author: Frank Hoi.t, Justice. Conley Byrd, Justice,

text:
    R. N. BROWN, et ux v. Warren E. WOOD, Judge, et al
    74-36
    516 S.W. 2d 98
    Opinion delivered November 18, 1974
    [Rehearing denied December 23, 1974.]

      Oscar Fendler, for petitioners.

      Smith, Williams, Friday, Fldredge & Clark, by: W. A. Fid redye, Jr. and J. D. Watson, for respondents.
   Frank Hoi.t, Justice.

A nonresident attorney, James S. Cox, was enrolled by the Pulaski County Circuit Court in an ex parte proceeding permitting him to appear there as an attorney of record for petitioners in the case entitled R. N. Brown, et ux, v. Harold Chakalas, M.I). The trial court granted defendant’s subsequent motion to strike the previous order of enrollment. By a petition for certiorari and mandamus, the petitioners now seek an order reinstating Cox to his former status in the case. This method of appellate review is not in issue. Petitioners first assert that the trial court acted beyond its scope of authority in striking its previous order of enrollment which was pursuant to Ark. Stat. Ann. § 25-108 (Repl. 1962). We find no merit in this contention.

The statute reads:

Nonresident attorneys at law of record shall be allowed to practice law in all the courts of this state of equal jurisdiction of the court or courts to which they have been admitted to practice and are members of the bar in good standing in the state of their residence, under such terms aad conditions and requirements as may be prescribed by the rules of practice of any court in which any such nonresident attorney at law seeks to practice. (Emphasis ours.)

Petitioners argue that after a nonresident attorney demonstrates that he is admitted to practice in a court of equal jurisdiction and is a member of the bar in good standing in the state of residence, as here, the court must enroll the attorney after compliance with any reasonable rules and regulations prescribed by the enrolling court. In support of this argument the petitioners cite Ark. Stat. Ann. § 25-111 (Repl. 1962) which reads in pertinent part:

A nonresident attorney at law, enrolled under this act (§§25-108 - 25-111), shall be and remain a member of the bar of the court in which he has been enrolled and shall not again be required to be enrolled in the same court, ....

This evinces the legislative intent, say petitioners, that the practice of law in Arkansas by nonresident attorneys, once enrolled, is unrestricted as to “frequency of practice.” The first answer to these arguments is that the Supreme Court has vested in it the power to regulate the practice of law in this state regardless of a statute. Ark. Const. (1874), Amendment 28. The next answer is that we held adversely to this contention in the recent case of McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973), where Cox was also the enrollee. There we said:

When viewed in the light of the narrow question presented here, the statute constitutes little more than a recognition of the usual practice of permitting an attorney, licensed and in good standing in a sister state to appear and participate in the trial or argument of a particular case. The granting of such permission, without or even in spite of a statute, seems to be within the inherent power of the court, and is a rather general practice.

We further said:

.... [SJtatutes relating to the practice of law are merely in aid of, but do not supersede or detract from the power of the judicial department to define, regulate and control the practice of law, and that the legislative branch may not, in any way, hinder, interfere with, restrict or frustrate the powers of the courts.

Appellant next asserts that even if the trial court had the authority to strike Cox’s enrollment order, it grossly abused its discretion in doing so. Although this court has not exercised its inherent power by promulgating rules as to the practice of law in our state by nonresident attorneys, our local courts, in the absence of any rule by this court, certainly have the inherent authority to formulate reasonable rules and regulations which allow or prevent a nonresident attorney from practicing law in an Arkansas court. McKenzie v. Burris, supra; and Letaw v. Smith, Chancellor, 223 Ark. 638, 268 S.W.2d 3 (1954). The circumstances in each case might necessitate that the court “properly protect” a legitimate interest of the public as well as the individual litigants. In McKenzie we mention certain areas where a court may exercise its discretionary authority in considering pro hac vice admissions:

The state has legitimate interests to be weighed in considering pro hac vice admissions in order to maintain a high level of professional ethics, to assure a high quality of representation in the courts and to protect the economic interests of the regularly licensed resident attorneys of the state. In order to properly protect these interests and to expedite the administration of justice, the courts are concerned with the qualifications and conduct of counsel, their availability for service of papers and amenability to disciplinary proceedings. But these interests do not justify an arbitrary numerical limitation on the number of such appearances by an attorney in the state, where the nonresident attorney associated with resident counsel is not involved in a general practice of law, particularly where the nonresident practitioner has developed some degree of expertise in the particular field of litigation in which he is engaged. (Citing cases.)

In the case at bar the petitioners had first consulted with a local law firm which has demonstrated expertise in tort actions. However, this being a medical malpractice case, the firm declined to represent petitioners and referred them to Cox, a Memphis attorney, who is acknowledged to possess an expertise in this particular phase of law. The referral of an individual to another attorney who has a greater expertise in a particular phase of the law is in keeping with the professional duty of an attorney to make competent legal counsel available to individuals. ABA Code of Professional Responsibility, Canon 2. Cox regularly represents plaintiffs, such as the petitioners, as well as members of the medical profession. Upon consulting with Cox, he accepted their case and, since the statute of limitations was about to run, personally prepared the complaint and delivered it for filing to a Little Rock attorney and associated him in the . case. It is unquestioned, as recited in the court’s enrollment order, that Cox is “a member in good standing of the bar of Tennessee. ...”

In striking the ex parte enrollment order, after an eviden-tiary hearing, the court did so stating: Cox’s participation in Arkansas litigation is ever increasing; petitioner Brown employed Cox at his Memphis office; Cox dictated and had the complaint typed there and, since the statute of limitations was about to run, drove to Little Rock where he delivered the pleading to a local attorney for filing; Cox, therefore, associated local counsel with him rather than being associated as co-counsel by local counsel as was done in McKenzie, supra; there Cox was enrolled as an associate of local counsel to assist them in all phases of trying the cause of action; such an entry in the present case would be substituting form for substance; Cox is practicing law in Arkansas without being licensed to do so; there are competent licensed attorneys in the state; Cox was currently connected with either four or six cases in Pulaski County; Cox tries lawsuits all over the United States and there is no doubt his commitments for trial in other jurisdictions would conflict with cases set for trial in Pulaski County; it is obvious to the court that numerous matters of procedure could not be cleared through a resident attorney because they would have to be cleared with Cox; concern about the availability of attorneys of record and the court’s ability to know that such attorneys speak for all parties concerned with their phase of the case, in relationship to the orderly administration of the court; and Cox forwards files in medical malpractice cases to one Paula Stone, a lay person in another state, who, for a minimum fee of $500, contacts medical doctors and obtains from them evaluations of the cases and commitments to testify.

Respondents add that interrogatories in two local cases had not been answered by Cox or local counsel associated with him, although the interrogatories were filed in one case two years previously and about five months before the other local case. Cox’s testimony is no request for immediate response or any time limit was set which would result in a request for a default judgment. He admits, however, that local counsel are relying upon him for the necessary work in answering the interrogatories. Further, he has “an extremely heavy trial load involving trials all over the country.” He testified that he had represented fourteen cases in Arkansas, twelve or thirteen of which went to suit and six of which were in the circuit court of Pulaski County.

We agree with respondent that the burden is upon the petitioners to show that the granting of the motion to strike Cox’s enrollment was an abuse of discretion. Indeed, that is a heavy burden. First we observe that the method of review before us, certiorari and mandamus, is not an issue. However, the law is well settled that upon review by cer-tiorari it is essential that there be demonstrated a plain, manifest, clear, great or gross abuse of discretion by a trial court before an appellate court is justified in granting the relief sought. 14 Am. Jr. 2d 787, Certiorari § 10; 14 C.J.S. 174, Certiorari § 30; 14 Am. Jur. 2d 796, Certiorari § 20; and 1 Bailey on Habeas Corpus 738, § 188 (1913). Cf. State v. Nelson, Berry Pet. Co., 246 Ark. 210, 438 S.W.2d 33 (1969); and Ark. State Highway Comm. v. Light, Judge, 235 Ark. 808, 363 S.W. 2d 134 (1962).

As to mandamus, in order to grant the relief sought by petitioners, it is essential for us to hold the trial court was guilty of such a gross abuse of discretion that it may be said to have been so arbitrary that it amounted to a refusal by the trial court to proceed. Otherwise, mandamus will not lie. Ed-mondson v. Bourland, 179 Ark. 975, 18 S.W.2d 1020 (1929). This view is widely held and so expressed by the text writers. 55 C.J.S., Mandamus, § 63. When the findings of the court, in the case at bar, are tested by the foregoing rules of law governing certiorari and mandamus, we cannot say the heavy burden was met by the petitioners.

There was a very substantial basis for the court’s concern about the extent of Cox’s practice in Arkansas, and elsewhere, and the potential effect of this extensive practice on the ability of the judge to control and expedite his docket as well as the progress of cases in which Cox participated without sacrificing the interest of litigants, witnesses and other participants in his court. We must accord the trial court the right to take into consideration the possibility that Cox might not be able to appear at trial, pre-trial unavailability, unavailability for discipline in order to require him to answer interrogatories, his being unavailable or present to conduct a hearing on a motion, availability when depositions were scheduled, and that his nonavailability to any one of these instances would work a hardship on Arkansas residents in whose case he is enrolled as well as other residents of the state who have cases pending in the same court. We emphasize that comity is a courtesy and not a right.

Neither can we say that petitioners have been prejudiced since nothing is presented which indicates that the Bar of Arkansas is inadequate with respect to trial advocacy and, consequently, the participation of Cox, in the case at bar, is absolutely essential to adequate presentation of their claim.

The question is not what this court or any member of it would have held on the question or whether we think the court in the exercise of its sound discretion should have reached a different result. The question is whether the abuse of that discretion, if abused, is plain, clear, manifest, gross, great, or serious. This means that the abuse must be such that the action of the trial court was arbitrary and capricious, or at least that the error in the discretionary action is so apparent as to be without argument. We certainly cannot say on the record as a whole before us that the trial court grossly, arbitrarily and capriciously abused the discretionary authority which is properly accorded to him.

The case at bar, together with McKenzie v. Burris, supra, convinces us that the time has come when appropriate regulations should be promulgated concerning nonresident attorneys by comity, in this connection we invite suggestions from the bendi and bar of the State of Arkansas.

Writs denied.

Brown, Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. As I read the record in this case the lawyers representing Harold Chakales, M.D., were not attacking Mr. Cox’s ability to represent his clients but were complaining because he was too successful in representing them and consequently complained that he had received $111,000 in fees from malpractice settlements or payments made by one liability insurance company. 1 submit that Mr. Cox has appeared in no more lawsuits than did Justice Thurgood Marshall for litigants in this State and I have never heard anybody suggest that Thurgood Marshall was involved in the unauthorized practice of law. Furthermore, Wils Davis of Memphis, Tennessee, regularly appeared in litigation before the trial courts of this State and I never heard it contended that he was involved in the unauthorized practice of law. Thus in view of past history it appears to me that the trial court was arbitrary in refusing to permit Mr. Cox by comity from participating in the trial of this litigation.

It also appears to me that by preventing Mr. Cox from representing Mr. and Mrs. Brown in this malpractice action we are encouraging the trial courts to give more emphasis to the income protection of local lawyers than we are to the rights of the litigants. The record shows that after consulting with legal counsel Mr. and Mrs. Brown were referred to the law firm of McMath, Leatherman and Woods. Ex-Governor McMath refused to take the case, not because of lack of merit, but because he had considerable business with Dr. Chakales. Henry Woods, Ex-Governor McMath’s law partner and a former president of the Arkansas Bar Association, finally suggested to the Browns that they consult Mr. Cox, a Memphis, Tenn. lawyer. Since Mr. Cox, a specialist in medical malpractice, after consultation thought that Mr. and Mrs. Brown had a meritorious claim, I can only conclude that Mr. and Mrs. Brown have a meritorious cause of action that they are entitled to have submitted to a jury for a factual determination. Under these circumstances I challenge any member of the majority or the trial court to come forth with the name of any lawyer in Arkansas that has had any plaintiff success in the medical malpractice field in the trial courts and in persuading physicians and surgeons to break the so-called “conspiracy of silence. ” Had I been practicing law and had the Browns consulted me, I would have given them the same advice they got when they were referred to Mr. Cox. After all it would appear that the regulation of the practice of the law is for the benefit of the litigants not necessarily for the lawyers. If the regulation turns out in practice to be for only the benefit of the lawyers then we are subject to being chastised for operating a monopoly.

For the reasons stated, I respectfully dissent.

      Mr. Wils Davis was admitted to practice in both Arkansas and Tennessee but Mr. Cox cannot be so admitted under our rules without becoming a resident of Arkansas with the intention to maintain an office in Arkansas.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Marvin LOY et ux v. CITY OF HOT SPRINGS
    74-181
    516 S.W. 2d 3
    Opinion delivered November 25, 1974

      Sam Edward Gibson, for appellants.

      Curtis L. Ridgway Jr, for appellee.
   George Rose Smith, Justice.

This litigation presents a decidedly novel fact situation. In January of this year the appellants, Marvin Loy and his wife, brought this suit to enjoin the City of Hot Springs from interfering with the Loys’ possession of a house and lot on which they had occupied as their home for more than 20 years. The city asserted title to the property under a warranty deed by which the Hot Springs Humane Society of Garland County, a charitable corporation, purportedly conveyed the property to the city on October 11, 1973. The chancellor entered a decree in favor of the city, finding that the deed was valid and that the Loys had no standing to maintain the suit. The Loys were ordered to vacate the property within 30 days. In this court the Loys question both grounds for the decree.

In 1945 the Garland Circuit Court, upon a petition signed by twelve persons, entered an order incorporating the “Hot Springs Humane Society of Garland County, Arkansas,” as a charitable corporation. The articles of incorporation defined the purposes of the Society as being to provide a shelter for dumb animals, to supervise the care and regulation of animals in Hot Springs, to raise money by subscription, membership dues, donations, or otherwise, to buy, sell, and own property, and to engage in other related activities.

In 1952 the Society employed Marvin Loy as its Animal Control Officer. Loy’s compensation consisted of a monthly salary and the right to occupy the property now in question, rent free. The Society had purchased that property, for $2,-000, with its own funds. Through the years the Society’s income was derived from gifts, annual contributions (referred to as membership dues) in whatever amount the various donors chose to give, dog license fees, and, in some years, monthly contributions of $200 by the city and $100 by the county. An animal shelter was maintained upon the property until 1969.

The Society’s affairs were largely conducted by three or four devoted persons, who served as officers. Finally, in 1969, the city adopted an animal control ordinance, established its own animal shelter, and superseded the Society in its field of activity. Loy was employed by the city from 1969 until 1971 and continued to occupy the property now in dispute. The city terminated Loy’s employment in 1971, but he remained in possession of the house and lot. By then the Society had become totally inactive. All its records had been destroyed, but the title to the property in issue was still in the Society.

In August of 1973 the city began taking steps to acquire the land. A “Petition for Reinstatement”, directed to the circuit court, was prepared. The petition recited the Society’s incorporation in 1945, the city’s subsequent operation of an animal shelter, and the Society’s ownership of the property now in question, which assertedly was not being used for any public purpose. The petition then alleged that “it is necessary to formally reinstate this corporation so that title to this property may be legally conveyed to the CJity of Hot Springs, Arkansas to be used for public purposes.” (The city’s answer in the case at bar asserts that it intends to lease the property to the Garland County Retarded Children’s Association.) The petition concluded with a prayer that the circuit court reinstate the Society so that it could convey title to the city. At the end of the petition there were blank lines for 12 signatures.

The two people who had been serving as president and secretary of the Society when it ceased to function were still residents of Hot Springs, and testified at the trial, but they were not given notice of the proposed petition to the circuit court. Instead, the petition was signed, at the mayor’s request, by 12 persons who happened to go into the mayor’s office upon business of their own. All 12 testified that they had never been members of the Society and had never contributed to it. In October the petition was presented to the circuit court, by someone not identified in the record, in an ex parte proceeding. The court entered an order reinstating the corporation “for the purpose of adopting a resolution authorizing the transfer of this property to the City of Hot Springs.”

On the night of October 11 seven of the twelve signers of the petition met in the mayor’s office. They elected a president and a secretary, who then executed a warranty deed, for a recited consideration of one dollar, conveying the property to the city. There is no contention that the city actually paid any consideration for the deed.

Upon the foregoing facts we cannot sustain the trial court’s decree. Ordinarily, it is true, the plaintiff in a suit involving the possession of land must recover upon the strength of his own title. We have held, however, that a plaintiff’s prior peaceable possession entitles him to recover land from a mere trespasser or interloper. Wyatt v. Griffin, 242 Ark. 562, 414 S.W. 2d 377 (1967); Vanndale Spec. Sch. Dist. No. 6 v. Feltner, 210 Ark. 743, 197 S.W. 2d 731 (1946). Thus the Loys are not necessarily without standing to maintain this suit.

The question is whether the city’s claim of title rises above that of an interloper. It does not. Exact rules are essential to the determination of the title to land. Here the Society originally purchased the property with its own funds. The city acquired no legally enforceable interest in the land either by its own contributions to the Society, which were not exclusive of other contributions made by the county and by individual donors, or by the city’s ultimate assumption of responsibility for the care of stray animals. Needless to say, a lawyer examining the abstract of title could not approve municipal ownership based upon such nebulous considerations.

There remains only the deed executed by the “reinstated” charitable corporation, pursuant to the circuit court’s order.We think that proceeding to have been void, and therefore open to collateral attack, for want of jurisdiction over the Society. Black v. Burrell, 175 Ark. 1138, 1 S.W. 2d 805 (1928); Crittenden Lbr. Co. v. McDougal, 101 Ark. 390, 142 S.W. 836 (1911). The 12 signers of the petition had no semblance of authority to act for the Society. They were volunteers who acted as the city’s puppets in ostensibly obtaining the Society’s property without notice to its surviving officers and without the payment of any consideration whatever. The law provides for the dissolution of defunct corporations, but it cannot be said that the procedure followed here, even if motivated by complete good faith, had the effect of divesting the Society’s title.

Reversed and remanded for further proceedings.


author:
Carleton Harris, Chief Justice.
      Conley Brd, Justice,

text:
    STIMSON TRACTOR COMPANY v. Allen HEFLIN
    74-140
    516 S.W. 2d 379
    Opinion delivered December 2, 1974

      Gill, Clayton & Johnson, for appellant.

      Gaughan, Barnes, Roberts, Harrell & Laney, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Stimson Tractor Company, an Arkansas corporation engaged in selling Allis Chalmers farm equipment in Dumas, sold a new FR Allis Chalmers Gleaner Combine to Allen Heflin, appellee herein, pursuant to the terms of a security agreement. The purchase price was $20,115.21, the down payment being $5,-115.21, and the balance of $15,000 due in installments spread over a four year period. Actually, the down payment consisted of a trade-in of $7,184.74 on an older C2 Allis Chalmers Combine which belonged to appellee, less a balance still due on that machine of $2,069.53. Delivery was made around the first of September, 1971. Heflin did not make the first payment due on December 1, 1971, and appellant, after accepting reassignment from Allis Chalmers, picked up the Combine and sold it at public sale on October 11, 1972 for $10,000. The parties stipulated that the requirements of the Uniform Commercial Code were complied with by appellant relative to the recovery of the combine, notice of sale, and the subsequent sale. Thereafter, appellant instituted suit for a deficiency of $5,418.35 (including all costs of the sale), and Heflin answered and counter-claimed, asserting a breach of warranty of fitness for the purpose for which the machine was sought, and asked for damages in the amount of his down payment. The counterclaim, after stipulation, included an allegation that appellant had breached an implied warranty of merchantability. Appellant’s complaint was treated as amended to include an assertion of contractual limitation of the warranty of fitness for a particular purpose, and also an allegation that Heflin was precluded from asserting a breach of warranty by virtue of using the combine to harvest 200 acres of soybeans and approximately 60 acres of clover and Bahia grass. After stipulating that the combine was properly recovered and disposed of and agreeing that appellant’s Retail Installment Contract could be introduced, appellee assumed the burden of going forward with his evidence. At the close of this evidence, appellant moved for a directed verdict, which was denied; appellant then introduced witnesses and at the conclusion of all evidence again moved for a directed verdict. The court again denied the motion and submitted the case to the jury, which returned a nine to three verdict for Heflin in the amount of $5,115.21. From the judgment entered in accord with this verdict, appellant brings this appeal.

Heflin’s testimony detailed unsatisfactory performance of the machine, according to appellee, almost from the time he started using it, the witness mentioning a bent shaft and a burned out bearing. He stated, however, that the company fixed the shaft and put in another bearing. Heflin said that he started combining clover but the machine drew too much foliage into it and the chain broke. He fixed it, but a belt broke and the company replaced the belt. Appellee said that he didn’t combine over 40 or 50 acres of Bahia with the combine and he next used it to combine beans, but that it picked up a chunk of wood, which twisted the auger. He mentioned several instances of chunks being picked up, which would “strip the bolts” but he fixed the machine and combined 100 acres, combined a field for a neighbor, but constantly had trouble with the machine picking up too much foliage. Heflin said the machine wouldn’t “do the job, *** just wasn’t performing like it should — broke down too much.” However, he said that he got out most of his crop. His complaints could be summarized as stating that the machine “broke down” in the clover; “broke down” in the Bahia grass and “broke down” in the soybeans three times.

Company employees testified that appellee reported only two problems to the company, viz., a broken belt, and a burned out bearing due to heavy foliage, which were promptly repaired. This evidence was not disputed by appellee, who stated that either he repaired the machine or the company repaired it on all occasions, and he agreed that the complaints made were not attributable to the mechanism of the machine itself, but were due to its picking up heavy foliage and chunks. Of course, it is manifest that these repairs were only minor, else Heflin could not have made some of the repairs himself.

An important fact is that the proof does not reflect that appellee was induced, or persuaded, by any assurances of appellant to purchase the combine; rather, the record clearly reflects that Heflin picked out the combine himself. The evidence shows that Heflin made two trips to the company office, desiring to purchase an FR combine, a different model from the C-2 traded in by appellee. Heflin testified that he realized it was different, and he said that company officials, on the first visit, told him that he lived so far away that service would be difficult, the witness further stating that he was told that Stimson was in the hospital and that his permission would have to be obtained to make the sale. On the second trip, permission was obtained from Stimson, and at that point it was sold. Heflin testified that he had farmed all of his life, and, under the evidence just mentioned, there was certainly no pressure on him to purchase the machine.

Heflin’s criticisms of the combine related to the fact that there was no slip clutch, no throw out switch, and that the machine was chain driven, rather than belt driven. We reiterate that these were facts known to Heflin when the purchase was made, Heflin agreeing that he knew the combine was chain driven, and further stating that he was not told that it had a slip clutch. From the record:

“They said they’d put slip belts on it, put belts on it that would slip, and I told-Well, I didn’t tell them whether I’d take it or not and he said he’d come paint the cab. He did say that, but I just-I just wasn’t satisfied with the combine, so I let them have it back.”

The evidence reflected that to convert to a belt from a chain would have cost approximately $30.00, and Heflin was apprised of that fact.

Ark. Stat. Ann. § 85-2-608 (Add. 1961) sets out the grounds for revocation of acceptance in whole or in part. That section reads as follows:

“(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it
(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.”

The proof on the part of appellee does not reflect there was any defect to be cured for he knew, as previously pointed out, when picking out the machine, that it was different from the combine he was then operating. Certainly, there was nothing to prevent this experienced farmer, who examined the machine, from being thoroughly acquainted with it, and as already stated, there were absolutely no assurances from the seller. But, even if defects had been shown, or there had been testimony of the seller’s assurances that any defects that existed would be corrected, still, there must have been a revocation of appellee’s acceptance of the machine within a reasonable time after he discovered such defects. This brings us to the evidence in that regard.

Heflin testified that he notified appellant about November 20, 1971, that he did not want the combine and the company should pick it up. He stated that on January 5, 1972, he again told the company to pick up the machine. However, this testimony is clearly contradictory to later statements made by appellee, Heflin admitting that he told company representatives in January (after the two notices he said he had given the company) that he had not then decided whether or not he would keep the machine. Not only that, but Heflin, in April, 1972, while the combine was still in his possession, offered to pay $10,000 for it. It follows from what has been said that Stimson was entitled to recover the purchase price since there was no revocation within a reasonable time, and no proof in this record of a breach of warranty; the court should have granted a directed verdict for appellant.

However, this is not to say that Heflin cannot recover damages for breach of warranty. Comment 1 to Ark. Stat. Ann. § 85-2-608 (Add. 1961) points out that a buyer is no longer required to elect between revocation of acceptance and recovery of damages for breach. Both are available to him, and accordingly, Heflin may still have a right to recover money damages provided he establishes a breach of warranty on remand of the case. Under Ark. Stat. Ann. § 85-2-607 (3) (a) and (4) (Add. 1961), the buyer is charged with the responsibility of giving notice of the alleged breach to the seller, and, of coubse, the burden of proof rests upon him. The type of damages to which Heflin might be entitled is set out in Ark. Stat. Ann. § 85-2-714 (Add. 1961). It would not appear that appellee is entitled to damages under Ark. Stat. Ann. § 85-2-715 (1) (Add. 1961) (incidental damages), since Heflin accepted the goods and, as pointed out, appellee did not establish revocation of his acceptance. Subsection (2) allows the buyer in appropriate circumstances to recover consequential damages.

We recognize that to permit Heflin to now seek damages for breach of warranty is contrary to our holding in Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S.W. 2d 191, where this court held that there was no rejection or revocation by the buyer and we thus remanded the case for entry of a judgment in favor of the seller. Hudspeth was decided during the early years after the Uniform Commercial Code became effective in this State, and we were without benefit of briefs from both parties, only appellant submitting an abstract and a brief. We have ^.ow concluded, under the authority of the statutes cited in the previous paragraph, that this holding was in error and accordingly Hudspeth is overruled to the extent that the Circuit Court was directed to enter judgment for Hudspeth without first giving Wilkinson the opportunity to show damages for breach of warranty.

In the case before us, we are unable to say that on a retrial the evidence could not be more fully developed wherein it could be shown that appellee would be entitled to damages because the machine failed to perform its designed function of harvesting crops.

Reversed and Remanded.

Jones, Byrd, and Holt, JJ., dissent.

Conley Brd, Justice,

dissenting. I disagree with the majority that the appellee has failed to prove a defect in the FR Combine that he purchased. It may be that the majority’s trouble is that they do not comprehend the weather conditions during combining season. However, I think everybody should take judicial knowledge of the fact that soy beans are generally harvested from the latter part of October through the early part of December — the record shows that this was the time that Mr. Heflin was attempting to use the combine involved. During that time of the year the days are short, there is much rain and heavy dew caused by the cold nights and heavy humidity. A combine will not work when the beans are wet with dew — appellant’s witness Billy Cruse admits as much when he discussed the reason for the variable speed fan on the combine. Thus with a short time in which to gather beans because of the inclement weather and the short work days caused by heavy dew, any breakdown of a combine materially interrupts the harvest of the bean crop.

Another fact that the majority seemingly overlooks is that the combine delivered, although purchased in 1971, had apparently been on appellant’s lot for some time since the cab was rusty and the drive belt was weather beaten. Heflin testified that appellant did not deliver the combine that he looked at when he made his purchase — this fact was controverted by appellant’s salesman Mr. William - but of course in reviewing the evidence we are supposed to ta that view of the evidence most favorable to the jury’s verdict.

With respect to the operation of the particular combine that was delivered, the proof is undisputed that it would lock down if a chunk should happen not to be lined up properly when it went into the combine. It is conceded by all witnesses that a small chunk did lock the combine down and that in so doing it bent the main auger flight. Appellant contended throughout that its warranty did not cover the cost of repairing the bent auger flight.

With respect to the operation of the combine Heflin testified that it choked down in combining clover, Bahia grass and soy beans. With reference to the combine’s performance in the harvesting of soy beans he testified:

“Q. All right, and would you explain that to the jury and what occurred?
A. Well, I started combining beans. I worked about an hour and I picked up a little old chunk. It wasn’t as big as a quart fruit jar and it twisted my auger, the big auger that pulls foliage into the combine, and I had to take the combine to a neighbor’s house there and take the auger completely out of it and replace the bolts. They had stripped out. After it got that chunk, well, it couldn’t pull it through and it stripped the bolts out of the end of the auger.
Q. What? Just broke down?
A. Yes, sir.
Q. All right, sir, then what did you do?
A. Well, I got started the next day and went back out there and combined about three or four hours and I picked up another little old chunk. Of course, we’ve got a lot of little old chunks in this country. And it stripped the bolts out again.
Q. All right, broke down again?
A. Yes, sir.
Q. Then what did you do?
A. I had to take it in and fix it at the same place and I got that fixed and I went on and combined for, I’d say, a hundred acres.
Q. All right, sir, a hundred acres. Then what occurred?
A. I picked up too much foliage in another man’s field.
Q. Where did you go? Did you finish this combining?
A. I finished that field, yes, sir.
Q. Then where did you go?
A. I went to a man over close to Hampton, Lucian Goodwin.
Q. Allright, sir, what did you do there?
A. He had a hundred acres of beans 1 was combining and it picked up too much foliage and it stripped them bolts again. I was down another day.”

Mr. Heflin testified that the chunks in his field were comparable to the fields in the area and that the smaller Allis-Chalmers combine that he traded in on the one in question performed satisfactorily.

Appellant’s witness Billy Cruse who explained that none of the Allis-Chalmers combines have ever had an auger slip clutch on the header then testified as follows:

“Q. Let me direct you for a second. Does FR — Does a 1971 FR, does it have a slip chain drive on it?
A. From the factory.”

It’s true that in discussing the cost for Mr. Heflin to change from a chain drive to a belt drive that Billy Cruse first stated: “He would have had to have purchased two pulleys and one belt, approximately $30.00 or something or another in this range.” In subsequent examination by the same witness the following occured:

“Q. No, sir, there’s been testimony about a belt breaking due to weather, for instance, to wear due to weather.
A. After you once replaced a weathered belt you should have the equivalent to a new machine.
Q. Would you compare it to the fan belt on a automobile?
A. Yes, anything can weather. Their belts, I mean, it would be compared to a fan belt.
Q. What’s the cost of a belt?
A. They vary widely. Fan belts on them would be maybe $2.50, where the engine drive belt would be $85 or $90, anywhere in that range. [Emphasis mine.]

Appellant’s shop foreman testified that it would take $250 to replace the bent auger flight.

Thus we can see from the foregoing testimony that a 1971 model FR combine had a “slip chain drive on it” to protect the auger and prevent the break-downs of which appellee complained. There is testimony from which the jury could have found that appellant did not deliver a 1971 model machine and certainly not the machine at which appellee looked in making the purchase. Furthermore, there is ample testimony that it took a whole day to repair the combine in question after it “locked down” on a chunk. Of course, nobody would want a passenger automobile if it' got bent every time they had a flat and it took all day to repair the same — I don’t think any equipment company should expect a farmer to spend all day repairing his combine after picking up a chunk that would ordinarily go through and be automatically ejected — obviously Allis-Chalmers does not expect to sell them to farmers because it installed the “slip chain drive” on the 1971 models.

Finally the majority take Mr. Heflin’s testimony completely out of context and state that he did not properly revoke his acceptance of the combine within the purview of the Uniform Commercial Code. It must be remembered that not only did appellant’s witness Williams understand that Heflin had revoked his acceptance but Heflin had already written a letter to Allis-Chalmers notifying them to come and get the combine. Furthermore, it must be remembered that the statement was made by a man with no formal education and to appellant’s agents when they were trying to get Heflin to reconsider and keep the machine. Furthermore Heflin also testified with reference to contact by Cruse and Manes on January 7th as follows:

“Q. All right, now I’m going to ask you what, if any, additional or other contact you had with anybody at Stimson or Allis-Chalmers that you remember?
A. Well, they came over. 1 don’t know what month it was. And tried to get me to keep the combine and I told them I didn’t want it.
Q. Do you know who came over?
A. I can’t think of his name. It was a salesman from Mississippi.
Q. Okay, fine.”

In all of the appeals that have been before this court we have heretofore considered the evidence in the light most favorable to the jury’s finding. When we view this record from that view point there is obviously ample evidence to sustain the jury’s finding. To do otherwise we must consider the evidence out of context and most strongly against the person in whose favor the jury made its findings.

Therefore, I respectfully dissent.

Holt, J., joins in this dissent.

      From the record:
      “Q, All right, let me summarize then. Did you get your crop that year?'
      A. Most of it, just part of it. I didn’t get it all.
      Q. All right, how much in total do you think that you combined that year with that combine?
      A. Around two hundred acres.

      In my disposition of this case I do not reach the issue with respect to 'Hudspeth Motors v. Wilkinson, 238 Ark. 410, 382 S.W. 2d 191 (1964), but if I did 1 would agree that it should be overruled.


text:
    C.J. HENSON v. GOVERNMENT EMPLOYEES FINANCE & INDUSTRIAL LOAN CORPORATION
    74-190
    516 S.W. 2d 1
    Opinion delivered December 2, 1974

      Jeff Duty, for appellant.

      Dobbs, Pryor & Hubbard, for appellee.
   George Rose Smith, Justice.

This is an action in replevin brought by the appellee, a finance company engaged in business at Arlington, Virginia. The appellant is the owner of a garage at Bentonville, Arkansas. The parties assert rival claims to a Rover sedan that had been owned by Sam R. Laws. The issue, upon facts that do not seem to have yet been fully developed, is that of priority between the finance company’s security interest in the Rover and the appellant’s possessory claim to the vehicle. The trial judge, sitting as a jury, upheld the finance company’s priority and entered a money judgment against Henson, on the ground that the vehicle had unaccountably disappeared while it was in Henson’s possession.

We state the facts most favorably to the appellee. In the latter part of August, 1972, Laws brought a disabled Rover to Henson’s garage at Bentonville. Efforts to repair it were not successful. Henson sold Laws a 1964 Lincoln car, on credit, for $595. Laws promised to have the money within a week and left the Rover as security for the debt. Some two months later Laws brought back the Lincoln, which, according to Henson, had “busted rings” and would not start. Apparently Laws had obtained a license for the Lincoln by registering it in Colorado. Upon Henson's refusal to rescind the sale without having been paid, Laws departed, leaving both cars.

On November 2, 1972, which was apparently a few days later, an employee of the appellee finance company telephoned Henson and asserted a first lien against the Rover under a chattel mortgage that had been executed by Laws in Virginia more than a year earlier. Henson informed the caller that he planned to sell the Rover on November 4 to satisfy his claim.

On November 3, the day after that telephone call, Robert Blaylock, an employee of Arkansas Automobile Recovery, acting for the finance company, went to Henson’s place of business to take possession of the Rover. Blaylock offered to pay any repair bills that were owed on the Rover, but Henson refused to accept the offer or to surrender the vehicle, which was then on the premises.

On November 7 the finance company filed this action in replevin to recover the Rover. That afternoon one of the company’s attorneys accompanied a deputy sheriff to Henson’s garage to serve the writ of replevin. Henson stated that he did not know where the Rover was, though he said he had not sold it. At the trial Henson again disclaimed any knowledge of the Rover’s whereabouts.

The trial judge found that Henson “wrongfully held possession of the [Rover] owned by the plaintiff on November 2, 1972, and that the plaintiff was entitled to possession at that time.” The court awarded the appellee a judgment against Henson for $1,750.63, which was the unpaid balance upon the plaintiff’s mortgage and also the agreed value of the Rover.

We cannot sustain the court’s finding that upon the facts shown the appellee’s claim is prior to that of the appellant. All that the finance company relies upon is a chattel mortgage that is not shown to have been filed, pursuant to the Uniform Commercial Code, either in Virginia or in Arkansas. Without such a filing the appellee’s security interest has not been perfected. Ark. Stat. Ann. § 85-9-302 (Supp. 1973). The appellee argues that the record contains no proof that its chattel mortgage was not duly filed, but it is elementary that the appellee, as the plaintiff, had the burden of proving its right to prevail.

On the other hand, Henson had possession of the Rover when, as found by the circuit court, he “wrongfully” refused to surrender it. The Code, recognizing the validity of a common-law pledge, provides that a security interest in goods may be perfected by the secured party's taking possession of the collateral. Ark. Stat. Ann. § 85-9-305. Goods, as far as this case is concerned, are defined to include all things that are movable at the time the security interest attaches. § 85-9-105. Thus the common-law validity of a possessory lien is carried forward in the Code. See Anderson, Uniform Commercial Code, §§ 9-302:10 and 9-305:4 (2d ed., 1971); Ruud, Secured Transactions: Article IX, 16 Ark. L. Rev. 108, 125 (1961).

It follows that the trial court was in error in giving priority to the appellee’s chattel mortgage. The cause must therefore be remanded for a new trial, which may involve a re-examination of any or all issues. Clark v. Ark. Democrat Co., 242 Ark. 497, 413 S.W. 2d 629 (1967); Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393 (1906). Therefore we need not discuss issues that depend upon the development of the proof, such as the appellee’s standing if its mortgage was actually filed or the effect of either party’s compliance with our motor vehicle title registration act. See Ark. Stat. Ann. § 85-9-302(4) and § 75-160 (Supp. 1973).

Reversed and remanded for a new trial.


author: Lyle Brown, Justice.

text:
    David J. POTTER v. W. P. CITTY, Coroner of Miller County
    74-196
    516 S.W. 2d 597
    Opinion delivered December 2, 1974
    [Rehearing denied January 13, 1975.]

      Tackett, Moore, Dowd & Harrelson, for appellant.
    No brief for appellee.
   Lyle Brown, Justice.

Appellant David J. Potter brought this action to enjoin the coroner, W. P. Citty. Potter alleged that the coroner, in connection with the death of Jimmie J. Potter, had conducted an illegal inquest; that the coroner was in a position to conduct further acts with regard to the death “without jurisdiction or authority to do so”. Potter prayed that the coroner be enjoined from such further activities. The trial court sustained a demurrer to the complaint. Appellant here contends that the trial court had jurisdiction over the subject matter.

The demurrer must be sustained because nowhere in the complaint, which is the only evidence before us, is it alleged in what capacity appellant brought this action. Consequently, the trial court could not tell whether appellant was an interloper who happened to have the same name as the deceased.

Secondly, appellant alleges that the coroner “is in a position to perform further acts in regard to the death of Jimmie J. Potter” without jurisdiction or authority to so act. It is not alleged that the coroner is threatening such actions; nor do we know from the pleading the particulars of those acts. Facts must be alleged which show that action is imminent; and that such acts would be so manifestly beyond the authority of the coroner as to constitute an abuse of power. Moore v. Board of Directors, 98 Ark. 113, 135 S.W. 819 (1911). A demurrer does not admit any facts that are not well pleaded. Palmer v. Cline, 254 Ark. 393, 494 S.W. 2d 112 (1973).

Finally, appellant was in error in seeking an injunction to prohibit the coroner from performing an act of discretion. The statute provides that if the circumstances of a death be unknown, or if the circumstances of a death indicate foul play, a coroner’s jury shall be summoned. Ark. Stat. Ann. § 42-301 (Repl. 1964) et seq. “It is not the duty of the coroner to inquire of sudden deaths, unless there is reasonable ground to believe that they are the result of violence or unnatural causes. The authority is to be exercised within the limits of a sound discretion, and when exercised, the presumption is that the coroner has acted in good faith on sufficient cause.” Clark County v. Calloway, 52 Ark. 361, 12 S.W. 756 (1889).

Affirmed.


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

text:
    TITAN OIL & GAS, INC., et al v. Sam SHIPLEY et al
    74-115
    517 S.W. 2d 210
    Opinion delivered December 2, 1974
    [Supplemental opinion on Denial of Rehearing Jan. 20, 1975, p. 299A.]

      Spencer & Spencer, for appellants.

      Hale, Hale, Fincher & Hoofman, P. A., for appellees.
   John A. Fogleman, Justice.

At the very threshold we are confronted with the most difficult question presented on this appeal, the answer to which determines whether we even consider appellants’ other points for reversal. The case was tried before a special chancellor, whose election was timely questioned by appropriate objections made by appellants’attorney. These objections are brought forward here by the assertion that the purported election was invalid and, as a result, the special chancellor had no authority to hear or decide this case. Let it be understood that the Hon. Jack Young, the Special Chancellor, was serving by virtue of his selection at the questioned election — not on exchange or assignment. If his election was not in the manner prescribed by law, he had no judicial power, his acts are coram non judice, and, on direct attack, the decree must be set aside as void and the cause remanded for trial as if it had never been tried. Trotter v. Neal, 50 Ark. 340, 7 S.W. 384; Hyllis v. State, 45 Ark. 478; Gaither v. Wasson, 42 Ark. 126; Dansby v. Beard, 39 Ark. 254; Abercrombie v. Green, 235 Ark. 776, 362 S.W. 2d 12.

Ark. Stat. § 22-436 (Repl. 1962) provides that a special chancellor may be elected for the same causes and in the same manner as special circuit judges. We have held this act to be controlling. Fortuna v. Achor, 254 Ark. 1035, 497 S.W. 2d 251. The causes for and manner of selection of circuit judges are set out in Article 7, § 21 of the Arkansas Constitution. The first clause of that section is no longer fully applicable to chancery courts because of the abolition of terms of these courts. Ark. Stat. Ann. § 22-406.1 (Repl. 1973). Insofar as pertinent that section reads:

Whenever the office of judge of the circuit court of any county is vacant at the commencement of a term of such court, or the judge of said court shall faii to attend, the regular practicing attorneys in attendance on said court may meet at 10 o’clock a.m. on the second day of the term, and elect a judge to preside at such court or until the regular judge shall appear; and if the judge of said court shall become sick or die or unable to continue to hold such court after its term shall have commenced, or shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like manner, on notice from the judge or clerk of said court, elect a judge to preside at such courts or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding; but this authority shall cease at the close of the term at which the election shall be made.

The order entered reflecting the action questioned by appellant reads:

The regular Chancellor being on vacation and not returning until Tuesday, October 23rd, on Tuesday, October 16th Mr. Ben E. Rice was elected Special Chancellor and was unavailable to be here Wednesday, and will be unable to be here this day, it becomes necessary to elect another Special Chancellor to preside for hearings already set by the Chancellor.
Whereupon, the hour of ten A.M. having arrived and the Honorable Darrell Hickman, being absent from the County, and Ben E. Rice, Special Chancellor, being unable to attend, the Clerk posted notices and gave all members of the bar present notice that an election of a Special Chancellor should be held at that time, and said Clerk did thereupon hold said election, at which time all the regular members of the bar voted, and Jack Young, a regular member of the bar of the Court having received the majority of the votes cast at said election, was declared duly elected Special Chancellor.
Whereupon, the said Jack Young took the oath prescribed by law, and entered upon his duties as Special Chancellor of Pulaski Chancery Court, Third Division, when the following proceedings were had, to-wit:

We have long been committed to the rule that it is not required that the reasons for the election be stated upon the record of the proceedings for the election of a special judge under this constitutional provision and that the presumption will be indulged that the facts which make the election necessary exist. Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S.W. 2d 245; Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S.W. 822.

In determining whether the presumption has been overcome, we must examine the facts shown in support of the attack on Young’s election. In doing so, we are not, in this case, restricted by the statement once made that irregularity in the election of a special judge cannot be raised by “bill of exceptions” but must be raised by amendment to the record, as would appear from Arkadelphia Lumber Co. v. Asman, 72 Ark. 320, 79 S.W. 1060. We have both previously and subsequently held that irregularities in the election of a special judge can be shown when the protest or objection is shown on the record in the trial court and this could be spread upon the record, under former practice, by bill of exceptions. See Caldwell’s Admn. v. Bell & Graham, 6 Ark. 227, Sweeptzer v. Gaines, 19 Ark. 96; White v. Reagan, 25 Ark. 622; Gordon v. Reeves, 166 Ark. 601, 267 S.W. 133; Fernwood Mining Co. v. Pluna, supra. This, of course, is appropriate and proper, and as will be shown appellant here did attempt, albeit unsuccessfully, to contradict the record made. The party unsuccessfully challenging the action taken cannot very well dictate the content of the record of the factual statements therein. Appellant was not challenging the statements made on the record in Arkadelphia Lumber Co. v. Asman, supra, but was attempting to supply by a bystander’s bill of exception an omission in the record which did not even show that a special judge presided in the case. In this respect, our decisions are not really in conflict. Insofar as the Arkadelphia Lumber Co. case would bar appellate review of appellant’s challenge, we hold it to be inapplicable. In so saying, we are not oblivious to the fact that this case was cited with approval in State v. Howard, 251 Ark. 551, 473 S.W. 2d 443. It was fully applicable in Howard and correctly cited. Unlike the present attack, there was no attempt there to show the true facts allegedly not recited in the record in Howard. There was no record before us there, save the record made of the election. No evidence was introduced or offered to contradict the facts stated in the order. In such cases the real defect is that the party seeking review did not produce a record showing that an attack on the election was made in the trial court, as is required, because we cannot consider the question on appellate review, unless it was raised in the trial court and the grounds of objection shown. See Sweeptzer v. Gaines, 19 Ark. 96; Blagg v. Fry, 105 Ark. 356, 151 S.W. 699. We hold that appellants’ challenge to the election is properly subject to our review and do not consider this holding to be inconsistent with our holding in Howard.

We now proceed to outline the facts disclosed by the record. Hon. Darrell Hickman is the duly elected and commissioned judge of the court. There was testimony that, before commencing a vacation, Chancellor Hickman advised the clerk of the court he had “appointed” the Hon. Ben E. Rice and the Hon. Jack Young to try cases during his absence. Judge Hickman presided over the court on Thursday, October 10, 1973 and was scheduled to have held the Chancery Court of Lonoke County on Friday, October 11. He had not appeared in the Pulaski Chancery Court since October 10.

In compliance with Ark. Stat. § 22-406.2 (Repl. 1973) the chancellor had prepared a court calender. This calender was hung on the wall of the clerk’s office and showed the dates the judge of each division would hold court in other counties and all other dates were devoted to Pulaski county. The dates for Judge Hickman’s division were marked on a calender hung on the wall in his office. October 16, 17, and 18, 1973, were among the dates prescribed for the holding of the court presided over by Judge Hickman in Pulaski County. In August, 1973, this case had been specifically set for trial commencing on October 17 and continuing on the 18th and 19th. Rice had been elected chancellor on October 16, but did not appear on either October 16th or 17th. On October 17th, there was a purported election of Young as special chancellor which recited that Hickman was absent from Pulaski county. This election was held void by Young on that date upon objection by appellant.

On October 18, another election was held, and the clerk declared Young elected and he assumed the bench and proceeded to call this case for trial. Rice was in his office in Jacksonville at 9:00 a.m. on that date, and did not appear in the courthouse in Little Rock on that day. On the morning of the day of the election, he advised the clerk by telephone merely that he “would not be available”. The only notice of election of any kind was an unsigned one posted October 17th by the clerk on each entrance to the courtroom in which the Third Division of the Pulaski Chancery Court was normally held. The notice read:

You are hereby notified that a special chancellor will be elected at 10:00 A.M. October 18, 1973, for Third Division of Pulaski Chancery Court, in the Third Division Chancery Court Room.

Twelve to fifteen attorneys appeared in the courtroom and participated in the election held at 10:00 a.m. at which Young was again elected. There was no written communication to the clerk from either Hickman or Rice, or any other document attesting the whereabouts of either, or the inability of either to be present on October 18.

After preliminary matters relating to pleadings in this case had been disposed of by Judge Young, appellants’ counsel renewed the motion challenging the qualifications of the special chancellor. He showed by testimony of the clerk that she had learned that Judge Rice was unavailable only by his statement to that effect when she called him at his office in Jacksonville about 9:00 a.m. on the morning of the 18th, that Rice gave no reason for his inability to attend, that the notice referred to in the order was posted at each door of the courtroom the preceding day, October 17, that no notice was given to any attorney except by the notices posted, that there were probably only 12 to 15 lawyers present, and that a number of votes were cast in the election.

The special chancellor found that the notice, as well as the time and manner of election met constitutional requirements, and that the manner of determining the absence of the regular judge and any previously elected special judge was adequate for the proper administration of justice. He held that the necessity for election of a special chancellor did exist and that he had been properly elected.

It was essential to the election of a special judge in the circumstances prevailing here that the judge die, or be sick or unable to hold court. Appellant argues that inability to hold court in the sense of constitutional provision means a physical disability, relying to some extent upon our language in State v. George, 250 Ark. 968, 470 S.W. 2d 593, where we held that a special judge could be elected only to try cases pending at the time of the election. The expression upon which appellant relies relates to the provisions governing election of special judges after the term has begun where we said that after the term had begun and “the regular judge is physically unable to continue court . . . the attorneys may elect a judge”. Appellant emphasizes the word “physically” in the above quotation in arguing that a judge must have suffered a physical disability before this clause applies. We think appellant overemphasizes this word. The sentence in that opinion was not written as a comprehensive or exclusive one, but was a general description of conditions under which this provision governed. We are unwilling to give such force to this dictum or to say that either Hickman, the regular chancellor, or Rice, assuming that he was duly elected special judge, was not unable to continue to hold court. Earlier cases had categorized this constitutional provision as coming into play when the regular judge falls ill or dies or is “unable for any cause to hold che court.” Cates v. Wunderlich, 210 Ark. 724, 197 S.W. 2d 482; Hyllis v. State, 45 Ark. 478. If appellant’s interpretation of the George language was correct, the words “shall become sick or die” would have sufficed without being followed by the words “or unable to continue to hold such court”. We read our cases as being harmonious and do not interpret the language of George to be so restrictive as to limit the language either of the constitutional provision or the earlier opinions.

There is nothing in this record to show that the regular judge was not on vacation, or that he was able to continue to hold the court. Even if appellants’ version of the George language is applied, one physically absent from Pulaski county would be physically unable to hold court. There is nothing in the record to show that Hickman was in the courthouse or in Pulaski county on the days when this case had been set for trial, which were also days designated for the holding of this division of the court in Pulaski county. The inference that Rice was in Pulaski county is certainly permissible, but that fact alone does not mean that he was able to continue to hold the court. The reason for his unavailability does not appear, but in order to overcome the presumptive correctness of the record made, it was necessary that it be shown that he was able to hold court. We held in George that the very purpose of Article 7 § 21 was to avoid delay in the trial of pending cases which are about to be reached on the docket or which in fact have been reached, in emergency situations. We reiterated our position in State v. Stevenson, 89 Ark. 31, 116 S.W. 202 that the purpose of this constitutional provision was to keep the sessions of the court from failing and the courts in motion by special judges, whose function was to hold sessions of court and try those matters pending at the time of their appointment and until they are legally succeeded. We have recognized that the absence of the regular judge on a day properly fixed for holding court constituted such an emergency. Little Rock & Ft. Smith Railway Co. v. Barker, 39 Ark. 491, Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S.W. 822.

The judge’s determination of the necessity for his being absent from court on a day fixed for its being in session is conclusive and the record showing his absence and the election of a special judge in accordance with the requirements of the constitution is impervious to attack, not only collaterally, but on appeal, unless the facts which would defeat the election are recited in the record. Fernwood Mining Co. v. Pluna, supra. We cannot say that this record discloses facts showing that the election was unnecessary or improper. It was not even necessary that the record of the election recite that either Hickman or Rice was dead, sick or unable to hold court in order for it to be impervious to attack on appeal in the absence of an affirmative showing to the contrary. Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S.W. 2d 245. The mere absence of both Judge Hickman and Judge Rice on a day legally appointed for the holding of court made it the duty of the clerk to certify their inability to hold the court and to hold an election for a special judge to preside over the trial of pending cases. Fishback v. Weaver, 34 Ark. 569. As to Judge Hickman, mere physical absence might not have been sufficient if it had been shown that he was detained in another county because of his judicial duties in connection with the holding of the chancery court there on a day legally fixed for the holding of that court. Red Bud Realty Co. v. South, 145 Ark. 604, 224 S.W. 964; Caldwell v. Barrett & Turner, 71 Ark. 310, 74 S.W. 748; Street v. Reynolds, 63 Ark. 1, 38 S.W. 150; State v. Williams, 48 Ark. 227, 2 S.W. 843. But see, Ark. Stat. § 22-406.2, 406.3 (Supp. 1973), 22-407 (Repl. 1962); Brown v. Lewis, 231 Ark. 976, 334 S.W. 2d 225 (in which the applicable statute is referred to as 22.408.1 as it was then digested). But a sufficient answer here is that it was not shown in attempting to overcome, the presumptive validity of the election proceeding that this was the case. On the contrary, it appears that October 18 was a day lawfully fixed for holding the chancery court of Pulaski county.

There has been no implementation of Article 7 § 21 by statute or rule to prescribe procedures to be followed in the giving of notice or the conduct of the election of a special judge. Even though the posted notice was not signed, the clerk posted it on the day before the election. Notice to the “regular practicing attorneys in attendance on said court” was all that was necessary. It is not required that notice be given to all attorneys regularly practicing before the court or that it be published in any particular manner or be written or signed. The regular practicing attorneys in attendance were those present at the time regularly appointed for holding court when the words “in attendance on said court” are given their plain, ordinary meaning. The only statute which would possibly have any bearing is Ark. Stat. Ann. § 22-339 (Repl. 1962), passed prior to the adoption of our present constitution. It implemented § 9 of Art. VII of the Constitution of 1868 which provided for election of special judges. It was contained in Title XV, Chap. IX, Art. II, Miscellaneous Proceedings, which was no more specific, as to the manner of proceeding than Article 7 § 21 of the present constitution. Section 22-339 provides for an election by the “attorneys then present”. We have treated the words “regular practicing attorneys in attendance on said court” to convey virtually the same meaning. See Abercrombie v. Green, 235 Ark. 776, 362 S.W. 2d 12; Bradley v. State, 213 Ark. 927, 213 S.W. 2d 901; Neal v. Shinn, 49 Ark. 227, 4 S.W. 771. Although the challenge there was not directed to the notice, in Fernwood Mining Co. v. Pluna, 136 Ark. 107, 205 S.W. 822, notice was given by the clerk to the attorneys assembled in the courtroom. In Howard, the record recited that the notice was given to “members of the bar present” and to “all members of the bar in attendance on said court”.

Appellant also challenges the jurisdiction of the chancery court to entertain an action under Ark. Stat. Ann. § 67-1256 (Repl. 1966). This is a two-pronged argument. The first is that, since the statute provides that the action may be brought either in law or equity, there was an adequate remedy at law. The second is that the General Assembly cannot confer on the chancery courts any jurisdiction they did not possess at the time of the adoption of the Constitution of 1874. The answer to the first argument is that no motion to transfer to law was made by appellant. Error in bringing a suit in equity when there is an adequate remedy at law is waived by failure to move to transfer the cause to the circuit court, so that the chancellor's decree is not subject to reversal for failure to transfer the case where the adequacy of the remedy at law is the only basis for questioning equity jurisdiction, unless the chancery court is wholly incompetent to grant the relief sought. McMillan Feeder Finance Corp. v. Stephens, 240 Ark. 167, 398 S.W. 535; Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648; Hemphill v. Lewis, 174 Ark. 224, 294 S.W. 1010; Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668; Newell Contracting Co. v. McConnell, 156 Ark. 558, 246 S.W. 854; Sledge Norfleet Co. v. Malkins, 154 Ark. 509, 243 S.W. 289; Moody v. Brinkley, 17 Ark. 340. The ünderlying basis for this holding is that this is the sort of question which cannot be first raised on appeal. Owen v. Johnson, 222 Ark. 872, 263 S.W. 2d 480; Columbia Compress Co. v. Reid, 160 Ark. 436, 254 S.W. 825; Sessoms v. Ballard, 160 Ark. 146, 254 S.W. 446; Gerstle v. Vandergriff, 72 Ark. 261, 79 S.W. 776. See also, hing v. Payan, 18 Ark. 583. Furthermore, it is not error to refuse to transfer a case to the court of law where the jurisdiction of the two Courts is concurrent. McClelland v. Linton, 121 Ark. 79, 180 S.W. 482; Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S.W. 198; Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244; See also, Wilson v. Lucas, 185 Ark. 183, 47 S.W. 2d 8. On the other hand, it is reversible error to transfer a case brought m equity to the law court, if equity has concurrent jurisdiction, Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826. Where there is concurrent jurisdiction, the court which first acquires jurisdiction may, as a rule, retain it. Bagnell Tie & Timber Co. v. Goodrich, 82 Ark. 547, 102 S.W. 228.

As will be seen, the chancery court was not wholly incompetent to grant the relief sought here, so the question of the adequacy of the remedy at law has been waived and cannot be raised for the first time on appeal. And, as appellants point out, the statute itself makes the jurisdiction concurrent. Ark. Stat. Ann. § 67-1256. While we think that there was no reversible error in the chancery court's entertaining jurisdiction in this case for the reasons hereinabove set out, appellants further argue that the chancery court had no jurisdiction of the action, because it was brought under the statute. Appellants contend that the statute is an unconstitutional extension of the jurisdiction of the chancery court relying upon Article 7 § 15 of the Arkansas Constitution and such cases as Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W. 2d 777; Patterson v. McKay, 199 Ark. 140, 134 S.W. 2d 543; Gladish v. Lovewell, 95 Ark. 618, 130 S.W. 579; Hester v. Bourland, 80 Ark. 145, 95 S.W. 992. For the most part these cases fall into that classification wherein the chancery court is, and always has been incompetent to act, and for that reason are not controlling here, as we will show. Patterson v. McKay, however, is different and is actually somewhat supportive of the opposite point of view, i.e. a statute that does not grant jurisdiction but only establishes a statutory method of exercising jurisdiction already existing does not run afoul of the constitutional prohibition.

In considering the question thus posed, we must examine the statute in question insofar as it relates to the case at hand. Appellees alleged that Titan Oil & Gas, Inc. sold undivided working interests in non-producing oil and gas leases on lands in Lubbock County, Texas, in violation of the Arkansas Securities Act [Ark. Stat. Ann. § 67-1235 et seq (Repl. 1966 and Supp. 1973)] in that they were securities which had not been either registered or exempted from registration and the sales were effected through means o-f fraudulent representations and statements w.hich operated as a fraud or deceit upon them. They offered to deliver to the court the certificates issued to them and to pay into the treasury of the court all income they had received on the securities. They prayed for recovery of the consideration paid for these certificates. They amended the complaint to specify the purchases, considerations paid and the representations, statements and actions which they contended operated as fraud and deceit upon them. They alleged that they were entitled to recover the consideration paid by them, interest, costs and a reasonable attorney’s fee pursuant to Ark. Stat. Ann. § 67-1256 and to have the contracts rescinded, cancell-ed and held for naught, and for recovery of the consideration paid, under traditional principles of equity. Thus it will be seen that appellants proceeded not only under the statute but under preexisting equity principles.

Under the Arkansas Securities Act is is unlawful for any person, in connection with the offer or sale of any security (1) to employ any device, scheme, or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make statements made, in the light of circumstances under which they are made, not misleading, or, (3) to engage in any act, practice <3r course of business which operates or would operate as a fraud or deceit upon any person. Section 67-1256 provides that one who offers or sells a security by means of such untrue statement or omission is liable to a buyer who did not know of the untruth or omission, either at law or in equity, for the consideration paid for the security, interest at 6% per annum, costs and reasonable attorney's fees, less income on the security received by purchaser, or for damages if the buyer no longer owns the security.

It will be seen that the cause of action under the statute is not a great deal broader than the common law actions of fraud and deceit and the equitable proceeding for cancellation of a contract and rescission, particularly when we consider that type of fraud usually referred to as “legal or constructive fraud,” i.e., misrepresentations having a tendency to deceive others, but made as true without knowledge of their falsity and without any moral guilt or evil intention. See Hunt v. Davis, 98, Ark. 44, 135 S.W. 458; Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244; Standard Motors Finance Co. v. Mitchell Auto Co., 173 Ark. 875, 293 S.W. 1026; Miskimins v. City National Bank of Ft. Smith, 248 Ark. 1194, 456 S.W. 2d 673. The general rule is that where there is fraud, equity has either exclusive or concurrent jurisdiction. Wadkins v. Bank of Vandervoori, 176 Ark. 1206, 3 S.W. 2d 696. Where courts of equity have subject matter jurisdiction they do not lose it by reason of a statute giving similar jurisdiction to courts of law. Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826; King v. Payan, 18 Ark. 583.

The exercise of equity jurisdiction was not frozen in a rigid mold by the constitutional limitation. While new subject matter jurisdiction cannot be conferred by legislative act, it is quite clear that new procedures, approaches and treatment may be prescribed, followed and applied. Otherwise, the maxim that equity suffers no wrong to be without a remedy, the very foundation of chancery court jurisdiction, would be meaningless. The statute here defines what constitutes the legal wrong (fraud) entitling a buyer to have rescission and restitution. There is no reason why the remedy for the wrong should not be granted by the court which has always had jurisdiction of the “wrong” and the “remedy” prescribed. We have stated that equity must always be as astute in preventing fraud as corrupt minds are in conceiving it and that a court of conscience must keep the granted relief abreast of the current forms of iniquity. Renn v. Renn, 207 Ark. 147, 179 S.W. 2d 657. We have added that equitable relief should not be refused because of technical distinctions, where the evidence firmly establishes that fraudulent acts have been committed. Vaughan v. Sutton, 236 Ark. 310, 365 S.W. 2d 863. We have recognized that statutory provisions may constitutionally affect the method of exercising existing equity jurisdiction or regulate the chancery practice. Patterson v. McKay, supra; Wilson v. Lucas, 185 Ark. 183, 47 S.W. 2d 8.

To summarize, the action brought by appellees was based primarily upon allegations of fraud upon which they sought cancellation of certain instruments and contracts and restitution, and being peculiarly within the established powers of equity, was one in which equity jurisdiction was properly assumed and exercised, even though the law court might have had concurrent jurisdiction and some of the relief sought as an incident to the action might have been of a purely legal nature. See Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244; Tandy v. Smith, 173 Ark. 828, 293 S.W. 735; Schley v. Dodge, 192 Ark. 365, 91 S.W. 2d 280; 12 C.J.S. 943, 1022, Cancellation of Instruments, §§ 2, 50. There was no error on this score.

Appellants next contend that appellee Gary E. Jones was not entitled to recover under the Arkansas Securities Act. This argument is based upon provisions of Ark. Stat. Ann. § 67-1256 (f). That subsection bars any person who has made or engaged in the performance of any contract in violation of the act, with knowledge of the facts by which its making or performance was in violation, from basing any suit on such contract. Appellants argue that this appellee was a vice-president of Titan and a salesman for them who made most of the sales in Arkansas and received commissions for the sales, that he contacted prospective purchasers, furnished them with copies of a prospectus and other instruments, invited them to meetings where the interests were discussed and generally participated actively in the sale of the interests involved in this action.

Among the findings of fact made by the chancellor was that sales of interests were made to Gary E. and Janie J. Jones on August 9, November 1 and 23, and December 17, 1971 and January 21, 1972, but that, even though Gary E. Jones received commissions for sales to purchasers in Arkansas, the record was unclear as to whether those commissions or his activities were directly or materially involved in any of the sales to the parties to the action. It should be noted that appellee Gary E. Jones was made a party to the action by a cross-complaint filed by appellants, to which he responded with a counterclaim based on virtually the same allegations as were made by other appellees in the complaint in the action.

Appellee Shipley, a purchaser of some of the interests involved, first heard of Titan Oil & Gas Co. Inc. in June or July, 1971, from Gary Jones, a friend and fellow employee at the Arkansas Department of Health. Gary Jones only said that he had heard about some wells in Louisiana and mentioned the name of his father, Gomer Jones. Shipley decided to invest after he had thoroughly read a prospectus and letter from an accounting firm in Monroe, Louisiana, given him by Gary Jones. Sometime in September or October, he received a map which was either presented at a meeting held then, or given him by Gary Jones. Gary Jones invited him to the meeting. Shipley was told by Gary Jones that he was representing Titan and receiving commissions from it. Shipley said that there was nothing false, fraudulent or misleading in the prospectus, or in the accounting information, except that he understood from what appellant Murphy later said that the statement was based on actuality, rather than assumptions, even though the statement itself stated that it was based upon certain assumptions. He knew of nothing that Gary Jones said that was false, fraudulent or misleading.

James P. Jones was also a State Health Department employee. He was told of Titan and given a prospectus by Gomer Jones. He went to the meeting in September or October upon invitation of Gary Jones. Both Gary and Gomer Jones were present at the meeting, but James P. Jones did not see them participate otherwise. James Jones later received a prospectus on a Henry Mahoney well, in which he participated, from Gary Jones. He also was invited to Gary’s home where he met and discussed oil investments with appellant Beck. He then learned that Gary represented Titan.

Gomer Jones testified that he became sales representative and a vice-president of Titan on July 1, 1971, before his son Gary became a sales representative. He contacted Gary about the matter on the same day he contacted James P. Jones. Appellant Harvey also testified that Gary Jones was elected as vice-president subsequent to Comer’s election in July. He said that all sales made in Arkansas were made by Gary Jones, Gomer Jones or Arlen Craig, Jr. Harvey said that the meeting with investors in the fall of 1971 was held at the request of “Mr. Jones”, but it is apparent that the reference was to Gomer Jones.

Gary Jones said that he and his wile made an investment in a well known as Gertrude Wright No. 1 on August 9, 1971, after having read some material relating to it shown to him by his father. He said after this well proved to be a producer, his father asked him if he would be interested in being a sales representative. He said that he had never participated in, or received notice of any stockholders' meetings, or received any dividends from Titan and that he had never before been involved in any oil ventures or “security deals".

There is absolutely no. evidence that Gary Jones made any representations to any of the appellees or that he had any knowledge whatever of “...the facts by reason of which [any contract made] was in violation...” of the statute. Furthermore, he did not sue on a contract. He sued to cancel contracts made and to recover the consideration paid by him. It would be difficult to say that Gary Jones “made or engaged in the performance" of the contracts on which he was the purchaser in violation of the provisions of the act. To say the least, we could not say that there was a preponderance of evidence showing that Gary Jones was barred from recovery under the act.

Appellants next contend that there was not sufficient evidence to establish common law fraud or deceit on their part. This point for reversal seems totally dependent upon appellants’ argument that the chancery court had no jurisdiction of the statutory action. There is no argument that the evidence was insufficient to establish a cause of action under the Arkansas Securities Act. It is quite clear that the chancellor held that appellees had established a cause of action under the act and that the court’s decree is based substantially upon that holding with particular emphasis on omissions of appellants to state material facts in order to prevent statements made from being misleading and the failure of appellants to show by a preponderance of the evidence that they did not know, or in the exercise of reasonable care could not have known, of the untruth or omission. Since we have held that the trial court did have jurisdiction of the action on statutory grounds, we find it unnecessary to determine where the preponderance of the evidence as to common law fraud and deceit lies. No useful purpose would be served by a review of the evidence as to the liability of appellants under the act, and it would only serve to extend this already lengthy opinion. It is sufficient to say that we could not say that the chancellor’s holding or the statutory cause of action was erroneous or clearly against the preponderance of the evidence.

Finally, appellants argue that they were entitled to contribution from both Gary . Jones and Gomer Jones under Ark. Stat. Ann. § 67-1256(b) (Repl. 1966). The chancellor dismissed appellants’ cross-complaint against Gary E. Jones but rendered judgment in their favor against Gomer Jones as to $3,150 of the collective judgment together with pro rata costs and attorney’s fees. The trial court found that, by a preponderance of the evidence, Gomer Jones was a participant in the initial sale of interests to appellees Shipley, James P. Jones and Gary E. Jones with respect to the well known as Gertrude Wright No. 1. Otherwise, it was found that as to further involvement of either Gomer or Gary E. Jones, the record was clear that they received commissions for sales, but was “unclear that those commissions or their activities were directly or materially involved in any of the sales to the parties to this action”.

The section of the act upon which appellants rely makes every officer of a seller and every employee or agent of a seller who materially aids in the sale jointly and severally liable with the seller, unless the officer, employee or agent sustains the burden of proving that he did not know, or in the exercise of ordinary care, could not have known, of the existence of facts by reason of which the liability is alleged to exist. It also provides for contribution as in cases of contract among those liable.

There is little need to discuss the evidence as to the participation of Gary Jones in the sale to James P. Jones. Gomer Jones contacted both James and Gary with reference to the sale of interests on the same day. As a result, Gary himself invested in Gertrude Wright No. 1 and when it was reported that this well was a producer he became enthusiastic. Other purchases made by James were made after he attended a meeting at which appellants Harvey, Murphy (president) and Beck (vice-president) spoke and presented material, and on another occasion after Gary Jones had merely brought him a prospectus. James Jones said that neither Corner nor Gary participated in the meeting even though Gary had invited him. He also had a private conversation with Beck just after the meeting, but before he invested in the John Owens well on that occasion.

Shipley found nothing misleading about material Gary Jones furnished. Gary did nothing more than invite Shipley to the meeting addressed by Murphy, Beck and Harvey. The question whether Gary Jones materially aided in these sales was one of fact, the resolution of which depended to some extent on the inferences drawn from the testimony. We are unable to say that the chancellor’s finding on this question was clearly against the preponderance of the evidence.

We quite readily agree with the chancellor that Gomer Jones was a material participant in the sales of interests in the Gertrude Wright No. 1 well. We likewise cannot say that denial of further relief against him was erroneous. Appellants had the burden of proving by a preponderance of the evidence that his further participation materially aided in the sales. The chancellor’s saying that the record was unclear; means to us that, in his opinion, there was not a clear preponderance, in which case appellants failed to meet their burden. Neil v. Deming, 21 S.W. 1066. “Preponderance of the evidence” means evidence of greater convincing force and implies an overbalancing in weight. Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W. 2d 442. Where the evidence tends equally to sustain two inconsistent propositions, the party having the burden of proof cannot prevail. Standard Pipe Line Co. v. Burnett, 188 Ark. 491, 66 S.W. 2d 637, cert. den. 292 U.S. 649, 545 S. Ct. 857, 78 L. Ed. 1499; Biddle v. Jacobs, 116 Ark. 82, 172 S.W. 258; St. Louis I.M. & S. Railway Co. v. Henderson, 57 Ark. 402, 21 S.W. 878. See A.M.I. Civil, 2d Ed., 202.

In arriving at his conclusion, the chancellor necessarily had to decide to some extent what inferences were proper to be drawn from the evidence, and to weigh the evidence in the light of his evaluation of the credibility of the witnesses. There were no really disinterested witnesses on this point. There is no indication in Shipley’s testimony that Gomer Jones actively participated in any sales to him after the first investment in Gertrude Wright No. 1. James P. Jones knew that Gomer Jones was being paid commissions on his purchases, but gave no indication that Gomer had actively participated in the sales after his original purchase. Gomer Jones stated that he was never consulted by Titan officers about anything except sales, but he admitted he had encouraged the meetings in Arkansas in which they participated. He also testified that he knew nothing about the oil business and that he never saw any meeting at which minutes were taken. He introduced the appellants who were officers of Titan at meetings appellees attended. There is no indication that he did more than this at a meeting, except for inviting persons present to ask questions of Harvey, Beck and Murphy. Gomer Jones said that he invested his commissions in the various operations in which Titan was selling interests.

The weight to be given evidence depends upon its effect in inducing belief. Romines v. Brumfield, 199 Ark. 1066, 136 S.W. 2d 1023. Where evidence is in conflict, that which preponderates is the evidence entitled to greater weight in respect to credibility. Missouri Pacific Railroad Co. v. Hancock, 195 Ark. 414, 113 S.W. 2d 489. There is a preponderance of the evidence only when there is a preponderance of all reasonable inferences that might be drawn to prove the principal facts sought to be established, sufficient to outweigh all other contrary inferences. Smith v. Magnet Cove Barium Corp., supra.

Even though we try chancery cases de novo on appeal, we will affirm the chancellor’s decision and will not disturb his findings of fact, unless they are clearly against the preponderance of the evidence. Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248; Bollen v. McCarty, 252 Ark. 442, 479 S.W. 2d 568. Where the testimony is in sharp conflict, or is evenly balanced, and the state of the record is such that we are in doubt as to where the preponderance of the evidence lies, we will be governed by the chancellor’s findings if he has not erroneously applied the law. Willis v. Denson, 228 Ark. 145, 306 S.W. 2d 106; Brunson v. Reinberger & Collier, 134 Ark. 211, 203 S.W. 269. On the record here, when we consider those factors bearing on the chancellor’s decision, we are unable to say that he erred in weighing the evidence.

Since appellant has not demonstrated error, the decree is in all respects affirmed.

Supplemental Opinion on Rehearing delivered January 20, 1975

John A. Fogleman, Justice.

In their petition for rehearing, appellants have correctly pointed out that in our opinion of December 2, 1974, we overlooked their contention that Gary E. Jones and Gomer Jones should be held liable under Ark. Stat. Ann. § 67-1256 (b) as officers of Titan Oil & Gas, Inc., the seller. Even though this point was only casually stated in appellants’ brief, it was argued in their reply brief. It was clearly overlooked by the trial court, even though, when the pleadings are construed in favor of the pleader, the question was in issue. Sec. 67-1256 (b) clearly makes an officer of a seller liable jointly and severally with and to the same extent as the seller unless he was a non-seller-and sustains the burden of proving that he did not know and in the exercise of reasonable care could not have known of the existence of the facts by reason of which the liability was alleged to exist. It provides for contribution “as in cases of contract among the several person so liable”.

As we read the statute, an officer who materially aids in a sale would be liable regardless of his knowledge or lack of knowledge. Consequently a discussion of this liability on the part of Gary E. Jones and Gomer Jones is material to our af-firmance of the chancellor’s finding on this liability only and we adhere to our original opinion insofar as this question is concerned. On the other hand, the chancery court did not consider or decide the question of the liability of an officer who is a non-seller.

The general rule in equity cases is that, with all the record fully developed, we should finally decide a case here instead of remanding it to the chancery court, particularly when we can plainly see what the rights and the equities of the parties are. Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620; Pickett v. Ferguson, 45 Ark. 177, 55 Am. St. Rep. 545. We can say that this is the case with reference to the liability of Gary E. Jones. We note that under Ark. Stat. Ann. § 67-1256 (f) Gary E. Jones would have been barred from recovering if he had knowledge of the facts by which the making or performance of the contract with him was in violation of the Arkansas Securities Act. In our original opinion we stated that there was no evidence that Gary E. Jones had any knowledge whatever of the facts by reason of which any contract made was in violation of the statute and that we could not say that there was a preponderance of the evidence showing that Gary Jones was barred from recovery.

The testimony shows that Gary E. Jones had heard about these wells in Louisiana and that he had accepted, at face value, a prospectus and a letter from Donald & Kuhn, accountants in Monroe, Louisiana. The appellee-plaintiffs did not contend that these were misleading. There was also testimony that Gary E. Jones attended the meetings that other purchasers attended but otherwise did not participate in the meetings. Gary E. Jones received the prospectuses from his father Gomer, who asked him to read them. It was only after the first well was a producer that his father asked him if he would be interested in being a seller’s representative. He made investments just as the other purchasers did. He testified that he never received notice or participated in any shareholders’ meetings. He said that he had never been involved in any oil ventures or securities dealings prior to these. According to appellant Harvey, Gary E. Jones was not elected vice president until sometime in the fall of 1971, “around October”. At this time, Shipley and James P. Jones had already purchased interests in at least one well. We feel that Gary E. Jones sustained the burden of proving that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability was alleged to exist.

The situation is quite different as to Gomer Jones. We cannot say that we can plainly see what the rights and the equities of the parties are as to him or the decree which should have been rendered on the cross-complaint against him. It is true that the chancellor held that there should be contribution on his part as to $3,150 of the collective judgment against Titan and its other officers, together with pro rata costs and attorneys’ fees. This holding was obviously based on the sales in which Gomer Jones materially aided.

Contribution is an equitable doctrine and relief is granted only when the equities are equal. See Taylor v. Joiner, 180 Ark. 869, 24 S.W. 2d 326; U. S. Fidelity and Guaranty Co. v. Aetna Casualty & Surety Co., 418 F. 2d 953 (8th Cir.1969). See also Risor v. Brown, 244 Ark. 663, 426 S.W. 2d 810. It is abundantly clear that the chancery court left this issue undecided and that questions of fact were involved. Since this is so, we exercise our discretion to remand this case to the trial court for a determination of this issue on the cross-complaint against Gomer Jones.

In all other respects we adhere to our original opinion.

      Although appellants express doubt that the certificates involved here are securities under the Act, referring to Shepherd v. State, 246 Ark. 744, 439 S.W. 2d 627, they did not urge the inapplicability of the statute as a point for reversal.