author: Ed P. McFaddin, Associate Justice.

text:
    Compton v. Talley.
    5-1174
    299 S. W. 2d 653
    Opinion delivered March 11, 1957.

      Paul B. Pendleton, Gordon PL. Sullivan and Harry G. Robinson, for appellant.

      Wright, Harrison, Lindsey & Upton, for appellee.
   Ed P. McFaddin, Associate Justice.

This case stems from a traffic mishap. The jury returned a verdict for appellees; and appellants claim (1) that there is no evidence to sustain the verdict, and (2) that the Trial Court committed error in giving an instruction.

I. The Evidence. Mr. J. T. Compton borrowed the car of his wife, Mrs. Aileen Compton, and took his mother, Mrs. Gussie Compton, for a pleasure ride. Mr. Compton was driving west on Markham Street in Little Rock and attempted to make a left turn into Thayer Street. Appellee, Talley, was driving east on Markham Street and drove into the right side of the Compton car, damaging the vehicle and causing personal injuries to Mrs. Gussie Comp'ton. Mrs. Aileen Compton and Mrs. Gussie Compton brought this action against Talley and his employer. The defendants claimed that the mishap occurred because of the negligence of J. T. Compton in attempting the left turn in the face of oncoming traffic. The jury verdict was for the defendant.

Was there any substantial evidence to sustain the verdict? We conclude that there was. The defendant, Talley, testified that he was driving in the regular flow of traffic; that he was proceeding normally; that he was not passing any car; that there was a car a short distance in front of him; that he was keeping a lookout; that as soon as he saw the Compton car attempting to turn left, he (Talley) immediately applied his brakes and did everything possible to avoid the mishap. The testimony of Talley was sufficient to take the case to the jury on the issue of who was at fault.

It is true — as appellants claim — that there was a considerable amount of evidence tending to indicate that Talley was driving faster than the speed limit and that Compton gave the left turn signal in ample time for Talley to have avoided the mishap. But it is not for us as appellate judges to decide where was the preponderance of the evidence ; our duty, and our only right, in a case like this one is to decide whether there was substantial evidence to take the case to the jury. We do so find.

II. The Challenged Instruction. The Trial Court gave the jury a number of instructions, all germane to the issues; and appellant challenges only the defendants’ instruction No. 3, which was given over the plaintiffs’ general objection. The instruction reads :

“You are instructed that the statutes of the State of Arkansas provide that: ‘The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn.’ If you find and believe from the evidence that the collision involved here was caused solely by negligence on the part of J. T. Compton in failing to yield the right-of-way to John B. Talley, then the plaintiffs would not be entitled to recover, and your verdict should be in favor of John B. Talley. ’ ’

Appellant offered only a general objection to this instruction; but insists that the instruction (1) is a binding instruction, and (2) is inherently erroneous; so that a general objection is sufficient.

That this instruction is a binding instruction is admitted, because it told the jury that the verdict “should be in favor of John B. Talley.” See Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304; and Clark v. Duncan, 214 Ark. 83, 214 S. W. 2d 493. It is true that a general objection is sufficient against a binding instruction that is inherently erroneous. In Mo. Valley Bridge & Iron Co. v. Malone, 153 Ark. 454, 240 S. W. 719, we said: “These instructions were inherently erroneous, and a general objection to them was sufficient.” See also Clark v. Duncan, 214 Ark. 83, 214 S. W. 2d 493.

The mere fact that the instruction was a binding instruction does not make it fatal. To be fatal, the binding instruction must be inherently erroneous. So the question to be decided is, whether the defendants ’ Instruction No. 3 was “inherently erroneous.’’ An instruction is ‘‘ erroneous” if it misstates the applicable rule of law. “Inherently” is the adverb of the adjective “inherent”, and here has the meaning of “firmly or permanently contained, in-dwelling, or intrinsic”. Wherein was this instruction in error, and wherein was such error intertwined in the rule of law so that it could not be separated?

We find no error in the instruction. It is certainly the law that, if the collision was caused entirely by the negligence of an unsued third party, the defendant would not be liable; and that is what the instruction said. J. T. Compton was not a party to this litigation, and yet he was the driver of the Compton vehicle. The instruction says that, if the collision was caused entirely through the negligence of J. T. Compton, the defendant, Talley, would not be liable. That is the law.

Appellant claims that the vice in the challanged instruction is in the word ‘‘solely”. Appellant says that the word ‘ ‘ solely” is ambiguous and misleading; and cites our recent case of Whaley v. Crutchfield, 226 Ark. 921, 294 S. W. 2d 775. In that case an instruction used the words “sole proximate cause”. We held the instruction to be erroneous: not because it used those words but because the instruction ignored the issue of the contributory negligence of one of the drivers. Whaley v. Crutchfield does not hold that the words “sole proximate cause” make an instruction “inherently erroneous”. In the ease at bar: if appellants had considered the word “solely” — as used in defendants’ Instruction No. 3 — to be ambiguous, then a specific objection should have been offered: in the absence of such a specific objection, appellants cannot now— under a general objection — claim a mere matter of ambiguity. The challenged instruction was not inherently erroneous.

Affirmed.

Me. Justice Robinson not participating.

       The statute quoted is § 75-622 Ark. Stats.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    Weeks v. McClanahan.
    5-1193
    300 S. W. 2d 6
    Opinion delivered March 11, 1957.
    [Rehearing denied April 15, 1957.]

      Rieves S Smith and Giles Dearing, for appellant.

      Hale & Fogleman, for appellee.
   Minor W. Millwee, Associate Justice.

This is an action by a tenant against his subtenant and landlord to recover damages in the form of double rent for the alleged willful and wrongful holding over of the rented lands after the term. For clarity the parties will be referred to as they were designated in the trial court.

The action was filed by plaintiff, P. McClanahan, against the defendants, Alton Weeks and J. O. Anderson. The issues presented by the pleadings were summarized by the trial judge in a preliminary instruction to the jury, as follows: “Gentlemen of the jury, in this case P. McClanahan sues the defendants Alton Weeks and J. O. Anderson, alleging that (they) conspired and colluded together in wrongfully holding over 412 acres of land which this plaintiff says that he had rented from the defendant, J. O. Anderson, for the year 1952, and to which the plaintiff says he was entitled to the possession of for the year 1952. The plaintiff further alleges that the defendant, J. O. Anderson, wrongfully prevented him from taking charge of the proceeds of the crop produced by the defendant Weeks and wrongfully converted said crops to his own use and to that of the defendant, Weeks, thereby depriving him of his right to enforce his landlord’s lien and of the fair rental value of said property.

“The plaintiff McClanahan admits that he was indebted to the defendant Alton Weeks in the sum of $1,164.-75, and he admits that he was indebted to the defendant J. O. Anderson in the sum of $751.00.

“The defendant Alton Weeks denies that he wrongfully held over the 412 acres for the year 1952, and further denies that he conspired or colluded with the defendant J. O. Anderson to hold over said 412 acres for the year 1952, and further denies that he conspired with J. O. Anderson to defeat the plaintiff, McClanahan, in the enforcement of any of his rights and claims. He says that he had an agreement with the plaintiff McClanahan whereby he rented said lands for the year 1952 for the sum of $12.00 per acre. By way of cross-complaint against the plaintiff, McClanahan, he alleged that the plaintiff McClanahan is indebted to him in the sum of $1,376.75.

“Alton Weeks by way of cross-complaint against J. O. Anderson alleges that Anderson wrongfully refused to permit him to sell said cotton upon his request and that by reason of a later decline in the market value of the cotton, he was damaged thereby.

‘ ‘ The defendant and cross-defendant Anderson on the other hand denies that he colluded with the defendant Weeks or that the plaintiff McClanahan was damaged by reason of any conspiracy or collusion on his part and that of Weeks, and says that he should recover on his cross-complaint against the plaintiff McClanahan the balance due on his rent which he alleges is $751.00, together with interest at the rate of 6% per annum, which after the allowance of credits against the principal, amounts as of May 10,1953, to a total of $936.60, for which he asks judgment against the plaintiff McClanahan. He also denies that he is indebted to the cross-complainant Weeks in any amount and alleges that they have had a settlement of their account.”

By agreement of counsel the issues were presented to the jury at the conclusion of a lengthy trial upon ten special interrogatories in answer to which that body found that for the year 1952 Weeks wrongfully and willfully held over the lands in question which had a fair rental value of $18.00 per acre and that Anderson conspired and colluded with Weeks in such holding over; that Anderson converted the proceeds of the crop of Weeks to the latter’s damage in the sum of $1,148.97; that plaintiff owed Weeks $1,248.75 and Anderson $751.00; and that there was an agreement by Anderson with Weeks to return a portion of the rent paid by Weeks. In conformity with these findings the Court entered judgment finding that plaintiff should recover from both defendants the sum oí* $11,051.00 which represented double the fair rental value of the land for 1952 less a credit already paid by Weeks; that Anderson recover from plaintiff the sum of $751.00 with interest to the date of a tender of the payment of the rent note by plaintiff to Anderson; that Weeks recover from plaintiff $1,248.75; and that Weeks recover from Anderson $1,148.97 for conversion of part of the cotton grown on the lands.

According to the proof presented by plaintiff, the 412 acres in question is part of a larger tract of 1236 acres which plaintiff leased from Anderson for the years 1950, 1951 and 1952 at $11.00 per acre. Weeks had rented the 412 acres from Anderson in 1949 and was in possession when plaintiff took over under his lease in 1950. At Anderson’s insistence plaintiff sublet the land to Weeks at $12.00 per acre during 1950 and 1951 with Weeks executing notes to plaintiff for said rents. On or about November 1, 1951, plaintiff advised Weeks that he could sublet the land to others for $20.00 per acre and that he would not renew the rent contract for 1952 on the basis of $12.00 per acre. Upon Weeks’ refusal to agree to pay the increased rental plaintiff served a written notice upon him to quit the premises on or before December 31, 1951. About this time Weeks rented another large tract from another party for the year 1952.

Anderson was anxious for Weeks to stay on his land for several reasons and acted as his advisor and secretary in negotiations with plaintiff. Anderson was furnishing Weeks in his operations on these and other lands and held a mortgage on all his equipment. Under his lease with plaintiff Anderson had no' control over ginning of the cotton but Weeks was required to gin all cotton at a cooperative gin in which Anderson was the principal stockholder and received a “kick-back” or rebate of $6.00 per bale. In November, 1951, Anderson tried to purchase plaintiff’s contract on the land held by Weeks for $1,200.00 but the offer was refused. Weeks stayed on and farmed the land without a contract with plaintiff until October, 1952, when Anderson wrote plaintiff that Weeks would not gather the crop unless some agreement could be made about the rentals.

On November 5, 1952, Anderson prepared and had Weeks sign a check payable to plaintiff and Anderson “in full settlement of rent and account” on a rental basis of $12.00 per acre for 1952. Anderson was to furnish funds to pay the check which plaintiff returned and Anderson testified that plaintiff would have been a ‘ ‘ gump ’ ’ to have accepted it. Plaintiff also tendered to Anderson the full amount of rents due him on the Weeks land under their lease agreement provided Anderson would turn over the unharvested crop and warehouse receipts for cotton already harvested, but the tender was refused. Proof of the foregoing, and other circumstances tending to show the defendants conspired and colluded in the holding over of the lands by Weeks, were disputed in part by the defendants. Weeks testified, and plaintiff denied, they orally agreed in September, 1951, that Weeks could rent the land for 1952 at $12.00 per acre.

On the cross-complaint of Weeks against Anderson for damages growing out of the alleged conversion of some of the cotton, Weeks offered evidence to the effect that in the late Fall of 1952 he made urgent requests of Anderson to permit him to sell about 60 bales of the harvested cotton as Weeks had done in previous years. Anderson refused and insisted on holding the cotton until the latter part of February, 1953, when he forced Weeks to sell at a price of approximately 33 cents per pound as compared to the price of 39 cents per pound which the same kind and staple of cotton was bringing at the time the requests were made. The testimony of Weeks as to the price differential was corroborated by experienced farmers and cotton buyers, one of whom purchased the cotton in question. Anderson retained proceeds of the sale in the net amount of $13,-521.27 with the exception of about $330.00 which he turned over to Weeks.

For reversal of plaintiff’s judgment against him the defendant J. O. Anderson, argues there is no substantial evidence to support the jury’s finding that he conspired or colluded with Weeks in wrongfully holding over the land for the year 1952. When considered in the light most favorable to plaintiff, we hold the evidence substantial and sufficient to sustain the conclusion that Weeks wrongfully and willfully held over the land and that Anderson conspired and colluded Avith him in doing so. Nor do we agree with Anderson’s further contention that the eviden.ce is insufficient to sustain the jury’s finding that he converted Weeks’ cotton. While the evidence is in dispute on this issue the jury was justified in concluding that Anderson refused to permit a sale of the cotton at the usual time of settlement as requested by Weeks and forced a sale several months later at a loss and to the damage of Weeks.

The statute (Ark. Stats., Sec. 50-509) under which plaintiff sought double damages against both defendants reads: “If any tenant for life or years, or if any other person who may have come into possession of any lands and tenements under or by collusion with such tenant, shall willfully hold over the same, after the termination of such term and thirty (30) days’ previous notice in writing given, requiring the possession thereof, by the person entitled thereto, such person so holding over, shall pay to the person so kept out of possession double the yearly rent of the lands or tenements so detained, for all the time he shall keep the person entitled thereto out of possession.”

The serious question is whether, under the proof, Anderson may be held liable for damages in the amount of double the yearly rental under the statute. Since the suit was brought on the theory that Anderson colluded in aiding Weeks to retain possession, and not to obtain possession for himself, there may be some merit in the contention that Anderson is not a “person who may have come into possession of any lands or tenements under or by collusion with such tenant,” as that term is used in the statute. Aside from this argument, however, we agree with Anderson’s further contention that the statute has no application to anyone unless he has been given the 30 days ’ written notice required therein. Although such notice was given to Weeks hone was served on Anderson. It is true that the jury could have found that Anderson knew of the notice served on Weeks and colluded with him in ignoring it, but we do not agree that this constituted notice to Anderson as required in the statute. We have held that the statute, being highly penal, must be strictly construed and cannot be extended by intendment beyond its express terms. See Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17, 239 S. W. 742, where the court held the statute applicable only where the holding over after the term is willful and the 30 days’ written notice requiring possession is given.

Anderson also contends the court erred in refusing to give, without modification, his Requested Instruction No. 4, the first paragraph of which reads: ‘ ‘ The jury are instructed that a landlord has a lien upon all crops grown on the demised premises in any year for the rent, without regard to whether the crop is raised by the tenant or not and without regard to any agreement between the tenant and sub-tenant. This lien accrues as soon as there is any crop. You are further instructed that Anderson, the landlord, could lawfully collect from each sub-tenant the subtenant’s portion of the total rent owed by McClanahan and that McClanahan was without right to collect from any sub-tenant the rent or any portion thereof owing by such sub-tenant to McClanahan unless McClanahan had paid his rent in full to Anderson, which he has not done in this case.” The court gave the instruction as modified by deleting the words in italics and substituting therefor, ‘ ‘ or had tendered payment in full of such rent to Anderson.” In view of the evidence to the effect that plaintiff made a tender of payment in full of the rents due Anderson, which the latter refused, the instruction as requested was misleading and would have amounted to a comment on the evidence by the court. The modification simply cured this defect.

Anderson also argues the court erred in allowing him interest on plaintiff’s rent note only from the date of the alleged tender of the rents by plaintiff. We think counsel means to contend that the court erroneously allowed interest only to the date of tender because that is what the court did. The evidence is practically undisputed that plaintiff made a full tender of all the rents due Anderson. While Anderson contends plaintiff’s request that the warehouse receipts be turned over to him at the time of the tender amounted to an “unreasonable condition” which rendered it ineffective to stop the running of interest, there is a paucity of proof to support this conclusion. It is well settled that a creditor cannot refuse to accept payment in full and demand interest in the future. Miller v. Miller, 193 Ark. 362, 100 S. W. 2d 74.

Defendant Weeks argues the court erred in failing to allow him interest on the account due him by plaintiff, but no objection was made below on this ground and it cannot be urged for the first time on appeal.

It follows that the court erred in assessing double damages in favor of plaintiff against the defendant, J. O. Anderson. But this error may be cured by modification. The cause will therefore be remanded to circuit court with directions to reduce said judgment in this respect to single damages only. In all other respects the judgment is affirmed.


author: George Rose Smith, Associate Justice. Paul Ward, Associate Justice

text:
    Smith v. Wittman.
    5-1166
    300 S. W. 2d 600
    Opinion delivered March 11, 1957.
    [Rehearing denied April 29, 1957.]

      John W. Moncrief and Virgil R. Moncrief, for appellant.

      Milton G. Robinson, for appellee.
   George Rose Smith, Associate Justice.

This action was brought by Walter Nolan Smith, an infant, and his father, Francis W. Smith, to recover damages for personal injuries sustained when the child was struck by a truck being driven by the appellee. The jury returned a verdict for the defendant. The only questions on appeal relate to the court’s instructions to the jury.

Whether the appellee was guilty of negligence was an issue of fact. At the time of his injury Walter Nolan was a few months less than four years old. He had gone across the gravel street in front of his parents’ home in Stuttgart, and, before attempting to return, stood at the south end of a line of mailboxes on the west side of the street. The child waited as a trailer-truck coming from the south went by, but he then entered the roadway and was hit by the appellee’s truck, which was traveling south. The plaintiffs contended primarily that Wittman was negligent in driving into a cloud of dust raised by the trailer-truck, while Wittman asserted that his visibility was good and that he could not see the little boy until he ran out from behind the mailboxes.

At the plaintiffs ’ request the court instructed the jury that a child under four is incapable of negligence or contributory negligence. The appellants complain of an instruction, given for the defendant, by which the jury were told that a motorist has the right to assume that a pedestrian will obey traffic laws and may proceed upon that assumption until he knows or should know that the pedestrian will not do so. It is argued that the effect of this instruction was to require the child to obey the traffic laws. We do not think so at all. The court had already excluded the possibility of negligence on the part of the child; the instruction now in question dealt with the situation from Wittman’s point of view and merely stated an assumption that a motorist may rely upon in the operation of his car. Kendrick v. Rankin, 219 Ark. 736, 244 S. W. 2d 495. Although the instruction may have been abstract, it. was not objected to on that ground and in any event was. not misleading or confusing to the jury. Equity Mut. Ins. Co. v. Merrill, 215 Ark. 483, 221 S. W. 2d 2.

The appellants’ main point is directed to the defendant’s Instruction No. 14: “You are instructed that in this case, the fact that the pedestrian was a child did not require the defendant to exercise any due care or proper precaution for the safety of children until he actually observed the child. ’ ’ This instruction is not a complete and accurate statement of the law, for the duty of special care would arise not only when the child was actually observed but also when he should have been observed. Russ v. Strickland, 130 Ark. 406, 197 S. W. 709. The plaintiffs’ specific objections did not touch upon this defect, however ; so the question is whether a general objection was sufficient to call the court’s attention to the matter.

Although the point is not free from difficulty we are of the opinion that a specific objection was required. The instruction is not a binding one and therefore may be clarified by the rest of the court’s charge. Elsewhere the court told the jury that if Wittman was operating his vehicle with due regard for the safety of others and the accident was caused by the child’s suddenly darting into the path of the vehicle ‘ ‘ at such time and under such circumstances that, in the exercise of ordinary care, the defendant was unable to stop his automobile in time to avoid an accident after he became aware, or ought to have become aware, of plaintiff’s danger,” then the verdict should bo for the defendant. Hence the jury were in fact informed that the duty of care arose when Wittman should have been aware of the child’s danger.

A somewhat similar issue was considered in Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021, where this instruction was objected to generally: “The court instructs you that if you believe from the evidence that defendant’s motorman in charge of its car used ordinary care in the management of said car at and near the place where the plaintiff was. injured, and that as soon as he saw plaintiff in a position of danger, said motorman used such care and caution in stopping said car to avoid injury to plaintiff as a person of ordinary care and prudence would have used under such •circumstances, then your verdict should he for the defendant.” It was contended there, as it is here, that the instruction was erroneous because it only required the motorman “to use ordinary care after he saw plaintiff in a place of danger.” We held that the earlier reference to ordinary care in the management of the car was, in the absence of a specific objection, a sufficient reference to the motorman’s duty of care before he actually saw the plaintiff. In the case at bar that prior duty of care was brought to the jury’s attention in another instruction, which may be read together with the one complained of. Had a specific request been made, it cannot be doubted that the trial court would have modified the instruction in the manner now thought necessary by the appellants. We are not willing to hold that the court’s charge, when read as a whole, was inherently erroneous. Mo. Pac. R. Co. v. Havens, 164 Ark. 108, 261 S. W. 31.

Affirmed.

Harris, C. J., and McFaddin and Ward, JJ., dissent.

Paul Ward, Associate Justice

(dissent). It is not clear from the majority opinion, as I think it should be, whether Instruction No. 14 is treated as inherently erroneous or as merely conflicting with other instructions given by the court. Personally I consider the Instruction inherently erroneous, but in either event the cause should be reversed, in my opinion.

If inherently erroneous, then the majority opinion appears to be in direct conflict with Walther v. Cooley, 224 Ark. 1027, 279 S. W. 2d 288, where, at page 1038 of the Arkansas Reports, this court quoted with approval from former decisions of this court:

‘ ‘ ‘ The rule that all the instructions must be read together, and that an omission in one instruction may be cured by another, does not extend to instructions inherently erroneous and misleading.’ ”

If only conflicting with other instructions, then, in my opinion, the cause should also be reversed, under our former decision in J. Foster & Co. v. Woolridge, 199 Ark. 551, 134 S. W. 2d 526, in reversing the trial court for giving conflicting [and misleading] instructions, we said, at page 555 of the Arkansas Reports: “To say the least of it these two instructions are so conflicting that the jury was probably misled by giving both of them.”

Likewise we said, in Arkansas Baking Company v. Aaron, 204 Ark. 990, 166 S. W. 2d 14:

“It is impossible to know in a given case, what consideration jurors gave to one instruction as distinguished from another. We only consider whether (in the light of experience and the psychology and conduct of mankind in the average) separate instructions, one being erroneous and the other correct, probably resulted in a verdict against the party who complains of the mistake.”


author: Paul Ward, Associate Justice.

text:
    Eastburn v. Galyen.
    5-1155
    300 S. W. 2d 10
    Opinion delivered March 11, 1957.
    [Rehearing denied April 15, 1957.]

      George E. Steel, Wootton, Land & Matthews, Bose, Meek, House, Barron <$ Nash and John H. Haley, for appellant.

      Nabors Shaw, for appellee.
   Paul Ward, Associate Justice.

For some years prior to March. 9, 1955, appellees, L. A. Galyen and his wife, owned a cheese plant at Mena, Arkansas, known as Seven Valley Cheese Plant. A brother of L. A. Galyen, Lindsey Galyen, actively managed the plant for appellees.

On March 9, 1955, appellant, John M. Eastburn, entered into an agreement to purchase said plant for the price of $45,000, of which $10,000 was to be paid upon completion of the agreement and the balance of $35,000 was to be paid in monthly installments of $500 plus accumulated interest — the first payment to be due May 1,1955. The sale was consummated on or about March 26,1955, through an escrow agent, a deed and bill of sale executed by appellees and a note and mortgage executed by appellants being-delivered to the escrow agent. It appears from the record that the $10,000 was paid to appellees and that the deed and bill of sale were delivered to appellants, and the note and mortgage delivered to appellees within 30 days after March 26, 1955. At the time the sales agreement was entered into John M. Eastburn took possession of the cheese plant and began operating it, and continued to operate it until the decree appealed from was rendered on May 25, 1956.

Appellants having failed to make any of the $500 monthly payments (with interest) heretofore mentioned, appellees filed, on October 5,1955, a foreclosure suit in the chancery court, asking for judgment for the full amount of the note and, if necessary, for a sale of the mortgaged property.

After filing a demurrer and several motions appellants filed an answer on April 17, 1956, in which they sought a rescission of the purchase agreement on the ground that they had been induced to purchase the plant by the fraudulent misrepresentations of L. A. Galyen and his agents. The specific allegations on fraud are substantially the following: (a) Lindsey Galyen employed one Earl Goodner to serve as the agent of appellees to assist him (Lindsey) in practicing a fraud upon appellants, and said Earl Goodner represented himself to be a friend of appellants and to be personally interested in their welfare, and that he (Eastburn) relied upon Goodner’s superior knowledge of the cheese business; (b) Appellees’ agents represented that the value of the cheese plant was in excess of $50,000 when it was known to them to be of the value of not more than $15,000, and; (c) the plaintiffs and their agents “fraudulently misrepresented the true quantity and quality and value of the stock of merchandise on hand at the time these defendants assumed control of said plant.” Appellants, in a cross complaint, asked judgment against appellees for the value of some cheese which appellees had sold for them. The trial court gave appellants judgment for $1,252.50 from which there has been no appeal.

A great deal of testimony was presented by both sides tending to show and refute fraudulent misrepresentations alleged to have been made by appellees and their agents, after which the chancellor, without making any specific findings of fact, rendered judgment in favor of appellees in the amount prayed for, after giving credit to appellants in the amount of $1,252.50, and ordered a sale of the mortgaged property if said judgment was not paid within the time specified by the court.

After a study of the entire record, and after weighing the able arguments presented by both sides, we have reached the conclusion that appellants, by their actions hereinafter set forth, waived any right they may have had at one time to rescind the purchase agreement because of fraudulent misrepresentations. In accordance with this disposition of the case it will not be necessary for us to discuss the testimony in detail, or to determine whether or not said misrepresentations of facts were made by appellees or their agents, or to evaluate several propositions of law which are discussed at some length.

The substance of Mr. Eastburn’s testimony relative to misrepresentations of facts, fraudulent or otherwise, which induced him to purchase the cheese plant, is the following:

(a) He stated that if he had known a hoop of cheese was worth only $24.50 instead of $35 as was represented to him, and if he had known that cream was bringing only 60 cents a pound instead of 78 cents as was represented to him he would not have bought the plant.

(b) If he had known that Mr. Goodner was acting as an agent for appellees he would not have considered buying the plant.

(c) He stated that appellees told him they could manufacture 94 hoops of cheese in 10 days but that he could manufacture only 64 hoops in 10 days; and that when he bought the plant he was told there was 108 hoops of cheese when in fact there were only 94.

The evidence shows very clearly, and certainly the trial judge was justified in finding, that appellants knew about the above alleged falsifications within a few days or a few weeks at most after they went into possession of the cheese plant. According to Eastburn’s own testimony he found out within 10 or 12 days after taking charge of the plant that cheese was selling for only $24.50 per hoop and that cream was selling for only 60 cents a pound. Within the same period of time he learned that there were only 94 hoops of cheese conveyed to him instead of 108, and he also learned how much a hoop of cheese weighed. By Eastburn’s own testimony it appears that he was not dissatisfied at all with the amount of cheese the plant would produce. He was asked this question: “You were well pleased with what the plant would produce ? ’ ’ East-burn’s answer to this question was: “Oh, yes.” As to the weight of a hoop of cheese Eastburn gave this testimony: Q. “But you had the hoops of cheese?” A. “Yes, I weighed some of the hoops they were not weighing 100 pounds. ’ ’ Eastburn further, testified:

Q. ‘ ‘ When did you first discover that a can of cream wouldn’t bring $35?”

A. “When we shipped the first time.”

Q. “When was that?”

A. “ I haven’t these dates. ’ ’

Q. “Howmany days after March'9?”

A. “Well, let’s see. I believe they picked up every week so it would be within ten days. ’ ’

Q.£ £ What did you discover then ? ’ ’

A. “Well, we were very much disappointed in our weights and in our prices, and we thought there must have been some mistake.”

Q. “All right. Did you go right then and act promptly and offer to turn this business back to the sellers?”

A. “No.”

Q. “You didn’t say a thing to them about it?”

A. “It is kind of hard for me to accuse anybody.”

As to Eastburn’s knowledge of the actual number of hoops of cheese, he testified:

Q.£ £ When did you first discover that there were some hoops of cheese short?”

A.£ £I think it was twelve. ’ ’

Q.£ £ When did you discover that ? ’ ’

A.£ £ That was the first load, including the inventory and the few hoops we had made. ’ ’

Q.£ £ Was that a few days after you bought the place ? ’ ’

A. “Yes.”

If Mr. Eastburn was deceived by Earl Goodlier acting as appellees’ agent without his knowledge, he found out the true situation by about May 1,1955. This fact is shown in this way: Goodner sued appellees for a $1,000 commission fee, and garnisheed the escrow agent for that amount. This matter was settled about May 1,1955, and Eastburn testified that he learned of Goodner’s agency relationship to appellees at that time.

Therefore it appears that on or before the first of May, 1955, Mr. Eastburn had learned the true situation regarding all matters about which he Maims to have been deceived, yet he had made no complaint whatever about any of these before the foreclosure suit was filed on October 5, 1955. Not only did appellants make no complaint to appellees, but they continued to operate the cheese plant all along, even up to the day of the foreclosure decree on May 25,1956. While so operating the cheese plant Mr. Eastburn had many contacts with L. A. Galyen (one of the appellees) who also assisted him on numerous occasions in the operation of the plant, and in buying new equipment for the plant.

As before stated, it is not necessary for us to decide whether any material misrepresentations were made to Mr. Eastburn or whether, if made, he relied on them. We do hold however that, if Mr. Eastburn was deceived by any such false misrepresentations, he waived any right he might have had to rely on them for a cancellation of the sales contract by failing to make a complaint promptly or within a reasonable time after learning of the alleged deception. This court has frequently and clearly announced the rule applicable to a situation such as presented in this case. See: Fleming v. Harris, 142 Ark. 553, 219 S. W. 33; McCormick v. Daggett, 162 Ark. 16, 257 S. W. 358; Pylant v. Braden, 166 Ark. 377, 266 S. W. 272; St. Louis-San Francisco Railway Company v. Hall, 182 Ark. 476, 32 S. W. 2d 440, and; Minton v. Hall, 218 Ark. 92, 234 S.W. 2d 515.

The original note and mortgage sued on by appellees were lost, and appellants make the contention that East-burn’s wife did not sign and that the mortgage did not contain a waiver of the right of redemption. We have carefully examined the record in this connection and are convinced that the Chancellor’s findings contrary to appellants’ contentions are not against the weight of the evidence. The undisputed evidence is that the mortgage was of standard Arkansas form. As we interpret Mr. Eastburn’s testimony he admits that his wife did sign.

Q. “Yes, sir, you may answer my question. You and your wife don’t deny executing that mortgage and note?”
A. “Yes, but I don’t remember all that was in that mortgage and note.”

As it appears to us, if by using the word “yes” Mr. East-burn meant to deny that he and his wife signed the note and mortgage there would have been no reason for the rest of his answer. At any rate a reputable attorney prepared all the papers and it does not appear likely that he would have overlooked a matter so obvious and so important as the wife’s signature.

Affirmed.

Justice George Rose Smith not participating.


author: Sam Robinson, Associate Justice.

text:
    Smith v. Nelson.
    5-1162
    299 S. W. 2d 645
    Opinion delivered March 11, 1957.

      W. H. McClellan, for appellant.

      Bigun Rasmussen and John L. Hughes, for appellee.
   Sam Robinson, Associate Justice.

The issue here is the validity of a purported will. On February 15, 1953, Harvey J. Nelson executed a typewritten instrument which he doubtless intended to be his will. The document, however, does not meet the requirements of the law so as to constitute it a valid will. Only one witness signed the instrument. Ark. Stats. § 60-104. Subsequent to Nelson’s death, the purported typewritten will was offered for probate, but probate was denied because of the invalidity of the document as a will. Later, the same purported will, along with two letters written by deceased to his wife, was again offered for probate, the proponents of the will contending that the purported typewritten will became a part of a valid will when coupled with the letters written by deceased in his own handwriting to his wife. A demurrer to the petition to probate was overruled. Those protesting probation of the alleged will have appealed.

The purported typewritten will is as follows:

“The last will and testament of Harvey J. Nelson February 15,1953.

I, Harvey J. Nelson of the City of Benton Saline County Arkansas. Do make and declare this to be my last will and Testament, hereby revoking all former wills made by me.

First: I request that my Executor herein named shall pay all of my funeral expenses, expenses of my last illness, expenses of administration, and all claims against my estate, as soon as practicable.

Second: I give, devise and bequeath all my personal property go to my beloved wife Mary Gr. Nelson to have and use as she sees fit, and that she also have charge of my real estate to hold until her death receiving the rentals therefrom, and that she shall not be required to furnish sureties on bond as such.

In event my wife and I should pass away at the same time or at the death of my wife, I desire that the Probate Court of Saline County appoint an Administrator.

He being required to make bond satisfactory to tbe said court.

That my property of every kind and description be equally divided between Edward Pounders Nelson, Mary Jo Armstrong Sivils, and James Nelson Power.

I have hereunto set my hand and seal this 14th day of February 1953.

Harvey J. Nelson

Seal

D. Y. Young Witness

County Clerk”

Subsequently, a letter was written by Nelson to his wife, which we will refer to as Letter No. 1:

“Mrs. Harvey Nelson Benton, Arkansas

Dearest Wife,

When you read this my body will be sleeping in Rose Mont and my Soul will be gone to God Who gave it.

According to my Will in the Courthouse valt, in the County Cler/is office, you are to do as you please with our personal things.

I hope you will help Mary Jo and Robert and Edward and his wife get started in life. Mary Jo, Robert and Eddie could live with you and you would be happy.

Use your money from the rentals to have the things that you need, and to keep the property in good repair and pay taxes of all kind. My life has been happy with you, but today I am with the Lord.

May God ever bless and keep you ’til he calls you home, then we will meet again.

Your loving husband, Harvey”

He also wrote a letter to his wife, which we will refer to as Letter No. 2. It is as follows:

“Honey you may wonder why I had my will fixed so you couldn’t sell the houses.

You are so big harted and good you would be talked into selling them and it wouldn’t be long until/! you would be without an income after my death.

This way I know you will have an income as long as you live.

I love you, Harvey”

There are two questions: First, the testamentary character of the letters, and second, the proposition of whether typewritten matter can be incorporated into a holographic will. The view we take of the first question makes unnecessary a discussion of the second question.

Are the letters testamentary? That is, do they show the animus testandi — the intent to make a will — -which is necessary to constitute any writing a valid will? It is a fundamental principle that an instrument, to be a valid will, must be executed with testamentary intent. Stark v. Stark, 201 Ark. 133, 143 S. W. 2d 875. See also Johnson v. White, 172 Ark. 922, 290 S. W. 932; Page on Wills, § 46; Thompson on Wills (3d Ed.), § 12.

In the case at bar, the evidence is clear that Nelson did not intend that the letters, or either of them, should be his will. True, he referred to what he thought was his will, which he had executed and deposited in the vault at the County Clerk’s office. The very fact that he had executed and deposited what he thought was his duly executed typewritten will is rather conclusive evidence that he did not think he was making a new will or adding a codicil to an old one when he wrote the letters to his wife. The letters made no change in the terms of the document he had filed.

Appellant cites Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11, as sustaining the contention that the letters coupled with the typewritten instrument constitute a will, but the facts were quite different in the Cartwright ease. There, Cartwright, prior to writing the letters, had executed nothing which he thought was a will. In Stark v. Stark, supra, Judge Frank Smith, in speaking of the Cartwright case, said: “But this and all other cases are to the effect that there is no will unless there exists the ‘animus testandi,’ which phrase is defined as the intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention.”

Prior to 1949, a duly executed and attested typewritten will could not be superseded by a holographic will. But the General Assembly of 1949 changed the law in that respect, and now a holographic will takes precedence over a prior typewritten will. In these circumstances, it is imperative that the holographic document asserted as a will should clearly show animus testandi before such instrument is declared by the courts to be a will. Here, the letters written by Nelson to his wife cannot be said to be any more than family correspondence. There is no evidence whatever to the effect that he intended that either letter should constitute a will or that it be used in connection with any other document or instrument so as to constitute a will.

Reversed.

Justices Holt and Mill wee dissent.


author: Carleton Harris, Chief Justice.

text:
    Brewer v. Howell.
    5-1171
    299 S. W. 2d 851
    Opinion delivered March 18, 1957.

      Amis Guthridge and L. Gene Worsham, for appellant.

      James F. Sloan, Edwin E. Dunaivay, and Penix <& Penix, for appellee.
   Carleton Harris, Chief Justice.

This action was instituted by appellants as taxpayers and residents of Hoxie School District No. 46, seeking the following relief: an injunction against alleged illegal activities by the school board, the recovery of public funds allegedly paid out in violation of the law, an order requiring the school board members to meet with appellants, and an order prohibiting the school directors further serving. The last prayer mentioned was contained in paragraphs ten and eleven of the complaint, and was demurred to by appellees. The demurrer was sustained by the court, and the matter was not raised on appeal. Shortly prior to the trial, appellants amended their complaint, alleging a conspiracy between the school board directors and K. E. Vance, superintendent of schools in the district, to defraud said district, and alleging school funds had been wrongfully expended by Vance, and that the directors had otherwise illegally dissipated the funds. The amendment prayed that the directors and Vance be required to give a complete accounting of all cash funds coming into their possession during the school years 1951 through 1954. On motion of appellees, this amendment was stricken from the pleadings. At the conclusion of the hearing, the Chancellor issued a rather lengthy opinion, discussing fully all of the questions in issue. In accordance with his findings, a decree was entered denying appellants all relief sought, except for an order requiring the board to meet with appellants. From such decree, comes this appeal. Appellants rely upon four points for reversal, listed as follows:

I.

The lower court erred in denying plaintiffs recovery of public funds illegally paid the wives of the school directors.

II.

The lower court erred in denying plaintiffs recovery of public funds paid to B. B. Vance & Sons Lumber Company.

III.

The lower court erred in denying the plaintiffs injunctive relief against future hiring of relatives in violation of the statute, and against future illegal purchases.

IV.

The lower court erred in striking plaintiffs second amendment to the complaint.

These will be discussed in the order set out.

I.

In discussing this contention, it is noted that there are numerous decisions dealing with payments of money made contrary to statute or contrary to public policy. Both appellants and appellees have cited several cases upon which they rely to sustain their position. We shall discuss the leading cases from both viewpoints and apply the principles, therein established, which seem to best fit the facts of this litigation. Appellants rely heavily on Tallman v. Lewis, 124 Ark. 6, 186 S. W. 296; Vick Consolidated School District v. New, 208 Ark. 874, 187 S. W. 2d 948; Ridge v. Miller, 185 Ark. 461, 47 S. W. 2d 587; and Quattlebaum v. Busbea, 204 Ark. 96, 162 S. W. 2d 44. In Tallman v. Lewis, supra, Tallman was president of the board of commissioners of a certain drainage district. The act creating the drainage district provided that the board should prepare plans for the improvement of same, procuring estimates from competent engineers as to the cost, and further provided the board could employ such engineers and agents as they might need. The board did not employ an engineer, but deemed it advisable that someone should be employed to supervise the construction of the drainage ditch, and accordingly employed Tallman for that purpose. He drew warrants in the amount of $2,014 which were signed by himself (as president), and the secretary of the board. Tallman admittedly was not an engineer, but testified that he understood how to measure the yardage of dirt taken from the ditch. Suit was brought to compel Tallman to refund the money which he had received because the statute creating the drainage district contained language making it unlawful for a member of the board to become interested, directly or indirectly, in any contract authorized by the board. This Court sustained the contention that Tallman did not have the right to contract with the board, and denied him compensation on a quantum meruit basis. In Vick Consolidated School District v. New, supra, Arthur Gr. New was employed by the school district as a teacher. It developed that for about a three month period, New had no license of any kind to teach, contrary to Arkansas law, which required “any person who shall teach in a public school in this state without a legal certificate of qualifications to teach shall not be entitled to receive compensation for services from the school fund.” The district sought recovery of funds paid to New, and this Court held that his receipt of money during the period when he Avas without license, Avas a diversion of public funds, and should be recovered into the public treasury. In Ridge v. Miller, supra, R. H. Curtis Avas a member, and president, of the school board. The board entered into a contract to employ Curtis and to lease his truck for the purpose of transporting pupils to and from school. Warrants were issued to him for his services and for use of the truck. After the legislature of 1931 passed an act prohibiting contracts Avith any member of the school board for the transportation of children, suit was instituted against Curtis, and this Court held that an injunction permanently restraining the treasurer from paying warrants for services rendered (after the passage of the act) should be granted. The case of Quattlebaum v. Busbea, supra, could not possibly be of any help in the instant case as it involved a matter of falsification of records, deceit, concealment, and, in fact, a conspiracy which was consummated when warrants, shoAving upon their face that they were for a designated purpose, were in fact, issued for a wholly different purpose.

Appellees’ leading cases are Spearman v. Texarkana, 58 Ark. 348, 24 S. W. 883; Frick v. Brinkley, 61 Ark. 397, 33 S. W. 527; Smith v. Dandridge, 98 Ark. 38, 135 S. W. 800; and Dowell v. School District No. 1, Boone County, 220 Ark. 828, 250 S. W. 2d 127.

In Spearman v. Texarkana, supra, Spearman was a medical member of the Board of Health for the city of Texarkana, and while so serving, was directed by the Board to make a personal examination of a case of diphtheria in the city, the alleged existence of which had caused the closing of the schools. He examined the case and made a report to the Board. There was no agreement to pay him for this service, nor did he inform the Board that he expected payment before rendering such service. Several months later, he instituted suit to recover the sum of $50.00. The lower court instructed the jury to the effect that if they found the plaintiff was a member of the Board of Health when he was requested by the Board to perform the services, and that he was a member of the Board when he performed said services, they should find against him. This Court held such instruction to be erroneous, and stated that Spear-man was entitled to recover for what he reasonably deserved to have. In Frick v. Brinkley, supra, Prick was an alderman at Brinkley, and chairman of the Council’s Improvement Committee. Pie was also a dealer in tiling, and entered into an agreement to sell tiling to the city, after which he laid such tiling. Subsequently, after a change in the composition of the Council, the town instituted suit against Prick to recover the amount thus paid him. Among other grounds for recovery, the issue was raised that Prick, as a member of the Council, and chairman of its Improvement Committee, could not contract with the town. Prom a judgment against, him, Prick appealed. This Court held that Prick had acted in good faith, that the relief sought should not be granted, and accordingly reversed the judgment of the lower-court and entered judgment for Prick. In Smith v. Dan dridge, supra, G. G. Dandridge was one of the directors of the school district, and accepted employment by the district as superintendent of a school construction job. This Court held that the services were necessary, were for the benefit of the school district, were duly performed by Dandridge, the amount of his claim was fair and reasonable, and Dandridge was entitled to payment for such services. In Dowell v. School District No. 1, Boone County, supra, Dowell alleged that two of the school directors had been interested in the private sale of supplies to the school district, sought an injunction to prevent further sales, and prayed the return to the district of all monies received by each director. The Chancellor enjoined the directors from having any future private financial dealings with the school district, but refused to adjudge the return of the money to the district for past transactions. The oath of the school directors is, in part, “* * * I will not be interested, directly or indirectly, in any contract made by the district of which I am a director, except that said contract be for materials bought on open competitive bid, and let to the lowest bidder * * *” This Court held that such language meant a school director should not make private sales to the district, and upheld the injunction which had been granted; however, it also sustained the lower court’s decision in refusing to require the repayment of the money received by the directors, holding that the district received full and fair value on items purchased.

Admittedly, these decisions, which from a cursory examination might seem to be conflicting in some respects, draw a fine line, and it is accordingly necessary that we examine the facts of this particular case in order to determine whieh line of decisions applies.

In the instant matter, Mrs. Guy Floyd, Mrs. L. L. Cochran, and Mrs. Leslie Howell, (whose husbands were school directors), were employed by the Board, the first two as teachers, and the latter as cafeteria supervisor. Ark. Statute § 80-509, in defining the duties of the school board, provides, among other things, as follows:

“(d) Employ such teachers and other employees as may be necessary for the proper conduct of the public schools of the district, and to make written contracts with teachers and all other employees in the form prescribed by the State Board of Education. There shall be four (4) copies of each contract made; one (1) to be retained by the Board; one (1) to be given to the employee; one (1) to be filed with the County Supervisor of Schools. Neither the husband nor wife of a school director, nor any person related within the fourth degree of consanguinity or affinity to any member of the school board shall be employed by the school board in any capacity except as follows:

“(1) Teachers may be elected upon written petition of fifty (50) percent of the qualified electors from the group constituting the parents of the grade group or groups to be taught by the teacher in question for the school year for which the election is made.

“(2) Other employees may be elected upon written petition of fifty (50) percent of the qualified white electors of the district for white applicants, * *

This is the statute upon which appellants rely in seeking a recovery of funds paid to these employees. Admittedly, none of the defendant employees originally had obtained such petitions. Shortly before the filing of the lawsuit, Mrs. Cochran ceased teaching, and shortly after the filing of the lawsuit, Mrs. Howell voluntarily terminated her employment. Mrs. Floyd submitted her petition as required by law, and it is not contended that she is presently teaching illegally. Let us compare this factual situation with the cases just mentioned, first looking at appellant’s cases. In Tallman v. Lewis, supra, Tallman was president of the Board of Commissioners, and was accordingly contracting with himself. He even had to sign his own warrants. Nor was he qualified for the services that he rendered inasmuch as the statute contemplated the hiring of an engineer. Tallman was not an engineer. In Vick Consolidated School District v. New, supra, New had no teacher’s license, accordingly was not qualified to teach under our law, and the statute expressly prohibited such a person from receiving any compensation from the school fund. In Ridge v. Miller, supra, the statute specifically declared that a contract with any member of the school board for the transportation of children “shall be null and void.” These factual situations are therefore quite different from the one presently before the Court. No one has questioned the qualifications of these employees in the positions for which they were employed. Mrs. Cochran and Mrs. Floyd were, according to the record, apparently fully capable and experienced in their tasks. The Statute does not prohibit wives of school directors from teaching, nor does it provide that one so teaching shall not receive compensation. It is true that provision is made for obtaining the petition (heretofore referred to), but the legislature did not see fit to declare such a contract void because this required petition had not been obtained. Nor can it be said that these ladies contracted with themselves, and certainly it is not established that their husbands received the benefit of their salaries. No fraud was involved in employing these persons; in fact, the applications showed that they were related to members of the board, and one might well surmise that it was common knowledge among the parents in the school district that these people were so employed. Yet, no action was taken for several years, and not until other matters arose which occasioned strong feelings. No contention is made that these employees were overpaid. The salaries were most moderate, and, in fact, were not as high as those paid in the adjoining school at "Walnut Ridge. All in all, it would appear that the parties acted in good faith.

Appellants state that the courts will not entertain any contract or rights growing out of same where such contract is expressly prohibited by law. In the ease of Frick v. Brinkley, supra, (relied upon by the Chancellor in this litigation), the law provided as follows: “Nor shall any alderman or any member (of council) be interested, directly or indirectly, in the profits of any job, work, or services, to be performed for the corporation.” The court there held that Frick’s contract was irregular and not in accordance with a mandatory statute; yet, as previously mentioned, this Court entered judgment for Frick. In both Smith v. Dandridge, supra, and Dowell v. School District No. 1, Boone County, supra, this Court upheld payments which had been made to members of the Board who rendered services or sold supplies to the district, and not on open and competitive bid, as required by law. The acts of these directors, were, of course, in direct conflict with the oath of office which they had taken.

While we are unable to lay down a “hard and fast” rule that can be followed in every case, this line of decisions seems more apt and fitting to the present situation. Quoting from Smith v. Dandridge, supra, relative to services Dandridge performed, and for which he received the warrant as payment: “* * * there is no claim made that there was any fraudulent dealing, either in selecting him to perform the services or in the amount of the claim therefor which he made; it is not claimed that the amount allowed him for the services is more than the services were fairly and reasonably worth. Under these circumstances, we think that he is justly and equitably entitled to payment for such services.”

The above expresses our thought in the instant matter, and we hold that the Chancellor was correct in denying appellants relief on this point.

II.

Howard Vance, a member of the school board, is a son of B. B. Vance, a Hoxie merchant. The proof shows that B. B. Vance has sold supplies which would average about $1,000 per year (for the last several years) to the school district. Appellants contend that this was a violation of Ark. Statute § 80-505 (heretofore set out). Let it first be said that we agree with the trial court that purchases made from a business concern employing a school board member are not in violation of the law, for such director is not interested “either directly or indirectly” as is contemplated by the statute. While it is admitted that the name of the concern is advertised as B. B. Vance and Sons, the proof is uncontradicted that B. B. Vance is the sole owner of the business. The concern is not a partnership, nor a corporation. Howard Vance and two other brothers are only employees. In his opinion, the Chancellor mentioned an example, which is perhaps extreme, but could well happen. “* * * if a member of a school board happened to be the employee of a railroad company and the school sent its athletic team somewhere and bought tickets, this school board member, being an employee of the railroad company, would be interested either directly or indirectly; * * While our views, as so expressed, dispose of this contention, let it also be said that we find the Chancellor was correct in holding that the preponderance of the evidence establishes that fair prices were charged by B. B. Vance, and value received by the district. Mr. Cecil Grissom, a competitor of Vance, and who had sold lesser amounts to the district, was asked about numerous items purchased by the district from Vance. His testimony was to the effect that the prices were fair and reasonable. The cases that we have cited under heading I, as controlling on that point, apply with equal force here. The Chancellor was correct in denying relief.

III.

It has already been stated that the action of the Board, in employing wives of the directors who had not obtained petitions as provided by the statute, was a violation of the law. The proof showed that this practice had been engaged in for several years, and though the contracts were entered into in good faith, still the directors were guilty of violating the law. WTiile the Board has announced a policy discontinuing this practice for the future, the School Directors are presumed to have been familiar with the fact that they had already violated the law; the best evidence for obtaining an injunction is the evidence of prior violations. For this Court to say that no injunction should be granted, might well be construed to the effect that we had placed our stamp of approval upon the actions of the Board in employing the wives. Nothing could be more erroneous. The law should be complied with, and in such respect, this case is similar to that of Dowell v. School District No. 1, Boone County, supra. In that case, the Chancellor, though refusing to order the directors to return the money which had been paid to them, did enjoin them from having any further private financial dealings with the school district. We think such action appropriate in the instant ease, and are of the opinion that the Chancellor should have enjoined the defendant school board members from employing their wives.

IV.

The matter of permitting amendments to pleadings is one that lies largely within the discretion of the trial court. Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S. W. 2d 773. This particular case was tried on an exchange between the regular Chancellor and the Chancellor from the Thirteenth Chancery Circuit. The lawsuit was originally filed October 3, 1955, and the amendment in question was filed January 24, 1956, two weeks before the date previously fixed for the trial of the case. Undoubtedly, to have permitted the amendment, (which did raise new issues) would have necessitated a resetting of the cause, and this would have been particularly inconvenient to a Chancellor on exchange who had already set his own docket. The matters raised in the amendment were important, but we cannot say that the Chancellor abused his discretion in striking same from the pleadings. Nothing herein shall be construed as such a determination of the matters set forth in said amendment as to make same res judicata; in fact, we make no finding at all, except to simply hold that the Chancellor was within his rights in refusing to consider the amendment in the instant lawsuit.

In passing, we might mention appellee’s contention that appellant’s suit is barred by the “clean hands” doctrine. Appellees have pleaded that this litigation was filed by appellants solely for the purpose of intimidating the said appellees and coercing them into re-establishing segregation in the Hoxie schools. While it may be true that the integration issue stirred the feelings of the inhabitants of the district, and caused them to look into school matters with more scrutiny than theretofore, we find no merit in the contention. Violations of law, as herein mentioned, had occurred. Efforts to meet with the board members, according to testimony of appellants, had failed, and there were bona fide reasons for instituting the suit. The Chancellor was correct in ruling against appellees on this point.

In accordance with this opinion, the case is remanded to the Chancellor with directions to restrain the defendant school directors from employing their wives in any capacity for the district, until said Avives, have complied with provisions of Sub-sections (d-a) (d-b) of § 80-509, and the provisions of § 80-511 of Ark, Statutes (1947) Annotated. With such modification, the decree of the Chancellor, in all respects, is affirmed.

       Salaries paid to wives of certain school directors who were employees of the school district and payment for school supplies made to B. B. Vance, a Hoxie merchant, whose son was a member of the school board.

       80-505, Ark. Stats. (1947) Anno.

       The regular Chancellor, who disqualified in this case, and who represented B. B. Vance, filing returns, etc., before assuming his judicial duties, testified to this fact, and it is stipulated that his present attorney would also, so testify. This corroborated the testimony of Howard Vance.


author: J. Seaborn Holt, Associate Justice.

text:
    Turnage v. Matkin.
    5-1184
    299 S. W. 2d 831
    Opinion delivered March 18, 1957.

      Charles S. Harley, Robert C. Downie, and Edward L. Wright; Wright, Harrison, Lindsey & Upton, for appellants.

      Forrest E. Long, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit on a note, ■— secured by a chattel mortgage, • — • for an alleged balance due in the amount of $5,080.12 plus 6% interest. Trial resulted in a decree for appellants in the amount of $700.50, and they have appealed. Appellants are engaged in the wholesale lumber business with offices in Little Rock, Arkansas and appellee owns and operates a sawmill in Augusta, Arkansas. Beginning in September 1952 appellants made advances to, and began purchasing lumber from, appellee from time to time. This method continued up to January 9, 1953, when appellee’s account with appellants had grown to a substantial amount, he gave appellants his note for $10,000, secured by a chattel mortgage on 250,000 feet of lumber and certain sawmill equipment. On this date appellants advanced appellee $4,000. The mortgage covered all future advances to appellee (Matkin) as well as his indebtedness to appellants. The mortgage was in the usual form, except that it contained this added provision, — “This mortgage contains the entire agreement between the parties named herein and no verbal agreement shall be binding.”

Following the above loan to appellee, appellants handled 79 carloads of lumber from appellee’s mill, and an accounting for these 79 cars of lumber is here involved. A typical shipment transaction between the parties here shows that an instrument styled “purchase order” was sent from appellants to appellee, -which called for shipment of a car of lumber to another designated company or customer, and recited that the lumber was “sold to” appellant company. The mill owner, appellee, then secured a bill of lading which showed that this car was being shipped to the designated customer or consignee named in the purchase order and not to appellant. The bill of lading also showed appellant (Turn-age Lumber Company) as shipper. Immediately appellee would issue an invoice to appellant, showing quantities of lumber shipped and prices. The prices tallied with those quoted on the previously received “purchase order.” After appellant received the invoice and bill of lading, he (appellant) issued another invoice to the customer, consignee, shown on the bill of lading, which invoice in practically every instance, showed an increase in price over that sent to him (appellant) by appellee. Following notice of receipt of the lumber by the consignee (customer), appellant credited appellee’s note with the original invoice price of the lumber (from appellee to appellant) less 2% discount plus an 8% commission, as of the date the customer reported receipt of the lumber.

The primary, — and it appears the decisive, — question presented is one of fact, whether appellant was in the circumstances (as appellee contends) appellee’s broker or commissioned agent selling appellee’s lumber on an 8% commission basis and bound to credit appellee’s note (or account) with the proceeds of the sales of the lumber to customers, after deducting his commission; or whether, — as appellant contends, — that he, appellant, was the purchaser of the ears of lumber from appellee and became the owner absolutely of same on the date the lumber was delivered to the railroad company by appellee and invoices issued to appellant, and that it was no concern of appellee what profit appellant made on the several cars over and above the price at which appellee invoiced same to appellant. The trial court sustained appellee’s contention that appellant was appellee’s agent. There appears to be no dispute that appellant did receive profits (or “ overage ’ ’) above the invoices from appellee which if applied on appellee’s note would leave the balance due of $700.50, as the trial court found.

Appellant argues that the chattel mortgage above contains the entire agreement of the parties and that they are bound by its provisions. Appellee admits the debt. Clearly, we think, he had a right to agree with appellant how sales of the mortgaged lumber would be handled by appellant and the proceeds from such sales applied on appellee’s note or debt to appellant. This in no way violated the provisions of the mortgage.

On the fact question: we try the case tie novo here; unless the preponderance of the evidence appears to be against the chancellor’s findings we must affirm. See Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686. Our rule also is “that the judgment of the chancellor on the question of the preponderance of the evidence will be considered as persuasive when the evidence is conflicting, and evenly poised, or nearly so.” City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750. Also see Brown v. Ozark Black Marble Co. et al., Ozark Black Marble Co. v. Stephenson, et ux, 222 Ark. 280, 258 S. W. 2d 882.

Appellee testified positively that his agreement with appellant was that appellant was to act as his agent or broker to sell the 79 cars of lumber on a commission of 8%, in addition to 2% discount, and the 6% interest on the note, and that the first knowledge that he had that appellant was claiming otherwise, was when the present suit was filed May 5, 1954. Appellant denied any such agreement. He testified that he purchased outright the 79 cars from appellee and was to have a 2% and an 8% discount on each. Appellant also testified that “title to the property (lumber) changes hands the minute the producer (appellee) turns over to the carrier the lumber and issues an invoice to the wholesaler (appellant).” In this connection it appears undisputed that appellant was charging appellee 6% interest on appellee’s note up to the date the customer, or consignee, actually received the lumber and acknowledged same to appellant, and not from the date that appellant claims he purchased and became the owner of each car of lumber from appellee. On practically every shipment more than two weeks elapsed before the consignee acknowledged receipt to appellant.

A special master (an attorney) took voluminous testimony, observed the witnesses and obviously was in a better position than this court to evaluate all the evidence adduced. His findings, which we think are supported by tbe testimony, contains this recital: “. . . that term ‘8 per cent commission,’ entered as a charge against defendant (appellee) at various places in the account against defendant and in the settlement sheets on the 79 cars of lumber and in the monthly statements furnished the defendant, was a commission to plaintiff for handling the lumber for defendant, as the defendant, W. E. Matkin, testified. On the basis of the foregoing record, together with the entire record, the master finds that plaintiff handled the sale of defendant’s lumber as a commission agent and that it was proper for the plaintiff (appellant) to couple this agency with the mortgage interest he had in the lumber sold, and to carry on the transactions in the name of the plaintiff so that the proceeds from the sale of the mortgaged lumber might be properly and certainly credited to the mortgage debt which the defendant owed to the plaintiff. . . . that the profit made by plaintiff on the cars of lumber handled for defendant was a secret profit and that same was kept undisclosed by plaintiff . . . ”

"We do not attempt to detail the testimony. It appears to be in irreconcilable conflicts. It suffices to say that after considering it all, we hold that the preponderance thereof was not against the chancellor’s findings. We have not overlooked other alleged errors by appellants, we find each to be without merit.

The decree is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Baker v. Kansas City Fire & Marine Insurance Company.
    5-1089
    300 S. W. 2d 264
    Opinion delivered March 18, 1957.
    [Rehearing denied April 22, 1957]

      Rhine $ Rhine and John C. Watkins, for appellant.

      Kirsch, Cathey & Broivn, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an action on an insurance policy. The appellants, Emile Baker, H. L. Houston, and First National Bank of Paragould, were the plaintiffs in the court below and filed this action against the appellee to recover $2,214.35 and penalty, interest and attorney fees. From a judgment in favor of the appellants for only $885.74 they prosecute this appeal. .

The facts are somewhat complicated. On May 29, 1952 Emile Baker and Jim Miller (hereinafter referred to merely as “Baker” and “Miller”) purchased a rice combine machine from H. L. Houston, a dealer in Paragould. As a part of the consideration, Baker and Miller executed to Houston a title retaining note for $3,600, one-half of such amount being due December 1, 1952, and the balance due December 1, 1953. As a part of the purchase agreement, Baker and Miller agreed that, until the entire obligation should be paid, the rice combine machine would be insured against fire, with loss payable clauses to Houston and his transferee; and Houston promptly endorsed the note, apparently with recourse, to the First National Bank of Paragould (hereinafter called “Bank”). The appellee, Kansas City Fire & Marine Insurance Company (hereinafter called “Kansas City Company”) issued its policy for $4,000, dated May 29, 1952, insuring the said rice combine machine against fire, naming Baker and Miller as the assureds, with loss payable clauses to Houston and the Bank, as their respective interests might appear. This policy was for one year and was held by the Bank, along with the note.

Baker and Miller used the rice combine machine in their farming operations in 1952. In January, 1953, Baker delivered the machine to Miller and attempted to orally transfer his interest or equity to Miller; but Houston and the Bank refused to pelease Baker from liability to them. Miller moved the rice combine machine to Mississippi County, and on April 13, 1953 he paid the Bank $1,000 on the $3,600 note. On May 29, 1953 the Bank and Houston obtained a renewal of the fire insurance policy from the Kansas City Company, with exactly the same provisions as the first policy. The new policy was also held by the Bank.

Without the knowledge of Houston or the Bank or Baker, Miller, on June 15, 1953, applied for and received a fire insurance policy for $6,000 on the same rice combine machine, which policy was issued by the Consolidated underwriters of the South Carolina Insurance Company (hereinafter called “Consolidated Underwriters”). This policy named only James Miller as the assured, and had no loss payable clause to anyone. None of the appellants knew of the Consolidated Underwriters’ policy until after the fire of November 25, 1953.

In the fall of 1953 Miller went to Michigan; and on November 25, 1953 the said rice combine machine, while stored on a farm in Osceola, Arkansas, was damaged by fire of an undetermined origin. Houston and the Bank promptly notified the Kansas City Company of the fire; and later had an estimate made of the damage, which was shown at $2,214.53, for which amount Baker joined them in filing this suit.

For defense, the Kansas City Company claimed, inter alia, that it was only liable for 40% of the total damage, since the Consolidated Underwriters had issued a policy for $6,000 on the rice combine machine. The answer says: “By reason of said double insurance, therefore, this defendant’s maximum liability to the insureds and any loss payee under said policy would not exceed 40% of the whole loss and damage sustained in the fire of November 25, 1953.

The Kansas City Company named Miller as a cross-defendant and he was served with non-resident process and defaulted. The Kansas City Company did not bring in the Consolidated Underwriters as a party to this case, but attempted to defend on the basis that there was a valid outstanding policy issued by the Consolidated Underwriters and that the effect of the two policies was to make the double insurance.

The cause was tried by the Circuit Court without a jury; and the Court found that at the time of the fire the rice combine machine was insured by both the Kansas City Company and the Consolidated Underwriters; that both policies were in full force and effect for the total sum of $10,000; and that both policies were “valid and collectible insurance.” The Court also found that the total damage to the rice combine machine was $2,214.35; and that the appellants were entitled to recover from the Kansas City Company only 40% of said damage, or $885.74.

Baker, Houston, and the Bank have appealed, making two points, the first of which is: “That the Court’s finding, that the policy . . . issued by the Consolidated Underwriters of South Carolina Insurance Company was valid and collectible insurance with regard to these plaintiffs, was error.” There are other issues in the case that we need not discuss, because we reach the conclusion that the judgment should be reversed and the. cause remanded.

The Kansas City Company defended on the basis that there was “. . . other valid and collectible insurance.” The burden was on the Kansas City Company to prove that, as regards the plaintiffs, there was outstanding a valid and collectible policy issued by the Consolidated Underwriters. The Kansas City Company also proved that the Consolidated Underwriters had issued a policy to Jim Miller. The evidence did not show that Houston and the Bank and Miller could have brought action and collected on that policy. In the case of Langford v. Searcy College, 73 Ark. 211, 83 S. W. 994, a policy of insurance had been issued to an original owner, who had sold the property. The purchaser of the property brought suit to recover on the policy of insurance. This Court, speaking through Judge Battle, held that a policy issued to the vendor could not be sued on by the purchaser, saying: “The contract of insurance was a personal contract ... It did not run with the title to the property . . .” So the contract of insurance between the Consolidated Underwriters and Jim Miller did not automatically inure to the benefit of Houston and the Bank and Baker, who are the plaintiffs. The Kansas City Company never showed that the plaintiffs could have recovered on the $6,000 policy issued by the Kansas City Company. The fact that the Consolidated Underwriters had issued its draft for $603.08 merely shows an effort to compromise for a small amount. It did not show a clear admission of liability. The Kansas City Company alleged the affirmative defense that there was other valid and collectible insurance; and the burden was on the Kansas City Company to sustain that allegation. If the Con•solidated Underwriters had been brought into the litigation, any number of defenses might have been pleaded and proved to avoid full liability.

Therefore, we conclude that the Trial Court was in error in holding that the Kansas City Company was liable for only a pro rata part of the loss. The judgment is reversed and the cause is remanded for a new trial; and upon remand the Consolidated Underwriters may be brought in and the issues litigated with all possible parties before the Court.

       The answer of the Kansas City Company pleaded this provision in its policy: “This Company shall be liable in event of loss for no greater proportion thereof than the amount hereby insured bears to 100% of the actual cash value of the property insured hereunder at the time such loss shall happen.” It was shown that each policy (that is, the Kansas City policy and the Consolidated Underwriters policy) had identical clauses reading: “This Company shall not be liable for loss if, at the time of loss or damage, there is any other valid and collectible insurance which would attach if this insurance had not been effected, except that this insurance shall apply only as excess and in no event as contributing insurance, and then only after all such other insurance has been exhausted.” Since the clauses were identical, the Kansas City Company has conceded that the effect of these clauses in both policies was the same as double insurance. The effect of this concession will be discussed in this opinion. This clause differentiates the case at bar from such cases as Planters Mutual Ins. Co. v. Green, 72 Ark. 305. 80 S. W. 151; and Roach v. Arkansas Farmers Mutual Fire Ins. Co., 216 Ark. 61, 224 S. W. 2d 48.

       This draft was payable to Jim Miller, First National Bank and Lee Wilson & Company. The Vice President of the Bank testified that he never saw the draft until it was exhibited to him while he was on the witness stand.

       Some cases holding that the burden of proving “other insurance” is on the defendant are: St. Paul Fire & Marine Ins. Co. v. Westmoreland, 130 Tex. 65, 105 S. W. 2d 203; De Shields v. Ins. Co. of N. America, 125 S. C. 457, 118 S. E. 817; and Tourtlott v. West Bangor, etc., 126 Me. 118, 136 A. 481.


text:
    Dailey v. City of Little Rock.
    5-1214
    299 S. W. 2d 825
    Opinion delivered March 18, 1957.

      Harold Hall, for appellant.

      O. D. Longstreth, Jr., City Atty.; Joe Brooks, Asst. City Attorney, for appellee.
   Minor W. Millwee, Associate Justice.

This is a taxpayer’s suit by the appellant, Dalton Dailey, to enjoin appellees, City of Little Rock, and its officers, from carrying ont the provisions of a city ordinance and performing the terms of a contract executed between the City and International Harvester Company for the “lease purchase” of 14 garbage trucks for use by the Sanitation Department of the City.

Appellant alleged the contract was void on three grounds: (1) That it was not let to the lowest responsible bidder; (2) that it provided for payment of moneys by the City beyond the current fiscal year in contravention of Amendment 10 to the Arkansas Constitution; (3) and that the trucks were not suitable for the use for which they were intended. The City filed a motion to dismiss and answer in which it admitted enactment of the ordinance and alleged that the funds appropriated therein were for use as rental of the trucks pursuant to a “Lease Agreement” executed by it with the International Harvester Company. All other material allegations were denied.

At the trial appellant offered no evidence in support of his allegation that the contract in question was void on the first and third grounds above set out. Under the “Lease Agreement” in question International Harvester Company purported to lease the 14 garbage trucks to the City for a term commencing with the date of delivery in 1956 and ending December 31, 1956, with the right of renewal at the option of the City on January 1, 1957, for a year, on January 1, 1958, for another year, and on January 1, 1959 for a period of 8 months. “Bentals” under the agreement were payable as follows: For rent to December 31, 1956, $27,000 cash and $7,200 credit on 11 used trucks traded in; and thereafter rentals of $3,681.85 per month for such term as the City should see fit to exercise its option to renew during the life of the agreement. The City was also granted an option to purchase the trucks at the end of the lease period in 1956, or during any renewal thereof, for $152,018.24, and all moneys paid as rentals were to be credited on the purchase price.

The only other proof adduced by appellant was the testimony of a deputy city clerk to the effect that the City had $29,617.07 in the general fnnd on January 1, 1956, and $181,802.79 in said fnnd on July 30, 1956; that an ordinance earmarked $50,000 to be in the fnnd at the end of 1956; and that, based on anticipated revenues and expenditures for the balance of the year, there would probably be $50,000 in said fnnd at the end of 1956. The Chancellor found the evidence insufficient to support the relief prayed in the complaint which was dismissed for want of equity.

For reversal appellant argues the agreement between the City and International Harvester Company is not a lease with option to purchase but is actually a contract of purchase, or sale, which is void because it constitutes a contract made by the City in excess of its revenue for the year in which the contract was made in violation of Amendment 10 to the Constitution. Appellees just as earnestly insist that the instrument is a true lease agreement with option to purchase which did not commit any revenues beyond the calendar year 1956. While it must be conceded that the agreement has characteristics common to both a lease and a sale, we find it unnecessary to determine the issue. Begardless of the true nature of the transaction, the burden was on the appellant to show that performance of the agreement would require an expenditure of revenues by the City in excess of those for the year in which the contract was made. The Chancellor was justified in concluding that appellant did not discharge this burden. The deputy clerk who gave the only testimony in this connection was not asked, and did not state, the amount of revenues of the City for the year nor did he indicate that the agreement would commit the City for an amount in excess of unexpended revenues for the year. The implication of his opinion that the earmarked sum of $50,000 would be left in the general fund at the end of the year, after all anticipated expenditures, is to the contrary. Under this state of the proof, we cannot say the Chancellor erred in denying the relief prayed.

Affirmed.


text:
    Jack Tar of Arkansas, Inc. v. Johnson.
    5-1215
    299 S. W. 2d 822
    Opinion delivered March 18, 1957.

      A. J. Thompson and Wootton, Land S Matthews, for appellant.

      Bailey, Warren & Bullion, for appellee.
   Minor W. Millwee, Associate Justice.

Vance Bryan was preparing to construct the Jack Tar Hotel and Baths at Hot Springs, Arkansas in 1948 when he entered into a contract with appellee, A. W. Johnson, doing business as A. W. Johnson Company, to do the plumbing, heating and air conditioning work upon a cost plus basis. Bryan, a licensed general contractor, supervised the entire project. Although he started the project as an individual, it was later incorporated as Jack Tar of Arkansas, Inc., the appellant here. Under the agreement Bryan was to settle with appellee for all moneys due monthly.

During the course of construction which ran from December, 1948, until February, 1953, appellee performed work amounting to approximately $130,000 and the parties had frequent accountings. Bryan and the appellant corporation secured advances from the Reconstruction Finance Corporation based upon expenditures wbicb included payments to appellee. Monthly statements were submitted by appellee which were carefully checked by Bryan and adjustments were frequently made at his request. Bryan made the monthly payments promptly for awhile but gradually got behind.

In March or April, 1953, appellee submitted a complete account of the entire transaction consisting of about 75 pages and showing a balance still due him of approximately $12,000 under the contract. The instant suit was brought May 1, 1953, to establish and foreclose a lien for the balance alleged to be due on the account. This appeal is from certain parts of a decree awarding judgment in appellee’s favor in the amount of $12,633.45 plus interest on the account.

Appellant first contends the court improperly charged it with the cost of repairs and replacement of certain parts as set out in the account which were alleged to be defective. These charges for repairs and replacements were made in July, August and November, 1952, and amounted to approximately $230.00 after credits were given in the amount of $212.06 for replacement parts furnished by a manufacturer under its warranty of replacement for defective parts. In contending it should not be charged for this work, appellant relies on the general principle that a contractor under a cost plus agreement is not entitled to charge for the cost of doing work over which was improperly done initially, as set out in 9 Am. Jur., Building and Construction Contracts, Sec. 20. But the chancellor evidently concluded that a major portion of the repairs in question were necessitated either by Bryan’s own negligence or that of the electrical contractor in failing to hook up an electrical oil safety switch and not because the work was improperly done by appellee initially. It is undisputed that appellee was in no manner responsible for the electrical work which was done by an electrical contractor. Appellee testified that he explained the importance of hooking up the switch to said contractor and furnished him a guide on how it should be done; and that the latter’s failure to hook up the switch resulted in the burning up of the installation. It does appear, however, that appellee failed to properly credit appellant with $60.34 of the replacement amount allowed by the manufacturer for another installation.

Appellant also contends it was never given credit for a payment of $7,191.39 which it made on the account by its check dated January 17, 1949. In this connection the account showed items charged by appellee on December 31, 1948, in the total amount of $3,821.71 and a credit to appellant in the same amount on January 18, 1949. According to appellee the check for $7,191.39 covered the charge of $3,821.71 and $3,374.98 worth of soil pipe paid for at that time. On cross-examination appellee explained the fact that the soil pipe purchase was not entered on the books in this manner: “Q. Then the first payment that was due was $3,821.71, is that right? A. That was on this particular account. He (Bryan) paid cash, I believe, at that same time for a truck-load of soil pipe that had been delivered during the month and he was anxious to get the receipted bills to submit to the government, and he paid for the soil pipe at the same time and my bookkeeper handled it as a cash item because it had never been posted to the books. Q. Was this part of the contract? A. Yes, sir. Q. Do you remember the amount of that particular order? A. No, sir, but I have a copy of the invoice. Q. You say that was paid for in cash? A. No, I said we handled it as a cash item. Q. In other words, you never entered it on the books as part of this contract? A. No, it was counted as a cash sale. Q. What was the reason for that? A. The deal was that he would pay at the end of the month for material during the month, he paid for this practically on the day it was delivered and it was not necessary to carry it as a balance forward because he had paid for it. Q. Wouldn’t you show it as a credit on the account? A. Some people might, but I wouldn’t. That’s the way usually; when we sell anything ordinarily, if it’s handled as a cash sale to cut down on bookkeeping expense. Q. Then that particular truck load of material does not appear on this account anywhere? A. No, sir. Q. Would that item run several thousand dollars? A. Oh, about three thousand dollars, I don’t remember exactly.”

On redirect examination appellee further testified: ‘ ‘ Q. Mr. Bryan has referred to a cancelled check that he made payable to your company in the amount of $7,-191.39, that he states is not indicated on your exhibit No. 1 or your account of the job, how do you explain that? A. He was given credit for $3,821.71 for a part of that check, the rest of it was for a truck load of soil pipe that was delivered January 10, paid for on January the 18th, and we handled it as a cash item as though somebody had come in and bought a truck load of pipe, gave us a check; in other words, we didn’t charge it through accounts receivable. Q. Did you deliver $3,-374.98 soil pipe to this job? Is it reflected anywhere in here? A. No, it was not charged, and therefore there’s no credit. Q. Was $3,816.41 charged to this job for December ’48? A. They made a $5.30 error, they charged it $3,821.71. Q. What do these two items total? A. $7,191.39. Q. Is that the exact, amount of the check given you? A. Yes.”

Although Bryan appeared to have in his possession at the trial all the appellant’s checks and the various vouchers issued in connection with the project, he offered no tangible evidence in contradiction of appellee’s explanation of the transaction involving the check for $7,191.39. He would not deny delivery of the soil pipe as indicated by appellee. If the credit of $3,821.71 had been paid by a separate check for that amount, or in some manner other than as indicated by appellee, it should have been a simple matter for Bryan to have made such proof. The chancellor also probably considered it significant that Bryan continually accepted monthly statements for over four years and without any indication that proper credit had not been given for the $7,191.39 payment until June 18, 1954, the day of trial.

The factual issues presented were determined by the chancellor on testimony that is to some extent conflieting. Except for the item.of $60.34 previously mentioned, we are unable to say his findings are against a preponderance of the evidence. The decree is accordingly modified by reducing the judgment in appellee’s favor to $12,573.11 plus interest. With this slight modification, the decree is affirmed.