author: Ed. F. McFaddin, Associate Justice.

text:
    McCumber v. Federated Mutual Implement & Hdw. Insurance Co.
    5-1787
    320 S. W. 2d 637
    Opinion delivered February 9, 1959.

      Bose, Meek, House, Barron & Nash, for appellant.

      Barber, Henry, Thurman & McCashill, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee, Federated Mutual Implement & Hardware Insurance Company (hereinafter sometimes referred to as “Federated” and sometimes as “appellee”), is engaged in the fire, casualty, and health insurance business, and does business through local agents in many, if not all, of the States. Appellant, M. C. McCumber, became a local agent for Federated in December, 1950. His territory covered the nine central Arkansas Counties of Pulaski, Faulkner, Conway, Van Burén, Lonoke, Saline, Hot Spring, Garland, and Perry. A new contract was signed in 1954, but with changes immaterial to this litigation. Then on January 1, 1957 Federated prepared a new and revised form of printed contract (the one here involved), which McCumber signed. It provided, “This contract may be terminated at any time. ’ ’ „

Prior to November, 1956 McCumber had been under the Southwest Division., with headquarters at Dallas, Texas; but in November, 1956 Federated “pulled out of” Texas, Louisiana, New Mexico, and Arizona; so Arkansas was transferred to the Southern Division Office at Atlanta; and thereafter the service rendered by the Division Office to the policyholders ixi Arkansas became progressively worse. It would take from eleven to 69 days to get a simple policy endorsement. McCumber complained repeatedly at this poor service; axid finally, on May 1, 1957, he resigned as local agent of Federated and commenced an insurance agency of his own.

On September 30, 1957 Federated brought this suit, against McCumber, which alleged the provisions of the contract and McCumber’s rival agency, and prayed, inter alia, that McCumber be enjoined for a period of two years from April 30, 1957 from engaging directly or indirectly as a competitor in the insurance business. Trial in the Chancery Court resulted in a decree which in effect enjoined McCumber from directly or indirectly engaging in the fire, casualty, accident, or health insurance business in Pulaski County (only) until after May 1, 1959. From that decree there is this appeal by McCumber because of the injunction; and there is a cross-appeal by Federated because the Trial Court did not award money damages to Federated. Our holding on the direct appeal makes it unnecessary to discuss the cross-appeal.

Able briefs have been filed reviewing the cases from the earliest times to the present on this matter of contracts in restraint of trade such as this one is denominated. A number of Arkansas cases are cited and discussed; some of them being: Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293; El Dorado Laundry Co. v. Ford, 174 Ark. 104, 294 S. W. 393; Robbins v. Plant, 174 Ark. 639, 297 S. W. 1027, 59 A. L. R. 1128; Witmer v. Ark. Dailies, Inc., 202 Ark. 470, 151 S. W. 2d 971; Marshall v. Irby, 203 Ark. 795, 158 S. W. 2d 693; American Excelsior Laundry Co. v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598; and Orkin Exterminating Co. of Arkansas v. Murrell, 212 Ark. 449, 206 S. W. 2d 185. There are also quoted Law Review articles and statements from various texts and annotations.

In 36 Am. Jur. 554 ei seg. (Monopolies, Combinations, etc.) § 79, in discussing the restraint of an employee after termination of service, the text reads:

“An employee may, in some situations, bind himself by an agreement that after the termination of the specified period of service he will not engage in business in competition with his present employer . . . The question whether the agreement will be enforced is to be determined in view of the circumstances of the case . . .
“The fact that the employment is of such a character as to inform the employee of business methods and trade secrets which, if brought to the knowledge of a competitor, would prejudice the interests of the employer, tends to give an element of reasonableness to a contract that the employee will not engage in a similar business for a limited time after the termination of his employment, and is always regarded as a strong reason for upholding the contract. Indeed, there is authority for the view that unless the employee has become possessed of information, the disclosure of which will be prejudicial to the employer, the employee cannot bind himself not to work for a competitor of the employer. Employments which involve acquisition by the employee of confidential knowledge and acquaintance with the employer’s clientele are regarded as peculiarly appropriate to restrictions against the use of such knowledge in competition with the employer. ’ ’

After a careful review of the legal and factual issues, we reach the conclusion that no injunction should have been issued under the state of facts here presented. This case involves neither the sale of a business, nor an employment having trade secrets: so cases of those situations are not applicable. We have here merely a restrictive covenant for two years after cessation from a business, without trade secrets of any kind. Federated’s local agents (as McCumber was) send to the Division Office all requests for policy endorsements (such as a mortgage clause or a change of address), and the endorsements are prepared at the Division Office and returned to the policyholder direct, or to the local agent for delivery to the policyholder. Likewise, claims filed with the local agent must be processed at the Division Office. The local agent solicits business; but in servicing the policyholder the local agent is little more than a messenger boy between the policyholder and the Division Office.

The case at bar is in all respects similar to that of American Excelsior Laundry v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598. Federated never had any local agent in Pulaski County until it employed McCumber in 1950. He did spend two weeks studying the business when he commenced working, but he learned no trade secrets (as was in the case of Orkin Exterminating Co. of Arkansas v. Murrell, 212 Ark. 449, 206 S. W. 2d 185). The telephone directory was McCumber’s prospect list; so when Federated’s method of handling its business from the Division Office became so poor that McCumber had to resign, he took no more information with him than did Derrisseaux in the laundry case previously mentioned. In Marshall v. Irby, 203 Ark. 795, 158 S. W. 2d 693, we held that the restraint was void when it was unreasonable. Such is the situation in the ease at bar.

Therefore, the decree of the Trial Court is reversed and the cause remanded with direction that the injunction be set aside and the complaint dismissed. All costs of all Courts are taxed against the appellee.

Smith, J., not participating.

       The 1957 contract contained the paragraph which is the basis of the present litigation:
      “Salesman agrees that he will not, within a period of two years following the date of the voluntary or involuntary termination of his employment with Employer, either directly or indirectly, by and for himself, or as the agent of another, or through others as his agent:
      “(a) Engage in, or in any way he connected with, the fire, casualty and accident and health insurance business in the territory assigned to him or worked by him under this or under any other previous Contracts of Employment, if any, with Employer;
      “(b) Divulge the names of Employer’s policyholders and accounts to any other person, firm or corporation ;
      “(c) In any way seek to induce, bring about, promote, facilitate or encourage the discontinuance of, or in any way solicit for and in behalf of himself or others, or in any way quote rates, accept, receive, write, bind, broker or transfer any renewal’ or replacement of any of the insurance business, policies, risks, or accounts, written, issued, covered, obtained (whether through the efforts of the Salesman or not) or carried by the Employer in any territory or territories assigned to the Salesman under this or under any other previous Contracts of Employment, if any, with Employer.”

       The complaint prayed for damages and also that McCumber be enjoined in the nine Counties of Pulaski, Faulkner, Conway, Van Burén, Lonoke, Saline, Hot Spring, Garland, and Perry, from:
      “(a) Engaging in, or in any way being connected with, the fire, casualty and accident and health insurance business;

        “(b) Divulging the names of plaintiff’s policyholders and accounts to any other person, firm or corporation;
      “(c) In any way seeking to induce, bring about, promote, facilitate or encourage the discontinuance of, or in any way soliciting for and in behalf of himself or others, or in any way quoting rates, accepting, receiving, writing, binding, brokering or transferring business, policies risks, or accounts, written, issued, covered, obtained (whether through the efforts of defendant or not) or carried by the plaintiff; . . .”

       McCumber’s contract covered nine Counties. He never worked in but one (Pulaski). The question is argued as to whether the Trial Court could reduce the territory from the nine Counties to the one (that is, Pulaski) and still issue the injunction: the point being made that the Trial Court had no right to reform the contract. We need not go into this point because we reach the conclusion that no injunction should have been issued.

       Some of the annotations may be found in 152 A.L.R. 415; 41 A.L.R. 2d 15; and 43 A.L.R. 2d 94.


source: Caselaw Access Project

license: Public Domain

text:
    Jones v. State.
    4922
    320 S. W. 2d 645
    Opinion delivered February 9, 1959.

      Sam L. Anderson and Earl J. Lane, for appellant.
    Bruce. Bennett, Atty. General and Ben J. Harrison, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

Two issues are presented on this appeal: one is the plea of former jeopardy; and the other is the appealability of the judgment refusing to discharge the accused.

Information was duly filed, charging the appellant, Hiram “Jimmie” Jones, Jr. with the crime of first degree murder for the homicide of George Stockton, Jr. The trial commenced in the Circuit Court on October 7, 1957; eleven jurors were selected that day; on October 8th. the jury was completed and sworn to try the case (§ 43-2109 Ark. Stats.); and two witnesses were examined. The first witness, Lt. Joe Campbell of the Hot Springs Police Force, testified that he and Joe Dodd, a fellow officer, received a call to go to the Flamingo Club; that when they arrived they found Mrs. James was there; that they found the body of George Stockton near the bar; that Officer Campbell instructed Officer Dodd to call an ambulance; that Campbell called the Coroner and Chief of Police; that the Chief of Police arrived with other officers; that Campbell found four bullet slugs at various places in the Club room; that he turned the bullet slugs over to an FBI Agent to send to Washington, D. C. to discover the calibre; and that after a brief inquiry of Mrs. James she was escorted to her apartment by Officer Dodd. Officer Joe Dodd of the Hot Springs Police force testified to substantially the same effect as did Lt. Joe Campbell; and the Court adjourned until the next morning.

On October 9, 1957 Mr. Hebert, the Prosecuting Attorney, announced to the Court that he had just learned that one of the jurors — Mrs. Ensminger — was a sister of the witness, Joe Campbell. For that reason the State moved for a mistrial; and here is the record:

“MR. HEBERT: . . . It is therefore moved by the State of Arkansas, in view of the development here, that the court declare a mistrial.
“THE COURT: Mr. Hebert, do you consider the possibility of double jeopardy?
“MR. LANE: The defendant resists the motion of the State and wishes to state for the record that the defendant is perfectly satisfied with the juror, Mrs. Joe Ensminger.
‘ ‘ MR. HEBERT: The State is also satisfied with the juror but the State feels that under the law that she would be an incompetent juror.
“THE COURT: In view of the position of the State in the matter the court will grant the motion and will declare a mistrial . . .
“MR. LANE: Let the record show that the defendant objects to the ruling of the court declaring a mistrial and asks that our exceptions be noted of record for the reason that, as the court has mentioned, the testimony of Mr. Campbell was not controverted, and he knew nothing about the actual fact of the alleged murder and did not testify with regard to that . . .
“MR. LANE: I move that the court turn the defendant loose on the grounds that he has been placed in jeopardy. The jury has been sworn in, testimony has been presented to the court and jury against him and he has been placed in jeopardy, and of course one of our oldest laws is that a man cannot twice be placed in jeopardy for the same crime . . .”

The Court declared a mistrial on October 9, 1957; but did not rule on the jeopardy plea at that time. Then, on April 1, 1958, the following occurred in Court:

“THE COURT: The matter coming on for hearing at this time is the case of the State of Arkansas v. Hiram Jimmie Jones, Jr., No. 10,550, in which case the defendant is charged with murder in the first degree. The defendant has filed a motion which has been set for hearing at this time. The motion being for a dismissal of the Information upon the ground of double jeopardy . . .
“STIPULATION: It is hereby agreed and stipulated by and between counsel for the State of Arkansas and counsel for the defendant that the defendant’s case has been set for trial on April 8, 1959, and that he is to be tried on the same Information charging him with the crime of murder in the first degree that he was tried on, on October 7, 1957, which resulted in the Court declaring a mistrial.”

The Court then overruled the appellant’s plea of former jeopardy and denied the motion to discharge the accused; and from that order there is this appeal, presenting the two questions first mentioned in this opinion.

I. The Plea Of Former Jeopardy. Article 2, Section 8 of the Arkansas Constitution says: “. . . and no person, for the same offense, shall be twice put in jeopardy of life or liberty . . .” In 15 Am. Jur. 38 “Criminal Law” § 359 et seq., the text reads:

“It is an established maxim of the common law, in the administration of criminal justice, constantly recognized by elementary writers and courts of judicature from a very early period down to the present time, ‘that a man shall not be brought into danger of his life or limb for one and the same offense more than once.’ It has been said that the test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense . . . The right not to be put in jeopardy a second time for the same cause is as important as the right of trial by jury and is guarded with as much care. Accordingly, there will be found in the Constitution of the United States and in the Constitutions of most of the states a provision that no person shall for the same offense be twice put in jeopardy, which, however, is only a recognition of the common-law rule.”

We have a number of cases on this very important constitutional right against double jeopardy. In Whitmore v. State, 43 Ark. 271, decided in the November term of 1884, Justice William W. Smith said:

“Seo. 8, in the Declaration of Rights, Constitution of 1874, authorizes the court in its discretion, to discharge a jury, in case of their inability to agree upon a verdict after a reasonable time for deliberation. And cases of overruling necessity for their discharge without verdict may sometimes arise, such as the illness or death of the presiding judge or of a juror. Atkins v. State, 16 Ark. 568. But the general rule is, that the discharge of a jury, after the machinery of the court is full organized for trial and judgment, without the consent of the defendant expressed or implied, operates as an acquittal . . .
“This court has, heretofore, drawn the line where jeopardy begins at the swearing in of the jury to try the issue. And this is in accordance with the overwhelming weight of authority and with the best considered cases. If, after that, the jury is discharged without an obvious necessity and without the defendant’s consent, express or implied, he cannot be again placed upon trial for the same offense, where life or liberty is involved.”

When the jury is finally sworn to try the case (§ 43-2109 Ark. Stats.), jeopardy has attached to the accused; and when, without the consent of the defendant, express or implied, the jury is discharged before the case is completed, then the constitutional right against double jeopardy may be invoked, except only in cases of “Overruling necessity Some cases illustrating what is meant by “overruling necessity” are these: Franklin v. State, 149 Ark. 546, 233 S. W. 688, wherein it was discovered that one of the jurors had previously formed and expressed an opinion of the guilt of the accused; Martin v. State, 161 Ark. 423, 256 S. W. 367, wherein one of the trial jurors announced that he had been a member of the Grand Jury that returned the indictment; Martin v. State, 163 Ark. 103, 259 S. W. 6, 33 A. L. R. 133, wherein one of the jurors announced that he had been a juror in the former trial of the ease; and Harris v. State, 177 Ark. 186, 6 S. W. 2d 34, wherein it was learned that one of the jurors was on the appearance bond of the defendant.

In each of the above discussed cases there was a real reason — i. e. “overruling necessity” — to discharge the jury; and we held that the rule against double jeopardy had not been violated in those cases. But, in the case at bar, there was no sound reason for discharging the jury, and there was certainly no “overruling necessity.” The relationship of a juror to a witness in the trial does not per se disqualify the juror. Arnold v. State, 150 Ark. 27, 233 S. W. 818. Officer Campbell’s testimony was 'practically the same as that of Officer Dodd’s; and Officer Campbell’s testimony did not directly relate to the facts of the homicide. Furthermore, the defendant was perfectly willing to have Mrs. Ensminger as a juror, and so informed the Court. We can see no good reason for declaring a mistrial after the mention of jeopardy, and after the accused had urged the Court to continue the trial. So, the effect of the trial of October 8th was to put the accused in jeopardy; and his motion of April 1, 1958, to be discharged because of former jeopardy, should have been granted.

It may be said that to allow the plea of double jeopardy is to allow a guilty man to escape: that argument has been made in many cases. The constitutional right against double jeopardy must be observed for the benefit of all the people, even though under that constitutional right it may happen that in some case some guilty person will escape punishment.

II. Appealability. The Attorney General has filed in this Court a motion to dismiss the appeal, saying:

“. . . the order of the Garland Circuit Court overruling appellant’s motion to dismiss, and upon which this appeal is based, is not such a final judgment as will support an appeal to this Court under the provisions of Ark. Stats. (1947) § 43-2706.”

We deny the motion to dismiss the appeal; and our authority for such ruling is Ware v. State, 159 Ark. 540, 252 S. W. 934, wherein the defendants claimed in the trial Court that they were entitled to be discharged because they had remained in jail without being brought to trial beyond the end of the second term after the indictment. The Trial Court denied the motion for discharge of the accused; and when the case reached this Court the Attorney General contended that the trial Court’s order was not final and appealable. We held to the contrary, saying, inter alia:

“Suffice it to say, they had the right to move the court having jurisdiction of these causes to discharge them from the indictments; and, if they are entitled to such discharge, the granting of their motion by the court would have given them their rights under the statute, whereas the overruling of tbeir motion denied them such rights. No order or judgment that any court could have thereafter made would have placed them in the position and given them the rights they were entitled to at the time the order herein appealed from was made by the trial court. That order concluded all the rights they then had under the statute, if any, against them, and this is so even though, after the order overruling their motion, they may have resorted to habeas corpus in the same, or some other court, or to this court for a writ of prohibition. The rights of immediate freedom and a discharge from all the consequences of the offense charged against them were certainly most sacred rights. They bear the brand of ‘Magna Charta’.”

That holding is applicable here. If the defendant’s claim against double jeopardy contains merit, then the Constitution requires that he should be freed; and the denial of his freedom is the point at issue. Furthermore, having concluded — as we have — that the appellant’s plea of former jeopardy was well founded, it would certainly be putting form above substance for us to hold that he could not prevail at this time on his motion to discharge; but that he would have to suffer a long and expensive trial before he could bring to this Court the issue of former jeopardy. Justice demands that an accused have his rights tested and determined speedily. As the Constitution says in Article 2, § 13: “Every person is entitled ... to obtain justice . . . promptly and without delay.”

It follows that the judgment of the Circuit Court is reversed and the cause is remanded, with directions to uphold the appellant’s plea of former jeopardy and to discharge him.

       Here is the record of matters leading up to the Court's ruling:
      “THE COURT: None of us knew anything about that. Is that true?
      “MRS. ENSMINGER: Yes, I probably was the most surprised person in the courtroom. I had no idea that he was in the case, that he knew anything about it because he never mentioned it to me.
      “MR. HEBERT: Mrs. Ensminger, of course the State of Arkansas, through the prosecuting attorney’s office, had no knowledge of the relationship existing between you and it is no — it comes as a complete surprise this morning that you are brother and sister. The State of Arkansas, on account of that relationship feels, that there is the probability that if we proceed with this trial and that it should develop at any time during the course of the trial that that relationship does exist between you, and which you have testified actually exists before the court, that it would be cause for the Supreme Court, if the case were appealed, to reverse the case and remand it back for another trial and we would just be wasting our time in proceeding further here. It is therefore moved by the State of Arkansas, in view of the development here, that the court declare a mistrial.”

       The constitutional provision also says that if the jury cannot agree upon a verdict, then the retrial is not double jeopardy.

       See 31 Am. Jur. 166 “Jury” § 192; and see annotation in 18 A.L.R. 375, and note in Ann. Cas. 1912B page 1060.

       For a recent case involving the question of jeopardy, see McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77.

       At the conclusion of a trial in Circuit Court, there was an erroneous ruling by the Court which resulted in the acquittal of the accused. The State appealed to this Court and it was held that the Trial Court’s ruling was erroneous. Nevertheless, it was held that the accused could not be again tried for the offense, since he had been before put in jeopardy. See State v. Dulaney, 87 Ark. 17, 112 S. W. 158.

      (*) In Coffin v. U. S., 156 U.S. 432, 39 L. Ed. 481, Justice White gave the history of the statement: “. . . it is better that five guilty persons should escape unpunished than one innocent person should die.”

       The sections quoted in the opinion were C. & M. Dig., §§ 3132, 3134, and 3135, which sections may now be found in § 43-1708 et seq. Ark. Stats.


author: George Rose Smith, J.

text:
    Parker v. King.
    5-1720
    320 S. W. 2d 653
    Opinion delivered February 9, 1959.

      Robert J. White, for appellant.

      Richard Mobley, for appellee.
   George Rose Smith, J.

The executrix of the will of A. O. Parrish sold the real property of the estate at a public sale. After the sale the appellants, Bill Parker and his wife, and the appellees, Leland and Kenneth King, received from the executrix conflicting deeds to the same property, and each side now claims to have been the rightful purchasers at the sale. The Kings brought this suit to cancel the executrix’s deed to the Parkers and were awarded that relief by the decree now presented for review.

According to the records of the probate court, there is no uncertainty about what occurred. Parrish’s will had directed that his lands be converted into cash. The executrix petitioned the court for authority to sell, among other lands, (a) certain mineral rights in three tracts in Johnson County, lying respectively in Sections 2, 14, and 28, and (b) certain Pope county land that the estate owned in fee. The court approved the petition, and the sale was held on November 26, 1954. On December 5 the executrix filed a report stating that the mineral rights in Sections 2 and 14 had been sold to the Kings for $100, that the mineral rights in Section 28 had been sold to the Parkers for $20, and that the Pope county land had been sold to the Kings for $800. Deeds to the purchasers were approved by the court. The Parkers had already paid the amount of their bid and received their deed promptly. Delivery of the Kings’ deed ivas withheld until August, 1955, when they paid their bids.

This case involves only the mineral rights in Section 2, which were reported as having been sold to the Kings and which were described in the deed they eventually received. Before that deed was delivered, however, the Parkers discovered a mistake in their own deed, which described mineral rights in Section 22, where the estate owned nothing, instead of in Section 28. In January, 1955, the executrix, without notice to the Kings and without any authorization by the probate court, executed a correction deed to the Parkers. This deed, which the chancellor canceled, purported to convey the mineral rights in Section 2, being the same mineral rights that the executrix had reported as having been sold to the Kings.

We think the weight of the evidence clearly supports the chancellor’s decree. In insisting that the executrix’s report of sale was incorrect the appellants rely largely upon the testimony of the attorney for the Parrish estate, Bob Bailey, who actually conducted the sale. It is Bailey’s recollection that he first offered all the minerals the decedent had owned in Johnson county and that these minerals were sold to Parker for $20. But Bailey stated repeatedly that he was not questioning the accuracy of the executrix’s report of sale, which he himself prepared. The other witnesses who were present at the sale are in disagreement as to whether the executrix’s report correctly reflects what happened.

The chancellor was right in accepting the report as true. It was prepared within ten days after the sale, while the testimony that contradicts it is based only upon memory after a lapse of over three years. What is more, if all the minerals in Johnson county were first struck off to Parker, there is no explanation whatever for the Kings’ admitted bid of $100. It is not denied that they made a separate bid of $800 for the Pope county land, which was a fee interest rather than a mineral interest. It is certain that the Kings bid $100 for something, and unless it was for Johnson county minerals there is no way to account for the bid.

The appellants’ other arguments may be disposed of quickly. Even though they received the correction deed before the Kings obtained their deed, the Parkers were not innocent purchasers. Not only was Parker present at the sale when the Kings bought the minerals in question; the correction deed recites that the sale was conducted pursuant to the order of the probate court. This recital put the Parkers on notice of the probate proceedings, if indeed those proceedings were not in their chain of title, and the slightest inquiry would have led to the report showing that the minerals had been sold to the appellees. See Green v. Maddox, 97 Ark. 397, 134 S. W. 931; Scott v. Carnes, 183 Ark. 650, 37 S. W. 2d 876. Nor is there merit in the contention that the Kings’ bid was rendered conditional by the fact that they delayed making payment until they satisfied themselves about the title. As we pointed out in the Green case, supra, a binding contract for the purchase of the property came into existence when the court approved the sale. Even though the executrix might have resold the minerals upon the Kings’ failure to complete the purchase within the time allowed by the order of sale, Bryant v. Hill, 178 Ark. 130, 10 S. W. 2d 37, she elected instead to carry out the sale by accepting the purchase money and delivering the deed.

Affirmed.


text:
    Hardcastle et al. v. Davis.
    5-1767
    320 S. W. 2d 930
    Opinion delivered February 9, 1959.
    [Rehearing denied March 16, 1959.]

      W. E. Phipps, for appellant.

      Bobbie Jean Farabee, for appellee.
   George Rose Smith, J.

This is a suit by the appellants, Ed Hardcastle and Mike Akel, to require the appellee, Amanda Beatrice Davis, to remove fences that she has erected in what are asserted to he public alleys in Block 22, Choctaw Addition to North Little Bock. The city intervened in behalf of the plaintiffs. The chancellor found that the long-continued use of the alleys has been merely permissive and accordingly dismissed the complaint and intervention for want of equity.

Block 22 is bounded on the west by Buckeye Street and on the north by East Broadway. Mrs. Davis’s residential lot fronts on Buckeye Street, at about the middle of the block, and is 100 feet in depth. Its rear boundary abuts the Hardcastle lot, which fronts on East Broadway and is nearly 150 feet in depth. Thus the Davis lot and the Hardcastle lot form an “L” around the property at the northwest corner of the block. Akel’s duplex apartment is two doors east of the Hardcastle property and need not be described in detail.

One of the alleys in question runs along the southern boundary of the Davis lot and continues across the back of the Hardcastle property, where it comes to a dead end. The other alley lies along the western boundary of Hardcastle’s lot and extends from East Broadway back to the alley first mentioned. When Mrs. Davis bought her lot in 1957 she immediately placed fences along her eastern and southern boundaries, which lie approximately along the center lines of the alleys.

In our opinion the evidence preponderates against the chancellor’s finding that the public use of these alleys or driveways has been permissive. The Davis property was formerly owned by a man named Woods. Hardcastle testified that when Woods inclosed the lot many years ago he deliberately set his fences back six feet from his eastern and southern boundaries to provide for the alleys, “with the understanding that it would be used for the public.” This testimony is strongly corroborated by the undisputed fact that the fences and hedges remained in that original position for some twenty-five or thirty years, until Mrs. Davis’s purchase in 1957.

For twenty-eight years before the trial Hardcastle sold minnows from a vat in his backyard. His customers constantly used the alleys in driving in and out. Over a period of at least ten years the city kept the alleys in repair, putting chat on them from time to time. The city’s garbage trucks have used these ways since 1939 to make collections within the block. The city police have tagged cars for parking there. There are utility poles and a sewer line in the alley that runs east and west. Thus it is shown with little or no dispute that the alleys were used as such, that they had the outward appearance of alleys, and that along the two sides of the Davis lot they were bounded by fences set back from the property line.

The cases relied upon by the appellee, such as Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986, and LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461, are not in point, for they dealt with land that was unimproved or uninclosed. In the LeCroy case, for example, we observed: “There is no evidence that the owners of adjoining buildings set their buildings back or made any allowance for this alleged alley.” Here the situation is just the opposite.

The case at hand is controlled by our holding in cases like McGill v. Miller, 172 Ark. 390, 288 S. W. 932, where we said: “The line of the alley was marked by the fences and a barn along the south line, which constituted an invitation to the public to use it as an alley. It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation.” Accord: Kirby v. City of Harrison, 202 Ark. 1, 148 S. W. 2d 666; Magnolia Petroleum Co. v. Langford, 213 Ark. 746, 212 S. W. 2d 22.

The appellants sought to recover damages resulting from the obstruction of the alleys, but their proof is insufficient to establish their claims. Hardcastle says that his business has declined, but since his customers could still enter his lot by using driveways from Bast Broadway on both sides of his house we doubt if the loss of business was attributable to the erection of the fences by Mrs. Davis. Akel testified that he lost a month’s rent owing to the departure of a tenant, but again we are not persuaded that a causal connection existed.

Reversed.

McF addin, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Buchanan v. Thomas.
    5-1768
    320 S. W. 2d 650
    Opinion delivered February 9, 1959.

      Coleman, Gantt S Ramsay, E. Harley Cox, Jr., for appellant.

      McKay, Anderson $ Crumpler, for appellee.
   Paul Ward, Associate Justice.

This appeal questions the execution of an alleged contract and a modification thereof.

W. H. Buchanan, Appellant, operates the Acoustics and Specialties Company which sells and installs acoustical tile and related products. Appellee, Elmer Thomas, is a general contractor who, in this case, contracted to build a new church for the Immanuel Baptist Church of Pine Bluff. The church’s contract with Appellee called for the installation of certain acoustical material. Before making a contract bid for the church overall construction job, Appellee asked Appellant to submit to him a price for furnishing and installing the acoustical material. Appellant wired Appellee that his charge would be $3,723.00, but when the wire was received by Appellee it read, apparently through error of the telegraph company, $2,723.00. On the day Appellee received the wire he submitted his overall bid (based on Appellant’s wire), together with a performance bond, to the church, and in due course he was awarded the construction contract. The next day Appellee received a letter from Appellant explaining the error in the figures and stating the correct acoustical contract or bid price to be $3,723.00. Having already submitted his church bid on the basis of the figure of $2,723.00, Appellee informed Appellant he would expect him to stand by his figure of $2,723.00. Appellant denies that any contract was entered into for the lower figure. In addition, Appellant says that, even so, it was changed by a later oral agreement. In brief, that is what this litigation is about.

Although the parties came to no definite understanding as to liability, Appellant installed the equipment; Appellee paid Appellant all except $190.00 of the lesser amount and offered his check (marked in full payment) for the $190.00 which was rejected by Appellant.

In his complaint, Appellant alleged that he contracted to do the work for $3,723.00 (instead of $2,-723.00) and that Appellee had paid only $2,533.00 thereof, leaving a balance of $1,190.00 due him. Appellee answered that the contract was for $2,723.00 and that he had paid $2,533.00, leaving a balance due of $190.00, which he tendered in court.

The trial court found that the contract between Appellant and Appellee was based on a consideration of $2,723.00. The court apparently allowed the pleadings to be amended to conform with the testimony relative to an oral amendment to the contract, but held that no such change was sustained by the evidence. The court then dismissed Appellant’s complaint and ordered the $190.00 turned over to him.

It is our conclusion that the decree of the trial court must be affirmed for the reasons hereafter set forth.

Regarding the original contract, we think the weight of the evidence supports the trial court’s finding that Appellant agreed to do the job for $2,723.00, even though the testimony is not abundantly clear to that effect.

In reply to Appellee’s request for the submission of a bid on the acoustical work on the church, Appellant sent a telegram to Appellee which (as received by Appellee) agreed to the price of $2,723.00. This figure was mentioned in two places in the telegram. It shows the date to be June 30, 1955, 10:30 a. m. That same day Appellee received the telegram and, before learning a mistake in the figure had been made by the telegraph company, submitted his bid, together with a performance bond, to the church. Also that same day, Appellant sent to Appellee by mail a formal confirmation on the basis of $3,723.00. This letter was received by Appellee on the following day.

Immediately following the above there were telephone conversations between the parties but no definite agreement was reached and the testimony is somewhat conflicting about what was said. Appellee testified that after he received the letter and learned of the suspected error, he called Appellant on the phone and, among other things, stated:

“But, I said, in the event my bid is accepted, or I am awarded the contract, I shall expect you to stand behind your telegram of $2,723.00, and he said, ‘We will stand behind the telegram.’ ”

Appellant does not deny the telephone conversation with Appellee, and he admits that Appellee may have said something to the effect that if he got the contract, he (Appellee) was going to hold him (Appellant) to the wire, or rather the. $2,723.00 figure. Therefore, if the Chancellor believed Appellee’s version of the conversation, he was justified in holding there was a contract for $2,723.00. However, the Chancellor’s decision is sustained by certain other facts and circumstances.

Appellant’s brief contains numerous exhibits of letters and telegrams. It is interesting to note the substance of their content in chronological order:

(a) At 10:00 a. m. on June 30, 1955, Appellee received a telegram from Appellant naming the figure $2,723.00;

(b) On the same day Appellant wrote Appellee giving a figure of $3,723.00, received the next day by Appellee ;

(c) On July 25, 1955, Appellant wired Appellee a suggestion that he use a different material at a price of $3,723.00;

(d) On the following day Appellee wrote Appellant that if his bid to build the church was accepted he would expect Appellant “to install the acoustical tile at the quoted price of $2,723.00, as per telegram received prior to bid opening,” and,

(e) On September 2, 1955, Appellee wrote Appellant he had signed a contract for construction of the church and accepted Appellee’s proposal in the amount of $2,723.00 for installing the acoustical equipment, and that it would be about 8 months before he would be ready for it.

Following the above, and without any further word from Appellant, Appellee notified Appellant in April 1956, that he was ready for the acoustical material, and Appellant forthwith shipped it to the job site in Pine Bluff. The price of the material was $2,533.00 and Appellee sent Appellant a check for that amount on May 28, 1956.

Upon Appellant’s delay in proceeding with the installation, Appellee went to see Appellant at Little Rock. Appellee stated he found Appellant hesitant but did not refuse to send a crew to do the job. It was at this time that Appellant proposed that he and Appellee split the cost of the job over and above $2,723.00. Appellant claims they reached such agreement. Appellee says they did not, but says they had such conversation and that he agreed upon a condition that was never fulfilled. At any rate, Appellant sent his men to Pine Bluff and completed the job.

Since, as heretofore indicated, we sustain the trial court’s holding that Appellant agreed to do the job for $2,723.00, we likewise must hold with the trial court that there was no valid oral agreement to change the original contract.

In the first place, Appellant’s later actions indicated that he was not relying on the oral contract. He not only filed a lien on the basis of $3,723.00, but he also filed this suit on that basis. Moreover, there was no consideration for the alleged oral agreement. If, as we hold, Appellee was entitled to have the work done for $2,-723.00, we can think of no benefit he would receive for agreeing to pay more. A case very much in point to this effect is Feldman v. Fox, 112 Ark. 223, 164 S. W. 766. Also see: Desoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243; Dominion Textile Company v. Beck, 188 Ark. 1090, 69 S. W. 2d 862, and; Johnson v. Aylor, 129 Ark. 82, 195 S. W. 4.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. MoF addin, Associate Justice

text:
    Spears v. Miller.
    5-1774
    320 S. W. 2d 942
    Opinion delivered February 9, 1959.
    [Rehearing denied March 16, 1959.]

      Bernard Whetstone & Joe B. Hurley, for appellant.

      W. L. Jean, Fred Peppard, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Spears, operates a feed store. He filed this suit against appellee, Miller, in which he contends that Miller is indebted to him in the sum of $1,239.68 for feed products. No itemized statement of the account was attached to the complaint, and Miller filed a motion asking that the court require Spears to furnish a copy of the account. Spears responded, stating that it was impossible for him to furnish an itemized statement. At a hearing on the motion, it developed that it actually is impossible for Spears to furnish such a statement. His method of doing business was that on making a sale he would write out a ticket itemizing the merchandise sold and the price thereof. There would be an original and one duplicate. The duplicate would be furnished to the purchaser at the time of the sale; the original would be retained by the seller until such time as the purchaser made a payment on the account, at which time all the original tickets would be given to the purchaser and a new ticket made showing only the balance of the account in the event it was not paid in full. A copy of this new ticket showing the balance would be given to the purchaser at the time of the part payment. This method was used in all of the sales to Miller. Hence, both the original ticket and the duplicate showing the items sold had previously been given to the purchaser, and Spears has no other record of the items sold. It is therefore absolutely impossible to furnish a copy of the account. The trial court held, however, that the plaintiff, suing on an account, was required by law to furnish an itemized statement of the account, and dismissed the complaint by reason of the failure of the plaintiff to furnish such a statement. Spears has appealed.

We have no statute requiring that a plaintiff suing on an account be required to furnish an itemized statement of the account. The Civil Code adopted in 1869 (§ 138) did require a copy of the account, but the Code was amended in 1871 (§ 138) and the provision requiring a copy of the account was eliminated. But Kirby’s Digest, § 6128, published in 1904, contained § 138 of the Code of Civil Procedure adopted in 1869, requiring that a copy of the account must be filed with the pleading.

The decision in Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027, is based on the Code of 1869 as set out in Kirby’s Digest. The fact that the Code had been amended in 1871 is not noticed. Later issues of the Digest of the Statutes (Crawford & Moses’, 1921, § 1222; Pope’s, 1937, § 1446; and Bobbs-Merrill, 1947, § 27-1143) all carry § 138, Code of 1869, as amended by the General Assembly of 1871, which makes no requirement that a copy of an account be attached to the pleading.

But, regardless of the fact that we have no statute requiring that a copy of an account be filed with the pleading, the trial court has authority to order that the complaint be made more definite and certain by furnishing an itemized statement of the account. But where, as shown here, through no fault of his, and while acting in good faith, it is utterly impossible for the plaintiff to attach to the pleading an itemized statement of the account, then he should not be ordered to furnish such a statement.

In Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486, we said: “The plaintiffs failed to itemize the statement; and we have held that itemization is required when requested, unless good reason be shown for inability to itemize. ’ ’

Reversed.

Johnson, J., not participating.

Ed. F. MoF addin, concurring.

Ed. F. MoF addin, Associate Justice

(concurring). When Spears filed this action he alleged that Miller owed him $1,239.68 with interest. Spears detailed the course of dealings between the parties and alleged: “Plaintiff, therefore, alleges that the matter thus became an account stated between the parties. ’ ’ Miller’s answer said: ‘ ‘ The defendant specifically denies that any stated account ever existed between the plaintiff and the defendant at any time. ’ ’ Thus, the issue was joined as to whether there was an account stated.

Bouvier’s Law Dictionary defines an account stated: ‘ ‘ An agreed balance of accounts. An account which has been examined and accepted by the parties.” See also Gulf Ref. Co. v. Williams, 208 Ark. 362, 186 S. W. 2d 790. If there was an account stated, then an itemized, verified account showing debits and credits became entirely unnecessary. Plaintiff said there was an account stated and he should have been allowed to introduce evidence to sustain his allegations; and that is the basis of my concurrence.

It is true, as stated in the majority opinion, that our statute does not require an itemized statement of account to be attached to the complaint. This was discussed in Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 486. But it is my understanding of the law that when the action is on an open account and the defendant files a motion for an itemized statement, then the plaintiff should be required to furnish such a statement, just as the plaintiff would be required to comply with any other valid motion to make more definite and certain.

The defendant filed a motion for an itemized account in this case, and the plaintiff offered two answers: (a) that it was absolutely impossible to furnish the itemized account; and (b) that this was an action on an account stated and no itemized account was required. I think the second point was the complete answer; and so I would reverse the cause since it was an action on an account stated.


author: Jim Johnson, Associate Justice.

text:
    Davis v. Fowler et al.
    5-1785
    320 S. W. 2d 938
    Opinion delivered February 9, 1959.
    [Rehearing denied March 16, 1959.]

      Jeff Duty, for appellant.

      Virgil D. Willis, for appellee.
   Jim Johnson, Associate Justice.

Appellees, "W. D. Baker, Guy Bennett and Dennis Pruitt were candidates in the 1958 Democratic Primary held in Newton County. They signed Corrupt Practice Pledge required by the election laws before their names were placed on the ballot in the Primary Election, certifying that they were familiar with the provisions of Act 308 of the Acts of 1913, as amended by Act 109 of 1951, and that they would in good faith comply with the Act.

These men were nominated in the Democratic Primary of August 12th as follows: W. D. Baker for State Eepresentative; Guy Bennett for Sheriff and Collector; and Dennis Pruitt for County Treasurer.

Thereafter, appellees failed to file with the County Clerk a statement regarding their expenses in the primary election as required by the Corrupt Practice Act. (Section 3-1308, Ark. Stats. 1947).

More than 30 days expired after the primary and the Statute was not complied with by the appellees.

Thereafter the County Election Commission of Newton County, composed of appellees Troy Fowler, Walter Moten, and Frank Cheatham, prepared the ballots for the November 1958 General Election and made known their intention of placing the names of the said nominees on the General Election Ballot.

As soon as the intention of the Commission became known the appellant, Otis Davis, filed suit as a taxpayer in the Chancery Court seeking a Writ of Mandamus ordering and directing the Commission to omit the names of the above nominees from the General Election Ballot, reciting that the election expenses would be charged to the county and the taxpayers thereof.

This suit was filed on October 6, 1958, and the case set for hearing on October 14, 1958. On the day before the hearing of this action, October 13, 1958, the said nominees filed with the County Clerk a statement that they had no expenses to report. On the 11th day of October 1958, the County Democratic Central Committee met in Special Session and nominated the said nominees for the respective posts.

The court rendered its decree, finding that the nominees had failed to file the required statement within the 30 days required by law. The court further found that such failure was by inadvertence. The Court then found that the Central Committee had made the nomination at the meeting referred to above. The court then found that the filing of the required statement after the expiration of 30 days was a substantial compliance with the Statute.

This appeal followed. For reversal, three points are urged. Under our view, as hereinafter set out, a discussion of these points is unnecessary.

Section 3-1311, Ark. Stats. The penalties for violation of the Corrupt Practice Act are as follows:

“The violation of any provision of this act (§ 3-1301 — 3-1312) shall be punished by a fine not exceeding one thousand dollars ($1,000.00), or by imprisonment in the penitentiary not exceeding one (1) year, or by both fine and imprisonment; and any person convicted under the provisions of this act 3-1301 — 3-1312) shall thereafter be ineligible to hold any office in this State.”

It is obvious from a careful reading of this Statute that the ineligibility provision applies only after a person has been convicted. There is no contention here that the appellees had been convicted for any violation of § 3-1308. It is against public policy to restrict the free use of the ballot or place restraints on free elections, and we will not presume to do so unless specifically directed by statute. It has long been the rule that penal statutes and statutes which impose burdens and liabilities unknown at common law must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be, talcen as intended that is not clearly expressed. Fiser v. Clayton, State Treasurer, and Clayton, State Treasurer v. McAmis, 221 Ark. 528, 254 S. W. 2d 315; State v. International Harvester Co., 79 Ark. 517, 96 S. W. 119.

Following this rule, it must be concluded that the failure of appellees to strictly comply with the provisions of this Act does not ipso facto render them ineligible to hold office.

Judgment of the lower court is, accordingly, affirmed.

       “Filing statement of expenses in primary. — Candidates in any primary election for State or district offices shall file with the Secretary of State, and candidates for county and township offices shall file with the county clerk and candidates for city or town offices shall file with the city clerk, or town recorder, a true, complete, itemized and verified statement of all campaign expenses paid or incurred by him or by others authorized by him except his actual personal traveling and hotel expenses. Said statement of expenses, as provided herein, shall be filed within thirty (30) days after the General Primary Election.”


author: Carleton Harris, Chief Justice.

text:
    Washington Fire & Marine Insurance Co. v. Hodge.
    5-1764
    320 S. W. 2d 926
    Opinion delivered February 16, 1959.
    [Rehearing denied March 16,1959]

      J. F. Sloan, III, James A. Robb, for appellant.

      D. Leonard Lingo, Harry L. Ponder, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to the construction of a limitation of use endorsement, attached to, and forming a part of a motor vehicle collision policy of insurance issued by Washington Fire & Marine Insurance Company, appellant herein, to appellee, Bunk Hodge, on August 28,1956. On said date, Hodge, who resided at Walnut Eidge, Arkansas, and still so resides, while engaged in highway construction work, purchased a 1956 2-ton Dodge truck from the Led-better Motor Company upon a monthly payment sales contract, it being understood that insurance on the truck would be issued as a part of the transaction. A few days later, Hodge received from appellant company the policy of insurance sued upon. Item 1 lists the name of “Bunk Hodge” and underneath the name, “Walnut Eidge, Ark. ’ ’ Item 4, entitled ‘ Garage; ’ ’ provides ‘ ‘ the automobile will be principally garaged in the above town and city, county and state, unless otherwise stated herein;”. The policy was issued to Hodge at a reduced premium because of the following endorsement:

“AUTOMOBILE
(Physical Damage)
LIMITATION OF USE ENDOESEMENT— (COMMEECIAL AUTOMOBILE)
(Eastern, Western and Southern Territories)
Attached to and forming part of Policy Number BF 94297 issued to Bunk Hodge by Washington Fire & Marine Insurance Company located (city and state) ST. LOUIS, MISSOUEI.
Date of Endorsement: 8-28-56

In consideration of the premium at which the Policy designated above is issued, it is warranted by the Insured that no regular or frequent trips of commercial vehicles described in such policy are or will be made during the policy period to any location beyond a 50 mile radius from the limits of the city or town of principal garaging of such vehicles.

All other terms and conditions of such Policy remain unchanged.

BY AT: JONESBORO, ARK.

AGENT

JOHN E. COOK AUTHORIZED AGENT”

On August 3, 1957, while the insured truck was being driven by James Capales, on a highway construction job at Marianna, Arkansas, it collided with another truck. Appellant refused to pay the resulting loss because the truck had, for several weeks prior to the date of the collision, been daily used on construction work at sites more than 50 miles beyond Walnut Ridge. After the institution of suit by Hodge against appellant company for recovery, the court, sitting as a jury, awarded appellee judgment for $1,800 (the amount of the damage), the 12% statutory penalty, and attorneys’ fee of $300, making a total amount of $2,316. From such judgment comes this appeal.

The evidence reflects that Hodge would locate a construction job, make arrangements for the hire of his trucks (which were equipped with dump beds and used for hauling dirt or stone), and arrange for a permanent place for the drivers to stay, along with garaging the trucks. The trucks would be moved to the selected base of operation, and used on the particular construction job until the project was completed. They would then be moved to another location with similar facilities, and the operation repeated. The operating base selected might be at any point in the state, but the haul distance from each point would not he in excess of the 50 mile limit imposed in the endorsement. In accordance with this general plan of operation, appellee placed the truck to use at Diggers, Arkansas, a distance of about 30 miles from Walnut Ridge, and the truck remained on the job for three or four weeks. The truck was then returned to Walnut Ridge and placed on another job in September. The vehicle was then put up for the winter, and placed on a job at Elaine, Arkansas, in July, 1957, a distance of considerably over 100 miles from Walnut Eidge. The next job was the Marianna job, from which this litigation arises. According to the evidence, Marianna is approximately 90 miles from Walnut Eidge, and was the “home base” for the particular job engaged in at that time, i. e., the truck was being garaged in that city each night. The proof reflects that the collision took place within two or three weeks after the “Marianna job” started, and that the longest haul made was about 8 miles.

Hodge testified that he had bought two trucks from Ledbetter in 1952 or 1953, and that one of them was wrecked on a job at Texarkana. He stated that he had held an identical policy of insurance (issued in 1953), with the identical endorsement, on the truck wrecked at Texarkana, and with the same company, Washington Fire & Marine, appellant herein. Hodge testified that appellant company paid the claim. From his testimony:

“The only trouble I had with them, they thought I was running it over 50 miles. See, they thought I was garaging it here and going over in Texas.
Q. Where were you using the truck as it was at the time it was wrecked?
A. In Texas and Arkansas.
Q. Where was it garaged at that time?
A. At Texarkana. * * *
Q. Was it on one particular job?
A. Yes, we run the same road every day.
Q. Where did it have the wreck?
A. I think it was close to the land, the land where he was hauling material from over in Texas, I think it was 24 miles then, come through Texarkana bringing it on 67.
Q. On the other side of Texarkana?
A. Yes. What they thought, was we was hauling over 50 miles from the garage, and we never was hauling over 24 miles from the garage. * * * they just paid off and never said a word. ’ ’

Appellant objected to this evidence as irrelevant and immaterial, and contended that it had no bearing on the contract in question. The court overruled the objection.

We are primarily concerned with whether the language of the policy, together with the endorsement, makes clear that the collision was covered (or vice versa), —or to the contrary, is such language ambiguous?

Appellant relies on items 1 and 4, together with the endorsement, as precluding recovery by appellee, contending that under the terms of the contract, the truck was not covered with collision insurance at any point located more than 50 miles from Walnut Ridge. Admittedly, the trips from Marianna would come under the definition of “regular and frequent.” It is argued that this use of the vehicle was precisely the risk precluded by the language of the endorsement. Appellant’s counsel state: “We are thus persuaded because one of the underlying principles of rate fixing is expressly predicated on the premise that degrees of risk vary between geographical divisions or locations.”, and cite several cases from other jurisdictions to support this contention. In other words, the company’s position is that the state of Arkansas is divided into geographical areas, as set out in the Automobile Casualty Manual, and appellant states the manual reflects that Walnut Ridge, Arkansas, is geographically situated in the division possessing the most economical rate of any area in the state; i. e., if appellee had listed Marianna as the address in the policy instead of Walnut Ridge, he would have paid a higher premium. Appellant is in error. It is true that the state is divided geographically, and there is a variation of rates in the several areas, but this classification applies only to liability insurance. For collision, insurance, the rate is the same over the entire state. Accordingly, the premium paid by Hodge was the same as the premium that would have been required in any other part of Arkansas, and appellant’s principal argument therefore fails.

All policies denote the address of the person purchasing the insurance. Appellee was located at Walnut Eidge at the time the coverage was obtained, and of course, Hodge could not have listed any place of address other than Walnut Eidge, as he could not have known where various jobs would be obtained in the future. There can he no dispute but that Hodge complied with the terms of the endorsement, unless such endorsement clearly refers back to item 4 of the policy — which item, in turn, refers to the address under the policyholder’s name. It will he remembered that item 4 provides that ‘ the automobile will be principally garaged in the above town and city, county and state, unless otherwise stated herein.” If it was the intent of the company that the endorsement refer hack to this item, it certainly could have been clearly stated; for instance, instead of reading “from the limits of the city or town of principal garaging,” the endorsement could easily have read “from the limits of Walnut Eidge,” or by adding “as provided in item 4.” Appellee asserts that the endorsement effectuates the intent of the subsequent provision in item 4, “unless otherwise stated herein,” and this contention that such endorsement comes within the quoted phrase, is sufficiently logical to raise a question, or create a doubt, as to the true purpose, or intent, of the language in the contract. Actually, since the premium for collision insurance on commercial vehicles is the same over the entire state, it would appear that the reduction of premium under the endorsement, is based upon the use of the truck, rather than the locality.

But if appellee was not clearly covered under the language of the contract, then certainly the provisions are ambiguous. In such event, appellant cannot prevail, for we have long been committed to the principle that where the provisions of a policy are susceptible of two equally reasonable constructions, one favorable to the insurer, and the other to the insured, the latter construction will be adopted. In Fireman’s Insurance Company of Newark, New Jersey v. Motley, 222 Ark. 968, 264 S. W. 2d 418, a fire insurance policy covered equipment “* * * in the one story, approved roof, frame building occupied as cleaning and pressing shop, situated 711 North Cedar Street, Pine Bluff, Arkansas.” It developed that the equipment was actually located in two buildings on the lot, one being the building described in the policy, and the other a “metal clad” building. The latter was destroyed by fire, while the building referred to in the policy was not damaged. Suit was instituted, and full recovery had. In affirming the judgment, this Court said:

“Under well-settled principles, where the provisions of a policy are susceptible of two equally reasonable constructions, one favorable to the insurer and the other to the insured, the latter will be adopted. This is because the language is chosen by the insurer with the aid of experts employed for the purpose of writing the policy, and the insured has no voice in the matter. Therefore, where either of the two constructions may be adopted, it is fair that that which will sustain the claim and cover the loss will be chosen, * * * .”

The holding in numerous other cases is to the same effect. Accordingly, even if appellee was not due to recover under the plain provisions of the policy, he was certainly entitled to recover under the above quoted rule.

The litigation is thus disposed of, but it might be well to point out that appellee’s case is even stronger than simply depending upon the language of the contract, for we consider the evidence of the prior settlement to be admissible. Tbe 1953 policy was issued by tbe same company, and shows Hodge’s address as Walnut Ridge; tbe provisions of item 4 are identical (except that in tbe earlier policy, this provision is listed as item 3), and tbe endorsement bears tbe identical provisions. Aside from tbe question of estoppel (likewise argued in tbe briefs) involving Hodge’s right to rely upon tbe previous payment under an identical policy, as denoting coverage under tbe instant policy, we consider tbe evidence of tbe company’s payment of tbe earlier claim to be pertinent for yet another reason, viz., it is a strong circumstance to indicate bow tbe appellant itself, construed tbe endorsement.

Appellee has moved for an additional attorneys’ fee, and we are of tbe opinion that such motion should be granted. It is ordered that appellant pay to appellee’s attorneys an additional fee of $200.

Affirmed.

       This job was in Jonesboro, and lasted two or three weeks.

       The cases cited by appellant, heretofore mentioned, deal with liability insurance. Kindred v. Pacific Automobile Insurance Co., 75 Pac. 2d 69, Indiana Rolling Mill Baling Corporation v. National Automobile & Casualty Insurance Co., 240 F. 2d 74.


author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Meers v. Tommy’s Men’s Store, Inc.
    5-1727
    320 S. W. 2d 770
    Opinion delivered February 16, 1959.

      Digby & Tanner, for appellant.

      Dean R. Morley, A. F. House, for appellee.
   J. Seaborn Holt, Associate Justice.

May 22, 1956 Tommy’s Men’s Store, Inc., (referred to as “Tommy” and “Karam”) leased from the then owner, W. A. Stern, the propei’ty located at 419 Main Street, City of Little Rock, Arkansas, described as the North 41 feet of Lot 5, Block 5, original City of Little Rock, on which is located a five story building. The lease was to take effect July 1, 1957 for a term of five years, together with an option to renew for an additional five years, along with an option to purchase. Tommy took possession on the date stipulated, July 1, 1957, proceeded to make a number of improvements, erect signs, and prepare the building for occupancy. He occupied the first floor and sub-let the second floor to the Roseanne Shop. The three top floors remained empty. In January 1957 Stern sold the property to Appellant Meers, subject to Tommy’s lease. Appellant Meers brought the present suit to require Tommy to eliminate the option clause and relinquish his leasehold interest in the property.

The trial court found that there had been no violation of the lease sufficient to justify cancellation, dismissed appellant’s complaint, but ordered that appellee deposit $4,000 in escrow to restore the premises to its original condition upon termination of the lease. This escrow agreement was duly executed and filed. This appeal followed. For reversal appellant relies on the following points:

(1) “Appellee breached the lease by making alterations without lessor’s written consent.
(2) “Appellee breached the lease by non-use of the premises.
(3) “Appellee breached the lease by erection of signs without consent of the lessor.”

—1—

On this first point appellant says: “Paragraph 7 of the lease agreement is as follows: ‘Lessee will not make any alterations, additions or improvements without the Lessor’s prior written consent.’ The appellee did make extensive alterations, additions and improvements without the written consent of the lessor, and his actions certainly constitute a breach of the agreement.” We do not agree. It appears undisputed that before making the improvements Tommy wrote a letter to Stern (his lessor) explaining his “layout” and plans for improvements to the building, and in his reply Stern used this language: “. . . Received your letters with your layout and plans and as I discussed with you on the phone, they look wonderful and of course nothing would please me more than to see you work same out.” This, we think, was in effect an approval by Stern of the proposed improvements. Tommy testified, in effect, that the improvements he made were identical to those he outlined to Stern. Meers, (appellant) the new owner, could not arbitrarily refuse permission to Tommy to make alterations and improvements. Tommy testified, as to the alterations and improvements, that he removed a stairway that almost halved the merchandising area on the first floor (which he occupied). He installed modern toilet equipment, carpeting, tiling, an air conditioning unit, and other improvements as would appeal to customers. . . I went in and that hack wall, the Fire Chief suggested I take that out because it was a fire trap and we took the wall out and also we took down the steps that were right in the middle of the building . . .” He changed the words “Rube and Scott” which appeared in the sign already on the building to “Tommy’s”.

Mr. Connor, a realtor who negotiated the lease, testified as to the improved quality of the building after the repairs and improvements, it further appears that Meers stood silently by and made no complaint while these improvements were being made and we think his complaint now comes too late.

The principle of law is announced in 3 Thompson, Real Property 1472 (Perm. Ed. 1940) : “It is well settled that where the breach of a condition consists of a single act, the forfeiture may be waived by any act which may be construed as an affirmance of the contract. The waiver need not be by affirmative acts, but any seeming acquiescence, laches, or estoppel will accomplish the same end ... A lessor having, by his words and conduct, caused his lessees to believe that he would not enforce a forfeiture provided for in the lease is equitably estopped from seeking to avail himself of the forfeiture, although the consent was not given in writing as required by the lease . . . Where the agency of the landlord is involved in any way in the act which is to work a forfeiture, he ought so to act as to make it clearly appear that he intends to insist upon the forfeiture . . .” And in Section 1467, “Under certain circumstances, a court of equity may, without violating any settled rules, relieve against forfeiture. Forfeitures which are incurred through inadvertence or mistake, without any bad faith on the part of the lessee, will be relieved against on a showing that no actual damage has been sustained by the lessor . . . Equity relieves against a forfeiture where no real fault has been committed, or the breach was induced or waived by conduct, as well as when by accident or mistake there has been a breach of some collateral covenant, such as to repair or insure, and where the lessor may he placed in the same position as if the breach had not occurred by an award of damages or otherwise.”

In Scrinopskie v. Meidert, 213 Ark. 336, 210 S. W. 2d 281, we said: “. . . Every effort should be made to interpret contracts favorably to their enforcement and to prevent forfeitures . . . Forfeitures are not favored in the law, and in order to be enforced they must be plainly and unambiguously provided in the contract. It is the duty of the courts, when contracts are fairly susceptible of more than one construction, to adopt such as will not work a forfeiture of the acquired rights of either party . . . But where forfeitures are provided for by the express terms of a contract, it has been well settled that they are not favored in equity. It is well recognized that the right of forfeiture is a harsh remedy and liable to produce great hardships. For this reason it has been uniformly held that before a forfeiture will be declared the law will require that a strict compliance with every important prerequisite must be shown, even in such contracts where the forfeiture is provided for by express terms.” It is undisputed that Tommy has paid the rent stipulated regularly on the first and second floors.

—2—

Appellant’s contention that “appellee breached the lease by non-use of the premises” we think is untenable. As we interpret the terms of the lease, Tommy had a right to occupy the upper three floors but the lease did not obligate him to do so. Paragraph 5 of the lease provides: “The Lessee may sub-let the second, third, fourth and fifth floors to clothing merchandisers . . .” Had the lessor intended the word “may” to mean “must” it would have been a simple matter to have so slated. It appears undisputed that the three top floors had not been occupied but had been vacant for 10 to 12 years. As to the rental Tommy was required to pay, the lease provides: “The Lessee covenants and agrees to pay to the Lessor, as annual rent for said premises, a sum equal to five per cent (5%) of the gross sales up to $750,000.00 and three per cent (3%) of the gross sales over and above $750,000.00 with a guaranteed minimum annual rental of $14,400.00 to be paid monthly in advance in twelve (12) equal installments; the above percentage rates to be paid so long as there is produced from the second floor of the building an annual volume of gross sales not less than $100,000.00. In the event that the volume of gross sales from the second floor, in any lease year, amounts to less than $100,000.00, then the Lessee covenants and agrees to pay to the Lessor as rent for said premises for that lease year, a sum equal to six per cent (6%) of all the gross sales made from the demised premises.”

Thus it appears clear that if the gross sales from the second floor are less than $100,000.00 then Tommy is penalized by being required to pay six per cent (6%) of such gross sales. This appears to be the only penalty mentioned in the lease. Appellant also contends that Tommy was obligated to occupy all five floors under paragraph 16 which provides: “Lessee will not permit the leased premises to remain vacant or unused for the purposes for which leased for more than thirty consecutive days without the written consent of the Lessor.” We do not agree. Had it been the intention of the parties that Tommy was obligated to occupy all five floors personally or through sub-tenants on penalty of forfeiture of the lease if he failed to do so, it would have been very easy to have said so in plain terms, or by inserting the words “or any part thereof” after the word ‘ ‘ premises. ’ ’ Further, we think there has been no breach of this provision for the reason that the building, all of which is in the lease, is not vacant or unused. Even should the lease appear ambiguous in any of its provisions, the rule is well settled that a written contract will be construed against the one who prepared it. Here it clearly appears that the lease in question was prepared by Stern’s attorney, the late Raymond Roddy. In Bracy Bros. Hardware Co. v. Herman-McCain Construction Co., 163 Ark. 133, 259 S. W. 384, we said: “The contract, which is the foundation of appellant’s action, was written by the appellant, and therefore, under a familiar rule of law, if any of its terms are ambiguous so that it becomes necessary to construe it, parol evidence may be admitted to throw light upon the meaning of the contract. Where there is doubt as to the meaning of the contract, such doubt must be resolved against the party who prepared the contract.”

—3—

As to appellant’s final contention that “appellee breached the lease by erecting signs without consent of the lessor,” but little need be said. It appears undisputed that Tommy, as indicated, only changed the wording in the sign already on the building from “Rube and Scott” to “Tommy’s.” Appellant makes no serious contention that this change in the sign standing alone would be sufficient to cause forfeiture of the lease. He says that this violation together with other breaches was sufficient to constitute a forfeiture. We think this contention is wholly without merit.

Accordingly, the decree is affirmed.

McFaddin and Robinson, JJ., concur; Smith, J., not participating.

Ed. F. McFaddin, Associate Justice

(concurring). My concurrence is because of some matters not mentioned in the majority opinion. Meers claimed a breach of the lease contract on either one of three grounds:

1. Alterations without lessor’s consent;
2. Non-use of upper floors of the building;
3. Erection of a sign.

I agree with the majority opinion on both the second and third grounds: there was no requirement in the lease for full use of the upper floors; and the matter of the sign was rather trivial. But as to the first ground claimed by Meers — i.e. alteration without lessor’s written consent— I have an entirely different view from that expressed in the majority opinion. I think the alterations were material; and I cannot find any consent by Meers or Stearns that would cover the extensive alterations made. So I think Meers made a good case on the matter of alterations ; but he waived his case on that point by his subsequent conduct.

The record discloses that in the course of the trial the defendant (Tommy’s Men’s Store, Inc.) denied that there had been any unauthorized alterations in the building, but offered to deposit in escrow a sum sufficient to guarantee restoration of the building to its original condition at the end of the lease period. The decree from which this appeal comes was entered on April 22, 1958, and contained the following language:

“Therefore, it is ordered ánd decreed that: . . . 2. The complaint of the plaintiff as to the defendant Tommy’s Men’s Store, Inc., be, and the same is hereby, dismissed.

3. The defendant Tommy’s Men’s Store, Inc., shall deposit the sum of $4,000 in cash or United States Bonds with Worthen Bank & Trust Company as Escrow Agent to be held and disbursed upon the following terms and conditions, to-wit:

(a) The Escrow Agent’s fee shall be paid by Tommy’s Men’s Store, Inc.

(b) If United States bonds are deposited, the income therefrom shall be paid to the defendant Tommy’s Men’s Store, Inc.

(c) At the termination of the lease now in effect, Tommy’s Men’s Store, Inc., shall, at the election of the plaintiff, remove the additions made to the leased premises by Tommy’s Men’s Store, Inc., and restore the same to the condition which existed as of the date the lease was executed. Upon failure on the part of Tommy’s Men’s Store, Inc., so to remove and so to restore, the plaintiff may remove the additions made to the leased premises and restore the same to the condition which existed as of the date the lease was executed, and the cost thereof shall be paid to plaintiff by the Escrow Agent. If the parties cannot agree as to the proper amount to be paid, the question shall be settled by supplemental order of this court. If the plaintiff does not elect to have the additions removed and the premises restored to the condition which existed as of the date the lease became effective or of the defendant Tommy’s Men’s Store, Inc., removes such additions and restores the premises as hereinabove provided, the Escrow Agent shall pay the funds held in escrow to Tommy’s Men’s Store, Inc.

(d) This Court retains jurisdiction to settle all issues arising in connection with the disposition of the principal amount of the funds or United States Bonds placed in escrow, and the Escrow Agent shall not be required to disburse any part thereof to either the plaintiff or Tommy’s Men’s Store, Inc., until ordered to do so by this Court.'”

In accordance with the above copied decree, an Escrow Agreement was signed by the parties and the Escrow Agent on May 12,1958; and the agreement reads:

“THIS AGREEMENT, Made and entered into by and between PAUL MEERS, hereinafter referred to as “Meers,” TOMMY’S MEN’S STORE, INC., hereinafter referred to as “Tommy’s,” and WORTHEN BANK & TRUST COMPANY, hereinafter referred to as “Escrow Agent,” WITNESSETH:
1. On May 22,1957, Meers leased to Tommy’s for a period of five years the North 41 feet of Lot 5, Block 5, Original City of Little Rock. The lease provides that subject to certain conditions it may be extended for an additional period of five years. Recently there has been litigation in the Pulaski Chancery Court involving the said lease, and attached hereto and made a part hereof is a copy of the Decree entered in said court on the............day of April, 1958.
2. Tommy’s has deposited with the Escrow Agent the following described United States of America “E” bonds:
(here follows number and description of bonds of the face amount at maturity of $5,325.00)
3. Escrow Agent acknowledges receipt of said bonds and agrees to hold them in accordance with the terms of this agreement. All interest which may accrue on said bonds shall belong to and be paid by the Escrow Agent to Tommy’s. Neither the bonds nor the proceeds thereof shall be delivered or paid by the Escrow Agent to Meers or Tommy’s except upon presentation to the Escrow Agent of a certified copy of an order of the Pulaski Chancery Court authorizing such delivery or payment.
4. The fee of the Escrow Agent shall be paid by Tommy’s. Dated this 12th day of May, 1958. ’ ’

I maintain that when Mr. Meers signed the said agreement of May 12,1958, he accepted benefits under the decree entirety inconsistent with his claim for cancellation of the lease because of unauthorized alterations in the building. He cannot now insist on unauthorized alterations in the building, because he accepted the benefit of the Escrow Agreement. Por some cases and texts on this matter of accepting benefits inconsistent with the appeal, see Jones v. Rogers, 222 Ark. 523, 261 S. W. 2d 649, and cases there cited. See also annotation in 169 A. L. R. 985 entitled: “Right of appeal from judgment or decree as affected by acceptance of benefit thereunder.”

Because of the acceptance of the benefits inconsistent with the decree, I think Mr. Meers lost the right to make any claim of unauthorized alterations in the building; and that is the basis of my concurrence.

       If there had been no material alterations, then there need not have been a deposit; so sueh offer was almost tantamount to admitting that there had been alterations without the lessor’s prior consent.


author: Ed. F. MgFaddin, Associate Justice.

text:
    Marsh v. Marsh.
    5-1679
    320 S. W. 2d 754
    Opinion delivered February 16, 1959.

      Kaneaster Hodges, for appellant.

      John D. Eldridge, Jr., George P. Eldridge, for appellee.
   Ed. F. MgFaddin, Associate Justice.

The appellant is R. M. Marsh, Jr.; and the appellee is his mother, Mrs. Ruth Marsh, the widow of R. M. Marsh. This is an appeal by appellant from a judgment of the Probate Court which approved the Commissioner’s report and assigned dower and homestead to the widow.

Mr. R. M. Marsh, a resident of Woodruff County, died intestate in 1947, survived by his widow, Mrs. Ruth Marsh, and his three children (all adults), being a daughter, Mrs. Kathleen M. Barber, and two sons, Andrew L. Marsh and R. M. Marsh, Jr. (the appellant). Mr. Marsh owned, operated and lived on a farm of about 1,200 acres in Woodruff County; and after his death the widow and three children continued to farm the land by mutual consent. A partnership arrangement was made between the mother and the two sons, and the daughter received rents.

In May 1954 Mrs. Ruth Marsh filed her petition in the Woodruff Probate Court, praying for the assignment of her homestead and dower in the said lands; and the heirs executed an entry of appearance which requested “the court to lay off the dower and homestead of Mrs. Ruth Marsh as soon as convenient.”

The Probate Court (then presided over by the Honorable A. L. Hutchins, Chancellor) made an order appointing Curtis A. Houston, Paul Bronte, and Vernon Huff, “to allot dower and homestead out of the lands owned by the late R. M. Marsh unto his widow, Mrs. Ruth Marsh.” The said Commissioners met with Mrs. Ruth Marsh and the three Marsh children, and made an allotment and assignment of dower and homestead, which at that time was agreeable to all the heirs as well as the widow. The report of the Commissioners was duly filed. The Honorable Ford Smith became the Probate Judge on January 1, 1955; and because of former connections with the parties he made an exchange of circuits with the Honorable Elmo Taylor to hear and dispose of the dower and homestead matter. The divorced wife of R. M. Marsh, Jr. appeared in the Probate Court and obtained time to file her exceptions to the Commissioners’ report. This was in 1955. She never filed any exceptions or objections of any kind, but her request for time caused the original delay in hearing the Commissioners’ report.

In 1957 Mrs. Ruth Marsh moved for the approval of the Commissioners’ report allotting dower and homestead; and, thereupon, her son, R. M. Marsh, Jr. filed his response to the Commissioners’ report. The cause was heard on evidence taken ore tenus before the Probate Court, and the Commissioners’ report was approved, and homestead and dower allotted to Mrs. Ruth Marsh, as reported. This appeal ensued. Other facts will be stated in the topics herein discussed. The appellant lists ten points in his brief on appeal to this Court; but we group and discuss the points in suitable topic headings.

I. Abatement. As heretofore recited, the petition of Mrs. Marsh was filed in the Probate Court in May, 1954; the Commissioners filed their report allotting dower and homestead to Mrs. Marsh in the specific lands on December 10, 1954; and the matter was not heard in the Probate Court until November 5, 1957. In the interim between the Commissioners’ report and the hearing in the Probate Court, R. M. Marsh, Jr. had filed a suit (on February 25, 1957) in the Woodruff Chancery Court against his brother, his sister, and his mother, which suit alleged, inter alia:

“The parties hereto cannot agree upon an equitable division of said lands, and it will be to the best interests of all the parties hereto that the said lands be divided among them. The lands are not susceptible of division in kind without prejudice to the parties so it will be to the best interests of all parties that the lands be sold, save and except for the homestead estate of Mrs. Buth Marsh, which plaintiff concedes cannot be sold, and that the proceeds of such sale be divided according to the interests of the parties hereto. The defendant, Mrs. Buth Marsh, is sixty-seven years of age. ’ ’

Because of the said Chancery suit, the appellant says that the Probate proceedings involving the assignment of dower and homestead should abate. We do not agree with this contention. It is true that the court of equity has concurrent jurisdiction with the probate court in the assignment of dower in both real estate and personalty (Johnson v. Johnson, 92 Ark. 292, 122 S. W. 656; Kendall v. Crenshaw, 116 Ark. 427, 173 S. W. 393; Beal-Burrow D. G. Co. v. Kessinger, 132 Ark. 132, 200 S. W. 1002); but in Shields v. Shields, 183 Ark. 44, 34 S. W. 2d 1068, we held that when the Probate Court had already assumed jurisdiction to assign dower, then the Chancery Court should not thereafter assume jurisdiction: in other words, the Court first acquiring jurisdiction had the right to adjudicate the matter. In the present case, the Probate Court’s jurisdiction was invoked in 1954; Commissioners were appointed, and they viewed the property and made their report. Prom the facts heretofore detailed it is clear that this Probate jurisdiction continued. It was not until 1957 that B. M. Marsh, Jr. invoked the Chancery jurisdiction in his suit against his mother and brother and sister, as previously mentioned; so the Chancery suit cannot be urged by him as a sufficient cause for abating the Probate jurisdiction to which he had previously agreed.

II. Laches, Estoppel, And Abandonment. Appellant argues that the delay in hearing the Probate cause has resulted in an abandonment by the widow of her claim in the Probate Court; that she is barred by laches; and that she is estopped to ask for the assignment of dower in particular lands because she agreed with her two sons that all of the lands could be operated as a joint farming venture. Appellant also urges that the widow joined with the sons in mortgaging the lands and thereby estopped herself from making claims of dower. We find no merit in any of these contentions.

There is nothing whatsoever in the record to show that Mrs. Marsh ever abandoned the Probate proceedings. Her delay certainly did not amount to laches so far as the appellant is concerned because he was not prejudiced: he agreed with his mother and brother for the operation of the farm. Neither is there any merit to the matter of estoppel insofar as appellant is concerned: because his mother all the time had the right of dower and homestead, and he knew it and agreed to it. Some lienholder or mortgagee of the lands might possibly claim some matter of estoppel (see Phillips v. Phillips, 203 Ark. 481, 158 S. W. 2d 20); but certainly appellant has offered no evidence of any kind to support any estoppel as far as he is concerned.

III. The Correctness Of The Prohate Court Order. Finally, appellant says that the Probate Court decided the case erroneously in approving the report of the Commissioners; and the great bulk of the testimony was taken on this issue. The Commissioners who viewed the lands and allotted the dower and homestead testified that they had known the lands for a long time; that when they met at the Marsh homestead they had aerial maps as well as a plat; and that they knew what was growing on the particular tracts. Mr. Houston (one of the Commissioners) testified: that both of the Marsh boys (the appellant and his brother, Andrew) were present and pointed out the rice land and the cotton land when the maps were spread out on a large table in the living room; and that the heirs helped in the selection of the cotton and rice land. This question was asked concerning the appellant: “Did Mr. R. M. Marsh at that time raise any objection to the manner or the actual selection of the dower? A. No, sir. I think we talked to everyone present and asked if it was satisfactory. Q. Was it? A. It was.”

Mr. Houston also testified that it was an agreed division and that even though the Commissioners were exercising their own judgment, the assignment of dower and homestead as made was agreeable to all the parties. Mr. Paul Bronte, another Commissioner, testified to the same effect; and when asked by the Court as to whether the allotment of dower and homestead made in 1955 was still fair in 1957 at the time of the hearing, the witness said that he still considered the Commissioners’ report to be a fair and equitable division. Certainly the widow is entitled to have dower and homestead allotted and admeasured in kind in the lands if such can be done without great prejudice to the parties (§ 62-717 Ark. Stats.). The great preponderance of the evidence supports the judgment of the Probate Court.

Affirmed.

       § 62-601 Ark. Stats, relates to homestead; and § 62-704 Ark. Stats, relates to dower.

       The full instrument reads as follows:
      “IN THE PROBATE COURT OF WOODRUFF COUNTY, ARKANSAS IN THE MATTER OF THE PETITION FOR THE ALLOTMENT OF DOWER AND HOMESTEAD OF MRS. RUTH MARSH, WIDOW OF R. M. MARSH, DECEASED.

        ENTRY OF APPEARANCE

      “We, the undersigned, R. M. Marsh, Mrs. Kathleen Marsh Barber, and Andrew Lee Marsh, and Nova Marsh and Dorothy V. Marsh, wives of R. M. Marsh and Andrew Lee Marsh, respectively, after being duly sworn, do hereby enter our appearance to the proceedings filed by Mrs. Ruth Marsh for the purpose of causing her homestead and dower interest in the lands owned by the late R. M. Marsh at the time of his death to be set aside and laid off to her.
      “The undersigned, being all of the interested parties in said land, consent and agree that this cause may be tried at any time without the necessity of service of process on us and without the necessity of the statutory waiting period. The undersigned request the court to lay off the dower and homestead of Mrs. Ruth Marsh as soon as convenient.
      /s/ Kathleen M. Barber /s/ Dorothy V. Marsh /s/ Andrew L. Marsh /s/ R. M. Marsh /s/Nova Marsh.”

       The Chancery suit sought accounting from Andrew Marsh and Mrs. Ruth Marsh, and also sought other relief. Cross complaints and interventions of lienholders have expanded the issues in the Chancery suit, but it is unnecessary to dwell on these.


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

text:
    Rumph v. Rowe, Admr.
    5-1783
    320 S. W. 2d 749
    Opinion delivered February 16, 1959.

      Langston $ Walicer, Wayne Foster, for appellant.

      Robinson, Sullivan & Rostech, for appellee.
   George Rose Smith, J.

Peter Dumas died January 2, 1958, at the age of eighty-five. On the preceding December 6 Dumas had conveyed his home in Little Rock to the appellant William Rumph, with a life estate being reserved to the grantor, By this suit the appellee, as administrator of Dumas’s estate, seeks to have the deed canceled for fraud, undue influence, and lack of mental capacity. The chancellor set aside the deed and gave Rumph a lien for $255 for services rendered to the decedent. Both parties have appealed.

The testimony about Dumas’s mental condition is in serious conflict. For the plaintiff two disinterested lay witnesses who had known Dumas for many years were of the opinion that he did not have the ability to comprehend a transaction such as the one in question. They say that Dumas talked at random, was forgetful, and at times did not recognize them. The only medical testimony is that of Dr. Ish, who knew Dumas for some ten years before his death. Among other professional visits Dr. Ish treated Dumas for influenza about December 4, 1957, and also attended him during his last illness later in the month. Dr. Ish judged his patient to have been senile, did not believe him fully capable of entering into a business transaction, and pretty well summarized his view by saying, “I believe he would know in a vague sense what he was signing.”

On the other hand it appears that Dumas, a bricklayer, was able to work at least occasionally until November, 1957. The notary who came to Dumas’s house to take the acknowledgment had not previously known Dumas, but he questioned the old man for twenty minutes or more and decided that he knew what he was doing. Another witness who accompanied the notary was of the same opinion. It should be added that the grantee, Rumph, arranged for the notary to come and was present when the deed was executed.

If the conveyance had been made for a consideration approaching the fair value of the property we would hesitate long before setting aside the sale. In this case, however, the consideration was greatly inadequate. The property is worth about $2,500. Rumph may have spent a few dollars in buying groceries for Dumas before the deed was made, but at most the total sum was trivial. According to Dumas’s niece, one of the real parties in interest, Rumph told her that he was to pay Dumas $15 a month for life, beginning January 15, 1958. This obligation was not mentioned in the deed and, in view of the grantor’s extreme age and ill health, was not likely to involve more than a small fraction of the property’s value.

On its facts the case is closely similar to Campbell v. Lux, 146 Ark. 397, 225 S. W. 653, where we canceled a deed by which an aged man conveyed property worth $3,000 for a recited consideration of $100 in cash and $20 monthly payments for the rest of his life. The only significant difference between the two cases is that in the earlier one there appeared to be nothing in the relation between the parties to justify a belief that the grantor intended a gratuity to the grantee. Here it does appear that Rumph may have taken care of Dumas after the execution of the deed, but there is no suggestion that Rumph assumed this duty as part of the consideration. Before the deed was signed Rumph, who is retired, visited Dumas two or three times a week and sometimes took him to church, but the evidence indicates that other neighbors and fellow church members of the old man were equally kind in bringing him food and looking after him when he was ill. On the whole we are unable to say that the chancellor, who had the great advantage of seeing the witnesses, was wrong in canceling the deed.

By cross appeal it is contended that the award of $255 for Rumph’s advances and services is too liberal. Rumph testified, though not undisputedly, that he attended Dumas night and day from about December 7 until the sick man was taken to the hospital four days before his death. Dumas’s niece, a witness adverse to Rumph, voluntarily stated on direct examination that Rumph had told her that his books showed advances of about $255. The administrator and another witness in his behalf quoted Rumph as having said that he had spent from $200 to $250 for groceries, utility bills, etc. Rumph himself was inhibited by the dead man’s statute from proving his expenditures. The administrator voluntarily introduced the testimony that we have mentioned, in an effort to show that the consideration was decidedly inadequate, and we do not think he is entitled to complain of the chancellor’s decision to accept it as true.

Affirmed.

Robinson, J., not participating.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. In my opinion, the evidence did not establish that Peter Dumas was mentally incompetent at the time of the execution of the deed; in fact, in my view, a preponderance of the testimony showed Dumas to be competent. I accordingly respectfully dissent.