text:
    DELAMAR MOTOR CO. v. Harmon J. WHITE
    5-5417
    460 S. W. 2d 802
    Opinion delivered December 21, 1970

      W. H. Arnold, for appellant.

      Lookadoo, Gooch & Lookadoo, for appellee.
   George Rose Smith, Justice.

This suit was brought by the appellee to cancel a contract by which he had purchased a Chevrolet diesel truck from the appellant. For cancellation of the contract the plaintiff relied upon a breach of the implied warranty that the vehicle was fit for the purpose for which it was to be used. After a trial the chancellor entered a decree canceling the contract and awarding the plaintiff a judgment for the value of a pickup truck that had been traded in as part of the transaction. The appellant argues three points for reversal.

First, according to the plaintiff’s proof the diesel truck had two defects which the seller was unable to correct: The engine vibrated excessively, and the brakes did not function properly. The appellant now argues that those defects were the fault of the manufacturer, General Motors Corporation, and were therefore not the responsibility of the appellant corporation, which is merely a Chevrolet dealer. Under the Uniform Commercial Code, however, where the seller has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s judgment to furnish suitable goods, there is an implied warranty that the goods shall be fit for the intended purpose. Ark. Stat. Ann. § 85-2-315 (Add. 1961). The appellant was unquestionably the seller of the truck and therefore came within the purview of the statute. The Code provision is clearly just, for otherwise a buyer, especially with respect to goods of small value, might have no effective remedy for defects attributable to an unknown, nonresident, or insolvent manufacturer.

Secondly, it is argued that the appellee White did not actually rely upon DeLamar Motor’s judgment in the selection of a suitable truck. Upon this point of fact the chancellor’s decision is not against the weight of the evidence. At the time of the sale White told the seller that he intended to use the truck to pull a gasoline transport and to pull a lowboy. He also stated that Mr. DeLamar “said it would do the job, and I had no reason to doubt it.” On cross examination White admitted that when he bought the truck he thought that it would do the job he wanted it to do. That belief, however, did not negate the warranty. Any purchaser ordinarily expects the article being bought to serve its purpose, else he would not buy it. It does not follow, however, that the purchaser may not also be relying upon the seller’s judgment in the matter. Here White testified that he had not previously owned a Chevrolet diesel truck. Upon the record as a whole the chancellor was justified in finding that White did rely upon DeLamar to select a vehicle capable of doing the job that White had in mind for it.

Thirdly, DeLamar Motor insists that the implied warranty of fitness was excluded by the terms of the conditional sales contract. Under the Code such an exclusion must be by a writing and be conspicuous. Section 85-2-316 (2). “Language in the body of a form is 'conspicuous’ if it is in larger or other contrasting type or color.” Section 85-1-201. In this instance some of the terms of the contract were in fairly heavy black type, but the asserted disclaimer of warranties, though in italics, was in smaller and lighter type than much of the rest of the printed form. Our examination of the contract convinces us that the statutory requirement of conspicuousness was not met. Consequently the disclaimer was not effective.

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMM’N v. J. H. SHIELDS et ux
    5-5411
    460 S. W. 2d 746
    Opinion delivered December 21, 1970

      Thomas B. Keys and Bedford G. Webb, for appellant.

      Wayland Parker and Donald Poe, for appellees.
   Lyle Brown, Justice.

The Arkansas State Highway Commission condemned, for highway purposes, a strip of land which bisected the 150-acre cattle ranch owned by appellees, Shields and wife. The commission challenges the award of just compensation, asserting error in the admission of certain testimony which will be hereinafter detailed.

Point I. The court erred in refusing to strike the value testimony of the landowner, J. H. Shields. The witness had owned, lived on, and farmed the entire acreage since 1937. It is conceded that he was intimately acquainted with the property. By virtue of his ownership, coupled with his detailed knowledge of the property, Shields was entitled to give his estimates of values. Arkansas State Highway Comm’n. v. Fowler, 240 Ark. 595, 401 S. W. 2d 1 (1966). Shields attempted to buttress his opinion of before and after values by relating what he considered three comparables. On cross-examination it was shown that the witness missed the sale date of one comparable by approximately four years; that the witness was not certain of the acreage contained in one comparable; that his knowledge of the sale price of another comparable was based on hearsay; and that two of the comparables may have been estate sales. Any such discrepancies did not render the witness’ testimony as to comparables entirely valueless. They would go to his credibility as a witness and not as to his competency. The trial court was correct in refusing to strike all the value testimony of the landowner.

Point II. The court erred in refusing to strike the testimony of appellees’ expert, Glenn West, as it related to the value of improvements. Appellant contends that the witness did not know the age of any of the structures and hence did not follow the well recognized practice of determining the age and depreciating on the basis of remaining effective life. Appellant fails to consider, however, that the witness testified that he arrived at fair market value by personal inspection and appearance of the improvements and by judging them depreciated one-third from the time they were built. He further said that he considered their adaptability to the ranch-cattle operation. In other words, he was looking for the value they contributed to the lands they served.

Appellant also contends the witness did not include any functional or economical depreciation on the dwelling. As an expert, however, he was entitled to the opinion that there had been no economical or functional depreciation of the dwelling with respect to its use on the ranch-cattle farm.

The matters related were all brought out on cross-examination. They did not demonstrate that the witness had no “reasonable basis whatever for his opinion” and therefore the court properly refused the motion to strike. Arkansas State Highway Comm’n. v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966).

Point III. It was error to refuse to sustain appellant’s objection to a hypothetical question. Witness Suthmer was called by the appellant to give his estimates of values. On cross-examination he was asked this question:

Q. Assuming that if, in fact, there was such a sale — that Shields sold $33,512.83 worth of cattle off of his property, Tract No. 16, in 1967— would that indicate that Shields top operation was a more valuable operation than could be conducted on the Boone-to-Goldsmith property?

There was no evidence of such a sale by Shields, nor did appellees assert that they would supply the deficiency by subsequent testimony. A hypothetical question is defective when it assumes the existence of facts which are not in evidence. Payne v. Thurston, 148 Ark. 456, 230 S. W. 561 (1921). But the answer given by the witness removed any possibility of prejudicial error:

A. I’ll try to answer your question. The answer is no, in this respect. Mr. Shields may have sold his entire herd in 1967, I don’t know. In order to make a comparable from an income approach, I would have to have sales over a period of years to see what the property was bringing in, and the same way with the Goldsmith property. I did not make an estimate of value on the property from an income approach.

The answer clearly laid to rest any idea that the “hypothetical sale” would cast any light on the market value of the farm.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Leon FLAKE et al v. THOMPSON, Inc.
    5-5441
    460 S. W. 2d 789
    Opinion delivered December 21, 1970

      Byron R. Bogará and Bruce T. Bullion, for appellants.

      Moses, McClellan, Arnold, Owen ér McDermott, for appellee.
   John A. Fogleman, Justice.

Appellants seek reversal of a decree by which the chancery court held that appellants had no right in a purported public easement in the City of Little Rock because:

1. It was not effective because it was never accepted by city ordinance.
2. It was not used continuously by the public for a period of time sufficient to establish an easement by prescription.
3. It was abandoned by city ordinance adopted September 1, 1969.
4.It did not convey or establish any right in the owners of property adjacent thereto on the north side thereof, and any use thereof by the owners of this property was by permission of appellees and their predecessors in title.

The decree was rendered in cases which were consolidated for trial since they involved the same purported easement.

The original action was brought in June 1968 by appellants Leon Flake, Dickson Flake and their respective wives as owners of a lot which abutted, in part, upon the purported easement. In this action they sought removal of barriers placed by Thompson, Inc. along the southern boundary of appellants’ property and the northern boundary of the purported easement, claiming the right of ingress and egress to and from their property thereby. Thompson denied the existence of the easement. After the filing of this suit, it was discovered that the actual owner of a part of the land included within the boundaries of the purported easement had not joined in the grant upon which appellants relied. Thereupon on April 22, 1969, the City of Little Rock filed a cause of action against appellee and Westgate Corporation, the grantor of the easement, Town and Country, Inc. (T & C), and Heights Development Co., the corporation holding title to that part of the easement area not owned by Westgate, to reform the instrument by adding Heights as a granting party. The city also prayed that appellee be required to remove the barriers. Westgate, T & C and Heights answered, admitting that Heights should be added as a grantor. Little Rock University intervened in the action, as the owner of property (Lot 4) lying north of the easement and at the extreme west end thereof, seeking to enforce the easement.

Individual citizens and residents also intervened. A tract (Lot 6) owned by the Church of the Seventh Day Adventist lay north of the easement and east of the Little Rock University property. It fronted on University Avenue. Appellants’ lot was carved out of the southeast corner of the church lot. These intervenors also asked reformation of the easement and removal of the barriers (which also ran along the south line of the remaining portion of the church lot).

After all these suits and the pleadings therein had been filed, Thompson, Inc., the present owner of Lot 6, the property from which the easement had been conveyed, offered the city a new public easement over the identical course of the earlier purported easement except that the north boundary of the new easement was one foot south of the south line of the church lot and the Flake lot. This easement was accepted by the city by ordinance on September 2, 1969, which also declared its abandonment of the earlier purported easement. The city had dismissed its complaint on May IB, 1969. The Flakes and the church filed suit against the city asking that the ordinance of September 2, 1969, be declared unconstitutional, illegal and void, insofar as it attempted to vacate and abandon the earlier easement.

The three causes were consolidated' pursuant to stipulation. The issues, evidence, decree and this opinion will be better understood by reference to the sketch appended to this opinion.

The court’s decree found that it was the intention of Westgate, the city and Heights that the latter be joined in the conveyance of the easement and that it was the intention of Westgate, Heights and T & C, their owners, officers and directors, to establish a valid easement, but that this intention was thwarted by mutual mistake.

The following facts are undisputed:

In 1962, Town and Country, Westgate Corporation and Heights Development Company were all owned by the same individuals, and had the same persons serving as their respective officers and directors. They were engaged in development of Lots 4 and 6. Title to Lot 4 was in T & C, which prepared to construct an apartment complex thereon. A building permit by the city was denied because there was no public easement for ingress or egress. The only means of reaching the lot from the city streets required passage southerly from 29th Street over a private easement granted by owners of property lying north of Lot 4. Westgate then executed a written instrument on July 2, 1962, granting a 30-foot easement leading across Lot 6 from the east line of Lot 4 to University Avenue. This instrument was filed for record on August 15, 1962. The granting clause read:

THAT WESTGATE CORPORATION, for and in consideration of the benefits accruing to the public, and to guarantee access by public roadway to Lot 4, Riggs Addition to the City of Little Rock, does hereby grant a public street easement to the City of Little Rock so long as such easement is used for the purposes of a public street, over the strip of land in Little Rock, Pulaski County, Arkansas, as set out on the attached plat and described as follows, * * *

At that time Heights, not Westgate, was the owner of that part of Lot 6 which constituted the leg of the easement which connected directly with University Avenue. This leg was 30 feet wide and 130 feet long. The city, however, without investigating the title of the grantors issued its building permit to T & C, upon the recording of the easement. The apartment complex was completed. The purpose of the easement was to satisfy the requirements of the Little Rock ordinances that a building permit be issued only for lots abutting upon a public street. Subsequently, the capital stock of T & C was transferred to Little Rock University. There was still no public easement for ingress and egress to and from these apartments, prior to the grant of the new easement by Thompson, unless it was by the disputed easement.

Heights and Westgate conveyed Lot 6, upon which the Town and Country Shopping Center had been developed, to Thompson by warranty deed on April 14, 1966. Shortly thereafter these two corporations were dissolved, and they appeared by their former directors, as trustees.

The ordinance of the city abandoning the prior easement and accepting the new easement from Thompson contains the following language:

An ordinance vacating and abandoning a certain roadway situated in Lot 6, Riggs Addition to the City of Little Rock; accepting dedication of a substituted easement; and for other purposes.
WHEREAS, the Board of Directors of the City of Little Rock, Arkansas, has determined that the public street easement described in Section 1 hereof, dedicated to the City by the Westgate Corporation has never been used or devoted nor is it necessary for public street or roadway purposes and desires to vacate and abandon all its right, title and interest together with that of the public generally in and to said easement pursuant to the power granted cities of the first class by Arkansas Stat. 19-2504; and,
WHEREAS, the City is desirous of accepting a dedication from Thompson, Inc. for a public street easement of a strip of land in Lot 6, Riggs Addition to the City of Little Rock, Arkansas.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK.
SECTION 1. City of Little Rock hereby vacates and abandons all its right, title and interest together with that of the public generally in and to the following described property dedicated to the City of Little Rock, Arkansas, as a public street easement by Westgate Corporation, to-wit:
* # *
SECTION 2. City of Little Rock, Arkansas hereby accepts from Thompson, Inc. the dedication of a roadway easement in Lot 6 Riggs Addition to the City of Little Rock, Arkansas, more particularly described as follows: * * *

We find the chancery court’s decree erroneous, DrinciDallv because the chancellor applied an incorrect test in holding that the easement never became effective. This matter was treated extensively in Brewer v. Pine Bluff, 80 Ark. 489, 97 S. W. 1054. Although the irrevocable dedication of the way in question there arose through the sale of lots with reference to a plat recorded by the vendor, we cannot perceive any significant difference between this implied dedication and an express dedication by recorded grant, insofar as the issues here are concerned. (See City of Stuttgart v. John, 85 Ark. 520, 109 S. W. 541.) The rules of law governing acceptance applied in Brewer have equal application here. The language of that opinion is so appropriate to the issues here that we quote from it at some length. We said:

This dedication was also in a certain sense accepted by the general public, which, with the exception of a few years when it was fenced, entered upon and used this strip as a public way, so far as its nature permitted. Owners of adjoining land formed their fences to the line of this street, and some .of them planted shade trees thereon. When the owner of land lays it out into lots and streets, and records a plat thereof, it is not necessary, in order to show an acceptance by the public, to prove a continuous use for a time sufficient to constitute a way by prescription. Although the nature of this street, cut in two by a lake or drain almost impassable to any except persons afoot, prevented it from being extensively used, yet we think the use was sufficient, continued as it was for ten or fifteen years, to constitute an acceptance of the dedication on the part of the public, which, when taken in connection with the sale of lots by the owner, shows clearly that this dedication could not be revoked by the owner, and that this strip of land is now a public way which the defendant has no right to obstruct. Attorney General v. Abbott, 154 Mass. 323, 13 L. R. A. 251; 13 Cyc. 465.
But for our statute on the subject the act of the city in doing work on this street, preventing the deposit of refuse thereon, and the passing of a resolution by the city council ordering the defendant to take down the fence across it, would be sufficient to constitute an acceptance of the dedication by the city. But the statute, after providing that all public highways, streets and alleys within a city shall be under the control of the city council, provides that no street dedicated to public use by the proprietor of ground in a city “shall be deemed a public street or # # * be under the care or control of the city council unless the dedication shall be accepted and confirmed by an ordinance specially passed for that purpose.” Kirby’s Digest, § 5531.
.tf. .y. jf. Tp IP TV
In Waring v. Little Rock, 62 Ark. 408, it was said that this act did not apply to streets established by prescription. Now, this street was dedicated after the passage of the act in question, and it has never been accepted by the city in the statutory way. Though the evidence shows that the city has occasionally exercised some supervision and control over this strip, and that the public has used it also, yet there is some room for doubt whether such supervision and control has been sufficient to make it a way by prescription, so that it would be considered a city street and under the control of the city without the statutory acceptance. But that question is not important in this case, for, as before stated, the dedication of it as a public way has now become irrevocable, and the city can accept it at any time. Meanwhile the public has the right to use it, and the plaintiff has no right to obstruct it.
If we concede that, technically speaking, the city, not having accepted it in the statutory manner, has no right to control it as a city street, yet, as it is a way in which the public have rights, and of which the plaintiff has wrongfully taken possession, equity will not uphold him in that wrong by the writ of injunction.

In Brewer, the suit was to enjoin the city from removing a fence erected by the grantee in a deed conveying a part of the street involved. All deeds in Brewer’s chain of title included this portion of the street. A fence had been erected across this street by the immediate grantee of the dedicator. It remained in place for 3 or 4 years, after which, the way was used for about 13 years by pedestrians and occasionally by equestrians. A lake or drain prevented use by wheeled vehicles except for transportation of fuel and other household necessities to the few people who lived on or near the strip of land.

It is quite clear from Brewer and Bushmiaer v. City of Little Rock, 231 Ark. 848, 333 S. W. 2d 236, that, insofar as public rights in a street are concerned, acceptance may be by public use as well as by city ordinance. It is equally clear that the use which constitutes an acceptance of a dedication does not have to be for the period necessary to establish a way by prescription.

We now direct our attention to the evidence as to use of the easement in order to determine whether there has been an acceptance of the easement granted by public use. Frank Lyon, the president of both Westgate and Heights (and most likely of T & C) at the time of the grant, testified that a break 20 feet wide was made by the church officers in a curb built along the north side of the easement and the south line of the church lot immediately after the grant of the easement. Although he and his associates had objections to this being done, no effort was made to prevent it because they knew that the church had the right to do this. The break was used, according to him, to afford those going to and from the church property a means of ingress and egress via the easement. He recalled that the church had rejected an offer by him and his associates of an easement along the north side of the T 8c C apartments in lieu of this means of ingress and egress. It was stipulated that the testimony of two of the other officers and directors of the three corporations would be substantially the same as that of Lyon.

Mary Margaret Richey had been a member of the church board since 1958 and had served as clerk. She related that the church bought the property in 1954 and that the first services were held there on October 5, 1956. At that time, there was no median or divider on Hayes Street (now University), so that there was no difficulty in entering the church property from either the north or south. According to her, when the traffic divider was to be placed on University, the church officials endeavored to have it broken in front of the church property, so those coming to the church property from the south could have easy entry thereto. She said that this effort failed when it was shown how much more important it was to have the median break at the shopping center. Mrs. Richey testified that she had traveled the route of the easement four times a day, seven days a week, from about 1960 until about May 1968 when a barrier of posts stopped her. She was attending church services and taking her children to and from a school conducted on the church property. She described the route as well defined and stated that yellow lines subsequently marked the course of the easement south of the Esso station. Her use of the route preceded the building of the apartments, and she said that the curb later installed was promptly broken for access to the church lot. According to her there were 50 to 75 people using this route as frequently as she did.

Orlean Thompson also testified that she had used the route daily except for Sunday for about 10 years from the time her children started to school until the entry was barred by posts. Mrs. Edith Bowers, a nurse whose daughter attended the school, testified that she had followed the general route of the easement twice a day for 13 years, although she admitted that she did not always follow the “dog-leg” route but sometimes drove “catercornered” across the lot directly to the entry to the church property. Mrs. Winona Finley testified that she had used the easement one to three times per week from 1962 until 1968, and saw others using it. She admitted that she, too, sometimes followed the more direct “catercornered” route, but said that she always used the part of the easement south of the Esso station to approach University when leaving the church property.

Grainger Williams, a member of the board of trustees of Little Rock University, testified that he started using the easement in 1965 about the time that T 8c C was given to the University, at which time the existence of the easement was mentioned. He had occasion to use the route in going from his residence to the shopping center where he patronized a drug store among other businesses and in transporting foreign students between the University and the apartments. He stated that he used this route to establish use and prevent a lapse of the easement. While he did not use the leg which connected with University for exit, he always used it when entering from University, realizing its value. He had, on occasion, used the curved drive across the parking lot, but said that he followed the route of the easement more frequently.

Others testified about their use of the route of the easement for shorter periods of time — many after they were urged to do so by Flake, church officials or university representatives as late as 1967 or even 1968.

This testimony as to use is not substantially controverted except by evidence as to parking of vehicles in lanes marked on the easement area and testimony of Mr. Jack Farris, a real estate broker who managed the shopping center for Thompson. Farris stated that he was about the shopping center once or twice a week after he became manager. He never saw anyone driving an automobile along the “dog-leg” route of the purported easement. Mr. Farris admitted that no effort was made to prevent ingress to and egress from the church lot through the break in the curb via the easement area until he put up a barrier of four-inch steel posts the day after the curb was cut by the Flakes or their tenants in 1968.

While it is clear that vehicular parking areas marked off in the north 17 feet of the easement east of the church lot curb cut were often utilized, the date when these areas were marked is not definitely established. Even if this were said to be inconsistent with public use of the easement, there is a preponderance of evidence showing that there remained sufficient room for passage of a vehicle in the easement south of these vehicles. This parking use was not a sufficient interruption of the public use as a means of travel to overcome acceptance of the public street easement granted. No one would urge that parking vehicles on the side of a public street so as to leave room for passage of traffic would constitute interruption of the public use. We find that evidence indicating a public acceptance of the easement by use preponderates.

We find no merit in appellee’s argument that the original grant was never intended as a public easement. The city’s requirement that there be a public access and the plain words of the grant itself belie this argument. It is obvious that if there has been acceptance by use, there could not possibly have been any abandonment by non-use or obstruction of the way, even if either could have otherwise barred the rights of the public, because neither could have continued for the requisite seven-year period. Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281, 46 A. L. R. 2d 1135; Clinton Chamber of Commerce v. Jacobs, 212 Ark. 776, 207 S. W. 2d 616. Intermittent use of the alternate curving route across the shopping center parking lot would not constitute an abandonment of the easement granted, because there is not sufficient evidence to indicate the requisite intention to abandon or that obstructions to the granted easement necessitated its use. See Arkansas State Highway Comm. v. Hampton, 244 Ark. 49, 423 S. W. 2d 567; 25 Am. Jur. 510, Easements and Licenses § 105; Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645.

Inasmuch as the easement granted and accepted was a public street, the abutting property owners acquired certain rights therein. The owner of property abutting upon a street has an easement in such street for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself. Campbell v. Arkansas State Highway Commission, 183 Ark. 780, 38 S. W. 2d 753; Arkansas State Highway Commission v. McNeill, 238 Ark. 244, 381 S. W. 2d 425; Lincoln v. McGehee Hotel, 181 Ark. 1117, 29 S. W. 2d 668.

There is no room for doubting that appellants acquired their lot in reliance upbn this property right. The representative of the church selling the property showed the instrument constituting the grant to which there was then attached a plat depicting the easement area to appellant Dickson Flake. This appellant testified that he also inspected the area before entering into a purchase contract in February 1967, observing that the curb was not materially different from those generally placed along city streets and that it had been broken north of the lot appellants were buying to provide a means of access to the church school grounds. Flake found the lines of the easement obvious to an observer and noticed no obstruction. He saw some faded lines painted in the north portion of the easement which he described as being about 17 feet long and found a line following the course of the easement about 5 feet south of it. He also testified that the easement had a significant bearing on the ultimate purchase because it provided the only means of exit from the lot by which one in an automobile could leave the lot and proceed north on University Avenue. According to him, the plans for improvement of the lot by construction of a Burger King restaurant, submitted to and approved by the city shortly after their purchase, showed a curb cut on that part of the lot bordering the easement. The fact that the Flake lot is 25 feet deeper than the Esso station lot, thus providing exactly 25 feet bordering the.easement, is not without significance.

. Appellee argues, however, that the city has now vacated and abandoned the public easement by the ordinance passed in September 1969. We find this ordinance ineffective to deprive appellants and their invitees from using the easement for ingress and egress.

It is true that the city authorities do have the right to vacate streets and alleys. Ark. Stat. Ann. § 19-2304 (Repl. 1968); City of Little Rock v. Linn, 245 Ark. 260, 432 S. W. 2d 455. It was clearly recognized in that case and in the authorities there cited, however, that a city ordinance vacating a street would not be valid if it was unreasonable, arbitrary, oppressive, discriminatory or an unwarranted invasion of private rights. The evidence in this case clearly shows that the ordinance constituted an unwarranted invasion of private rights and was discriminatory and oppressive, and thus it is unreasonable and arbitrary. The necessity for a public way in the area was clearly recognized by the city by its acceptance in the selfsame ordinance of an easement that differed from the one vacated only in its moving the easement one foot south along the former church lot only in order to deprive appellants and the present owner of the church lot of ingress and egress via the easement. It is significant that, even though the city dismissed its complaint in May 1969, the vacating ordinance was not passed for four months and then only when the new easement was tendered and accepted.

The property right of ingress and egress of appellants in the easement was one that could not be taken from them by the city, at least without the payment of just compensation. City of Osceola v. Haynie, 147 Ark. 290, 227 S. W. 407; Campbell v. Arkansas State Highway Commission, supra; Arkansas State Highway Commission v. McNeill, supra; Campbell v. Ford, 244 Ark. 1141, 428 S. W. 2d 262; Little Rock M. R. & T. Railway Co. v. Allen, 41 Ark. 431; Dickerson v. Town of Okolona, 98 Ark. 206, 135 S. W. 863. The action of the city was not an attempt to exercise the power of eminent domain. While not controlling, it is significant that no provision was made by the city for payment of compensation for the property rights taken or for notice to the property owners of the city action to enable them to have the amount of compensation due them for the taking of their property rights determined, both of which are usually necessary to proper exercise of the right of eminent domain where a specific method for making that determination has not been provided by legislation. Arkansas State Highway Commission v. French, 246 Ark. 665, 439 S. W. 2d 276; Greene County v. Knight, 174 Ark. 618, 297 S. W. 861. Obviously, such provisions would have been inconsistent with the statement in the preamble to the ordinance that the easement had not been used, which in itself is a clear indication that the city board had no intention to exercise its power of eminent domain.

Appellee relies upon such cases as Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768; Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949. Barbee has no application because the portion of the street closed was conveyed to the abutting owner, who petitioned for its closing. Risser, like City of Little Rock v. Linn, supra, does not govern here, because the rights of owners abutting upon the public way being vacated were not involved in those cases. The mere fact that appellants also have a means of ingress and egress via University Avenue does not affect or diminish their property rights in the easement, and they cannot be deprived of these rights because of the remaining means of ingress and egress. Campbell v. Ford, supra; Langford v. Griffin, 179 Ark. 574, 17 S. W. 2d 296.

Appellee also argues that the reformation of the easement should not be effective as to it, because it was not a party to the easement and was an innocent purchaser for value. We do not understand how the reformation to include Heights as a grantor has any bearing on that part of the easement admittedly granted by Westgate upon which the Flake property borders. It only affects the leg of the easement connecting with University. If Westgate granted a public easement or street upon which the church property (including that presently owned by appellants) abutted, appellants would still have abutter’s rights in that portion of the easement. The intervenors (Ballenger et al) as citizens and taxpayers asked reformation in their pleading in the city’s suit to which Thompson was a party. Thompson filed a complaint over against the officers and directors of Westgate and Heights asking that they, as trustees of the dissolved corporation, be required to defend Thompson’s title to the easement area against the intervenors after the city dismissed its complaint. This complaint against these directors was dismissed without prejudice before the trial. Appellee is in no position to complain here about the reformation because it did not appeal from the decree reforming the granting instrument.

Furthermore, Farris testified that he took over the management of the shopping center for Thompson before the actual closing of the purchase from Westgate and Heights. He represented Thompson in closing. Ollis Mallett, now deceased, was the representative of the sellers with whom Farris negotiated and was actually their managing officer. Farris said that he learned of the grant of the easement when it appeared in the record of title of Lot 6. He also said that the title opinion furnished the purchasers mentioned this easement. Farris said that when he questioned Mallett about the easement, "he explained it to me as has been explained to the court.” Later he testified that Mallett said that the easement was given to satisfy the city officials, that it had never been used and never would be, that the city would not patrol it or keep it repaired. When all pertinent facts are considered we cannot say that Thompson was without notice of the easement at the time of the conveyance from Westgate and Heights.

Appellants now argue that the intervention of Ballenger et al should be dismissed because it has been stipulated that the church has sold the remainder of the lot and these people, as members of the church, are no longer interested in ingress and egress via the easement. Appellee made a motion to dismiss on this ground before trial. It does not appear that this motion was ruled upon by the court before trial. It was incumbent upon appellee to call its motion to the court’s attention and obtain a ruling thereon. Failure to do so would constitute a waiver, so that the motion could not be considered on appeal. Trinity Universal Insurance Co. v. State Farm Mut. A. I. Co., 246 Ark. 1021, 441 S. W. 2d 95; Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154; Harbottle v. Central Coal & Coke Co., 134 Ark. 254, 203 S. W. 1044; Sanders v. W. B. Worthen Co., 122 Ark. 104, 182 S. W. 549. The cause was heard upon the petition of the intervenors, among other pleadings. In the decree the court denied all motions not theretofore ruled upon. If this included appellee’s motion to dismiss the intervention, we cannot consider the correctness of the ruling because appellee did not appeal.

The decree is reversed and, since real property rights are involved, the cause is remanded for the entry of a decree consistent with this opinion.

Byrd, J., not participating.

The following is a copy of the plat referred to in the foregoing opinion:


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    LAKE VILLAGE IMPLEMENT COMPANY, Inc. v. Crowell COX
    5-5405
    461 S. W. 2d 108
    Opinion delivered December 21, 1970

      Clifton Bond, for appellant.

      James A. Ross and James A. Ross, Jr., for appellee.
   J. Fred Jones, Justice.

On August 10, 1968, Crowell Cox purchased some silage equipment from Lake Village Implement Company, Inc. for $5,850. He paid $1,850 in cash and the equipment was delivered to him. On the original purchase order form signed by Cox appeared the written notation “$4,000 to be financed.” After the equipment was delivered to Cox, he signed a promissory note form reciting $4,000 due October 15, 1968. He also signed and delivered three post dated checks totaling $4,000, the last one being dated October 15, 1968. The checks were dishonored by the bank for insufficient funds when they were presented for payment, and when Cox refused to deliver possession or pay for the equipment. upon demand, the equipment was repossessed by replevin sued out by the company.

The company contended that it retained title in the equipment until the purchase price was paid and that in so far as it and Cox were concerned, the contract constituted a cash transaction, as evidenced by the note and the checks. Cox did not question the company’s retention of title, but he contended that the balance on the purchase price was to be financed by the company over a two year period; and that under his verbal agreement with the company he owed nothing on the equipment when it was wrongfully taken under delivery order in the replevin. Cox filed a counterclaim alleging damages in the amount of $14,250 for loss of a silage crop he was unable to harvest because of the wrongful taking, and for $15,128.68 loss in the sale of cattle he was unable to feed because of the loss of the silage crop. He also counterclaimed for the down payment he had made on the equipment and for the value of a wagon, drum and hose taken along with the silage equipment.

A jury trial resulted in a judgment for a return of the equipment to Mr. Cox and for damages in the amount of $2,000. On appeal to this court the implement company relies on the following points for reversal:

“That the contract upon which the Counter-claim of the appellee is based for damages and possession of the disputed property is not to be performed within one (1) year and is not signed by any officer, agent or employee of the appellant to be charged therewith and is within the Statute of Frauds, Ark. Stat. Sec. 38-101.
Damages for a loss of profit upon the sale of a herd of 339 head of cattle which were to be fed a growing crop of silage which was to be cut and harvested with farm machinery replevined by the appellant from appellee are too remote and speculative and dependent upon chance to be susceptible of adequate proof and to form a basis for recovery by the appellee.
That appellant was the owner of the disputed farm machinery, entitled to its immediate possession, and said farm machinery was unlawfully detained by appellee and that the verdict of the jury granting possession of said farm machinery to appellee is contrary both to the law and the evidence.”

Part payment of the purchase price and delivery of the possession of merchandise is usually sufficient to take an otherwise valid contract out of the statute of frauds. Harper v. Albright, 228 Ark. 760, 310 S. W. 2d 475, see also Ark. Stat. Ann. § 68-1404 (Repl. 1957). We do not pass on the validity of the contract in this case however, for we conclude that the case must be reversed for error in the instruction No. 7 as argued by the implement company under its second and third points. For the same reason we find it unnecessary to review the evidence in this case. The trial court’s instruction No. 7 reads as follows:

“If you find for the defendant, Crowell Cox, on the Counterclaim, you should award him judgment against the plaintiff, Lake Village Implement Company, for possession of the silage equipment, or its value, and you may also award him any damages that he suffered as a result of a taking of the equipment by the plaintiff.
You must then fix the amount of money which will reasonably and fairly compensate Crowell Cox for any of the following elements sustained:
1. The fair market value of the 4 wheel wagon, cylinder and hydraulic hose taken under the order of delivery.
2. The fair market value of the defendant’s silage crop immediately before the plaintiff took the silage equipment, less the reasonable expenses for harvesting that crop.
3. The sum will compensate the defendant for any and all losses he suffered by being unable to feed his cattle.
4. The down payment on the equipment in the amount of $1,850.00.
Whether any of these elements of damages have been proven by the evidence is for you to determine.”

We are of the opinion that the third element of damages, as set out in the instruction as given, is too remote. Kelly v. Altemus, 34 Ark. 184, 36 Am. Rep. 6. We are of the opinion, and so hold, that the fourth element stated in the instruction simply does not constitute an element of damage available to a successful defendant in a replevin action. The recovery of possession of specific personal property is the primary object of a suit in replevin. Ark. Stat. Ann. § 34-2101 (Repl. 1962). We find no statutory authority, or case law precedent, that would permit a successful defendant in a replevin action wrongfully brought by the seller under an executory conditional sales contract, to regain possession of the replevined articles and at the same time recover the amount he had paid on the purchase price as damages for the wrongful replevy and detention.

The judgment of the trial court must be reversed and this cause remanded for a new trial.

Reversed and remanded.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I agree that, under the U. C. C., Ark. Stat. § 85-2-711, Cox here as, a buyer, is not entitled to recover both the possession and the down payment on his purchase price. The election of course is the buyer’s, and should he elect to recover the down payment then he would be entitled to hold the goods as security for the lien given.under the statute, supra.


author: J. Fred Jones, Justice.

text:
    Glenn Allen JACKSON v. STATE of Arkansas
    5544
    460 S. W. 2d 767
    Opinion delivered December 21, 1970

      Eugene Coffelt and M. Gary Kennan, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

On April 3, 1970, the appellant was arrested and charged with the crimes of burglary and grand larceny in Benton County. He was accused of entering the home of Lloyd Stevens and taking a radio belonging to James Haddock. On April 10, he entered pleas of guilty to both charges in the Benton County Circuit Court and was sentenced to the penitentiary for two years on the burglary charge and to one year on the larceny charge. On May 6, 1970, the appellant filed a motion to withdraw his pleas of guilty, and on June 2, 1970, a hearing was had on the motion. From an order denying the motion, the appellant has appealed to this court, and relies on the following point for reversal:

“The trial court erred in overruling appellant’s motion to withdraw his plea of guilty.”

In his motion to withdraw his pleas of guilty the appellant alleged that he was not guilty, and that the only reason he entered his pleas of guilty was that he was told by the arresting officer that there were three eye witnesses who saw him take the radio, and that he (the appellant) felt that it would be useless for him to defend against the charges if there were three eye witnesses who would testify against him.

Upon his pleas of guilty the appellant was thoroughly advised of his constitutional rights by the trial court and this is not questioned. Under questioning by the court, the appellant testified that he is 25 years of age; that he did not know he took the radio. He stated that he lived at Big Flat, Arkansas, but had not been home in about eight months; that he had just "been all over.” He stated that he was AWOL from the Army and had been for a little over two years. He stated that he had been in prison in Fort Leavenworth for going AWOL from the Army; that he was supposed to report to Fort Dix when he left Leavenworth, but did not do so. He admitted that he had previously been convicted of one felony involving a stolen automobile. He stated that his parents were still living at Big Flat, and that his sisters and brothers were living in Benton County. He stated that he understood the charges filed against him; and stated that he did not desire the services of appointed counsel.

At his hearing on the motion to withdraw his pleas of guilty, the appellant testified that he does not believe he is guilty of the charges on which he entered his pleas of guilty. He testified that Police Officer Wright told him that there were three people who saw him take the radio, and that in a roundabout way, Officer Wright told him that he might as well plead guilty because he was going “to be stuck.” In explanation, he testified that Officer Wright stated: “Let’s make a full statement. There’s three witnesses seen that you done it.” The appellant testified that he felt it would be useless to hire an attorney to defend him, when three eye witnesses could prove that he did it. He testified that he had no money with which to pay an attorney, but that he did not ask the court to appoint counsel for him because he did not see any need of it at that time. The appellant testified that after his pleas of guilty were accepted by the court, and after sentences were pronounced, his brother advised him of the name of the witnesses referred to by Officer Wright, and that these witnesses had denied that they made the statements attributed to them by Officer Wright.

On cross-examination the appellant testified that when he was first arrested by Officer Wright he was only told that he was being arrested for grand larceny and burglary, and that it was after he was lodged in jail that Officer Wright told him that he had three eye witnesses to the offense. He testified that the reason he qualified his answer by stating “I don’t believe so” when asked, on direct examination, if he was guilty, was because he was so drunk at the time he wasn’t capable of doing anything like that. He testified that he knows now that he did not take the radio because after he thought it over he just knows he could not have done it. The appellant admitted that he understood the proceedings taking place at the time he entered his pleas; that he understood the nature of the charge; that it was a felony, and that he could be sentenced to the penitentiary upon his pleas of guilty.

Lloyd Stevens made an affidavit which appears in the record in which he states that he never did sign any statement to the effect that Glenn Jackson took a radio from his residence. He states, however, that he told the officers that he thought it was Glenn Jackson. In his affidavit Mr. Stevens then stated as follows:

“The truth of the matter is that the incident of the taking of the radio from my home occurred after dark and it would be impossible for me to identify the party under the circumstances existing.
I had been at the home of Preston Jackson, who is a brother of Glenn Jackson, where m,y wife was babysitting for Preston Jackson, and Glenn Jackson appeared at said residence on foot and I loaned him a dollar; after loaning him a dollar, he left on foot while in an intoxicated condition.
In about ten minutes, I left the Preston Jackson residence on foot after seeing a blue Buick car, which I later learned, stopped at my residence and when I approached the vehicle, I observed that some individual ran from my house carrying an object which looked like the reported stolen radio, got in the blue Buick car and sped away. As to who the individual was, I am not in a position to say and could not under oath identify the party who took the radio and drove away from my home.”

Officer Wright testified that on the night in question he received information over the police radio concerning a stolen radio and another report, about the same time, concerning a stolen automobile belonging to William R. Spears. The officer testified that he found the automobile out of gas parked on the side of the highway, and that the radio which was reported stolen, was found in the automobile. He says that he then went to where the appellant was staying and arrested him for investigation of burglary and grand larceny. He testified that he told the appellant he had reason to believe that the appellant had stolen the automobile and the CB radio. He says that the appellant was considerably intoxicated and that he did not attempt to discuss the case with him until after he had been lodged in jail. He says the police at the jail permitted the appellant to make one telephone call, and that later in the morning they brought him downstairs in the jail and advised him of his constitutional rights. Finding that the appellant was still under the influence of alcohol, the officers did not take a statement from him which could be interpreted as admission of guilt. Officer Wright denied that he made any statement to the appellant about three eye witnesses. He says, however, that he did read to the appellant a statement he had written as to what Spears had told him. Officer Wright’s testimony concerning the statement appears as follows:

"It says, 'Lloyd Stevens saw Glenn Jackson take the radio from the house of Lloyd Stevens. From Preston Jackson’s house he saw Glenn stop at the above house and went into his house as subject was leaving the house. Lloyd hollered at him to stop. Time was unknown. 'Lloyd said that he was in the ’61 Buick (later) reported to be stolen by William R. Spears.’ That’s the only time, the only place, that I said that there was any witness that saw him do anything.”

On cross-examination Officer Wright testified that the statement made by Spears was after the appellant had been arrested and when Spears came to the police station and filed a complaint on the missing automobile. Officer Wright testified that the statement was what Spears told him and was in his own handwriting as related by Spears.

William R. Spears testified that he reported his automobile stolen; that he did not see the appellant steal the automobile, and did net tell Officer Wright, or anyone else, that he saw who stole the automobile. On this point Spears testified as follows:

“I made the statement that I was asleep when it was stolen or when it was missing and that they came and told me about it.”

He testified that Jim Haddock, a brother-in-law of Lloyd Stevens, came to his house and told him about the automobile being gone. He says that this occurred at 4 a.m., and then Spears continued as follows:

“Q. Did you tell Deryl Wright, the officer right here, that Lloyd Stevens told you that he saw Glenn Jackson go into Preston Jackson’s house and carry out a radio?
A. Yes, I did.
Q. You told Deryl Wright that?
A. Yes, so it was told to me.
Q. Who told you that?
A. Lloyd Stevens.
Q. What did Lloyd Stevens tell you?
A. That he saw the car stop at his house and went in and got the radio and came back and got in my car and left with it.
Q. Did he say that it was Glenn Jackson, that he saw Glenn Jackson?
A. He said he thought it was Glenn Jackson.”

It is well settled that permission to withdraw a plea of guilty is a matter that rests in the sound discretion of the trial court, and where the permission is denied, every presumption on appeal is in favor of the proper exercise of the trial court’s discretion. McClain v. State, 165 Ark. 48, 262 S. W. 987; Greene v. State, 88 Ark. 290, 114 S. W. 477; Joiner v. State, 94 Ark. 198, 126 S. W. 723; Duncan v. State, 125 Ark. 4, 187 S. W. 906. So the question, and the only question actually presented on this appeal, is whether the trial court abused its discretion in denying the appellant’s motion to withdraw his pleas of guilty.

It is obvious that appellant’s intended defense would be that of drunkenness to the extent that he was incapable of committing the crimes with which he was charged, but from the evidence of the manner in which the automobile was driven and parked, and the manner in which the culprit entered the house and returned to the automobile; and further, from the thoroughness with which the appellant was examined by the trial judge before his pleas of guilty were accepted, we are of the opinion that the trial court was justified in accepting the appellant’s pleas of guilty. We are also of the opinion the trial court did not abuse its discretion in refusing to permit the appellant to withdraw his pleas of guilty under the facts in this case.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Bill Jack THURMAN v. STATE of Arkansas
    5546
    461 S. W. 2d 113
    Opinion delivered December 21, 1970
    [Rehearing denied January 18, 1971.]

      Murphy, Carlisle & Taylor, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Bill Jack Thurman was charged with first degree murder in the killing of Vonne Carolyn Farmer on November 30, 1969. The jury found him guilty of voluntary manslaughter and fixed his punishment at 7 years in the state penitentiary. The only question raised on this appeal is whether the conviction of voluntary manslaughter was substantiated by the evidence.

The record shows that appellant Bill Jack Thurman, age 27, and the deceased Vonne Carolyn Farmer, age 29, lived together from June until her death on November 30, 1969. At the time of her death the parties were living in a house near the airport on Highway 71 south of Fayetteville. It is undisputed that Thurman and Mrs. Farmer were at the Corral Lounge around 8:00 or before that evening. Mrs. Farmer left the Corral Lounge, later went to the Rockwood Club and again showed up at the Corral Lounge at approximately 12:00 midnight. Thurman remained at the Corral Lounge until he left with the deceased. According to officers Gene Phillips and Joe Black of the Fayetteville Police Department, the parties arrived home shortly after 12:00. The policemen followed them home because of the excessive speed at which Thurman drove his car. However, they made no arrest but immediately turned around and drove back to the Corral Lounge area and at that time were notified of the shooting. Officer Joe Black stated that the parties were not sitting close together on their way home.

It is undisputed that decedent’s body was found near the refrigerator and that her. death was caused by a shot from a 1894 model 30-30 Winchester.

Appellant’s defense was that after they got home they visited for a minute or two, then decedent stated that she was going to get her two children whom she had left with her niece. He then told decedent that he was going to clean his rifle which he took from a bedroom closet. About that time the deceased stooped over to pick up something and the rifle accidentally discharged. Appellant admits that decedent had keys to her car in her hand at the time the rifle discharged. However he disputes her possession of his payroll check stub. The defendant in his own behalf testified that he arrived home from deer hunting between 6:00 and 6:30 P.M. and that when he came in he didn’t unload the gun but put it up loaded. According to him, however, the gun was not cocked when he put it up.

The evidence on behalf of the State from Dr. John William Vinzant and Dr. Mae Nettleship was that the bullet entered some 2 or 3 inches below the chin, went straight through and came out of the back slightly above the kidneys — that is, the angle of the wound would be 30 to 45 degrees downward. There were powder burns on her right thumb and chin.

Officer Joe Black testified that when he returned to the house after the shooting the weapon was lying next to the decedent’s body. At that time it smelled of gunpowder and he determined that it had been recently fired. The rifle had five live rounds in it, one in the chamber and four in the magazine. He found the expended round in the house. He also observed .car keys and a check stub in her hand. Her purse was on the floor just north of her. Having determined that the house was located outside the city limits of Fayetteville, the officers called in the sheriff’s deputies.

Decedent’s brother, Virgil L. Poor and his wife, with others, were at the Rockwood Club on the night in question. According to Poor decedent came to the Rockwood Club and sat with them for approximately an hour. At her request he went to the Corral Lounge and asked the appellant to go back with him to the Rockwood Club. His testimony is that appellant inquired who decedent was with and when Poor told him that she was with him, appellant merely said, “All right.”

Loretta Elizabeth Graham, a/k/a Betsy Graham was employed as a carhop at the Chuck Wagon Drive-In. This is located on property adjoining the Carrol Lounge, with food being served from the drive-in into the lounge. She says that after the decedent left the Corral Lounge, appellant stopped her and wanted a cheeseburger and told her to tell the decedent to pay for it. At this point she lied and told appellant she did not know where decedent was although decedent was apparently on the Chuck Wagon premises. When she delivered the cheeseburger she told appellant she did not know where decedent was and that he would have to pay for it. At this time appellant made inquiries to find out if she really knew where decedent was and as she started out the door, decedent made the statement, “I think if I find that. . . woman, I’ll kill her.”

Captain Paul R. McDonald with the Arkansas State Police examined the 1894 model 30-50 lever action rifle and determined that the bullet found in the house was fired from the rifle. He also performed tests upon the rifle in both a half cocked position and a full cocked position. According to him the jarring test he performed exceed the jarring involved in dropping a rifle. In these tests he found no malfunction in the rifle that would cause it to accidentally discharge. The trigger tests showed that it would take five and a half pounds pulling pressure to cause the rifle to fire from a full cocked position.

Glen E. Logan, criminal investigator for the Washington County Sheriff’s Office, testified that the first thing he noticed when he entered the house was a slight disarray in the front room with the furniture and blood spots on the floor between the living room and the kitchen area. Concerning the disarray there was a sectional couch that was moved around and a rug was thrown up across one. end of it. The body had already been removed by the time he had reached the scene. According to his investigation the bullet from the rifle after passing through the decedent’s body ricocheted off the refrigerator into the floor, from the floor to the stove handle, then the bullet hit the open oven door and ricocheted back completely through the house into the northeast corner of the living room. The spot on the refrigerator was exactly eight inches above the floor. From the refrigerator to where it hit on the floor was nineteen inches. The measurement from the spot on the floor to the oven door was thirty inches and then the path of the bullet from the stove to where it was located was twenty one feet and seven inches. On rebuttal the officer stated that they made a complete search of the premises looking for cleaning equipment for the gun and that they found no oil, cleaning rags or cleaning rods whatsoever.

When the proof relative to the disarrayed condition of the house and the powder burns on the chin and the thumb are considered together in connection with the threat made to the waitress, Betsy Graham, it appears to us that it would support a conviction of a higher degree of homicide than voluntary homicide. Under these circumstances our cases point out that one cannot complain that the proof is insufficient to sustain the lesser degree of homicide when it would have sustained a conviction of a higher degree. See Patrick v. State, 245 Ark. 923, 436 S. W. 2d 275 (1969).

Affirmed.


author: Frank Holt, Justice.

text:
    Doyle H. JACKSON, Executor v. Estate of Rhea C. JACKSON
    5-5408
    460 S. W. 2d 799
    Opinion delivered December 21, 1970

      Willis V. Lewis, for appellant.

      Sloan, Butler, Ragsdale & Dishongh, for appellee.
   Frank Holt, Justice.

This appeal results from the refusal of the probate court to construe a will as a valid instrument. On appeal the appellant raises only one question: “Where the intention of a testatrix may be ascertained from a reading of an instrument purporting to be a will, does the absence of a formal distributive clause render it invalid as a testamentary disposition?”

In September 1966 an instrument designated as the “Last Will and Testament Of Otis R. Jackson and Rhea C. Jackson” was made by them as husband and wife. Mrs. Jackson’s death in 1969 occurred nineteen months after that of her husband. The appellant, their son, was appointed executor according to the terms of their will. Thereafter other children of the decedents attacked the validity of the will on the basis that “there is no provision for distribution of assets” in the event one testator survived the other for more than thirty days. The matter was submitted to the probate court on the sole issue of whether this instrument was sufficient to constitute the valid will of the decedent, Mrs. Rhea C. Jackson, at the time of her demise. We agree with the probate court in its findings that this instrument was not Mrs. Jackson’s will at the time of her death and, therefore, that she died intestate.

The first paragraph of this joint will provides for the payment of just debts and expenses out of the estate of the one that might predecease the other. The second paragraph provides that the survivor shall take all of the estate of the one who first dies. The third paragraph then provides for distribution of the assets of the estate of both testators in the event of simultaneous death of both testators, or if both testators died within thirty days of each other. Paragraph four recognizes two of their children as being married and financially secure. Paragraph five provides that in the event of simultaneous death, their son, the appellant, be appointed trustee and guardian of another son. Paragraph six of their joint will provides for the appointment of the appellant as executor.

The thrust of appellant’s argument is that the probate court erroneously determined the true intention of the makers of this “joint will.” Stated another way, appellant asserts that “the court concluded that the failure to explicitly deal with the contingency of survival of one spouse beyond thirty days from the death of the other rendered the will invalid.” Of course, we agree with appellant’s assertion that a cardinal rule in will cases is to ascertain and give effect to “the intention of a person preparing and executing an instrument testamentary in character.” In the case at bar, in addition to the absence of a distributive clause, except in the event of simultaneous death of the parties or within thirty days of each other, there is this most significant language in the preamble to their will:

We, Otis R. Jackson and Rhea C. Jackson, husband and wife, * * * being * * * mindful of the uncertainties of life and the certainty of death, and being anxious, each, to make suitable provision for the other * * * , and also to provide for the distribution of each of our separate estates in the event of simultaneous deaths, do hereby make, publish and declare this to be our joint Last Will and Testament, * * * . [emphasis added]

This unambiguous language clearly reflects the intentions of the makers of this instrument. Accordingly, their joint will only provided for a distribution of their separate estates in the event that they died simultaneously or that their deaths occurred within thirty days of each other. The only other provision for distribution of their separate estates is paragraph two which provides that “[t]he survivor shall take under this Will all of the estate” of the one who predeceases the other.

It follows that we must agree with the probate court’s order which reads in part:

The instrument here although joint in form, has the same effect as would separate reciprocal wills of the testators, except in the event of simultaneous death or the deaths of the testators within thirty days of each other. * * * In contemplation of law, Rhea C. Jackson did not have a will at the time of her death. In other words, the instrument before the Court was a conditional will insofar as Rhea C. Jackson is concerned, because it depended for its operation and validity upon the happening of the condition heretofore mentioned, i. e., simultaneous death or death of one testator within thirty days of the death of the other. This condition having failed, the will is inoperative and void insofar as Rhea C. Jackson is concerned.

See Wilson v. Higgason, 207 Ark. 32, 178 S. W. 2d 855 (1944); Glover v. Reynolds, 135 N. J. Eq. 113, 37 A. 2d 90 (1944), aff’d 136 N. J. Eq. 116, 40 A. 2d 624 (1945).

The order of the probate court must be affirmed.

Byrd, J., not participating.


author: Carléton Harris, Chief Justice.

text:
    ARKANSAS BEVERAGE COMPANY v. DR. PEPPER BOTTLING COMPANY of Little Rock, Arkansas Winston I. Moody, Sr., and Coca Cola Bottling Company of Arkansas
    5-5382
    461 S. W. 2d 571
    Opinion delivered January 11, 1971

      Robert F. Schlafly and Chowning, Mitchell, Hamilton & Chowning, for appellant.

      Rose, Barron, Nash, Williamson, Carroll ir Clay, for appellee.
   Carléton Harris, Chief Justice.

This appeal challenges, on legal and factual grounds, the adverse findings and decree of the Pulaski Chancery Court in a suit filed by appellant, Arkansas Beverage Company, distributors of Pepsi-Cola, an Arkansas corporation with home offices in St. Louis, against Dr. Pepper Bottling Company of Little Rock, its president and sole stockholder Winston Moody, and Coca Cola Bottling Company of Arkansas. Suit was filed against Dr. Pepper of Little Rock and Moody on April 2, 1969, and Coca Cola Bottling Company of Arkansas, hereinafter called Coca Cola, was joined as a defendant by an amended complaint filed on May 29, 1969. The complaint against Dr. Pepper of Little Rock and Moody sought specific performance of a purported contract made by appellant with Dr. Pepper of Little Rock for the sale of the company, and for a mandatory injunction. The complaint against Coca Cola will be subsequently discussed.

Dr. Pepper of Little Rock was a bottling plant operating as the franchisee of two bottlers’ license agreements issued by Dr. Pepper, a Colorado Corporation, with headquarters in Dallas, Texas, hereinafter referred to as Dr. Pepper of Dallas. These agreements pertained to soft drinks known as Dr. Pepper and Dietetic Dr. Pepper, and granted to Dr. Pepper of Little Rock the exclusive right and license to carbonate, bottle, sell, and distribute these drinks in the Central Arkansas Counties of Pulaski, Saline, Lonoke and parts of Prairie and White.

It appears that during the months of October and November of 1968, appellant, Arkansas Beverage Company, hereinafter referred to as ABC, through its president, M. G. Biehl of St. Louis, and its local general manager, H. J. “Bob” Tucker of Little Rock, conferred with Moody relative to a possible purchase of Dr. Pepper of Little Rock. Moody asked a total of $600,000.00 to be paid over a period of years and indicated a desire that he be hired as a consultant to the company. This proposal was agreeable and Mr. Biehl submitted it to the ABC Board of Directors on December 5, 1968. The board authorized him to present it to Moody, obtain his approval, and resubmit it to the ABC board for final acceptance. This offer was communicated to Moody but after extended discussion, he rejected it on the advice of his accountant for fear of adverse tax consequences.

Biehl reported Moody’s rejection to the ABC board and there was no further contact between Moody and ABC until on or about February 21, 1969, when Moody, after talking with Tucker, signed the following statement prepared by Tucker in his own handwriting:

“If the offer of 12/10/68 can be reinstated, plus appreciation and less depreciation, I will sell.
It must be noted, figure for item No. 48 is out of line, interest on vendor notes is not included in liabilities and I reserve the right to purchase the Cadillac at book value.”

Mr. Tucker sent the statement to Biehl, who after meeting with the ABC board, was directed, with Tucker, to notify Moody, and instruct the company’s counsel to prepare formal contracts and authorize the officers of the company to execute them. This was done and on March 13, representatives from Dr. Pepper of Dallas, helped Tucker fill out the application forms to transfer the licenses from Dr. Pepper of Little Rock to ABC. This application upon completion was forwarded to Dallas. Relative to this application, Mr. Summers, Southwest Division Manager of Dr. Pepper of Dallas, reported to his company that he could not recommend that appellant be given the franchise until ABC positively agreed to three additional requirements. On March 21, Moody called Joe K. Hughes, Vice-President for marketing services and Chairman of the Franchise Department of Dr. Pepper of Dallas requesting that he hold up action on ABC’s license application since Coca Cola had evidenced an interest in buying Dr. Pepper of Little Rock.

On March 25, Coca Cola and Moody signed an agreement for the purchase of all of Moody’s stock in Dr. Pepper of Little Rock, Tucker was informed by Moody of this agreement on the same day. Dr. Pepper of Dallas subsequently returned the license application of ABC, advising that the franchise had been granted to Coca Cola. Coca Cola subsequently offered to sell ABC the assets of Dr. Pepper of Little Rock* exclusive of the franchise agreements, but this offer was rejected. Thereafter, Coca Cola liquidated Dr. Pepper of Little Rock and sold many of its assets to third persons. As a result, ABC, alleging the contract with Moody and Dr. Pepper of Little Rock, amended its complaint to include Coca Cola, and further prayed for the issuance of a mandatory injunction requiring the preservation of the business and good will of Dr. Pepper of Little Rock as operated by Dr. Pepper or Coca Cola.

The chancellor found that there was never a contract, and if there had been, that it could not be the subject of specific performance. From these findings, appellant brings this appeal.

The evidence in this trial was voluminous and fills five large transcript volumes. Testimony concerning several different facets of the case, and the argument relative thereto, will not be discussed since we are of the view that the parties never finally agreed upon several matters that were essential to the completed contract.

Since the statement of February 21, 1969, signed by Moody refers to a reinstatement of the offer of December 10, 1968, it is first necessary that we examine the letter containing that offer. The letter commences by advising that appellant proposes to pay Dr. Pepper of Little Rock a total of $600,000 over a fifteen year period, paying $381,870 for guaranteed receivables, inventories, bottles and cases, pre-paid insurance, fixed assets of the plant and office equipment, trucks, automobiles, and vending machines and equipment. Franchise rights and good will would also be included. Of the $600,000, $381,870 would be paid as follows: $120,000 in cash, $65,000 by ABC’s assumption of Dr. Pepper of Little Rock’s term debt, and $196,870 by appellant’s promissory note in that amount, payable with 8% interest on the declining balances in equal annual installments for fifteen years, commencing December 31, 1969. It was mentioned that the $120,000 could be paid by $30,000 in cash at closing, plus appellant’s note for $90,000 payable on January 3, 1969, which would “spread the initial cash payments over two years”. Two paragraphs are very pertinent to the conclusion we have reached in this case. Paragraph number two reads as follows:

“This proposal is subject to preparation of formal contract papers and final approval by our Board of Directors. However, our Board favors the transaction in principle and authorized me to find out if the following proposal is acceptable to you. If it is, we would submit a formal contract to you and to our Board promptly for action. Of course, the deal would be conditioned on our Company getting approval for the new franchise, which should not be a problem.”

The final paragraph of the letter reads as follows:

“Please initial one copy of this letter as your agreement in principle and we can proceed with preparation of the formal contract papers so that final closing can be a[e]ffected at the earliest possible date, [our emphasis.]”

Appellant offered testimony that Moody had told other bottlers, at a bottlers’ convention in Hot Springs, that Dr. Pepper of Little Rock had been sold to appellant; however, Moody offered witnesses who testified, in effect, that he was only engaged in negotiations for a sale to ABC. Appellant argues that Moody used its offer as leverage to obtain a better offer from Coca Cola, a company that had previously made a much less substantial offer, and when he obtained the price and conditions that he desired, chose to ignore his existing contract with appellant. It may be that Moody took advantage of the offer from ABC to acquire a better bargain from Coca Cola — but that is not the question at issue. If he were only negotiating with appellant, he certainly had the legal right, even if it be considered that he did not have an ethical right, to mention the offer from ABC.

It is pointed out by appellant that Moody acquainted Tucker with the details of his business. Actually, in reviewing testimony emphasized by appellant, relative to Moody’s furnishing an inventory of his business, supplying financial statements, and taking a representative of the appellant company on tour through his plant, furnishing him with information about the capabilities of the plant employees, we find no acts inconsistent with negotiating a sale. Certainly, a purchaser seriously considering an expenditure of $600,000, would want to be acquainted with those facts. For that matter, it appears unquestionable that Moody thought he would probably be selling to ABC, not having any additional offers at the time the discussions concerning the sale commenced, and he could well have left the impression with some of the witnesses that it was his intention to sell to ABC. But we again reiterate that there is a distinct difference between negotiating for a sale, or even planning on making a sale — and in entering into a contract for such a sale.

We have mentioned that a purchaser would demand complete knowledge of the operations of a business before paying $600,000 for it; similarly, a seller of such a business would likewise be concerned with details. With this thought in mind, it is pertinent to make a determination of whether there were important details, or to state it in another way, substantial matters, that were left unanswered, or not agreed upon, in the formal contract prepared by appellant, and brought to Little Rock by the president of ABC, Marc G. Biehl, prior to learning of Moody’s sale to Coca Cola. The proposed contract is rather lengthy, and we will only make mention of important matters that were not mentioned in the letter of December 10, 1968, or had not been agreed upon, by the parties. Paragraph two of the proposed contract of the sale of the assets provides that the purchase price of $381,870 would be adjusted by the amount that the bottles on hand on March 31, 1969, was more or less than 10,000 cases, valued at fifty cents per case. Mr. Tucker admitted that neither ABC’s “offer of 12/10/68” nor Moody’s “offer of 2/21/69” contained any mention of an adjustment to the purchase price depending upon the extent by which the bottle inventory was more or less than 10,000 cases. Paragraph eight of the contract provides that personal property taxes for 1969 on the assets to be purchased by appellant would be charged one-fourth to Dr. Pepper and three-fourths to appellant in closing adjustments. Moody testified that he did not so agree, and both Tucker and Biehl testified that this provision for the allocation of these taxes was not contained in the offer of February 21, 1969, and was never discussed between the parties. Paragraph ten of the proposed contract provides that Dr. Pepper of Little Rock would reimburse appellant on demand for the amount of any receivables which had not been collected by appellant within 90 days from the due dates. Moody testified that he did not so agree and Biehl admitted that the “offer did not contain this provision and, in fact, it was never discussed between the parties”. Moody said that had the formal written contract been submitted to him for approval, he would have insisted on at least six months to collect delinquent accounts before they were charged back to him, and Biehl stated that he did not know whether ABC would have agreed to a six months collection period before charging delinquent accounts back to Moody; that this point would have had to be negotiated between the parties. Paragraph sixteen provided that Dr. Pepper of Little Rock would indemnify appellant for any liability resulting from Dr. Pepper’s failure to comply with the Arkansas Bulk Sales Law. Both Biehl and Moody testified that this provision was not contained in the “offer” and, in fact, had never been discussed by the parties. Paragraph five of the proposed employment agreement provided that during the seven year period of employment of Moody by appellant, the former would not directly or indirectly, engage in any type of soft drink business, either individually or as a partner or employee, officer, director, or stockholder of a corporation, except for services to appellant, and that a violation of this provision would relieve appellant from any further obligation to pay any balance of the $70,000 owed to Moody under said employment contract. Moody testified that the provision for his services as a consultant actually was part of the proposed purchase price for which appellant hoped to take a current income tax deduction, and both Biehl and Moody stated that the non-competition provision was not mentioned in Moody’s offer of 2/21/69 and had never been discussed between the parties. A number of other minor items are in the same category, but we have mentioned these as matters of importance to the culmination of the contract, and which were not included in the offer previously mentioned.

Probably the most important item was the provision that Moody would obtain from Dr. Pepper of Dallas new license agreements for the territory served by Dr. Pepper of Little Rock for the drink known as Dr. Pepper and all other products of Dr. Pepper Company then sold by Little Rock Dr. Pepper; also, all other products which the local company was then authorized to sell and bottle from National NuGrape Company, Atlanta, Georgia. The proposed contract brought to Little Rock by Biehl set out that the seller agreed to sell to appellant, inter alia.

“(c) All trademarks, trade names, franchise rights and good will associated with said bottling business in the territory described in paragraph 13 and wherever else Seller conducts its business.”

This proposal, if signed by Moody, bound Dr. Pepper of Little Rock to sell something tharit had no right to sell, and would have obligated Moody to grant rights which were not his to grant, for admittedly, the matter of granting franchise rights was the sole prerogative of Dr. Pepper of Dallas. To say the least, it would be unusual for any businessman to bind himself to perform an act clearly beyond his control. The obtaining of the franchise rights was the principal reason for appellant’s desire to make the purchase, and Biehl made it very clear that his company would not be interested in acquiring the properties of Dr. Pepper of Little Rock unless franchise rights could be obtained. In fact, appellant was subsequently offered the opportunity to purchase all assets of the Little Rock company, exclusive of the franchise, and declined to do so. While it appears, though not at all definite, that Dr. Pepper of Dallas would, at the time, since there was no other applicant, have approved the granting of franchise rights to appellant, there is a clear indication that further negotiations would likely have been necessary; at any rate, Moody could not be expected to warrant that franchise rights would be granted.

In addition to the matters mentioned in the proposed contract that were not covered in the December 10, 1968, letter, there were two other matters that definitely appear to have been subject to further negotiations before agreement could have been reached. The first of these relates to collateral to secure the note which was to be given by appellant to Moody. Moody testified that he requested security. This was denied by Biehl and Tucker. But admittedly, Moody had requested that Mr. Daniel Schlafly, chairman of the board of ABC, endorse ABC’s note for the balance of the purchase price. Tucker reported to Moody that Mr. Schlafly would not do so, and he said that ended the discussion about security or collateral. Moody testified that he would have never executed a contract without some form of security, and such a requirement on the part of Moody would appear, not only reasonable, but, from his standpoint, almost essential. When interrogated as to the security that ABC would have given Moody, Tucker replied “That would have been up to our board, sir, by mutual agreement with Moody for security”. He then stated “There would have been security of some sort. Mr. Moody wouldn't have accepted it without some sort of security”, [our emphasis.] It is interesting to note that following a recess for lunch, Tucker again took the stand and on re-direct examination indicated that the security he was talking about was the note itself. “I mean a piece of paper, the rate of interest, something tangible that he had a note and this could be assigned to his heirs. That is the type of security I am speaking of.” We certainly cannot say that the court’s finding that Moody requested security, and that this matter had not been agreed upon, was against the preponderance of the evidence.

There is no provision in the proposed written contract that appellant would pay any rent on the building occupied by Dr. Pepper of Little Rock, said building being owned by Moody as an individual. If the sale had been consummated, it would have been necessary for appellant to have continued to occupy that building until such time as the bottling of Dr. Pepper products could have been moved to appellant’s plant in an orderly fashion. Moody testified that he would not have permitted appellant to occupy the building without the payment of rent; in fact, he testified that he would have expected to receive at least $800.00 per month. It is not disputed that rent was never mentioned between the parties. There was still another matter that would have required specific agreement, which was not included in the proposed contract brought by Biehl to Little Rock, viz, Moody was not given any credit for prepaid insurance and all three parties testified that Moody, on December 12, 1968, had requested that he be given that credit.

There is no reason to discuss the allegations against Coca Cola, for any possible liability of that appellee must be based upon the premise that ABC and Dr. Pepper of Little Rock had entered into a binding contract. The testimony as to the knowledge held by officials of the local Coca Cola company relative to Moody’s negotiations with appellant is in dispute; Coca Cola did obtain the advice of its attorney before proceeding with the closing, but under our views, heretofore expressed, Coca Cola’s actions in the controversy are of no moment.

To summarize, we agree with the finding of the chancellor that no contract was entered into between the parties; even if in doubt, we certainly could not say that his findings were against the preponderance of the evidence.

The governing law is aptly set out in the Federal case of American Bentonite Corporation v. Clark Equipment Co. 43 Fed. 2d 392 (District Court, W. D. Michigan, S. D.), which bears some factual similarity to the present litigation. There, the court quotes from the well recognized and much cited case of Mississippi Steamship Co. v. Swift, 86 Me. 248, 29 A. 1063, 1066, 41 Am. St. Rep. 545, in mentioning the factors that should be taken into consideration in determining whether a definite contract has been entered into. From the opinion:

“If the party sought to be charged intended to close a contract prior to the formal signing of a written draft, or if he signified such an intention to the other party, he will be bound by the contract actually made, though the signing of the written draft be omitted. If, on the other hand, such party neither had nor signified such an intention to close the contract until it was fully expressed in a written instrument, and attested by signatures, then he will not be bound until the signatures are affixed. The expression of the idea may be attempted in other words: If the written draft is viewed by the parties merely as a convenient memorial or record of their previous contract, its absence does not affect the binding force of the contract. If, however, it is viewed as the consummation of the negotiation, there is no contract until the written draft is finally signed. In determining which view is entertained in any particular case, several circumstances may be helpful, as whether the contract is of that class which are usually found to be in writing, whether it is of such nature as to need a formal writing for its full expression, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether the negotiations themselves indicate that a written draft is contemplated as the final conclusion of the negotiations. If a written draft is proposed, suggested, ór referred to during the negotiations, it is some evidence that the parties intended it to be the final closing of the contract.”

In the case before us, certainly this contract is of that class usually found to be in writing, is of such a nature as to need a formal writing for its full expression since it contains many details, the amount involved is large, the negotiations themselves indicate that a written draft was contemplated as a final conclusion, and a written draft is proposed by the letter of December 10. In Smith v. School Dist. No. 89, 187 Ark. 405, 59 S. W. 2d 1022, this court quoted 13 C. J., § 86 as follows:

“Ai acceptance, to be effectual, must be identical with the offer and unconditional. Where a person offers to do a definite thing, and another accepts conditionally or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat or it is a counter proposal, and in neither case is there an agreement.”

Paragraph two of the letter of December 10, 1968, quoted at the outset of this opinion, is more persuasive. To reiterate, that language states:

“This proposal is subject to preparation of formal contract papers and final approval by our Board of Directors. However, our Board favors the transaction in principle and authorized me to find out if the following proposal is acceptable to you. If it is, we would submit a formal contract to you and to our Board promptly for action. Of course, the deal would be conditioned on our Company getting approval for the new franchise, which should not be a problem.”

Moody is then told to initial two copies of the letter as his agreement in principle.

It would certainly appear that, if the shoe were on the other foot, and appellant were contending that no definite agreement had been reached, and that it was not bound by its letter of December 10, 1968, to carry out a purchase of Dr. Pepper Bottling Company of Little Rock, we would have to agree that there was merit in such a contention. The inclusion of provisions, in the proposed contract brought to Little Rock by Biehl, not mentioned in the letter of December 10, as well as the failure to mention important matters that would necessarily arise in closing a sale, we think, clearly shows that a complete and finalized agreement, or a “meeting of the. minds” had not taken place between the parties.

Affirmed.

       Coca Cola of Arkansas had about a year previously, offered to buy the company but this offer was rejected by Moody because of insufficient price.

       All italicized portions denote our emphasis.

       There were two proposed contracts prepared by ABC, one for the sale of the business, and the other for personal services of Moody.

       Under our view, we do not reach the point but it would be interesting to see what would happen if appellant prevailed in this litigation, and Dr. Pepper of Dallas gave franchise rights to some bottler, not presently a party to any of these proceedings.


text:
    Don G. PARKER, Inc. v. POINT FERRY, Inc. et al
    5-5376
    461 S. W. 2d 587
    Opinion delivered January 11, 1971

      Murphy, Arnold, ér Blair, for appellant.

      Hodges, Hodges ir Hodges, for appellees.
   Lyle Brown, Justice.

Point Ferry, Inc., appellee herein, owned and operated a ferryboat which traversed the Black River between Independence and Jackson Counties, Arkansas. On March 27, 1967, the ferryboat foundered while transporting a truck and bulldozer owned by Don G. Parker, Inc., appellant. Point Ferry, Inc. filed suit in circuit court against Parker, Inc. and others to recover for damage to the ferryboat. Parker, Inc. counterclaimed for damage to its property caused by the sinking of the ferryboat and later cross complained against Andy Doyle, Dorse White, and William V. “Bud” Deaton, alleging that they were members of a partnership or joint venture which owned and operated the ferry ostensibly as Point Ferry, Inc., and that the corporate body was the alter ego of the Doyle-White-Deaton partnership. Appellant contended that the recognition of Point Ferry, Inc. as a separate entity would work an injustice upon appellant, that the corporate form should be disregarded, and that Doyle, White, and Deaton should be held liable for damage sustained by appellant.

When the contention of personal liability of the incorporators of Point Ferry emerged, the circuit court transferred the issue to chancery for determination, while retaining jurisdiction of the other issues. (The propriety of the transfer to chancery is not challenged on appeal.) The chancellor concluded that the appellant had failed to prove by a preponderance of the evidence that the corporate entity should be disregarded in order to hold the shareholders personally responsible. From that determination this appeal was taken.

Appellant contends (1) that the three stockholders did not treat the corporation as a separate entity in fact; (2) that to allow the shareholders immunity from corporate debts would work an inequity on appellant; and (S) that the ferry was operated in disregard of statutes requiring licensing and bonding of ferries.

For some eighteen years Ernest C. Dyke owned and operated the Point Ferry. In August 1963 Dyke sold the ferry and all equipment to Bud Deaton, Andy Doyle, and H. T. Hankins. The three purchasers immediately took all necessary legal steps to establish a corporation, Point Ferry, Inc., and transferred the ferrying equipment to the corporation. One hundred shares of stock were issued to each incorporator. Each of them had contributed $1,000 toward the down payment to Dyke and they took shares of stock from the corporation in consideration of those payments. (Hankins shortly sold his interest to Dorse White.) At the time of the purchase the ferry was not in operation. That fact compelled the incorporators, who owned land on both sides of the river, to go several additional miles to cross the ferry at Oil Trough. That was one of the reasons they decided to purchase and reactivate the ferry. They testified that they also expected to make a profit from the operation.

Point Ferry, Inc. leased the ferry to Morris Duni-van, who testified that he was licensed by the United States Coast Guard as an operator. The equipment was so leased on the day it sank, but the father of Morris Dunivan was operating it, apparently on a temporary basis and at the instigation of the son. The father was not a licensed operator.

Point Ferry never opened a bank account. The monthly lease rent was seldom, if ever, sufficient to make the deferred monthly payments owed Mr. Dyke on the purchase price and to pay the operating costs. Jerry Hinkle was a bookkeeper for a cooperative farm supply company, of which Andy Doyle was president. Hinkle attended to the financial affairs of the corporation. The lessee of the ferry would monthly deliver the net receipts to Hinkle and the latter would call on the individual shareholders for whatever amount was needed to meet the payment then due Dyke. Hinkle kept a record of the described transactions in “a little book,” but that book was not a part of the corporation records. Apparently Hinkle’s records were udlized by the attorney who annually filed the tax returns for the corporation.

If the shareholders or the board of directors of Point Ferry, Inc. ever held a formal meeting after the organizational meeting, it is not shown in the official corporation record book. However, the incorporators insisted that they frequently met at their attorney’s office where their records were kept. They also introduced proof to show that tax returns, reports to the Arkansas Assessment Coordination Department, and reports to the United States Coast Guard, were filed in the name of the corporation.

Appellant suggests (1) that the corporation was under-capitalized; (2) that appellees operated the ferry without complying with the license and bonding statutes; (3) that no public liability coverage was in force; and (4) that no notice of the corporate nature of the boat’s ownership was displayed on the premises, which notice would advise the users that they were dealing with an organization of limited liability. Appellant argues that when those factors are considered, along with the allegation that the incorporators treated their association as a partnership, it would be inequitable to permit appellees to obtain refuge behind the corporate facade.

The only activity, or nonactivity, pointed up by appellant and which could be classed as illegal, would be the operation of the ferry without complying with Ark. * Stat. Ann. §§ 76-1704 and 76-1715 (Repl. 1957). The first section requires that a license be obtained from the county court to operate a ferry. The latter section requires the posting of a bond as a prerequisite to operating a ferry. But the answer to that argument is that appellee corporation did not operate the ferry; Morris Dunivan took over the operation under a written lease and the undisputed testimony was to the effect that the stockholders of Point Ferry were in no manner connected with the activity. It is true that on the day the ferry sank it was being operated by Dunivan’s father, the son having selected the father to substitute for him; it is not contended that the stockholders had anything to do with this temporary arrangement between father and son.

Our case of Rounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S. W. 2d 1 (1949), sets out the rule we follow for disregarding the corporate veil. “It is only when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person that the corporate entities should be disregarded.” To the same effect see Banks v. Jones, 239 Ark. 396, 390 S. W. 2d 108 (1965); and Black & White, Inc. v. Love, 236 Ark. 529, 367 S. W. 2d 427 (1963). In Banks we said, “[T]he rule of piercing the fiction of a corporate entity should be applied with great caution.” We have carefully considered the citations by appellant of respected text authorities who sanction a much broader base for disregarding corporate entities, but we decline to deviate from our own rule which is well established.

The trial court found as a matter of fact that there had been no illegal abuse of the corporate structure to the detriment of appellant, and we are unable to say that his findings are against a preponderance of the evidence.

Affirmed.