author: Lyle Brown, Justice.

text:
    ARKANSAS REAL ESTATE CO., Inc. v. H. F. BUHLER et al
    5-5027
    447 S. W. 2d 126
    Opinion delivered November 10, 1969
    [Rehearing denied December 15, 1969.]

      L. Gene Worsham, for appellant.

      Lester & Shults, for appellees.
   Lyle Brown, Justice.

H. F. Buhler and wife were awarded judgment against Arkansas Real Estate Company, Inc. on four notes secured by mortgages on lands in Saline County. The judgment was resisted on the ground that the notes were usurious. It was contended that the debt sued on was represented originally by a single note which was usurious; and that these four settlement notes were tainted with the usury from the original note. Those contentions were rejected by the trial court and Arkansas Real Estate appeals.

We first turn our attention to Avhat Ave shall call the original note. Arkansas Real Estate Company, Ino. is a domestic corporation through which R. M. Traylor has for a number of years dealt in the purchase, sale, and development of bauxite properties in Saline County. In 1948 Traylor evidently interested Buhler in participating in some of the bauxite ventures headed by Traylor. In that year the parties executed a contract evidencing their first substantial venture together. As a result of that agreement, Buhler obtained title to some forty-six acres in Saline County, and the refusal of joining with Traylor “on a 50/50 basis in connection with any options covering bauxite lands which you may negotiate in the State of Arkansas for a period of twelve months ...”

The two men subsequently participated in a number of bauxite transactions, presumably initiated by the described contract. Buhler’s participation consisted of advancing funds as Traylor acquired options. So far as we can discern from the record, Buhler kept an account of his advancements on a ledger in his office, and Traylor would from time to time make payments thereon. By 1954 Buhler presumably decided to reduce the account to a note. According to the record, Buhler supplied Traylor with an itemization covering twenty-five separate cash advancements in 1952 and 1953, with an additional “$1,000 from previous account.” That itemization is typed on one sheet and totals $67,268.50. It is possible that the items actually total $66,268.50. That is because one of the items appears to have been erased and we cannot state with certainty whether the altered item is $250 or $1,250.

Mr. Traylor does not agree that he then owed the total amount of the account stated by Buhler. On the reverse side of the account are a number of figures in Traylor’s handwriting which Traylor says arose out of conferences between him and Buhler. Among other things are listed certain credits which Buhler is said to have concurred in. Those credits, if correct, would have reduced the account to $50,150. Traylor claims Buhler insisted on adding $5,000 interest to that amount, plus Buhler’s contribution to the purchase of a truck, raising the total debt to $56,900. Then, so Traylor testified, Buhler added $10,000 as another item of interest. The final figure, according to Traylor, was rounded off at $67,000. That is the face amount of the original note dated October 6, 1954. The note was drafted to become due January 1. 1957, to draw five per cent interest until maturity and ten per cent per annum thereafter.

With respect to the original note, there are two features which should here be related. First, there is a handwritten notation in blue ink at the bottom of the typewritten note, which reads: ‘ $10,000 of this note is interest; $57,000 is principal.” Then opposite that notation in green ink is written, “O. K. H. F. Buhler.” It is evident that Buhler’s signature is genuine. Secondly, Traylor insists that he actually did not owe the money represented by the note; that he executed it as a favor to Buhler who insisted thereon because, so Traylor testified. Buhler needed the money; that the entire venture was that of a partnership in which Buhler agreed to advance three-fourths of the capital and Traylor agreed to advance one-fourth plus his services; and that upon the sale of a valuable holding which would have aggregated $300,000, each party was to have beemremunerated.

Traylor was the only witness who testified as to the transactions we have described. Buhler was called; he testified as to his ownership of the notes sued upon; he was asked to identify the handwriting, “O. K. H. F. Buhler,” which he was unable to do (his attorney agreed that it was Buhler’s signature); he was asked if he remembered the particulars surrounding the drafting and execution, of the original note, to which he replied that his memory was failing and he could not recall them. It was shown that Buhler was 88 years of age at the time of the trial and he testified that his memory was “almost gone.” Appellant did not challenge that assertion and counsel admirably restricted bis questioning accordingly.

In 1966, which was some considerable time prior to the filing of the instant case, Buhler sued Arkansas Real Estate Company on the original note. That suit was settled by Buhler and Traylor without benefit of counsel. In that settlement Buhler took the four notes forming the basis of this litigation.

Now back to the original note. Traylor points up these arguments to support his theory that the original note was usurious:

(1) The uncontradicted testimony, supported by documentary proof, shows usury;

(2) Buhler’s signature on the notation of the original note proves usury;

(3) Two letters written by Buhler demonstrate usury; and

(4) When the original note was sued on in Pulaski County, it was exhibited with the complaint, but the handwritten notation, “$10,000 of this note is interest; $57,000 is principal. O. K. H. F. Buhler,” was not copied; and that omission lulled Traylor into not asserting a claim of usury as a defense to the suit on the original note.

The four contentions listed will be treated in paragraphs correspondingly numbered.

(1) The testimony and documental proof of usury. We presume appellant is referring to the testimony of Traylor. He purported to relate, mostly from memory, ,a multitude of transactions between the parties which covered a long period of years. Much of that testimony is inarticulate. It is in contradiction of essential written agreements between the parties. For example, the 1948 contract called for advancement by Buhler of fifty per cent of the cost of acquired options, whereas Traylor insists that they verbally agreed to change Buhler’s contribution to seventy-five per cent. Again, Traylor insisted that the original note for $67,000 did not in fact represent an indebtedness to Buhler; he says he executed the note purely as an accommodation to a man who insisted he was in need of money. Additionally, on an obligation which he said he did not owe, an endorsement of payments on that note shows that over a period of eight years Traylor paid a total of $31,000 on the debt. Finally, Traylor tried to eliminate from the written account, which formed the basis of the original note, some $13,-000 in credits. His testimony in that connection was unsupported by receipts or other written items.

(2) and (3). Buhler’s signature on the notation of the original note, corroborated by two letters written by Buhler (so Traylor asserts), demonstrates usury. We have previously referred to the notation on the bottom of the original note. Of course that notation speaks for itself and it is logical to argue that it speaks the truth. On the other hand, Buhler supplied an itemized account which totaled, in round numbers, $66,000 or $67,000, and the chancellor apparently concluded that the itemized account represented a true statement of the indebtedness. Additionally, one of the letters to which Traylor refers is dated in December 1958, from Buhler to Traylor. Among other things, that letter contains this statement:

You got the $67,000 without adding any interest, in about four months, $5,000 and $10,000 at a time, turning in names and land descriptions that could not be found. I, of course, permitted you to say that $10,000 of it was interest in order to get you to make the note. You naturally preferred to keep it like it had been for the last 10 previous years, in and out, without any accurate account, or without any definite time to pay except on small amounts.

In a letter dated April 1964, Buhler to Traylor, the latter attaches considerable significance to this statement. “That is separate from the $67,000, on which I gave -yon $50,000, not in notes, or questionable stocks or bonds without value, but in Uncle Siam’s kind of money.” Traylor would have us conclude that from the quoted statement it is conclusive that the original note represented an advancement by Buhler of only $50,000. His argument has some merit but is certainly not conclusive in the face of the array of other evidence to the contrary.

(4) A copy of the original note was attached to the complaint in the first suit; and failure to copy thereon the handwritten notation respecting interest misled Traylor (so he contends) and caused him to overlook then asserting usury as a defense. Traylor conceded that he knew there was an invalid note outstanding between the two men but explained that the lapse of time caused him to forget that this was the note which contained a $10,000 usurious charge. His actions regarding the “usurious” note were inconsistent with the assertion at the trial. For example, he was told by Buhler, by letter in 1958, of Buhler’s version of the mention of interest on the bottom of the note, namely that he permitted Traylor to say that ‘ ‘ $10,000 was interest in order to get you to make the note.” After that communication, Traylor made eight payments on the note totaling $31,000. Another factor which could have impressed the trial court; Traylor came into possession of the original note at the time he delivered the four notes sued upon herein; it was eighteen months thereafter before he raised the allegation of usury. Apparently the trial court found it difficult to conclude Traylor’s point (4) was tenable. Under the circumstances of the case we are certainly unable to find fault with that conclusion.

In his effort to establish usury, Traylor carried a heavy burden. The stated account, prepared by Buhler, set the stage for the execution of the original nóte. The total of that account was very close to $67,000, too close to sustain usury if it was correct. The formal note was not on its face usurious. Traylor proceeded to attack the account stated by parol evidence of credits totaling several thousand dollars. Finally, so he says, the correct amount was ballooned by adding two items of interest totaling $15,000. In the face of the two cited written instruments, Traylor was required to show clearly that the transaction was usurious. Briant v. Carl-Lee Brothers, 158 Ark. 62, 249. S. W. 577 (1923). Our usury law is a penal statute and when a questioned instrument is on its face not usurious “the plainest principles of justice” require that the defense of usury be clearly shown. Smith v. Mack, 105 Ark. 653, 151 S. W. 431 (1912).

The chancellor specifically found that Traylor failed to establish that the original note was usurious and wo are not willing to say that finding was- erroneous.

Affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Curtis M. DOWNS v. Leon REED
    5-5020
    446 S. W. 2d 657
    Opinion delivered November 10, 1969

      Cockrill, Laser, McCehee, Sharp & Boswell, for appellant.

      Carl McSpadden, for appellee.
   John A. Fogleman, Justice.

Appellant asks us to reverse a judgment of the. circuit court in an automobile collision case for want of substantial evidence to support the findings of the trial judge sitting without a jury. Appellee filed suit against appellant for property damage of $175.78, and double damages and attorneys’ fees under Ark. Stat. Ann. § 75-918 (Repl. 1957). He alleged that his automobile was damaged when it was struck by an overtaking vehicle operated by appellant. The negligence .alleged as the proximate cause was appellant’s failure to keep a proper lookout, failure to keep his auto-bile under proper control and failure to yield the right-of-way to appellee. Appellant denied the negligence charged against him and alleged identical acts of negligence on the part of appellee with the additional charge that appellee failed to give a proper signal to make a left turn. The trial court found that the proximate cause of the collision between the two vehicles was attributable entirely to the negligence of appellant.

The sole argument made by appellant is lack of adequate support for the court’s finding that no negligence on the part of appellee constituted a proximate cause of appellee’s damage.

The collision occurred when appellee Reed made a left turn from Highway 25 into Warren’s Welding Shop, a service station in the community of Ida. Both vehicles were proceeding along the highway in the same direction. Appellant was overtaking the vehicle driven by Reed just prior to the time that the turn was made. Reed admitted that he had not noticed the car following him until his partner and passenger, C. E. Blackburn, warned him that a car following them was going to hit them. Reed testified that as he approached the service station driveway he had turned on his blinker signal at a distance some 40 or 50 steps back of the point at which he made his turn. When his front wheels were already off the highway into the drive and the rear wheels .almost off, he looked back over his shoulder and saw that the Downs vehicle was going to strike his. Appellant contends that appellee’s failure to ascertain whether any following vehicle had already pulled out into the passing lane constituted negligence which was a proximate cause of his damage. If we agreed, we would have to say that this omission on the part of appellee constituted negligence as a matter of law. Under the circumstances of this case we cannot do so.

Appellant relies on the requirements of Ark. Stat. Ann. % 75-618(a) (Repl. 1957) to sustain his position. Violation of this statute, requiring that no one turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and only after giving an appropriate signal, is only evidence of negligence and not negligence per se. Was son v. Warren, 245 Ark. 719, 434 S. W. 2d 51. See also Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94. Thus, there existed a question of fact as to whether Reed’s actions in the circumstances constituted negligence.

Appellant argues that his testimony as to the relative positions of the vehicles was uncontradicted and required a finding of negligence on the part of Reed. We do not agree. Reed testified that he was traveling only 35 or 40 miles per hour in approaching the turn, having adjusted his speed for the purpose of making the turn. His estimate of the distance at which the signal was commenced would have tended to show that statutory requirements were met in that regard. He stated that in the quarter of a mile he traveled before making the turn, there were ten intersecting roads and eighteen buildings. C. E. Blackburn testified that he looked back and saw Downs’ vehicle as Reed was finishing his turn. According to this Avitness that vehicle was then over on the passing side, obviously trying to stop. He testified that DoAvns started bloAving his horn Avhen the front Avheels of Reed’s car Avere at the edge of the driveway or possibly slightly into the driveAvay. He estimated that DoAvns Avas then about 100 feet aA\T.ay and that the horn Avas sounded for the length of time it took him to travel this distance and the Reed vehicle half .a car length.

Downs testified that he Avas driving his vehicle at approximately 35 or 40 miles an hour when he pulled to his left to pass Reed’s A7ehicle and that he had already pulled onto the lefthand side of the highAvay Avhen he saAv the brake light on Reed’s vehicle come on. According to him, he then applied his brakes and bleAV his horn after which Reed turned on his signal light just before making the left turn. Downs stated that, at this time, his vehicle was traveling at about 50 to 60 miles per hour and that he had already started to swing it around Reed’s car. Arkansas Statutes Annotated § 75-609(b) (Repl. 1957) inquires a vehicle being overtaken and passed to remain on its right and proper side of the highway when proper signal is given by the overtaking vehicle. We have held, however, that this statute does not apply if the overtaken vehicle is making a lawful turn, i. e., if the proper signals have been given. Nelson v. Underwood, 244 Ark. 1065, 429 S. W. 2d 102. The forward vehicle has the superior right to the use of the highway for the purpose of leaving it to enter an intersecting road or passageway. Arkansas Best Freight System v. Hillis, 244 Ark. 791, 427 S. W. 2d 166; Wasson v. Warren, 245 Ark. 719, 434 S. W. 2d 51. It was the duty of appellant to handle his automobile in recognition of this superior right. Cohen v. Ramey, 201 Ark. 713, 147 S. W. 2d 338.

From the evidence the court might well have found that Reed gave a proper and timely signal and that his failure to be more alert for a following vehicle did not constitute negligence. On the other hand, it may well have found that the acts of appellant, in increasing his speed and in failing to give an audible signal more promptly in an area described as the middle of Ida where there were numerous intersecting roads and driveways, constituted negligence and that appellant failed to recognize Reed’s superior right to the use of the highway.

Even if we could say that the omission of Reed constituted negligence, as a matter of law, there remained a question as to the proximate cause of the collision. The evidence recited made this a question for the trier of the facts and his findings would conclude the issue. See Jones v. King, 211 Ark. 1084, 204 S. W. 2d 548.

Since we find that there was substantial evidence to support the findings of the circuit court, the judgment is affirmed.

Appellee’s attorney is allowed a fee of $250 for services on this appeal.


author: J. Fred Jones, Justice.

text:
    E. L. KIRKHAM v. THE NATIONAL INVESTORS LIFE INS. CO. and Jess P. ODOM
    5-5024
    446 S. W. 2d 675
    Opinion delivered November 10, 1969
    J. Hctrrod Berry, for appellant.
    J. Ted Blagg, for appellees.
   J. Fred Jones, Justice.

This is an appeal by E. L. Kirkham from an adverse decree of the Pulaski County Chancery Court in a suit by Kirkham against The National Investors Life Insurance Company and Jess P. Odom, hereinafter referred to as National. Kirkham does business in North Little Rock as Arkansas Salvage Company, and National owns the old Maumelle Ordinance Plant consisting of several thousand acres of land, with fences and numerous buildings thereon, in North Pulaski County.

On March 31* 1967, Kirkham made a written offer to National as follows:

“Gentlemen:
We have inspected the following items at the old Maumelle Ordinance Plant and submit the offer listed below for the purchase of these buildings from the property:
All the cyclone fence except that running east to west along the railroad track and 50' running south on both ends $2,300
Nine buildings known as the drier line and bearing the following numbers: 320, 327, 335, 343, 350, 357, 365, 372 and 377 $ 450
Building A12 and 711 $ 5Q
Stable $ 50
Several buildings in process of demolition (five or more) $ 50
Two buildings No. 154 and No. 244 $ 100
We will pay National Investors Life Insurance Company the sum of Three Thousand Dollars ($3,-000) on execution of this agreement and will remove these items within one year of date of this agreement or automatically forfeit any right of ownership thereto. It is understood that access of workmen will be granted and that 'we act as an independent contractor and assume all risks related to removal and being upon the property. ’ ’

This offer was accepted by National on March 31, 1967.

After the offer was accepted by National, it requested that the stable and chain link fence enclosing same lie excluded from the terms of the agreement and on March 20, 1968, the original agreement was amended as evidenced by a letter from National to Mr. Kirkham as follows:

“In response to our telephone conversation yesterday afternoon, I am writing to confirm our agreement concerning your contract for salvage of materials at the Maumelle site.
We have agreed to extend your contract time for two additional months in consideration of the exclusion of the stables and the adjoining 600-700 feet of chain link fence. Thus, the expiration of your contract will be May 31,1968, instead of the present contract time of March 31, 1968.
Would you please sign and date, on the place indicated at the bottom of this letter, your acceptance of this amendment to your contract.”

Mr. Kirkham signed his acceptance of this amendment on March 30, 1968. On June 3, 1968, Mr. Kirkham was denied further access to the premises for the removal of materials under his contract and he filed his complaint setting out that weather conditions had prevented him from specifically complying with the terms of his amended contract and prayed as follows:

“WHEREFORE, Plaintiff prays that he be allowed additional reasonable time within which to remove his property as above; for the temporary order as aforesaid, same to be made permanent on final hearing. Without waiving the foregoing, for damages for defendant’s wrongful taking over of his property and for such denial of his rights, for his costs and all other equitable relief.”

National demurred to the complaint and Mr. Kirk-ham amended his complaint alleging that in consideration of his agreement to eliminate the stable and lot fence from the provisions of his original contract, National had promised to give him all the time he needed to salvage and remove the other fence and buildings; that relying on this promise he waited until his time had almost expired under the original contract before negotiating for a specific extension of time in writing, and in his amendment he prayed as follows:

“WHEREFORE, plaintiff prays for reformation of the extension on equitable grounds as aforesaid so as to allow reasonable time for removal' of his property and prevention of a forfeiture and for equitable reasonable time in any event, and that he be allowed to remove both his property concerned in the contract and his property that is separate from the contract, for his costs, and for all other equitable relief.”

At the close of Mr. Kirkham’s evidence, National moved for a “directed verdict” which the chancellor treated as a demurrer to the evidence, under authority of Ark. Stat. Ann. § 27-1729 (Repl. 1962) which provides that in any chancery case the defendant may, at the close of plaintiff’s case, file a written motion challenging the sufficiency of the evidence to warrant the relief prayed. The motion was granted by the chancellor, and on appeal to this court Mr. Kirkham relies on the following points for reversal:

“The Court erred in sustaining defendant-appellees’ demurrer to the evidence upon the closing of plaintiff-appellant’s case because:
The motion was made orally rather than in writing as required by statute, and plaintiff duly objected. § 27-1729, Ark. Stats.; Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11.
In sustaining the demurrer to evidence at close of plaintiff’s proof the Court held he was entitled to recover on one aspect of his case; therefore, the motion to dismiss should not have been upheld, McGuire v. Benton State Bank, 231 Ark. 608, 331 S. W. 2d 258, (concurring opinion); Arkansas State Highway Comm’n v. Scott, 238 Ark. 883, 385 S. W. 2d 636. The evidence clearly sustained plaintiff’s complaint. Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225; and substantive authorities detailed in brief.
(1) The evidence showed excusable delay because of the unusual weather during the '2-month extension, even if not considered an Act of God.
(2) Appellant’s failure to remove his property within the original term and extension is excusable, having been caused in the first instance by the conduct of Appellees.
(3) Appellees, along with (2), are estopped by inequitable conduct from insisting upon a forfeiture of Appellant’s rights to his property and he should have reformation of the extension to allow reasonable time for removal of his property.”

We are of the opinion that the chancellor did not commit reversible error in granting the oral motion under the facts in this case. We find no substantial evidence to support a prima facie case in favor of Mr. Kirkham.

Ark. Stat. Ann. § 27-1729 (Repl. 1962) as originally enacted (Act 257 of 1945) provided “that upon the closing of plaintiff’s . . . proof in any cause ... in any court of chancery in this state, . . . the opposing party may file a written demurrer setting forth any of the defenses now permitted by law to be raised by said pleading. . .” (Emphasis supplied). In Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S. W. 2d 235, this court held that the above italicized portion of the 1945 Act referred to the five grounds for demurrer set forth in 1411 Pope’s Digest (Ark. Stat. Ann. § 27-1115 [Repl. 1962]) and did not permit a demurrer to the evidence. The statute was amended by Act 470 of 1949 (Ark. Stat. Ann. § 27-1729 [Repl. 1962]) and noiv provides that the defendant

“May file a written motion challenging the sufficiency of the evidence to warrant the court to grant the relief prayed for on the record existing/’ (Emphasis supplied).

We first held in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and more recently in Lafayette Co. Ind. Dev. Corp. v. First Nat’l Bank, 246 Ark. 109, 436 S. W. 2d 814, that what the motion now challenges is ‘ ‘ the sufficiency of the evidence to warrant the relief prayed.” The word “written,” as applied to the demurrer under the 1945' Act, was carried forward as to the motion in the 3949 Act as amended, but we have never held the ivritten demurrer to be mandatory in every case on any of the five grounds under the 1945 Act, and Ave have never held the granting of an oral motion under the present statute to be reversible error because the motion is presented orally rather than in Avriting.

In Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11, and Cunningham v. Chamblin, 227 Ark. 389, 299 S. W. 2d 89, cited in Mr. Kirkham’s brief, Ave did hold that the appellants had Avaived their objections to the motions not being in Avriting by failing to object for that reason at the time of trial. In the case at bar National moved for a “directed verdict” at the close of Kirkham’s case and in granting the motion the chancellor said:

“I am going to find for the Defendant on the grounds that there was no fraud. I don’t see anything there to require reformation. There is only one thing I do see that those poles they put out there that Avere left there belong to him. Certainly they have a right, and I believe it’s stated here, by agreement or statement, stipulation rather, that they certainly are entitled to go get the poles. I presume they are still there. If they are not I Avould say they Avould give him whatever the value of the poles Avere. What he paid for them and cost of putting them there.”

The record then appears as follows:

“MR. BERRY: We are asking for the relief that we have prayed in the complaint and all we are entitled to under the complaint and we are not waiving .any of that. Now also I would like to point out to the court that there has been no written demurrer filed at the close of evidence here and I .am objecting also to the court’s ruling on that basis.
THE COURT: All right. He asked for a ruling in his favor without presenting proof and you had rested your case so I took it, I just made the ruling.
MR. BERRY: We have rested the case. I raise that objection, there is no written demurrer, no written motion to dismiss on the evidence.
THE COURT: I am granting it on his oral motion.”

We are of the opinion that in the enactment of § 27-1729, supra, the Legislature intended to provide the same rule in chancery cases as applies to directed verdicts in law cases. We are of the further opinion that it was not the intention of the Legislature to make the relief provided by the statute, dependent upon the motion therefor being in writing; especially when the motion, and the reasons therefor, are clearly understood by the parties and no prejudice to the plaintiff appears by the motion being oral. It would be placing form above substance to require National to put its motion in writing before the chancellor could properly grant it under the state of the record in this case, and we find no prejudice to Mr, Kirkham by the motion being oral rather than written in the case at bar.

The property “separate from the contract” referred to in Kirkham’s amendment to his complaint consisted of light poles he had purchased from Arkansas Power and Light Company. The poles had been removed from the ground and were stacked on National’s premises when Kirkham was denied entrance to the premises and the chancellor held that Kirkham was entitled to remove the poles. This right was not denied but was actually agreed to by National. The chancellor’s order pertaining to the light poles was not such partial recovery as to prevent the chancellor from dismissing the cause of action sued on by Kirkham. The light poles were not involved in the contract between Kirkham and National and the concurring opinion in McGuire v. Benton State Bank, 231 Ark. 608, 331 S. W. 2d 258, cited in Kirkham’s brief, is not in point. In McGuire a third party was brought into the lawsuit and justiciable issues remained to be tried between two of them after a demurrer to the evidence was sustained as to one of them.

In Werbe v. Holt, supra, where the effect of Act. 470 of 1949 was first considered and distinguished from the 1945 Act, this court said:

“What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.”

We are of the opinion that the chancellor did not base his opinion in the case at bar on the preponderance of the evidence, but that he based it on Mr. Kirkham’s failure to make out a prima facie case. No fraud was alleged and none was proven in this case and we agree with the chancellor that no cause was shown for reforming the contract of the parties.

Mr. Kirkham testified that a Mr. Robinson from Malvern first purchased most of the property and let his contract expire.

“A. * * * Mr. Robinson, as a company or an individual, I don’t know which, bought the majority of this stuff and he sublet some of the contracts or the demolition of these buildings and I bought material from some of these subcontractors and, of course, I became interested in the thing. These people told me that they had stopped them from going in there, wouldn’t let them go in any more and get the material out, so I was interested in acquiring this, so I called National Investors and I was referred to Mr. Joe Hill as being the one in charge of the property out there and. . .
# # #
A. * * * i told him i wanted all the brick out there, which I didn’t include in my written contract. * * * And some other stuff we mentioned and he said, ‘Mr. Kirkham, let me put it this way, all this stuff has been sold and paid, but they defaulted, didn’t come in and remove it, their time ran out. . ”

As to the oral agreement, Mr. Kirkham testified that soon after he entered into the original contract he had a conversation with Mr. Hill:

“We raised the subject about the stable and horse lot and he said he would like to keep it. He said his boss wanted to get some horses and put them out there.
• # •
. . . [T]he stable was a building, as well as I remember it was about 24’ wide and oh 40, 50', which was movable and we were selling those movable buildings out there and we had one similar we sold for $300.00. * * * It was narrow enough to move and low enough roof to be moved and we were selling buildings to be moved. * * * In the conversation I was reluctant to relinquish them to him and finally Mr. Hill said, ‘Mr. Kirkham, I am going to get tough with you to get this back; my boss wants it and I am going to get it if I can.’ I said, ‘I don’t know what you mean by getting tough.’ He said, ‘You have a lot of stuff out there yet, haven’t you?’ I said, ‘Yes, you gave me written permission for my men to go in and take it down.’ He said, ‘Yes, I understand, we can make it hard on you.’ I said, ‘Well, I am sure you can’ so our relationship had been very fine up to this point, I thought, and I go along to try to satisfy, and the only thing he offered me was additional time for — to relinquish this stuff, so I said, ‘Now, what are you talking about in the way of time, how much time do you mean,’ and he said, ‘All the time you need.’ The very words he used. I said, ‘Well, as far as the way we are going now I won’t need any additional time but if you want to do that, take those items back, we can cut our force and cut our expenses considerably.’ He said, ‘All right, if that’s satisfactory, that’s the way we will do it.’
* # #
THE COURT: Is there something in writing to substantiate — the reason I asked the question, this witness now starts talking about extension of time.
MR. BERRY: Yes.
THE COURT: Is there something in writing relevant to that extension?
MR. BERRY: Yes, your Honor, it did come along at a later period of time.
THE COURT: Do you have that in writing?
# * *
MR. BERRY: Yes, your Honor, the extension; yes sir.
THE COURT: Otherwise I might not allow him to continue.
MR. BERRY: Well, your Honor, there is .a later writing on the extension. Our proof on that was and we feel we have a legal authority to support us all the way, was that that extention, he had no alternative but to accept that extension and that by the inequitable conduct — we should have had an opening statement on this. We are showing, your Honor 3 3

As to the extension amendment to the original agreement, Mr. Kirkham testified:

“Q. When did they come up then with the two month situation?
A. As well as I remember the letter was dated . March 20. I don’t remember when I received it. I didn’t receive it immediately. I think it was two or three days, maybe even four or five days elapsed between the time it was dated and when I received it, and I was still reluctant to go ahead and sign it after the conversation we had had on the telephone. I kept on turning over in my mind the possibility of suing them or enjoining them to keep them from barring me from the area out there.
Q. Uh-huh. All right. Now, I hand you here a letter from Mr. Naylor, bearing the date of March 20 and bearing your signature date of March 30, 1968, and ask you if that is the letter that you were referring to?
A. Yes. * * * He just called me and asked me if I was going to sign this letter. * * * And I said that I was. This was just before I did sign it. I said I was going to sign it and I signed it and put it in the mail. * * * I carried some men out there to show them the buildings and they wouldn’t let me in and they told me I would have to call Mr. Naylor # # # I told him I come out to show some buildings to some people, prospects I had to sell them to, I wanted to take them in there, and he said, ‘Well, I hadn’t signed the contract yet and he wouldn’t let me go in,’ but I said, ‘I have signed it and put it in the mail.’ He said, ‘Well, he hadn’t received it.’ I assured him I had signed it and it was in the mail and then he told the guards I could go on in. * * * I was desperate, I didn’t have any other recourse, had to sign it or they wouldn’t let me in.”

Mr. Kirkham testified that in October, 1967, he sold his interest in the contract to third parties who defaulted in their contract with him and he had to again take over, He testified that he was never released from his own contract with National:

“I sold certain buildings and structures to these other people. The provision was that they would take them down and remove them from the property. . . I sold out to them. That’s common practice in this type of thing.”

Mr. Kirkham prepared the offer and acceptance constituting the contract entered into on March 31, 1967. He knew at the time he made his original offer that Mr. Robinson from Malvern had originally purchased some or all of the buildings under a similar contract and had forfeited his rights to them because of his failure to remove them within the agreed period. “Their time run out.” Mr. Kirkham testified that the verbal agreement for all the additional time he needed to remove the nine miles of chain link fence and at least 18 buildings, was entered into in consideration of his verbal relinquishment of claim to 700 feet of chain link fence and one movable stable building 24 feet wide by 40 or 50 feet long for which he paid $50. He says this second agreement was entered into verbally about two months after March 31, 1967. The price Mr. Kirkham paid for all the items listed in the contract, as compared with what he says was their “retail” value and what he lost in profits, is indicative that the prime consideration, insofar as National was concerned, was getting the buildings and materials removed from the premises.

The record does not disclose the amount or nature of the materials Mr. Kirkham actually did remove from the premises during the 14 months he operated under the contract as amended, but his testimony strongly suggests that he was simply taking prospective customers onto the premises and attempting to sell the buildings as they stood without having to wreck or remove them. There is no evidence in the record that Mr. Kirkham himself ever removed a single one of the buildings from the premises. “We sold right from where they were. They went in and got them. ’ Mr. Kirkham insisted that the verbal agreement for an extension of time be reduced to writing and this was done. The agreement was reduced to writing on March 20, 1968, as an amendment to the original contract. The amendment provided for a two month extension of the original contract; Mr. Kirk-ham accepted the extension and defaulted under its terms. He says that weather conditions prevented his full compliance, but weather conditions were not excepted in the written agreement or in the written extension. Mr. Kirkham says that he knew he would be unable to remove all the materials within two additional months when he accepted the amendment to his contract, so it would appear that if he relied as heavily on the verbal agreement to give him all the time he needed, as he contends that he did, he would have brought his court action when he was first barred from the premises at the end of one year, rather than accepting a written amendment to the original contract and then bringing his action when the additional time provided in the amendment had also expired. Mr. Kirkham simply did what he knew Mr. Eobinson had done — “He let his time run out.”

The decree of the chancellor is affirmed.


author: Conley Byrd, Justice.

text:
    CONTINENTAL SOUTHERN LINES, Inc. v. Grace GOODSELL
    5-5050
    446 S. W. 2d 668
    Opinion delivered November 10, 1969

      Warren & Bullion, for appellant.

      Terral, Rawlings, Matthews & Turtle, for appellee.
   Conley Byrd, Justice.

Appellee Grace Goodsell brought this action against appellant Continental Southern Lines, Inc., alleging that she was injured on the appellant’s bus in Jackson, Mississippi. She alleges that her injuries were proximately caused by the negligence of appellant in failing to supervise the unloading of the bus, in failing to help plaintiff unload her baggage, and in failing to exercise ordinary care under the existing circumstances. The trial court found that the bus drivers’ failure to help plaintiff disembark was negligence which was the proximate cause of her injuries, that the passengers were unruly in disembarking and that the. failure of the driver to take any action was negligence which too was a proximate cause of appellee’s injuries. From a judgment for $2,750.00 the bus company appeals contending among other things that there is no evidence to sustain the trial court’s findings.

The record shows that Mrs. Goodsell was 68 years of age and weighed about 195 pounds. In the fall of the year before the accident on October 20, 1967, Mrs. Good-sell had earned $150.00 picking cotton. She testified that she pulled up to 400 pounds a day. She purchased her ticket from the bus company in Conway for a trip to Panama City and return. That on her way back from Panama City, when the bus reached Jackson, Mississippi, the passengers were informed that they would have to change buses. She was sitting on the left hand side in the second seat back of the driver. Her testimony is that the passengers all rushed to get off. The bus driver was standing outside the door in a position to help folks disembark. She had testified that the aisle of the bus was lower than that portion where the passengers sit. After she thought all the passengers had gone, she got up, reached above her head to the rack where she had a brown bag and that as she was turning to step down, to the aisle, she was bumped by one of the passengers to such an extent that it caused her to fall. The only description in the record with reference to the package is Mrs. Goodsell’s description — i. e., “I just had a light package to carry.” Other testimony of Mrs. Goodsell shows that she was helped on the bus by the bus driver when she boarded in Panama City and again at Mobile.

The general rule is that a carrier will not be held liable for injuries to passengers caused by the negligent or meddlesome conduct of other passengers, unless the carrier has notice of such conduct and reason to anticipate that injury may result therefrom. See Chicago Rock Island and Pacific Railway Company v. Brown, 111 Ark. 288, 163 S. W. 525 (1914) and annotation, 140 A. L. R. 1194. Under the foregoing rule there is no evidence to sustain the findings of the trial court for there is obviously no testimony to show, that the carrier had notice of such conduct or reason to anticipate that one passenger would bump against another so severely as to cause the injuries here involved.

Appellee, to support the finding of the trial court, relies upon Payne v. Thurston, 148 Ark. 456, 230 S. W. 561 (1921). There the gravamen-of the carrier’s negligence was in starting the train before the passenger had time to disembark. Here the testimony shows without contradiction that the bus was stopped and that the bus driver was standing in a position to assist the passengers in disembarking. Furthermore, the gravamen of the offense here is the negligent or meddlesome conduct of another passenger without which no injury would have occurred.

Reversed and dismissed.


text:
    FINANCIAL SECURITY LIFE ASSURANCE CO. v. Birtie L. POWELL
    5-5059
    447 S. W. 2d 64
    Opinion delivered November 10, 1969
    [Rehearing denied December 8, 1969.]

      Pope, Pratt, Shamburger, Buffalo & Ross; By: Pat Moran, for appellant.

      Wendell Utley, W. D. McKay and Larry W. Chandler, for appellee.
   Conley Byrd, Justice.

The above styled appeal is affirmed for noncompliance with Supreme Court Rule 9 (d), appellant having failed to abstract the complaint, answer, decree and doctor’s report upon which it relies.

Affirmed.


author: Frank Holt, Justice.

text:
    Thomas M. MUNN v. Lillian RATELIFF
    5-5022
    446 S. W. 2d 664
    Opinion delivered November 10, 1969

      Basil H. Munn, for appellant.

      Tompkins, McKenzie & McB,ae, for appellee.
   Frank Holt, Justice.

Appellee stopped appellant from using a one-half mile road which tráverses appellee’s enclosed lands from a highway to appellant’s unoccupied lands. The appellant then sought a mandatory injunction to require appellee to remove her gate across the road and to enjoin her permanently from maintaining the gate or in any manner interfering with appellant’s use of the road. Appellant alleged the road is a public one. The appellee denied that the road was a public way and asserted that it had been abandoned for many years and that she had regularly maintained the fence or gate across the road for more than seven years. By counterclaim the appellee alleged that the boundary-line fence between them at the other end of the road was a partnership fence and that appellant should be required to keep the gate in this fence closed. In his reply appellant asserted that he was the sole owner of this fence and gate since they were located upon appellant’s lands.

The court found: “That said road is not now and has not been a public road for more than 10 or 11 years; that a gap or gate was erected by the Defendant [appellee] across said road some 10 or 11 years ago and the use of said road thereupon became permissive and prescription ceased and that Defendant [appellee] has the right to maintain said gate across said road and to lock said gate, and that Plaintiff [appellant] should be restrained from using said road without the permission of the Defendant [appellee.] The Court further finds that the fence and gate on the Defendant’s [appellee’s] south boundary line between her lands and the lands of the Plaintiff [appellant] is a partition fence and gate and must be maintained by both parties.”

The court restrained and enjoined the appellant from the use of the road without appellee’s permission and further ordered the appellant to keep closed the partnership gate which is located where the road stops at appellant’s property.

For reversal appellant first contends- that the findings of the chancellor that the road is not now a public one and that any prescriptive public rights in the road have been abandoned for more than seven years are against the preponderance of the evidence. In our view the chancellor is correct.

Appellee and her husband purchased their lands in 1952 from other members of appellee’s family. This was her homeplace and she had resided there “off and on” all of her life. In 1958 .appellee and her husband, now deceased, moved into a house on their property. In 1966 appellant acquired the adjoining and unoccupied lands with the intention of operating a poultry and cattle business. To facilitate this business venture he deemed it necessary that poultry and feed trucks be permitted to use the “access road” across appellee’s lands to his property. The appellant lives about one mile from the land he had purchased. It appears that no one has lived on this land since 1961. Appellant’s predecessor in title, his uncle, testified that he acquired the land in 1953 and except for some weekends and a six-week period in 1957, he did not reside there.

Many years ago this road forked at appellant’s boundary line with one prong turning west .along the north line of the land now owned by appellant and the other crossing his land. Gradually people moved from this area and it is undisputed that for the past 15 to 20 years the road has stopped at appellant’s and appellee’s common boundary line.

There was evidence adduced on behalf of appellant that this half-mile road extending south from a highway and across appellee’s land to appellant’s north boundary line was the only suitable means of reaching appellant’s land; this was the only road “that a car could travel;” the road had been used by the public for the past 20 years or more; the road was worked regularly by the county from 1945 to 1952; the county “bladed” the road a “couple of times and maybe more” from 1953 to 1966 when appellant’s uncle, or predecessor in title, owned the land; the road was worked by the county as recently as 1964; a school bus had used the road; the gate to which appellant objects was first erected across the road in June 1964 with permission of appellant’s predecessor in title as an “accommodation” to appellee’s husband; and this gate was never continuously closed.

The appellee introduced evidence that appellant has access to his property by a passable road which he has used in the, past; no one has lived on the land now owned by appellant for any appreciable length of time since 1952; the road has not been traveled by a school bus since 1954 and then no further than up to appellee’s family home; the road has not been used by the general public for the past 20 years and that during this time the road goes no further than to appellant’s adjoining property line; that the only use of the road in recent years has been occasional use by hunters and then with permission; that the gate now maintained by appellee was erected by her father many years ago; that in the distant past this wire gap was sometimes open and sometimes shut and that the gate has been in the same location for over 30 years; and that appellee has kept this gate closed regularly since 1958. A neighbor of both parties testified that from his personal observation there had been a wire gap across the road since 1931 when he moved into the area and that appellee began closing the gate on a regular basis 10 or 11 years ago. Appellee’s lands are enclosed.

The rule is well established that when a gate is maintained for more than 7 years across a road in which the public has a prescriptive easement, then it is deemed that the public has abandoned the road and the landowner has the right to close it permanently and restrict the road to permissive use. Brooks v. Reedy, 241 Ark. 271, 407 S. W. 2d 378 (1966); Nelms v. Steelhammer, 225 Ark. 429, 283 S. W. 2d 118 (1955); Mount v. Dillon, 200 Ark. 153, 138 S. W. 2d 59 (1940); Porter v. Huff, 162 Ark. 52, 257 S. W. 393 (1924). In these cases yre recognized the rule that the installation of the gap or gate was notice to the public that the road was being used by permission and not as a matter of right. It is the existence of the gate and not how continuously it is closed that constitutes notice. In Brooks v. Reedy, supra, we said: “* * * But it is, we think, clearly established that the gates were in existence at all times from 1952 on, whether up or down.” And further: “* * * It may well be that those using the roadway did not always put up the gaps; however, be that as it may, the important fact is that the fence and gates were in place for the statutory period, and, under the language in Mount v. Dillon, supra, the fact that the gates were not always closed does not make any difference.”

In the case at bar the chancellor had the opportunity to see and hear the witnesses in evaluating the evidence which was in conflict. In such a situation our rule is that when the evidence is conflicting and evenly poised or nearly so, the judgment of the chancellor on the question of where the preponderance of the evidence lies is considered as persuasive. Turnage v. Matkin, 227 Ark. 528, 299 S. W. 2d 831 (1957). In view of this well established rule and after a review of the testimony and exhibits presented in the case at bar, we cannot say the findings of the chancellor are against the preponderance of the evidence.

Appellant next asserts that Ark. Stat. Ann. § 37-109 (Repl. 1962) “ought to apply to this road.” He argues that by the terms of this statute the public rights to this road cannot be abandoned or in other words, once a public road always a public road until closed by a county court order. We cannot agree. We construed this statute in Raney v. Gunn, 221 Ark. 10, 253 S. W. 2d 559 (1952) and there held that the public could abandon any prescriptive rights it had acquired to a road. Appellant insists that we should now overrule this case. We adhere to the decision in that case.

The appellant also contends that the trial court erred in dismissing “appellant’s complaint for want of equity when he had a right, by reason of his special interest in the road, to maintain his action.” We find no merit in this contention. Apparently this argument is predicated on the basis that the road across appellee’s land is appellant’s only means of ingress and egress to and from his land. There was evidence that appellant had other access to his property although not as desirable to him. We agree with appellee’s answer to this point where she stated: “His complaint was dismissed for want of equity — not because he had no legal right to institute the action — but because the court found the road had been abandoned as a public way, if it ever was one, and that appellee had the right to close the road.”

Appellant further contends that the court erred, in requiring the appellant to keep the gate closed at the other end of the road or where the road meets the fence that separates these adjoining lands. On this point we agree with the appellant. In his pleadings appellant asserted that he was the sole owner of this fence. According to the evidence, the appellant constructed on his land a new fence “inside of the old partnership fence.” Upon cross-examination the appellee admitted there was a double fence and that the new fence and the gate are upon appellant’s land and inside the old boundary-line fence. Even though this be true, it does not preclude the appellee from’ constructing and maintaining a gate or enclosure upon her property or along their common boundary line.

The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Affirmed in part and reversed in part.


author: Carretón Harris, Chief Justice.

text:
    Quincy T. MOORE v. STATE of Arkansas
    5427
    447 S. W. 2d 124
    Opinion delivered November 17, 1969

      E. V. Trimble, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Carretón Harris, Chief Justice.

This appeal questions the sufficiency of the evidence to sustain a conviction on a charge of burglary and grand larceny; it is also contended that the testimony of an accomplice was not corroborated. Quincy T. Moore received a sentence of eight years upon the two charges, five for burglary, and three for grand larceny, the sentences to run consecutively. Evidence on the part of the state consisted of the testimony of Theopolis T. Green, the accomplice, Sheriff Courtney Langston, M. B. Brannon, a deputy sheriff, L. A. Gannon, Thomas Ishmael, Willie Reeves, and Glen McLendon. The burglary apparently took place on Sunday, April 30, around 10:00 or 10:30 A.M. Green testified that he and Moore went into the home of Ishmael, after Moore stated that the people were away from the house, and took several articles. Green took a shotgun, rifle, and two silver dollars. He did not see Moore take a pistol, but the two went to the home of Gannon, and pawned one of the guns for $10.00. Gannon said that Green and another man came to his house for the purpose of pawning the gun, and he “believed” that Moore was the person accompanying Green. Willie Reeves, a grocery store operator, living about 2Va miles from Ishmael, testified that he saw the two between 9:30 and 9:45 A.M. on Sunday morning at his store, and that they were riding in a Ford automobile with a racing stripe down the side of it. Ishmael stated that he left home on April 30, and when he returned from Sunday School, he found his house ransacked, and the two guns and a pistol missing. Glen McLendon, about 10:00 A.M. on the Sunday morning, observed a Ford with black marks on the side parked between two houses near Ishmael’s home. After the arrest of Moore, appellant’s father brought the pistol to the sheriff’s office.

Moore denied going into Ishmael’s house, but admitted that he was with Green when the two went to Gannon’s home. Appellant said that Green unlocked the trunk of his ear, got out a gun, and they went to the house where Green pawned it. After his arrest, Moore told the sheriff that the pistol was at his (appellant’s) house, and appellant told his father to deliver it to the sheriff. Appellant said that he told the officer that Green had left it at his (Moore’s) home. The evidence was clearly sufficient to sustain a conviction.

As to the contention that Green’s testimony was not corroborated, it might first be said that there was no request by appellant for an instruction concerning the evidence of Green, and we have held that it is the duty of a defendant to make such a request of the court, if he desires an instruction of the law as to an accomplice, and, if no request is made, the matter cannot be complained of on appeal. Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50.

Be that as it may, Green’s testimony was sufficiently corroborated. Appellant’s presence in the vicinity of the burglary, and with Green, at the approximate time of the burglary, has already been mentioned. Mainly, Moore was in possession of the stolen pistol, and, after being arrested, asked his father to deliver it to the officers. These facts were entirely independent from Green’s statement, and they connected Moore with the crime.

We find no merit in appellant’s contentions.

Affirmed.

      The pistol is referred to in the record, both as a .32 caliber, and as a .38, but it is clear that these references are to the same pistol.

      Gannon testified that it was pawned for $11.75.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice,

text:
    FOUNDATION SECURITIES CORPORATION et al v. Hardy A. PITTARD
    5-5026
    447 S. W. 2d 324
    Opinion delivered November 17, 1969
    [Rehearing denied December 22, 1969]

      Howell & Price, for appellants.

      Cooper Jacoway, for appellee.
   George Rose Smith, Justice.

This action was brought by the appellee Pittard to recover a $15,000 real estate agent’s commission for having sold a tract of land in Little Rock for the appellants, Foundation Securities Corporation and a companion company. The defendants denied liability on the ground that Pittard’s right to a commission was contingent upon the actual closing of the sale — an event which admittedly never took place. The trial court granted the plaintiff’s motion for summary judgment upon the pleadings and affidavits on file. For reversal the appellants contend that there are questions of fact about whether the sale could have been closed without the consent of the Little Rock Housing Authority.

The facts, as might be expected in view of the summary judgment, are for the most part undisputed. Foundation Securities orally employed Pittard to find a purchaser for the land. Pittard succeeded in interesting Gus B. Walton in the property at the stipulated price of $265,000. On- March 23, 1965, two contracts were signed. First, Walton paid Foundation Securities $5,000 for a written option to purchase the land. Second, Foundation Securities signed and delivered to Pittard the two-sentence contract now sued upon:

In consideration of services rendered by Harry A. Pittard in the sale of [the land] the undersigned agrees to pay Mr. Pittard a commission of Fifteen Thousand Dollars ($15,000.00). This commission to be payable upon closing of the sale to Grus B. Walton.

Both sides agree that the insertion of the specific requirement that the sale be closed takes the case out of the usual rule that a real estate agent earns his commission merely by producing a person ready, willing, and able to buy the property. Pittard insists, however, that the sellers arbitrarily refused to close the sale and accept Walton’s money, thereby waiving the condition in Pittard’s contract. Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35 (1908).

There is, however, another condition to be considered, which brings us to the crux of the case. According to the record, the sale from Foundation Securities to Walton may have been contingent upon the approval of the Housing Authority, from which Foundation Securities had acquired the property. Two documents in the record indicate the necessity for the Housing Authority’s consent: One, Walton’s option recited that the sellers would obtain from the Housing Authority such permissions, consents, and .approvals as might be required to enable the sellers to consummate the transaction. Two, the counter-affidavit of Lyle Bettis, an officer of Foundation Securities, states that Pittard’s commission was upon condition that the sale to Walton be closed, and goes on to explain: “The reason for the condition . . . being that the property could not be sold without the approval of the Little Rock Housing Authority and could not be sold for a profit.”

At the oral argument Pittard’s attorney insisted that the quoted language in the Bettis affidavit should be disregarded, because it states merely a reason rather than a fact. A fact, however, may be stated in the form of a reason, as when we say: “The cause of action abated upon the plaintiff’s death, the reason being that the plaintiff had only a life estate in the land.” Moreover, on motion for summary judgment the testimony must be viewed in the light most favorable to the side resisting the motion; so any uncertainty must be resolved in favor of the appellants. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261 (1964).

We conclude, therefore, that there is a question of fact whether the Housing Authority’s approval was essential to the consummation of the sale. Even so, Pittard insists that the appellants cannot shield themselves behind the Housing Authority’s nonconsent to the sale, because, Pittard argues, that obstacle was eliminated in a suit brought by Walton for specific performance of his option to buy.

This particular point is pivotal. The record shows that Walton filed suit against the sellers for specific performance of the contract. The Housing Authority was not a party to the case. The sellers’ answer interposed several defenses, one being that the Housing Authority had not approved Walton’s option to purchase and had advised the parties that it would not approve any transfer or conveyance of the property prior to the completion of certain improvements that had not then been made.

The evidence in the earlier case was not brought into the present record. The decree made no findings of fact whatever, merely reciting that Walton was entitled to a decree directing the sellers to specifically perform their contract. The sellers gave notice of appeal, but Walton died before the appeal was perfected. According to the Bettis affidavit, after Walton’s death “the heirs were unwilling to complete the sale, the Housing Authority never gave permission for the sale at the purchase price of $265,000.00, and the sale was never completed to Gus Walton or his heirs.” Apparently the heirs and the sellers abandoned both the suit and the sale.

Upon this point Pittard argues that when Walton sued for specific performance “he irrevocably elected to pursue that remedy and irrevocably abandoned his option (in the contract) to call the contract at an end and to secure his money back. Bigger v. Glass, 226 Ark. 466, 209 S. W. 2d 641 (1956); Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107 (1922). So, when Gus Walton filed suit for specific performance, he gave up his right to call the contract at an end. Since he did not have that right, his heirs, who stood in his place, possessed no greater rights than he did.”

The appellee, we think, misconstrues the scope of the doctrine of election of remedies, discussed in the two cases cited. True, when a plaintiff sues for specific performance he cannot, over the defendant’s objection, dismiss that case and bring suit for damages instead. It does not follow, however, as the appellee argues, that the mere filing of the first suit irrevocably commits the plaintiff to purchasing the property — so much so that he cannot change his mind and drop the whole transaction.

To the contrary, it is plain enough that, just as in any contested lawsuit, the plaintiff is always at liberty to abandon the pursuit of his cause of action. In fact, that point was clearly recognized in the Belding case, where we said that an election, once made, cannot be withdrawn “without due consent.” Hence, with the defendant’s consent, the plaintiff can change from one remedy to the other. It is even plainer that he can withdraw from the litigation altogether if he chooses to do so, with or without his adversary’s consent.

As we have seen, the Housing Authority’s approval of the sale may have been required. Upon that point, to say the least, a question of fact is involved. The plaintiff, in asking for a summary judgment in the court below, had the burden of eliminating that question of fact from the case. “A motion for a summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment.” Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435 (1965).

Here the appellee has not met that burden. Even after the entry of the decree in the earlier case Walton might have become convinced that the chancellor’s decision had been wrong and would be reversed on appeal. In that situation he would certainly have been at liberty to drop the suit and surrender whatever rights he had under the option contract. Upon Walton’s death his heirs stepped into his place and may have acted in the manner we have suggested. Furthermore, the Housing Authority was not a party to that case; so if its consent to the sale was actually required, a contrary finding by the court would not have been binding upon the Authority. Upon the record as a whole we are convinced that the earlier decree, which was abandoned by the parties, does not satisfy Pittard’s burden of showing that the necessity for the Authority’s consent to the sale has been eliminated from the case.

Reversed and remanded for further proceedings.

Harris, C. J., and Holt, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I do not agree that a question of fact is presented in this litigation. The option agreement is composed of 13 sections, and to my mind, a reading of this instrument makes clear that its provisions .are almost entirely for the benefit of the optionee (Walton), and the only portion that is pointed out by appellant as supporting its argument (that there is a fact question) is found in Section 9, which provides that appellant agrees that it will, at its own expense, undertake to:

“(a) Obtain from the Housing Authority of the City of Little Bock such permissions, consents and approvals, in written form satisfactory to optionee, as might be required to enable Optionors to consummate this transaction and to assign and convey to Optionee. Said instruments shall assure, to Optionee’s satisfaction, that the lands conveyed may be used by him for the construction and operation of a motel, motor inn, motor hotel or other similar facility and such other businesses as are usually conducted in connection with such facilities. ’ ’

Appellant asserts that the italicized word means that it had to obtain permission from the Housing Authority before the transaction could be consummated; however, Subsection (c) provides that, if appellant fails to obtain permissions, approvals, and consents, optionee shall have the right, at his option, to take such steps as he may deem necessary to obtain same, and Section 10 sets out that, if the company is unable to obtain all consents, approvals, permissions, etc., and is unable to convey title in accordance with the terms of the contract, “then optionee shall have the right to terminate this contract of sale upon written notice of optionors * * In other words, it is up to Walton as to whether he still desires to purchase the property, even though the company is unable to secure the Housing Authority authorization.

Perhaps, if the option agreement and the affidavit of Bettis were the only evidence offered, it could be said that the provision emphasized hy appellant as creating a fact question (“as might be required to enable optionors to consummate this transaction”), is ambiguous, but a subsequent event, in my opinion, resolved this question. This event was the filing of a complaint by Walton on February 8, 1966, against appellant and Christian Foundation Life Insurance Company, wherein Walton, relying on Ms option agreement of March 23, sought specific performance against the defendants asserting, inter alia:

“Plaintiff has at all times been ready, willing and able to comply with his obligations under the contract between the parties; has expressed his readiness, willingness and .ability to the defendants; and has demanded that they comply with said contract and execute and deliver to him a conveyance of the property described above in accordance with the contract. Despite such demands, Defendants have failed and refused to comply with said contract and have breached same by refusing and continuing to refuse to convey said property to Plaintiff.”

Appellant answered, and for its defense, first alleged that Walton had not complied with the provisions of the option in that he had not exercised same within the time period allowed by that instrument. It was further asserted, inter alia, that the property was inadequate for the construction of Walton’s proposed improvements, and he had advised that he would not proceed unless the defendants agreed to sell him an additional tract of land not included in the option agreement. It was then asserted that the companies had written Walton, returning his $5,000.00; that new plans had been made by them, and that they had purchased for their own use a national motel franchise, and had incurred numerous expenses in connection with their own plans to build a motel. Numerous other defenses, however, not pertinent to the question at hand were pleaded, and finally in Section 9, in the next to last defense, appellant stated that the Little Rock Housing Authority would not approve any conveyance of the property prior to completion of required improvements, and it was impossible to convey title to Walton as contemplated in the option.

Thus, it is observed that the very defense raised in the case presently before us was presented in that litigation, but the court’s decree found that Walton was entitled to a decree, and it directed appellant (and Christian Foundation) to specifically perform the contract and deed the property to Walton upon the payment of the $260,000.00, and the redelivery of the $5,000.00. According to one of the affidavits, an appeal was taken by appellant, but never perfected, Walton dying some five months after the entry of such decree. Pittard’s affidavit sets out:

“I am informed and believe that Christian Foundation Life and Foundation Securities entered into an agreement with the heirs of Gus B. Walton, by which foundation Securities and Christian Foundation Life surrendered their right to collect the purchase money, in the amount of $265,000.00.”

Bettis’ affidavit states:

“Gus Walton died and the heirs were unwilling to complete the sale, and the housing .authority never gave permission for the sale at the purchase price of $265,-000.00. The sale was never completed to Gus Walton or his heirs. The condition precedent in the commission contract was never met.”

Appellee’s agreement with appellant concluded, as follows:

“This commission to be payable upon closing of the sale to Gus B. Walton.”

I think that as far as Pittard’s rights áre concerned, the sale was closed. The court, in rendering the decree for Walton, necessarily found that he had exercised his option in time, and was willing and .able to carry out his part of the agreement, and that the agreement to convey was not conditioned upon approval by the Housing Authority. It is thus apparent that the dear would have been actually closed, except for appellant’s action in refusing to convey. The language in Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35, is particularly apropos in this case. There we said:

u* * * And when appellee, by dismissing his suit in chancery to enforce the contract, virtually refused to collect the purchase money, he immediately became liable to appellant for his commission.”

Any agreement between Foundation Securities Corporation and Walton’s heirs could not deprive Pittard of his commission, for the commission was certainly earned no later than when the court entered its decree finding that appellant would not convey. Whatever disposition was made of the appeal is immaterial, since it is established that the appeal was not perfected, thus leaving the Chancery Court’s decree in full force. That decree in effect, found that the only reason the agreement between appellant and Walton had not been closed was because the company refused to do so. Under his agreement, Pittard is entitled to his commission.

I respectfully dissent.

Holt, J., joins in this dissent.

      My emphasis.

      The only fact in connection with the Chancery Decree that could have had any effect would be that the decree was set aside, either at the instance of Walton, or by the court, and if this were done, appellant should have — and undoubtedly would have — included such fact in its affidavit.


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    Bertha L. CRAIG, Ex’x v. Mrs. Jessie HICKMAN
    5-5054
    447 S. W. 2d 120
    Opinion delivered November 17, 1969

      Giles Bearing, for appellant.

      Harold Sharpe, for appellee.
   Lyle Brown, Justice.

During the last sixteen months of the life of the testatrix, Mrs. Lillian Rowland, her daughter, Jessie Hickman, lived with Mrs. Rowland, assisting with her business affairs, and rendering nursing services. The trial court allowed Mrs. Hickman’s claim for reimbursement of personal funds she used to pay Mrs. Hickman’s bills and disallowed her claim for personal services. Bertha L. Craig, Executrix, appeals from the allowance for reimbursement. Mrs. Hickman cross-appeals from the court’s denial of her claim for personal services. The principal issues involve the sufficiency of the evidence and the admissibility of Mrs. Hickman’s testimony under Section 2 of the Schedule of the Arkansas Constitution, commonly known as the dead man’s statute.

Mrs. Rowland was the owner and operator of a motel in Forrest City known as the Texas Court. In about 1963 Mrs. Rowland’s physical condition became such that she was unable to do all the work incident to the operation of the business. From then until 1966 Mrs. Bertha Craig and her daughter, Mrs. Bigenault, stayed at the court and assisted Mrs. Rowland. During that time Mrs. Rowland’s daughter, Mrs. Jessie Hickman, was temporarily residing in California. Her occupation was that of a registered nurse and her husband was a practical nurse. On a short visit back to Forrest City in January 1966, Mrs. Hickman was advised that Mrs. Craig and Mrs. Bigenault would have to relinquish their responsibilities with, respect to Mrs. Rowland. Thereupon the Hickmans returned to Forrest City so that Mrs. Hickman could attend to her mother and assist in the business of the motel. Those were Mrs. Hickman’s principal activities from February 1, 1966, until her mother died on June 1, 1967.

During the period of performing the described responsibilities, Mr. and Mrs. Hickman were jointly nursing a Mr. Henry, who was apparently an invalid requiring rather close attention both day and night. For those services the husband and wife team received a salary of $800 per month and an allowance of $300 monthly for Mr. Henry’s expenses. Mr. Hickman performed the majority of services required by Mr. Henry, while Mrs. Hickman divided her time.

The Hickmans carried a personal checking account with the First National Bank of Wynne and it was in that account they deposited their emoluments from Mr. Henry. Mrs. Rowland had a business account at the First National Bank of Eastern Arkansas in Forrest City. That account was in the name of the Texas Court. Mrs. Rowland had a separate personal account which is not here involved.

During Mrs. Hickman’s sixteen months experience at the motel, she allegedly spent considerable moneys from her bank account and from moneys borrowed. She justified those expenditures on the grounds that the motel was operating at a loss, that Mrs. Rowland’s drug bills were very substantial, and that considerable repairs were required to be made on the motel. As result of those expenditures Mrs. Hickman filed a claim against Mrs. Rowland’s estate. That claim may be divided into four parts and they will shortly be enumerated.

Considerable confusion in accounting resulted from the fact that the two bank accounts were used interchangeably and on more than one occasion both accounts were out of funds. Mrs. Hickman apparently tried to write checks on the particular account which at the time showed the better balance. Nevertheless business and personal withdrawals were made from both accounts, and the trial court wisely appointed a master to audit the accounts.

The trial court, .after hearing considerable evidence, inspecting some 275 exhibits, and having the benefit of the detailed findings of the master, came to these conclusions :

(a) The claim for $4,500 for moneys deposited to the Texas Court from personal funds was reduced to $4,152.35 and allowed; (b) the $997.12 claim for drugs was allowed in the sum of $802.90; (c) Mrs. Hickman claimed $2,799.64 for reimbursement because of bills paid for Mrs. Rowland from Mrs. Hickman’s personal account, and that amount was reduced to $1,252.29 .and allowed; (d) a miscellaneous claim for $95.09 reimbursement was allowed in full; .and (e) Mrs. Hickman’s claim for $3,800 for personal services was disallowed in toto.

The findings of the trial court that Mrs. Hickman actually expended from personal funds and for the benefit of Mrs. Rowland the amounts designated cannot be said by this court to be inaccurate. If those claims have been legally established, then we must affirm on direct appeal. More specifically, we must determine whether Mrs. Hickman’s claims for expenditures are barred by Section 2 of the Schedule of the Arkansas Constitution, commonly referred to as the dead man’s statute:

In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party. Provided, further, that this section may be amended or repealed by the General Assembly.

First we consider Mrs. Hickman’s claims other than the one for personal nursing services; the latter item will be treated in our discussion of the merit of the cross-appeal. Appellant contends that Mrs. Hickman’s testimony violated the rule against a claimant testifying as to transactions with Mrs. Rowland.

With respect to Mrs. Hickman’s testimony, she did not testify as to conversations with, or any directions from, her mother. She was permitted to relate that she had extensive and needed repairs done to the motel; that she negotiated personal loans and deposited the proceeds in the motel account; that she paid current bills, both personal and business; that she purchased such medicines and related needs as were prescribed by the doctors; that she personally handled the motel registrations and deposited the funds to the motel account; that she made purchases of groceries and miscellaneous items she considered necessary; and that she hired and paid the needed personnel for the motel. For practically all those expenditures and receipts she introduced receipted bills, cancelled checks, or deposit slips.

Because of the relationship of the parties and the recited nature of the transactions made, we do not think the testimony prohibitive under the statute. We had this to say in Cline v. Miller, 239 Ark. 104, 387 S. W. 2d 609 (1965):

But the personal transaction or communication of the statute, no doubt, means a transaction or communication face to face, or by the parties in the actual presence and hearing of each other.

Appellant contends that the estate is not liable to Mrs. Hickman because there is no evidence of any contract authorizing her to make the claimed expenditures. The payments were made under circumstances from which the law implies an obligation to repay. Admissible evidence shows that appellee was placed in charge of Mrs. Rowland’s affairs. The bank, the doctor, contractors, and suppliers, all recognized an agency relationship between the two women by which Mrs. Hickman acted generally for her mother in numerous transactions. It is not seriously contended that the items for which the probate judge made allowances were unreasonable, unnecessary, or nonbeneficial to Mrs. Hickman; in fact, the great weight of the evidence is to the contrary. In such a situation the law implies an obligation of reimbursement. See 58 C. J. S. Money Paid, § 1-4 3.

Appellee cross-appealed from the refusal of the trial court to allow her claim for personal services in caring for Mrs. Rowland and for operating the courts. First, we eliminate from consideration the testimony of appellee wherein she related her nursing services, running of errands, and general attendance to Mrs. Rowland’s other personal needs. The numerous objections to that testimony should have been sustained as violative of Schedule, § 2 of the Constitution. Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75 (1941). Other testimony on those points was relatively scant. Cross-appellant produced witnesses who verified her presence at the courts for a considerable time and because of their intermittent observations had some knowledge of the assistance she rendered. However, we do not think the services established by competent evidence were of such extraordinary character as to give rise to an implied contract for payment. Other factors contribute to this conclusion. During the entire period Mr. and Mrs. Hickman continued to receive the salary and expense allowance for caring for Mr. Henry. Mrs. Hickman testified that occasional extra help was supplied to assist Mr. Hickman; however, we are not advised as to the period of time or the account from which that expense was paid. Maid service and extra nursing help were provided the courts and Mrs. Rowland and at the latter’s expense; Mrs. Hickman was free to judge when those services were needed. Mrs. Hickman was still able to devote some time to Mr. Henry’s needs and to be with her husband daily if desired. It is also noteworthy that Mrs. Rowland was not a home bed patient until the last few weeks of her life; there is evidence that prior to that time she drove her own car and visited in Georgia, Alabama, and Florida. It is also noted that Mrs. Rowland deeded to her daughter a lot adjacent to the Texas Court. The value is not shown but there was located thereon a garage and filling station.

The law presumes that services rendered by a daughter to a mother are gratuitous, arising from natural love rather than hope of pecuniary reward. Hence the daughter has the burden of establishing at least an implied contract for payment. Williams v. Walden, 82 Ark. 136, 100 S. W. 898 (1907) Russell v. Baumann, 239 Ark. 830, 394 S. W. 2d 619 (1965). Services by a child to a parent may give rise to an implied contract if those services are of such extraordinary character “that the parent would not expect a child under the circumstances to render such services without compensation.” Lineback v. Smith, 140 Ark. 500, 215 S. W. 662 (1919). Because of the circumstances we have enumerated, and the absence of substantial competent testimony, we are unable to say that Mrs. Hickman overcame the presumption.

Appellant complains because the trial court taxed one-half of the master’s fee against her. The question is raised here for the first time; additionally, the point is not argued.

Affirmed on appeal and cross-appeal.


text:
    Mary Aline O’DELL v. Claud D. O’DELL
    5-5057
    447 S. W. 2d 330
    Opinion delivered November 17, 1969

      N. M. Norton, for appellant.

      Fletcher Long Jr., for appellee.
   John A. Fogleman, Justice.

The question involved in this appeal is whether a letter written by the chancellor constituted a decree, so that the court could not change the terms thereof after the expiration of the term during which the letter was written. The chancellor, Judge George Eldridge, heard this divorce proceeding, the third in a series involving the same parties, on July 5, 1968. On the following day he directed the following letter to the attorneys then representing the respective parties:

“In connection with the testimony heard this date in the above cause, the Court makes the following findings:
1. The plaintiff, Mary Aline O’Dell, has an inchoate right of dower and homestead in the 29 lacres running along Kittel Road, including the acre on which the house is located, and this will be converted in the decree to a tenancy in common. Plaintiff will be given the right to occupy the homestead with the minor children of the parties.
2. The parties to this action now own as an estate by the entirety the lands on East Broadway on which are located both the filling station and the studio.
3. The Court does not find that either is the guilty party in this action.
The plaintiff will be granted a decree of divorce from the defendant, and the decree will incorporate the above findings. The decree will also require that the defendant make the monthly payment to the Veterans Administration and will make to the plaintiff bi-monthly payments, in two equal payments, beginning July 15, 1968, of the following sums: $150.00 child support for each of the children of the parties, and $150.00 per month alimony. Out of these payments the plaintiff will pay all utilities, automobile expenses and all other living expenses. The attorney for the plaintiff will be allowed a fee of $250.00, costs of this action to be borne by the defendant.
The decree will provide also that the plaintiff will provide major medical hospitalization insurance for the minor children.
All household furnishings in the residence will go to the plaintiff, and all professional equipment in the studio will go to the defendant.
The defendant will be allowed to take the children as dependents on his federal income tax return. Reasonable visitation rights will be provided. Mr. Long will prepare the decree, submit it to Mr. Patton for his approval as to form, and to me for my signature.”

"When the attorneys failed to present a precedent for a decree, Judge Eldridge, without hearing further evidence, prepared and filed the following decree on November 8:

“On this 5th day of July, 1968, this cause comes on to be heard upon the complaint and amendment thereto, the answer of the defendant, and this being the date regularly set for the trial, the parties are present in person, and the plaintiff by her attorney, Jim Patton, and the defendant by his attorney, Fletcher Long. Upon consideration of the record herein, including the testimony of witnesses and exhibits thereto, the Court finds as follows:
1. (Omitted as not pertinent.)
2. The plaintiff is entitled to a decree of absolute divorce and other relief as stated herein on the ground of three years separation without cohabitation, and the Court fails to find any misconduct by either party against the other such as to entitle either party to a divorce save upon the ground of three years separation without cohabitation.
3. The defendant is the owner of the following described real estate: * * * (Description of 30-acre tract which included one acre upon which dwelling house was located omitted.)
4. The parties to this action own by the entireties the following described property in the City of Forrest City, St. Francis County, Arkansas. * * * (Description of property on East Broadway omitted.) The Court finds that it is to the best interest of the parties that said property be hereafter held as tenants in common, and that to order a sale of the same at this time would jeopardize defendant’s ability to provide for the minor children and for the plaintiff, and if a partition is made and the property sold, this Court shall re-examine this decree as to the equities.
IT IS THEREFORE CONSIDERED, ORDERED AND DECREED that the plaintiff be and she hereby is granted a decree of absolute divorce from the defendant on the ground of three years separation without cohabitation, and without fault on the part of either party. The Court further orders the following as disposition of other property, custody, and property and maintenance rights of the parties respectively:
1. Plaintiff shall have custody of the minor children of the parties, subject to the defendant’s right to reasonable visitation, and shall have .a life estate to the one acre, more or less, described, in Paragraph 3, the same being the property mortgaged to U. S. Veterans Administration. The defendant will make the installment payments to the holder of the mortgage on said property, said mortgage payments to include payment of taxes and insurance on improvements only.
2. The property described in Paragraph 3 of the findings, less the described exemption is vested in the defendant free of any claims arising on account of dower and homestead in the plaintiff.
3. The property described in Paragraph 4 of the findings and formerly held by the entireties shall hereafter be held by the plaintiff and the defendant as equal tenants in common.
4. The defendant shall provide major medical and hospitalization insurance for the minor children by procuring .a policy of insurance adequate for such purposes at his own expense.
5. The defendant will pay to the plaintiff the sum of $150.00 per month for each child for support and maintenance, in addition to the residence house provided for them heretofore set forth, and will pay to the plaintiff the sum of $150.00 per month alimony and support for her own use and benefit. Said payment shall be made in equal semi-monthly installments on the first and fifteenth of each month hereafter, the first said payment being due and payable July 15, 1968. Plaintiff shall have custody of said children and may not remove them from the Court’s jurisdiction to reside without notice and hearing.
6. All household goods in the residence formerly occupied by the parties shall become the separate property of the plaintiff; all professional equipment and other property in the photographic studio occupied by the defendant shall be the sole and separate property of the defendant.
7. It is directed that the defendant will be permitted to enter the minor children of the parties as dependents on his Federal and State income tax returns.
8. The defendant will pay to plaintiff’s attorney the sum of $250.00 attorney fees, and such Court costs as may have been incurred by the plaintiff.
9. Other than as stated herein, each party is forever foreclosed from any property right in the possessions or real estate of the other which may have arisen by reason of the marital relationship. The Court retains the jurisdiction of this cause for such further orders as may be necessary or desirable with respect to visitation right of the defendant, support payments for the minor children, and alimony for the plaintiff, and for such purposes as may be necessary to enforce the continuing portions of this order.”

The letter was written during the June term of the St. Francis Chancery Court and the decree filed during the October term. On February 14, 1969, appellant filed her motion to set aside the November 8 decree, asserting that the letter of July 6 was a decree which could not be modified by the court’s decree filed November 8 because of the expiration of the June term of court. This motion was denied by the present chancellor. This appeal was taken from the order of denial.

It seems to be undisputed that the home in which the parties and their children resided together is located upon one acre of a 30-acre tract, the title to which is vested in appellee, and that the parties owned property on which appellee (usually with the assistance of appellant) operated a photographic studio and on which a gasoline filling station had been erected.

It should be noted particularly that the letter simply states that the parties hold the commercial properties as an estate by the entirety, without any specific indication as to whether that estate shall be continued or dissolved. It should also be noted that the chancellor did not there attempt to point out how the inchoate right of dower and homestead in the 29 acres would be converted into a tenancy in common and did not state the undivided interest to be vested in appellant or the duration of the tenancy. Seasonable rights of visitation of the children are not definitely fixed in either document, hut jurisdiction is retained in the decree actually filed to make appropriate orders in that regard.

We held in Thomas v. McElroy, 243 Ark. 465, 420 S. W 2d 530, that opinions and findings of a court do not constitute a judgment or decree but merely form the basis upon which the judgment or decree is subsequently to be rendered. We also said that a judgment must specify clearly the relief granted or other determination of the action. We cannot say that the chancellor’s letter met these requirements in that there are uncertainties at least as to dower and homestead rights, the disposition of the tenancy by the entirety and visitation rights.

We recognize the rule stated in cases such as Chatfield v. Jarratt, 108 Ark. 523, 158 S. W. 146; American Inv. Co. v. Hill, 173 Ark. 468, 292 S. W. 675; and Piggott Junior Chamber of Commerce, Inc. v. Hollis, 242 Ark. 205, 412 S. W. 2d 595, that there is a difference between pronouncement and entry of a judgment, the former being a judicial act and the latter a ministerial one. Those cases and others like them, such as Wright v. Curry, 208 Ark. 816, 187 S. W. 2d 880, recognize the rule that judgments not entered in a record book or noted on a docket are not void but may be entered nunc pro tunc, if it is clearly shown that the judgment of the court has been announced in open court or otherwise actually rendered. Here there is no indication that anything was done by the chancellor except to transmit his letter to the interested attorneys. This memorandum seems to have been written while the court was in vacation or recess and there is no indication that it was filed in the clerk’s office. As pointed out by the present chancellor, the letter of July 6 contained no order of the court, but constituted only a directive to counsel for preparation of a proper decree for entry.

Appellant relies strongly upon our holding in McConnell v. Bourland, 175 Ark. 253, 299 S. W. 44. Unlike this case, the trial judge there rendered judgment for the plaintiff for the amount sued for in a foreclosure suit and noted his action on the docket. He instructed the attorneys for the plaintiff to prepare a precedent; but when a dispute arose as to the rate of interest which applied, he refused to approve the precedent presented by plaintiff’s attorney, saying that the mortgage would have to be reformed to show that it secured the notes sued on, rather than those described in the mortgage. An amended complaint was then filed by plaintiff, seeking reformation. We held that the court had no jurisdiction to set aside its original judgment after the expiration of the term during which it was rendered. We said, as we did in Thomas v. McElroy, supra, that strict formality in language is not required, and that a “judgment” is to be tested by substance not form. We also said that a judgment is sufficient if the entry thereof shows that the issues between the parties have been passed upon by the court and the merits of the case finally determined. It must, we said, finally dispose of the issues between the parties and finally settle and adjudicate all the rights in controversy. It was also stated that the entries made by the judge in that case specified clearly the relief granted, after it was noted that our statute requires that a judgment must do so. See Ark. Stat. Ann. § 29-116 (Repl. 1962); C. & M. Dig. § 6276. We said that once a decision was reached, announced by the court and sufficient memorandum made on the chancery docket, it was a final judgment. We do not feel that the chancellor’s memorandum of findings here sufficiently specified, “the relief granted, or other determination of the action” to constitute a final judgment.

The order of the trial court is affirmed.

Appellant moved for allowance of costs of appeal and attorney’s fees thereon. After reviewing the record, the majority of the court feels that allowance should be made of costs of $163.15, enumerated in appellant’s motion, plus the cost of printing her brief, but that no allowance be made for attorney’s fees.