text:
    Clements v. Neblett.
    5-3127
    372 S. W. 2d 816
    Opinion delivered December 9, 1963.

      Binning do Binning, for appellant.

      Bavid Solomon, for appellee.
   Carleton Harris, Chief Justice.

This litigation relates to the changing of the beneficiary in several insurance policies by a subsequent will. "W. L. Clements, a resident of Phillips County, owned considerable real property in Desha and Phillips Counties, and seven insurance policies payable to his estate. One of these policies had been issued by the Mutual Life Insurance Company of New York in the amount of $25,000.00, and the other sis policies, each in the amount of $10,000.00, had been issued by the Equitable Life Assurance Society of the United States.

Approximately two weeks bei'oie his death, Mr. Clements made a holographic will, the provisions pertinent to this litigation, reading as follows:

“I hereby will to my wife Sarah Clements a $25,-000.00 insurance policy made payable to my estate with the Mutual Life of N. T. and written by Jim Hudson, Policy in my Lock box at the Phillips Nat. Bank where all papers are.

“I hereby will to my nieces and nephew all real estate in Desha County and Phillips County, Ark. namely Katherine Clements now of Memphis, Tenn., Mrs. Roy Turner of Lexa, and Lawrence Clements of Barton together with $60,000.00 worth of Insurance with the Equitable Life Insurance Co. with instructions that all my debts and taxes be paid. And all the property be held together for 5 years and rented to my present tenant for that period of time if he wants it on present terms less the clause on clearing in his present contract.”

No children were born to the marriage between Mr. and Mrs. Clements.

Petition was filed in the Probate Court of Phillips County for the probating of this instrument, and the will was duly admitted to probate, Lawrence Clements and Harry Neblett being named executors, as provided in the will. When the inventory was filed, no mention was made of the insurance policies, and appellant filed her exceptions, and subsequently, on May 5, 1961, filed her petition for statutory allowances and assignment of dower, alleging that she was the surviving widow of W. L. Clements; that she had renounced under the will, and was entitled to one-half of the gross value of all property owned by her husband at the time of his death, including one-half of all insurance proceeds payable to his estate. After the filing of various pleadings, counsel entered into a stipulation, as to pertinent facts, and the Probate Court rendered its decision on the basis of the stipulation, no oral testimony being heard. Thereafter, the court entered its findings as follows:

“That the proceeds of the six (6) policies of insurance issued by The Equitable Life Assurance Society of the United States on the Life of TV. L. Clements are not assets in the hands of the Executors, since the Testator, TV. L. Clements, changed the beneficiaries thereof by his Last Will and Testament, and such proceeds are the property of Katherine Clements, Mrs. Roy Turner and Lawrence Clements as beneficiaries thereof. That the widow, Sarah H. Clements, had no vested interest in the six (6) policies of insurance issued by Equitable Life Assurance Society of the United States. That the proceeds of the insurance policy issued by The Mutual Life Insurance Company of New York on the life of TV. L. Clements are not an asset of the Estate of W. L. Clements, since the Testator changed the beneficiary by his Last Will and Testament, and such proceeds are the property of Sarah H. Clements, as such beneficiary, and that the Executors should deliver to her such proceeds they now hold. That the widow, Sarah H. Clements, is entitled to one-half (%) of the personal property of the Estate as dower and shall not be charged with any claims or costs of administration >s

< < s * * that Sarah H. Clements, as widow of TV. L. Clements, is allotted as dower one-half (%) of the real property owned by TV. L. Clements at the time of his death, subject to one-half (%) of the mortgage indebtedness on said lands, * ~

Prom the order entered, appellant brings this appeal. Por reversal, appellant argues two points, as follows:

I.

“The proceeds of the seven (7) policies of insurance, payable to the estate of the decedent, passed to his executors as assets of the estate subject to the dower interest of the appellant as provided under Sections 60-501, Arkansas Statutes.

II.

“The devise to the appellees ‘of all real estate in Desha County and Phillips County, Arkansas, together with $60,000.00 of insurance with the Equitable Life Assurance Society of the United States with instructions that all my debts and taxes be paid’ constituted a contingent devise of property conditioned upon the payment of the debts and taxes.”

We proceed to a discussion of these points in the order listed.

I.

In all of the policies of insurance here involved, Clements reserved the right to change the beneficiary, and this right existed at the time of his death.. We think this point is controlled by Pedron v. Olds, 193 Ark. 1026, 105 S. W. 2d 70. That case involved a controversy between the wife and daughter of the insured, relative to the proceeds of insurance policies in which the wife was named as beneficiary; subsequently, however, the insured executed a will, designating his daughter as beneficiary. In holding with the daughter, this court said, “Did the will have the effect of changing the beneficiary? The lower court decided that it did.

“It is conceded by both parties that the beneficiary named in the policies had no vested interest, because under the provisions of the policies, he had the undoubted right to change the beneficiary in the manner therein provided. Under such circumstances, it is generally held that the beneficiary has no vested interest in the insurance during the lifetime of the insured, and such is our own holding. We do not appear to have heretofore decidecl the exact question here presented, that is, whether the insured may change the beneficiary, where the power to change is given in the policy, without the consent of the beneficiary, by a testamentary provision, or must he pursue the method prescribed in the policy. The cases from other jurisdictions are in hopeless conflict, but it seems to us that the better rule is with the cases that hold that the insured may change his beneficiary by valid will. 0 0 *”

" * There are numerous cases holding that a policy may be assigned by the insured without the consent of the beneficiary where there is no vested interest in the beneficiary, and if the insured quits paying the premiums and the policy lapses, the beneficiary loses his interest therein along with the insured, and we can perceive no valid reason why, under similar conditions, a testamentary provision may not have the effect of changing the beneficiary. In the case before us, the beneficiary had no vested interest during the lifetime of the insured, and neither did the legatee under the will. Both provisions became effective on his death. The provision in the will conflicted with the provision in the policy designating appellant as beneficiary, and this being the insured’s last expression on the subject, it ought to control.”

This holding was reiterated in Eickelkamp v. Carl, 193 Ark. 1155, 104 S. W. 2d 814. Eickelkamp held a life insurance policy which named his wife as beneficiary. This policy, likewise, contained the usual provision that the insured could change his beneficiary by giving written notice to the company at its home office, and the change would become effective upon the company’s endorsement of the change on the policy. Thereafter, Eickelkamp and his wife were involved in an automobile collision while on a journey. Mrs. Eickelkamp died about noon, and Mr. Eickelkamp passed away some five or six hours later. At some time during that period, Eickelkamp was advised of his wife’s death. He then summoned two nurses and the secretary of the hospital, and executed a will shortly before he died, in which he changed the name of the beneficiary in the life insurance policy from his wife to her father. Suit was instituted by the father of Eiekelkamp, sole heir of the deceased, who would, of course, recover the proceeds of the insurance policy if it were payable to his son’s estate. We held that the change of beneficiary by will was valid, relying upon Pedron v. Olds, supra.

The A rkansas cases cited by appellant are not cases involving change of a beneficiary, or where the widow was taking against the will. Appellant cites a Missouri case, Plummer v. Metropolitan Life Insurance Company, 229 Mo. App. 638, 81 S. W. 2d 453, which does involve the change of a beneficiary in an insurance policy by testamentary provision. The Missouri court held that the provision in the will changing the beneficiary in the policy was valid, and the beneficiaries named in the will were entitled to receive the proceeds as against the beneficiary named in the policy, but held that the proceeds were subject to prior payment of the decedent’s debts. Appellant asserts that this is the better reasoning, but we can only say that cases from other jurisdictions are rarely relied upon when the question has already been passed upon by this court. We, therefore, hold that the provisions in the will, designating the particular beneficiaries for certain policies, had the effect of changing the beneficiary named in the insurance policies (the estate), i.e., the effect was the same (between the parties) as though Clements had written to the insurance companies and followed their required procedure in changing beneficiaries. It follows, therefore, that the Chancellor was correct in holding that the proceeds of these policies did not pass to the executors as assets of the estate, and accordingly, were not subject to the dower interest of the appellant.

II.

Learned counsel for appellant vigorously contend that the devise to appellees of all real estate in Desha and Phillips Counties, together with the $60,000.00 worth of insurance, constituted only a contingent devise of the property, conditioned upon the payment of the debts and taxes. It is asserted that the only debt that was outstanding at the time of Clements ’ death was a certain indebtedness to the Equitable Assurance Society, originally in the sum of $60,000.00, and secured by mortgage, executed in November, 1958, on real estate located in Desha County. Appellant states:

‘ ‘It is not a mere coincidence that the $60,000.00 insurance proceeds were the same amount as the mortgage indebtedness. It is not a coincidence that the insurance policies were written by the Equitable Assurance Society of the United States and the mortgage was made to the same company.”

Thus, appellant asserts that Clements intended for the mortgage indebtedness to be paid from the $60,000.00, and that any other construction does violence to the intention of the testator.

Of course, the wishes of the testator, as expressed in his will, are rarely carried out where the widow elects to take against the will. It may well be that Clements intended that the indebtedness to the Equitable be paid out of the $60,000.00, with the beneficiaries named taking the balance. But, it is also evident that Clements did not intend for his wife to take any of his real property. When Mrs. Clements elected to take against the will, it became impossible for the testator’s wishes to be followed. The election by appellee, of course, meant that, as to her, the husband had died intestate—i.e., “there was no will.” She cannot be deprived of statutory rights because of provisions in the instrument adverse to her interest—but neither can her rights be enlarged because of subsequent provisions favorable to her interest. To use an old expression, “She cannot have her cake and eat it, too.” This not only seems the proper logic to employ, but is likewise supported by authority. While there are apparently no Arkansas cases dealing with this exact situation, the question has been passed upon by courts of other states. In Ashelford v. Chapman, et al. 105 Pac. 534 [Kansas], the testator left a will, devising all real estate he owned in Kansas to his children, but also provided for his wife in the will. Clause 9 of the instrument was as follows:

“It is my further will that in the event at my decease I am indebted to any person or persons for the purchase, price of all or any part of the real estate owned by me, or for any lien created upon any of said real estate, for the payment of the purchase price of said real estate or any part thereof, that all my children shall equally contribute out of their share or shares of my estate given and bequeathed, granted and devised to them under this, my will, an amount sufficient to pay off all of said indebtedness. ’ ’

The widow renounced provisions for her benefit contained in the will, electing to take under the law, but then sought to enforce the cited clause against the children, contending that her dower should be set apart free from any liens. The Supreme Court stated:

“If provision be made for the widow in her husband’s will, she shall be cited to appear and make hex-election whether she will accept such provisioxi, or take what she is exxtitled to uxxder the law of descexxts and distributions, but she shall xxot be entitled to both. * " * The widow’s portion cannot be affected by any will of her husband, if she object thereto axxd relinquish all right conferred upon her by the will. [Citing statute] * * * From these statutes it is plaixx that a widow provided fox- by hex- husband’s will, to which she has xxot previously consented, has the choice of two rights, oxxe xxxxder the statute of descexxts axxd distributions, axxd oxxe uxxder the will; but she caxxxxot have both, except, of course, ixx cases where such is the purpose of the will. She may take either, but the election of one is a relixxquishmexxt of the other. Her choice is betweexx will axxd xxo will. If she take uxxder the law, there is xxo will so far as her lights are concerxxed. Hex- share is cax-ved out of the estate according to the law of descents and distributions precisely as if xxo will had beexx made. Thexx the will operates upon the residue. The will of what remains after she has been satisfied may create rights, and may impose obligations, but she is a stranger to them. Her election in effect partitions the estate into two separate and independent domains; one governed exclusively by the statute of descents and distributions, and one governed exclusively by the will. She occupies one, the beneficiaries of the will occupy the other, and there are no reciprocal relations between them. The beneficiaries of the will owe her no duty under the will, because she renounced all rights under the will, became an alien to it, and betook herself to her own peculiar demesne. She cannot invade their territory, and demand of them anything sectored or enjoined by the will, because she satisfied every claim she possesses when she elected to take according to law.”

Similarly, in the New York case, In Re Campbell’s Estate, 13 N.Y.S. 2d 773, it was held that the testator’s widow, who renounced a legacy to her of interest in a lodging house by electing to take dower in the testator’s estate, could not enforce a condition in the will -which bequeathed half of the testator’s lodging house business to his son, with the provision that the son should conduct the entire lodging house business for the benefit of other members of the testator’s family, so long as they desired, without charge. As the court stated,

“The condition written by the testator in his will was limited to testamentary benefits and solely to the members of his family who accepted such testamentary benefits. The widow by her rejection of the legacy is, therefore, excluded from the right to enforce the condition. ’ ’

In Volume 97, C.J.S., Section 1288(b), Pages 136 and 137, we find:

“Generally, the widow’s renunciation of her husband’s will precludes her from claiming or accepting any benefits thereunder, * * * and the provisions made for her in the will lapse, or become immaterial, becoming in effect, obliterated from the will, * * *.

‘ ‘ The rule precluding the widow from claiming benefits under the will has been applied to such benefits as a charge for her support, a provision for a home or its occupation, for income, and annuity, or for her funeral expenses. Renunciation operates as an extinguishment of trust provisions solely for the benefit of the person renouncing, and nullifies the interest of the surviving spouse as an income beneficiary of a trust created for her and others; and it also extinguishes a grant of a general power of appointment which otherwise might be exercised by the person renouncing to the benefit of his own estate.

“Moreover, a widow, who has renounced the will, may not, in order to increase her distributive share, compel persons taking under the will to comply with provisions therein, or an executor to make a sale of property or to serve for a nominal fee; and where a lease is made to the widow to effectuate provisions in the will for her benefit, by renunciation of the will she loses all rights both under will and under lease. ’ ’

Since, as far as Mrs. Clements is concerned, her husband died intestate, it follows that she is entitled to her dower interest in the lands (though devised to others), but, at the same time, she is charged with one-half of the indebtedness. In Harris v. Mosley, 195 Ark. 62, 111 S. W. 2d 563 we held that where land was mortgaged when appellant (the widow) married deceased, (as here) her dower rights in the land were subject to the rights of the mortgagee and those holding under him.

The litigation is thus disposed of, but another interesting question is presented in that the stipulation reflects that the real property on which the mortgage existed was sold by agreement of the appellant and appellees. The mortgage debt was deducted from the sales price, and the balance of the funds divided, one-half to Mrs. Clements, and the remaining one-half to the appellees. The mortgage debt was not probated as a claim against estate and Mrs. Clements apparently made no objection to the sale, but rather, voluntarily joined in the execution and delivery of the deed. Appellees are of the opinion that, by this action, appellant waived any rights she might have in attempting to secure the payment of the mortgage from the general assets of the estate. In view of what has heretofore been said, a discussion of this point is unnecessary.

Finding no error, the judgment is affirmed.

       Mr. Clements died on November 1, 1959, less than a year alter his marriage to appellant.

       Ark. Stat. Ann. § 60-501 (Repl. 1961) provides: “When a married man dies testate as to any part of his estate, or when a married woman dies leaving as her last will one executed prior to her marriage, the surviving spouse shall have the right to elect to take against the will and to take such part of the property as he or she would have taken had the deceased spouse died intestate.”

       This, inter alia, reflects that all taxes and claims filed against the estate have been paid, and the estate is solvent.

       A number of claims were filed against the estate, and, offhand, it would appear that some of these claims represent debts incurred before the death of Clements; however, this cannot be definitely determined from the record, and is immaterial in this litigation.

       Emphasis supplied.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Coons v. Lawler.
    5-3069
    372 S. W. 2d 826
    Opinion delivered December 9, 1963.

      Q. Byrum Hurst, for appellant.

      Wood, Chesnutt & Smith, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a boundary line dispute between adjacent landowners, and the precise question is whether appellant Coons acquired title by adverse possession to the strip in dispute.

On April 15,1953, appellant Coons purchased a tract on Lake Hamilton, lying south of and adjoining the property owned by appellee, Mary Lawler; and some time later (just when is disputed) Coons planted a row of willow trees for a distance of approximately 200 feet on appellee’s property and being 20 feet north of the line stated in Coons’ deed. This seems to have been deliberately done, with full realization that the row of willow trees was 20 feet north of the correct boundary.

On June 30, 1961, appellant Coons filed the present suit against Mary Lawler, claiming: that for more than seven years he had been in adverse possession of all the 20-foot strip up to the said row of willow trees and had acquired title to the said 20-foot strip by sufficient acts of adverse possession; and that Mary Lawler should be restrained from interfering with Coons’ ownership of said 20-foot strip. By answer and cross complaint, Mary Lawler pleaded record ownership of the 20-foot strip in issue; denied Coons ’ claim of title by adverse possession; prayed that her title to the disputed 20-foot strip be quieted; and prayed that Coons be required to remove a boathouse he had constructed in front of her property and bordering on Lake Hamilton. The cause was heard by the Chancery Court on evidence ore terms; and from a decree in favor of Mary Lawler, Coons brings this appeal and urges two points, being:

“I. The plaintiff held actual open, notorious, continuous, hostile, and exclusive possession of the land in question for a period of seven years prior to the time this action was instituted without a break in the continuity of possession.

“II. The lower court decision was against the weight of the evidence.”

Both of these points go to the sufficiency of Coons’ evidence to support his claim of adverse possession, and to the sufficiency of such possession; so we consider the two points together. Coons testified that as soon as he purchased Ms property in 1953 he planted the said row of willow trees; had a light pole erected on the 20-foot strip; and had used the 20-foot strip for a trailer park for more than seven years. Some of Ms witnesses supported some of the claimed acts of adverse possession done by him at various times since 1953. Such testimony related to: construction of a septic tank in 1954 or 1955; filling in a low place on the strip in 1953 or 1954; parking trailers on the property at irregular intervals; and building the boat dock at some date not definitely shown. Mary Lawler established by testimony of herself and others: that she was the record owner of the title to the 20-foot strip in dispute; that in 1957 and 1958 her tenant had a garden on the disputed strip; that there were no trailers on the disputed strip in 1957 or 1958; and that when Mary Lawler’s true line was surveyed in 1960 there was only one trailer that extended over her line and that for a distance of three or four feet. Several witnesses called by Mary Lawler testified that there were no willow trees on the disputed strip in 1957.

Thus, there was not only a sharply disputed fact question as to whether Coons had exercised acts of adverse possession for the required statutory period of seven years, and also there was the legal question as to whether Coons had acquired title by adverse possession, even if he had done all of the acts he sought to establish. On either point the Chancery decree was correct. If the Chancellor believed Mary Lawler and her witnesses, then Coons had not exercised any acts of adverse possession for the required period of seven years; and we cannot say that the Chancery decree is against the preponderance of the evidence on this factual issue.

As to the legal question: even if Coons did all that he and his witnesses claimed, nevertheless such acts fall short of that adverse possession required for a trespasser’s claim to ripen into a title. Our statute allowing seven years adverse possession to ripen into title is Ark. Stat. Ann. § 37-101 (Repl. 1962); and such adverse possession must be actual, notorious, exclusive, continuous, and hostile. Some of our cases explaining and applying these requirements are these: Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002; Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965; DeMers v. Graupner, 186 Ark. 214, 53 S. W. 2d 8; Crawford v. Davis, 147 Ark. 126, 227 S. W. 5; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Sharp v. Johnson, 22 Ark. 79; and Fulcher v. Dierks, 164 Ark. 261, 261 S. W. 645. To prevail on a claim of adverse possession not under color of title (and Coons does not claim color of title), one must show actual or pedal possession to the extent of the claimed boundaries. Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236.

The decree in favor of Mary Lawler is in all things affirmed.

       One of the best considered cases on the essential acts necessary to create title by adverse possession, and in which most of the Arkansas cases are listed, is Dierks v. Vaughn, 131 F. Sup. 219, affirmed 221 F. 2d 695. See also Jones “Arkansas Titles” (Original Vol. and Annotated Supplement) § 1497 et seq.


author: G-eorge Bose Smith, J.

text:
    Kennedy v. Couillard.
    5-3077
    372 S. W. 2d 825
    Opinion delivered December 9, 1963.

      Batchelor do Batchelor, for appellant.

      Jeptha A. Evans, for appellee.
   G-eorge Bose Smith, J.

The appellant William B. Kennedy and the appellee Yada Kennedy Couillarcl were divorced in 1955. They had owned a 41.80-acre tract of land as tenants by the entirety. During the negotiations in the divorce case the couple purportedly executed a warranty deed conveying the land to Kennedy’s parents, who later reconveyecl it to him. This is a suit by Mrs. Couillard to cancel both conveyances, on the ground that her signature upon the first deed was a forgery. The only question we need consider is whether the chancellor was right in holding that the deed was in fact forged.

There were two hearings in the court below. At the first one Mrs. Couillard denied having signed the deed in question. Dr. Orlando Stephenson, testifying as a handwriting expert, explained his reasons for thinking the deed to be a forgery. Mrs. Couillard’s testimony was contradicted by Kennedy and his mother, who both said that they saw Mrs. Couillard sign the deed. After the hearing the chancellor gave a written opinion in which he discounted the conflicting testimony of the interested parties and concluded that he should accept the disinterested opinion of Dr. Stephenson, which was then the only expert testimony in the record.

Before a decree was entered the case was reopened for a second hearing. The notary who took the acknowledgments, appearing as a witness for Kennedy, identified her own signature as genuine, but she was unable to remember after seven years whether Mrs. Couillard had signed the deed in her presence. Kennedy also introduced the testimony of another handwriting expert, Earl Davenport, who was of the opinion that the questioned signature was genuine. After the second hearing the chancellor announced that the additional testimony had not affected his earlier conclusions. We think the court was in error, for the supplemental proof destroyed ■whatever value Dr. Stephenson’s opinion may have had and tipped the scales decidedly in favor of the appellants.

Dr. Stephenson’s testimony, standing alone, was undeniably convincing. He based his opinion solely upon a comparison of the disputed signature with 19 specimen signatures that the former Mrs. Kennedy (now Mrs. Couillard) had written upon a single sheet of paper. The witness pointed out that in the challenged signature there was a break in the name Yada, where the pen had been lifted from the paper, but there was no such break in any of the 19 specimens. Moreover, in all of the 19 specimens there was an upward flourish of the pen at the end of each name (Yada and Kennedy), but there was no similar flourish in those names as they appeared in the deed. Upon this reasoning Dr. Stephenson concluded that the signature in dispute was a forgery.

Now it happened that on May 17, 1955, the day on which the deed in controversy was apparently executed, Yada Kennedy signed three other documents: A waiver of service, an agreement to take depositions, and an application for the purchase of traveler’s checks. These three signatures are contemporary and admittedly genuine. Davenport, the appellants’ handwriting expert, demonstrated with much force the great similarity between the three authentic signatures and the one upon the questioned deed. Among other things, all four contain the break in the name Vada that is absent in the 19 specimens. Again, all four lack the flourishes that characterize every one of the 19 specimens. In fact, Davenport pointed out certain inconsistencies in the various flourishes that led him to believe that they did not represent the writer’s normal penmanship and had been deliberately inserted in the 19 specimens prepared for eomparison purposes.

It has frequently been held, for obvious reasons, that specimen signatures written solely for use at the trial are not an admissible basis for comparison. Jones on Evidence (2d Ed.), § 1294. But even if these 19 specimens should be considered admissible they have no persuasive force. Their dissimilarity to the three genuine signatures of May 17, 1955, is too marked to be overlooked. Yet Dr. Stephenson’s conclusions were based upon no other comparison. If he is right in saying that the signature upon the deed under attack is a forgery, then we should have to conclude upon exactly the same reasoning that the three authentic contemporary signatures were also forgeries.

Dr. Stephenson’s testimony is now shown to prove nothing except the fact that the 19 specimen signatures contain characteristics that distinguish them from the signature in issue. With his testimony eliminated the appellee is left, with only her denial of having signed the deed—a denial that is somewhat weakened by the fact that she apparently thought it best to disguise her true signature before submitting it for comparison. The appellee’s testimony is contradicted by her former husband, by the latter’s mother, by the expert Davenport, and to some extent by the notary public. We are compelled to conclude that the appellee did not sustain the burden of proving her case by a preponderance of the evidence.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Hanel v. Springle, Adm’r.
    5-3130
    372 S. W. 2d 822
    Opinion delivered December 9, 1963.

      Lee Ward and Hoioard A. Mayes, for appellant.

      William B. Wharton, Kirsch, Cathey & Broion, for appellee.
   Paul Ward, Associate Justice.

This appeal conies from an order of the Probate Court admitting to probate the will of John P. TIanel who died at the age of 64 years. The will was offered for probate by the deceased’s sister, Charlotte Springle, and it is being contested by appellant who is the deceased’s brother.'

John P. Hanel, who had worked as a farm hand for more than 40 years for Miss Lillian Howell and her sister, Miss Nettie Howell, had accumulated real and personal property to the extent of approximately $30,000. He left no direct descendants; but he did leave three surviving sisters and the appellant, a brother. At the time of his death the deceased lived in the home of the Howell sisters.

In April, 1962 when Hanel became ill it was arranged for him to go to the hospital. Before leaving home, he signed the paper which was later probated as his will. After his death in January, 1963 this paper was found among his private papers in the Howell home, and it reads as set out below.

“After expenses are paid, cash to be divided to my sisters, Lottie, Josephine and Marie and Bonds 9 (1000) H, 6 (1000), 1 (500) G. Bonds, 1 (1000), 1 (500) E. Bonds, also $2,000.00 postal savings. Divide my land to my three sisters.

“My car and cattle go to Howells.

/s/ John P. Hanel”

“Witness

/s/ Nettie Howell

/s,/ Lillian W. Howell”

Urging a reversal, appellant relies on the three separate grounds hereafter set out and discussed.

One. It is first argued: “There -is no proof that John P. Hanel wanted to make a will in April, 1962, when the proffered instrument was prepared.” After hearing all the testimony the trial court found that the deceased “. . . intended the aforesaid instrument to be his last will and testament.” We think the evidence clearly supports that finding. The unquestioned and uncontradicted testimony of Lillian Howell, 71 years old, and Nettie Howell, 69 years old, was to the following effect: while Hanel was packing his bag to go to the hospital Nettie asked him if he had made a will. His reply was that he had started to do so several times but never had. Following that, he got a list of all his assets and gave the list to Nettie as she wrote out the instrument in question. When he was asked about his brother, Rudolph, he replied: “Rudolph has got all of my money that I want him to have. If I gave him any, he would drink it up.” Nettie and John (deceased) both used the word “will” during the discussion preceding the signing by the deceased and the sisters.

In the complete absence of any suggestion or contention that the deceased intended to do otherwise than to execute a will, we must conclude that the trial court’s finding is supported by the weight of the evidence.

Two. We can see no merit in appellant’s contention that “The proffered instrument contains no testamentary provisions.” It is true, of course, that the instrument contains no such words as “devise” and “bequeath” which are often found in many mils, but, as we have often pointed out, such formalities are not necessary to the validity of a will.’ In the early case of Arendt v. Arendt, 80 Ark. 204, 96 S. W. 982, this Court in approving a will in the form of a letter written by the deceased to his wife, said:

“This will is in the form of a letter from William Arendt to his wife. But, to quote the language of a distinguished author, ‘the law has not -made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.’ ”

See also the case of Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11, where we again held a letter to be a will, using this language: “If the offered instrument is testamentary in effect, its particular form is unimportant . . . .”

See also 57 Am. Jur. Wills § 7 (1948), where we find:

“Tlie question whether or not a particular writing is testamentary depends on the dispositions which it makes, and not on the form of the instrument, the use of legal or conventional terms, or the name by which it is designated. ’ ’

In the instrument under consideration the deceased did not use the conventional words “give and bequeath to my sisters”, but instead he used the words “to be divided to my sisters”. The latter wording leaves no doubt in our minds that the deceased meant for his sisters to have his property.

Three. Finally, it is insisted that “The proffered instrument Avas not executed with the formalities required by Arkansas laAv for a avíü”. This contention is based on the language used in Ark. Stat. Ann. § 60-403b (Supp. 1961) and the testimony of the Howell sisters. The above sub-section reads: “The attesting Avitnesses must sign at the request and in the presence of the testator”.

It is admitted that the tivo HoAvell sisters signed the instrument in the presence of the deceased but it is contended that they did not sign ‘ ‘ at the request of the testator”. It is true that AAdien each of the sisters Avas asked if the deceased specifically requested her to sign the instrument, the answer Avas that he did not. Although it appears from the above that, technically, there was a non-compliance Avith the provisions of the statute, we are convinced there Avas a substantial compliance under the facts and circumstances of this case. There can be no doubt that the deceased understood he was making a Avill. He Avas asked if he Avanted to make a will, and his actions showed that he did; he Avas ill and was leaving for the hospital at the time; he AAras asked if he Avanted to leave any property to his brother, and he explained AAdiy he did not; and, AArhen he signed the instrument the tAvo sisters Avere in the room Avith him and he saAv and permitted them to sign as AAdtnesses.

It would be a strict, if not indeed a dangerous, construction of the statute to require proof that the testator must make a specific request of each witness to sign his name to a wall to make it valid. If the strict construction ■of the statute here advocated by appellant were approved, it could, in all probability, invalidate many walls heretofore drawn by competent and careful attorneys. The purpose of the law relative to the execution of walls is and should be to protect testamentary conveyances against fraud and deception and not to impede them by technicalities. In the case of Anthony v. College of the Ozarks, 207 Ark. 212, 180 S. W. 2d 321, in construing the same statute here involved, we said (quoting Rogers et al v. Diamond, 13 Ark. 474):

‘ ‘ ‘ The policy of the statute is to guard against frauds in the execution of wills, so often made under circumstances when the testator is liable to be imposed upon, or unduly influenced ....

■ The fact of publication, therefore, is to be inferred or not, from all the circumstances attending the execution of the will.’ ”

Also, in this early case of Rogers et al v. Diamond, supra, 487, this Court, in construing this same portion of the statute said:

“, . . each of the attesting wdtnesses must sign his name as a witness, at the request of the testator, but such request might be inferred from the attendant circumstances in proof by signs or gestures as well as words . . . .” (Emphasis added.)

The above quoted statement was approved in McDaniel, ad. v. Crosby, et al., 19 Ark. 533, and also in Leister v. Chitwood, 216 Ark. 418, 423-424, 225 S. W. 2d 936.

In our opinion, the facts and circumstances revealed above amply sustain the action of the trial court in admitting subject instrument to probate as the last will and testament of John P. Hanel.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Carroll v. Jones.
    5-3095
    373 S. W. 2d 132
    Opinion delivered December 9, 1963.

      Grouch, Blair & Cypert, for appellant.

      Thomas Pearson, James R. Hale, for appellee.
   Sam Robinson, Associate Justice.

Appellant, John J. Carroll, is in the business of selling poultry and livestock equipment. He also sells and erects “Coldbath” all steel poultry buildings. On June 14, 1960, appellee, W. K. Jones, purchased from appellant a prefabricated Coldbath chicken house, 40' x 330'. Under the terms of the contract of purchase, hereinafter referred to as the original contract, Carroll was to put the building together on Jones’ farm, along with certain poultry equipment. The total contract price was $12,560.00.

After the building was constructed by Carroll and put in operation by Jones, it fell down. At the time Jones had about 7,000 hens in the building, along with poultry equipment, such as nests, water troughs, etc. The hens actually belonged to the Nutrena Company. Jones was feeding and looking after them for the consideration of $600.00 per month. After the building collapsed the Nutrena Company removed from the premises the chickens that were not killed. Jones’ contract with the Nutrena Company was thereby terminated.

Later, Carroll and Jones entered into an agreement whereby Carroll agreed to reconstruct the building. The agreement providing for the reconstruction of the building is as follows: “This agreement made and entered into on this 13th day of February, 1961, by and between John J. Carroll Company, Party of the First Part, and W. K. Jones, Party of the Second Part, is as follows: First Party hereby agrees to reconstruct present metal chicken house to the best of their ability, replacing ox-repairing all water fountains and automatic feeders and reinstall all wiring and electrical system using present electrical wiring. First Party will use Thiifto Pane plastic in replacing the plastic xiow in use. Party of the First Part has ninety days to reconstruct said building to the satisfaction of the Party of the Second Part. When job is completed the Party of the First Part will hire an independent engineer to test the strength of the trusses and other parts of the framework as to durability. Each truss is to have 5600 pounds vertical strength. The party of the first part will pay the party of the second part $1,000.00 for damages in loss of contract with Nutrena. After the terms of this agreement have been complied with this will complete full settlement between pai'ties.”

Subsequently, Jones filed this suit against Carroll for breach of tike original contract, alleging that the coxxtract was partly in writing and partly oral. The Complaixxt alleges: “At all times mentioned herein the defendaxxt knew the purpose for which said building was to be constructed and used, and as a part of said contract the defendant represented and warranted to the plaintiff that said plans and specifications would be reasonably satisfactoiy; that all of the matei-ials to be used in the erection and consti-uction of said building would be reasonably satisfactory; that all of the materials to be used in the erection and construction of said building would be reasonably satisfactory and suitable for the purposes for which they were to be used; and that said building would in all respects be erected and constructed in a reasonably suitable and satisfactory manner.” Jones further alleged that Carroll had breached the contract and as a consequence thereof he had been damaged in the sum of $6,221.28. Later the Complaint was amended and there was an allegation of • damages in the sum of $11,221.28.

Defendant denied all the allegations of the Complaint and alleged: ‘ ‘ That in consideration of any claim for damages on the part of the plaintiff resulting from any equipment or material furnished by the defendant or any construction undertaken by the defendant, the defendant furnished to the plaintiff $1,000.00 in new brooder stoves and equipment, in addition to performing reconstruction work on the building described in the plaintiff’s complaint for which the defendant received no pay and which he was under no obligation to do, but did as a consideration on this settlement.” Carroll also cross-complained and asked judgment in the sum of $2,183.35 as the unpaid balance on the original contract, and for $1,000.00 alleged to have been paid in the settlement agreement.

Upon a trial to a jury there was a verdict in the sum of $4,000.00 in favor of Jones; a judgment was rendered accordingly. Carroll has appealed.

First appellant contends that the second agreement whereby Carroll undertook to reconstruct the building superseded the original contract, and therefore, Jones can not recover damages sustained by reason of the breach of the original contract by Carroll. Perhaps paragraph 2 of appellant’s answer can be construed as setting up the defense of a supplemental agreement superseding the original contract, but the answer is not entirely clear on this point. The terms of the alleged settlement agreement are not set out in the answer, nor is the agreement, which is in writing, made a part of the answer as an exhibit. The answer, in itself, can not be said to be sufficient to apprise the plaintiff that the defendant was relying on a settlement agreement as. a rescission of the original contract.

The original contract was introduced in evidence by the plaintiff. Counsel for the defendant—appellant— specifically stated that he had no objection to its introduction. Appellee Jones was examined extensively both on direct and cross-examination regarding the original contract, including the details of how it was made and how it was breached. Moreover, other than the doubtful language contained in the answer, there is nothing in the record to indicate that appellant was relying on the supplemental agreement as a defense to the suit on the original contract. The case was tried on the question of whether there was a breach of the original contract, and without objection submitted to the jury on that theory.

In connection with this point appellant relies on Whipple v. Baker, 85 Ark. 439, 108 S. W. 830, but that case is clearly distinguishable from the case at bar. There, it was abundantly clear that, as a complete defense, the defendant relied on a settlement agreement which had been performed with the exception of the payment of a $47.00 item. The court said that the failure to pay the $47.00 did not authorize the appellee to treat the settlement agreement as null and void. Whipple had performed the other parts of the settlement agreement by dismissing a suit, releasing an attachment, cancelling a lease, and allowing Baker the use of a store for a reasonable time, all of which was done prior to the commencement of the suit then before the court. In the case at bar there was no substantial compliance by Carroll with the settlement agreement.

Carroll agreed to reconstruct the building to the satisfaction of Jones. This was not done. When the building was put up the second time there was danger of it falling again, and at his own expense, Jones had to put two rows of posts in the building from end to end. In addition, there were 120 some odd leaks in the roof. There is evidence that it would cost $5,000.00 to repair the roof to the point where it could be warranted not to leak. The settlement agreement further provides that “when job is completed the party of the first part will hire an independent engineer to test the strength of the trusses and other parts of the framework as to durability. Each truss is to have 5600 pounds of vertical strength”. No test was made as provided in the agreement. It is claimed that a test was made somewhere else on some other building, but this is not as the contract agreement provided or contemplated. In fact, it appears that if a test had been made on the building after the reconstruction, but before Jones put in the. extra posts, it would have again collapsed.

The agreement further provides that “party of the first part will pay the party of the second part $1,000.00 for damages in loss of contract with Nutrena”. The $1,000.00 was not paid. Carroll did, however, furnish additional equipment to the extent of about $700.00. Moreover, according to the terms of. the settlement agreement, it was not to become a complete settlement between the parties until it was complied with. It was never complied with. On this point appellant also relies on the cases of Swinton v. Cuffman, 139 Ark. 121, 213 S. W. 409, and Hill-Ingham Lumber Co. v. Neal, 89 Ark. 385, 117 S. W. 247. Both cases are clearly distinguishable on the facts-.

Appellant argues that the trial court erred in giving Instruction No. 7, as follows: “You are tolcl that if you find the plaintiff is entitled to recover, by preponderance of the evidence, and that the contract was breached which was entered into on or about the 14th day of June, 1960, or the agreement of the 13th of February, 1961, and that the defendant did not comply with said terms to the satisfaction of the party of the second part as defined by the instructions of the Court in the preceding instruction, you are told that the plaintiff will be entitled to be reimbursed for: (1) Loss of earnings, if any, directly resulting from the breach of the contract." (2) Any repairs made or which you find to be necessary to be made in the future growing out of the breach of the contract. (3) Any damages, if any, to the equipment in the building growing out of a breach of the contract. (4) The reasonable rental value of the building or any delay, if any, in the completion of construction of said building, growing out of the breach of the agreement, if any. ’ ’

In support of his argument on this point appellant cites Plunkett v. Meredith, 72 Ark. 3, 77 S. W. 600; Graham v. Jonesboro L. C. and E. R. Co., 111 Ark. 598, 161 S. W. 729; Northern Const. Co. v. Johnson, 132 Ark. 528, 201 S. W. 510; Mitchell & Pumphrey v. Caplinger, 97 Ark. 278, 133 S. W. 1032; Leifer Mfg. Co. v. Gross, 93 Ark. 277, 121 S. W. 1039. None of these cases cited by appellant is in conflict with the holding in Hooks Smelting Co. v. Planters’ Compress Co., 72 Ark. 275, 79 S. W. 1052, which is the bellwether case in this state on the question of the measure of damages for breach of contract.

The rule of law applicable here on the measure of damages was announced in the old classic case of Hadley v. Baxendale, 9 Exch. 311. In the Hooks case, Mr. Justice Riddick pointed out that the first rule laid down in Hadley v. Baxendale is “that damages which may fairly and reasonably be considered as naturally arising from the breach of the contract, according to the usual course of things, are always recoverable”. Judge Riddick went on to say that this rule has never been questioned or doubted. In 15 Am. Jur. 112, it is said: “In accordance with the general principle governing the allowance of damages, a party to a contract who is injured by its breach is entitled to compensation for the injury sustained and is entitled to be placed, in so far as this can be done by money, in the same position he would have occupied if the contract had been performed.” Dozens of cases are cited in support of the text. Moreover, the Uniform Sales Act regarding a breach of warranty is to the same effect. Ark. Stats. 68-1169, paragraph 6.

Carroll is in the business of selling poultry equipment, including the selling and construction of poultry buildings. It can be fairly inferred from the evidence that he is thoroughly familiar with the needs of those producing poultry, and the natural consequences that would follow the collapse of an all metal building con-taming about 7,000 hens which the owner of the building was feeding for someone else.

Appellee Jones testified that he sustained damages in the total sum of over $15,000.00. On the proposition of loss of earnings, an exhibit was introduced as part of his testimony which shows that he lost $4,700.00 by reason of losing the Nutrena contract. There is evidence that such loss grew out of the collapse of the building. He had been receiving about $600.00 per month from Nutrena before the building fell down. The exhibit shows in detail the expense incurred in repairing the building after it was reconstructed to keep it from falling down the second time; it shows that reasonable rent on the building for two months while it was being reconstructed was $600.00, and it shows in detail the damages to the poultry equipment caused by the falling of the building. We cannot say as a matter of law that any of the items of damages mentioned was not the direct and natural result of the breach of contract.

The trial court refused to give appellant’s Instruction No. 3, as follows: “You are instructed that if you find by a preponderance of the evidence that the plaintiff failed to pay the defendant a part of the purchase price of the equipment and building, then you will find the defendant entitled to recover from the plaintiff on his counterclaim that portion of the original purchase price which remains unpaid.” The instruction did not take into consideration the evidence of the defendant having breached the contract, and the theory of breach of contract on which the case was tried; hence, there was no error in the court’s refusal to give it.

Appellant also argues that the trial court erred in admitting testimony given by Jones regarding the damages he sustained. Jones had prepared a list specifically detailing the damages and the amount of each item. It was stipulated by the parties that he would testify to these items as shown by the exhibit, and the exhibit was introduced in evidence. Appellant objected to it on the ground that it was not relevant or competent, not as to the manner in which the evidence was introduced. The evidence of the damages appellee sustained was entirely relevant, competent and material. It was, therefore, admissible.

Appellant also complains of the court not having submitted to the jury a form of verdict pertaining to the balance owed by appellee on the original contract, as alleged in the cross-complaint. When the court properly refused to give-appellant’s instruction No. 3, and appellant failed to ask for a valid instruction in lieu thereof, the jury was left in the dark as to the circumstances in which a verdict could’ be rendered on the counterclaim. It could have been confusing to the jury- to have a form of verdict regarding a counterclaim without having been instructed by- the court on the law applicable to such claim. In the circumstances the appellant should have' reduced to writing the form of verdict requested. This was not done.

Appellant argues other points, but what we have said covers all the issues raised on appeal.

We find no error. The judgment is affirmed.


author: Frank Holt, Associate Justice.

text:
    Graves v. Wimpy.
    5-3126
    372 S. W. 2d 812
    Opinion delivered December 9, 1963.

      McDaniel, Ward & Mooney, for appellant.

      Penix £ Penix, for appellee.
   Frank Holt, Associate Justice.

The appellant and appellee are rice farmers and adjoining landowners. The appellant constructed a dam across a drainage ditch which was serving both appellant and appellee. Appellant claims this was necessary to prevent indigo-laden waters from flowing into this drainage ditch and damaging his rice crops. This dam diverted the flow of water upon appellee’s lands. Appellee cut the dam thus permitting the flow of water to again enter the jointly used drainage ditch. Appellant brought this action to require appellee to restore the breached dam; to enjoin him from such future conduct; and for the recovery of damages to his rice crops. The appellee responded that the ditch is a joint or community ditch; that the appellant should be enjoined from maintaining the dam resulting in the overflow of appellee’s lands; and, also, sought recovery for damages to his crops.

The Chancellor held that appellant had no right to dam up this drainage ditch and denied damages to both parties. From that decree appellant brings this appeal.

For reversal appellant first contends that the decree of the trial court is against the preponderance of the competent evidence. Since appellant’s Exhibit “A” is agreed to be a reasonably accurate portrayal of the reference points involved in this case we reproduce it for use in our discussion of the facts.

The appellee, Wimpy, has owned his property since 1949 and the appellant, Graves, has owned his 320 acres since 1952. As indicated by the reproduced exhibit, the appellant and appellee have a common boundary line running north and south. To the north of appellant Mr. Frierson is an adjoining landowner. Appellee’s property extends northward and is contiguous "to the Frierson property. On the Frierson property is an artificial lake which is infested with indigo. This is a noxious weed which is injurious to rice farming. In 1959 and in January 1962 Frierson drained his lake. The drainage flowed from Point “C” to Point “B” and thence to Point “A” into the drainage ditch used jointly by appellant and appellee. Appellant registered his complaint in 1960 and in July 1962 appellant dammed up the common drainage ditch at Point “A” to prevent the further drainage or flow of this indigo-infested water from the lake, or from “B” to “A”, into this ditch. This caused the waters to be diverted, upon appellee’s lands. In December 1962 appellee opened up this dam resulting in this lawsuit.

Shortly after appellant acquired his property in 1952 he dynamited a ditch at about Point “A” on appellee’s property for the purpose of releasing or draining water from appellant’s land, thus making his land tillable. According to the appellant, he and the appellee “got together”- and dug the present ditch in 1954 from Point “A” southward for approximately a mile along their common boundary. Appellant admits they did not know the exact location of their boundary line at that time, although he now claims the joint ditch is on his property except the southern part thereof. When this joint ditch was first constructed it was turned ninety degrees at the south end and then dug westward for one-half mile entirely across appellee’s lands to link up with the Mattix drainage ditch which was a part of the drainage system in this area that had existed for many years. In 1955 appellee widened this joint ditch, except the northern portion of it, for approximately three-quarters of a mile. In 1958 this one-mile-long joint drainage ditch between appellant and appellee was reworked. Appellant and appellee each applied for and received a subsidy from the federal government for this ditching program. However, the signed applications for the cost-sharing of the ditch work did not include ditch work north of Point “A”.

Mr. Ratliff, local office manager for the U. S. Soil Conservation Service since 1949, testified that he knew both parties to this suit and that they made separate applications to his office for a government subsidy in reworking this joint ditch on a cost-sharing basis. These applications were approved and the subsidies were paid. According to the government regulations the cost-sharing is conditioned upon proper maintenance by the recipient of the work subsidized. He testified that he was familiar with the “practices” according to these regulations and that the appellant and appellee agreed to them.

Mr. Neff, a local engineer for the U. S. Soil Conservation Service since 1940, studied the lands in the area and designed the reworking of this ditch for the purpose of providing drainage for a total of 560 acres. This area included drainage from some of the lands of appellant, appellee, Frierson and his lake. The size of the reworked ditch was determined by the size of this drainage area [560 acres] and fall of the land.

When the contractor completed the reworking of the ditch northward to Point "A” then appellee, at his own expense, had the contractor to continue from Point "A” northward to Point "B” for a distance of approximately sixty feet along the boundary between appellee and Mr. Frierson. Appellant contends that he never gave appellee permission to connect onto their joint ditch at Point "A” and registered repeated objections which is denied by appellee.

It is well settled that a decree of the Chancery Court will not be reversed on appeal unless contrary to the preponderance of the evidence. Hill v. Barnard, 216 Ark. 29, 224 S. W. 2d 31. Upon a review of the evidence in the case at bar we find it ample to support the Chancellor’s finding.

The parties, by their joint action, established a ditch in 1954 at which time it appears neither of them knew the exact location of their common boundary line. In 1955 the appellee widened a large portion of this ditch. In 1958 appellant and appellee each applied for and accepted a Soil Conservation subsidy payment according to the terms of which they agreed to carry out the Soil Conservation "practices” or program. The drainage area being served by this "practice” was 560 acres which included lands of appellant, appellee, Frierson and his lake.

We think that appellant and appellee each have a right, in the nature of a license, to the unobstructed use of this community ditch. We recognized such a right in the early case of Wynn v. Garland, 19 Ark. 23 (1857). In that case the owners of unsurveyed adjoining lands orally agreed to dig ditches for the purpose of draining their lands and constructed a main ditch as a boundary line between them. Later the lands were surveyed by the government and one of the parties closed the ditch in violation of the oral agreement and threw up an embankment so as to back the water upon the land of the other party. We held that the oral agreement between the parties was in the nature of a license which, having been accepted and acted upon, could not be disregarded and there was no right for either to close the ditch. See, also, Schuman v. Stevenson, 215 Ark. 102, 219 S. W. 2d 429, which cites the Wynn case and reaffirms its principles.

In the case at bar it is undisputed that the ditch southward from Point “A” was jointly constructed and used by the appellant and appellee from 1954 until 1962 as a part of the drainage system. The construction and maintenance of this common ditch necessitated the expenditure of labor and capital by both. This improvement of the drainage system in this area was accepted and acted upon by both parties in their farming operations.

■■ There is, also, compelling testimony in this case that there was a natural flow to the south from Point “B” to Point “A” and that there had been a ditch or slough carrying water southward in this general vicinity for many years. We think it is significant that, according to appellant’s Exhibit “A”, the natural flow in the 1951 ditch is southward to Point “B”. The artificial ditch’ from Point “B” to Point “A” is in substantially the same location as the natural drainage and, thus, did not materially change the natural course of the water. Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160. At common law the waters of a natural stream cannot be obstructed by a lower proprietor so as to cause it to flow in another direction to the detriment of landowners above and about him. Monteith v. Honey, 135 Ark. 407, 205 S. W. 812.

We also think that appellant is estopped from having any right to erect the dam in question since the ditch to the north of it has been used by the appellee as part of a drainage system for four years. The appellant cites Vesper v. Woolsey, 231 Ark. 782, 332 S. W. 2d 602, to the effect that in the absence of “intervening equity” laches will not apply to shorten the statutory period of limitations. We think there were intervening equities in this case. By agreement the joint ditch between appellant and appellee was constructed in 1954, reworked by appellee in 1955, and reworked in 1958 through the efforts of both of them. Also, that portion of the drainage ditch in controversy, from Point “A” to Point “B”, was constructed by appellee at his own expense in 1958 and used continuously by him as a part of a drainage system until appellant constructed the dam four years later. In Stewart v. Pelt, 198 Ark. 776, 131 S. W. 2d 644, we quoted with approval as follows:

“ Since laches is generally regarded as being not delay alone, but rather delay working a disadvantage to another, it is evident that there is and can be no fixed or determinate rule for the application of the doctrine, no exact time, to an hour, a minute, or a year, within which a party’s claim to relief, or assertion of a right, is barred by lapse of time, but each case must depend on its own peculiar circumstances. In other words, the question is addressed to the sound discretion of the court. Nor in determining whether a claim is stale is the court confined to the statutory period, but may refuse relief in cases where the delay is less or greater than that named in the statute.”

See, also, Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847; 30 C.J.S., Equity, § 112.

Under the facts in the instant case we think that appellant’s delay in asserting any right he might have had now operates as a species of estoppel against the assertion of any such right.

The appellant next urges for reversal that the trial court erred in admitting the testimony of Mr. Neff and Mr. Ratliff and the exhibits to their testimony. The testimony of Mr. Neff and Ratliff as experienced employees of the Soil Conservation Service related to their knowledge of the ‘ ‘ practices ’ ’ or program of that government agency and the business records and publications of their offices. Ark. Stat. Ann. § 28-930 (Repl. 1962) provides:

“Federal departmental or agency documents admissible.—-Books, records, reports, minutes of proceedings, and other documents of any department or agency of the United States kept, maintained or made in the performance of duties prescribed by law, or parts thereof or excerpts therefrom, shall be admissible in the courts of this State to prove the Act, transaction, event, or occurrence which the memorandum, report, record or other document records, reflects or shows. Provided, the contents of the books, records, reports, minutes of proceedings, and other documents are material and relevant. [Acts 1949, No. 293, § 3, p. 862.]”

We think that without the testimony of Neff and Ratliff the evidence is sufficient to sustain the Chancellor’s decree. However, we consider that their testimony and the exhibits thereto are material and relevant to the issue in the case at bar and are, therefore, properly admissible.

Affirmed.

Johnson, J., dissents.


author: Carleton Harris, Chief Justice.

text:
    Lofton v. Bryan.
    5-3049
    373 S. W. 2d 145
    Opinion delivered December 16, 1963.
    [Rehearing denied Feb. 3, 1964.]

      J. B. Wilson, for appellant.

      Warson, Ess, Marshall & Engas, Kansas City, Mo., Wootton, Land & Matthews, Thomas D. Walbert, Elbert Cook, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Sam Lofton was severely injured on November 24, 1958, while cutting timber, and made claim for benefits under the Workmen’s Compensation Act, against both Guyce Bryan and Dierks Forests, Inc., contending that Lofton was either an employee of Dierks, or an employee of Bryan as a sub-contractor of Dierks, and operating without compensation insurance. Dierks defended on the ground that Bryan was an independent contractor, and that the company was not liable for that reason, and Bryan asserted that the Commission did not have jurisdiction since he (Bryan) did not employ five or more employees. The referee found that claimant sustained an injury during the course of his employment; that Bryan was an independent contractor, and Dierks Forests, Inc., therefore, was not liable or responsible for the injury suffered; that Bryan, at no time, had more than four persons employed, and the Commission, therefore, was without jurisdiction. The claim was dismissed, and on appeal to the full Commission (at which time some additional evidence was taken) was likewise denied. Thereafter, the Circuit Court of G-arland County affirmed the Commission, and claimant has appealed to this court.

There is no evidence that Bryan had more than four employees, and appellant argues that Dierks is liable for compensation because (a) Lofton was an employee of Dierks or (b) Bryan was a sub-contractor without insurance, and this fact renders Dierks liable for compensation. Ark. Stat. Ann. § 81-1306 (Repl. 1960). See also Brothers v. Dierks Lbr. & Coal Co., 217 Ark. 632, 232 S. W. 2d 646.

The evidence reflects that on November 20, 1958, Bryan and Dierks Forests, Inc., entered into a written contract, wherein Bryan agreed to cut, fell, saw, split, and deliver at a designated place, all pulpwood on certain lands owned by Dierks in Perry County (designated in the contract) and to complete performance by December 15, 1958. After reciting that the contractor represented that he was engaged in the business of cutting and hauling pulpwood as an independent occupation, and had his own tools and equipment necessary to carry on such business, the contract provided:

“The Contractors will (either personally or through employees, agents or sub-contractors) perform this contract at their own expense by their own means and according to their own methods, and free from any control or right of control of Dierks as to the manner or method of performing this contract and shall not be required to render personal services, and neither the Contractors nor their employees or agents shall or may be required by Dierks to render any definite hours of work or labor in the performance of this contract, but on the contrary the Contractors may perform this contract at their own pleasure as to time and by whatever means and methods of performance they determine, and Dierks shall and may only look to the result of said work and require that it be in conformity with and completed within the period of this contract.”

Dierks agreed to pay Bryan $7.00 per cord for all merchantable pulpwood, and Bryan agreed to “pay, prior to delinquency, all Federal and State Social Security, Old Age Benefit, Unemployment, and similar taxes as are or may be imposed, and to indemnify and protect Dierks from all claims and liability on account thereof. ’ ’

The proof reflects that these provisions were fully carried out by the parties. Bryan testified that he did enter into an independent contract with Dierks, and was performing such contract at the time Lofton was injured. He stated that he performed the work in his own manner, determined the days that he would work, hired his own employees, including Lofton, controlled the entire operation himself, and never received any instructions from Dierks as to how the work should be carried out. He owned all of his own tools and equipment, including two power saws, an International tractor and trailer, and a pick-up truck.

Sam Lofton, claimant, testified that he lived at Crossett, and was working for Bryan at the time of his injury. He stated that he had been employed by Bryan, receiving wages of $1.50 per hour, for about five weeks before the accident. The claimant said that he left Crossett, at the request of Bryan, about the first week in November for the purpose of working on the job herein discussed. Lofton testified that Bryan paid him each week in cash, but he knew nothing about Bryan’s arrangements with Dierks. “He said he was going to get a contract from Dierks Forests Division to cut paper wood and he wanted somebody to cut it.”

Lowell Lofton, 24 years of age, son of claimant, testified that he (young Lofton) was employed by Bryan, and had been working with the contractor in Crossett before going on the job where the injury occurred. He stated that after.the Dierks job was completed, he went back to Crossett, still working for Bryan. “Well, when I went to work I went to work for Guyce. I didn’t know who else I was working for.” This was all the evidence introduced on the part of the claimant as far as the nature of his employment was concerned. The balance of appellant’s evidence dealt with the injury sustained by him.

Appellant relies in large measure upon the recent holding of this court in Clemons v. Bearden Lumber Co., Law Reporter, Volume 236, Page 636, 370 S. W. 2d 47, wherein we held that an asserted relationship of independent contractor did not exist, but the facts in that case are far different from those in the instant litigation.

In Clemons, although the company contended that the deductions were made for the convenience of the independent contractor, the record reflects that the company “held out” for Social Security and other payroll deductions; the men working for the alleged independent contractor were all paid by company check, in exactly the same manner as other Bearden Lumber Company employees; deductions were taken from paychecks for insurance just as though the workers were regular mill employees; and the company had the right to discharge Clemons at any time. The evidence further reflected that the company supervisor went out to the job frequently and gave certain instructions. None of these facts are present in the instant case, and the other cases cited by appellant are likewise clearly distinguishable. The entire proof offered'on behalf of claimant has been heretofore summarized, and even Lofton was unable to testify to any facts that support the argument here presented by appellant. Actually, we find no evidence at all which indicates either that Lofton was an employee of Dierks, or that Bryan was a subcontractor, rather than an independent contractor. It follows that the findings of the Commission were supported by substantial evidence.

Affirmed.

Johnson, J., not participating.

Supplemental opinion on Denial of Petition for Rehearing p. 642.


text:
    Berry v. Crawford.
    5-3104
    373 S. W. 2d 129
    Opinion delivered December 16, 1963.

      Hall, Purcell <& Boswell, for appellant.

      Fred E. Briner, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a decree awarding the appellee specific performance, the appellant brings this appeal: On May 31, 1961, appellant Berry and wife entered into a written contract with appellee Crawford, by the terms of which Berry agreed to sell and Crawford agreed to buy a certain lot in Saline County; and Crawford agreed to make a payment of $1,000.00 and interest on May 31, 1962. Other pertinent provisions of the contract will be later mentioned.

On July 24, 1962, Berry filed the present suit, alleging that Crawford had failed to make the required payment when due, and prayed that all rights of Crawford under the said contract be declared forfeited. By way of answer and cross complaint, Crawford alleged that he was and had been at all times ready, able, and willing to make the required payment, and liad so notified Berry; and that Crawford was entitled to specific performance of the contract. The cause was heard ore t-enus in the Chancery Court and resulted in a decree awarding Crawford specific performance. From that decree Berry brings this appeal, and urges these points.

“I. The Court erred in its construction of the contract in question.

“A. The Court should not have ignored the express stipulation in the contract that time was of the essence.

“B. The Court erred-.in not treating the contract in question as an option to purchase.

‘‘ C. Appellee was not entitled to the remedy of specific performance.”

The instrument involved was entitled “Contract,” with Berry as the seller and Crawford as the buyer. It was not merely an option contract, but a definite contract wherein one party agreed to buy and. the other party agreed to sell. The contract stated: “The buyer agrees to pay to the seller for said lands the sum of One Thousand and 00/100 Dollars,” etc.; and, “The seller agrees that when all of the above mentioned purchase price has been fully paid with interest .... to execute and deliver to the buyer a deed for the said land . . .” The contract was a printed form prepared for use in installment payments, providing for interest on each installment “at the rate of five per cent'per annum from date until maturity and interest at the rate of ten per cent per annum from maturity until paid, ...” The -1% had been scratched out and 6°/o had been substituted, but no change had been made in the language that the amount bore interest at 10 a/o from maturity until paid. The contract also had this pertinent provision: “It is agreed that if the buyer should fail or refuse to pay any one of said installments when due as above stated, . . . or fail to comply with any provision of this contract, then the seller shall have' the right and option to declare all installments immediately due and payable and if payment in full is not made on demand then all obligations on the part of the seller shall cease and the buyer shall lose all rights under this contract . . . and it is distinctly understood and agreed that time is of the essence of this contract and the moving consideration for its execution by the seller.”

Crawford did not tender his check for the $1,000.00 and interest to Berry until June 13, 1962, which was fourteen days after the due date of May 31, 1962. Berry refused to accept the payment and filed this suit on July 24, 1962 asking the Court to declare all rights of Crawford to be forfeited. At the trial Crawford testified: that about thirty days before May 31, 1962, he met Berry in the post office at Benton and told Berry that he (Crawford) did not remember exactly the due date of the contract; that Berry replied, “I think it is in thirty days or something like that ... ”; that Crawford told Berry, “Get your papers together when you get ready for your money and come by . . .”; and that Berry made no objection to such remark. Berry did not take the stand in rebuttal to deny the aforesaid conversation. Crawford learned on June 12, 1962 that Berry was claiming a forfeiture and promptly sent Berry a check, which was returned with the statement that Crawford’s rights under the contract had been terminated for failure to make the payment promptly on May 31, 1962.

We have sketched the material portions of the evidence; and we conclude that the Chancery Court was correct in (a) refusing to declare the forfeiture claimed by Berry; and (b) awarding Crawford specific performance. Berry sought the aid of the Chancery Court to have a forfeiture declared, but he did not come into equity with clean hands. In the first place, the contract specifically provided that Berry would have to make a demand on Crawford after the due date; and Berry never made any such demand—rather, he sat silently by and sought equity’s aid to declare a forfeiture when he himself had not complied with the provisions for forfeiture. In Williams v. Shaver, 100 Ark. 565, 140 S. W. 740, we said: “It is well recognized that the right of forfeiture is a harsh remedy and liable to produce great hardships. For this reason it has been uniformly held that before a forfeiture will be declared the law will require that a strict compliance with every important prerequisite must be shown, even in such contracts where forfeiture is provided for by express terms.”

Furthermore, by the conversation in the post office, previously mentioned, Berry had led Crawford to believe that Berry would “bring the papers” when Berry wanted his money. Instead, Berry sat mute and claimed a forfeiture. He lulled Crawford into a feeling of security and thereby waived the right to declare a forfeiture without notice, even if the contract had been a mere option contract, which it was not, as previously mentioned. In Cordell v. Enis, 162 Ark. 41, 257 S. W. 375, we said: “Equity abhors forfeitures and will seize upon slight circumstances indicating a waiver, to avoid or prevent them.”

Berry insists that the words in the contract, “time is of the essence,” are so strong as to support Berry in his claimed forfeiture; and cites and relies on such cases as Ind. & Ark. Lbr. Co. v. Pharr, 82 Ark. 573, 102 S. W. 686. As we have previously stated, the rights of Crawford under this contract were more than that of the holder of a mere option; and the case at bar falls within the scope of the language found in Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989:

“Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture, Ish v. Morgan, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16; Block v. Smith, 61 Ark. 266. But the final effect of such an agreement will depend on the actual intention of the parties, as evinced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: ‘If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.’ 1 Pomeroy Eq. Jur. 452; Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Banks v. Bowman, 83 Ark. 425; Braddock v. England, 87 Ark. 393. ”*

We agree that the Chancery Court was correct in refusing Berry’s prayer for a feiture and also in awarding Crawford specific performance. Affirmed.

       Mr. Berry’s wife was a party to the contract (evidently having dower interest), and is a party to the litigation. Mr. Crawford was doing business as “Crawford Realty Company” and is so styled in the pleadings; but for brevity and clarity we refer to the parties in the singular simply as “Berry” and “Crawford.”

       Emphasis supplied.

       For some more recent cases on “time is of the essence,” see: White v. Page, 216 Ark. 632, 226 S. W. 2d 973; Moffatt v. Wyman, 222 Ark. 247, 258 S. W. 2d 533; Vernon v. McEntire, 232 Ark. 741, 339 S. W. 2d 855; and McClain v. Alexander, 235 Ark. 64, 357 S. W. 2d 1.


author: George Bose Smith, J.

text:
    Oxford v. Oxford.
    5-3134
    373 S. W. 2d 707
    Opinion delivered December 16, 1963.
    [Rehearing denied Jan. 20, 1964.]

      Roy Finch & Thorp Thomas, for appellant.

      Shouse do Jackson, for appellee.
   George Bose Smith, J.

In this case the chancellor granted the appellee husband a divorce on the ground of three years separation. For reversal the appellant contends that the court should have denied the appellee’s application for divorce and should instead have awarded the appellant that relief upon her counterclaim.

The appellant is right in her insistence that the proof does not sustain the decree. The statute requires that the parties live “separate and apart,” without cohabitation, for three consecutive years. Ark. Stat. Ann. § 34-1202 (Bepl. 1962). Oxford testified that he and his wife had not had marital relations for more than three years before the suit was filed in 1962. He conceded, however, that they lived together under the same roof, occupying separate rooms, until about two and a half years before the date of the trial. Under our ruling in Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935, this evidence is insufficient to establish three years separation within the meaning of the statute, for it cannot be said that the couple lived separate and apart from each other.

Despite this failure of proof the appellee argues that the decree should nevertheless be affirmed upon the alternative ground of desertion, which was also alleged in the complaint. Again, however, the proof is deficient. At the trial the appellee directed his testimony to the issue of three years separation and made no real effort to make out a case of desertion. He gave no details whatever concerning his wife’s departure, merely stating- that “she ain’t been home in two and a half years.” The appellant denied having left her husband without cause; so there is no basis upon which a finding of willful desertion could be made.

The appellant contends that the chancellor should have granted her a divorce upon one of the three grounds asserted in her counterclaim. First, she charged her husband with habitual drunkenness. She and witnesses in her behalf testified that Oxford frequently drank intoxicants. He and his witnesses minimized the extent of his drinking. We need not determine where the weight of the evidence lies, for the appellant’s proof falls decidedly short of showing that Oxford was a habitual drunkard as we have defined the term. O’Kane v. O’Kane, 103 Ark. 382, 147 S. W. 73, 40 L.R.A. (n.s.) 655.

Secondly, the appellant charged nonsupport, which under our statute is the husband’s willful failure to provide his wife with the common necessaries of life. Ark. Stat. Ann. § 34-1202 (Repl. 1962). During most of the couple’s ten years together Mrs. Oxford either operated a dairy business at the family farm or found employment away from home. In this way she earned money for herself and her two sons by a prior marriage. These facts alone do not establish the allegation of nonsupport. There is no definite testimony by Mrs. Oxford, and no corroborating proof at all, to indicate any specific instance in which Oxford willfully failed to provide his wife with the necessaries of life.

The third ground relied upon is personal indignities. Each spouse accused the other of infidelity and of other conduct amounting to indignities. After studying the record we are convinced that Mrs. Oxford was at least as much at fault as her husband, perhaps more so. Moreover, it does not appear that the conduct of which Mrs. Oxford now complains was the real cause for her decisión to leave the family home in August or September of 1961. Neither spouse related any of the details attending Mrs. Oxford’s departure, hut in view of her own statement that marital relations occurred within a month before their final separation it is quite apparent that the earlier incidents did not bring about the failure of the marriage. We are inclined to think that the couple, separated in age by more than thirty years, had simply grown tired of one another.

We conclude that neither party established a cause of action. With respect to the three years separation, however, the suit may be merely premature; so, in accordance with our practice in such a situation, it will he dismissed without prejudice. Trimble v. Trimble, 65 Ark. 87, 44 S. W. 1040.

Reversed and dismissed.


text:
    Canute v. Burnett.
    5-3138
    373 S. W. 2d 143
    Opinion delivered December 16, 1963.

      Eugene Coffelt, for appellant.

      Little & Enfielcl, for appellee.
   Paul Ward, Associate Justice.

Appellee, George Burnett, brought suit to collect a commission of $6,500 from appellant, Edward L. Canute. The suit was based on the contention by appellee that he produced a purchaser ready, able, and willing to pay appellant an agreed price for his property. A jury trial resulted in a verdict in favor of appellee in the amount sued for, and appellant hero seeks a reversal.

Por a reversal, appellant says -he relies on four points, but, in his argument, he abandons all points except two—(a) “The demurrer should have been sustained”, and (b) “The court should have instructed a verdict for defendant”.

The essential allegations of the complaint were, in substance, as follows:

Plaintiff (appellee) was a real estate broker at all pertinent times; the defendant (appellant) owned the Star Motel at Rogers; Gilbert and Virginia Ivlevgaard owned the Magnolia Inn at Fort Smith; plaintiff, as a licensed real estate agent, worked up an exchange of the two properties on terms contained in a 'written contract dated March 6, 1961, a copy of which is attached to the complaint and is marked Exhibit “ A ”; in said contract appellant agreed to pay appellee a commission of $6,500 if he (appellant) should default on the contract; and, later appellant did default on the contract and refuses to pay the specified commission although demand has been made on him.

The essential portions of Exhibit “A” attached to the complaint are set out below:

Edward L. Canute is first party and Gilbert Ivlevgaard is second party, each party owns the property previously mentioned; first party and second party agree to exchange properties on certain specified terms regarding title, exchange of abstracts, taxes, and assumption of certain indebtedness; each party deposited $1,000 as earnest money; and, a commission fee of $6,500 for appellee was agreed on. Also contained in the contract is the following sentence: “If either party shall default on this Exchange Contract, the defaulting party agrees to pay the agent the full commission of both parties”. (Emphasis added.)

The above contract was signed by “Edward L. Canute, Party of First part”; by “Virginia Klevgaard, Party of Second part”; “Gilbert Klevgaard, Party of Second part” and by “George Burnett, Agent”.

(a) It is first contended by appellant that the complaint failed to state a cause of action because the contract was not enforceable. It was not enforceable, says appellant, because his wife did not sign it. There is no merit in this contention. This is not an action for specific performance to force appellant to convey his motel to Klevgaard but it is an action to compel appellant to pay appellee the commission he would have received had appellant not broken the exchange agreement. ■ That being-true no enforceable contract was necessary, and, consequently it is immaterial that appellant’s wife did not sign the contract. In Fike v. Newlin, 225 Ark. 369, 282 S. W. 2d 604, wherein the facts were similar to those of this case, the Court said:

“It is immaterial that the contract for the exchange of the properties was not signed by Mr. Fike or Mrs. Hinton, as a real estate broker earns his commission by producing a buyer ready, willing, and able to take the property on the terms fixed by the seller.”

See also: Boyles v. Knox, 211 Ark. 426, 200 S. W. 2d 966, whore we said:

‘£ However, if it be conceded that the agreement . . . was not sufficiently definite in its terms to sustain an action for specific performance, this would not preclude appellee from recovering- a commission, if he, in fact, produced a buyer who was ready, -willing and able to take the property on terms which, were satisfactory to appellants at the time the agreement was made.”

We do not agree with the argument that appellee could not collect a commission because there was no contractual privity between him and appellant. The case of Acme Brich Company v. Hamilton, 218 Ark. 742, 238 S. W. 2d 658, is relied on by appellant. However, the material facts in that case are not the same as in the case under consideration. Here, privity is clearly shown by the following: both parties signed the contract, and appellant agreed to pay appellee upon default.

(b) It is here contended the court should have directed a verdict at the close of the testimony because appellee admitted he knew the contract was not to be complete or binding unless and until appellant’s wife signed it. In support appellant quotes appellee’s testimony as follows:

“Mr. Canute advised me that he was not going through with the deal because Mrs. Canute would not sign the contract. ...” (Emphasis added.)

The record, however, reflects that aiopellee used the word “deed” instead of the word contract in the above quotation. We find nothing in the record which indicates appellant’s signature on the contract was not to be binding on him unless his wife signed it.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.

Robinson, J., not participating.


text:
    Epps v. Remmel.
    5-3139
    373 S. W. 2d 141
    Opinion delivered December 16, 1963.

      M. V. Moody, for appellant.

      McMillen, Teague <£ Bramhall, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Edith Epps, filed this personal injury suit in the Pulaski Circuit Court alleging that she received bodily injuries when she stepped in a hole in the sidewalk which adjoins appellee’s property on Main Street in Little Rock. Appellee, Remmel, answered denying the allegations of the complaint. Later, defendant filed a motion for a summary judgment. The trial court granted the motion, rendered a judgment in favor of the defendant, Remmel, and the plaintiff, Epps, has appealed.

One of the grounds for the granting of a summary judgment is that there is no genuine issue as to a material fact. Ark. Stat. Anno. § 29-211 (Repl. 1962).

Ark. Stat. Anno. § 19-3806 (Bepl. 1956) gives cities of the first class the power to require by ordinance, resolution, or order, that owners of property abutting on its streets build, maintain and repair sidewalks. It is said that Little Bock has such an ordinance, and to give appellant the benefit of any doubt on that point, in this case, we will assume that there is such an ordinance.

The allegations in the complaint that must be considered in determining whether the trial court was correct in rendering a summary judgment are as follows:

“Plaintiff alleges that at the time of the accident hereinafter described the sidewalk hereinbefore mentioned was out of repair and in an unsafe and dangerous condition for the passage of pedestrians over it. .

‘ ‘ That on the 19th day of December, 1961, about 9 :30 o’clock A.M. plaintiff was walking along said sidewalk in front of the property of defendant,. and stepped and fell into a hole in said sidewalk and violently fell on said street, as a result of which she sustained the injuries hereinafter set out.

“That the negligence of the defendant consisted of the following: Carelessly and negligently and unlawfully leaving the holes in said sidewalk open and unprotected; that defendant knew or .should have known the dangerous condition to the sidewalk; that defendant maintained a nuisance and a menace to those lawfully in and about the said street, and compelled to use said sidewalk; in failing and neglecting to cause the street to be made reasonably safe for persons passing along such street before the occurrence of the slipping and falling of plaintiff.

“That at all times hereinafter mentioned the said Main Street was and still is a public street in common use by the residents of said City and others. That the Arkansas Stats; 1947, provides that the owners of property shall rebuild, maintain and repair foot pavements pursuant to Section No. 19-3806-7.”

In support of his motion for a summary judgment, appellee property owner filed an affidavit stating in substance: That lie inherited, the property; that it was held in trust for him until he became 35 years of age in 1951, at which time the property was conveyed to him; that the sidewalk in front of the property is in the same condition as it was when he inherited the property; that he has not at any time had any demand or request from the city to do any maintenance or repairs on the sidewalk, and that he has done none. Appellant filed no response to the affidavit.

Assuming for the purposes of this decision that a city ordinance requires the property owner to repair the sidewalk adjoining his property and appellant failed to comply with the ordinance, still there would be no liability by the appellee property owner to the appellant solely by reason of his failure to make the repairs. It is said in Restatement, Torts, § 288, p. 761: “Such ordinances [requiring adjoining property owners to repair sidewalks] are construed as creating a duty enforceable only by the municipality and do not subject such owners to liability for bodily-harm caused to a-wayfarer bj^ their violations of the ordinances. See also, Major v. Fraser, 368 P. 2d 369; Sternitzke v. Donahue’s Jewelers, 83 N. W. 2d 96; Woods v. City of Palatka, 63 So. 2d 636; Vissman v. Koby, 309 S. W. 2d 345; Schaefer v. Lenahan, 146 P. 2d 929. There is an exhaustive annotation on the subject in 88 A. L. R. 2d 340, citing dozens of cases supporting this rule.

Of course, if appellant had affirmatively done something to the sidewalk, thereby causing a dangerous or hazardous condition, there could be liability as was pointed out in Arkansas Fuel Co. v. Downs, 205 Ark. 281, 168 S. W. 2d 419. But, in the case at bar, appellee shows by his affidavit that nothing of that kind occurred, and appellant did not raise an issue on that point by filing a counter-affidavit.

If appellant contends that the condition of the sidewalk was caused by an affirmative act of the property owner, appellee’s affidavit should have been controverted. By way of illustration, it is stated by Barron and Holtzoff, Federal Practice and Procedure, 1231 (we have adopted Rule 56 of Federal Practice and Procedure, Arki Stat. Anno. § 29-211 [Repl. 1962]): “To take a simple example, if in an action on a promissory note, the defendant in his answer denies the making of the note; the plaintiff makes a motion for a summary judgment, accompanying it by an affidavit of a person who swears that he saw the defendant sign the note; and the defendant does not file an opposing affidavit, summary judgment should be rendered for the plaintiff. On the other hand, if the defendant files an affidavit to the effect that his purported signature is a forgery or that it was affixed by a person who was not authorized to do so, a genuine issue as to a material fact is created, and the case must go to trial.” The court said in United States v. Dollar, 100 F. Supp. 881: “The motion [for summary judgment] requires the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.”

From the record in this case it does not appear that there is a genuine issue of a material fact, and when the established law is applied to the facts as shown by the record, there can be no recovery. The trial court was, therefore, correct in sustaining the motion for a summary judgment.

Affirmed.