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

text:
    D. C. MOORE, Jr., Adm’r v. Larry HANSEN, et ux
    5-5393
    465 S. W. 2d 684
    Opinion delivered April 5, 1971
    [Rehearing denied May 10, 1971.]

      Douglas Bradley, for appellant.

      W. B. Howard if Jack Segars, for appellees.
   Conley Byrd, Justice.

Cleta Moore, wife of D. C. Moore, deceased, and appellee Betty Hansen, wife of appellee Larry Hansen, jointly purchased some beauty shop equipment for the purpose of operating a beauty shop. D. C. Moore arranged for a loan for the two wives at the Citizens Bank of Jonesboro. Larry Hansen and D. C. Moore signed the note as accommodation makers for their wives. D. C. Moore requested a credit life insurance policy in the amount of the indebtedness. The premium therefor was included in the note on which the wives were primarily liable. After two installments were made, D. C. Moore was killed in an auto collision. After some litigation, the credit life insurance company paid the bank the policy amount, which after payment of counsel fees left a balance due on the note of $359.49. Cleta,Moore paid this amount to the bank, received the note and assigned it to appellant. Appellant brought this action against Larry Hansen and Betty Hansen to recover one half of the balance due on ..the note before the insurance proceeds were applied. The trial court, upon stipulated facts, denied appellant any right of subrogation to the $5,132.48 paid by the insurance proceeds but did award him a judgment for one half of the $359.49 paid by Mrs. Cleta Moore. The latter portion of the judgment has been - satisfied.

For reversal appellant contends that D. C. Moore was an accommodation maker and that appellant as Moore’s administrator is entitled to recover from the Hansens one half of the proceeds of the credit life insurance policy that were paid on the debt. A further contention is that he is entitled to recover under Ark. Stat. Ann. § 66-3204(2) (Repl. 1966). We find both contentions without merit.

Appellant cannot recover as an accommodation maker unless he is subrogated to the rights of the creditor. The cases dealing with the issue make a distinction where the credit life insurance premiums are paid by the decedent and where the premiums are paid by another. See Miller v. Potter, 210 N. C. 268, 186 S. E. 350 (1936) and Hatley v. Johnson, 265 N. C. 73, 143 S. E. 2d 260 (1965). We think the distinction is valid. Neither appellant nor his decedent has paid anything and before he can become subrogated to the rights of the bank as a creditor he must have paid the debt, Haley v. Brewer, 220 Ark. 637, 249 S. W. 2d 128 (1952). It was stipulated that “D. C. Moore, Sr. and Larry Hansen were accommodation endorsers on the said note, receiving no direct benefits therefrom.”

When it is considered that the credit life insurance policy here involved stood only as additional security for the loan, it becomes even more logical and practical that appellant should not be subrogated to the rights of the creditor—i. e., the debt in effect was paid by security that the principal obligors had already paid for.

It is true that Ark. Stat. Ann. § 66-3204(2) permits a recovery by a decedent’s estate of proceeds of life insurance paid to an unauthorized party in violation of Ark. Stat. Ann. § 66-3204. Here, however, there was no violation of the statute which provides:

“(1) Any individual of competent legal capacity may procure or effect an insurance contract upon his own life or body for the benefit of any person. But no person shall procure or cause to be procured any insurance contract upon the life or body of another individual unless the benefits under such contract are payable to the individual insured or his personal representatives, or to a person having, at the time when such contract was made, an insurable interest in the individual insured.
* * *
“(3) ‘Insurable interest’ with reference to personal insurance includes only interests as follows: . . .
“(b) In the case of other persons, a lawful and substantial economic interest in having the life, health, or bodily safety of the individual insured continue, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement or injury of the individual insured.”

Obviously the bank as creditor had an insurable interest. Furthermore the decedent himself asked for the insurance.

Appellees contend that the appeal should be dismissed because appellant accepted the benefits of the judgment entered. We disagree but because of the holding above the issue becomes moot.

Affirmed.

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

John A. Fogleman, Justice,

dissenting. I cannot agree with the majority that the decision of this case hinges upon the question of the identity of the payor of premiums for the credit life insurance on D. C. Moore’s life. Certainly the Citizens Bank of Jonesboro had an insurable interest in the life of Mr. Moore since he was a surety of the principal obligors and in the event of their default he would have been iiable, but this is not to say that, since the bank had an insurable interest, the principal obligors also had an insurable interest. If the principals on the note, Mrs. D. C. Moore and Mrs. Larry Hansen, had taken out the insurance on Mr. Moore’s life it would have been void because it would have been considered a wager-contract. McRae v. Warmack, 98 Ark. 52, 13.5 S. W. 807, 33 L. R. A. (n.s.) 949; Langford v. National Life ir Accident Insurance Company, 116 Ark. 527, 173 S. W. 414, 17A Ann. Cas. 1081; United Assurance Association v. Frederick, 130 Ark. 12, 195 S. W. 691. It is true that a person has an insurable interest in his own life and can insure his life ánd assign the proceeds to one not having an insurable interest where there is no prior agreement between the insured and the beneficiary that the beneficiary will pay the premiums. Langford v. National Life & Accident Insurance Company, supra; United Assurance Association v. Frederick, supra. In the present case there was a prior agreement that the principals, Mrs. Moore and Mrs. Hansen, would pay the premium since it was included in the note they signed at the bank.

Of course, Larry Hansen’s liability for payments was as surety and co-obligor with Moore. He never paid a cent on the debt or the premiums, yet he is unjustly enriched. If the credit life insurance on D. C. Moore insured the debt to the bank, subrogation would appear to be questionable, but Ark. Stat. Ann. § 66-3804 (1) (Repl. 1966) states:

“Credit life insurance” means insurance on the life of a debtor pursuant to or in connection with a specific loan or other credit transaction.

While there are no Arkansas cases involving credit life insurance on a surety’s life there is a Georgia case in point, Betts v. Brown, 219 Ga. 782, 136 S. E. 2d 365 (1965). The Georgia statute defined credit life insurance in the identical language used in the Arkansas statute. Ga. 1, 1960, pp. 289, 743; Code Ann. § 56-3302 (1). The decision held that this provision makes it clear that it is the life of the debtor, not the debt itself, which is insured. The Betts case held that the comakers of a note to the bank held the position of principal and surety, and when the credit life insurance proceeds from the death of the surety paid the debt the widow of the surety was subrogated to the rights of the bank. In the case of Kincaid v. Alderson, 209 Tenn. 597, 354 S. W. 2d 775 (Tenn. 1962), the court found a relationship of surety and principal between an original mortgagor and an assuming mortgagor. The mortgaged property was a mobile home, and the note was for five years. The mortgage included premiums for a life insurance policy on the original mortgagor’s life, and the policy was issued to the mortgagee. After the mortgage was assumed the original mortgagor died, and the insurance company paid the balance due. In discussing subrogation of the rights to the surety the decision stated:

When thus a surety by his death through a valid life insurance policy on his life has discharged the obligation, this does not discharge the obligation of the Kincaids who are primarily liable. It would be exactly the same situation as if a surety on an obligation for any reason decided to pay off the obligation. This would not release the principal debtor from his obligation, but it would then be transferred to the surety who had discharged the obligation to release himself as surety. Thus by the death of Alderson and his life insurance paying this debt it would merely transfer the debt of the principal obligator to the surety rather than to the creditor. When the debt is thus paid the surety subrogated to the rights of the creditor.

Also in the case relied upon by the majority, Hatley v. Johnson, 265 N. C. 73, 143 S. E. 2d 260 (1965), it refers to both of the above cases of Kincaid and Betts with apparent approval and allowed the wife of a surety to recover when the credit life insurance proceeds were used to pay a mortgagee after the surety died. The decision also pointed out that in 1953 the statute G. S. § 58-195.2 was enacted which states:

Credit life insurance is declared to be insurance upon the life of a debtor who may be indebted to any person, firm, or corporation extending credit to said debtor.

The decision also pointed out that Miller v. Potter, 210 N. C. 268, 186 S. E. 350 (1936), decided by a divided court, denied subrogation to a surety because the mortgagee purchased the insurance on the life of the original mortgagor for the debt. Since the passing of the statute cited above it would appear that it is no longer possible in North Carolina to insure the debt. The effect of the decision is that if such payment were allowed to cancel the primary debtor’s obligation, then he would in effect be made a beneficiary although he has no insurable interest in the life of the insured.

The majority decision has made Mrs. Larry Hansen and Larry Hansen beneficiaries under the policy, because the premium was added to the principal debt, although she had no insurable interest, and since this is a case of first impression in Arkansas I cannot help but feel that we have disregarded the statute defining “Credit life insurance” as well as the guiding decisions of our sister states that are directly in point. Nothing in this record indicates anything other than Moore’s requirement that the principal debtors protect his estate from liability as an accommodation endorser. Nothing indicates that he made, or intended to make, either Mrs. Hansen or her husband a beneficiary of the policy. Only the bank and his estate were beneficiaries, as was clearly indicated in the policy. His estate was secondary beneficiary because the bank could never have retained the excess of any proceeds of insurance over the debt to it.

I do not understand how it could possibly be said that the principal debtor has any economic interest in the continued life of an accommodation endorser. A co-surety, such as Hansen, could not have an insurable interest in excess of the amount he could require his co-surety to contribute if they were called upon to pay the debt. Appellant did not seek to recover this one-half from Hansen.

I would reverse the decree.

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

       The case of National Life & Acc. Ins. Co. v. Davis, 179 Ark. 621, 17 S. W. 2d 312, held that an uncle does have an insurable interest in the life of a nephew overruling McRae v. Warmack, supra, to that effect, but not otherwise.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    SOUTH ARKANSAS OIL COMPANY v. David LIVINGSTON et al
    5-5520
    465 S. W. 2d 119
    Opinion delivered April 5, 1971

      Wright, Lindsey & Jennings, for appellant.

      William H. Drew and Brown, Compton, Prewett ir Dickens, for appellees.
   Conley Byrd, Justice.

The jury found that both appellants South Arkansas Oil Company and Wheeling Pipe Line, Inc., were guilty of negligence and that such negligence on the part of each was a proximate causé of the fire that damaged appellee David Livingston’s building and contents. The jury apportioned the damages 75% to South Arkansas and 25% to Wheeling. For reversal of the verdict in the amount of $66,494.08, appellant South Arkansas contends there was no evidence to show that it was guilty of negligence, or that any action on its part was a proximate cause of any damages sustained and that the trial court erred in refusing its requested instruction (AMI 503) on intervening proximate cause. Wheeling does not allege error in the judgment but as a precaution to protect itself in event of reversal has filed a notice of appeal.

The record shows that South Arkansas is a gasoline marketing company and as such owns a service station in Lake Village adjacent to Livingston’s Sport Center. The station is operated by Odell Rice on a commission basis. Mr. Wadsworth, South Arkansas’s president did not know the exact gallonage of the station’s storage tanks. His method of ordering gas was to check the reports sent in by Mr. Rice and to order gas approximately every two weeks according to the amount the reports showed had been sold. On those occasions when the pumps would run out of gas Mr. Wadsworth would cause gas to be shipped by the most convenient transport, either his own or that of Wheeling. On October 8, 1969, he says Mr. Rice reported that he was out of premium gas and on the same day he called Wheeling and ordered 5,500 gallons of premium and 3,000 gallons of regular.

In accordance with Mr. Wadsworth’s order, Wheeling’s driver T. B. Ray on October 9, 1969, delivered the 5,500 gallons of premium gas and the 3,000 gallons of regular. He testified that he pumped the 5,500 gallons of premium gas into the premium tank, disconnected therefrom and started pumping into the regular tank. Before he left to get a cup of coffee, Mr. Rice told him he had run the premium tank over. He estimates that ten or twelves minutes after he started pumping the regular he shut down to go get a cup of coffee JuSt as he ordered the cup of coffee, some one said they saw smoke and he ran to move the truck without drinking the coffee. According to him not more than fifteen- or twenty minutes expired from the time he quit pumping the premium gas until the fire occurred.

David Livingston testified that there had been other occasions when spillage had occurred at the storage tanks and that he had discussed the matter with Mr. Wadsworth—[Wadsworth denies any such conversations.]

Odell Rice testified that the tanks had been overflowed before and that on the day in question he saw the gas overflowing from the premium tanks. When he first saw the fire it was in the area where the gasoline had been spilled.

George Carlton, the volunteer fire chief testified that the difficulty in extinguishing the fire was the amount of fuel in the gravel around the base of the tanks in back of the building. He says that in cleaning up the little spots of fire on the gravel, the gas would be reignited by the sparks caused by knocking one rock against another.

It seems to be conceded that the premium storage tank when completely empty would hold only 5,425 gallons of gasoline and that 93 gallons would still be left in the tank when the station pumps stopped pumping.

When the proof is considered in the light most favorable to the jury verdict, as we are required by law to do, we hold that there is substantial evidence both of negligence and proximate cause to support the verdict. As pointed out in Gibson Oil Company v. Sherry, 172 Ark. 947, 291 S. W. 66 (1927), gasoline is a highly dangerous substance. In Tri County Gas & Appliance v. Charton, 229 Ark. 989, 320 S. W. 2d 103 (1959), we stated the causal connection rule in this language:

“In actions for damages on account of negligence plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof .of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.”

South Arkansas’s assertion that the trial court erred in not giving its requested instruction on intervening cause is not supported by the record. The record before us is completely silent as to the proffer of such an instruction. In the absence of such showing, we are not in a position to hold that the trial court erred.

Affirmed.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Myrtis B. POLK et al
    5-5541
    465 S. W. 2d 671
    Opinion delivered April 5, 1971
    [Rehearing denied May 10, 1971.]

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      David Soloman and Jimason J. Daggett, for appellees.
   Conley Byrd, Justice.

Appellant Arkansas State Highway Commission by this appeal again argues that the sum of the various interests in the property merely make up the fair market value of the whole property and that the sum of the parts cannot exceed the value of the whole. We held contrary to appellant on this issue in Arkansas State Highway Commission v. Fox, 230 Ark. 287, 322 S. W. 2d 81 (1959). We find that the record here supports our former decision from which we refuse to recede.

Our Constitution Art. II § 22 provides:

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

The record shows that Myrtis B. Polk and Carolyn Polk Holcomb owned 83 acres at the time the declaration of taking was filed on February 28, 1969, subject to an agricultural lease in favor of H. F. Lynn that would expire on December 31, 1971. The witnesses in appraising the landowners’ interest in the land considered its highest and best use to be for rural residential purposes and gave its before and after value for that use. Mr. Lynn, the tenant, on the other hand arrived at his damages based upon an agricultural use. While he acknowledged that his lease covered the whole tract he stated without hesitation that he only messed with the 43 cultivated acres.

When we remember that the interests of both the landlord and lessee constitute private property and that each is entitled to compensation for the property taken for a public use, the invalidity of appellant’s whole unit theory can readily be demonstrated. The price a willing buyer and a willing seller arrive at for residential development ordinarily contemplates an orderly development of the tract because there is usually a time difference or lag between the beginning and final development of an 83 acre tract. In arriving at the purchase price or the market price for that purpose, the use of the premises for agricultural purposes is at most only incidental to the market price. See Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1957), where we held it was improper to value lands on behalf of the landowner both for commercial purposes and residential purposes. The highest and best use of the premises on behalf of the lessee, however, is for agricultural purposes but since his lease may or may not affect the market price of the landowner, it follows that if both the landowner and the lessee are to receive just compensation the private property of each must be valued on the basis of each respective ownership even though it may amount to more than the landowner could recover in the absence of a lease. For instance in the present case part of the lessee’s damages was amortization of lime applied, an item that would have no practical effect upon the value of the lands for residential purposes.

Appellant in pursuit of its whole unit rule objective, offered its instruction No. 5 defining just compensation in terms of all of the defendants. The trial court modified the instruction by adding the italicized word “Landowners.” As given the instruction read:

“Just compensation to the Defendant Landowners in this case is the difference in the fair market value of the land immediately before the taking on February 28, 1969, and the fair market value of the land immediately after the taking; assuming that the highway is completed and permanently in place.
“The term ‘fair market value,’ as used in these instructions, means the price the land would bring on the market in a transaction between a buyer and seller with knowledge of all the uses and purposes to which the land is adopted after they have had a reasonable time for negotiations, and the seller was willing but not forced to sell, and the buyer was willing, but not forced to buy.”

The objection at the trial was that the instruction allowed an overlap or double payment where a lease was involved. Appellant now argues that the instruction was erroneous because it did not require the jury, when assessing the landowners’ damages, to take into consideration that the property was encumbered by a lease. We find no merit in this contention for either of two reasons: (1) it is raised for the first time on appeal and (2) the burden was on appellant to request an instruction on that issue if it desired that it be submitted to the jury.

Instruction No. 7 given by the court defined the damages which the lessee Mr. Lynn would be entitled to recover. The objection at that time, besides the whole unit rule, was that it was not supported by the evidence. On appeal the argument is that the instruction does correctly state the measure of damages for a leasehold interest in a partial taking. We do not consider the argument now made since it is raised for the first time on appeal. Not having presented the issue now argued to us to the trial court, appellant is not now in a position to claim that the trial court committed error.

Affirmed.


author: Frank Holt, Justice.

text:
    CANTRELL REALTY COMPANY v. Elbert W. LISEMBY and Betty Sue Lisemby

      5-5510

      465 S. W. 2d 121
    Opinion delivered April 5, 1971

      Bridges, Young, Matthews & Davis, for appellant.

      John W. Elrod, for appellees.
   Frank Holt, Justice.

This action was brought by appellant to recover a real estate brokerage commission from appellees. After presentation of oral and documentary evidence by both parties, the trial court, sitting as a jury, found that appellant was not entitled to a commission. From the judgment of the court dismissing the complaint, appellant brings this appeal.

On April 10, 1969, appellees entered into a written “exclusive listing” contract with appellant. Under the terms of this contract, appellant was to have the exclusive right from April 10, 1969, through September 10, 1969, to sell appellees’ house. If the house were sold within that period, whether by appellant or by any other party including appellees, appellant would be entitled, under the contract, to a broker’s commission of 6% of the gross amount of the sale price. Since appellees insisted upon a net receipt of no less than $14,000, it was agreed that appellant should set the selling price at $15,000 in order to accommodate its commission and still allow appellees their desired return. The contract further provided that appellant would also be entitled to a commission if the house were sold after the 150-day listing period as a result of information given by or obtained through appellant.

Sometime in July 1969, Malón D. Harris contacted appellant as a prospective purchaser, and appellant endeavored to sell him appellees’ house. Harris declined to purchase the house, and no other buyer was obtained by appellant during the listing period. Appellees advised appellant on September 8, 1969, that they did not intend to renew the listing contract and, on September 26, 1969, transferred the listed property to Harris for $14,000. Upon learning of this sale, appellant demanded its commission. Appellees’ refusal to pay resulted in the present litigation.

In its first point for reversal, appellant contends that the trial court erred by not finding that appellees effectively sold their house during the listing period, thereby incurring liability for the commission. In accordance with our well established rule, on appeal we review the evidence in the light most favorable to appellees to ascertain if there is any substantial evidence to support the finding of the trial court, and, if so, then we must affirm. Pearrow v. Huntsman, 248 Ark. 1146, 455 S. W. 2d 128 (1970); Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S. W. 2d 188 (1964). There is testimony that Harris first approached appellees about purchasing their house without any knowledge of the listing with appellant; appellees then referred Harris to appellant and advised him he would have to buy the house through appellant. On a later occasion, Harris asked appellees if he could buy the house for $14,000. Appellee Elbert Lisemby testified: “I told him I could not sell it to him for any price as long as [appellant] had it.” Lisemby acknowledged that he told Harris he would sell him the house for $14,000 if appellant did not sell it.

Appellant now argues that this was an agreement which constituted a binding condition contract. However, according to Harris, this conversation was not understood to be a binding agreement. He stated that appellee Lisemby “said he couldn’t hold it for me, but, of course, if [appellant] hadn’t sold it before they were out of it that he would sell it to me.” Likewise, Lisemby did not consider this as a binding contract. He testified that he was uncertain as of September 10, 1969 (the date of expiration of the listing contract) whether Harris would buy the house. It was not until September 26, 1969, that Lisemby knew for certain that Harris could or would buy his house because it was only then that Harris was able to make the $500 down payment. According to Lisemby and Harris, there was no enforceable agreement until that date. We cannot say there was no substantial evidence to support the finding that this asserted agreement was not intended as a binding sales contract.

Next it is asserted for reversal that appellees’ conduct during the listing period was intended to, and did, improperly deprive appellant of the sale to Harris. Appellant contends there is evidence that appellees and Harris secretly negotiated with a federal loan agency during the listing period to secure financing; that when Lisemby did not renew the listing he made misleading statements to the effect that he had decided to retain the property and rent it; and that the transfer of the property after the listing period constituted a breach of the listing contract. But, once again there is substantial evidence controverting these contentions. Appellee Lisemby testified that he wanted appellant to sell the property and did not discourage anyone from buying it; that he never suggested to Harris that by waiting he could beat appellant out of its commission; that although he had told Harris, whom he had sent to appellant, that he would sell to him for $14,000, he would not do so until appellant had his full time; that Harris indicated that he was unable to finance the house at $15,000; and that they agreed to sell the house to Harris only after he was convinced that Harris would not buy it at $15,000. Although other evidence may be construed to indicate that appellees did not act in good faith toward appellant, nonetheless, when we view the evidence in the light most favorable to the appellees, we cannot say there is no substantial evidence to support an opposite conclusion by the trial court.

In its third and final point for reversal, appellant argues that the sale to Harris, even assuming it occurred after the listing period, resulted from the efforts of appellant during the listing period. Appellant points out that “there was substantial proof during the trial that the sale made to Harris was the product of [appellant’s] advertisements and efforts.” Even though this proof does exist, it is not controlling here on appeal. As previously indicated, on appeal we must affirm if there is any substantial evidence to support the findings of the trial court, although there is also substantial evidence to the contrary.

The president of appellant company, Jerry Cantrell, testified that: He ran ads concerning the property in a local newspaper; he placed a “for sale” sign in appellees’ yard; he had met with Harris on three occasions in an effort to sell him the house, but that Harris stated that he had decided not to buy the house and preferred to rent; Harris had referred to the ads when he contacted him; he had suggested methods of financing to Harris when he said that he was unable to “raise the money;” and after that, appellant did not consider Harris “a good prospect.” Harris testified that he first learned of the house being for sale from appellee Elbert Lisemby, an acquaintance, who told him that he would have to biiy from Cantrell; that he only met twice with Cantrell and that the other contacts were by telephone; that he did not mention any ad to Cantrell; and that he did not buy the house as a result of any efforts of appellant. The testimony is conflicting and reconciling conflicts in the testimony and weighing the evidence are within the exclusive province of the trial court. We cannot say there is no substantial evidence that the sale was made independent of appellant’s efforts.

Affirmed.

Byrd, J., dissents.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    M. L. SIGMON FOREST PRODUCTS, INC. v. Harold E. SCROGGINS, Sr.
    5-5527
    465 S. W. 2d 673
    Opinion delivered April 12, 1971
    [Rehearing denied May 10, 1971.]

      Catlett ir Henderson, for appellant.

      Clifton Bond, for appellee and cross-appellant.
   Carleton Harris, Chief Justice.

This is the .econd appeal of this case. In M. L. Sigmon Forest Products, Inc. v. Harold E. Scroggins, Sr., 247 Ark. 493, 446 S. W. 2d 198, this court reversed the decree of the Drew County Chancery Court and remanded this cause for further proof on two points, first, a determination of how long the appellant had been, and would be, kept from possession of the premises sought in the action and secondly to permit appellee to offer competent evidence of his reasons for withholding possession of the lands in controversy from appellant. The parties had entered into a lease agreement on January 18, 1967, which inter alia, provided:

“Lessor hereby leases and lets to Lessee for a term of two (2) years commencing on the 18th day of January, 1967, the following described lands lying and situated in Drew County, Arkansas, to wit: [description of lands follows]”

On December 13, 1968, appellant notified Scroggins that it would expect to take full possession of the farm on the expiration date. Whereupon Scroggins filed suit in the Chancery Court of Drew County alleging that he was a tenant for years under the lease agreement and was entitled to six months’ written notice of termination, with such notice to end with the rental period of 1971. He further asserted that he had done substantial work in preparing the lands for the 1969 crop year, and that he had more than six months prior to the termination date in the lease, attempted to ascertain from appellant whether the lease would be continued or terminated, but without success. It was asserted that the annual rental value of the farm was $30,000 and that appellant should be enjoined from taking possession or from interfering with appellee’s possession. Sigmon agreed that the rental value for one year’s rental was $30,000. The chancellor decided the issues on the basis of a motion for summary judgment, responses, affidavits, and exhibits to the affidavits; but we reversed, remanded the case stating:

“There is, however, one fact definitely left for determination. Section 50-509 provides that one who willfully holds over, thus preventing possession to the person entitled thereto, shall pay the person so kept out of possession double the yearly rent of the lands detained for all the time he shall keep the person entitled thereto out of possession. This record does not reflect for how long the appellant has been, or will be, kept from possession, and this fact will have to be determined at another hearing. Also, while there is nothing in the record before us which reflects that appellee acted in good faith in not surrendering the premises, inasmuch as the case is being remanded anyway, we think it proper to permit Scroggins to offer competent evidence of his reasons for withholding possession. In Lessor-Goldman Cotton Company v. Fletcher, 153 Ark. 17, 239 S. W. 742, this court pointed out that, under the statute:

<# # * to entitle the landlord or lessor to double rents after the termination of the lease term, the holding over by the tenant must be done wilfully. The statute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right to do so, even though he were mistaken, is not a wilful or contumacious holding under the statute, where the undisputed facts show, as they do here, that there were reasonable grounds for such belief.’ ”

On remand, the court conducted a hearing as a matter of determining these two matters, and at the conclusion of the hearing, made the following findings:

“1. Scroggins retained possession of the land in issue to November 17, 1969.

2. The ‘yearly rent’ of the land in issue for 1969 is $30,000.00.

3. Scroggins ‘acted in good faith (under the facts and circumstances in this action)’ in not surrendering the possession of the land in issue to Sigmon and is not subject to the penalty of double rents as authorized by Section 50-509 supra.

4. Sigmon should have a judgment against Scrog-gins for $30,000.00, less $26,249.44 previously paid, or a sum of $3,750.56, with interest and all costs of this action for which execution or garnishment may issue.

The rice and bean crop was stored and sold to certain graineries and certain amounts- are paid by said graineries to Sigmon and Scroggins at intervals. This to state the full purchase price of the crops had not been paid by the graineries to Sigmon and Scroggins on the date this action was heard. Sigmon should file or cause to be filed with the Clerk of this Court a statement of further advances made by the graineries to it since this trial of this action, and if such advances have been received by Sigmon the same should be credited to the judgment granted in Part 4 hereof.”

From the judgment so entered, appellant brings this appeal, contending that the court erred in holding that Scroggins acted in good faith in not surrendering the lands leased and was therefore not subject to double rental under the provisions under Ark. Stat. Ann. § 50-509 (1947). Appellee cross-appeals, contending that the trial court erred in not granting Scroggins judgment against appellant for one-half of the cost of seed, fertilizer, and herbicides used in the growing of the 1969 rice crop and one-fourth of the cost of fertilizer and herbicides used in growing the 1969 soybean crop in the sum of $7,227.01. We first discuss the direct appeal.

In Lesser-Goldman Cotton Company v. Fletcher supra, we held, as pointed out on the first appeal of this case, that the landlord or lessor is only entitled to double rents when the holding over by the tenant is wilfully done, and in the case before us, the trial court found that the holding over was not “wilful”. In giving his reasons, the chancellor said that the relationship between the parties appeared to have been satisfactory for more than 25 years, and “because of this long tenure, development and improvement of the farm by Scroggins there had been created a feeling of possession and maybe some degree of proprietary claim by Scroggins in the land”; further, that Sigmon had knowledge of the work being done by Scroggins in preparing the land for the crop year but did not warn appellee that the lands would not be rented to him in 1969. Further from the chancellor’s opinion:

“Scroggins testified that it would have been inconvenient for him to remove from the lands, that he would have suffered the loss of the preparatory work done on the land for the 1969 crop (neither of which are legal causes to withhold possession of the land), that he knew the lease in issue had a termination date but that he was entitled to remain in possession until he had received a six months notice of the termination of the lease or to quit possession.”

Saying that he really thought he had the legal right to retain possession of the premises unless he had received a six months’ notice to vacate does not establish the bona fide belief referred to by the law. Such bona fide belief might well arise where several heirs were contending to be owners of land—or where there was a will contest to determine whether one party had been legally devised some realty—-or where there was a boundary line dispute. But, of course, there are no circumstances of this nature presented in the instant litigation.

We do not agree that the reasons enumerated justified Scroggins in holding over, and we have reached the conclusion that the holding over by appellee, under the law, was entirely “wilful”. Scroggins testified that he talked with Glenn Cooper, president of appellant company, in June or July of 1968, with reference to whether he would be allowed to farm the lands past January 17, 1969. While it is asserted in appellee’s brief that Scrog-gins was told by Cooper “that he thought it would be all right for Scroggins to farm the lands for another year”, the record lacks quite a bit of supporting this interpretation. The first time that Scroggins was interrogated, and by his own attorney, relative to what was discussed in regard to the leased lands, Scroggins replied: “Not much of anything, I just asked him if he was going to let me farm on and he said that he would let me know. That was all that was ever said [emphasis supplied]” When he was next asked by his attorney what he had been told, appellee stated: “He said that he would let me know—at that time he said that it was all right.” This was the first mention of any inference that it “would be all right”. Following this answer, the court asked “what was that? Did he say that, or, did he think that?” Appellee’s attorney then askéd “What did Mr. Cooper say?” Scroggins replied as at the outset “He didn’t say anything, really. He said that he would let me know.” Subsequently, appellee stated that he assumed that he would have the lands for another year “when he told me that everything was O.K.”. It somewhat appears that the alleged statement by Cooper “at that time he said it was alright” was an afterthought.

It is also argued that Scroggins began preparing the lands for another crop year in October of 1968 and that Sigmon had knowledge of this fact but did not warn Scroggins not to incur the expense necessary in such preparation. It is likely that Sigmon did know of the preparation, but there is no proof that this was true. Though Cooper testified in the case, he was never questioned along this line and the testimony of Scrog-gins certainly did not establish this knowledge on the part of appellant. When asked if Sigmon Farms knew if he was preparing the lands for the next crop year, Scroggins said “I assume that they did. They were around all the time—some of them”. It developed that by “they” he meant a Mr. Hobbs, whom Scroggins identified as follows. “I guess that he is right-hand man for Cooper, I don’t know.” When asked if Hobbs saw him preparing the land, he said that he guessed that he did. Be that as it may, there was no legal obligation on the part of appellant to tell Scroggins anything at all concerning renewal of the lease until 30 days before the expiration date. Scroggins testified that he had been renting the land since 1955, some years without a written lease; that he first had a ten year lease, but then entered into the two year lease in January, 1967. This fact, in itself, should have served as a notice to appellee that he could not depend upon prior practices, and of course, the testimony, earlier quoted, that Cooper would let him know about the lease of the land for 1969 likewise should have served as a warning not to incur expense until definite arrangements had been made. The evidence also reflects that Scroggins locked the gates to keep appellant off the farm.

His determination to maintain possession is further shown by the fact that he ignored the finding of the chancery court which was filed on February 18, 1969. The chancellor had held that a three day notice must be served on Scroggins (in compliance with Ark. Stat. Ann. § S4-1503 [Repl. 1962]) before appellant would be entitled to the land, and this notice was served on March 5, notifying Scroggins to give up the premises. Scroggins refused to do so and the next day appellant commenced an action in unlawful detainer in circuit court praying for possession of the land in issue and seeking double the annual rental value of the lands for the time Sigmon was kept out of possession; also for any sums for which Sigmon might be held liable for the reason of its breach of its rental contract with James E. Henly to whom Sigmon had leased the lands for a period of three years to commence on January 18, 1969. A writ of possession was issued by the clerk but Scroggins filed a bond to retain possession, and continued to hold on until November. The Supreme Court opinion was issued on November 4, 1969, and Scroggins delivered possession of the land on Noevember 17, 1969. The circuit court action was thereupon dismissed on December 4, 1969. In other words, appellant was prevented from using its lands for the entire crop year of 1969.

Though not argued by appellee, nor mentioned by the trial court, top, side, or bottom, in either the first case to reach this court, or on the present appeal resulting from the remand, it has been suggested by a member of this court that the case should be affirmed for the reason that equity will not lend its aid to the enforcement of penalties. See Cooley & Cooley v. Lovewell, 95 Ark. 567, 130 S. W. 574; Hendrix v. Black, 132 Ark. 473, 201 S. W. 288. We do not agree with this view. Brushing aside the fact that this defense is not argued by appellee, nor relied upon by the court in reaching its determination, there are more cogent reasons why such a defense is not applicable. In the first place, this was not an action instituted by appellant in the chancery court wherein it sought double damages; to the contrary, chancery jurisdiction was invoked by appellee, and as stated in our first opinion, in answering, it was necessary under the provisions of Ark. Stat. Ann. § 27-1121 (Repl. 1962), that appellant file any counterclaim that it might have, or be thereafter barred. In Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S. W. 760, Bloch instituted an action against the company in the circuit court to recover damages, including treble damages, for the wrongful cutting and removing of timber. The appellant moved to transfer the case to chancery court, asserting that the deed under which it claimed should be reformed. The case was transferred, the court deciding the litigation in favor of Bloch, however denying treble damages. The company appealed from an adverse ruling on reformation of the deed. On the question of treble damages, this court said:

“The trial court found that the trespass was wilful, but refused to award treble damages, citing Cooley v. Lovell, 95 Ark. 567; Hendricks v. Black, 132 Ark. 473. These were cases originating in courts of chancery to enforce penalties, and we held that ‘courts of equity will not aid in the enforcement of penalties.’ But, where one goes into a court of law to recover treble damages awarded by the statute (§ 10320, C. & M.) and the defendant in the action asks and succeeds in having the cause transferred to equity, the chancery court, having acquired jurisdiction and having determined on trial of the issues that the plaintiff is entitled to treble damages under the statute, may follow the law and award such damages without sending the cause back to the law court.

In United States v. Flint Lumber Co., 87 Ark. 80, 112 S. W. 217 (1908), suit was instituted in the Yell Chancery Court against the Flint Lumber Company to wind up the company’s affairs on account of its insolvency, and a receiver was appointed. Thereafter, appellant was allowed to intervene, the intervention alleging that the property in question was vacant land of the United States and subject to homestead entry at the land office of the United States at Dardanelle; that one George Gamey, at the instance of appellee, and with the intent of defrauding the United States out of the pine timber growing on the lands, violated the laws regulating homestead entries and cut and removed 350,000 feet of pine logs. The court rendered a decree in favor of intervener but awarded only the measure of damages provided for cutting of timber by inadvertence or mistake (the value of the timber when first taken or “logs in the tree” value), rather than making an award under the provisions of the law relating to a wilful trespass (trespasser being liable for the full value of the property without deduction of labor or expense). The intervener appealed on this one point only and in reversing the trial court, this court, in an opinion by Mr. Justice Hart, stated:

“The amount of the liability in this case depends upon the fact of whether or not George Gamey and the Flint Lumber Company were wilful trespassers acting in bad faith and for that reason ought to suffer some punishment for their depredation.”

The court held that the evidence showed appellee to be a trespasser, that the penalty should have been invoked, and reversed the chancellor.

It thus appears that there is a difference in the rule relating to the award of damages for wilful trespass (in chancery court) where the owner of the land instigates the action, and where the tenant or trespasser institutes the action. In Augusta Cooperage Co. v. Bloch supra, the case was transferred to the chancery court on the application of the alleged trespasser, and we said the penalty was entirely proper. Of course, in United States v. ,Flint Lumber Co. supra, the benefit of the penalty was given to the intervener, who had not orginally filed the suit, but who had a definite interest in the outcome of the litigation.

We can see no legal difference where a person against whom a penalty is sought moves to transfer the case to equity (as in Bloch) and where a prospective defendant files the suit originally in chancery.

There is yet another reason why such a defense would have no merit iri the present instance. Paragraph four of this opinion, quoting from the opinion in the first appeal of this case, makes it clear that the case was remanded for the purpose of determining how long appellant was kept out of possession of the premises, and whether Scroggins acted in good faith, in order to determine whether appellant was entitled to double damages, and in what amount. That opinion became the law of the case and is now controlling on this appeal. In Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S. W. 2d 418 (1968), we said:

“There are two answers to this contention. First, our prior opinion became the law of the case and is controlling upon this appeal even though we should now think it to have been erroneous (which we do not imply).”

Numerous cases could be cited to the same effect.

On cross-appeal, it is urged that the court erred in not allowing Scroggins judgment against Sigmon for one-half of the cost of seed, fertilizer and herbicides used in the growing of the 1969 rice crop and one-fourth of the cost of fertilizer and herbicides used in growing the 1969 soybean crop, the amount sought being $7,-227.01. Actually, even if we agreed with appellee, it appears that the amount would be incorrect since appellee’s accountant, H. W. Wall, admitted that in reaching this figure, he had charged Sigmon with one-half of the expense of the bean crop, where he should have charged only one-fourth. Also, it appears that certain items were included in this sum which were not the responsibility of Sigmon under the terms of the lease. Be that as it may, appellee is not entitled to reimbursement, for his 1969 operation was not under the lease but rather came about as a matter of his holding over. The lease was not in effect because it had expired on January 18, 1969. The sharing of the cost of making the crop, as heretofore set out, was based on a provision in the lease. Since the lease was not applicable to the 1969 crop, its provisions cannot be relied upon.

To summarize, we find that the holding over was wilful, and appellant was entitled to double damages for the time that Scroggins held over and kept possession from appellant. This simply means that Sigmon is entitled to rent for 1969 in the amount of $30,000 (for which judgment was given by the trial court), plus a penalty of $25,000, this last figure being reached on the basis of the fact that Sigmon was denied possession for a period of ten months. This makes a total due from Scroggins to Sigmon of $55,000, less amounts already paid.

The decree on direct appeal is reversed and the cause remanded with directions to the chancellor to enter an additional judgment for M. L. Sigmon Forest Products, Inc. against Harold E. Scroggins, Sr. for the sum of $25,000 representing double damages; on cross-appeal the decree is affirmed.

It is so ordered.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I have suggested, and insist, that the chancellor’s decree should be affirmed because equity does not lend its aid to the enforcement of penalties. There can be no doubt that the "double damage” statute invoked provides for a penalty. Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17, 239 S. W. 742; Weeks v. McClanahan, 227 Ark. 495, 300 S. W. 2d 6.

Even though this case is basically an action at law without any elements of equity jurisdiction and probably should have been tried in the circuit court, this court determines an appeal, as if the case were in chancery, when the parties have so treated it. Ware v. White, 81 Ark. 220, 108 S. W. 831. See also Gray v. Malone, 142 Ark. 609, 219 S. W. 742. The parties here treated the case as if it were in equity. No effort was made to transfer it to law. Trial here in an equity case is de novo, on which a decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Morgan v. Downs, 245 Ark. 328, 432 S. W. 2d 454. See also Reamey v. Watt, 240 Ark. 893, 403 S. W. 2d 102; Downtowner v. Commonwealth Sec., 243 Ark. 122, 419 S. W. 2d 126; Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291. This is consistent with the general rule that the appellate court looks to the correctness of the judgment, whatever may have been the trial court’s reason for granting it. Southern Farm Bureau Casualty Ins. Co. v. Reed, 231 Ark. 759, 332 S. W. 2d 615. The failure of appellee to argue the point or cite authority on it is immaterial. Miller v. Dyer, 243 Ark. 981, 423 S. W. 2d 275.

Even if appellee had failed to file any brief whatever, this would not have warranted automatic relief to appellant. The burden is always on the appellant to demonstrate error in the decree. Poindexter v. Cole, 239 Ark. 471, 389 S. W. 2d 869. If he does not do so we affirm on trial de novo even though the reasons for the chancellor’s decree are unsound, if upon the whole record a correct result has been reached. Culberhouse v. Hawthorne, 107 Ark. 462, 156 S. W. 421.

I really feel that the chancellor’s findings in this case, where only slight excuse for holding over was given, are an expression of equity’s abhorrence for penalties, without direct statement of the maxim, if indeed the court’s reliance thereon is of any significance.

We are not able to say exactly what issues were presented to the chancery court. Appellant unquestionably asked double damages as a counterclaim in its answer. Appellant’s motion for summary judgment was filed simultaneously with its answer. Appellee’s response to this motion alleged that there was a genuine issue as to material fact, that appellant was not entitled to judgment as a matter of law and that appellee was entitled to prevail in the case. No other pleading controverting the counterclaim was then due and none has ever been filed. The motion for summary judgment was taken under submission for later action by the chancellor 17 days after it was filed. Appellee did file a $60,000 bond to retain possession and an answer to appellant’s complaint in an unlawful detainer action instituted by appellant in the Circuit Court of Drew County after the filing of the findings of the chancellor on appellant’s motion for summary judgment but before entry of the court’s decree. In appellee’s answer in the later action, he alleged that appellant was not entitled to damages equal to double the rental value of the lands under Ark. Stat. Ann. § 50-509 (1947), but was entitled to recover only the share crop rents upon said lands due or to become due from appellee to appellant. This action was dismissed on motion of appellant on December 4, 1969. The order of dismissal discharged the surety on appellant’s unlawful detainer bond. That record was specifically made a part of the record in this case.

While we know the reasons given by the chancellor for refusing to enforce the penalty, we do not know, and cannot know, what arguments were advanced by appellee in the chancery court. Where the court proceeded to a hearing upon appellant’s counterclaim without any attempt being made to require a reply thereto, the failure to require the reply was a waiver thereof. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244, on rehearing. No default was sought, so all questions raised by the counterclaim were at issue (if indeed it is necessary to plead equity’s abhorrence for penalties). Pembroke v. Logan, 71 Ark. 364, 74 S. W. 297; Hill v. Imboden, 146 Ark. 99, 225 S. W. 330.

Relief in equity should be granted as warranted by the facts, not on a request for that relief where there is no prayer and the relief is apparent from the facts alleged or where the prayer for relief is general. See Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S. W. 458, Cook v. Bronaugh, 13 Ark. 183; Kelly’s Heirs v. McGuire, 15 Ark. 555; Ross v. Davis, 17 Ark. 113; Shields v. Trammell, 19 Ark. 51; Rogers v. Brooks, 30 Ark. 612; Morgan v. Scott-Mayer Comm. Co., 185 Ark. 637, 48 S. W. 2d 838; Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S. W. 2d 633; Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113; Taylor v. Taylor, 224 Ark. 328, 273 S. W. 2d 22.

I do consider the cases of Cooley v. Lovewell, 95 Ark. 567, 130 S. W. 574, and Hendrix v. Black, 132 Ark. 473, 201 S. W. 283, to be applicable and the authorities on chancery enforcement of penalties cited in the majority opinion inapplicable. I suggest that the parties moving for summary judgment against the sheriff under Chapter 94, Kirby’s Digest [Ark. Stat. Ann. § 29-209 et seq. (Repl. 1962)] in Cooley had no choice of forum, since the decree under which they claimed was rendered in the chancery court and the officer acted under the processes of that court.

Language from Augusta Cooperage Company v. Bloch, 153 Ark. 133, 239 S. W. 760, relied upon by the majority is dictum. Furthermore, we clearly held that the defendant’s responsive pleading entitled him to a transfer to equity, a situation quite different from that prevailing here. The plaintiff there could not have prevented the transfer or obtained a retransfer. In Dickson v. Love, 149 Ark. 669, 233 S. W. 800, not cited by the majority, we found a liability for treble damages for a part of the period for which the plaintiff had sought to recover, but the removal of the action to chancery was based upon defendant’s prayer for the equitable remedy of specific performance, which the court granted.

I do not take the decision in United States v. Flint Lumber Co., 87 Ark. 80, 112 S. W. 217, to be authoritative here. There was no question of a statutory penalty involved there, nor do I see the damages as punitive damages, as that term is usually employed. All that we did in that case was to apply the common law distinction between the measure of damages for an unintentional trespass and that for a wilful trespass. In the former case the measure is the value of the property in its converted state at the time of trial, less labor expended by the trespasser. In the latter, it is the value of the property at the time of trial in its converted form without deduction for the trespasser’s labor and expense in the enhancement of its value. See Eaton v. Langley, 65 Ark. 448, 47 S. W. 123, 42 L. R. A. 474; Woodenware Co. v. United States, 106 U. S. 432, 1 S. Ct. 398, 27 L. Ed. 230; Hudson v. Burton, 158 Ark. 619, 250 S. W. 898. I also suggest that the intervener in Flint may well have been restricted to the chancery forum. The pleading was filed in an insolvency proceeding in which a receiver had been appointed. By it the United States sought to recover tort damages. It is generally held that consent of the appointing court is essential to the prosecution of a suit against the receiver in another court, in the absence of waiver. See 75 C. J. S. 1004, et seq., Receivers § 333; Walker v. Taylor, 185 Ark. 980, 50 S. W. 2d 590; Ratcliff v. Adler, 71 Ark. 269, 72 S. W. 896.

Appellant has not been imprisoned in the equity court, and the compulsory counterclaim act did not hold it there. It has not at any time sought a transfer of the case to the circuit court, even after filing its unlawful detainer suit or after our remand. This omission was pointed out by the chancellor in his findings on appellant’s motion for summary judgment prior to the first appeal, when he said:

The reason the issue is considered is because the action sounds in Forcible Entry and Detainer, Section 34-1501, et seq of the Statutes of Arkansas, and Courts of Chancery are without jurisdiction of said actions, see McPherson v. Hicks 338 S. W. (2) 201 (p. 203), 232 Ark. 427. * * * despite the fact that the action sounds in Forcible Entry and Detainer, Sigmon does not raise the issue of Jurisdiction and does not plead for possession of the land in issue.

On the first appeal, the chancellor’s decree was rendered upon appellant’s motion for summary judgment, which was denied. The issues had not even been made on the counterclaim for double damages, as appellee had not filed any responsive pleading.

If appellant desired to avoid application of the principles of equity in this litigation, he was free at any time to move to transfer the case to the circuit court. Appellee’s complaint did not state a cause of action in equity. See Gray v. Malone, 142 Ark. 609, 219 S. W. 742; Fletcher v. Pfeifer, 105 Ark. 318, 146 S. W. 864; Comer v. Woods, 210 Ark. 351, 195 S. W. 2d 542.

When a complaint fails to state an equitable cause of action, or the admitted facts show that the plaintiff had no such cause of action, the cause should be transferred to the circuit court upon motion to transfer by the defendant. Ark. Stat. Ann. §§ 27-208 (Repl. 1962), 22-405 (Repl. 1962); Rowe v. Allison, 87 Ark. 206, 112 S. W. 395. See also Ark. Stat. Ann. § 27-210 (Repl. 1962).

The compulsory counterclaim statute did not affect appellant’s right to a transfer in any way. See Wright v. Lake, 178 Ark. 1184, 13 S. W. 2d 826. The motion might have been made before or after the filing of the answer and counterclaim. Ponder v. Jefferson, Standard Life Ins. Co., 194 Ark. 829, 109 S. W. 2d 946. The entertainment of such a motion when made after trial without objection, after submission of the case, and after pronouncement but before entry of a decree, is a matter of discretion with the trial court. Arkansas Const. Co. v. Pidgeon-Thomas Iron Co., 172 Ark. 721, 291 S. W. 57. If the grounds for transfer did not adequately appear upon the face of the pleadings, then appellant could have presented proof to show that the issues were purely legal ones. Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703. Appellant might even have made such a motion after remand. American Surety Co. v. Vann, 135 Ark. 291, 205 S. W. 646. Not having moved to transfer the case, appellant waived its right to do so by going to trial and is in no position to complain when the case is tried as an ordinary action in chancery and equitable principles and procedures are applied and equitable remedies granted. Ark. Stat. Ann. § 27-211 (Repl. 1962); Hemphill v. Lewis, 174 Ark. 224, 294 S. W. 1010; Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S. W. 289; Organ v. Memphis & L. R. R. Co., 51 Ark. 235, 11 S. W. 96. See also Childs v. Magnolia Petroleum Co., 191 Ark. 83, 83 S. W. 2d 547; Gray v. Malone, 142 Ark. 609, 219 S. W. 742; Sessoms v. Ballard, 160 Ark. 146, 254 S. W. 446; Catchings v. Harcrow, 49 Ark. 20, 3 S. W. 884; Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088. Relief from penalties is peculiarly in the field of equity and, were it not for statute, relief might, under proper circumstances, even be granted after judgment at law. Nevada County v. Hicks, 38 Ark. 557; Ark. Stat. Ann. § 50-510 (1947).

The majority seeks to-apply the law of the case as a bar to affirmance. I submit that this harsh but necessary rule should have no application here. I repeat that the issues had not been made by pleadings at the time of the chancery court’s decision on the motion for summary judgment before us on the first appeal. We then decided that the chancellor correctly held that six months’ notice of termination was not required, but erred in holding that a three-day notice under Ark. Stat. Ann. § 34-1503 (Repl. 1962) was necessary. We only speculated that notice given by appellant by letter to appellee was a predicate for a claim for double damages under Ark. Stat. Ann. § 50-509 (1947). We said:

There is, however, one fact definitely left for determination. Section 50-509 provides that one who willfully holds over, thus preventing possession to the person entitled thereto, shall pay the person so kept out of possession double the yearly rent of the lands detained for all the time he shall keep the person entitled thereto out of possession. This record does not reflect for hów long the appellant has been, or will be, kept from possession, and this fact will have to be determined at another hearing. Also, while there is nothing in the record before us which reflects that appellee acted in good faith in not surrendering the premises, inasmuch as the case is being remanded anyway, we think it proper to permit Scroggins to offer competent evidence of his reasons for withholding possession. In Lesser-Goldman Cotton Company v. Fletcher, 153 Ark. 17, 239 S. W. 742, this court pointed out that, under the statute:
“* * * to entitle the landlord or lessor to double rents after the termination of the lease term, the holding over by the tenant must be done willfully. The statute is highly penal, must be strictly construed, and cannot be extended by intendment beyond its express terms. A holding over by the tenant under the bona fide belief that he has the right & do so, even though he were mistaken, is not a willful or contumacious holding under the statute where the undisputed facts show, as they do here, that there were reasonable grounds for such belief.”

The decree is reversed and the cause is remanded for the determination of the two issues mentioned.

Our mandate directed that the cause be remanded to the chancery court “for further proceedings to be therein had according to the principles of equity and not inconsistent with the opinion herein delivered.” (Emphasis mine.)

As mentioned in the opinion on the earlier appeal, there was a cross-appeal then by appellee. Since we reversed on the direct appeal, we said no more about the cross-appeal. In it appellee asserted that the chancellor erred in disposing of the litigation on motion for summary judgment because there were several issues of fact upon which testimony should have been heard. In his response to appellant, appellee stated in his brief:

In addition, the lower court correctly noted that Arkansas Statute Section 50-509 has no application to this case. Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17, 239 S. W. 742. The appellee is holding possession of the lands in question under a claim of right arising under a written lease, and the proper action on the part of appellant to regain possession of these lands and to determine the rights of the parties is an action of unlawful- detainer. Only the circuit court has jurisdiction of such an action and not the chancery court.
In its answer filed in this cause the appellant does not ask to be granted possession of the lands, but only to dissolve the restraining order and for double damages. The only remedy which the appellee had was a petition for a restraining order in the chancery court to enjoin the appellant from interfering with the appellee’s right to possession of the demised Iandsl
On March 11, 1969, the appellant did file' an unlawful detainer action in the circuit court of Drew County, Arkansas, cause No. 2151, and this case is now pending in the Circuit Court of Drew County, Arkansas.
In an unlawful detainer action the measure of damages is the reasonable rental value of the lands detained, in the case of farm lands, and for injuries caused by their detention.
On June 17, 1969, the appellant gave appellee the required six months notice to vacate the lands in question and on July 10, 1969, appellee gave written notice to appellant that he would vacate the said lands on January 18, 1970, and deliver possession to appellant.
Arkansas Statute Section 50-509 has no application to the case now before this court and appellant is not entitled to double damages.

It seems to me that there was and is an issue not decided on the former appeal which leaves the present question open for our present consideration. The former opinion has become binding as the law of the case only to the extent that the questions there involved were decided. Baker v. State, 201 Ark. 652, 147 S. W. 2d 17. It is only the law specifically declared on the first appeal that must be followed. In Linograph Co. v. Bost, 180 Ark. 1116, 24 S. W. 2d 321, we said:

Where a case has been to the Supreme Court and been reversed, the law announced on the former appeal is the law of the case. Propositions of law once decided by an appellate court are not open to reconsideration in that court upon a subsequent appeal. Whatever was decided on the first appeal remains the law of the case for all further proceedings. Morris & Co. v. Alexander & Co., 180 Ark. 735, 22 S. W. 2d 558; Fentress v. City National Bank, 172 Ark. 711, 290 S. W. 58. However, the decision on former appeal is the law of the case as to so much ‘of the case as was adjudicated. Henry v. Irby, 175 Ark. 614, 1 S. W. 2d 49; Chicago Mill & Lumber Co. v. Osceola Land Co., 94 Ark. 183, 126 S. W. 380.
The only question adjudicated in this case on former appeal was the right of appellant to maintain the suit. This question was settled on the former appeal and cannot be reconsidered. The other issue raised by the pleadings was not adjudicated on former appeal and is not res adjudicata.

We have previously permitted new issues to be raised on a retrial after reversal and remand. For instance, in American Surety Co. of N. Y. v. Kinnear Manufacturing Co., 185 Ark. 959, 50 S. W. 2d 586, this court refused to apply the “law of the case” from a previous appeal. Upon remand the complaint was amended to allege that an architect was guilty of such inattention and indifference as to imply bad faith. This issue was then submitted to the jury under instructions correctly declaring the law on that subject. On the previous appeal, the court had held a different instruction touching upon the issue, as then presented, to be correct. The reversal was for failure to give that instruction. Thus, one of the parties was permitted, upon retrial, to raise a new issue.

In Morgan Engineering Co. v. Cache R. Drain. Dist., 169 Ark. 473, 275 S. W. 741, the court refused to apply the doctrine. The appellant contended that the circuit court, on trial after remand, was foreclosed from inquiring into the validity of a contract. It asserted that the language of the opinion on the former appeal was an adjudication of the binding effect of the contract and that the trial court and the parties were bound under the law of the case. The reversal on the former appeal was based upon the failure of the trial court to take proof of the value of services rendered under the contract and to find for appellant for that amount. On retrial, an issue was made as to the validity of the appellee district and, incidentally, the validity of the contract. In referring to authorities cited by appellant, we said that those decisions simply announced and adhered to the rule that where an issue had been raised in the court below and has been finally adjudicated on appeal to the Supreme Court the same issue cannot be reopened on another trial. We also said that a remand for further proceedings in accordance with the opinion was in effect a remand for a new trial on the issues that might be presented, and contemplated that proof might be introduced on those issues.

I would affirm on appeal and cross-appeal.

       Appellee’s father had farmed the lands previous to any lease to Scroggins.

       The only complaint instituted by appellant was filed in the Drew County Circuit Court, but was dismissed after appellee surrendered the premises.

       The case was affirmed, the court finding that there actually had not been a wilful trespass, stating:
      Even though the trial court gave erroneous reasons for its findings and decree, nevertheless, we find that the amount of the decree based on the stumpage value of the timber was justified by a preponderance of the evidence in the record.”


author: George Rose Smith, Justice.

text:
    ARKLA CHEMICAL CORPORATION v. Harriet L. PALMER, Ex’x
    5-5532
    465 S. W. 2d 335
    Opinion delivered April 12, 1971

      Douglas Bradley, for appellant.

      Tiner ir Henry, for appellee.
   George Rose Smith, Justice.

This appeal is from the probate court’s denial of a claim filed by the appellant, Arkla Chemical Corporation, against the estate of Harry C. Palmer, Jr., deceased. The principal contested issue in the probate court was whether Arkla’s claim, which arose from the sale of fertilizer, was (a) against Palmer’s estate or (b) against Palmer Aero Service, Inc., a domestic corporation in which Palmer and his family owned all the stock. The probate judge, in denying the claim, held that Arkla, after Palmer’s death, had elected to do business with the corporation and accordingly had no claim against the decedent’s estate. The correctness of that holding is the pivotal issue on appeal.

The facts, as reflected by a voluminous record containing much testimony and many exhibits, must be stated in some detail.

Palmer, during his lifetime, was the owner of an agricultural flying service, which sold seed and fertilizer and dispersed those commodities from airplanes. In 1962 Palmer organized the corporation, Palmer Aero Service, Inc. On the date of Palmer’s accidental death in a plane accident, May 28, 1968, the corporation’s outstanding S3 shares of stock were owned in the ratio of 30 by Palmer and one each by his former wife (the appellee) and their two children. (The Palmers had been divorced in February of 1968.)

It is shown without dispute that during Palmer’s lifetime he was not careful to keep his own affairs separate from those of the corporation. In January of 1968, about four months before Palmer’s death, he applied to Arkla for the privilege of purchasing fertilizer on credit. That application was made in the name of the corporation and was accompanied by a corporate financial statement listing assets such as airplanes, trucks, and real estate, that were actually owned by Palmer or by Palmer and his wife. At the same time Palmer executed Arkla’s standard form of guaranty, by which he individually guaranteed payment of the account. Counsel for Arkla correctly states in his brief that at the outset it made little difference to Arkla whether the business was corporate or individual, since Arkla had the personal guaranty.

Arkla approved the application for credit and began selling chemical fertilizers to Palmer or to the corporation—a point unquestionably open to some doubt. During the months preceding Palmer’s death Arkla’s monthly statements were paid with sufficient promptness to enable the purchaser to take the 2% discount allowed for payments within 30 days.

Palmer was killed on May 28, 1968. Representatives of Arkla learned of the accident within a few hours. In a conversation some two weeks later between Arkla’s salesman and Mrs. Palmer, who had been named as executrix of the will, it was stated by Mrs. Palmer that she intended to continue to operate the business in the same way as it had been run in the past. On September 5, 1968, Mrs. Palmer as executrix filed a petition in the probate court reciting that Palmer had been the majority stockholder in the corporation and asking for authority “to exercise the controlling interest in Palmer Aero Service, Inc., and to continue the business of said corporation.” On the same day the probate court entered an order granting the petition and directing the executrix to exercise the controlling interest in Palmer Aero Service, Inc., and to continue the business of the corporation.

On the date of Palmer’s death the business owed Arkla $22,971.86 for fertilizer bought on credit. Arkla’s witnesses candidly admitted that the account was promptly paid by the company, in time to obtain the 2% discount. During June, July, and August the company continued to buy from Arkla. Those sales totaled $34,-674.16. The company made payments amounting, according to Arkla’s witness, to $33,354.76—a figure that includes the $22,971.86 owed at Palmer’s death. Most of the checks for those payments are in the record. They were drawn on the corporate bank account, were signed by Mrs. Palmer in the corporate name, and usually contained notations showing that the discount for prompt payment was being taken.

Despite those prompt payments, the business was evidently losing money. (In fact, a trial balance later filed by the executrix showed an operating loss of $57,144.81 for the year 1968, most of which seems to have accumulated after Palmer’s death.) On October 7, 1968, Arkla’s attorney verified and filed Arkla’s claim against Palmer’s estate. The original claim was for $25,552.49, but Arkla now asserts that only $17,003.88, with interest, is still due. Attached to the claim as its only exhibit now in the record was a copy of Palmer’s guaranty agreement, which seems to indicate that the claim against the estate was initially based upon that agreement.

On October 16, 1968, the corporation and the estate executed a written agreement with the principal unsecured creditors of the estate. The probate judge, in rejecting Arkla’s claim against the Palmer estate, based his conclusion almost entirely upon the language of the agreement. In view of its controlling importance in the case we find it necessary to quote its pertinent language at length:

AGREEMENT

By this instrument executed . . . the 16th day of October, 1968, Palmer Aero Service, Inc., a corporation . . . and Harriet L. Palmer, Administratrix of the Estate of H. C. Palmer, Deceased, First Parties, and Planters of Pine Bluff, Inc., Arkla Chemical Corporation, Thompson-Hayward Chemical Company and Nipak, Inc., Second Parties, have contracted and agreed as follows:

1. Second Parties are the principal unsecured creditors of Palmer Aero Service, Inc., and, because of accounting practices and intermingling of assets of Palmer Aero Service, Inc., and personal assets of H. C. Palmer in his lifetime, assert claims against the Estate of H. C. Palmer, Deceased, for the same amounts. The balances claimed by Second Parties are as follows:

Planters of Pine Bluff, Inc. $49,398.02

Arkla Chemical Corporation 24,291.26

Thompson-Hayward Chemical Company 7,320.03

Nipak, Inc. 5,868.68

Total $86,877.99

These accounts have not been verified and are subject to correction for errors by either party.

2. It is recognized that Palmer Aero Service, Inc. and the Estate of H. C. Palmer, Deceased, either severally or jointly, have insufficient liquid assets to liquidate .the said debts and that because of the security held by various secured creditors upon the principal assets of the corporation and the estate, any forced liquidation would result in substantial losses both to First Parties and Second Parties. For this reason it is to the mutual interest of First Parties and Second Parties to continue Palmer Aero Service, Inc. as an operating business with the purpose of attempting to recoup previous losses during the 1969 crop season and to place the business in such condition that it may ultimately be operated at a profit.

3. The principal asset of Palmer Aero Service, Inc. consists of certain accounts receivable aggregating, as of October 15, 1968, . . . $39,599.82. In addition, the Estate of H. C. Palmer, Deceased, is the owner of motor vehicles, airplanes and equipment used in the business of Palmer Aero Service, Inc. as set forth in the schedule hereto attached as Exhibit “A” and made a part hereof; said personal property is encumbered in part by security agreements or liens in favor of First National Bank of Poinsett County, Mid-South Grain Company, Citizens Bank of Jonesboro, and Associate Financial Service, some of which liens may be second liens.

4. It is agreed that First Parties will cause an account to be opened in Mercantile Bank of Jonesboro, Arkansas, in the name of Palmer Aero Service, Inc., Trust Account, with signatures authorized by Mrs. Harriet L. Palmer and Erma Brady (a secretary in the office of Frierson, Walker & Snellgrove, Jonesboro, Arkansas), and that eighty per cent (80%) of all collections from the aforementioned accounts receivable aggregating . . . $39,599.82 will be deposited in that account as collected and that the said trust account shall be a trust fund to be divided among the Second Parties pro rata according to the total amount of their respective accounts. The collections of said accounts receivable shall continue until the total collections deposited in said account aggregate thirty per cent (30%) of the total amount of accounts payable to the Second Parties or until all reasonable efforts to collect the said accounts have been exhausted; thereupon, the total amount deposited in the said account shall be distributed to the said Second Parties pro rata. The funds in the trust account shall be used for no other purpose.

5. The balance of the collections of said accounts receivable shall be deposited to the general account of Palmer Aero Service, Inc. from which the officers of the corporation shall pay the expenses of operating the business and any accounts payable to other creditors, according to their judgment.

6. Harriet L. Palmer, as Administratrix of the Estate of H. C. Palmer, Deceased, will apply to the Probate Court of Poinsett County, Arkansas, for approval of this agreement insofar as the said Estate is concerned and for authority to pledge and encumber all of the personal property of said Estate set forth in Exhibit “A” attached hereto and to execute proper financing statements and security agreements to secure Second Parties, according to their respective interests. The said security agreements and financing statements . . . shall be subject to any existing liens.

7. In consideration of the payments agreed to be made and the security afforded by the preceding paragraph, Second Parties jointly and severally agree that they will withhold and forego any legal action against Palmer Aero Service, Inc. or against the Estate of H. C. Palmer Deceased, to collect their respective accounts until March 31, 1969 ....

8. On March 31, 1969, if First Parties have performed the agreements undertaken to be performed by them hereunder, and are able to demonstrate to Second Parties their ability to operate the business of Palmer Aero Service, Inc. during the crop season of 1969, and to make provisions for reasonable payment upon the indebtedness due Second Parties from the operating income of Palmer Aero Service, Inc. during the year 1969, Second Parties agree that they will withhold and forego legal action upon their respective debts until November 15, 1969, upon such terms and conditions as will enable them to receive payments pro rata from the operating income of Palmer Aero Service, Inc. during the year 1969.

9. Upon the approval of Second Parties of the terms of this agreement, First Parties undertake to present same to the Probate Court of Poinsett County for its approval and thereupon to execute financing statement and security agreement as herein provided. The trust account shall be set up effective upon the date of this agreement irrespective of approval of the Probate Court of Poinsett County, Arkansas, and accounts receivable shall be paid into the said account as collected, independently of other terms of this agreement.

# # *
Palmer Aero Service, Inc.
By Harriet L. Palmer
President
Estate of H. C. Palmer, Deceased
By Harriet L. Palmer
Administratrix
FIRST PARTIES
Planters of Pine Bluff, Inc.
By M. Dunklin, Vice President
Ark-La Chemical Corporation By A. L. Crossland, V. P.
Thompson-Hayward Chemical Company By ........... -
Nipak, Inc.
By -
SECOND PARTIES

Attached to the agreement, as Exhibit “A,” was a list of airplanes, trucks, and other personal property.

Mrs. Palmer testified that when her attorneys learned of the agreement they were somewhat upset about it. Even so, Mrs. Palmer performed it at least to the extent of collecting the accounts receivable and sending to Arkla, in February, 1969, a check for $7,287.38, which was exactly 30% of Arkla’s corrected claim of $24,291.26. It does not appear, however, that Mrs. Palmer made any attempt to have the agreement approved by the probate court or to execute the security agreements mentioned in paragraph 9 of the contract.

Apparently Arkla did not sell any fertilizer to the Palmer company after the end of the 1968 crop year. On June 17, 1969, Arkla filed a petition in the probate court asking that its claim (in the amount of $17,003.88) be approved either as a Class A claim, on the theory that it arose out of a business conducted by the executrix for the estate, or as a Class C claim, on the theory that it was a debt owed by Palmer at the time of his death and never paid. The probate court, as we have said, disallowed the claim.

The appellant’s single point for reversal is that the trial court erred in refusing to allow the claim. Under that broad heading counsel presents a manifold argument that cannot readily be restated or summarized. Counsel’s reasoning, however, embraces three basic contentions that must be discussed separately.

First, and primarily, it is argued that Arkla’s demand should have been approved as a Class A claim, upon the theory that the corporate entity ought to be disregarded. We agree with the probate judge’s conclusion that such a contention is contrary to the proof and to the position taken by the unsecured creditors in the contract which we have quoted.

It is clear from the record that after Palmer’s death the unsecured creditors had a choice of courses to follow. Arkla, for example, might have stopped doing business with Palmer Aero Service and have sought instead to collect the account from Palmer’s estate. That choice was understandably not attractive to Arkla’s management, because the assets of Palmer’s estate were mortgaged to other creditors. Mrs. Palmer testified without contradiction that everything was mortgaged to the hilt. Paragraph 2 of the contract recognized the realities of the situation by reciting that any forced liquidation would result in substantial losses to all concerned.

As the contract itself stated, the unsecured creditors elected instead to continue doing business with the corporation in the hope that the company could eventually pay its debts. The agreement clearly and unequivocally recognized the separate existence of the corporation and the fact that the trucks, airplanes, and other items of personal property were owned by the estate. Arkla actually received 30% of its claim under the arrangement put into effect by Paragraph 4 of the contract. It is a familiar rule that one cannot take advantage of the favorable terms of an agreement and at the same time disclaim those that prove to be burdensome. Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S. W. 2d 500 (1958).

We find no sound basis for the appellant’s insistence that the corporate entity should be disregarded. Ordinarily a corporation is a separate and distinct entity from its stockholders. McCarroll v. Ozarks Rural Elec. Co-op. Corp., 201 Ark. 329, 146 S. W. 2d 693 (1940). The corporate structure is to be disregarded only when it is illegally abused to the injury of a third person. Rounds 6- Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S. W. 2d 1 (1949).

In the case at bar the executrix was authorized by the probate court to exercise the estate’s controlling interest in the corporation and to continue the business of the corporation. Thus the court order itself recognized the separate existence of Palmer Aero Service, Inc., as did the contract with the unsecured creditors. It is unfortunate that the corporation’s efforts to continue in business led eventually to its insolvency, but counsel has pointed to no fact in the record supporting the suggestion that the corporate form was illegally abused. To the contrary, all the company’s bank statements and records were open to inspection, but no specific instance of fraudulent conduct has been brought to our attention.

Secondly, it is argued that Arkla’s demand should have been allowed as a Class C claim, upon the theory that the debt owed to Arkla by Palmer on the date of his death was never paid. The great preponderance of the evidence, if not the undisputed proof, rebuts that contention. At Palmer’s death the business enterprise— individual or corporate—owed Arkla $22,971.86 for fertilizer purchased on credit. Arkla’s own witnesses testified that the amount then owing was paid in full after Palmer’s death. Here, for example, is the testimony of the claimant’s employee, Frank Felts:

Q. On the date of his death, either Harry C. Palmer or Palmer Aero Service, one or the other, owed a considerable amount of money to Arkla Chemical Corporation?
A. Yes, sir.
Q. And that has all been paid?
A. Yes, sir.
Q. In other words, they were paid by invoices, is that right, as they came in?
A. That is correct.
ir •a' *J?
Q. Every dime, either Harry C. Palmer or Palmer Aero Service owed at the date of his death was paid as per the invoices?
A. Yes, sir.

In view of such testimony the appellant’s second argument need not be discussed further.

Thirdly, counsel refers to the guaranty agreement executed by Palmer in January, 1968. That agreement, however, provided that, as to future obligations, it could be terminated at any time by Palmer’s giving written notice to Arkla. It is well settled that such a revocable guaranty contract is terminated by the guarantor’s death, or, as it is sometimes put, by the other party’s knowledge of that death. First Nat. Bank of Boston v. McGowan, 296 Mass. 101, 5 N. E. 2d 5 (1936); Bedford v. Kelley, 173 Mich. 492, 139 N. W. 250 (1913); Tyler Bank & Tr. Co. v. Shaw, 293 S. W. 2d 797 (Tex. Civ. App., 1956). The reasons for the rule were stated with clarity in Gay v. Ward, 67 Conn. 147, 34 Atl. 1025 (1895):

But, when the guarantee has knowledge of the death of the guarantor, such knowledge works a revocation of the guaranty. The guarantee no longer relies upon the credit of the deceased guarantor. Each advance made by the guarantee constitutes a fresh consideration, and, when made, an irrevocable promise or guaranty on the part of the living guarantors. Each advance thereafter made is upon the credit of the living, not of the dead, guarantor. Were this not so,—unless it be held that the representatives of the deceased may upon notice terminate the guaranty,—the guaranty, terminable at the option of the guarantor during life, becomes, upon his death, never ending. The limitation which the law gives the living is denied the dead. Estates must remain unsettled, devises of property be withheld, so long as the guaranty may last, and the representatives of the deceased guarantor be powerless to save his estate from a loss which neither he nor they authorized or received benefit for. Such a result justifies and impels a court in reading into the guaranty a limitation of termination of the guaranty, upon notice of the death of the guarantor, as well as upon notice from the living guarantor.

In fact, Arkla’s form of guaranty contract was apparently drafted with knowledge of the above rule, for it provides that after the guarantor’s death the contract may be terminated by the sending of written notice of the death to Arkla, by registered mail. Here Arkla concededly had actual knowledge of Palmer’s death within a few hours after the fatal accident. Thus written notice by registered mail would have supplied no information that the company did not already have.

We should add, in closing, that we are not called upon to decide certain issues mentioned in the appellant’s brief. Some complaint is made about Mrs. Palmer’s management of the estate, but Arkla, not being a creditor of the estate, is not in a position to raise such an issue. Nor do we express any opinion about Mrs. Palmer’s duty to specifically perform the obligations set out in Paragraph 9 of the contract. The probate court is not the proper forum for a suit for specific performance. Merrell v. Smith, 226 Ark. 1016, 295 S. W. 2d 624 (1956). Indeed, Arkla’s counsel was evidently aware of that rule, for at the beginning of the hearing in the court below this statement was made by Mrs. Palmer’s attorney: “There is another case pending. It is a chancery case wherein Arkla Chemical sued Mrs. Palmer, the estate, and the corporation. It is an action for specific performance of a contract.” All we hold in the case at bar is that the appellant failed to establish a claim against Palmer’s estate by a preponderance of the evidence.

Affirmed.