author: J. Fred Jones, Justice.

text:
    Alfred E. COX v. 555, INC
    5-6080
    489 S.W. 2d 14
    Opinion Delivered January 8, 1973

      Patten, Brown é Leslie, for appellant.

      Glenn F. Walther, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Alfred E. Cox from a decree of the Pulaski County Chancery Court dismissing a complaint filed by Cox against 555, Inc. for commissions alleged to be due and owing on an employment contract and in awarding judgment against Cox on open account for $218.16 as prayed in counterclaim filed by 555, Inc.

Mr. Cox alleged in his complaint that he was employed by 555 as a salesman from April, 1960, to January, 1970, under an agreement whereby he was to sell at wholesale prices, as set by 555, certain items of merchandise, and would receive as pay for his services and expenses 20% of the difference between the cost of such merchandise to 555 and the sale price received by 555 from its customers. Mr. Cox alleged that in January, 1970, a modification of the original employment contract was refused by him and that when he refused to agree that 2% for financing and 3% for advertising were properly chargeable as a part of the cost of the merchandise in computing the difference between costs and sales for the purpose of figuring commissions, his employment was terminated by 555. He alleged that upon the termination of his employment on December 15, 1970, he learned for the first time that 3% of cost was set aside for advertising and 2% of cost was set aside for financing, and that these amounts were wrongfully added to the cost of the merchandise in computing the gross profits upon which his commissions were paid. He alleged that during the course of his employment 555 had concealed the true cost of the appliances sold by its commission salesmen, including himself, and had thus fraudulently concealed the true amount of commissions due him. He alleged that unpaid commissions due him under the nine year period of his employment, would amount to approximately $31,000. He prayed for an accounting and for the appointment of a master to correctly compute the amount of gross profits on the sales made by him and upon which commissions should be paid to him, and he prayed judgment for all sums correctly due him.

555 answered by general denial and filed a counterclaim for $736.22 as alleged overpayment of advancement draws which were to be deducted from commissions due Mr. Cox. 555 also counterclaimed for $218.60 for merchandise allegedly purchased by Mr. Cox on open account.

After trial on the merits the chancellor dismissed Mr. Cox’s complaint for want of equity. He dismissed 555’s counterclaim for $736.22 in overpayment of commissions and awarded a judgment in favor of 555 for the sum of $218.60 on its counterclaim for merchandise purchased by Mr. Cox.

Mr. Cox has designated the following points he relies on for reversal:

“The Trial Court Erred in Holding that the Contract for Compensation was at the Rate of 20% of Gross Profits as Computed by Appellee Rather than 20% of Gross Profits.
The Trial Court Erred in Holding that the Customary Meaning of the Words 'Gross Profit’ could not be Considered as Evidence, and that Whatever the Company Considered Gross Profits to Mean is the Contract.
The Lower Court’s Apparent Holding that Appellee Could Add In Any Cost Item to the Cost Before Figuring Gross Profits is Error.”

The question in this case actually boils down to what constitutes “gross profits” upon which Mr. Cox was entitled to be paid a commission of 20%. Mr. Cox contends that it was his understanding the “gross profits” upon which he was to be paid a commission of 20% was to be the difference between the selling price and the cost of the merchandise laid down in the warehouse of 555, including freight to the warehouse.

555 contends that all the salesmen, including Mr. Cox, understood that the gross profit upon which the salesmen’s commissions were to be paid was determined by adding the cost of freight as well as other items including finance charges and advertising to the cost price which 555 paid to the factory, and the difference between the total of these cost items and the amount for which the items were sold to the retail customers of 555, constituted the gross profit of which the commissions were to be figured.

We shall not detail the testimony here, but Mr. Cox testified that he understood throughout the nine years he worked as a salesman for 555 that on all items of merchandise sold by him he was to receive 20% of the difference between the cost of the merchandise delivered to the warehouse of 555 and the amount for which it was sold to the 555 customers. He testified that he did not know that co-op advertising or finance charges were being added to the factory cost of the merchandise before deducting the cost from the final sale price for the purpose of figuring the commissions due him until just recently. He testified that he knew such charges had been made for a time but it was his understanding that they had been discontinued after the salesmen complained about the procedure. He testified that he complained about his monthly statements from time to time, and that he suspected all along that something other than freight and factory costs was being added to the cost of the goods before figuring the commissions, but that he did not know what the items were. Mr. Cox’s overall testimony is simply to the effect that he knew there was considerable operational expense in carrying on the wholesale business by 555, such as advertising, financing, floor planning, rent, etc., but that he did not know any of these items were being added to the factory cost of the merchandise before figuring his 20% commission on the final sales price.

The testimony on behalf of 555 was in support of its contention that the term "gross profit” meant the difference between the factory cost plus some of the business expense subtracted from the final sale price. According to the testimony of Mr. Huffsmith and other witnesses for 555, the items of expense which were added as a part of the cost to 555 varied from time to time as conditions changed, but all salesman were thoroughly familiar with, and were kept constantly advised as to, what items were carried as cost against profits in the figuring of “gross profits.” The witnesses for 555 testified that the reason for variation in arriving at gross profits, was because some customers paid cash immediately, whereas other customers, were financed on floor plans and were extended credit. They testified that it was necessary to take an actual loss on some items of merchandise and make up for the loss in added profits on other items, and that all of this was thoroughly discussed with the salesmen at regular monthly sales meetings. The witnesses for 555 testified that each salesman, including Mr. Cox, was furnished each month with a wholesale analysis and commission sheet showing the number and amount of sales of various items of merchandise and the gross profits derived therefrom upon which the salesmen’s commissions were figured. These sheets for the various months during Mr. Cox’s employment were offered in evidence and most of them show various items of expense deducted as a part of the cost of sales before figuring the gross profits.

As we view the overall evidence in this case, the question comes down to whether the chancellor’s finding was against the preponderance of the evidence and we conclude that it was not.

We are not unmindful that courts in other states have held that the term “gross profit” has a clear and precise legal meaning and has been defined as “the excess of the selling price over the cost price without deducting the expenses of resale and other costs of doing business.” (J. R. Gray Co. v. Jacobs, 362 S. W. 2d 167 [Texas 1962]). See also Hill v. City of Richmond, 26 S. E. 2d 48 (Va. 1943). In the case at bar, however, we are of the opinion that Mr. Cox knew that other items in addition to freight were being charged to cost for the purpose of determining “gross profits,” and that the exact nature of the items as well as the amount therefor was either known or available to him. We conclude, therefore, that after having accepted the commissions paid him over the nine year period of his employment and only complaining to his employer from time to time about the amount of his commissions, he is now estopped from contending that he has been defrauded out of commissions due him and entitled to an accounting therefor.

The decree is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Noel COCKRUM v. Margaret McCALLIE et al
    5-6090
    488 S.W. 2d 717
    Opinion delivered January 8, 1973

      Spitzberg, Mitchell ir Hays, for appellant.

      Botts ir Jenkins, for appellees.
   Conley Byrd, Justice.

This litigation between the children of Mary Cockrum, appellees Margaret McCallie, Truman Cockrum, Christine Xander, Jimmy Cockrum and Gene Cockrum and appellant Noel Cockrum arises out of a 1949 lease between Mary Cockrum and Noel Cockrum containing an option to purchase. A 1965 lease between the same parties did not contain the option agreement. The trial court held the option null and of no effect on the basis of estoppel and also denied Noel’s claim for betterments. For reversal Noel raises several points that we do not reach because under our view the option to purchase terminated or was rescinded upon the execution of the 1965 lease.

The 1949 lease after reciting that both Noel and his mother each owned an undivided one half interest provided:

“It is mutually agreed and understood that Noel Cockrum is operating the said farm and paying the customary rentals to the party of the first part, Mary Cockrum. It is mutually agreed and understood that as a part of the consideration for the lease contract on the land between the parties that Mary Cockrum agrees to bind herself, her heirs, executors, administrators or assigns to grant to Noel Cockrum an exclusive and prior option to purchase the undivided one-half interest of Mary Cockrum at any time within two years after the death of Mary Cockrum for the sum of $6,000.00 cash.”

Another paragraph of the lease agreed that [The Zeller] lands irrigated from the well on the property would be kept under lease for the benefit of both parties.

Thereafter the parties entered into a new $3,000 cash lease beginning as of January 1, 1965, and ending as of December 31, 1965, wherein Mary Cockrum assigned all of her rights in the Zeller Lease to Noel. This contained a year to year renewal in the absence of notice but made no mention of the option set out in the 1949 lease.

At the trial it was agreed that Mary Cockrum never executed the option in accordance with the terms of the 1949 lease. The record also shows that after the execution of the 1965 lease there was a family gathering in Clinton, Arkansas, at which time Noel mentioned the 1949 option. The appellees testified that when Mary Cockrum became disturbed about the matter, Noel offered to pay $18,000 for the land. Noel testified that he only offered $12,000. Mary Cockrum died in 1970, at the age of 93. This litigation arose after Noel recorded the 1949 lease and gave notice that he was going to exercise the option.

In Hicks v. Woodruff, 238 Ark. 481, 382 S.W. 2d 586 (1964), we pointed out that where a lease containing an option to purchase is terminated or rescinded, the option to purchase is also rescinded or terminated. In this instance the only consideration for the option was the 1949 lease. The 1965 agreement is a complete new agreement and contrary to Noel’s contention is not an extension of the 1949 agreement. Consequently the option in the 1949 contract was terminated or rescinded as a matter of law upon the execution of the 1965 agreement. See Spindler v. Valparaiso Lodge, 223 Ind. 276, 59 N.E. 2d 895 (1945).

The foregoing disposition of Noel’s alleged option makes it unnecessary for us to discuss the chancellor’s disposition thereof upon the ground of estoppel.

Noel also complains that the trial court erred in denying his claim for improvements. His proof showed the cost of building a reservoir and digging some ditches. No proof was introduced to show that the improvements enhanced the value of the land. On the other hand there was proof indicating that the reservoir and ditches were constructed to better make use of the Zeller Lease. Under the proof, we cannot say that the chancellor erred in denying the claim for improvements.

Affirmed.


author: Frank Holt, Justice.

text:
    Edward McNEILL v. Don H. PEAKER et al
    5-6003
    488 S.W. 2d 706
    Opinion delivered January 8, 1973

      Chambers ir Chambers and Keith, Clegg é Eckert, for appellant.

      Mahony ir Yocum and H. Derrell Dickens, for appellees.
   Frank Holt, Justice.

Appellant McNeill brought this action to cancel oil and gas leases which he had acquired on certain lands. He later assigned these leases to appellee Peaker. In these assignments, appellant reserved an overriding royalty in a percentage of the production. He received no cash or other consideration for the assignments. Peaker assigned the working interest to certain appellees, reserving also an overriding royalty interest, which he then assigned to others. This working interest was subsequently assigned by various appellees to other appellees who continued to produce some of the leases until the wells were abandoned and releases made to the original lessors.

Appellant alleged in his complaint (others by cross-complaint), as overriding royalty owner, that appellees had breached the implied covenants to reasonably develop and protect the premises from drainage by offsetting wells. It was alleged that such covenants are implied as a matter of law in an assignment in which the royalty reserve is a principal consideration. It is undisputed that the various assignments did not contain any express obligations or covenants of any kind. The chancellor sustained appellees’ motion for summary judgment.

On appeal appellant contends that the alleged implied covenants exist in favor of appellant, as an overriding royalty owner, and, therefore, the chancellor erred in sustaining the motion for summary judgment. Appellant asserts that “the motion for summary judgment involves the legal question of whether the covenants which the law implies in the ordinary oil and gas lease are necessarily implied in a sublease or assignment of an oil and gas lease in which royalty **** constitutes the principal consideration of the contract.”

We think the chancellor was correct. The law in our state does not recognize implied covenants on the part of an assignee of an interest in an oil and gas lease to an oil payment owner who is not a lessor. Henderson Co. v. Murphy, 189 Ark. 87, 70 S.W.2d 1036 (1934). Appellant contends that this case is not controlling in the case at bar inasmuch as an overriding royalty in a percentage of the production was retained rather than the reservation of a deferred oil payment. We cannot agree that this distinction is applicable. In fact, authority relied upon in Henderson holds contrary to appellant’s position. In construing our opinion in Henderson, we see no difference in an oil payment ownership and the overriding royalty in the case at bar. Both relate to the retention of a named interest in real estate as between an assignor and assignee. Furthermore, our holding in Henderson has become a longstanding rule of property law in this state. In assignments, such as these in the instant case, the assignor and assignee are usually experienced in the oil business and knowledgable enough to make certain any uncertainty by inserting provisions which protect the assignor’s interests if he deems it necessary. See Merrill, Covenants Implied in Oil and Gas Leases, 2d. Ed., § 186. Appellant’s “rights must depend, as said in Murdock v. Sure Oil Corp., 171 Ark. 61, 283 S.W. 4 [1926] ‘on the protection paragraph of the written assignment,’ and, there being no right **** here asserted, his action must fail.” Henderson Co. v. Murphy, supra.

We agree with the appellant, however, that “all pleadings and other voluminous matters in cases 9202 and 9290” were improperly included in the transcript over appellant’s objection. Accordingly, appellant is entitled to recover from those appellees responsible for the inclusion the asserted sum of $600 as being an unnecessary cost of the appeal.

Affirmed.


author: George Rose Smith, Justice.

text:
    RECTOR-PHILLIPS-MORSE, Inc. v. George Richard VROMAN
    5-6136
    489 S.W. 2d 1
    Opinion delivered January 15, 1973

      House, Holmes ir Jewell, by: Robert L. Robinson Jr., for appellant.

      Edward L. Wright Jr., for appellee.
   George Rose Smith, Justice.

The appellant, referred to by the parties as RPM, brought this suit to enjoin George Richard Vroman, a former RPM employee, from competing with RPM in Pulaski county for a period of three years after the termination of Vroman’s employment with RPM. This appeal is from a decree denying relief, upon the ground that Vroman’s employment involved no trade secrets and that the three-year restriction was unreasonably long.

Vroman, a real estate salesman, had been in RPM’s employ for a few years when the contract in issue was signed on February 1, 1969. RPM then had some 31 salesmen. W. F. Rector, RPM’s principal officer and stockholder, testified that eight of the best salesmen, including Vroman, were offered employment contracts as an inducement for them to stay with RPM. Those men were allowed to buy RPM corporate stock. Vroman, for example, bought $2,583.33 worth of stock, which he resold to RPM for $3,750 when he left the company.

By the contract RPM employed Vroman upon a commission basis for five years, subject to either party’s right to end the relationship upon 30 days notice. Vroman agreed that upon the termination of the contract for any reason other than its expiration he would not compete with RPM in Pulaski county in any way for three years. After two years and ten months of the five-year term Vroman resigned and went into the real estate business for himself, with two associates. This suit followed.

Our study of the record persuades us that there are compelling reasons for sustaining the trial court’s refusal to grant injunctive relief.

First, the chancellor’s conclusion that no trade secrets were involved is not against the weight of the evidence. Rector testified that valuable secret information was recorded upon indexed cards for about 350 commercial properties, 929 potential investors in land, about 2,500 residential units, and from 6,000 to 7,000 sales previously closed by RPM, making a total of about 10,000 cards or files. All RPM salesmen had access to the information, as needed in their work.

A trade secret may be defined as a “secret formula, method, or device that gives one an advantage over competitors.” Miller v. Fairfield Bay, 247 Ark. 565, 446 S.W. 2d 660 (1969). Here most of the information upon the cards cannot fairly be said to have been secret. With respect to commercial and residential property the cards showed data such as description, location, zoning, taxes, access to utilities and transportation, rentals, and similar facts. According to the proof, much of the information is always available from public sources, though not in such accessible and concentrated form as the RPM data. We conclude, as did the chancellor, that the card-indexed information was not secret. At best it was confidential, in the sense that no company engaged in business for profit voluntarily opens its records to examination by its competitors.

Secondly, the contractual restriction upon Vroman’s engaging in a rival business for three years was not reasonably necessary to protect RPM from unfair competition and would not actually achieve that result. About 10,000 cards were accessible to RPM salesmen. If each card, contained five items of information — a conservative estimate — Vroman had access to some 50,000 assorted facts. There is no suggestion that Vroman, in leaving RPM, either took any written data with him or attempted to memorize it. In fact, Vroman’s uncontradicted testimony is that he did neither. Needless to say, there is no showing, as there was in All-State Supply v. Fisher, 252 Ark. 962, 483 S.W. 2d 210 (1972), that the departing employee was able to use his former employer’s information to gain an unfair competitive advantage.

Moreover, there were no restrictions upon the right of 23 of RPM’s 31 salesmen to resign and enter into competition with RPM in Pulaski county. When Vroman left RPM he went into business with two other former RPM employees, who are not shown to have signed a contract like Vroman’s. Those two men had had access to the RPM cards. Thus an injunction against Vroman would not have protected RPM against the possibility that its data might be legitimately used by the newly organized real estate firm.

Thirdly, the three-year restriction was too long. Rector testified that a three-year period was selected because at the end of that time most of the information would be so out of date as to be relatively useless to a former employee. Rector, however, did not say that the data would actually be useful for three years or for anything approaching that length of time. The record suggests that the useful life of the information was far below three years. The cards were constantly being brought up to date to reflect changing conditions. It is not argued that a departing employee could retain 50,000 items of fact in his mind for three years, or even for three months. It is thus apparent that the three-year limitation was unreasonably long, and this is especially true in view of RPM’s power to terminate the agreement upon short notice. See Miller v. Fairfield Bay, supra.

Even though the three-year restriction is excessive the appellant argues that it is entitled to some lesser relief, a six-month injunction being suggested. This argument is based in part upon certain recent cases in other jurisdictions, to be discussed in a moment, and in part upon the following language in the Vroman contract:

"It is the intent of the parties to restrict the activities of Vroman only to the extent necessary for the protection of legitimate business interests of RPM and they specifically covenant and agree that should the above provisions, under any set of circumstances not now foreseen by the parties, be deemed too broad for that purpose that said provisions will, nevertheless, be valid and enforceable to the extent necessary for such protection.”

Our rule is that when a restriction such as this one is too far-reaching to be valid, the court will not make a new contract for the parties by reducing the restriction to a shorter time or to a smaller area. Brown v. Devine, 240 Ark. 838, 402 S.W. 2d 669 (1966); McLeod v. Meyer, 237 Ark. 173, 372 S.W. 2d 220 (1963).

We are firmly convinced that parties are not entitled to make an agreement, as these litigants have tried to do, that they will be bound by whatever contract the courts may make for them at some time in the future. Such a doctrine would confer upon the courts the power to make private agreements — a matter certainly not within the judicial province as it has been traditionally understood in our law.

The New York Court of Appeals has, in two cases, firmly and correctly rejected suggestions similar to the one now before us. In Stoddard v. Stoddard, 227 N.Y. 13, 124 N.E. 91 (1919), the parties to a maintenance contract in a divorce case inserted a clause purporting to authorize the court to modify the agreement to meet any material change in the circumstances of either spouse. The court quite properly refused to make a contract for the parties, saying:

“Thus we come to the question already outlined, whether the Supreme Court had jurisdiction to take hold of one of the provisions of this contract and determine the reasonable amount to be paid by one of the parties to the other and in that respect make a new agreement for them. We know of no principle, and we have been cited to no authority, which authorizes the court in this way, in effect, to write a clause in the contract for the parties. While the parties to this particular contract have attempted to agree that the court might exercise this jurisdiction, it really is not claimed that that agreement confers upon the court powers which it does not inherently possess. It seems to us that this case is not other than it would be if two parties making a contract for the sale of real estate at a fixed price, to be executed at some distant day, should provide that if conditions changed in the meantime the court should determine what would be a fair sum to be inserted in the contract as the purchase price of the real estate. We think it would scarcely be claimed with seriousness that the court could do this even on an agreement of the parties, and it does not seem that the present proposal is any different in its nature.”

A decade later, in In re Buffalo & E. Ry. Co., 250 N.Y. 275, 165 N.E. 291 (1929), the parties to a labor contract attempted to provide in the agreement that if a dispute arose a state arbitration board, which was part of the judicial system, might modify the contract. In holding that no such jurisdiction could be conferred the court said:

“No power exists in the courts to make contracts for people. They must make their own contracts. The courts reach their limit of power when they enforce contracts which parties have made. A contract that the court shall determine what an agreement shall be for the future is unenforceable, unless the lines of the agreement have been laid out by the parties. The most a court may do is to determine some incidental fact, as for example the reasonable value of property or services, and thereupon enforce the agreement, by judgment for damages, if not specifically, with such value written into it.”

The principles stated by the New York court are applicable here. It must be remembered that, in the absence of an agreement, an employer has no remedy in equity to restrain a former employee from engaging in a competitive business within a certain area or for a certain length of time. The remedy is based upon the contract and is nonexistent without it. Hence the present contractual attempt to agree upon whatever restriction may be valid and enforceable, if the parties’ covenant proves to be excessive, is in fact an attempt to delegate to the court the power to make a new contract, which the employer then seeks to enforce by an application for injunctive relief.

Our comments upon RPM’s contractually based argument apply equally to its alternative reliance upon certain recent decisions and textbook discussions. Those authorities take the position that even when the parties’ restrictive covenant is excessive and by its terms indivisible, the court should nevertheless grant injunctive relief to whatever lesser extent is found to be reasonable upon the facts of the case. Ehlers v. Iowa Warehouse Co., Iowa, 188 N.W. 2d 368 (1971); Solari Industries v. Malady, 55 N.J. 571, 264 A. 2d 53 (1970); Fullerton Lbr. Co. v. Torborg, 270 Wis. 133, 70 N.W. 2d 585 (1955); Corbin, Contracts, § 1390 (1962); Williston, Contracts, § 1660 (rev. ed., 1937); cf. Comment, 21 Ark. L. Rev. 214 (1967).

Such a practice of granting partial injunctive relief not only amounts, as we have seen, to a judicial rewriting of the parties’ contract; it also has a clear tendency to provoke unnecessary litigation. That is, even though the restriction is unreasonably far-reaching the employer has nothing to lose by going into court and seeking partial injunctive relief.

Williston, supra, suggests that the latter difficulty can be avoided “in part at least” by completely invalidating covenants that are deliberately unreasonable and oppressive. That solution is apt to be ineffective, for the employer, forewarned, has only to make a restrictive contract ostensibly within the outer boundaries of reasonableness to avoid the penalty proposed by Williston.

After studying the problem we are convinced that our prior decisions, refusing to rewrite contracts such as this one, are sound. We must therefore decline the appellant’s invitation to rewrite this contract, either directly, by giving effect to the parties’ agreement to accept whatever modification the court may find to be reasonable, or indirectly, by approving a limited injunction that would in effect enforce a contract that the parties might have made but did not make.

Affirmed.

Fogleman, J., not participating.


author: Lyle Brown, Justice.

text:
    James PIGG v. ASHLEY COUNTY NEWSPAPER Inc.
    5-6138
    489 S.W. 2d 17
    Opinion delivered January 15, 1973

      James M. Barker Jr., for appellant.

      Richard E. Griffin, for appellee.
   Lyle Brown, Justice.

This suit in libel was instituted by appellant for the publication by appellee of an unsigned letter to the editor. Appellant contended the article accused him of indecent exposure. The appeal is from the granting of a demurrer to the complaint.

In determining whether the content was libelous we must construe the entire article. Skaggs v. Johnson, 105 Ark. 254, 150 S.W. 1036 (1912). Before appellant can recover there must be a libelous statement in the article which, “by proper inducement and colloquium”, may be said to apply personally to appellant. Comes v. Cruce, 85 Ark. 79, 107 S.W. 185 (1908).

The article made several charges against Crossett policemen as a class. It charged that some policemen did not like boys with long hair; that those policemen should “take a look at their own record, such as indecent exposure and other things”; that one of the author’s boys was arrested for trespassing on a public tennis court; that another son was arrested for driving up to the schoolhouse door; that the jail was filled with young boys while murderers and ¿funks went free; that bootleggers and dope peddlers were all over the town; that the writer was threatened with arrest if she went to the school other than on school business. After the recitation of those various counts a personal reference was made to appellant. that reference being that the writer would not buy anything from Crossett merchants until appellant was removed from the police force.

It would be sheer speculation to say that of the many charges enumerated by the writer, she specifically referred to appellant with reference to the charge of indecent exposure.

Affirmed.


author: John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Alton MASSEY et ux
    5-6126
    489 S.W. 2d 19
    Opinion delivered January 15, 1973

      Thomas B. Keys, Kenneth R. Brock and Regina W. Johns, for appellant.
    /. D. Patterson, Roger V. Logan Jr. and W. Wade Berryhill, for appellees.
   John A. Fogleman, Justice.

Appellant asserts that the trial court erred in refusing to strike the testimony of Ray Wheeler, a real estate value expert witness on behalf of the appellee-landowner, in an eminent domain action. Appellant contends that it demonstrated by cross-examination of Wheeler that his testimony was based upon hearsay rather than actual knowledge of the highway construction plans as they related to the lands of appellees remaining after the taking of 3.05 acres out of a 208-acre stock and dairy farm. We find no reversible error.

Wheeler’s qualifications as an expert witness are not attacked. He described the Massey farm as one of the “show” farms of the area. He told of the nice house, beautiful lawn, the well-kept barn and fencing and the advantageous gradual slope of the land from these buildings to the highway before the taking. According to Wheeler, the essential damage lay in the taking of the yard in front of the dwelling house, the lowering of the road and water damage to the field. He stated that, in his opinion, there were damages amounting to $7,500 for severance to the homesite, lowering of the road and the taking of the lawn. He was also of the opinion that there were damages amounting to $5,000 for water damage to a field and the raising of the road above the field which made the approach and access less desirable.

Appellant contends that .this testimony lacked a reasonable basis because the witness admitted that he had not studied the cross-sections on the highway construction plans before making his appraisal, but had accepted information given him by Mr. Massey relating to the relative highway elevations. Wheeler said that he had not examined the plans before the day of the trial and was unable to state the number of feet the roadway would be lowered. He commented that he was not an engineer.

The plans were an exhibit and, on direct examination, these plans were shown to the witness by appellees’ attorney who described one line indicating the existing terrain, another, the proposed terrain, the scale applicable, a fill from station 328 to station 325 and a cut into the existing terrain from that point to stations 327 and 328, all indicated on the plans. Thereafter the witness testified that he had looked at the property and the existing construction and understood what the attorney was talking about on the set of construction plans and understood the proposed grade and that his estimate of damages took all these things into consideration. Wheeler then said that the $7,500 element of damage was attributable to the taking of one-half of the Massey yard for right-of-way. Although he was unable to state the number of feet between the right-of-way and the house, either before or after the taking, the witness said that he could see the right-of-way stakes and that they were in the middle of the yard.

As appellees point out, Gary Godfrey, a resident engineer for appellant in charge of construction of the road, was called as a witness by the landowners. During the course of his testimony, it was admitted that the completed construction would be according to the plans shown to Wheeler. Godfrey was asked specifically about ditches, slopes, fills, cuts, lines indicating elevation of the existing road and the proposed construction. The examination of this witness and his explanation of the plans were such that it is highly unlikely that the jury could have been misled, as to the location of the right-of-way lines and the location and elevation of cuts, fills and ditches.

Appellant has not pointed out to us the particulars in which the information Wheeler had at the time of his appraisal was erroneous. Since we cannot say that the witness had no reasonable basis for his testimony, we affirm the judgment.


text:
    AMERICAN TELEVISION COMPANY, Inc. d/b/a DONREY OUTDOOR ADVERTISING COMPANY and TRI-STATE REALTY COMPANY v. CITY of FAYETTEVILLE, Arkansas
    5-6083
    489 S.W. 2d 754
    Opinion delivered January 15, 1973
    [Rehearing denied February 19, 1973.]

      Bethell, Calloway & Robertson, for appellants.

      David R. Malone, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Tri-State Realty Company and American Television Company, Inc. d/b/a Donrey Outdoor Advertising Company from a decree of the Washington County Chancery Court in which the chancellor sustained a demurrer filed by the City of Fayetteville to a petition for declaratory judgment filed by Tri-State and Donrey.

The facts appear as follows: Tri-State owns numerous small plots of land suitable for use in outdoor advertising in the Fayetteville and Washington County areas. Donrey owns and maintains numerous advertising billboards on plots of ground leased or rented from TriState. Donrey, in turn, rents and leases space on the billboards to the various individuals, firms and corporations having need for such outdoor billboard advertising. Donrey has a number of such outdoor advertising panels erected on plots of ground leased from Tri-State in the City of Fayetteville.

On June 29, 1970, the City of Fayetteville adopted Ordinance No. 1747 which is a comprehensive zoning ordinance containing 97 pages. The ordinance, among other things, forbids outdoor billboard advertising in certain zones and restricts the size and number of permitted panels in other zones. The ordinance establishes and changes setback requirements for outdoor advertising panels and all of the provisions of the ordinance are made effective, as to existing and future outdoor advertising, as of June 30, 1971. It appears that under prior permits granted by the city a number of the Donrey outdoor advertising panels are located in zones where they are now prohibited by the ordinance and under the terms of the ordinance must be removed. It further appears that a number of other panels are located within areas where they must be moved and rebuilt to conform to the setback provisions of the ordinance, and that in still other instances it will be necessary for Donrey to reduce the size of its advertising panels in order to comply with the provisions of the ordinance. A violation of the ordinance is made a misdemeanor under its terms, punishable by a fine of not less than $25 nor more than $1,000 with each day of violation constituting a separate offense.

On July 2, 1971, Tri-State and Donrey filed their petition in chancery court alleging that the ordinance is unconstitutional in many specifically enumerated respects as it applies to them, and they prayed for a declaratory judgment to determine the constitutionality of the ordinance. On the same date a temporary injunction to restrain the enforcement of the provisions of the ordinance was granted by the chancellor upon petition of Tri-State and Donrey. On July 9, 1971, information was filed in the Fayetteville Municipal Court against Donrey charging it with the violation of the ordinance as to one of its outdoor advertising panels in Fayetteville.

The temporary injunction was dissolved on motion of the city after demurrers were sustained to the petition and its amendments. Finally Tri-State and Donrey refused to plead further and on December 14, 1971, the chancellor entered an order sustaining a demurrer to the second amendment to the petition for the reason that Tri-State and Donrey had an adequate remedy at law.

On appeal to this court Donrey and Tri-State rely on the following point for reversal:

“The plaintiffs have stated a case within the provisions of Ark. Stats. § 34-2501, et seq., properly invoking the jurisdiction of the chancery court, and the court erred in sustaining a demurrer and dismissing plaintiffs’ petition.”

The question before us on this appeal is whether the chancellor erred in sustaining the demurrer to the petition for the reason that Tri-State and Donrey had an adequate remedy at law. We are, therefore, primarily concerned with the question of whether Tri-State and Donrey did have an adequate remedy at law, and we conclude that they did-not.

The city cites several cases in support of its argument that relief in chancery is not demandable as a matter of strict right but is awarded by the chancellor in his discretion, and also for the proposition that equity will refuse relief in all cases where the remedy obtainable at common law is adequate. The city then cites cases holding in effect, that courts of equity will not interfere to prevent anticipated criminal or quasi-criminal prosecutions. The city then argues that the invalidity of an ordinance may be interposed as a complete defense to a prosecution based thereon, and contends that the case at bar is controlled by our decision in S & S News Agency v. Freeze, 247 Ark. 1078, 449 S.W. 2d 404. The appellants on the other hand rely heavily on our decision in Brown v. Cheney, 232 Ark. 119, 334 S.W. 2d 666, appeal dismissed 369 U.S. 796. 82 S. Ct. 1156, 8 L.Ed. 2d 285.

The S ¿r S News Agency case is not in point with the case at bar. In that case the owner of a newsstand in Fort Smith filed a petition in chancery to enjoin the city from attempting to enforce a municipal ordinance against the sale of obscene literature in the form of future issues of specific magazines. The facts that distinguish that case from the one at bar are clearly set out in the last paragraph of the News Agency decision as follows:

“While appellant loudly proclaims that its constitutional rights have been violated, the real gravamen of its complaint seems to be that neither the City Administrator nor the City Attorney will say whether appellant will be allowed to sell subsequent issues of the magazines involved in Gent v. Arkansas, without being arrested under the obscenity law. We know of no law, and appellant has cited us none, which would permit a blanket injunction against a municipality with respect to all subsequent issues of the magazines involved irrespective of content or subject matter.”

The relevant portions of the declaratory judgment chapter of the statutes, Ark. Stat. Ann. §§ 34-2501, et seq. (Repl. 1962), under which the petition was filed in the case at bar are as follows:

“34-2501 Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such decíarations shall have the force and effect of a final judgment or decree.
34-2502 Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instruments, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.
34-2504 The enumeration of Sections 2, 3 [§§ 34-2502, 34-2503] and 4 does not limit or restrict the exercise of the general powers conferred in Section 1 [§ 34-2501], in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
34-2505 The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
34-2506 All orders, judgments and decrees under this Act [§§ 34-2501 — 34-2512, may be reviewed as other orders, judgments and decrees.
34-2508 When a proceeding under this Act [§§ 34-2501 — 34-2512] involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.”

Appellants alleged in their petition that they own or lease numerous tracts of real estate which now are, and have been for several years, used for outdoor advertising upon billboards erected under city permits and in full compliance with laws and ordinances in effect at the time the property was acquired or the billboards erected; that some of these tracts are of unusual size and shape, were acquired for the sole purpose of constructing billboards and have little, if any, other economic use; that the provisions of the amended ordinance requiring removal of nonconforming billboards within three years and other requirements applicable to existing billboards are vague, arbitrary and discriminatory, and have the practical effect of eliminating virtually all such structures. They alleged that the ordinance provisions now in issue are unconstitutional because they deprive appellants of their property without due process of law and without adequate compensation contrary to Art. 2, § 22, of the Arkansas Constitution, and certain provisions of the United States Constitution. Article 2, § 22 reads:

“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

We have long held that a court of equity has jurisdiction to enjoin the taking of property without provision for just compensation. Martin, Ex Parte, 13 Ark. 198, 58 Am. Dec. 321; Organ v. Memphis & L.R.R. Co., 51 Ark. 235, 11 S.W. 96; Ark. State Highway Comm’n v. Hammock, 201 Ark. 927, 148 S.W. 2d 324; see also Board of Directors St. Francis Levee Dist. v. Redditt, 79 Ark. 154, 95 S.W. 482; Independence County v. Lester, 173 Ark. 796, 293 S.W. 743; Ark. State Highway Comm’n v. Partain, 192 Ark. 127, 90 S.W. 2d 968.

In Brown v. Cheney, supra, the constitutionality of a legislative act was attacked through a petition for declaratory judgment filed in chancery court. The chancellor sustained a demurrer to the petition and in reversing the decree of the chancellor, we held that a demurrer to the petition for declaratory judgment was improperly sustained where the petition alleged that the provisions of the act relating to privilege taxes and licensing of coin-operated music vending machines were arbitrary, capricious, discriminatory and confiscatory in violation of the provisions of the Arkansas Constitution. Since we found that the truth of these allegations was a question of fact, but, if proved, could render the act unconstitutional, we reversed the decree sustaining the demurrer and directed that further proceedings be had in the trial court.

We are of the opinion, and so hold, that the petition for declaratory judgment in the case at bar was not outside the jurisdiction of the chancery court and that the petitioners did not have an adequate remedy at law. The decree is reversed and the cause remanded to the chancery court of Washington County with directions to overrule the demurrer and proceed further consistent with this opinion.

Reversed and remanded.


text:
    Valena BLEIDT v. 555, Inc.
    5-6123
    489 S.W. 2d 235
    Opinion delivered January 15, 1973
    [Rehearing denied February 12, 1973.]

      Boyett if Martin, P. A., by: Denny P. Petty, for appellant.

      Glenn F. Walther and Eichenbaum, Scott, Miller, Crockett if Bryant, for appellee.
   Conley Byrd, Justice.

Valena Bleidt appeals from an order holding that an open account owed by H.L.B. Enterprises, Inc. was protected by a security agreement. Mrs. Bleidt, a lien creditor of H.L.B., Enterprises, Inc. also complains of the allowance of an attorney’s fee based in part upon the open account.

The record shows that January 9, 1970, H.L.B. Enterprises, Inc. executed an installment note in the principal amount of $10,000 payable to 555 Inc. The security agreement executed in connection with the note provides:

“The security interest granted hereby is also to secure the payment of open account purchases by the Debtor from the Creditor, as hereinafter required. [Emphasis ours].
“The Debtor agrees to maintain at all times an inventory of merchandise. . . which was purchased from or through the Creditor, the cost price of which shall not be less than the unpaid principal balance of the note hereinabove mentioned. The Debtor agrees that any monthly current purchases deemed necessary to keep inventory to required figures and charged on separate monthly account will be paid promptly on the 10th day of each month, and failure to make such monthly settlement shall constitute breach of this Agreement and Creditor may declare the entire unpaid balance of said Note due and payable. . .
“The Debtor agrees to purchase from the Creditor all his requirements for maintaining his inventory, regardless of brand, if such requirements can be furnished from lines normally carried by Creditor. Debtor also agrees not to stock any lines competitive to any lines distributed by Creditor. Failure of the Debtor to comply with this provision shall give the Creditor the right to mature the unpaid balance of the said Note.”

Appellant argues that under the terms of the Security agreement, the only thing secured is the unpaid balance of the note. We do not so construe the agreement. The phrase “as hereinafter required” when used in connection with open account purchases, in our opinion, refers not only to the requirement that the inventory be maintained at not less than the unpaid balance of the note but also to the requirement that the Debtor purchase its inventory requirements from 555 Inc. Consequently on this issue we affirm the trial court.

The record shows that the trial court in awarding attorney’s fees, in the amount of $1,704.18 did so upon the basis of 10% of the unpaid balance of the note ($2,-643.73) and the unpaid open account ($14,397.63). This was error. Ark. Stat. Ann § 68-910 (Repl. 1957), limits the enforcement of a provision for attorney fees to those contained in a promissory note. Consequently the trial court erred in allowing attorney fees in excess of $264.37 (10% of $2,643.73) and the judgment must be reversed to that extent.

Reversed in part and remanded for entry of a decree not inconsistent with this opinion. All costs to be assessed against appellee.


text:
    Charles Timothy EMERY v. STATE of Arkansas
    5797
    489 S.W. 2d 17
    Opinion delivered January 15, 1973

      William McArthur, for appellant.

      Ray Thornton, Atty. Gen., by: Lonnie Powers, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Charles Timothy Emery filed a motion to dismiss the charges of burglary and grand larceny against him for failure to prosecute within the time limits set out in Ark. Stat. Ann. § 43-1708 (Repl. 1964), but before the motion was ruled on by the court, he entered a plea of guilty. After sentence, he filed a post conviction petition to set aside his convictions on the basis that his constitutional right to a speedy trial had been violated. The trial court denied his post conviction petition on the basis that his guilty plea voluntarily waived his alleged right to a speedy trial. We agree. See McDonald v. State, 253 Ark. 23, 484 S.W. 2d 345 (1972), and People v. DeCola, 15 Ill. 2d 527, 155 N.E. 2d 622 (1958).

Furthermore, we have not found in the record where a delay of more than two terms has occurred except upon the application of appellant or because of his absence.

Affirmed.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Charles Donald CLUCK et al v. Margaret Ann MACK et al
    5-6095
    489 S.W. 2d 8
    Opinion delivered January 15, 1973
    C. W. Knauts and Davis, Plegge ir Lowe, for appellants.

      Lee Ward, for appellees.
   Conley Byrd, Justice.

Appellants The First Pyramid Life Insurance Company of America and Charles Donald Cluck appeal from an order of the trial court awarding $667.12 of dividend accumulations on a life insurance policy to appellee Margaret Ann Mack, a judgment creditor of appellant Cluck. For reversal appellant Cluck contends that the funds are exempt from judicial seizure by Ark. Stat. Ann. § 30-208 (Repl. 1962). Pyramid Life complains that the trial court erred in not allowing it, as an interpleader, an attorney’s fee and in denying certain costs.

The record shows that Cluck had purchased from Pyramid Life a life insurance policy containing a special dividend provision for the tenth year distribution of accumulated dividends at the option of the policyholder. After Cluck elected to receive the dividends, appellee as a judgment creditor caused a writ of garnishment from the Circuit Court of Clay County to be issued on Pyramid Life before the end of the policy period. Another garnishment was subsequently issued out of the Chancery Court of Clay County upon a joint judgment due appellee and one Blanche L. Cluck. This present proceeding developed when Pyramid Life filed a statutory inter-pleader action, Ark. Stat. Ann. § 27-816 (Repl. 1962).

The exemption of proceeds of life insurance funds from judicial process is set forth in Ark. Stat Ann. § 30-208 (Repl. 1962) as follows:

“All moneys paid or payable to any resident of this state as the insured or beneficiary designated under any insurance policy or policies providing for the payment of life, sick, accident and/or disability benefits shall be exempt from liability or seizure under judicial process of any court, and shall not be subjected to the payment of any debt by contract or otherwise by any writ, order, judgment, or decree of any court, provided, that the validity of any sale, assignment, mortgage, pledge or hypothecation of any policy of insurance or if any avails, proceeds or benefits thereof, now made, or hereafter made, shall in no way be affected by the provisions of this section,”

The policy here issued by Pyramid Life to Cluck contained a special provision whereby $104.50 of the second, third, fourth and fifth annual premiums were to be deposited in a special fund for investment in certain named corporate stocks. The dividends from the investment in the stocks were payable to Cluck at his option as the policy holder at the end of either the tenth or twentieth calendar year if he was then living. No part of the dividends were payable to the beneficiaries named in the life policy — in fact in the event of Cluck’s death prior to the tenth or twentieth calendar year, the dividends were accumulated and paid to other like policyholders according to their respective interests. Thus as we construe the policy it was to pay dividends to the policyholder as an investor and not “as the insured or beneficiary designated under any insurance policy. . .” It follows that the trial court properly denied the exemption. In upholding the trial court, we hasten to add that the dividends here involved were not a mere incident of th¡e life policy for such dividends would be exempt. See Allen v. Central Wisconsin Trust Co., 143 Wis. 381, 127 N.W. 1003 (1910).

We find no abuse of discretion in denying the attorney’s fee to the interpleader and the costs in serving Carolyn Cluck Jackson, Doris Cluck Swang and Elma Cluck Hornyak. On the cost issue there is nothing in the record to show the above named individuals were claiming a right to any part of the funds.

The issue over the allowance of the attorney’s fee arises in this manner. The bill of interpleader was filed on March 20, 1972, answers by all interested parties were promptly filed. Thereafter on April 14, 1972, a trial judge other than the one who heard the dispute on April 19th entered an order for the deposit of the money and also an order which provided:

“WHEREFORE, IT IS HEREBY ORDERED AND DECREED that Plaintiff, The First Pyramid Life Insurance Company of America, be, and it hereby is, released and discharged from all liability to Defendants Charles Donald Cluck, Blanche L. Cluck, Margaret Ann Mack, Carolyn Cluck, Doris Cluck Swang, and Elma Cluck Hornyak, or as to any one or more of them, as to the sum to be paid into the registry of this Court; that it be, and hereby is, awarded as its attorney’s fee the sum of $ , to be taxed as costs in this suit; and that it have and recover for its other costs herein, for all of which costs the Clerk of this Court is hereby ordered and directed to forthwith issue his check, payable out of the sum so paid into the registry of this Court.
“Jurisdiction is retained to determine the adverse claims of the defendants to the remaining sum.”

These two orders do not recite any appearance on behalf of appellee or any other party and make no mention of the plea of appellee that the bill of interpleader was filed in bad faith. Both such orders were filed on the day that the lower court held the hearing here involved. The last order recites that notice of the time and place of the hearing had been given to all parties but that Pyramid Life failed to appear.

We recognize that the allowance of an attorney’s fee to the statutory interpleader, Ark. Stat. Ann. § 27-816 (Repl. 1962), is a matter of right but where, as here, the interpleader has notice that the fee has not been fixed and fails to appear after notice and fails to establish the statutory grounds for an equitable interpleader action, we cannot say that the trial court erred in failing to allow such fee. This is particularly so in a case where the issue of bad faith in filing the interpleader action is raised. See Wall v. Wall, (Tex. Civ. App.) 181 S.W. 2d 817 (1944).

Affirmed.

Harris, C.J., and Fogleman, J. dissent in part.

John A. Fogleman, Justice,

dissenting. I do not agree with that portion of the majority opinion relating to attorney’s fees for the interpleader. The obvious and salutary purpose of the pertinent statutes is to protect an innocent stakeholder not only from multiple liability but from the hazards, trouble, vexation and expense arising from a dispute over entitlement to a fund in the hands of the interpleader. Goad v. Goad, 238 Ark. 12, 377 S.W.2d 822; Underwriters at Lloyd’s v. Nichols, 363 F.2d 357 (8th Cir. 1966); New York Life Ins. Co. v. Miller, 139 F.2d 657 (8th Cir. 1944); Hunter v. Federal Life Insurance Co., 111 F.2d 551 (8th Cir. 1940); Tollett v. Phoenix Assurance Co. of New York, 147 F. Supp. 597 (D.C. Ark. 1956).

The record in this case discloses that:

Appellee Margaret Ann Mack caused a writ of garnishment to be issued against the insurance company appellant on December 1, 1971, upon a judgment she recovered against appellant Cluck and others in the Circuit Court of the Eastern District of Clay County on October 7, 1970. On December 7, 1971, appellee Margaret Ann Mack and Blanche L. Cluck caused another writ of garnishment to be issued against the insurance company upon a judgment against Charles Donald Cluck rendered on July 1, 1971, by the Chancery Court of the Eastern District of Clay County. On March 18, 1972, an alias writ of garnishment was issued upon the circuit court judgment in favor of appellee Mack. The bill of inter-pleader was filed on March 20, 1972. It contained an allegation that Blanche L. Cluck, appellee Mack, and Carolyn Cluck Jackson, Doris Cluck Swang and Elma Cluck Hornyak had asserted claims to the fund in the hands of the interpleader. The prayer was that the interpleader be released and discharged from liability to the claimants to the fund, all of whom were made defendants to the bill of interpleader, and, for a reasonable attorney’s fee to be fixed by the court, as provided by Ark. Stat. Ann. § 27-816 (Repl. 1962). Process was issued for all defendants. Answer was filed by Margaret Ann Mack on March 24, 1972. In the answer she made the following allegations of bad faith:
This interpleader action was filed in bad faith by the plaintiff for purposes of harrassment and reducing the net amount of money which Margaret Ann Mack might obtain to go on her judgment of 10-7-70 against Charles Donald Cluck as evidenced by the following prior acts of this plaintiff:
This plaintiff answered Margaret Ann Mack’s garnishment under her 10-7-70 judgment on Dec. 7, 1971, by claiming any money it held for or on behalf of Charles Donald Cluck was “contingent” on premiums being paid in full to 12-28-71 (when, in truth, said premiums were then fully paid to that date); and on any cash reserves under said policy not being depleted by loans to the insured (when, in truth.) the insured had never applied for any loan prior to service of the Writ); and on the insured being alive on 12-28-71 (a mere 21 days after the answer was filed).
The answer of Charles Donald Cluck, filed April 7, 1972, asserted his claim to the fund and asked that both Blanche L. Cluck and Margaret Ann Mack be enjoined from the issuance of further writs of garnishment against the insurance policy proceeds. No answer was filed by Blanche L. Cluck or any other defendant, although service of process was had on all defendants by March 24. In spite of the allegations of bad faith (which were probably demurrable) the chancery court sustained the bill of interpleader, discharged the insurance company, ánd retained jurisdiction to determine the adverse claims. The chancery court, in entering the order of April 14, 1972, quoted in part in the majority opinion, made specific findings that jurisdiction of the court to determine the adverse claims to the fund was established by Ark. Stat. Ann. § 27-816 and that the insurance company was “entitled to an order releasing and discharging it from all liability to the defendants as to the sum paid into the registry of the court, to recover its costs in this action, and to receive a reasonable attorney’s fee to be fixed by this court and taxed as costs of the court.”

In the decree from which this appeal was taken, the court found that:

1. The insurance company interpled the fund into court “[a]s the result of having been served with two garnishments at the instance of Margaret Ann Mack and Blanche L. Cluck * *
2. That the circuit judgment amounted to $800 plus $22.50 costs, the full amount of which was past due and unpaid, and was based upon a wilful personal assault upon the judgment creditor.

There was no finding in this decree on the issue of good faith in the filing of the bill of interpleader. No testimony was heard by the court at the hearing on April 19. None of the three exhibits offered related in any way to the lack of good faith on the part of the interpleader or the amount to be allowed as attorney’s fees.

Arkansas Statutes Annotated § 27-816 (Repl. 1962) reads:

Where there are two [2] or more adverse claimants to money or property, the person, firm or corporation or association having custody thereof may file a bill of interpleader in the chancery court of any county in which one of the claimants resides or may. be served with summons and upon depositing the money or property in the registry of the court, the court shall enter an order releasing and discharging the plaintiff from all liability; and the plaintiff shall recover all of his or its costs and a reasonable attorney’s fee to be fixed by the court and taxed as costs in such suit.

The language of the statute relating to recovery of a reasonable attorney’s fee upon discharge of the plaintiff is mandatory. No appeal has been taken from the order of discharge. In this light, I am unable to fathom the reasoning by which the majority holds that the insurance company was not entitled to this recovery.

Since the propriety of the chancery court’s taking jurisdiction and discharging appellant First Pyramid Life Insurance Company has not been questioned, any procedural question or question of good faith is not for our consideration. Still, under the clear language of the statute and upon the authority of American Company of Arkansas v. Wheeler, 181 Ark. 444, 26 S.W. 2d 115, and Chicago, R. I. & P. Ry. Co. v. Moore, 92 Ark. 446, 123 S.W. 233, the company had the right to proceed as it did, and it was proper for the chancery court to take jurisdiction, as it did. The allegations in the complaint were not sustained by evidence — at least no evidence of any lack of good faith in the filing of the bill of interpleader was ever produced. The mere fact that an alleged claimant did not appear did not show lack of good faith on the part of the insurance company, and the fact that the claim of one or more of them turned out to be without merit, is not of controlling importance and is insufficient to furnish any basis for an inference that the filing was not in good faith, particularly in view of the fact that Blanche L. Cluck had, by one of the writs of garnishment asserted a claim to the proceeds. See Tollett v. Phoenix Assurance Co. of New York, 147 F. Supp. 597 (D. C. Ark. 1956).

Not only did the order from which no appeal was taken foreclose the intimation that the bill was not filed in good faith, but there is no finding of lack of good faith in the decree from which this appeal was taken. Furthermore, it is clear that appellant under the statute had a clear right to resort to the remedy of interpleader regardless of whatever remedies might have been available. Hunter v. Federal Life Ins. Co., 111 F. 2d 551 (8th Cir. 1940). That right clearly existed on the basis of the fact that garnishments had been served on appellant out of two different courts on two different judgments in two different causes of action. The fact that there was a suit pending in the circuit court on the garnishment did not make the filing of the interpleader improper. Goad v. Goad, 238 Ark. 12, 377 S.W. 2d 822. See also, Chicago, R. I. & P. Ry. Co. v. Moore, 92 Ark. 446, 123 S.W. 233. The company had a right to protect itself from a multiplicity of suits and to escape costs by this means. Goad v. Goad, supra; Fulmer v. East Arkansas Abstract & Loan Co., 173 Ark. 668, 293 S.W. 1018. See also, Chicago, R. I. & Pac. Ry. Co. v. Moore, supra.

I submit that the statutory grounds for the bill were clearly sustained by the record itself and by the court’s order of April 14 and that the appearance of appellant insurance company would have served no useful purpose but would have only increased the expense attendant upon the proceeding.

I do not consider the case of Wall v. Wall, 181 S.W. 2d 817 (Tex. Civ. App. 1944), a decision by a Texas intermediate court, applicable to the circumstances here. There was no governing statute involved in that case, and the bill of interpleader there was only that created in equity and controlled by equity practice. The parties in that case had no right to institute a separate equitable proceeding, such as that given by our statute. Therefore, it was necessary that the interpleader make a showing that he was entitled to file a bill of interpleader in equity. But, I repeat, the court here found that the interpleader had a right to file the bill and discharged it. What was it, thereafter, required to show?

The effect of our statute on the equitable proceeding was pointed out by us in Gilbert v. Missouri Pac. R. Co., 208 Ark. 1, 185 S.W. 2d 558. There a judgment had been rendered at law against the interpleader in favor of one of the claimants. The interpleader tendered the amount of the judgment with its bill, making the administrator, who recovered the judgment on behalf of the widow, heirs and estate of his decedent, and the workmen's compensation insurance carrier of decedent’s employer parties. We held this was a proper case for application of our statute. We stated that prior to the passage of the act it had been held in Temple v. Lawson, 19 Ark. 148, that the court would exercise the ancient equity jurisdiction to hear an interplea, but it did not order the cost of the proceeding to be paid out of the fund. We declared in Gilbert that the effect and evident purpose of our act was to make the fund liable for the cost of distribution on the basis that the claimants should pay these costs, because it was not equitable that the interpleader should pay more than its liability.

I think that this case is more nearly like Hunter v. Federal Life Insurance Company, 111 F. 2d 551 (8th Cir. 1940) than Wall, even though an equitable bill of inter-pleader was involved. The assertion was made that the insurance company there had an adequate remedy at law by defending on the basis of a claim adverse to that of its beneficiary or by bringing a declaratory judgment suit. That argument was rejected, and the court, speaking through Judge Sanborn, said:

We think that the plaintiff had a right to resort to the remedy of interpleader regardless of what other remedies were available, since a stakeholder, in such a situation as the plaintiff, is to be regarded as having no adequate legal remedy or at least none as adequate as that of interpleader.

The court also said that the remedy of interpleader should afford a simple, speedy, efficient and economical remedy.

I do not perceive any barrier to the allowance of the attorney’s fees by reason of non-appearance of the insurance company or its attorney. The order of April 14, from which no appeal has been taken, clearly established the right to attorney’s fees and only left the amount for determination. If that order were not sufficient, the mandatory language of the statute requires allowance of the fee, since the insurance company had a right to proceed by bill of interpleader. The only thing that might have been accomplished by an appearance would have been the offering of testimony to guide the court in determining the amount to be allowed. But this was not necessary and probably would have cost as much as the allowance to be anticipated.

We have recognized that courts, both trial and appellate, may use their own experience and knowledge of the character of services, such as those rendered by an attorney, as a guide. Robinson v. Champion, 251 Ark. 817, 475 S.W. 2d 677. This may be done without the court hearing any testimony where the court is familiar with the case and has the whole matter before it, and the court may even apply its own knowledge and ideas of the amount to be allowed, even though it be different from, or in defiance of, that shown by evidence. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W. 2d 944; Slayton v. Russ, 205 Ark. 474, 169 S.W. 2d 571; Lilly v. Robinson Mercantile Co., 106 Ark. 571, 153 S.W. 820. We have, in instances too numerous to mention, and apparently without exception, made allowances for attorney’s fees without any evidence whatever. See, e.g., Lowrey v. Lowrey, 251 Ark. 613, 473 S.W. 2d 431; Riegler v. Riegler, 243 Ark. 113, 419 S.W. 2d 311.

I would allow a fee of at least $100, or remand the case to the chancery court to fix the amount of the fee.

I am authorized to state that Chief Justice Harris joins in this dissent.