee’s cross-complaint, finding that there was no evidence in the record to support a finding that the injuries complained of in the cross-complaint were proximately caused by any negligence on the part of appellant Fitzhugh. The motion to set aside the verdict against appellant Holst was denied, as was the motion for new trial. The court gave appellee judgment against appellant Holst for $1,200.00, and gave appellant Fitzhugh judgment against appellee for $180.00. From the judgment comes this appeal. There is no cross-appeal from the directed verdict eliminating appellant Fitzhugh’s liability.

For reversal appellants rely upon three points, two of which question the correctness of certain instructions and urge that the trial court erred as to the manner of submission and the verdict forms used. While it is true that the instructions could have been better worded and the verdict forms more detailed, we cannot under the peculiar facts in this case say that the action of the court with respect to these two points constituted reversible error. Appellant’s third point urged for reversal causes us considerable concern. This point questions the correctness of the trial court’s refusal to grant a new trial after having directed a verdict in favor of Mrs. Fitzhugh on Mrs. Elliott’s cross-complaint.

The jury determined negligence of the parties to this action, apportioning the negligence among them so that it totaled 100%, which was proper. The trial court in its judgment reduced Mrs. Elliott’s recovery on her cross-complaint by 20%, her negligence as determined by the jury, and reduced Mrs. Fitzhugh’s recovery on her complaint by 40%, her negligence as determined by the jury. This is the proper procedure [under Ark. Stat. Ann. §27-1730.2 (Repl. 1962), Peugh v. Oliger, 233 Ark. 283, 345 S. W. 2d 610; Walton v. Tull, 234 Ark. 882, 356 S. W. 2d 20] in a case where negligence has been apportioned on the basis of 100%. In the case at bar, after the jury apportioned the negligence of Mrs. Elliott at 20%, Holst at 40% and Mrs. Fitzhugh at 40%, the court by directed verdict eliminated Mrs. Fitzhugh’s liability of 40% in the cross-action of Mrs. Elliott. The court then reduced Mrs. Elliott’s damages of $1,500.00, as determined by tbe jury, by 20%, her own negligence, and rendered judgment against Holst for tbe entire $1,200.00. Tbe practical result is that although tbe jury bad found Holst to be only 40% negligent, tbe court granted judgment against him for 80% of tbe damages.

Tbe general principle applicable here is set out in 53 Am. Jur., Trial, §1094, p. 758:

“While tbe practice of amending verdicts in matters of form is one of long standing, based on principles of tbe soundest public policy in the furtherance of justice, it is strictly limited to cases where tbe jury have expressed their meaning in an informal manner. Tbe court has no power to supply substantial omissions, and tbe amendment in all cases must be such as to make tbe verdict conform to tbe real intent of tbe jury. Tbe judge cannot, under tbe guise of amending tbe verdict, invade tbe province of tbe jury or substitute bis verdict for theirs. After tbe amendment tbe verdict must be not what the judge thinks it ought to have been, but what tbe jury intended it to be. Their actual intent, and not bis notion of what they ought to have intended, is tbe thing to be expressed and worked out by tbe amendment. ’ ’

In tbe present case, tbe jury made no informal expression whatever. It returned a formal verdict which the court, some months after tbe jury bad been discharged, set aside in part. Tbe setting aside of one part of tbe jury’s finding of a single fact, i.e., apportionment of negligence of tbe parties, leaves us with no clue as to what tbe jury’s actual intent would have been bad Mrs. Fitzhugh’s negligence not been considered by them. Further, as we have seen, tbe court’s action bad tbe effect of doubling tbe liability of appellant Holst. Tbe trial court’s authority to set aside tbe jury verdict rendered against Mrs. Fitzhugh is manifest. However, we know of no authority, nor have we been shown authority, which would permit a court to modify a jury verdict on a question of liability and substitute its own. It is our view that the additur in the present case increasing the verdict of the jury without the consent of the party prejudiced, if permitted to stand, would effectively deny that party the constitutional guaranty of trial by jury. It follows, therefore, that the judgment is reversed and the cause is remanded for a new trial.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Hatchett v. Robinson.
    5-3052
    371 S. W. 2d 618
    Opinion delivered October 21, 1963.
    [Rehearing denied Nov. 18, 1963.]

      U. A. Gentry, for appellant.

      Opie Rogers and N. J. Henley, for appellee.
   Frank Holt, Associate Justice.

The appellants, M. Y. Hatchett and Dorothy Dixon Hatchett, d/b/a Southern Ozarks Realty Company, brought this action to recover a real estate brokers commission from the appellees, Sam M. Robinson and wife, Leva Robinson. The jury returned a verdict in favor of the appellees from which verdict and judgment comes this appeal. For reversal appellants rely upon five (5) points, each of which relate to the refusal or the giving of instructions. In reversing this case we deem it necessary to discuss only two of these points.

The appellees were the owners of forty-five (45) acres of land near the City of Clinton, Arkansas. On July 10, 1956, the appellees, by written contract, gave to the appellants, as real estate brokers, exclusive listing of their property for the purpose of procuring a purchaser at a price of $13,000.00 .with $5,000.00 required as down payment and the balance, with interest at six per cent (6%), to be paid at $75.00 per month. The contract provided for the payment of a commission of ten per cent (10%) of this sale price. It further provided for a like commission if sold “at any other price and on any other terms” acceptable to the appellees. The contract was an exclusive listing for a period of twelve (12) months from its date and to continue thereafter until thirty (30) days notice in writing was received by appellants. The contract also provided that if the listed property was sold to a purchaser procured by or through appellants after termination of the contract the full commission would be due the appellants. Appellants inserted an advertisement in a newspaper, the Commercial Appeal of Memphis, Tennessee, concerning various tracts of land they were authorized to sell and on July 11, 1957, Mr. and Mrs. H. G-. McMillen, who lived in Tipton, Tennessee, wrote the appellants concerning lands in Van Burén County. As a result of correspondence between the McMillens and appellants, the McMillens came to Van Burén County on May 22, 1958 for the purpose of inspecting and purchasing property. On this date the appellants showed the McMillens the appellees ’ property and upon inspection the McMillens indicated they wanted to purchase this property provided they could dispose of their property in Tennessee.

After they returned to Tennessee additional correspondence ensued between appellants and the McMillens and in the last letter from the McMillens, on August 4, 1958, they advised appellants they were unable to sell their property but did have some prospects. In March, 1959, appellants wrote the McMillens but received no response. From August, 1958, until August 9, 1962 nothing further was heard from the McMillens. On this latter date the McMillens appeared at the appellees’ home and visited briefly. Upon their leaving Mrs. Robinson called appellants and advised them the McMillens were on their way to appellants’ office to see them. The appellees contend that the subject of the sale of the property was not renewed nor discussed during this visit with the McMillens. The appellants contend that when the Mc-Millens came by their office the subject was discussed. Further, when Mrs. Robinson called she importuned appellants to “do your best”. Mrs. McMillen testified that at this time they had not been able to sell their property in Tennessee and, therefore, were not interested in purchasing the Robinson property. She testified that she and her husband, now deceased, were on a vacation and did not renew a discussion of their purchase of the property with either appellees or appellants. On September 8,1962, or a month later, they came to the Robinson home and inquired if the property was still for sale as they were interested again since they had found a buyer for their property in Tennessee. The Robinsons, appellees, advised they would sell them their property for $11,500.00 cash, whereupon the McMillens inquired whether they should deal with the appellants. To this the Robinsons replied that they considered the exclusive listing terminated as of two years previously. This is denied by appellants. The McMillens agreed to the purchase for $11,500.00 cash without contacting the appellants. The McMillens left town that day. The next day the appellees called the appellants and asked that they come to the appellees’ home. When the appellants arrived they were advised by the appellees of the transaction with the McMillens and they wanted to have an understanding about the commission. Upon appellants’ refusal to agree to a reduction in their commission the appellees proceeded to close the sale on September 12, 1962 without the proffered assistance of appellants. The appellants had shown the property to other prospective customers and at the reduced sale price of $12,000.00.

Upon appellees ’ refusal to pay the appellants a commission of ten per cent (10%) on the sale price of this property, the present action was instituted. The appellees took the position that the appellants did not procure the McMillens as purchasers and further that the contract was modified by oral agreement from an exclusive to an open listing.

On appeal appellants assign as error the giving of Defendants’ Instruction No. 3 which reads as follows:

‘ ‘ Gentlemen of the jury, the plaintiffs seek to recover a commission from the defendants based upon an exclusive listing contract for the sale of the real property belonging to the defendants. The plaintiffs allege that they procured a purchaser for said lands by virtue of the authority given them by the listing contract, and are, therefore, entitled to their commission as set forth in the contract. In this connection, you are further instructed that before you would be warranted in finding for the plaintiffs, M. Y. Hatchett and Dorothy Dixon Hatchett, you must find from a preponderance of the evidence that the plaintiffs procured a purchaser for the real estate involved in this cause who was ready, able and willing to buy the lands so listed upon the terms stipulated in the contract, and unless you so find, your verdict should be for the defendants, Sam M. Robinson and Leva Robinson.”

Proper specific objection was made to this instruction by appellants. The instruction was both abstract and confusing in that it tells the jury a purchaser must be found ready, able and willing to buy when it is undisputed that the property was paid for in cash by purchasers who were originally discovered by appellants through their advertising and later contacts and showing of the property. We said in the case of Sharp v. West, 176 Ark. 616, 3 S. W. 2d 692, that: “* * * There could be no better evidence of one’s being ready, able and willing to buy than the fact that he did actually buy.”

The instruction also provided that the purchasers procured must be ready, able and willing to buy upon the terms stipulated in the contract or the verdict should be for the defendants. The contract provides for the payment of a commission if sold on the stated terms of $13,000.00 [$5,000.00 down payment and balance at 6% interest payable $75.00 per month]. It also provides for payment of a commission “if sold at any other price and on any other terms” acceptable to appellees. The property sold for $11,500.00 cash. We think the Instruction should have made adequate reference to “other terms”.

In the case of Stiewel v. Lally, 89 Ark. 195, 115 S. W. 1134, we said:

‘ ‘ There are authorities holding that, even where the owner, in order to make a sale to a purchaser brought by the agent, is compelled to vary the original price or terms, the agent is entitled to commission on the sale. [Citing cases] * * * We find nothing in the law as stated by the authorities which declares that the procuring agent shall be denied his compensation on account of a modification of the original terms as proposed to the agent. ’ ’

Consequently the giving of this Instruction was erroneous and constituted reversible error.

The appellants further contend that the Court erred in giving Defendants’ Instruction No. 4 which reads as follows:

“The defendants, Sam M. Robinson and Leva Robinson, contend as a matter of defense to plaintiffs’ complaint that prior to the sale of said lands by defendants, it was agreed by and between plaintiffs and defendants that the exclusive listing contract, upon which plaintiffs action is based was modified by oral agreement to the extent that said listing would cease to be an exclusive one, and that same would continue as an open listing with the right in defendants to sell the land in question to anyone not procured by plaintiffs without liability to plaintiffs for a brokers commission. In this connection, you are further told that under the law that parties to any contract may modify it by an oral agreement. If you find from a preponderance of the evidence that plaintiffs and defendants orally agreed to modify the original listing contract by changing the exclusive listing to an open listing agreement which would permit defendants to sell and dispose of their property to one not procured by plaintiffs, without liability to plaintiffs for a commission, your verdict should be for the defendants.”

This instruction is abstract in that it instructs on matters not in the evidence. Proper specific objection was made to this instruction and it should not have been given under the facts in this case.

It is true that parties to a written agreement may orally modify the terms by mutual agreement or consent of the contracting parties. Haering Oil Company v. Beasley, 221 Ark. 607, 254 S. W. 2d 951. If there was a mutual agreement between the parties in the case at bar there is no evidence of such in the record before us. Mrs. Robinson testified that in a conversation with Mrs. Hatchett over the telephone she withdrew the exclusive listing and left it an open listing two years prior to the date of the sale of the property. Mrs. Hatchett denies this. Treating the testimony most favorably to the appellees, Mrs. Robinson does not state that Mrs. Hatchett agreed to the withdrawal of the exclusive listing. In effect, she states that she advised Mrs. Hatchett they Avere going to list the property with other agents.

The judgment is reversed and the cause remanded.


author: Carretón Harris, Chief Justice.

text:
    Reed v. Lee.
    5-2987
    372 S. W. 2d 234
    Opinion delivered October 28, 1963.
    [Rehearing denied December 2, 1963.]

      Thomas B. Tinnon, for appellant.

      Nell Powell Wright, for appellee.
   Carretón Harris, Chief Justice.

The facts in this case are somewhat complicated. Appellant, H. W. Reed has at all times pertinent hereto been the owner of some 6.000 acres of land in Baxter County. Carl W. Lee, one of the appellees herein, is a real estate broker, living in Bentonville, Arkansas. Reed did not actually list the 6.000 acres with Lee, but did authorize the latter to sell it. Reed also had for sale 532 head of cattle. During the months of June and July, 1961, Lee and another realtor, Omar Head, of Amarillo, Texas, (also an appellee herein) arranged a transaction by which Reed would exchange his Baxter County property for a Texas Hotel owned by Grey Investment Company of Eastland, Texas, (third appellee herein). Don Pierson was President of Grey. However, Reed, a resident of Alvarado, California, desired to dispose of his non-California investments, and he, therefore, would only agree to the trade if the hotel could also be sold. Head arranged a trade of the hotel for 2.4 acres in Amarillo, Texas, owned by J. W. Bragg of Amarillo, together with a monetary payment on the part of Bragg.

On August 7, 1961, two contracts were prepared in Head’s office in Amarillo, both being dated August 8, since the 7th was a Sunday. Under the first contract, Reed agreed to trade his Baxter County land for Grey’s hotel. The contract recited that the parties had deposited $5,000.00 with realtors Lee and Head, and further provided that these brokers would receive a total commission of $10,000.00 for their services. The provision reciting that $5,000.00 had been deposited was admittedly erroneous. Under the second contract, Reed agreed to trade the newly acquired hotel to Bragg in exchange for Bragg’s 2.4 acres of land, and the sum of $130,000.00, payable in monthly payments of $780.00 each. This contract was executed by both Reed and Bragg at the time, but there is a notation on the agreement, £ £ contingent on trade with Don Pierson.” The contract between Reed and Pierson was not executed at that time; in fact, Pier-son was not present, but was represented at the meeting by Head. Reed then flew back to California, taking both contracts with him.

The next day, August 8, Reed consulted his attorney, James R. Slaybaugh, lawyer of Hayward, California, and directed him to delete the erroneous recital about the $5,000.00 payment to Lee and Head, and further instructed Slaybaugh to prepare a Supplemental Commission Agreement (hereinafter called S.C.A.), which provided that the $10,000.00 commission to be paid to Lee and Head (heretofore referred to) would only be paid when the 2.4 acres involved in the contract with Bragg had been sold at a net of $50,000 to Reed, such sale to be made within two years. Slaybaugh then inserted in the Reed-Grey contract a reference to the S.C.A. and mailed this contract and the S.C.A., both signed by Reed, to Head, directing that Head retain signed copies and return copies of the contracts if acceptable. In chronological order the following events then transpired:

August 10: Head called Reed with reference to the S.G.A., stating that it was unacceptable and tried to get Reed to change the agreement. Reed refused to do so. It does not appear from the conversation, however, that either party considered that the S.C.A. had been definitely or finally rejected.

August 15: Because Reed had asserted that he did not have the cash money to pay the commission at the outset, Lee called Reed and suggested that $5,000.00 of the commission might be obtained from a sale of the cattle. Reed agreed.

August 16: Reed telegraphed Lee AAdierein he confirmed the conversation by Avhich he agreed to pay $5,000.00 if the cattle should be sold for $85,000.00.

August 20: Lee obtained a firm offer from Norman Gibson, Weatherford, Texas, of $85,000.00 for the cattle.

August 24: Lee, Head, and Pierson signed the Reed-Grey contract.

August 25: Lee contracted Clayton Little, an attorney of Bentonville, Arkansas, Avho called Slaybaugh relative to Lee’s concern over the recitation that the brokers had already received $5,000.00. Lee desired to either receive the $5,000.00 or obtain an acknoA\dedgment from Reed that the amount had not been paid.

August 28: Little again called Slaybaugh, and according to his (Little) testimony, told Slaybaugh that Lee had obtained the offer of $85,000.00 from Gibson for the cattle and further advised that the S.C.A. Avas acceptable to appellees, Lee and Head, “that we had everything completed on this end.” Slaybaugh, subsequently, in a deposition, denied that he had been advised that either the Reed-Grey contract or the S.C.A. had been accepted or executed. According to his testimony, the conversation related only to clarifying the S.C.A., and its effect upon the commission terms of the Reed-Grey contract. As he stated, “All this suggested to me that there had been no action taken by his clients at that time.” In the deposition, Slaybaugh denied that he was an agent for Reed or had any authority to act for appellant in the matter.

August 29: Reed wired Little, Lee, and Pierson, withdrawing his offer to sell the Baxter County lands.

August 30: Lee and Head instituted suit against appellant, seeking judgment for $15,000.00 ($10,000.00 for the real estate transactions and $5,000.00 for the sale of the cattle).

September 20: Grey Investment Company, through its president, Don Pierson, instituted suit against appellant in the Baxter County Chancery Court, asking specific performance.

Following the filing of an answer and certain motions, the causes were consolidated for trial, and heard by the Chancellor. Thereafter, the Court made the following findings:

That the contract between Grey Investment Company and H. W. Reed was executed by all parties prior to the attempted cancellation by Appellant Reed through telegram from Reed’s attorney, dated August 29, 1961; that Grey Investment Company was entitled to specific performance of the contract; that Head and Lee had agreed to the terms of the S.C.A., and their agreement was communicated to Slaybaugh prior to the attempted cancellation of the original contract; that the S.C.A. had been modified by communication between Reed on the one hand, and Head and Lee on the other, to the extent that these appellees would receive $5,000.00 of the commission at the time of the exchange of the Baxter County property for the hotel property, and that the remaining $5,000.00 of the commission would be due upon the sale of the 2.4 acres of land in Amarillo, Texas, such sale to be made within a two-year period, and in an amount which would net Reed $50,000.00 after payment of the commission.

The court further found that Head and Lee were entitled to judgment for $5,000.00 already earned under the terms of -the contract, but that they were not entitled to a commission for the sale of the cattle, inasmuch as Reed’s agreement to pay the first $5,000.00 due (because of the sale of the Baxter County lands) was conditioned on Head and Lee securing a buyer for the cattle at the stipulated price; that these appellees did obtain such a buyer. From the decree entered embodying these findings, and directing Reed to immediately perform the contract dated August 8, 1961, appellant brings this appeal.

Appellant asserts that appellees did not agree to, or accept, the contract prior to the telegram that he caused to be sent on August 29, and, in his argument, Reed states that up until the time of the trial, no written communication, or signed copy of the Grey contract, or the S.C.A., was ever received by him. It is true that Lee and Head did not sign the S.C.A. and send it on to Reed, but they explained that this would have been futile, since the telegram was received from Slaybaugh (for Reed), revoking the offer to sell or exchange. Under the circumstances this explanation appears logical. For that matter, the terms of the S.C.A. were orally varied from time to time by the parties. Reed testified that on August 15 he had agreed that, if the cattle were sold, he would pay $5,000.00 “of it.” He explained the “it” as relating to the Grey real estate transaction:

“Of the Ten Thousand Dollars on the real estate, on the supplemental agreement, right, instead of them waiting for that $10,000.00 they would get $5,000.00 immediately and the other five if and when they sold the land in Amarillo.

Q. Then as far as you were concerned if he sold the cattle at Eighty-Five Thousand Dollars ($85,000.00) it was a completed deal then?

A. That is right, if they accepted the supplemental agreement as revised to $5,000.00.”

Pierson, Lee, and Head all testified that Pierson executed the contract on the 24th of August. Of course, Reed had already signed the contract with Grey Investment Company, along with the supplemental agreement, following his return to California, after viewing the property. Let it be borne in mind that there was no dispute between Reed and Pierson; the Pierson, or Grey Investment Company, contract was only being held up because Reed had demanded that his terms be met under the S.C.A. before the Pierson contract would become effective. In other words, the closing of all agreements was simply dependent upon Lee and Head accepting the S.C.A. The only additional requirement made by Reed (that the cattle would have to be sold if he paid the $5,000 immediately), of course, did not relate to the Grey Investment Company contract at all. Accordingly, the pertinent question in this litigation is whether Lee and Head accepted the S.C.A. Here, the testimony was in conflict. Clayton Little testified that Lee came to his office on August 25 and asked him (Little) to contact Mr. Slaybaugh, and tell the latter that Pierson had signed the contract, but that Lee was concerned over the fact that the contract recited that Reed had already paid $5,000 to this appellee. In calling Slaybaugh, Little also testified that he told the California attorney that Lee had a firm offer for the sale of the cattle. On August 28, Little again called Slaybaugh and told him that the supplemental agreement was acceptable to both Lee and Head, ‘ ‘ and that he had at that time had the firm offer or completed the cattle sale contract for $85,000.00 and I again told Mr. Slaybaugh that now that everything was worked out I still wanted him to go ahead and send the $5,000.00 as called for in the contract or to send us a wire acknowledging that it hadn’t been sent—that we had everything completed on this end.”

Little said that Slaybaugh stated that he would convey the information received from Little to Reed.

Reed testified that he called Slaybaugh and asked if he had “heard anything,” and that his lawyer replied, “No, nothing except that this other Attorney * * * had called him asking him about this Five Thousand Dollars ($5,000.00), to delete that and at that time he explained it was supposed to have been deleted at the time * * Reed stated that he then decided that “the deal is not going to go through” and he dictated the telegram advising that he was revoking the offer to sell. Slaybaugh testified that his conversation with Little related entirely to clarification of the supplemental agreement (the matter of the $5,000, heretofore mentioned). This was a question of fact, and the Chancellor accepted the testimony of Little.

Actually, Reed’s testimony in court indicates that the telegram was not actually meant to be a final and absolute revocation of the offer. The record reveals the following during the examination of Reed:

“Q. Did you receive any communication or any indication from anyone even after you sent that telegram prior to the time that you were served with notice of this lawsuit that anyone wanted to go ahead with the transaction ?

A. Not one word, if anything I thought this telegram would get some kind of answer and some hincl of action but I never heard one word and I thought it was 'water under the bridge until three or four weeks later, I don’t know, at the time it was served and I got this special delivery letter and I think it was the latter part of September. ’ ’

Appellant argues that Slaybaugh was not an agent for Reed, and that, even if Little actually notified Slaybaugh of the acceptance of the agreement, same was not binding upon Reed since appellant himself did not receive such notice from appellees or their attorney. The question of whether Slaybaugh was an agent of Reed, as that term is generally used, is not important in this litigation. Certainly, he was an agent to the extent of having authority to communicate to Reed any information given him relative to the acceptance of the contract by appellees. Such authority would be unquestioned since Reed had Slaybaugh act for him, in communicating his desires relative to the contracts from the beginning to the conclusion (Slaybaugh even sending the telegram of revocation).

One fact stands out; after all is said and done, Reed, on August 29, was in a position to receive everything that he had sought during the course of the negotiations, i.e., he was disposing of his Arkansas property; he was disposing of the Eastland Hotel property in Texas; a sale had been obtained for his cattle, which he demanded as a prerequisite to paying the $5,000.00 to the brokers immediately; he did not owe the additional $5,000.00 until the Bragg property was disposed of.

As stated at the outset, the facts in this litigation are complicated, and are very much in dispute. The Chancellor, after hearing all of the evidence made the findings previously set out. The rule that we will not disturb the Chancellor’s findings unless they are clearly against the preponderance of the evidence, is so well established as to require no citation of authority. There are some facts, presented on each side, which tend to support the position of each. We think a preponderance lies with appellees, but, in any event, we certainly cannot say that the Chancellor’s findings are against a preponderance of the evidence.

Affirmed.

       Mabel C. Reed, wife of H. W. Reed, is also an appellant, hut has been treated throughout the litigation as only a nominal party, since no special pleadings have been filed on her behalf, nor any defense raised distinctive from that of her husband. We, accordingly, hereafter will use only the singular term, “appellant.”

       Slaybaugh overlooked making this deletion.

       The contract recited that Reed should pay Head and Lee “as per supplemental agreement” and that Pierson should pay to the brokers $10,000.00. The contract also contained the erroneous provision that brokers had already received $5,000.00 from Reed. Lee stated that he signed the contract because Pierson would not sign otherwise.

       Emphasis supplied.

       Under the terms of the supplemental agreement, Reed was to receive $50,000.00 net for this property, and Head and Lee were given two years to make the sale.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Walthour v. Finley.
    5-3061
    372 S. W. 2d 390
    Opinion delivered October 28, 1963.
    [Rehearing denied December 9, 1963.]

      H. B. Stubblefield, for appellant.

      Warren é Bullion, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This appeal involves a sales commission claimed by Don Finley, a licensed real estate broker, from J. D. Waltbour, a landowner. Judgment of tbe Circuit Court was in favor of Finley, and Walthour prosecutes this appeal.

Appellant, J. D. Walthour, as Trustee, held title to a tract of 223.47 acres in Pulaski County owned by a partnership of which Walthour was a member. On September 12, 1960, appellee Finley showed the land to Mr. Brinson; and when he showed an interest in making the purchase, Finley called Walthour at the latter’s home and a meeting was arranged. Finley, Brinson, and Wilkins vent to Walthour’s home, as Walthonr was not able to go to his office because of a disabling incapacity. At that meeting Brinson and Walthour agreed on the price of $1,000.00 per acre. According to Finley this was the conversation and agreement for Finley’s commission:

“. . . Mr. Walthour stated that a thousand dolíais an acre was the least that he would take. At that time I again told Mr. Walthour that I ivas a broker, Mr. Brinson the buyer, and Mr. Wilkins was advising Mr. Brinson, and I also asked him if the property was listed with anyone and he said it wasn’t. I asked him if it was committed to anyone and he said it wasn’t. He said he, as Trustee, had the right to sell it and asked if I expected the full commission. I told him I did. He said that ivas all right and would it be asking—

‘ ‘ Q. * * * let me ask you this. Did he agree at that time to pay you the full commission?

“A. Yes.

“Q. In the presence of Mr. Brinson and Mr. •Wilkins ?

“A. Yes, he did.”

Finley testified that Mr. Walthour directed that Finley, Brinson, and Wilkins go to Mr. J. H. Larrison, who was handling such matters for Mr. Walthour during his incapacity. The three went to Harrison’s office, where a contract of purchase was signed by Brinson on behalf of Brinson Development Company, Inc.; and in keeping with the contract the Brinson Development Company, Inc. purchased the properties for $223,347.00. Upon completion of the purchase, Finley demanded of Walthour the regular 10% commission of $22,334.70, which Walthour refused to pay; and this action was filed. The case was tried by the Circuit Judge, a jury being-waived; and from the judgment in favor of Finley, Walthour prosecutes this appeal.

I. Sufficiency Of The Evidence. The substantial evidence is entirely sufficient to support the finding by the Trial Court that Mr. Walthour agreed to pay Finley the full commission, and that the said commission is 10% of the sale. Finley was corroborated by Wilkins as to the contract, and substantially corroborated by Brinson as to the conversation at Walthour’s home, as previously copied. A contract to pay a commission to a real estate broker does not have to be in writing. McCurry v. Hawkins, 83 Ark. 202, 103 S. W. 600; Vanemburg v. Duffey, 177 Ark. 663, 7 S. W. 2d 336. When a real estate broker, acting under the .contract brings buyer and seller together and the parties agree on a sale, and the sale is consummated, then the real estate broker is entitled to the agreed commission. Belyeu v. Hudson, 179 Ark. 657, 17 S. W. 2d 865; Sharp v. West, 176 Ark. 616, 3 S. W. 2d 692; Fike v. Newlin, 225 Ark. 369, 282 S. W. 2d 604.

The evidence was conflicting as to what Mr. Walthour said; and subsequent statements by Finley Avere offered in an effort to show that he had agreed to receive only $9,000.00 as the commission; but the Aveighing of all such testimony was for the trier of the facts. The finding of the Trial Court in a case like this one has the force and effect of a jury verdict; and Ave leave undisturbed such finding as to the contract and the commission.

II. Bes Judicata. The more serious issue is whether Finley has been defeated of his commission because of Walthour’s plea of res judicata; and we proceed to that point. Walthour completed the sale to Brinson Development Company, Inc. on January 17, 1961, for a total consideration of $223,347.00; and on January 24, 1961, there was filed in the Pulaski Chancery Court Case No. 116925 styled Bill of Interpleader. The only plaintiff Avas “Walthour-Flake Company, Inc.”; and the only defendants were “Don Finley and Ferguson & Company, Inc.” The Bill of Interpleader alleged that WalthourFlake Company, Inc. was a corporation engaged as a real estate broker; that it had recently concluded a sale of the 223.47 acres (here involved) to Brinson Development Company, Inc.; that Walthour-Flake Company, Inc. had received the commission for making the sale; and that of the total commission received, WalthourFlake Company, Inc. owed the sum of $9,000.00 to either Don Finley or to Ferguson & Company, Inc., another real estate broker. The Bill interpleaded $9,000.00 and called on the named defendants to establish their respective claims for the interpleaded fund.

It will be observed that the Bill of Interpleader did not mention the name of J. D. Walthour, nor did it state for whom Walthour-Flake Company, Inc. acted as a broker in making the sale of the 223.47 acres. Summons was served on Don Finley; and in due time he filed answer in said interpleader suit, which answer stated:

“1. Defendant, a duly licensed real estate broker, acted as real estate broker for the owner of the property described in said Bill of Interpleader, and during tlie month, of January, 1961, consummated a sale to Brinson Development Company, Inc. That, at the time of the negotiation of the sale, the owner of the property, J. D. Walthour, agreed to pay the defendant, Don Finley, a commission of $22,300.00, which is usual and customary as a commission on the sale of rural properties. At no time prior to the sale of the property was the defendant, Don Finley, informed or aware of the fact that WalthourFlake Company, Inc. had any interest in said property. Defendant, Don Finley, has no privity of contract with Walthour-Flake Company, Inc., but has a legitimate claim against the owner of the property for the full commission of $22,300.00 as his proper brokerage fee. The defendant denies that Walthour-Flake Company, Inc. has any legal right to file a Bill of Interpleader against the defendant and thus inject itself into the transaction in the place of or in the stead of the owner to whom defendant looks for the payment of his brokerage fee. Defendant asserts that the act of the plaintiff herein in seeking to interplead $9,000.00 which it received from a source unknown to the defendant, is contrary to law and that said Bill of Interpleader should be dismissed as to this defendant.”

On February 3, 1961, Finley sent to J. D. Walthour a registered letter reading:

“Dear Mr. Walthour: Will you please send by return mail the check for the full commission on the sale of the 223.47 acres as we agreed. The amount of the check is $22,347.00. Yours sincerely, (signed) Don R. Finley. ’ ’

In the interpleader suit Ferguson & Company, Inc. asserted the right to the $9,000.00 interpleaded by Walthour-Flake Company, Inc.; and on February 16, 1961, the Pulaski Chancery Court entered a decree in the said interpleader suit awarding the $9,000.00 to Ferguson, after having recited that Don Finley made no claim against Walthour-Flake and there was, therefore, no adverse claimant to the $9,000.00 interpleaded by Walthour-Flake Company, Inc.

It is this interpleader suit and the decree therein that is now pleaded by J. D. Walthour as res judicata in the present action brought by Don Finley against J. D. Walthour. The rules as to when one suit or action is res judicata in a subsequent suit or action have been recognized and declared in many of our cases, some of which are: Geisreiter v. Sevier, 33 Ark. 522; Fogel v. Butler, 96 Ark. 87, 131 S. W. 211; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878; Williamson v. Grider, 97 Ark. 588, 135 S. W. 361; Biederman v. Parker, 105 Ark. 86, 150 S. W. 397; Mo. Pac. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872; Hatch v. Scott, 210 Ark. 665, 197 S. W. 2d 559; C. & L. Elec. Coop. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337; Seaboard v. Wright, 223 Ark. 351, 266 S. W. 2d 70; Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949; Baumgartner v. Rogers, 233 Ark. 387, 345 S. W. 2d 476; Selig v. Barnett, 233 Ark. 900, 350 S. W. 2d 176.

In Mo. Pac. v. McGuire, supra and in Selig v. Barnett, supra, we briefly stated the general rule of res judicata:

“Briefly stated, (the doctrine of res judicata is that an existing final judgment rendered upon the merits, wdthout fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ”)

In Biederman v. Parker, supra, we said:

“It is well settled that a judgment is only conclusive between the parties or their privies. Avera v. Rice, 64 Ark. 330; Treadwell v. Pitts, 64 Ark. 447; Doss v. Long Prairie Levee Dist., 96 Ark. 454.”

In Pogel v. Butter, supra, we quoted an earlier case:

“ ‘To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear, by the record, or by extrinsic evidence, that the particular matter sought to be concluded was raised and determined in the prior suit. ’ ’ ’

In Hatch v. Scott, supra, we said:

“In Smith v. McNeal, 109 U. S. 426, (3 S. Ct. 319, 27 L. Ed. 986), the court, quoting from Hughes v. U. S., 4 Wall. 232, 18 L. Ed. 303, said: ‘In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases . . .’ ”

In C. & L. Rural Elec. Coop. v. Kincaid, supra, we said :

“As to the defense of res judicata, we think it without merit and can have no application here for the reason that the parties are not the same as in the McEntire suit and the issues and subject matter in the present case are entirely different. It is well settled that res judicata only applies to parties and their privies.”

When we apply the law from these cases, as above quoted, to the facts in the case before us, it is clearly apparent that the rule of res judicata was not a valid defense by Walthour. There was no identity of parties. The Interpleader suit was by Walthour-Flake Company, Inc. against Don Finley, whereas the present action is between J. D. Walthour and Don Finley. It was shown in the present case that Walthour-Flake Company, Inc. is an Arkansas corporation, with certain named stockholders. The fact that J. D. Walthour owned stock in Walthour-Flake Company, Inc. did not, in itself, make J. D. Walthour identical with or a privy to a suit brought by Walthour-Flake Company, Inc. J. D. Walthour was not a party to the Bill of Interpleader filed by WalthourFlake Company, Inc. The name of J. D. Walthour did not appear in the Bill, nor did the Bill state for whom Walthour-Flake Company, Inc. had acted as a broker in making the sale of the 223.47 acres. There was no identity of subject matter between the interpleader suit and the present action. In the interpleader suit the sum of $9,000.00 was deposited by Walthour-Flake Company, Inc.; and Don Finley and Ferguson & Company, Inc. were required to establish claims to the said fund. Finley frankly answered that he had engaged in no dealings with Walthour-Flake Company, Inc. and had no claim to any amount which that corporation held; he stated that his claim was against J. D. Walthour; he proceeded to prosecute that claim in the present action; and the decree in the interpleader suit is not res judicata against the present action.

Finding no error, the judgment is affirmed.

      Here is Finley’s testimony as to the telephone conversation:
      “A. I told Mr. Walthour I- - my name was Don Finley. I was a real estate broker, and asked him if the property was for sale. He said that it was. I asked him if it was listed with anyone. He said it was not. I asked him if it was committed to anyone, and he said it wasn’t. Then I told him I would like to sell the property if the price was right, and he suggested to see him at 11:00 o’clock that morning.
      “Q. All right, sir. Did you tell him you had a person there, in mind, that would be a prospective purchaser?
      “A. Yes, I told him that he would be out at 11:00 o’clock—that was all right.”

      The Circuit Court judgment as to these specific findings reads: “At the request of the plaintiff, the complaint of the Plaintiff is amended to conform to the proof in the case. A preponderance of the evidence and the applicable law justify the following findings and conclusions:
      “1. The plaintiff and defendant entered into a contract for the commission claimed by plaintiff.
      “2. The plea of res judicata does not afford the defendant any relief in this case. . . .
      “6. That defendant may have, through the listing and the subsequent agreement with Finley, subjected himself to liability for two commissions, but payment to Walthour-Flake would not discharge the obligation of defendant to Finley.

        “7. The fact that the Agent of the defendant performed certain acts in connection with clearing title to the property involved, could not mitigate against plaintiff since the obligation to furnish the purchaser a merchantable title rested on the seller.
      “8. The proof fails to show that the plaintiff Finley ever entered into any agreement for a division of the commission between himself and anyone else.
      “9. That the proof fails to establish any agreement on the part of Finley to split his commission with anyone.
      “From a consideration of all of the evidence, the pleadings, the briefs and the arguments, the Court is of the opinion that the plaintiff should have and recover from the defendant the sum of $22,334.70.”

      The prayer of the Bill was in part:
      “WHEREFORE, plaintiff prays a proper and immediate order of this Court enjoining and restraining each and both of defendants herein, their agents and employees, from instituting or prosecuting any suit or proceeding in any other Court to assert any claim against plaintiff growing out of the real estate sale described herein; that'defendants and each of them be required to interplead and settle among themselves their rights to said funds deposited in the registry of this Court by plaintiff; that plaintiff be fully and forever released and discharged from all liability on account of and in connection with claims for commissions from the sale of said 223 acre tract of land; ...”


author: G-eobge Rose Smith, J.

text:
    Tumlison v. Harville.
    5-3021
    372 S. W. 2d 385
    Opinion delivered October 28, 1963.
    [Rehearing denied December 9, 1963.]

      J. B. Wilson, for appellant.
    No brief filed for appellee.
   G-eobge Rose Smith, J.

This is a suit by the appellant to cancel certain deeds as clouds upon the plaintiff’s title to a forty-acre tract, to quiet the plaintiff’s title to the land, and to recover double damages from the plaintiff’s grantors. At the close of the plaintiff’s proof the chancellor sustained a demurrer to the evidence, finding that Tumlison had parted with his title in 1938 and therefore was not in a position to maintain the suit. Whether the chancellor’s reasoning was correct is not argued in the appellant’s brief and hence is not an issue here. Fitzhugh v. Leonard, 179 Ark. 816, 19 S. W. 2d 1010.

Tumlison testified that he bought the land from Riley and Mears in 1930, received a deed from them in 1934, and had possession from 1930 until 1938. In the latter'part of 1938, after Tumlison had moved off the land, he found that H. C. Harville had taken possession. Tumlison says that he made an oral agreement with Harville by which Harville was to buy the land for $650, with the money to be paid when Harville became able to pay it. In the meantime Harville was to remain in possession and keep the taxes paid.

Harville died in 1945 without having paid anything upon the purchase price. What became of the title after Harville’s death is not clearly shown by the proof. Tumlison has not been in possession since 1938. A number of conveyances have been made by persons who seem to derive title either from Tumlison’s grantors or from Harville, but it is not shown that any claimant has been in adverse possession for a sufficient length of time to acquire the title.

Counsel for the appellees have not filed a brief, but they have insisted by motion that the decree should be affirmed for noncomplian.ce with Rule 9. It is true that the appellant’s abstract and brief do not conform as well as they should to our rules. The abstract contains much argumentative matter and is not supported by page references to the record. Six points for reversal are listed, but the brief is not correspondingly subdivided, as required by Rule 9 (f). We hardly think, however, that the deficiencies are so serious as to require a summary affirmance; so we shall consider the appellant’s principal arguments upon their merits.

It appears that Tumlison’s grantors, after having-conveyed the land to him, executed a second deed purporting to convey the property to someone else. It is now contended that Tumlison is entitled to double damages from the surviving grantor, under the statutes making it a criminal offense for one to sell the same land to two different persons and providing for double damages to the defrauded grantee. Ark. Stat. Ann. §§ 41-1933 and -1934 (1947).

The trouble is that there is no proof that this asserted conduct on the part of Tumlison’s grantors has in fact damaged him. It is true that Tumlison has been out of possession since 1938, but he admits that he voluntarily relinquished possession to Harville. We find nothing in the appellant’s abstract of the record to indicate that his own title has been adversely affected by any later deed that his grantors may have executed. As a condition to the recovery of double damages a plaintiff must first show that he has been damaged. Here that proof is wanting.

It appears that one of the appellees has an abstract of title to the tract in dispute. In the course of the trial the chancellor denied the plaintiff’s request that this defendant be compelled to produce this abstract and make it available for examination by plaintiff’s counsel.

We find no error in this ruling. Although there was no formal motion for discovery under the statute, we may assume that the principles embodied in our discovery act are controlling. That statute contemplates that a party may, for good cause, be afforded an opportunity to examine documents which themselves constitute evidence, Ark. Stat. Ann. § 28-356 (Repl. 1962), or which may reasonably be expected to lead to the discovery of evidence. § 28-348 (b). Here the abstract of title falls only in the latter class.

The trial court has wide discretion in determining whether there is good cause for the discovery of documents. Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613. We think the requirement of good cause was not met in this instance. There is no suggestion that the abstract of title contains any information that is not a matter of public record. No doubt the owner of the abstract paid for having it made. The only suggested cause for the requested discovery is that it would save plaintiff and his attorney either the trouble of searching the public records or the expense of obtaining an abstract of their own. In the absence of any legal or contractual duty binding the defendant to submit the abstract to the plaintiff, and no such duty is shown, the chancellor did not abuse his discretion in refusing to compel the defendant to permit his private property to be used in the preparation of his adversary’s case.

Complaint is made of the chancellor’s refusal to require various defendants to answer interrogatories attached to the plaintiff’s pleadings. More than seventy such interrogatories were filed. Counsel for the defendants filed objections to a number of the inquiries, as they were entitled to do. Ark. Stat. Ann. § 28-355 (Repl. 1962). The chancellor considered the matter with care and filed an opinion directing that only certain interrogatories be answered. Since the abstract of the record tells us nothing about the interrogatories that were not to be answered we are not in a position to say that the chancellor was wrong in ruling as he did.

It may be that Tumlison has suffered an injustice at the hands of the appellees, but if so the wrong occurred many years ago. As we said in Cunningham v. Brum back, 23 Ark. 336: “The law wisely holds that there shall come a time when even the wrongful possessor shall have peace; and that it is better that ancient wrongs should go unredressed than that ancient strife should be renewed.”

Affirmed.

Johnson, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Rogers v. City of Pine Bluff.
    5-3085
    372 S. W. 2d 620
    Opinion delivered October 28, 1963.
    [Rehearing denied December 16, 1963.]

      Griffin Smith, for appellant.

      George N. Holmes and John Harris Jones, for appellee.
   Paul Ward, Associate Justice.

This appeal comes from an order of the circuit court approving the annexation of certain lands to the City of Pine Bluff. The lands consist of 7.52 square miles which lie east, south and west of and are contiguous to said city.

The annexation proceedings were commenced with the filing of a petition by the City on November 20, 1961 and subsequent steps taken, all pursuant to Ark. Stat. Ann. § 19-307 (Repl. 1956) and related sections. There is no contention here that all procedural steps pursuant to all applicable statutes were not taken by the City and the county.

The only point relied on by appellants for a reversal is that “the territory sought to be annexed is unreasonably large”. In support, and as a basis of their contention, appellants rely heavily upon our holdings and announcements in the cases of Vestal v. Little Rode, 54 Ark. 321, 15 S. W. 891 and Cantrell v. Vaughn, 228 Ark. 202, 306 S. W. 2d 863. It appears to be appellants’ contention that the trial court failed to follow the fundamental rules applicable to annexation cases as laid down in the Vestal case. There it was said:

“. . . city limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owners, (3) when they furnish the abode for a densely settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purposes, as for the extension of its streets, or sewer, gas or water system, or to supply places for the -abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses ...”

Applying the above general rules to the testimony introduced at the trial court we think this case must be affirmed. The record- shows that the lands proposed for annexation are divided into four separate areas. Area 1 lies east of the city; Area 2 is southeast of the city; Area 3 lies south and west of the city; and, Area 4 lies northwest of the city. Appellants, in support of their position, contend that “A substantial portion of the proposed annexation represents property not settled nor adaptable for settlement”; and that “The city did not demonstrate ability to furnish services to an area of this magnitude. ’ ’ With these contentions of appellants in mind, we can more easily understand the weight and relevancy of the testimony by relating it to each separate Area.

Area 1. One witness stated that eight new industries would be brought into the city with annexation—naming them; a realtor said one acre was sold for $2,400 and that he has lands listed for $2,000 per acre. The city planner said 25% is industrial. No landowner is objecting.

Area 2. One witness said 50% was built up—part in modern homes; the city engineer said there were 2,152 people on 1,000 acres, and that a drainage bottleneck affects the present city limits. No landowner is objecting to annexation.

Area 3. A realtor said this area has no value for agricultural purposes; that the Chamber of Commerce paid $1,000 per acre for a development site—and it is one of three industrial sites available for the city; many new homes are being built; the population is 2,642 for 1,405 acres; it will be provided with sewer facilities— one of the worst problems at present. There is a new school, and building lots sell for $1,250 to $2,000 each. For farm purposes the land is not worth more than $100 per acre but is worth many times that price for building and industrial purposes.

Area 4. This area is known as Dew Drop, and appellants say it is a “self-sufficient, unitary community which has worked out its own destiny'—-that it is economically, geographically and politically an entity”, and that it has practically no affinity to Pine Blnff. There is, however, testimony to the contrary. One witness who lives there said it was a part of Pine Bluff. There was testimony (by appellants) that part of the Area was known as College Heights to Pine Bluff; that some get mail addressed to Pine Bluff and some have telephone, gas, and electricity from Pine Bluff distribution centers; they use the Pine Bluff telephone exchange with no toll charges; and, most of the people are employed in Pine Bluff.

It would serve no useful purpose to detail more of the voluminous testimony. Suffice to say there ivas testimony to the effect that Pine Bluff was financially able to furnish the annexed areas all necessary utilities as well as fire and police protection, and that it would do so.

In the Vestal case, supra, it was also pointed out that annexation should be ordered: “In all cases, however, where actual unity is practicable, legal unity should be ordered as promising the greatest aggregate of municipal benefits.” In this connection it is pertinent to note the trial court made the finding:

‘ ‘ ‘ That the territory sought to be annexed is already part of the Pine Bluff community in practice. All that remained to be done was annexation. The territory . . . is an outgrowth of the City of Pine Bluff and after annexation will make up a homogeneous city.’ ”

Other interesting and pertinent findings of facts, set out below, were made by the trial court:

“The property values in the territory sought to be annexed show that the lands are valuable for city use or for adaptability for prospective town use rather than for use or adaptability for use for agricultural purposes.

“The population in the area sought to be annexed is approximately 7,500. In what has been described in the testimony as area four or the Dew Drop area over 2,000 people now live which is more people than live in the county seats of Rison, Star City or Arkansas City.

“The territory sought to be annexed is needed for proper town purposes, the extension of streets, sewer system, gas and water and to provide residences and the City’s need for business expansion. Pine Bluff is expanding and expanding rather rapidly.

“The area sought to be annexed is very much in need of police regulation.”

We have uniformly held that the order of the circuit court (in annexation eases) will be upheld if it is supported by substantial evidence. See: Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884: Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317; and the Cantrell case, supra, relied on by appellants. Also, the burden was on appellants to show the lands should not be annexed. Dodson, et al. v. Mayor and Town Council, Fort Smith, 33 Ark. 508.

Since we are unable to say the order and findings of the trial court were not supported by substantial evidence, the same are affirmed.

Affirmed.

Harris, C. J., and Johnson, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Taylor v. Goodwin.
    5-3087
    371 S. W. 2d 617
    Opinion delivered October 28, 1963.

      Aurelle Burnside, for appellant.

      Spencer é Spencer, for appellee.
   Sam Robinson, Associate Justice.

The trial court held that the cause of action alleged in this case is barred by statutes of limitation; dismissed the complaint, and the plaintiff has appealed.

In 1944 appellant and Arthur McCree, husband and wife, acquired as an estate by the entirety, the parcel of land involved herein. On February 15, 1950 the McCrees were divorced, but there was no order affecting the property. In September, 1950, the property was mortgaged to the Springhill Bank & Trust Company. The mortgage was signed by Arthur McCree and is purported to have been signed by appellant, Erline McCree (now Erline McCree Taylor). The mortgage was foreclosed by a decree of the chancery court December 23, 1954. Pursuant to the terms of the decree, Rush Hooten, Commissioner, sold the property at a commissioner’s sale on February 3, 1955. F. H. Goodwin was the purchaser, and he in turn conveyed to appellee, Kary Haynie Goodwin.

On December 22, 1959, appellant filed a suit against appellee to set aside the sale of February 3, 1955, alleging that she had not signed the mortgage; that her name had been forged thereto. On February 16, 1961 appellant took a non-suit and the case was dismissed without prejudice. On February 15, 1962, within one year from the taking of the non-suit but more than five years after the judicial sale, appellant filed the present suit to set aside the sale held on February 3’, 1955 under the terms of the foreclosure decree. Summons was issued but was returned marked “Non est (Kary Goodwin in Mississippi) ”.

On January 18, 1963, appellee Goodwin filed a motion to dismiss the complaint alleging that the present suit had not been commenced within one year from the taking of the non-suit because the defendant, appellee, was a non-resident of the state and no warning order had been issued. On January 22, 1963, appellant had a warning order issued and it was published. Later, it was stipulated that appellee Goodwin moved from Arkansas and became a resident of Mississippi about January 1, 1958. On February 3, 1963, appellant had another summons issued. It was served on appellee February 4,1963, which, of course, was more than one year after the non-suit.

Ark. Stats. 37-108 provides: “All actions against the purchaser, his heirs or assigns, for the recovery of (lands sold by any collector of the revenue for the nonpayment of taxes, and for) [sic] lands sold at judicial sales shall be brought within five [5] years after the date of such sale, and not thereafter; saving to minors and persons of unsound mind, and persons beyond seas, the period of three [3] years after such disability shall have been removed.”

The original suit was filed within five years from the date of the judicial sale, but the five year period expired February 3, 1960. The non-suit was taken February 16, 1961; appellant had one year from that time to again commence action. Ark. Stats. 37-222. The complaint in the present action was filed on February 15, 1962, within the year, but no warning order was issued until January 24, 1963. The defendant was a non-resident and had not been a resident of Arkansas since-1958. Where the defendant is a non-resident, suit is not commenced until the warning order is issued. Burks v. Sims, 230 Ark. 170, 321 S. W. 2d 767; Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S. W. 77. Here, the warning order was not issued until more than one year had expired from the date of the non-suit.

Appellant argues that by filing the motion to dismiss on January 18, 1963, appellee entered her appearance. Even so, suit was only commenced at that time, Burks v. Sims, supra; this was more than a year after the non-suit had been taken.

Affirmed.


text:
    Curtis v. Patrick.
    5-3088
    371 S. W. 2d 622
    Opinion delivered October 28, 1963.

      E. L. Holloivay, for appellant.

      William B. Wharton and Kirsch, Cathey $ Brown, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from a suit to cancel a deed from a widow to her son. On August 5, 1961, appellee Lillie Patrick Summers executed a warranty deed to one of her sons, appellee Herschel M. Patrick. On June 9,1962, appellant Dorothy Patrick Curtis, a daughter, filed suit in Clay Chancery Court seeking to have the deed set aside as a cloud on her title, alleging that the property had been owned by the late N. T. Patrick individually, not by N. T. Patrick and Lillie Patrick (Summers) as tenants by the entirety, that Lillie Patrick Summers was entitled to her dower and homestead only, and contending that legal title to the property was in the four children of N. T. Patrick. At trial on December 3, 1962, the chancellor found that the lands here involved were sold to the State following nonpayment of 1917 taxes and were not redeemed within two years; that on September 21, 1939, the State conveyed the property to N. T. Patrick and Lillie Patrick by deed recorded January 10, 1940; that in January 1940 N. T. Patrick and Lillie Patrick and their family took possession of the property and remained in possession until the death of N. T. Patrick about November 21, 1941; that on October 17, 1941, the trustee for the Big Glum Drainage District executed a quit-claim deed to the property to N. T. Patrick, title of the trustee being based on foreclosure proceedings for collection of delinquent drainage district taxes; that N. T. Patrick and Lillie Patrick, his wife, acquired the lands by virtue of the State deed of September 21, 1939, with any title acquired by N. T. Patrick from the drainage district inuring to the benefit of both N. T. Patrick and Lillie Patrick; that upon the death of N. T. Patrick in November 1941, Lillie Patrick acquired title to the property in fee simple, free of any claims of N. T. Patrick’s heirs at law; that following the death of N. T. Patrick, Lillie Patrick conveyed the property to Herschel Patrick, retaining a life estate; that title should be quieted in Lillie Patrick Summers and Herschel M. Patrick and that appellant’s complaint should be dismissed. Prom the decree dismissing the complaint, appellant has appealed, contending that the trial court erred in holding that the State deed created an estate of entirety and denying appellant’s allegation that the property was that of N. T. Patrick by virtue of the drainage district quitclaim deed.

The Commissioner of State Lands deeded the property to “N. T. Patrick and Lillie Patrick”, without referring to them as tenants by the entirety or as husband and wife, on September 21, 1939. Appellees’ request for admissions established that the parties were husband and wife on that date. In Parrish v. Parrish, 151 Ark. 161, 235 S. W. 792, this court stated:

“It is also contended by counsel for the defendant that the deed in question did not convey an estate by the entirety to Joseph E. Parrish and Emma Parrish because they are not mentioned, in the deed as husband and wife.

“We do not think that this makes any difference. The complaint alleges that the parties were husband and wife at the time the deed was executed, and it is the conveyance of the property to the husband and wife jointly which creates the estate by the entirety.”

Thus failure to use the magic words “husband and wife” or “tenants by the entirety” will not defeat a tenancy by the entirety where property is conveyed to two parties who are in fact husband and wife. The State deed created an estate by the entirety in the Patricks in September 1939.

On October 17, 1941, the trustee for the drainage district executed a quitclaim deed to N. T. Patrick which recited that “[t]he consideration herein paid, is in full satisfaction of all delinquent Big Gum Drainage District taxes, penalty, interest, attorney fees and costs adjudged against the above described land. ’ ’ Subsequently N. T. Patrick and Lillie Patrick executed a mortgage on the property to the trustees for part of the consideration of the quitclaim deed. Appellant has made no showing that N. T. Patrick and Lillie Patrick were disseised of title prior to execution of the quitclaim deed. Without determining the validity of the drainage district foreclosure decrees, the common law rule applicable here has been implemented by a long series of decisions, the earliest of which is probably Moore v. Woodall, 40 Ark. 42, and reiterated as recently as Vesper v. Woolsey, 231 Ark. 782, 332 S. W. 2d 602, as follows:

. . . “We have repeatedly held that the acquirement of a tax title by a tenant in common operates as a redemption for the benefit of all tenants.”

N. T. Patrick and Lillie Patrick acquired title to this property as tenants by the entirety in 1939, went into possession of the property in 1940, and remained there until after N. T. Patrick’s death. “The rule seems thoroughly settled that a husband or wife cannot obtain a tax title ... in opposition to the other when they are in joint possession.” Herrin v. Henry, 75 Ark. 273, 87 S. W. 430.

Affirmed.


text:
    Austin v. Austin.
    5-2975
    372 S. W. 2d 231
    Opinion delivered October 28, 1963.
    [Rehearing denied December 2, 1963.]

      Jeptha A. Evans, for appellant.

      Bonalcl Poe, for appellee.
   Frank Holt, Associate Justice.

The appellant, Oliver E. Austin, and the appellee, Hiram S. (Butler) Austin, are brothers. The appellant seeks to cancel a deed from their widowed father, M. Gr. (Mike) Austin, to the appellee on the contention that this deed was never delivered. The Chancellor held there was a valid delivery of this deed and quieted and confirmed title in appellee to the lands in question. On appeal the sole question presented to us for determination is whether the father, M. G-. (Mike) Austin, delivered the questioned deed of August 27, 1953 to his son, Hiram S. (Butler) Austin.

On August 27,1953, the appellant brought his father into Booneville in order that the father could make deeds to appellant and appellee, thus dividing certain lands between them. Accordingly, a scrivener prepared two deeds on this date. The Trial Court found that Oliver was present when these deeds were prepared, executed and acknowledged, and that he assisted in the preparation of both of them.

The deeds were delivered to the father as he left the scrivener’s office with Oliver. Shortly thereafter, according to Oliver, his father undertook to show him and Butler the deeds, whereupon Butler took his deed and refused to return it to his father and also took possession of Oliver’s deed. It is undisputed that Butler was not present when the two deeds were made. Butler testified that his first knowledge of them was acquired a few days after the date of the deeds when his father came to him in his room at his father’s house and delivered the deed to him as a reward for leaving his employment in 1950 and staying with and caring for him; that his father was emotional and cried when expressing gratitude for his filial love and attentions; that his father also handed him Oliver’s deed which he deposited in the house with other papers and effects of the family; that his father never requested him to return the deed nor did Oliver ever ask for his deed.

On October 29, 1953, or two months after the date of the deed in question, the father executed and had recorded another deed to Oliver which granted to him some of the lands described in the deed to Butler dated August 27, 1953. The October deed also reserved a life estate in the father as grantor. The August deeds did not. In the October deed the father recited he had not intended to deliver the August deed to his son Butler. There was also language in the October deed that he made a mistake in the August deed in not reserving a life estate in himself as grantor and that the August deed contained land intended for Oliver. The request by the father to make this new deed was relayed by Oliver to the attorneys who drafted the deed and brought it to the father who properly acknowledged and executed it. Butler had no knowledge of the execution of the October deed until after it was executed and recorded. Butler recorded his August deed on December 28, 1953. Butler continued to live with his father and care for him until the father’s death on May 28,1954.

As stated, the issue in this case is whether the father actually delivered the August 27th deed to his son Butler. If he did, the lands therein described belong to Butler; if not, then this deed should be cancelled as a cloud on Oliver’s title derived from the October deed.

It is undisputed.in this case that Oliver had actual notice and knowledge of his father’s deed, dated August 27, 1953, to Butler when Oliver, as a grantee, took the later deed, dated October 29, 1953. Butler was unaware of the execution of the deeds on August 27th and October 29th until after they were made. Since Oliver had notice of a prior unrecorded deed to his brother at the time the October deed to him was executed and recorded, Oliver was in the same legal position as if Butler’s deed were actually recorded. Skelly Oil Company v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425; Halbrook v. Lewis, 204 Ark. 579, 163 S. W. 2d 171. It follows that when Butler recorded his deed, since Oliver had notice of its existence, a presumption of delivery by the grantor, the father, arose and the burden was upon Oliver to disprove the delivery. The Trial Court held that Oliver did not offer sufficient competent proof to discharge this burden and we agree.

Butler testified positively that his father delivered his August deed to him; that neither his father nor anyone else ever made a demand upon him for the return of his August 27th deed. Butler maintained that no one was present when his father delivered his deed to him along with Oliver’s. Oliver disputed this. He testified that he was present when his father said to both of them, “I’m going to show you boys the deeds, what I have done”; that Butler took the deeds and refused to return them. The appellant offered evidence to the effect that the father, as grantor, had said that he had made a mistake in the August deeds and he did not intend to deliver the deed to Butler. These statements to these witnesses were not made in the presence of Butler, the grantee, and the Court properly excluded such as being hearsay. With reference to the veracity of these witnesses we agree with the Trial Judge when he stated:

“The witnesses who testified are of the highest credibility and there can be no question but that Mike Austin told each of them exactly what each testified Mike told him, but the fact remains that it is hearsay and not competent evidence.”

The Court also held inadmissible the language in the October deed to the effect that the grantor had made a mistake and did not intend to deliver the August deed. The Trial Court properly excluded consideration of this language as being hearsay evidence and “surplusage and extraneous material, not a part of the conveyance itself and is incompetent as evidence in this case to show that there was no delivery of the deed to Butler Austin. ’ ’

The declarations of a grantor, in the absence of his grantee, are inadmissible to defeat the title which he has previously conveyed to his grantee. Reynolds v. Balding, 183 Ark. 397, 36 S. W. 2d 402. We consider this case to be controlling in the case at bar. There we said:

“* ® * Neither the testimony of the witnesses as to the declarations of their mother, Mary E. Mason, relative to her execution of the first deed to her daughter, Gertrude Balding, nor her subsequent recital in the deed to her daughter, Olive E. Miles, which was not made in the presence of Gertrude Balding, are admissible in evidence to defeat the deed to her. It is well settled in this State that the acts and declarations of the grantor or of a person in possession of a tract of land are admissible to show the character and extent of his possession, bnt not to contradict his deed to another. It has always been held by this court that the declarations of a grantor against the title of his grantee, made in the latter’s absence, are not admissible in evidence to defeat the title of the grantee.”

We also agree with the Trial Court that the statements and declarations of the grantor, subsequent to his August deeds and contemporaneous with the October deed, do not comprise any part of the res gestae and, therefore, are inadmissible. We consider the proffered evidence in the case at bar to he more in the form of a narrative of a past transaction and not so closely connected with the execution of the deeds as to constitute a part of the res gestae. Public Utilities Corporation of Arkansas v. Cordell, 184 Ark. 878, 43 S. W. 2d 746; Toney v. Raines, 224 Ark. 692, 275 S. W. 2d 771; Williams v. Martin, 226 Ark. 431, 290 S. W. 2d 442.

The Chancellor had the opportunity to observe the witnesses as to their demeanor, their visible reaction to the questions propounded to them, and the consistency or inconsistency of their testimony. From this vantage point he could evaluate their testimony. We do not disturb the findings of the Chancellor on appeal unless they are against the preponderance of the evidence. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Hill v. Barnard, 216 Ark. 29, 224 S. W. 2d 31. We cannot say the Court’s findings are against the preponderance of the competent evidence.

Affirmed.


author: CarletonHarris, Chief Justice.

text:
    Lewellen v. William T. Collins Shows.
    5-3075
    371 S. W. 2d 833
    Opinion delivered November 4, 1963.

      TV ade é McAllister, for appellant.

      Greenhaw & Greenhaw, for appellee.
   CarletonHarris, Chief Justice.

This is a Workmen’s Compensation case, which involves a carnival worker. Rufus Y. Lewellen, alias Ernest Welch, was given employment on September 2, 1961, at Lincoln, Nebraska, by Grlen Joplin, general manager of appellee, William T. Collins Shows. He was assigned by Joplin to work on the ‘ ‘ scrambler ride. ’ ’ The carnival, from Lincoln, moved to Fayetteville, Arkansas, for its next showing, to be held at the fairgrounds. Lewellen arrived in Fayetteville on Saturday, September 9, in the late afternoon, and was injured some time between 11:00 p.m. and early Sunday morning, September 10. Claimant contended that he was injured while in the course of his employment, and was entitled to compensation. The claim was controverted and, though allowed by the referee, was disallowed by the full commission, which found that claimant had failed to establish that his injury arose out of and in the course of his employment. On appeal to the Washington County Circuit Court, the Commission ivas affirmed, and appellant has appealed to this court.

No intricate questions of law are involved in this appeal, and we are only concerned with whether the finding of the commission was supported by substantial evidence.

Lewellen testified that before leaving Lincoln on Friday morning, Joplin saw a mattress lying on the ground and told claimant to pick it up and put it in a particular truck, carrying other carnival equipment, and upon arriving in Fayetteville, to take the mattress out of the truck and put it under Joplin’s house trailer. He traveled to Fayetteville ‘ ‘ on his own, ’ ’ riding part of the way Avith a man called “Slim,” Avho did not work for the carnival; “I think he Avorked for someone that has a tent there.” After arriving in Fayetteville, he helped put up the “cook tent” (not OAvned by the carnival, but privately operated). LeAvellen said that he saAv Joplin, Avho told him to get the mattress and “put it under my tent, in my trailer. ’ ’ According to claimant, he did not perform this task right then, but ate supper before 10:00 o’clock at Byrd’s Diner, stood around for a Avhile and then decided to “turn in.” He then Avent to the truck to get the mattress for Joplin, endeavored to pull it out of the truck, but his foot slipped, and he fell, severely injuring his shoulder.

“Well, when I come to I Avas laying, kind of sticking up in the air, and I Avas doAvn there—oh, my face was doAvn there on the ground, and it seemed like a bright light off and on. All of a sudden the ride Ave’d been Avorking on, Scrambler, I could see that just Avhirling around and round, seemed like there Avas little girls, little kids Avas SAvinging Avay off, and I Avas—I Avent to jump up, I Avent to raise up and I fell back. Then I Avent to begging for help, crying, screaming.”

The Avitness estimated that it Avas close to midnight AAdien he fell.

Gordon McNeese testified that he Avas an employee of Leonard Guest at the “cook” tent, but was not an employee of William T. Collins ShoAvs; that LeAvellen volunteered to help put up the “cook house” tent, and Avorked for about an hour and a half, but Avas not paid for such Avork.

James Edward Dykes, an employee of the Collins sIioavs, testified that he saw LeAvellen early Saturday night, and that claimant had been drinking; that he saw him again around midnight and LeAvellen was drunk. The witness then stated that he Avent to sleep (in a bed Avhich he set up by the side of his truck) betAveen 12:30 and 1:00 in the .morning, and was awakened by someone “moaning that they’d hurt their arm and their back; they’d fell out of the truck. And I was tired and sleepy; I just told them to shut up and go on to sleep.” Dykes said that the next morning he saw Lewellen at the “cook house” and the latter told him “that he Avas asleep; he Avas having a dream that some small kids was going to get on one of the rides; and he Avas getting off to put them on; and he fell out of the truck.”

Glenn Joplin, general manager of William T. Collins Shows, testified that after he had assigned LeAvellen to the “Scrambler Ride,” no other duties or additional Avork was given claimant. He stated that before he left Lincoln, he instructed all employees of the carnival, Avho AArere not truck drivers, to report at 8:00 o’clock on Sunday morning in Fayetteville; that from the time of leaving Lincoln on Friday morning until Sunday morning at 8:00, there were no duties whatsoever for LeAvellen to perform. Joplin testified that he saw claimant at his (Joplin’s) trailer on Saturday between 6:00 and.7:00 P.M., Avhen claimant came to him, wanting money. He stated that LeAvellen was not on duty, and would haA^e been “fired” if on duty, since he could smell liquor on LeAvellen at that time. He denied telling claimant to get a mattress, or, in fact, directing LeAvellen to do anything from the time he left Lincoln. The witness stated that Sunday morning about 8:00 o’clock, “he told me that he had been dreaming the night before and had dreamed about getting up, and Avalking out of the truck; he Avalked out, and he hurt hisself and wanted to know then if there Avas any way that I could Avork it in on the insurance to take him to the hospital. And I told him at that time that I had no insurance to cover him while he Avas off duty, but if he wanted to go to the hospital my nephew was fixing to go to town, and if he wanted to go to the hospital I would let my nephew take him up there, which he did. ’ ’

Joplin testified that the transportation of the carnival employees, except truck drivers, was their own “worry;” further, that he had no connection with the “cook house,” which was operated entirely by Leonard Guest; that Lewellen had no business on the truck from which claimant told the superintendent that he had fallen.

Robert Callan testified that he took Lewellen to the hospital, and that on the trip, he asked claimant how he was injured, and “he said he was sleeping at the back of the truck and had become excited and fell out.”

As stated at the outset, the sole question before- this court is -whether there -was substantial evidence to support the finding of the commission. It is readily apparent that such evidence existed. For instance,

1. Joplin denied that he told the appellant to get the mattress off the truck.

2. Joplin testified that there were no duties for appellant to perform from Friday morning, September 8, until 8:00 o’clock Sunday morning, September 10.

3. Dykes testified that appellant stated that he fell out of the truck in his sleep.

4. Callan stated that appellant told him that he had been sleeping in the back of the truck, had been drinking, and apparently became excited and fell out.

The commission’s finding that appellant’s injury did not occur during the course of his employment was supported by the evidence offered by appellees, which the commission had a right to believe.

Affirmed.

       Dr. Coy C. Kaylor testified that Lewellen “had a collapsed lung on the right, and an acromioclavicular separation, fracture of the twelfth dorsal vertebra.”

       The duties of Lewellen here consisted of helping people on and off the ride, and helping to tear down and set up the ride.

       This truck contained floorings for Dodger (small cars), one of the rides of the carnival, with which Lewellen had no connection nor duties.

       The commission did not find that Lewellen was intoxicated.


author: Ed. F. McFaddin, Associate Justice.

text:
    Croley v. Baker.
    5-3066
    371 S. W. 2d 830
    Opinion delivered November 4, 1963.

      J. E. Simpson, for appellant.

      Leivis E. Epley and E. Paul Jackson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellees, Mr. and Mrs. Baker, on the claim of false representations, sought to rescind their purchase of realty, and also to recover damages, from the appellants, Mr. and Mrs. Croley. In the complaint and in the trial i.n the Chancery Court there were a number of claimed misrepresentations relating to a variety of matters; but the Chancellor found that all of the alleged misrepresentations had been waived except the one as to the water supply for the house; and on that basis, alone, rescission and damages were awarded. On this appeal the only question relates to the representations regarding the water supply for the house.

Mr. and Mrs. Croley owned a farm of 80 acres in Carroll County which they listed for sale with the Strout Realty Company. In the listing which the landowners gave the said real estate broker there was this statement as regards the water situation for the house r “Number of wells, one; Depth, 125 feet; Dug or drilled, drilled; Pumping equipment, electric pressure. ’ ’ The real estate broker advertised the property for sale, and the advertisement said, as regards the water situation for the house: “Well for water; ...” Mr. and Mrs. Baker lived in Texas; he is an electronics engineer and she is a writer of books for children. The Bakers saw the advertisement of the Croley property, and on November 22, 1960, the Bakers visited the Strout Realty Company office in Eureka Springs, and Mrs. Andrews-Porter, an agent of the Strout Realty Company,'showed the Croley property to the Bakers. Here is Mrs. Baker’s testimony as to what Mrs. Andrews-Porter said to her about the water for the house:

“Q. Did Mrs. Porter tell you there was plenty of water in the well, or did Mrs. Porter tell you what you testified this morning?

“A. She said to try it and we tried it and there was no reason to believe there wasn’t.

“Q. You testified this morning you asked Mrs. Porter how much Avater was in the Avell and she said she didn’t know but to try it?

“A. We tried it and there seemed to be plenty of water in the well.

“Q. All right. Then she didn’t misrepresent that to you, did she ?

“A. -She didn’t know—”

Miss Barbara Hussey accompanied the Bakers on their inspection of the Croley house; and she testified as to what was said about the water situation in the house:

“Q. ... What inspection did they make concerning the water pump, related equipment?

“A. Mr. Baker asked her about the water supply, and where the water supply might come from and she took us outside the porch to a little shelter and I don’t know -whether there was a lock on it, I don’t recall, however, the roof was raised on it, and the pressure system was shown to Mr. and Mrs. Baker and myself, and consisted of a pump set in concrete, as she said must be over the well; and there was a small pressure tank, related hoses leading to it. And she also pointed out the large spring holding tank up just from the house. I don’t recall whether she pointed it out. I know we went up and looked at it later on. Mr. Baker looked for some time at the pump, and asked about it. He turned the switch on. We tried the facilities in the house. There was water.”

And on cross-examination Miss Hussey stated:

“Q. Now, as to the—as to the water supply, did she go any farther beyond the fact that she said when she was asked if there was plenty of water she said that she didn’t know, you would have to try it and see?

“A. That’s as far as she went.”

Mrs. Andrews-Porter, the agent for the Strout Realty Company, testified as to the inquiry and representations regarding the water situation for the house:

“Q. Did they ask you at that time anything about the water on the property?

“A. Specifically what water?

“Q. The well water.

“A. The well.

“Q. The water that was used in the house?

“A. They asked about the well, and I said the well was pure, as far as I know, it’s all right. We went in and they turned on the spigot and water ran out. They flushed the stool and they seemed to be well pleased with the way it operated and that was all that was said about it.”

Mr. Baker did not testify in the case; and the testimony of Mrs. Baker, Miss Hussey, and Mrs. Andrews-Porter, as above copied, together with the said listing and advertisement, constitute the entire representations concerning the water situation for the house. It was shown that the Bakers moved into the house on May 29, 1961; that the water supply in the house first became inadequate on June 28th; that work was done on the well then and again on July 25th; that the well “went dry” some thirteen times between June and October; that an engineer, Mr. Roy Downs, tested the well and said it would produce only 11.4 gallons per hour or 273.6 gallons for 24 hours. Mr. Downs, called as a witness by appellees, testified:

“A. The average amount used for a family of 4 would be somewhere around 250 or 300 gallons.

“Q. In a 24 hour period?

“A. In a 24 hour period.

“Q. If that is true, Mr. Downs, . . . and this well produced 11.4 gallons per hour, would not that yield, in 24 hours period 273.6 gallons? . . .

“A. Yes.”

Another witness, John Hadden, called by the appellees, testified:

“Q. John, you don’t know how deep that well is, do you?

“A. No, sir, I sure don’t.

“Q. And you don’t know how far off the bottom of that well that jet is?

“A. That’s what I said, Mr. Simpson, what McKinney reported back to me.

“Q. That’s all yon know is what somebody else reported ?

“A. That’s all I know.”

We have given the evidence in some detail to demonstrate that there is no testimony that the well toas other than as represented. Wherein was there a false representation as regards the water situation in the house? We fail to find any; and there must be a false representation in order to support a decree for rescission. In Hunt v. Davis, 98 Ark. 44, 135 S. W. 458, Mr. Justice Frauenthal stated the burden resting on one who sought a rescission of a contract on the claim of false representations :

“In order to charge the seller with fraud, it must be shown that he has made an active attempt to deceive the buyer relative to some matter material to the contract, either by statements which he knows to be false or by acts, conduct or representations which suppress the truth and induce in the buyer a false impression. Representations which are considered fraudulent in law must be of a nature that are material to the contract, and ‘must be made by one who either knows them to be false or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.’ Louisiana Molasses Co., Ltd. v. Fort Smith Gro. Co., 73 Ark. 542. If a representation is made by the seller which he knows to be false, it will constitute fraud, but a representation will also be fraudulent, even if he had no knowledge whatever, if it is made of a matter as truth of personal knowledge.”

To the same effect, see Whaley v. Niven, 175 Ark. 839, 1 S. W. 2d 3; and Fausett v. Bullard, 217 Ark. 176, 229 S. W. 2d 490.

We have several recent cases involving rescission of a contract because of inadequate water. We discuss these to point out the differentiation in the factual situations between the adjudicated cases and the case at bar. In Massey v. Tyra, 217 Ark. 970, 234 S. W. 2d 759, we allowed rescission for misrepresentation of the water supply for a house; but in that case there were definite misrepresentations, for the opinion recites:

“This was what Tyra was looking for, but before closing the deal he asked specifically about the water and made it clear that he would not purchase unless the water supply was sufficient for stock raising as well as for the home and restaurant. Wheeler told him there were two good springs on the land, suitable for watering stock, and that the 358-foot well near the house produced an ample water supply.”

In Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256, recission was awarded for misrepresentation about the water supply ; and here is what the opinion recites:

“The appellee, Mrs. Brand, testified that the appellant, Mrs. Clay, told her when she inspected the tourist court there was ‘plenty of water here’ and that Mrs. Clay brought the matter up several times; that Mrs. Clay assured her there was an adequate water supply for the needs of the house, the court, and the beauty shop.”

In Blythe v. Coney, 228 Ark. 824, 310 S. W. 2d 485, a new house was sold in a section of the city wherein it later developed that there was, and would be for the foreseeable future, an entirely insufficient supply of water from the city water mains. The opinion gives these facts:

“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. ’ ’

We granted rescission, saying:

“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.”

The facts in all of the cited and discussed cases are at great variance from those in the case at bar: because, here, there was no misrepresentation of the water situation of the house, there was no- concealment; there was no evasion; and it was never shown that the appellants had experienced any trouble with the water supply. The appellees failed to make sufficient inquiry. The Chancery decree awarding rescission and damages, is reversed and the cause remanded, .with directions to dismiss the complaint of the plaintiffs.

       As regards the water for the rest of the place, there was a spring for cattle, etc.; but that is not now before us. We confine the discussion entirely to the water supply for the house.

       The full advertisement showed a picture of the house on the land and said: “80 ACRES—$7900. 80 acres; half tillable and best for cattle, berries, 80 acres pasture to graze 20' head of cattle. Well for water; fencing and some cross-fencing for stock security., Nice variety of fruit trees for home use. Split-level home in excellent condition throughout; features 6 rooms, 3 bedrooms, bath, fireplace, hardwood flooring, porch, electricity and garage. View of town from large, shaded lawn with flowers and shrubs. Sheds. 5 mile drive to town with mail and milk routes passing. School bus near too. $2000 down makes this one yours. Pull price, $7900. STROUT, Eureka Springs, Ark.”