author: Carretón Harris, Chief Justice.

text:
    Stebbins & Roberts, Inc. v. Pulaski Glass & Mirror Co.
    5-2355
    345 S. W. 2d 912
    Opinion delivered April 17, 1961.
    [Rehearing denied May 29, 1961.]

      Rose, Meek, House, Barron, Nash S Williamson, for appellant.

      Mehaffy, Smith d Williams and B. 8. Clark, for appellee.
   Carretón Harris, Chief Justice.

Appellant and appellee are corporations organized under the laws of Arkansas. The State Highway Commission invited competitive bids for 40,000 gallons of white, and 40,000 gallons of yellow, highway paint. On June 9, 1960, both companies submitted bids. Appellant submitted a bid of $2.23 per gallon for white paint and $2.39 per gallon for yellow paint, respectively totaling $89,200 and $95,880. Pulaski’s bid amounted to $2.19 per gallon for white paint and $2.31 per gallon for yellow paint, respectively totaling $87,600 and $92,400. Under the provisions of ¡-Sections 14-119 and 14-120, Arkansas Statutes, public agencies of the State of Arkansas, in the purchase of commodities on competitive bids, are required to purchase from a resident firm, provided the bid of the resident firm does not exceed by 5% the lower bid of the non-resident firm, and further provided that the former claims the preference at the time of the submission of the bid. Both appellant and appellee claimed the preference, and the contract was awarded to Pulaski on the basis of its lower bid. Thereafter, appellant (which submitted the next lowest bid, and would have received the contract if Pulaski had not also been entitled to a preference) instituted suit in the Pulaski Chancery Court against appellee, the Commissioners of the State Highway Commission, State Comptroller, State Auditor, and State Treasurer, alleging that appellee, insofar as the sale of paint was concerned, did not meet the requirements of Section 14-120 (d), in that it did not have a bona fide place of business within the State of Arkansas and had never stocked paint for general sales to the public. The complaint alleged that appellee had entered into an agreement with the William Armstrong Smith Company, “hereinafter referred to as ‘Smith Company’, a foreign corporation, under the terms of which Smith Company, a manufacturer of paint, will supply to the defendant, Pulaski Glass & Mirror Company, all paint it may sell to a public agency of the State of Arkansas with a view of taking advantage of the performance provided in the statutes above mentioned and dividing the profits derived from such sales.” It was further alleged that appellee did not, and has never, maintained a representative inventory of paints, but only maintained a “token” inventory for the purpose of making it appear to be a “firm resident in Arkansas” within the meaning of the statute, and thus entitled to the 5% preference when bids were being competitively compared. Appellant asked that the Highway Commission be enjoined from approving any invoices submitted in connection with the sale by Pulaski Glass & Mirror Company to the Commission, and prayed that the Comptroller, Auditor, and Treasurer be enjoined from approving such invoices or issuing warrants therefor. A temporary injunction was granted, following the filing of an injunction bond by Stebbins & Roberts, Inc., but a stipulation was subsequently entered into permitting the delivery of paint to the Commission by Pulaski, providing, however, inter alia, “5. As paint is received by the Commission from Pulaski, it shall deposit in the registry of the court a sum representing the bid price of Pulaski, and Pulaski shall be permitted to withdraw from the sum so deposited 99 per cent of its bid price. 6. If by the decree of the Pulaski Chancery Court, if no appeal is taken, or if by the judgment of the Supreme Court, it is ruled that the bid of Pulaski should not have been accepted by the Commission and that it should have accepted the bid of Stebbins, the State Highway Commission shall pay into the registry of this court the difference between the bid of Pulaski and the bid of Stebbins, and Stebbins shall be paid from the funds deposited in the registry of this court, with respect to each gallon of paint received by the Commission from Pulaski, the difference between the respective bids of Stebbins and Pulaski, and it shall also be paid from the funds deposited in the registry of the court one per cent of the bid price of Pulaski which is withheld pursuant to the provisions of Paragraph 5 above, that amount being the estimated profit of Pulaski which it is not entitled to receive if the acceptance of its bid was in violation of the Statutes of Arkansas.” On hearing, the temporary injunction was dissolved, and the complaint dismissed. From such decree of the court, comes this appeal. For reversal, appellant asserts that the trial court erred in declining to hold that Pulaski Glass & Mirror Company was a mere agent of the William Armstrong Smith Company, and in finding that the company was entitled to claim a statutory preference with respect to the paint sold to the Commission.

The proof before the court consisted of the testimony of J. W. Meredith, Jr., procurement officer for the Highway Commission, C. C. Kress, president and owner of Pulaski, and Walter Skipper, Secretary-treasurer of Stebbins & Boberts. Pulaski has been engaged in business in Little Bock since 1955, selling glassware and mirrors. According to the testimony of Kress, William Armstrong Smith, of Atlanta, Georgia, contacted him by telephone sometime in January, 1960, relative to Pulaski becoming paint distributor for the Smith Company. He was not acquainted with Mr. Smith prior to that time. The conversations continued, off and on, until March, Smith bearing the expense of the telephone calls. According to Kress, he accepted the line in the latter part of March, and identified a letter that he received from Smith on March 23rd. The letter is as follows:

“We are happy to learn that you are willing to act as our paint distributor in the Little Bock area and would like to bid on State of Arkansas Traffic Paint bids as well as the various requirements on maintenance paints.

Our truck will be leaving here Friday and should arrive in Little Bock Sunday afternoon. I have given the truck driver your home ’phone number (MOhawk 6-6053) and when he arrives in town you can come down and let him in.

Enclosed is Dealer’s Price List No. 1909 as well as a Suggested Betail Price List. We will give you an additional 15% discount from the prices shown on the Dealer Price List.

We also enclose color cards and pamphlets relative to several of our products.

I trust you will be wanting to order some of these paints in the near future as we develop sales for the colors.

Your initial stock order -will consist primarily of white as 30% of the paint sold today is white and most of the painters prefer to tint it on the job.

Included in your shipment is a quantity of plain traffic paint along with the reflectorized traffic paint. The one gallon cans will be helpful to you in demonstration work in the various cities and towns in which you will be working.

There are several body builders in the Little Rock area that will be interested in purchasing aluminum from you. Mr. Caudle of Wonder State Paint Company developed aluminum sales to these body builders. I will try and find out the names of these builders so that you can develop sales on the aluminum.

Looking forward to a mutually profitable relationship with you, I remain

Very truly yours,

WILLIAM ARMSTRONG SMITH COMPANY

/s/ William A. Smith, President”

An invoice, dated March 25th, in the amount of $2,235.34, accompanied the shipment, which was sent to Little Rock by truck. The paint was received on consignment, Pulaski to pay the Smith Company as the paint was sold. Kress testified that 20 gallons of paint had been sold out of the original consignment. The testimony reflected that Smith came to Little Rock a few days prior to the making of the bid, which occasions this litigation. A bid bond was filed with the Pulaski bid, and after receiving the contract, a performance bond was filed. These bonds were arranged by Smith, and the premium on the performance bond paid by Smith. Kress testified that he prepared the hid with the assistance of Mr. Smith, after being given a unit price by the latter. He (Kress) then decided how much profit he was going to add. The witness testified that, under his arrangement with Smith, the Pulaski Company would receive the check from the Highway Department, and he would then pay the Smith Company its bill for the paint. The paint was to be manufactured in Atlanta, and shipped directly from there to the Highway Department. Mr. Kress stated that one of his employees had built shelving in late May to display the new product. Upon being interrogated as to who would pay for the costs of litigation, he replied:

“A. Mr. House, I am going to pay this if it is not exorbitant, and more than I can stand. To date, I don’t know how much this is going to be. This represents not only a suit against me, but every businessman in this State who handles an out of State item and I am going to pay everything, but believe me if I can get them to help pay it, I certainly will. I have no idea how far it will go and I may get more than I can stand.”

Kress had not advertised as a paint dealer,: nor had he added any employees due to the acquisition of the new merchandise.

Walter Skipper, Secretary-treasurer of Stebbins, testified that most paint dealers carry a color line so that the needs of a customer can be serviced in any color or size desired. He stated that most have color mixers, i.e., tubes of various shades are mixed with a white base to arrive at different colors. He stated that the “normal paint dealer” in Little Rock has a paint shaker; likewise, according to his evidence, the ordinary paint dealer in Little Rock carries a line of accessories consisting of brushes, ladders, and painters’ tools, which are displayed prominently in the store, and such a dealer, has a complete line of flat wall paints, rubber base paints, exterior paints of all types, and carries quarts, pints, and half-pints. He was emphatic in stating that his company does not sell on consignment. On learning that Pulaski had submitted a bid, Skipper went to their place of business. He testified that he found only four cartons of paint stacked in a corner, a couple of drums, but no display at all. He stated that he saw no other paint, though it could have been in the back of the warehouse. Skipper had filed a protest with the Commission, and had requested one of the Commissioners to make an investigation. Upon viewing pictures of a paint display which had been offered in evidence, Skipper stated that such a display was not in existence at the time he visited the Pulaski store.

Appellant, in its brief, states that this case is not subject to the rule that an affirmance will be ordered where the findings of the Chancellor are not against the preponderance of the testimony, for there is but little dispute in the testimony. This is true, but the evidence is susceptible to more than one interpretation, and we are of the opinion that the question presented (when a dealer is entitled to preference under the statute) is factual, depending upon the circumstances in each particular case. In other words, there is no hard and fast rule which governs the issue in controversy.

Let us review .these facts, relied upon by appellant, as establishing its contention that Pulaski was not a bona fide paint dealer. We find no significance in the fact that the first contact was made by Smith, rather than the dealer. The proof reflects that the Smith products had formerly been handled by Wonder State Paint Company, an established Little Rock paint dealer. For some reason, not revealed by the record, the relationship between Smith and Wonder State was severed, and we find nothing unusual in a paint manufacturer endeavoring to obtain another distributor for its products. Since appellee was already engaged in selling certain building supplies, the choice seems logical enough. Kress testified that he desired to expand his business, and it seems but natural that the handling of paints would be a proper line to turn to, since glass and paint are frequently handled together. We see nothing unusual in the fact that the telephone was used rather than corresponding by mail, and we daresay that hundreds of businessmen daily use the telephone in expediting their business; neither do we attach significance to the amount of inventory held by Pulaski at the time of the bid — nor to the fact that no additional employees were retained- — -nor that advertising had not been entered into. After all, the paint business was a new line for Pulaski, and it would not be expected to have the materials and supplies on hand, and available to the general public, to the extent offered by an established paint dealer. Kress testified that the matter of the paint bid was entirely new to him, and he felt he had to rely upon someone familiar with the procedure. In other words, the furnishing of the bonds was a service rendered by Smith in helping Pulaski get started. Perhaps this last fact might have significance, except that Pulaski was just commencing in the paint business. "We do not feel that appellant’s contention is strengthened because the paint was to be prepared and shipped from Atlanta. In fact, Mr. Skipper testified that his company did not have the paint on hand at the time of the bid. This witness testified that his company bought ingredients from 35 or 40 suppliers over the country, and he could not say that the company had all the necessary ingredients to make the 80,000 gallons of paint. He could only testify that the company could have started on the contract. Of course, it would be most unusual if any dealer or distributor had on hand such a large quantity of paint.

Appellant takes the view that the shipment of the paint on consignment is a strong circumstance indicating that Pulaski was no more than an agent. We do not agree. Though, according to Skipper, appellant company has a strict rule against selling on consignment, we think unquestionably that many concerns, at least on occasion, and when dealing with merchants of limited means, do sell on consignment, and this is probably particularly true when a manufacturer is endeavoring to coax some concern into handling its product in a community.

Finally, appellant emphasizes that Kress is to receive a “commission” for handling the paint. Though it bears no particular import, it is interesting to note that the word “commission” was first used at the trial by appellant’s counsel. Kress had been called to the witness stand by the opposing party, in fact, all witnesses were placed on the stand by appellant. In examining Kress relative to the amount of the bid, counsel for appellant asked:

“Q. Now, you testified in here — at least, I questioned you about who fixed the final price in the bid which you submitted to the Highway Commission?

A. Yes, sir.

Q. Is any part of this bid yours that you prepared?

A. I determined my profit, yes, sir.”

Subsequently, counsel used the term “commission”, and then asked the witness:

“Q. And you don’t want to reveal what your commission is?

A. No, sir, I certainly don’t. It would be very damaging evidence to me.

Q. All right, we won’t ask you.

A. In front of my competitor it would be damaging to me.”

Further:

“And your part of this will be just for your commission or services here?

A. My percentage of the profit that I feel I am entitled to, yes, sir.”

We think it makes little difference as to the term used. The fact remains that before appellee could make a bid, it was necessary that he first ascertain the unit price from the manufacturer; to this, he added his profit, commission, mark-up, or whatever term one may choose to use.

We are unable to say that the Chancellor’s finding was erroneous.

Affirmed.

McFaddin, J., dissents; George Rose Smith, J., not participating.

      This subsection reads as follows: “ ‘Firm resident in Arkansas’ shall mean any individual, partnership, association, or corporation (whether domestic or foreign), which maintains, at the time of submission of the bid, a bona fide place of business and a representative inventory of the commodities on which the bid is submitted, within the State of Arkansas, and, in the case of corporations, is duly qualified to do business and is in good standing under the laws of the State of Arkansas.”

       For instance, Pittsburgh Paint & Glass Company is a well known concern that has been engaged in the paint and glass business for many years. Kress also testified that he intended to take on other building products in expanding his business.

       Appellant operates both a manufacturing plant and a retail store.

       Kress testified that some of his glass was also bought on consignment.

       Referring to the payment by the Highway Department.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Stewart v. State.
    4996
    345 S. W. 2d 472
    Opinion delivered April 17, 1961.
    [Rehearing denied May 15, 1961.]

      Thad D. Williams and Harold B. Anderson, for appellant.

      J. Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   J. Seaborn Holt, Associate Justice.

The appellant, Clarence Stewart, Jr., a Negro, was charged by information with the crime of first degree murder. The jury returned a verdict of guilty and punishment was assessed at death. William N. Caldwell was an elderly, partially crippled man who owned and operated a small auto parts store in the city of North Little Rock. On January 8, 1959, around noon his body was discovered in his store by a customer. An investigation revealed that Mr. Caldwell had been stabbed nineteen times with six of the knife wounds penetrating the heart. The county coroner testified that death was due to hemorrhaging from multiple knife wounds. A hunting knife was removed from the body. Subsequent investigation by police officers led to the arrest of Clarence Stewart, Jr., the following evening, January 9, 1959. After questioning, Stewart admitted stabbing Mr. Caldwell with the knife found in the body. Later Stewart led police to the spot where he had discarded a tackle box stolen from Caldwell’s place of business. Inside the box was found a government check in the amount of $51.61 payable to Mr. Caldwell, a property tax assessment slip in Caldwell’s name, and a burial insurance policy. After showing officers the location of the tackle box, Stewart instructed the officers to drive to the home of Ellis Thomas and there, about seventy-five yards from the house, Stewart’s billfold containing $29.00 stolen from Caldwell was found. The billfold also contained th« appellant’s social security card which reflected that he was born February 23, 1938. About a mile and a half from the appellant’s home, Stewart told the police officers to stop their car and they were led to a spot where Caldwell’s billfold was recovered. Approximately three-quarters of a mile from Caldwell’s billfold the appellant showed the officers where he had torn up and discarded the papers taken from Caldwell’s billfold. Half of a social security card and other papers of Caldwell’s were found. Stewart was charged with the crime of first degree murder. A trial was had and the jury returned a verdict of guilty and assessed the penalty at death. This appeal comes from that judgment.

First, the appellant argues for reversal that insanity caused by a defect or deficiency in the mind is a valid defense and relies upon the case of Durham v. United States, 94 U. S. App. D. C. 228, 214 F. 2d 862, 45 A. L. R. 2d 1430. However, the Durham rule has been expressly rejected in this state in Downs v. State, 231 Ark. 466, 330 S. W. 2d 281, and in many other jurisdictions which have had an opportunity to pass upon the question. See: People v. Ryan, 140 Cal. App. 2d 412, 295 P. 2d 496; Castro v. People, 140 Colo. 493, 346 P. 2d 1020; State v. Taborsky, 147 Conn. 194, 158 A. 2d 239; Piccott v. State, Fla., 116 So. 2d 626; People v. Carpenter, 11 Ill. 2d 60, 142 N. E. 2d 11; Flowers v. State, 236 Ind. 151, 139 N. E. 2d 185; Commonwealth v. Chester, 337 Mass. 702, 150 N. E. 2d 914; State v. Finn, 257 Minn. 138, 100 N. W. 2d 508; State v. Goza, Mo., 317 S. W. 2d 609; State v. Kitchens, 129 Mont. 331, 286 P. 2d 1079; Sollars v. State, 73 Nev. 248, 316 P. 2d 917; State v. Lucas, 30 N. J. 37, 152 A. 2d 50; Commonwealth v. Novak, 395 Pa. 199, 150 A. 2d 102; State v. Goyet, 120 Vt. 12, 132 A. 2d 623; State v. Collins, 50 Wash. 2d 740, 314 P. 2d 660. The instruction [No. 13 on insanity] given in the present case was taken from Bell v. State, 120 Ark. 530, 180 S. W. 186, and set out the law of insanity as a defense to a criminal action as recognized in this state as follows: “State’s Requested Instruction No. 13. You are instructed that before insanity can be a defense, it is necessary for you to believe, by a preponderance of the evidence, first, that at the time of the alleged crime the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, second, if he did know it, that he did not know that he was doing what was wrong, or, third, if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease, to resist the doing of the wrong' act which was the result solely of his mental disease.” The defendant objected to the action of the court in giving the State’s Requested Instruction No. 13 and at the time asked that his exceptions be noted of record, which was accordingly done. “Mr. Williams: We specifically object to the State’s Instruction No. 13 because it does not consider deficiency or disorder or defect.” Three psychiatrists testified as to Stewart’s mental capacity and all agreed that the appellant was mentally dull but that he was without psychosis and knew right from wrong. In addition the report of the Arkansas State Hospital’s examination was introduced in evidence which agrees in all particulars with the above testimony and further adds that Stewart was probably not mentally ill, to the degree of legal irresponsibility, at the time of the alleged commission of his acts. The fact that one has a mind below normal does not exempt him from punishment for his criminal acts. Ezell v. State, 217 Ark. 94, 229 S. W. 2d 32.

Second, the appellant argues that the admission in evidence of photographs of the deceased and other photographs showing the premises were prejudicial. The introduction of photographs rests largely within the discretion of the trial judge, Oliver v. State, 225 Ark. 809, 286 S. W. 2d 17; Lee v. State, 229 Ark. 354, 315 S. W. 2d 916, and are admissible for the purpose of describing and identifying the premises which were the scene of a crime. See Zinn v. State, 135 Ark. 342, 205 S. W. 704; Simmons v. State, 184 Ark. 373, 42 S. W. 2d 549; Underhill, Criminal Evidence (5th ed.) § 117. Photographs may also be admitted to establish the corpus delicti of the crime charged, to disclose the environment of the crime at the time it was committed, and to corroborate testimony. Wharton’s Criminal Evidence (11th ed.) § 773. The photographs introduced in evidence in the present case meet one or all of the above conditions and were clearly admissible.

Third, appellant says: “Defendant’s requested Instruction Number 18 asked that the death verdict have the following form, to-wit: ‘We the jury, find the defendant guilty of murder in the first degree, as charged in the information and fix his punishment at death by electrocution.’ However, the court below amended the form for the death verdict by striking ‘and fix his punishment at death by electrocution.’ The jury returned a death verdict in the form as instructed by the court. After giving the death verdict form the court instructed the jury that: ‘this form of verdict automatically carries the death penalty with it.’ However the verdict itself does not prescribe the punishment and this defect is not cured by an instruction from the court. If the verdict itself has spelled out the punishment then there would be no doubt the jury alone has returned a death verdict.” This contention is without merit. It is well settled in this state that where the jury finds the defendant guilty of first degree murder as charged in the information and does not set the punishment, then the law fixes the punishment at death. Bullen v. State, 156 Ark. 148, 245 S. W. 493; Clark v. State, 169 Ark. 717, 276 S. W. 849; Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248. It should also be pointed out that the jury was instructed they could return' a verdict of life imprisonment if they so desired.

Finally, it is argued that the jury panel should have been quashed because of discrimination in the selection of the panel. Though it is not clear from appellant’s brief, evidently this argument is based upon the proposition that systematic inclusion, as alleged, would be a denial of due process and equal protection of the law under the Fourteenth Amendment to the Federal Constitution. We find it unnecessary to pass upon this argument since we think the evidence fails to show a systematic inclusion of Negroes on jury panels which would amount to discrimination. In fact, the evidence demonstrates that the jury commissioners made a special effort to avoid discrimination in the selection of veniremen. Discrimination in a jury’s selection must he proved; it is not to he presumed, Tarrance v. Florida, 188 U. S. 519, 23 S. Ct. 402, 47 L. Ed. 572, and the burden of establishing the discrimination is upon the defendant. Akins v. Texas, 325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692. The fact that there is a disproportion in the number of a particular race selected does not in itself show discrimination, Akins v. Texas, supra, and a defendant has no absolute right to have his race represented on any particular jury. Bush v. Kentucky, 107 U. S. 110, 1 S. Ct. 625, 27 L. Ed. 354. To prove discrimination in the present case the defendant took the testimony of the county collector, the deputy circuit court clerk, and two of the jury commissioners. The collector was called and testified as to the number of poll tax receipts issued. No record could be had in prior years but the collector estimated there were 88,176 poll taxes issued in 1959 in Pulaski County and of that number perhaps 20,000 to 25,000 were sold to members of the Negro race. The deputy circuit clerk was called and testified that since the March term of 1940 through the March term of 1960 Negroes had served on the jury panels of Pulaski County. A tabulation of the number of Negroes serving on the jury panels in the first division of the Pulaski County Circuit Court shows that in 1955 a total of ten, in 1956 a total of six, in 1957 a total of fifteen, in 1958 a total of three, in 1959 a total of seven, and on the March term regular jury panel three Negroes were appointed. Mr. Edward Granoff, the first jury commissioner to testify, stated that he sought to select persons who would make good jurors and he and the other jury commissioners used the city directory and looked to see if people were qualified and used the poll tax book to see if “they were paid up” and the jury list was used to see if the selected persons had served recently. He further testified that it was the desire of the jury commissioners to select some Negroes “so they would have a say in the government of our county.” He stated he didn’t pick the jury panels on a personal basis — just who he thought was best qualified. Mr. Jack L. Branch, the second jury commissioner to testify, said that the commissioners didn’t have any figures and didn’t know what the proportion of Caucasian to Negro poll tax holders would be, but that he and the other commissioners thought that there should be some Negroes on the jury panels so they could represent the county government. The third jury commissioner was not called to testify. This was all the testimony presented to show discrimination in the selection of the jury panels. Viewing this testimony as a whole, we think that it fails to establish any systematic, planned exclusion or inclusion of Negroes which would amount to unconstitutional discrimination in the selection of the jury panels. The American tradition of trial by jury cQntemplates an impartial jury drawn from a cross section of the community. The United States Supreme Court in the case of Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664, noted: “* * * (T)he constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very ideafof a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” We do not think it ground for complaint that Negroes were on the jury panel.

In the present case the appellant has proceeded in forma pauperis on this appeal and only four points are argued in his mimeographed brief but as is our duty in capital cases, we have not only considered each assignment of error, but also each objection made in the trial court by the defendant for error. Rorie v. State, 215 Ark. 282, 220 S. W. 2d 421. We find none.

The judgment is affirmed.


author: Ed P. MoPaddin, Associate Justice.

text:
    Knight v. Worthen Bank & Trust Co.
    5-2367
    345 S. W. 2d 361
    Opinion delivered April 17, 1961.

      Alonso D. Gamp, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee. ■
   Ed P. MoPaddin, Associate Justice.

This appeal is to determine whether the appellant or the appellee will adminster the Estate of Wyatt S. Parker who died intestate in Pulaski County on October 16, 1960. Mr. Parker was survived by a daughter, Mrs. Haddock, of full age, and also by a son Paul, nine years of age, who lives with his mother. The Parkers were divorced several years ago; and she is now Mrs. Joy L. Knight, the appellant.

Por several years prior to his death, Mr. Parker had been incompetent; and Worthen Bank and Trust Company, hereinafter referred to as “Bank”, had been his guardian under the orders of the Pulaski Probate Court. As aforesaid, Mr. Parker died on October 16, I960; and on October 28, 1960, the Pulaski Probate Court duly-entered its order authorizing the Bank, as former guardian, to administer the Estate of Mr. Parker pursuant to § 57-644, Ark. Stats: Mrs. Haddock, the daughter of Mr. Parker, consented to the appointment of the Bank. Mrs. Knight also had several conversations with the Bank’s officers; but on November 9, 1960, without notice to the bank or to Mrs. Haddock, Mrs. Knight obtained an order from the Pulaski Probate Court appointing herself as Administratrix of the Estate of Mr. Parker. The Bank petitioned the Probate Court to cancel and annul Mrs. Knight’s appointment as said Administratrix; and Mrs. Knight resisted the petition. With the issues joined, witnesses were heard and on December 2, 1960, the Pulaski Probate Court cancelled and annulled Mrs. Knight’s appointment as Administratrix, and reaffirmed the' appointment of the Bank. From that order Mrs. Knight prosecutes this appeal.

Under § 57-644, Ark. Stats, the Probate Court is authorized to continue the guardian as administrator, “. . . unless the court, after a hearing, grants a petition for letters ... of administration filed not later than forty days after the death of the ward; . -. .” Appellant contends that she applied within forty, days after the death of Mr. Parker and that, under the wording of § 57-644, Ark. Stats., such application required the Court to make her appointment. We hold that the Probate Court had discretion whether to have the Bank act as Administrator or to appoint Mrs. Knight, who was not within the preferential class under § 62-2201, Ark. Stats.

In Burnett v. U. S. F. & G. Co., 228 Ark. 857, 310 S. W. 2d 806, we held that § 62-2201, Ark. Stats, did not make it compulsory on the Probate Court to make an appointment in the order of priority mentioned and that, for sufficient cause, the Court might refuse to appoint a person preferred under said § 62-2201. In the case at bar, Mrs. Knight had no preferred right under § 62-2201, Ark. Stats. She was the divorced and remarried wife of Mr. Parker. And the evidence reflects that she intended to make some claim against Mr. Parker’s estate. The Section 57-644 of Ark. Stats, must be harmonized with § 62-2201; and when so considered it is clear that the Probate Court possessed discretion to appoint the Bank instead of Mrs. Knight, even if she had been in Court when the original petition of the Bank was granted on October 28, I960.

We also hold that the Probate Court had the power to set aside the order appointing Mrs. Knight as Administratrix. The said order was made on November 9, 1960; and at the same term (December 2, 1960) the Court set aside Mrs. Knight’s appointment. The Probate Court had authority, on a proper showing, to set aside any order that it made at the same term of Court (Brod v. Brod, 227 Ark. 723, 301 S. W. 2d 488, 64 A. L. R. 2d 1147); and the Probate Court, in setting aside Mrs. Knight’s appointment, said:

“I did not realize . . . that this was the same estate where I had appointed the Bank as Administrator of this estate. Had I known that or realized that, or had been apprized of that fact by anybody, I would not have made the second appointment. No doubt she is a fine lady and all that but I had already made an appointment and I don’t think it was proper for me to make another one. Therefore, the second one will be set aside . . . I think it is to the best interest of the estate that Worthen Bank and Trust Company continue to act as Administrator of this estate. I think it has been well handled.”

The order of the Probate Court here challenged is in all things affirmed.

       By § 22-406, Ark. Stats, the terms of the Pulaski Chancery Court are the First Monday in April and October; and by § 22-503, Ark. Stats, the terms of the Probate Court are the same as the terms of the Chancery Court.


author: George Bose Smith, J.

text:
    Brittain v. Mammoth Spring Motor Co.
    5-2371
    345 S. W. 2d 373
    Opinion delivered April 17, 1961.

      Shelby C. Ferguson and H. M. Ellis, for appellant.

      Oscar E. Ellis, for appellee.
   George Bose Smith, J.

This is a suit by the appellee to collect an automobile repair bill of $281.21 and to foreclose a repairman’s lien upon the vehicle. The appellant failed to plead within the time allowed, and the court entered a default decree for the plaintiff. The appellant insists that the complaint does not state a cause of action and that the entry of the default judgment was therefore a reversible error. Thompson v. Dildy, 227 Ark. 648, 300 S. W. 2d 270.

The appellant is partly correct. The complaint does not allege a valid lien, for the account was not filed with the circuit clerk within 90 days after the work was done. Ark. Stats. 1947, § 51-409. The complaint asserts that the work was performed on March 20 and that the account was filed on June 29. An exhibit to the complaint indicates that the work may have been done on March 30, but even if that date is correct the account was still filed too late, as June 29 is the 91st day after March 30. Peebles v. Eminent Household of Columbian Woodmen, 111 Ark. 435, 164 S. W. 296; Pinnacle Old Line Ins. Co. v. Ellis, 228 Ark. 458, 307 S. W. 2d 882. Hence the court erred in entering a decree of foreclosure.

On the other hand, the plaintiff was entitled to a money judgment upon its verified account, without further proof. Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439. It is true that equitable jurisdiction depended upon the existence of a valid lien, but in the absence of a timely motion to transfer the case to law the chancellor was undoubtedly authorized to enter a money judgment for the amount due. Sessions v. Ballard, 160 Ark. 146, 254 S. W. 446.

The order of foreclosure is set aside, and with that modification the decree is affirmed.


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

text:
    Fite v. Fite.
    5-2373
    345 S. W. 2d 362
    Opinion delivered April 17, 1961.

      Spitzberg, Bonner, Mitchell & Hays, by Steele Hays, for appellant.

      House, Holmes, Butler & Jewell, and Darrell D. Dover, for appellee.
   Paul Ward, Associate Justice.

This is a suit to recover money on the ground of unjust enrichment. Appellee, Mrs. Bateman Fite, Sr., deposited to the joint account of her son and his wife the sum of $7,500 for the down payment on real estate in Little Bock, the title to which was taken in the name of the son and his wife by the entirety. A few months later th'e son died and the daughter-in-law refused to repay the money, resulting in this litigation.

The issues, being submitted to a jury on the testimony of appellee together with certain exhibits and the court’s instructions, were resolved in appellee’s favor against appellant individually and as executrix and, this appeal follows.

Prior to July 3, 1958, appellee (a widow) resided in Memphis, Tennessee. Likewise her son (J. Bateman Fite, Jr.) and his wife (Boneta L. Fite) lived in Memphis in a home which they owned by the entirety. For some months prior to the above mentioned date, Fite, Jr., had been working in Little Rock where he had secured permanent employment and where he and his wife had decided to purchase property and make their home. Apparently Fite, Jr., had practically completed arrangements to purchase from Lily M. Carmichael certain real estate in Little Rock described as follows:

Tracts 1, 2, 3, and 4, Comstock’s Addition to Little Rock: Also west half of the NW1/^ of the NW^A of Section 21, Township 1 South, Range 12 West, containing 20 acres, more or less, all in Pulaski County, Arkansas.

On the morning of July 3, 1958, Fite, Jr. called his mother (appellee) in Memphis and asked her to advance him $7,500 to make a down payment on the above described property. In response to this request appellee promptly deposited $7,500 in a Memphis bank to the joint account of Fite, Jr., and his wife, which account was then being maintained in said bank. On the same day above mentioned, Fite, Jr., wrote a check in the amount of $7,430.87 on the Memphis joint account and delivered it to the Little Rock Abstract Company as a down payment on the purchase price of the property heretofore described. On the same day Lily M. Carmichael executed and delivered a deed to said property to “J. Bateman Fite, Jr., and Boneta L. Fite, his wife.” Shortly thereafter Fite, Jr., and his wife occupied their new home in Little Rock. Approximately three months later Fite, Jr., died, whereupon the legal title in the Memphis and Little Rock property vested by law in Boneta L. Fite. A few months later appellee requested Boneta to repay the $7,500 and when she refused to do so suit was filed.

On the same day that Fite, Jr., and his wife received a deed to the Little Rock property they executed a mortgage on said property to the Pulaski Savings & Loan Association to secure the payment of $20,000, and on the same day they executed a second mortgage on the property to Lily M. Carmichael to secure the payment of $2,000. On March 10, 1959, Boneta sold a portion of the Little Rock property (described by metes and bounds) consisting of 4.41 acres for $29,000 and on June 30, 1959, she sold the Memphis residence and received in excess of the sum of $7,500 over and above the cost of sale and mortgage thereon. About the same time she sold the rest of the Little Rock property for $5,000. Boneta was appointed executrix of the estate of her husband. The only judgment questioned on appeal is the one entered against Boneta individually.

The complaint in the Circuit Court, after stating many of the facts above related, further stated that the acceptance and use of the said loan of $7,500 by Boneta Fite (hereafter referred to as appellant) constitutes a ratification of the loan from appellee; that the gross assets of Fite’s estate do not equal $7,500; that appellant had sold all real estate bought in Little Bock and Memphis for an amount of about $13,000 over and above all indebtedness on the property, and; that appellant “used the proceeds of said $7,500 for her own use and benefit and is legally and equitably obligated to return said sum . . .’’to appellee. Later the complaint was amended to state: “That the defendant, Boneta L. Fite, knew of the acts of her husband in making said loan for their joint benefit and has ratified said loan agreement and the acts of deceased as her agent by accepting, with knowledge express or implied, the benefits of said agency and loan agreement.” After appellant’s demurrer to the above complaint and amended complaint had been overruled, by the trial court, she filed an answer containing a general denial.

The decisive questions for decision are whether the trial court erred in submitting the issues to the. jury on the principle of unjust enrichment, and whether the facts in this case sustain an application of that principle.

We find no fault with appellant’s definition of the principle of unjust enrichment as copied from Vol. 2 B. C. L., p. 778, as follows:

‘ ‘ Though an action at law it is equitable in its nature, and is said to resemble a bill in equity, and to lie wherever a bill in equity would lie. ... it is not dependent, however, upon an express promise, or even upon one implied in fact, but is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it ... ”

In the same connection appellant quotes extensively from Yol. 4, Am. Jur., Assumpsit, Sec. 20, (p. 508) from which we quote as follows: '

‘ ‘ The action for money had and received ..was invented by the common-law judges to secure relief from the narrower restrictions of the common-law procedure which afforded no remedy in too many cases of merit. . . . But the action should not be held to apply to.. a case, under the facts of which a court of equity itself, were the plaintiff at liberty to go there, would not entertain a bill and grant the relief asked. The action is liberal in form and greatly favored by the courts. ... It lies where there is an express promise, . . . [but] The action is not dependent, however, upon an express promise, or even upon one implied in fact, although the action is contractual in form. The action for money had and received is founded upon the principle that no one ought unjustly to enrich himself at the expense of another, and it is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it . . . ”

In Yol. 58, C. J. S., Money Received, Sec. 4, (p. 913) we find many expressions' in harmony with the above quotations. The following extracts are typical:

“The question, in an action for money had and received, is to which party does the money, in equity, justice, and law, belong. . . . The main principle by which to test the matter is whether in equity and good conscience, in view of the special facts of the case, defendant is entitled to retain the money as against plaintiff, ...”

We find that the principle of unjust enrichment is more frequently applied in courts of Chancery, but as heretofore noted, it is also recognized in courts of law. It has been approved by this court as applied to a law court in the case of Arkansas National Bank v. Martin, 110 Ark. 578, 163 S. W. 795. This case was tried in Circuit Court of Garland County on dissimilar facts but involving the principle of unjust enrichment. In sustaining the application of said principle the court approved the following enunciation by the Supreme Court of Minnesota in the case of Brand v. Williams, 29 Minn. 238, 13 N. W. 42:

“ ‘An action for money had and received can be maintained whenever one man has received or obtained possession of the money of another, which he ought, in equity and good conscience, to pay over. This proposition is elementary. There need be no privity between the parties, or any promise to pay, other th'an tlvat ivhich results or is implied from one mm’s having another’s money, which he has no right conscientiously to retain.’ ” (Emphasis supplied.)

In the case of Patton v. Brown-Moore Lumber Company, 173 Ark. 128, 292 S. W. 383, this court, in discussing the-same question, said: “. . . the law implies a promise only when, under the circumstances and proof, it would be the duty of the defendant to make such a promise.”' Appellant directs our attention to the case of Anderson v. Anderson, 155 Kansas 69, 123 P. 2d 315, where it was said: “While it is said that a defendant is liable if ‘equity and good conscience’ requires, this does not mean that a moral duty meets the demands of equity. ,There must be some specific legal principle or situation'which equity has established or recognized to bring á case within the scope of the doctrine.”

Appellant strongly contends that the facts in the case under consideration, when considered in connection with the principle heretofore set out, are not sufficient to justify the verdict of the jury and the judgment of the court in favor of appellee as against appellant individually. It is a fact that nowhere in the testimony of appellee (the only witness to testify) did she state that appellant promised to repay the money. She also said she did not know of her own knowledge that appellant knew of the existence of the loan. The vital question therefore appears to be whether the jury was justified in concluding, from all the evidence and from all inferences reasonably deducible therefrom, that appellant had knowledge of the source and purpose -of the advancement by appellee. If she did have such knowledge then she was undoubtedly obligated to repay.

Appellee’s testimony in this connection, in addition to the facts heretofore stated, is substantially as presently set forth. My daughter-in-law made trips to little Rock during May and June in 1958 looking for a residence, and she selected the Carmichael home in Com-stock Addition; about 11 o’clock on July 3, 1958, my son called me and asked me if I would loan kirn and Boneta $7,500 and I told him that I would; he advised me that the money was to he a down payment on the home they were buying; their house in Memphis had not been sold and they needed a down payment on the Little Rock house and he asked me if I would lend him and Boneta $7,500 until the Memphis house was sold; I made out my check to my son and his wife and it was deposited in the Memphis bank to their joint account as my son directed; I did not ask him to sign a note or mortgage since he said the money would be repaid when the Memphis house was sold and that he had no other source of repaying the money. Soon after July 3, 1958, my son and his wife moved to Little Rock permanently; about that time their home in Memphis was listed for sale and continued to be during July and August; I went over to Little Rock and stayed with my son and his wife about the first of September and assisted them in moving; I did not mention the loan to my son or Boneta at that time because I knew they did not have the money until the Memphis property was sold and I knew it had not been sold as I had a key to the house, and it was not sold at the time of my son’s death on October 31, 1958. I did not discuss the loan with my daughter-in-law at the funeral because it wasn’t appropriate and I knew her house in Memphis hadn’t been sold; I had one letter from Boneta about a month after the funeral and she said nothing about the place, but I called her in January of 1959 because I had not heard from her and I knew she was aware of this debt; I said to her “Bonny”, I would like to know what you are going to do about this debt of $7,500 — of course you know about it. I would like to know what plans you are making toward paying it; at first she didn’t say anything and then she said “I don’t know anything about it.” 1 said I told her she knew my son got the money and she said she knew he got it some place but didn’t know where, and she dropped off the conversation and said “I feel sorry for you” and I haven’t heard from her any more.

As we have frequently said, and as we have already intimated, a jury can draw reasonable inferences from testimony. From the uncontradicted testimony above set out we think the jury could have reasonably concluded that appellant knew where the $7,500 came from and the purpose for which it was to be used and was used. She helped her husband select the Little Rock property and (as she admits) she knew her husband got the money from some source. The check for $7,500 was made out to her (and her husband) and it was deposited to her (and her husband’s) account; and it was used to buy the property she (and her husband) selected to buy. According to the uncontradicted evidence she gave a hesitant reply when she was told by appellee in January, 1959 that she knew about the loan. In addition there is the perhaps significant circumstance that, after she knew she was expected to repay the $7,500, she sold not only the Memphis property but all of the Little Rock property without saying anything to appellee and kept the proceeds. It is true there is an absence of any evidence of a direct promise by appellant to pay, but, as we have already pointed out, such promise can be implied (and we think it is here) from the facts and circumstances.

We must, as we have frequently held, view .the testimony in the light most favorable to support the judgment of the trial court, and when so viewed (and in the absence of any objections to the court’s instructions) we have concluded the record contains substantial 'evidence in this case to support the verdict of the jury and the judgment based thereon.

Affirmed.

George Rose Smith, J., dissents.

George Rose Smith, J.,

dissenting. This, dispute was submitted to the jury under a sweeping instruction which permitted a verdict for the plaintiff if the jury should find that in equity and good conscience the money ought to be repaid by the defendant. It is not surprising that the jury returned a verdict for the plaintiff, because her unhappy predicament would appeal to anyone’s sense of fairness. It is surprising to me, however, that the judgment is being affirmed, for I can discover no legal theory to support the decision.

If Bateman Fite had borrowed money from his mother or from anyone else for general purposes and had used the funds to purchase property as a gift to his wife it is plain enough that she would have been under no personal obligation to repay the loan. It is equally plain that if Bateman had used such a general loan in the purchase of property as an estate by the entirety his widow would have succeeded to the title upon his death without being personally liable for the debt. In these examples, as in the case at bar, it would obviously be against equity and good conscience for the wife or the widow to keep the property without repaying the loan. In fact, a similar inequity occurs whenever a widow, as the surviving tenant by the entirety, acquires clear title to property despite the fact that her husband’s estate proves insufficient to pay his outstanding debts.

The point is that considerations of equity and good conscience are not alone a valid basis for imposing personal liability upon this appellant. If she is responsible for her husband’s debt it must be because she either expressly or impliedly agreed to repay the loan. It is conceded that there was no such express agreement. The majority succeed in finding an implied promise, but I submit that the opinion overlooks the fact that such an obligation must be implied from the appellant’s own conduct. In the absence of an agency, which was not proved here, we cannot imply a promise on the part of the appellant from the words or the actions of her husband or her mother-in-law.

There are really only three circumstances in the record that have even a remote bearing upon the issue of implied promise. First, the appellee’s check for the money lent was made payable to Bateman and his wife jointly. This fact doubtless proves that the appellee meant to make a joint loan, but it sheds no light whatever upon the appellant’s state of mind. The appellant did not even see the check, which was made ont and deposited in Memphis by the appellee at a time when the appellant was admittedly in Little Rock. As far as the appellant is concerned the check might just as well have been payable to her husband alone or even to bearer.

Secondly, the check was deposited to the joint bank account of Bateman and the appellant. This fact plainly has no bearing upon the appellant’s state of mind unless we are to say, as of course the majority do not say, that a wife becomes personally liable for her husband’s debt whenever he borrows money and places it in the joint family bank account.

Finally, the jury might fairly have assumed, without direct proof, that the appellant knew (a) that her husband had obtained the loan in question for the expressed purpose of making a down payment upon the home already selected, (b) that the money was actually being so used, and (c) that title was being taken as an estate by the entirety. This assumption seems to be the-real basis for the majority’s imposition of liability, for the opinion declares: “The vital question therefore appears to be whether the jury was justified in concluding, f^om all the evidence and from all inferences deducible therefrom, that appellant had knowledge of the source and purpose of the advancement by appellee. If she did have such knowledge then she was undoubtedly obligated to repay.”

I am unable to agree with this conclusion. A promise ought not to be implied from bare knowledge, unaccompanied either by affirmative conduct or by inaction that is equivalent in the circumstances to affirmative conduct. If the appellant impliedly promised to pay the debt she must have had a choice in the matter and she must have indicated in some way her election to assume personal responsibility for the debt. Such evidence is wholly lacking.

The most that can be said is that the appellant presumably learned from her husband that the loan in question had been obtained from the appellee for the purpose of making the initial payment upon the Little Rock property. Should the appellant have arisen in protest and denounced the whole transaction, insisting that her name be omitted from the deed to avoid the personal responsibility that would otherwise befall her? Of course not. No wife should be expected to behave in any such manner as that. I am firmly convinced that there is no basis in this record for attributing to the appellant a tacit promise to repay her husband’s debt. The judgment should be reversed and the cause dismissed.


author: Paul "Ward, Associate Justice.

text:
    Nations v. Barnett.
    5-2374
    345 S. W. 2d 368
    Opinion delivered April 17, 1961.

      Paul Jameson and O. E. Williams, for appellant.

      James B. Hale, for appellee.
   Paul "Ward, Associate Justice.

Appellant filed a suit in the Circuit Court in ejectment, alleging that he was the owner of Lot 7, Block 5, Original Town of Prairie Grove and that J. C. Barnett and Grace Barnett, his wife, were in possession. The prayer was for possession. After suit was filed J. C. Barnett died and the suit was revived in the name of Grace Barnett, Jack Barnett and Kathryn Barnett Couch. By an amendment to the complaint appellant deraigned his title to said Lot 7 as follows: November 10, 1941, sold for assessed taxes, penalty and costs; certified to the State January 27, 1944; on February 20, 1946, the State confirmed its title; and on February 15, 1955, the State Land Commissioner executed a deed to appellant, and on September 10, 1959 he executed a correction deed.

On October 16, 1959 appellees answered and set out the following defenses: (a) said Lot 7 was deeded to J. C. Barnett and Grace on March 12,1941; (b) appellees went into possession of' Lot 7 (no date specified) and have been in actual, open, continual and hostile possession ever since; and (c) the deed upon which appellant relies is void because said lot “sold for a greater amount of taxes, penalty and costs than was due thereon.” Some twenty other reasons why the tax deed was void are set out also but not developed at the trial.

Appellant thereupon filed a motion to transfer to equity in view of the fact that appellees sought to cancel his tax deed. The motion was denied.

An amended answer was filed by appellees alleging : (a) the State had no title to convey to appellant, and (b) . the State and County has every year since 1940 assessed, levied and collected taxes on Lot 7, and that they have paid the same, and thus the State was estopped to assert any claim on Lot 7 or to convey the same. Other pleadings were filed but they are not material to this opinion.

After a full hearing, the trial court sitting as a jury, directed a verdict in favor of appellees and dismissed appellant’s complaint. The reason assigned by the court for so holding was that “the deeds to plaintiff covering” Lot 7 “are void and of no effect.”

Since we have decided that the judgment of the trial court should be reversed and that the cause should be transferred to equity, we will set out only the facts necessary to explain and justify this conclusion.

(a) Appellant showed he had a prima facie title to Lot 7. It is undisputed that Lot 7 sold for taxes, that it was deeded to the State, and that appellant received a deed from the State in 1955. We think it is immaterial that the State deed in 1955 described the property as Lot 7, Block 5 “in the City of Prairie Grove” when a more exact description might have been (as shown in the 1959 correction deed) Lot 7, Block 5 “Original Town of Prairie Grove.” It appears to us that the first description was sufficiently definite to locate the property in the absence of any evidence to the contrary. If there is such evidence the burden was on appellees to produce it. The record also shows that appellant has paid taxes on said Lot 7 since the date of his deed to and including the year 1958. It further shows that Lot 7, Block 5 has been carried on the tax books for all years pertinent to this litigation.

The above, we think, constitutes a prima facie title in appellant which entitles him to maintain an action in ejectment. In Cooper v. Newton, 68 Ark. 150 (at page 153), 56 S. W. 867, in an ejectment action, this court said: “Plaintiff Cooper, by his quitclaim deed from Mrs. N. M. Huffman, shows a prima facie perfect title to the lands claimed in his complaint, which gives him the right to recover same, unless there is proof that defendant has a better title.”

In this case appellees attempt to defeat appellant’s action by showing (a) they have a better title, and (b) appellees’ tax title is void.

(a) We find that appellees have failed to show a better title, or any title, to Lot 7. The deed from W. J.. Quick to J. C. and Grace Barnett, dated March 12,. 1941, referred to above describes certain property by metes and bounds in the SW% of SW1/^ of Section 18,. Township 15 North, Range 31 West, and also in Block 5 in “the town of Prairie Grove,” and then ends with: “Being a part of Lots 5, 6, 10, 11, 12, 13, 14, 15 and 16 in Block 5 of the Original Plot of the Town of Prairie Grove.” Lot 7 is not mentioned in the description. The' record shows that appellees have paid tax (not on Lot 7) but on part of Lots 5, 6, 10, 11, 12, 13, 14, 15 and 16,. until 1951 and thereafter on a “part of Block 5.”

Thus it is apparent from the above that appellees, have no record title to Lot 7 or any part thereof unless it appears in the metes and bounds description heretofore mentioned. Appellees called as a witness a surveyor who had made a survey (or rather a partial survey) of the lands described in the Quick deed, but when the trial judge attempted to elicit from him information on this vital point appellees objected and the matter was-not pursued to any definite conclusion. The result is that we are unable to determine to a certainty whether the Quick deed actually includes any part of said Lot 7. The witness did state positively that it did not include all of Lot 7.

(b) Neither can we affirm the trial court’s judgment dismissing appellant’s complaint on the ground that his tax deed was “void and of no effect.”

First, until appellees have shown that they have some color of title to Lot 7 they are in the position of trespassers, and are strangers to the title. In such position they have no right to challenge appellant’s title. Wilson v. Murray, 188 Ark. 312, 66 S. W. 2d 622 and Kilpatrick v. Kilpatrick, 204 Ark. 452, 162 S. W. 2d 897.

Moreover, even if appellees had a right to challenge appellant’s tax deed (which is not shown), we think the evidence produced was inconclusive on that point. It was shown that Lot 7 was sold for $1.83 including taxes, penalty, and costs. Appellees contend this amount was excessive based on 9 mills for State purposes, 5 mills for county general purposes, and 3 mills for the road and bridge fund, all based on an assessed valuation of $25. Since all of the pertinent records were not introduced we are in no position to say appellees have discharged the burden of showing the tax sale was for an excessive amount. We also note that appellees throughout the trial repeatedly insisted they were not trying to cancel appellant’s tax title, which could have tended to mislead appellant in failing to fully develop the issue involved on this point.

Nor can we agree with appellees’ contention that appellant’s tax deed is void and that the State was estopped to claim title to Lot 7 because they were thwarted in a good faith endeavor to pay taxes on the lot. The reason we can’t agree is that there is nothing of record to show appellees tried, or had a duty, to pay taxes on said lot.

In view of what has heretofore been said we conclude that the judgment of the trial court voiding appellant’s tax deed must be reversed, and in view of the nature of appellees’ defenses set forth in their answer we have concluded that the case can be better developed and justice better served by remanding the cause with directions to transfer the same to the Chancery Court. It is so ordered.

Reversed and remanded with directions.


author: Jim Johnson, Associate Justice.

text:
    Mears v. Rood.
    5-2351
    345 S. W. 2d 374
    Opinion delivered April 17, 1961.

      Spitzberg, Bonner, Mitchell & Hays and Beresford L. Church, Jr., for appellant.

      Wright, Lindsey, Jennings, Lester & Shults and Moses, McClellan, Arnold, Owen & McDermott, by Wayne W. Owen, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a chancery decree denying rescission of a contract.

The lawsuit was filed by the appellant, Carl A. Mears, to rescind a conditional sale contract dated May 26, 1958, under which the appellant purchased a 1956 Reo truck tractor from the appellee, Fred R. Rood, d/b/a Diamond T Sales and Service Company, for a total time price of $3,864.48, payable at the rate of $161.02 per month. The contract had been promptly assigned by Fred Rood to the appellee, Universal C. I. T. Credit Corporation.

The complaint alleged in part that there was failure of consideration for the contract by reason of the failure of appellee, Rood, to produce and assign a title certificate to appellant and that as assignee of the conditional sale contract it became the duty of the appellee, Universal C. I. T. Credit Corporation, to produce a title certificate to be assigned to the appellant which it failed to do.

The appellant in his complaint prayed for a decree cancelling’ and rescinding’ the contract and for judgment against the appellees in the amount of $3,059.38, which was the amount paid by appellant Mears under the contract.

The appellee, Fred R. Rood, filed a general denial in answer to the complaint.

The appellee, Universal C. I. T. Credit Corporation, admitted in its answer to the appellant’s complaint that the purchase was made, that the contract was executed on a form provided to Rood by Universal 0.1. T., that the contract was immediately assigned to Universal C. I. T. by Rood, and that the contract provided for payment by the appellant to the holder of $3,864.48 at the rate of $161.02 per month, but denied the other allegations and prayed for a dismissal of the appellant’s complaint.

By amendment to its answer Universal C. I. T. Credit Corporation alleged that the appellant was estopped to rescind the contract and contended that it was under no obligation to furnish a certificate of title to the appellant.

After hearing all of the evidence presented, the trial court held that the appellant was not entitled to rescind the conditional sale contract nor to have judgment for any part of the amount paid thereunder and dismissed the appellant’s complaint.

From such holding comes this appeal. For reversal appellant relies upon only one point; his contention is as follows:

“The failure and refusal of the appellees to obtain, assign and deliver to the appellant a certificate of title or other satisfactory evidence of title for the Reo truck constituted a failure of consideration which warranted rescission of the conditional sale contract by the appellant. ”

The record reveals that after appellant Mears purchased the truck tractor from appellee, Rood, on May 26, 1958, lie (Mears) immediately leased the same to the ■Champion Oil Company on an over-the-road haul at 121/2^ per mile with the lessee furnishing everything but the upkeep on the tractor, and for the first five months of such operation he collected $634.35 per month for such rental.

It is undisputed that at the time of the purchase the seller did not have in his possession a certificate of origin nor a certificate of title as such are known under the Uniform Motor Vehicle Administration, Certificate of Title, and Antitheft Act because of the absence of such certificate, the seller went with the purchaser to the Commissioner of Revenues and there procured the registration and a license plate for said truck. The registration and the license plate were good until August 1, 1958. When the time came for the truck to be relicensed, that is just prior to August 1958, the purchaser went without the seller’s accompanying him to the Revenue Department and relicensed the truck with a new plate for the year August 1,1958, to August 1,1959. The truck was used until August 1, 1959, at which time the purchaser did not have the money to pay for a new license for the truck nor did he have any use for the truck, his contract with Champion Oil having expired. He became delinquent in his payments to Universal C. I. T. and in March 1960, it repossessed the truck.

The Uniform Sales Act, Ark. Stats. Anno. Sec. 68-1469, provides in part as follows:

“ (1) Where there is a breach of warranty by the seller, the buyer may, at his election—

# # #

“(d) Rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid.

# # #

“(3) Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty ivhen he accepted the goods, or if he fails to notify the seller within a reasonable time of the election to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale.” [Emphasis supplied.]

It is undisputed that the truck tractor here involved was bought on the 26th day of May 1958, and was kept by the purchaser until March of 1960, which was almost two full years from the date of the purchase. Likewise, appellant’s testimony is undisputed that he knew there was no title to the truck at the time he and Fred Rood went to have it licensed and at the same time some two months later when he went by himself to have it licensed; that he operated the truck during that extensive period of time and failed to take any action against the seller or in any way sought to rescind the sale until such time as he had defaulted in his payments. In the case of Logue, et al., v. Hill, 218 Ark. 797, 238 S. W. 2d 753, this Court had occasion to pass upon a fact question analogous with the question here presented. In that case Hill sold a second hand tractor to Logue, who had never owned a tractor, upon the representation that the tractor was in first class condition. Logue took the tractor and kept it during the spring, summer and fall of the year of purchase. After Logue had harvested his crops with the tractor, Hill brought a suit against him for the purchase price in which Logue defended upon the grounds that there had been a breach of warranty as to the condition of the tractor. The trial court found that there had been a breach of warranty and allowed Hill to recover the full purchase price for the tractor except the sum of $240 which Hill proved he spent to repair the tractor. Both Hid and Logue appealed. This Court concurred with the trial court in its opinion that there had been a breach of warranty, but in holding against Logue had this to say:

“Logue claims that he rescinded the purchase contract as soon as he found the tractor to be defective; and therefore he says he is not liable for any part of the purchase price. He claims rescission under Sec. 68-1469, Ark. Stats., which provides in subdivision (1) (d): ‘Where there is a breach of warranty by the seller, the buyer may, at his election . . . rescind the contract to sell or the sale and ... if the goods have already been received, return them or offer to return them to the seller . . .’

“But in making this claim for rescission, Logue has failed to bring himself within the requirement of subdivision (3) of the same Statute, which reads:

‘ ‘ ‘ Where the goods have been delivered to the buyer he cannot rescind the sale . . . if he fails to notify the seller within a reasonable time of the election to rescind . . .’

“The evidence in the case at bar shows that Logue kept the tractor, used it all during the spring and summer of the crop year, and made no offer to return it until after he had gathered his cotton crop in the fall of the year. Logue’s own witnesses placed a value of several hundred dollars on the tractor independent of the value of the attachments. From the evidence, it is apparent that Logue did not rescind within the time and manner required by the Statute. Thus, all the relief that Logue can claim is that provided in subdivision (1) (a) of the same Section, which says: ‘Where there is a breach of warranty by the seller, the buyer may, at his election . . . keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution . . . of the price ’; ”

Also see: Cross v. Rial, 227 Ark. 1124, 305 S. W. 2d 129.

Applying this rule to the undisputed facts summarized above, we have no choice but to conclude that the weight of the evidence supported the Chancellor’s decree holding that appellant waived his rights to rescission.

Affirmed.


text:
    Squires v. Beaumont.
    5-2385
    345 S. W. 2d 465
    Opinion delivered April 24, 1961.

      Fred A. Newth, Jr., for appellant.

      Charles A. Brown, for appellee.
   Carretón Harris, Chief Justice.

Appellant and appellee were associated for some time in the construction business, and constructed a number of buildings. In general, W. E. Beaumont, Jr., appellee, negotiated for the business, acted as the contractor, and appellant, Elmer A. Squires, would do the actual construction work. From their last venture, comes this litigation. Appellee was contacted by the owners of the Zimmerman Nursing Home in Carlisle, and asked to prepare construction plans for enlarging the building, and have same approved by the State Board of Health; he was further requested to make an effort to get a loan from the Small Business Administration. An application was made on behalf of the Zimmerman’s, but the loan was declined, because the biggest part of the Zimmerman collateral was. .a rice farm, and the SBA required that the farm be disposed of, and the money obtained invested, before the loan would be approved. Carl Kittler, who lived near Stuttgart, agreed to buy the farm, and orally contracted with the parties hereto for additional work on the farm house at a cost of $1,700. The farm was deeded to Beaumont and Squires jointly; they, in turn, deeded it to Kittler, and the latter, after making part payment in cash, became indebted to these parties in the amount of $5,700.00, for which a mortgage and note were given. Likewise, several judgments, totaling $2,534, on the Zimmerman property were paid by Beaumont and Squires, each paying one-half, in order to obtain the loan from. the SBA. As construction progressed, changes (from the original plans) were made in both the nursing building and the Kittler home. Following completion of the projects, Beaumont and Squires discussed settlement.' There Avas a dispute about the amount due each, principally because of the changes that had been made, Squires contending that he Avas due more money, because of such changes. The parties met on December 8th, but could not agree; however, on December 10th, a Thursday, they again met and reached an agreement. Pursuant to the terms of their agreement, Beaumont endorsed the mortgage and note which the parties had received from Kittler, and turned same over to Squires; the latter, in turn, gave Beaumont his personal check for $2,000.00, and executed a release. According to appellee, appellant told him that he (Squires) did not have enough money to cover the check, and requested Beaumont to hold it until the following Monday. Appellee agreed to do so. The following day (Friday), the Kittlers paid off the mortgage and note, in the amount of $5,933.50 (including interest); however, on advice of their attorney, the check was made payable to Squires and Beaumont jointly. Squires took the check to Beaumont’s home, and had it endorsed by appellee. The following day (Saturday), Beaumont, by telephone, verified his signature to the bank at Carlisle, and Squires cashed the check. Beaumont presented the $2,000.00 check, given him by Squires, to the First National Bank of Little Rock on Monday, but was advised that payment had been stopped on the check. On contacting appellant, appellee was told that payment had been stopped because the amount of the settlement was incorrect. Beaumont instituted suit for the $2,000.00, and Squires answered and filed a cross-complaint, alleging Beaumont was still indebted to him in the amount of $5,075.62. The case came on for trial, and at the conclusion of the testimony, appellee moved for a directed verdict. This motion was granted by the Court, and verdict returned for Beaumont in the amount of $2,000.00. From such judgment, comes this appeal.

The transactions between the parties appear to total more than $45,000. The following are undisputed: Beaumont promised to pay to Squires $41,800 for the Zimmerman Nursing Home construction; $40,000 was paid before the settlement. Appellee promised to pay to appellant $1,700 for the Kittler home construction, and paid this amount before the settlement. Squires paid $1,267 toward settlement of outstanding judgments on the Zimmerman property in order that the work could proceed. The dispute, as heretofore stated, centers over extra work done on both the Zimmerman and Kittler jobs, and over the ownership of the Kittler note. Since we are of the opinion that the release executed by appellant had the effect of settling the rights between the parties, it is deemed unnecessary to discuss the various phases of the controversy. Squires admitted that all of the changes made in the Zimmerman Nursing Home were discussed at the time of the settlement; also, that all changes made in the Kittler home were discussed at the same time. It would certainly seem that the ownership of the Kittler note was discussed, since the note was assigned by Beaumont to Squires at the time of the settlement. All records were available to both parties during the period of the discussions. There is no proof that appellant was defrauded, or misled by appellee; nor any evidence that Beaumont concealed information. The strongest evidence offered by Squires was that he had forgotten certain expenditures that he had made. Appellant testified that he awakened during the night after giving Beaumont the $2,000 check, and remembered that he had not been given credit for the amount that he had paid on the Zimmerman judgments. Admittedly, the thought of stopping the check occurred to him the same night. “I thought about it the night I gave it to him, then I dropped it from my mind.” However, despite this fact, Squires said nothing to appellee, but instead, received the check from the Kittlers, obtained the endorsement of Beaumont to same, and proceeded to cash it. According to his own testimony, therefore, he was aware of any alleged disparity in the settlement before cashing the check; nevertheless, he cashed same, and stopped payment on his own check to Beaumont.

Applying the general principles controlling this case, let it first be said that the law favors settlements and compromises. Burke v. Downing Company, 198 Ark. 405, 129 S. W. 2d 946.

Since the execution of the release is admitted by Squires, the burden is on appellant to prove facts- sufficient to set aside such release. As was stated in Lamden v. St. Louis S. W. Ry. Co., 115 Ark. 238, 170 S. W. 1001:

“Appellant attempted to avoid the effect of the release by showing it was obtained when her condition was such that she was not competent to contract, and because of misrepresentations, amounting to fraud, in its procurement. The burden of proof was upon him to show that the release was executed or procured under such circumstances as would relieve his deceased from the binding force of the instrument shown to have been executed by her.”

We find no sufficient or substantial evidence that would justify setting aside the release, and it follows that the trial court was correct in directing a verdict for appellee. It might be added that even though the proof reflected that Squires was taken advantage of in the settlement, his cashing of the check would serve as a ratification. In Minton v. Hall, 218 Ark. 92, 234 S. W. 2d 515, this Court said:

“Assuming that the release had been procured as alleged by the appellee, his taking advantage of the settlement by depositing the check to his credit was a ratification of such release, for if he had been deceived he learned the truth and it was his duty to disaffirm the •contract as quickly as reasonable diligence would allow, and, having failed to do so and deriving all possible benefit from the transaction, he cannot now be relieved as by his conduct he has waived all benefit of and relief from misrepresentations (cases cited).”

See also Lamden v. St. Louis S. W. Ry. Co., supra.

Appellant avers that he could not be bound under the theory of ratification, for he contends that the amount due him is in excess of what he received from the Kittler notes; i. e., he would have been due that amount irrespective of the controversy. However, from an examination of the record, it appears that the only undisputed amounts are an $1,800 balance on the Zimmerman contract; $184.50 for a water fountain, and possibly a payment of $1,267 on the Zimmerman judgments. All other phases were very much in dispute at the time the settlement was reached. The total of the undisputed items, as set out, does not equal the net amount received by Squires through the Kittler check. Be that as it may, the litigation is determined by our finding in the preceding paragraph.

Affirmed.

       Whether he requested Beaumont to hold the check until Monday was not mentioned by Squires in his testimony.

       Judgment was also entered against the First National Bank of Little Rock in this amount as garnishee, a garnishment having been obtained before judgment, and the bank having answered that it was holding $2,000.00 belonging to Squires.

       It is not clear whether Beaumont disputed this item.


text:
    Dick Conway Motors, Inc. v. Caldwell-Douglass Co.
    5-2399
    345 S. W. 2d 630
    Opinion delivered April 24, 1961.
    [Rehearing denied May 22, 1961.]

      Henry W. Gregory, Jr. and H. Murray Claycomb, for appellant.

      Joe Holmes, Langston S Walker, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit to determine the priority between the holder of an unrecorded title retaining contract and a judgment creditor. During the fall of 1959 (Dec. 8) Dick Conway Motors, Inc., of Lonoke sold to Opie McPherson a new 1960 automobile under a title retaining instrument. At the request of McPherson, Conway Motors retained the manufacturer’s certificate of origin. Conway Motors assigned the conditional sales contract to a credit agency. When McPherson defaulted on his payments the credit agency requested Conway Motors to repurchase the contract which it did. After delivery of the automobile to McPherson, he had placed his own “dealer’s license” on it. McPherson failed to apply for registration, license, and issuance of a title certificate on this vehicle and never paid the sales tax thereon. The .automobile was never registered in Arkansas. On May 31, 1960 Caldwell-Douglass Company [appellee and plaintiff below] had execution issued on a judgment which it had obtained against McPherson and levy was made on the automobile sold by Conway Motors to McPherson. The sale of the automobile was made as •subject to no liens. The lower court granted a temporary stay of execution while a hearing was had upon the priority of liens. At the close of the hearing the court "below ruled that the levy of execution, by appellee, was •superior to the conditional vendor’s lien. The conditional vendor, Conway Motors [appellant], has appealed.

The appellant argues for reversal that the provisions of our recording acts [Acts 1949, No. 142] for 'Conditional sales, Ark. Stats., § 75-160 et seq., do not apply to the case of an unregistered motor vehicle. "We •do not agree. Our recent cases of West, Sheriff v. General Contract Purchase Corporation, 221 Ark. 33, 252 S. W. 2d 405, is contrary to the view which the appellant urges here. We there held that: “A claim arising from a conditional sales contract of a motor vehicle not filed with the Motor Yehicle Division of the office of the Commissioner of Revenues as provided by Act 142 of 1949 is not, with or without notice thereof, superior to a judgment lien. * * * The provisions of Act 142 of 1949 providing for the filing of title retaining contracts with the Motor Yehicle Division of the office of the Commissioner of Revenues are exclusive and mandatory. * * * Section 75-160, Ark. Stats., 1947, providing that no conditional sales contract is valid against the creditors of an owner acquiring a lien by levy, etc., until the statute has been complied with placed the burden on appellee of showing a superior claim to the car * * * and this burden was not discharged, ’ ’ and Ark. .Stats., §§ 75-160, 161 provide the exclusive method of giving notice. Sec. 75-160: “(d) If the vehicle is of a type subject to registration hereunder but has not been registered and no certificate of title has been issued therefor, then the certified copy of the instrument creating such lien or encumbrance shall be accompanied by an application by the owner in usual form for an original registration and issuance of an original certificate of title. In every such event such application shall be accompanied by the fee or fees as provided in this Act [§§ 75-101 — 75-191].” In the present case, attempted notice was given at the sale by McPherson informing the purchaser and the sheriff that Conway Motors held the conditional sales contract. Such notice is ineffective when viewed in the light of the legislative intent embraced in Act 142 above.

The judgment is affirmed.


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

text:
    Luther v. Gower, Mayor.
    5-2453
    345 S. W. 2d 608
    Opinion delivered April 24, 1961.

      Townsend $ Townsend, for appellant.

      William G. Fleming, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action to restrain the city officials of Mountain View from selling improvement bonds which will be secured by the levy of a ten-mill tax upon property within the city. Mountain View, as an incorporated town, proceeding under Ark. Stats. § 19-215, passed an ordinance raising the classification of the municipality from a town to a city of the second class. The ordinance also provided that the town should be divided into wards as designated by the city council and tor certain other regulations not pertinent here. As provided in Ark. Stats. § 19-215 an election was held on the change in classification. A majority of the voters approved the change in classification to a city of the second class. The vote was 217 for the change and 55 against. Thereafter the city held its elections for officers on the even numbered years as provided by law for cities of the second class under Ark. Stats. § 19-1101. This was done in 1956, 1958 and 1960. However, Ark. Stats. § 19-1101 et seq contemplate that aldermen will be elected by wards. In the present case, though the ordinance relating to a change in classification contained a provision for the division of the municipality into wards, the city council neglected to make such a division and aldermen continued to run at large during the years 1956, 1958 and 1960 as had been the previous practice when the municipality was a town. On April 1, 1960 the city council undertook to exercise the powers of a city of the second class by the passage of an ordinance calling an election upon the question of issuing $50,000.00 in improvement bonds. This election was held on May 10, 1960, after the publication and notice as required by Amendment 13 to the Arkansas Constitution, but the notice specified only one polling place, the county library. Under the provision of Ark. Stats. § 19-1101.3 cities of the second class must provide a voting precinct in each ward. As previously noted, the city council had not divided the city into wards. The present appellant prayed for an injunction in the court below on the grounds that the city council was not properly constituted, having not been elected by wards and that the bond election was void since only one polling place was used. The lower court refused to grant an injunction and this appeal followed.

We have concluded that the city government of Mountain View was properly constituted as that of a city of the second class and that the issuance of bonds under Amendment 13 is within the legal authority of the city and further that the bond election is not void because only one polling place was used.

There are a number of reasons for the above conclusion. In the present case the town of Mountain View, following the statutory procedure after an election at which the majority of the voters approved a change in classification, filed with the Secretary of State' a certified copy of the ordinance. Ark. Stats. § 19-215 provides that “thereupon said incorporated town shall become a city of the second class, and the officers of the incorporated town shall upon filing, immediately become officers of the city of the second class and to serve as such for the full period for which they were elected or until their successors are elected and qualified.”

We can conceive of no plainer language of legislative intent. The statute contemplates that upon filing of a certified copy of the ordinance the town officers immediately become officers of a city of the second class with the powers thereof. The language used in the statute admits of no delay or lapse of time in the change in the classification of a town to that of a city of the second class, and its officers from officers of a town to those of a city of the second class. When viewed in the light of previous statutes on the subject and the cases construing these statutes the language in the present statute was probably inserted to avoid the result of such cases as Lewis v. Tate, 210 Ark. 326, 195 S. W. 2d 640 where a delay in the election of officers led to the voiding of a bond election. That there may be no mistake about it, we specifically hold that when a certified copy of the ordinance is filed with the Secretary of State as required, the town becomes a city of the second class and the officers thereof officers of a city of the second class. Since Mountain View complied with the statute in the present case, the city officials properly constituted the city government.

It is also argued that the failure to divide the city into wards has destroyed the efficacy of the city government and especially the special election called for the purpose of issuing bonds for city improvement. This contention is based upon Ark. Stats. §§ 19-1101, 19-1101.1, 19-1101.3 and 19-1113 which deal respectively with the election of aldermen from wards, the number of aldermen from each ward, the requirement of a voting precinct in each ward, and the duty of the city council to create wards on an equal population basis. As pointed out previously, the city of Mountain View failed to establish wards in the city as required by city ordinance and Ark. Stats. § 19-1113. However, we think that such a requirement falls under the well established rule which we have announced many times in other cases, that election procedures which are mandatory before an election are only directory after the election. Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257, Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280. The failure of city officials to perform a ministerial duty will not he allowed to defeat the will of the overwhelming majority of the electors. Christenson v. Felton, 226 Ark. 985, 295 S. W. 2d 361. We do not think that the failure of the city council to divide the city into wards in anyway vitiated the authority of the duly elected aldermen to conduct official business. What we have said here applies with equal force to the requirement of a polling place in each precinct. As a matter of interest we point out that the city of Mountain View has now complied with the requirements of the statute by a special election of December 27, 1960 and the city is now divided into wards.

Finding no reversible error, the judgment is affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring. My concurrence is for the purpose of emphasizing the legislative change that has been made since the opinion of this Court in Lewis v. Tate, 210 Ark. 326, 195 S. W. 2d 640. That case was decided on July 1, 1946, when the applicable statute was Act No. 211 of 1939. To overcome the effect of the holding in Lewis v. Tate, supra, the 1947 General Assembly adopted Act No. 227, which amended Act No. 211 of 1939. The language in Section 1 of the Act No. 227 of 1947 clearly states that after the town authorities have filed the certified copy of the ordinance with the Secretary of State, then the town becomes a City of the Second Class for all intents and purposes. The Legislature had the right to adopt Act No. 227 of 1947 and thus overcome the effect of our holding in Lewis v. Tate; and under the Act No. 227 of 1947 the decree of the Chancellor was in all things correct.


author: Ed. F. McFaddin, Associate Justice.

text:
    Hobbs, Excr. v. Dowds, Gdn.
    5-2346
    345 S. W. 2d 925
    Opinion delivered April 24, 1961.
    [Rehearing denied May 29, 1961.]

      Richard W. Hobbs, for appellant.

      Curtis L. Ridgivay, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

The question presented in the briefs is whether the Probate Court allowed excessive fees to the guardian and his attorney; but we never reach that question because of a procedural hurdle which appellant has been unable to overcome, and which is fatal to his case.

Mrs. Margaret Miover, a lady past 80 years of age, had become senile. She was in a rest hime; and her relatives persuaded J. J. Dowds to become guardian of her person and estate. He was appointed by the Probate Court of Garland County on April 17, 1959; and Q. Byrum Hurst was the attorney for the guardian. The estate consisted of government bonds and other personal assets totaling in excess of $36,000.00. The guardian made a full and detailed inventory and the Probate Court allowed the guardian a fee of One Thousand Dollars ($1,000.00), and allowed his attorney a fee of Five Hundred Dollars ($500.00). On April 23, 1959 (just eight days after the appointment of Mr. Dowds as guardian) Mrs. Miover departed this life testate. Her will was probated in Garland County on May 5, 1959, and appellant, Richard W. Hobbs, was appointed as Executor.

J. J. Dowds, as guardian, delivered to Richard W. Hobbs, as Executor, all of the assets of the guardianship except the Fifteen Hundred Dollars ($1,500.00) allowed the guardian and his attorney for fees. On May 8, 1959, Hobbs, as Executor, filed his petition asking the Garland Probate Court to set aside the order that allowed the fees to the guardian and his attorney. It was alleged that the guardian and the attorney only served eight days, and that the total fee of Fifteen Hundred Dollars ($1,500.00) was grossly excessive, and that a fee of not to exceed One Hundred Dollars ($100.00) would be just compensation. Reply was filed to this petition on May 22, 1959, alleging in detail the services rendered and why the guardian and his attorney considered the fees to be reasonable.

Nothing further occurred in regard to said petition of the Executor until August 10, 1960, when a stipulation was filed as to the acts done by the guardian and his attorney. Then, on October 24, 1960, the Executor’s petition was heard, and an order was entered by the Probate Court, refusing to set aside the order of April 1959, which had allowed the fees to the guardian and his attorney. From such order of October 24, 1960, the Executor prosecutes this appeal, claiming that the fees were grossly excessive.

The hurdle that the Executor cannot overcome is the fact that the petition to set aside the fees allowed the guardian and his attorney was not heard at,the same term of the court at which the fees were allowed. Section 22-503 Ark. Stats, states that the various terms of the probate courts “. . . shall be the same as now provided by law for the various Chancery Courts of the State.” Section 22-406, Ark. Stats, fixes the terms of the Chancery Court of Garland County to be the Third Monday in June and December of each year. The order, allowing the fees to the guardian and his attorney, was made in April 1959, which was a day of the December 1958 Term. The petition to set aside the allowance of the fees was filed on May 8, 1959, which was a day of the same December 1958 Term. But the December 1958 Term lapsed by law on the day preceding the Third Monday in June 1959, when the June Term of the Garland Probate Court convened; and the matter was not heard until October 24, 1960, which was a day of the June 1960 Term of the Garland Probate Court.

In Southern Furn. Co. v. Morgan, 214 Ark. 182, 214 S. W. 2d 905, we held that the allowance of a claim by the Probate Court was a judgment and could be set aside after the term only by making the same showing as required for vacating a judgment after the term: i. e., compliance with the provisions of §§ 29-506 and 29-508, Ark. Stats. In Fullerton v. Fullerton, 230 Ark. 539, 323 S. W. 2d 926, we held that the term time power of a court to vacate a judgment lapsed with the expiration of the term, even on petition filed hut not presented. So, in the case at bar, when Hobbs, as Executor, allowed the December 1958 Term of the Court to lapse, he could not have the order allowing the fees set aside except by filing a petition which complied with the requirements of §§ 29-506 and 29-508, Ark. Stats.: i. e., the petition must not only be verified but must allege one of the grounds stated in Subdivisions 4 to 8, inc. of § 29-506. The petition filed by the Executor in this case did not allege any such ground. It merely alleged that the court had made a mistake in allowing the fees and had allowed fees which were excessive. Such is not one of the grounds which the statute recognizes for setting aside a judgment after the term.

Affirmed.

       In Vaughan v. Vaughan, 223 Ark. 934, 270 S.W. 2d 915, we had occasion to further consider the matter of setting aside orders by the probate court.