text:
    Welch v. Farber.
    4-3277
    Opinion delivered January 22, 1934.

      W. L. Curtis and Roy Gean, for appellant.

      Cravens, Cravens & Friedman, for appellee.
   Butler, J.

On the 15th day of May, 1931, Mrs. Charlotte Vincent, now Mrs. Charlotte Vincent Welch, contracted to and did sell to Arnold Farber a parcel of land_ in the city of Fort Smith upon which was located a building in which the Monumental Cut Stone Company had been engaged in business for a number of years. This was the trade name under which Mrs. Vincent and her husband Operated. A stock of monuments, markers and other material, together with the office fixtures, machinery and equipment used for carrying on the business, was sold with the lot and building. The agreed price was $15,000, five thousand dollars to be paid in cash and the balance in deferred payments evidenced by promissory notes bearing interest at the rate of six per cent, per annum. The first six notes were for $1,200 each, the one first maturing being due on November 15, 1931, and the others falling due at intervals of six months thereafter. The last two notes were for $1,400 each, one due November 15, 1934, and the other on November 15, 1935. A written contract was entered into between the seller and the buyer by which the title to the personal property was retained in the seller until all the notes had been paid, and Mrs. Vincent was to, and did, prepare a deed which was placed in escrow in a Fort Smith bank according to the terms of the contract. The contract contained other provisions which are not material to the controversy here involved.

Default having been made in the ■ payment of the matured notes, and, after some forbearance on the part of the seller, she filed suit in the chancery court alleging such default and that the defendant, Farber,, was selling and disposing of the merchandise on hand without reference to cost or value and appropriating the proceeds to his own use; that he was threatening to remove and carry away the remainder with the equipment and fixtures, and that he was insolvent. She. prayed for a receiver pending the litigation to take charge of, and preserve, the property. At the final hearing it was agreed that the relief sought was the cancellation of the deed and the recovery of the property delivered to Farber and the bills receivable obtained by him resulting from the sale of the property, .the plaintiff waiving any right to a money judgment against the defendant on the notes referred to in the complaint.

The defendant answered admitting the purchase, the execution of the contract, and the failure to pay the notes as they matured, but pleaded as an affirmative defense fraud practiced by the plaintiff in the negotiations of the sale and the execution of the contract in that certain material, false and fraudulent representations were made to the effect that the income of the business prior to the time of the sale approximated the yearly sum of $15,000, which representations were relied on and were the inducing cause for the purchase and the execution- of the contract; that the same were false and that the annual income instead of being as represented, did not exceed the sum of $8,102.94. The defendant further alleged that he had paid to the plaintiff besides the initial payment of $5,000 other sums on the principal, and the interest accruing, in the aggregate sum of $6,100, and that he had realized from the business less than $3,100. He prayed for a reseissipn of the sale, cancellation of the notes, and that he be allowed to offset against the sums realized from the business the amount paid to the plaintiff, and that he have judgment for the difference between said amounts in the sum of $3,000. This answer was made a cross-complaint to which the plaintiff filed her reply denying its allegations.

On the testimony adduced the trial court found for the defendant on his cross-complaint. On motion, this decree was set aside, the case was reopened and further testimony taken which resulted in a final decree holding in effect as in the first,

The court made a number of findings of fact and law which were in effect that the plaintiff recover the property sold Farber, less such as had been disposed of by him prior to the appointment of the receiver, and that the deed describing the real estate held in escrow be returned to her and canceled, and that she retain possession of a “sand blasting machine” which had been affixed to and become a part of the real estate.

The court found the allegations of fraud of the cross-complaint sustained by the evidence and that the amount paid appellant exceeded by the sum of $2,500 the value of the merchandise sold by him and for which he was entitled to judgment, and in effect denied appellant’s prayer that she have the bills receivable for her merchandise sold by Farber, for which he had not collected, but that Farber should recover all of the property, accounts and money in the hands of the receiver, less that ordered returned to appellant as aforesaid.

This appeal challenges the correctness of the decree on three grounds. First, that the finding of the chancellor to the effect that fraud was practiced by the plaintiff (appellant here) and relied upon by the defendant (appellee here) is against the preponderance of the-testimony; second, that the court erred in permitting a recovery in favor of the defendant because of a delay on the part of said defendant in seeking to rescind his contract of purchase; and, third, that the judgment in favor of the defendant on his cross-complaint is not sustained by the evidence, because, it is claimed that the preponderance of the evidence is .against the finding of the court in that respect, and shows that the amount of the merchandise sold and the. reasonable rental value of the building equals or exceeds the amount paid by the defendant to plaintiff on the purchase price.

The principles applicable to the issues involved and the evidence adduced are well settled. On appeal from courts of equity, this court tries and determines the case de novo, and only on the competent testimony adduced. If it should appear that the evidence is equally balanced, or so nearly so as to leave it doubtful where the preponderance lies, the decision of the trial court will not be disturbed. But, where a candid consideration and analysis of the evidence leads this court to the conclusion that the preponderance is against the judgment and decree of the lower court, it becomes our duty to reverse the decision. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160; Johns v. Road Imp. Dist., etc., 142 Ark. 73, 218 S. W. 389.

Applying these rules to the consideration of the evidence adduced, we have no hesitancy in reaching the conclusion that the finding and decree of the chancellor is against the preponderance of the evidence -on each of the questions decided by him relative to and sustaining the prayer of the cross-complaint. Fraud may be shown not only by direct or positive evidence, but may be proved by circumstances from which an inference of fraud may arise. The burden is upon him who alleges fraud to prove the same by clear and satisfactory evidence. Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; DuFresne v. Paul, 144 Ark. 87, 221 S. W. 485; Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524. In order to establish actionable fraud, the representations must be of a decided and reliable character which are calculated to mislead the purchaser and induce him to buy on the faith and confidence of the same. The false statement must be of an existing fact known by the one who makes such statement to be false, or, where he does not know, asserts it to be true with the intent to have the party to whom it is made act upon it to his injury. Such must be the effect on the party to whom the statement is made. Joyce v. McCord, 123 Ark. 492, 185 S. W. 775, and cases cited supra.

To satisfy this rule, reliance must be had upon the testimony of Farber, which was in line with the allegations of his cross-complaint.

It is the contention of counsel for the appellee that his testimony relating to the alleged false representations is corroborated by the testimony of Mr. Shaw, the auditor employed to audit the books of the Monumental Cut Stone Company. It is also appellee’s contention that Shaw’s testimony is to the effect that Mrs. Vincent attempted to bribe him and to pay him the sum of $100 to “doctor” his audit so as to induce Farber to purchase at the price she had named, $20,000. We have carefully examined the transcript of Mr. Shaw’s testimony and think the interpretation of counsel is unwarranted. We are of the opinion that it does not corroborate the statements of Farber, nor does he state that Mrs. Vincent attempted to bribe him to alter the audit. In testifying as to how he made the audit and as to the books he used, he stated that it was not a complete audit because he did not have a complete set of records; that he had to use a combined cash book and journal; that he asked Mrs. Vincent for the general ledger and for the inventory, and that she said she didn’t have either, and he so informed Farber. Neither Farber, Mrs. Vincent nor Shaw were asked if any explanation was given by Mrs. Vincent as to why she did not have the records asked for, and no explanation was given by any other witness.

In answer to a question relative to conversations had with Mrs. Vincent, Shaw stated that he told her that it did not look to him like the business would justify the price she was asking, and that she said that there were some items of income which were not on that set of records, and when he was asked, “Where did she claim the other set of records was?” he answered, “She didn’t say.” He was asked if he requested her to produce them and answered that he did, but that he didn’t remember what she said. He was then asked, “Can you recollect what she said about the other records?” and answered, “The only thing I can be positive of is the fact that she said all of the sales weren’t on the book that I had audited.” Relative to the offer of $100 made by Mrs. Vincent to Shaw, his testimony is that “she asked me if I would help her sell it, and I told her I would not on that $20,000 basis because I could not tell the man the business was worth that when it wasn’t; and the conversation went back and forth.” When asked if anything was said about getting him to change the audit, he said, “She asked me if I would fix it so it would look better.” He was then asked if “she offered to pay you anything,” and answered that she offered to pay him $100 and did pay him. that amount and that he had spent it. He was then asked, “What did she give you that $100 for?” and he answered, “She gave me the $100 to help her sell the business.”

The most to be gathered from this testimony is that the witness, Shaw, inferred that there were other records than those he had examined, and it is as reasonable to presume, as otherwise, that he had reference to the general ledger and inventory which Mrs. Vincent told him she did not have. He nowhere states, even when pressed, that she told him she had another set of books, and that from these it would appear that the income from the preceding year was $15,000 or any other sum. It is also clear that the offer by Mrs. Vincent and the acceptance by Shaw of the $100 was not considered as a bribe but as a fee paid Shaw for a legitimate purpose, namely, his assistance in the sale of the business. This he told Farber, and also her request for him to fix the audit so it would look better.

The only other person who testified relative to the $100 paid to Shaw and the statements made during the negotiations for the sale and purchase of the business was Mrs. Vincent. She testified that she proposed to sell her business to Farber for $20,000, but before he would trade with her he had an audit made and declined to buy at that figure; that sometime after this he approached her and offered $15,000 for the business, and she accepted it; that she never represented to him or to Shaw, or to any one else, what the amount of gross sales was, or ihe net earnings; she denied the testimony of Farber that she had prepared a list of figures on a piece of yellow paper purporting to show what the income was for the year preceding the sale; which amounted to $15,778.32, or that she had gotten this off of a private set of books which correctly showed the income from the business; and she had never made such statements to Farber or any one else; that she knew nothing about the adding machine figures which had been exhibited by Farber with his testimony; that she did not know how he had gotten these figures or from what source they were derived, except that she had turned her bank book over to him and he might have gotten it from that, as that was the only way he. could have gotten it; that the hank book showed deposits that didn’t represent sales from the business, but included sums from rental property, borrowed money, and other items. (It was shown by a witness that the first items on the adding machine record were indentical with items which appeared as deposits on the bank book.) Mrs. Vincent stated that she had never seen the audit made by Mr. Shaw, and had never been furnished a copy of it, although she was present during the time he was working on the audit which was done at her place of business, and she knew the work was being done for the purpose of informing Mr. Farber, in order to enable him to determine whether or not he would buy the business. In reference to the $100, she stated that Shaw asked her what she would give him if he would help her sell the shop and that she told him she would give him $100; that she did pay him this sum when the sale was made.

The only testimony relating to the representations claimed to have been made by Mrs. Vincent to Farber about the set of books and that they showed an income in excess of. $15,000, is the testimony of Farber himself, on the one hand, and Mrs. Vincent on the other, and when Farber’s statement regarding this is viewed in the light of what he actually did and how the' trade was finally consummated, it seems to us to be unreasonable and contrary to the conduct of a prudent business man, such as the evidence shows Farber to have been.

When offered the business at a certain price, before he would discuss the amount, he states he had an auditor examine the books and was told by that auditor that the income as reflected by the combined cash book and journal was a little in excess of $8,000, but that the general ledger and inventory were missing, and he. had not been able to obtain them. His testimony also shows that on the receipt of the audit and the information furnished him by Shaw, which included the. offer made by Mrs. Vincent to Shaw of the $100, and the request by her that he make the audit look better, Farber refused to pay $20,000 and broke off negotiations; that afterward he bought the propei’ty for $5,000 less than the. sum first asked. This testimony shows the fore-thoughtful and prudent business man, and yet further on in his testimony he assumes quite a different character. His entire character changes to that of the simplicity and confiding nature of a child, so that on the unsupported statement of Mrs. Vincent as to what the income was he was induced to pay out $5,000 in cash and to obligate himself to pay $10,000 more, when he had been previously informed of her request that the audit be changed to make a better showing of income. He told of how appellant deceived him by having some figures on a yellow sheet of paper which she had prepared from “the other set of books.” He was so trustful he was willing to accept this as a true statement of the income from the business, without ever seeing these books, and so confiding he did not even obtain and retain the “yellow sheet” and as a voucher for the truth of his statement had only an adding machine slip to show, which he himself had prepared.

His testimony has but little weight with us, and fails to satisfy the rule before stated regarding the sufficiency of proof of fraud. We first conclude that the evidence, fairly weighed, preponderates against the claim of fraudulent representations, and, further, that if any were made they were not relied upon by Farber, but that he took advantage of the information gained from his investigations to beat Mrs. Vincent down $5,000. Another significant fact, in our opinion, is that Farber has never explained when or how he became apprised that the statements he claims Mrs. Vincent made to him were false. He was in charge of the business for more than a year and a half and during that time he had ample opportunity to thoroughly acquaint himself with the business, yet he made no complaint to the seller, and gave no evidence of being disappointed in the business. The only thing the record discloses he did with respect to Mrs. Vincent was to importune her for indulgence in the payment of his obligation and to secure from her a postponement of the first note then due. to beyond 1935. He was making small payments on the principal and paid the accrued interest during that time, and it was onfy when Mrs. Vincent would no longer defer her clemauds and 'brought suit to enforce them that Farber discovered that he had been defrauded. In attempting to explain how and when the discovery of the fraud was made, which Farber in his testimony did not disclose, his attorney argues that the discovery was made when ihe motion for the production of the books .was filed and there was only the one set — the one audited — which was produced and the correct set showing the true amount of the income, as claimed by Mrs. Vincent, was not produced. This argument is not valid, for an examination of the motion for the production of the books discloses that it contains the following statement: “* * * it is necessary that said defendant have access to said books, papers, records and documents for the purpose of having the same audited; that the defendant contends and will contend that the income and value of said business was grossly exaggerated and misrepresented by the plaintiff herein, and that the defendant, relying upon said misrepresentations, entered into the, contract referred to in plaintiff’s complaint.” This motion was filed January 2,1933, after the suit was filed and the receiver appointed, and Mr. Farber did not, in that motion, or anywhere else, disclose how or when he discovered he. had been defrauded.

During all this time the record shows that he was selling the property which had been conveyed to him by the conditional sale, and using the proceeds for other purposes than for paying his debt to Mrs. Vincent, and in our opinion the sums thus gained were more than sufficient to compensate him for the money paid appellee.

We think therefore that, even if it had been shown that Mrs. Vincent deceived Farber and induced him to make the purchase by false statements, the conclusion reached by the trial court regarding the. amount of material sold by Farber and allowed him as an offset is not supported by the weight of the testimony, and that in fact he has suffered no injury.

The decree is, for the reasons stated, reversed and the cause remanded with directions to dismiss the cross-complaint, and for such further proceedings in confórmity with this opinion as may be necessary to grant to the appellant the relief prayed, with her costs.


source: Caselaw Access Project

author: Johnson, C. J.,

license: Public Domain

text:
    Pacific Mutual Life Insurance Company v. Bierman.
    4-3247
    Opinion delivered January 29, 1934.

      Owens & Ehrman, for appellant.

      Fred A. Snodgress and Sam Robinson, for appellee.
   Johnson, C. J.,

(after stating the facts). The paramount and controlling question here presented is the removability of this cause from the Pulaski Circuit Court to the Federal court for the Eastern District of Arkansas. It is the well-settled law that removability is tested solely by the complaint and the petition for removal. Appellee ’s complaint shows that he was seeking to recover from appellant $2,675 as damages for permanent disability. In addition to this, he sought recovery of twelve per cent, penalty upon $2,675. Twelve per cent, of $2,675 is $321. These two items, when added, aggregate $2,996. In addition to this sum, appellee sought to recover a reasonable attorney’s fee.

We expressly held in Mutual Life Insurance Co. v. Marsh, 185 Ark. 332, 47 S. W. (2d) 585, that the twelve per cent, penalty, provided for by § 6155 of Crawford & Moses’ Digest, was not an item of costs, and therefore should be added to the amount sought to be recovered in testing the sufficiency of a petition for removal. The headnote reads as follows:

The amount in controversy in an action on an insurance policy for $3,000 plus 12 per cent, penalty is $3,600, which entitled the defendant, a nonresident, to removal of the cause to the Federal court, under title 28, § 71, USCA.”

In the more recent case of Missouri State Life Insurance Co. v. Johnson, we had before us the question as to whether a reasonable attorney’s fee should be added to the amount sought to be recovered plus the twelve (12%) per cent, penalty, and we determined this question in favor of-the insured. The effect of our holding was that the reasonable attorney’s fee, provided for by statute, was an item of cost, and therefore should not be considered on the question of removability. The Johnson case was reviewed by the Supreme Court of the United States, wherein it was determined that the Supreme Court of Arkansas had erred in holding that a reasonable attorney’s fee should not be added in determining the question of removability. In disposing of the question, Mr. Justice McReynolds said:

“In the State court the present respondent sought to enforce the liability imposed by statute for his benefit —to collect something to which the law gave him a right. The amount so demanded became part of the matter put in controversy by the complaint, and not mere ‘costs’ excluded from the reckoning by the jurisdictional and removal statutes.” Missouri State Life Insurance Co. v. Jones, 290 U. S. 199, 78 L. ed. 135.

In accordance with the opinion of the Supreme Court of the United States, we must now hold that, when a reasonable attorney’s fee is a matter in controversy, and when such fee-, added to the specific sum in controversy, aggregates a sum in excess of $3,000, and all other requisites are present, such cause of action is removable from the State to the Federal courts.

In the instant case, when a reasonable attorney’s fee is taken into consideration on the question of removability, it is made certain that the total amount in controversy is in excess of $3,000. It is perfectly evident that $4 would not be a reasonable attorney’s fee in a controversy wherein practically $3,000 is involved. We therefore conclude that the trial court erred in refusing to remove this cause to the Federal District Court for the Eastern District of Arkansas.

For the error indicated, the cause is reversed and remanded with directions to enter an order of removal, in accordance with the petition and bond therefor.


author: Johnson, C. J.

text:
    McNeil v. Harris.
    4-3312
    Opinion delivered January 29, 1934.

      Rice & Rice, for appellant.

      Vol T. Lindsey, for appellee.
   Johnson, C. J.

This is a foreclosure action instituted by appellees against appellants in the Benton County Chancery Court. A default decree was entered, and this appeal is prosecuted therefrom. But one question is presented for determination, namely, the construction of the language contained in the notes evidencing the indebtedness secured by the mortgage. One of the notes reads as follows:

“$1,000 Endorsement Balance
Bogers, Ark., July 9,1928 on due on
On or before Aug. 15, 1932 principal principal
—days after date I, we, or 192 $.....,......$...............
either of us, promise to pay 192 • $............$...............■
to the order of 192 $............$...............
B. J. Jeffords. 192 $............$...............
One Thousand — Dollars 192 $.-- — --- $...............
For value received, negotiable and payable at the Farmers ’ State Bank, without defalcation or discount, and with interest from date at the rate of 8 per cent, per annum, payable........................until paid, and if not paid when due with collection charges and attorney’s fees, and, if interest be not paid annually, to become as principal, and bear the same rate of interest. The makers and indorsers severally waive presentment for payment, protest and notice of protest, and nonpayment of this note, and agree to extension of this note from time to time without notice.
“No.................................... (Signed) T. S. McNeil
“ Grace McNeil
“Due on or before Aug. 15, 1932.
“P. O. Bogers, Arkansas.”

The following appears on the back of said note:

“For value received, I hereby assign the within note to T. E. Harris, Vol T. Lindsey and E. W. Vinson,'without recourse.
“B. J. Jeffords.”

The trial court, in its decree, compounded interest annually on the notes in controversy at 8 per cent., and this is the alleged error presented for decision.

We think the decree is correct. The language employed by the parties in the note as follows: ‘ ‘ and if interest be not paid annually, to become as principal, and bear the same rate of interest, ’ ’ when construed with all other provisions of the note, makes it clear that it was the intention of the parties that the interest mature annually, instead of at the maturity of the note as contended by appellants.

The decree is correct, and must be affirmed.


author: Smith, J.

text:
    Bradley v. Ashby.
    4-3302
    Opinion delivered January 29, 1934.

      Isaac McClellan and Woodrow McClellan, for appellant.

      House, Moses & Holmes and W. R. Roddy, for appellee.
   Smith, J.

On January 14, 1933, an adjourned day of the October, 1932, term of the Grant Chancery Court, a decree was rendered which contained the following findings of fact: On July 31,1928, J. H. Bradley executed a promissory note to Greene & Meadors for $2,500, due September 10, 1928. To secure this note, and as collateral thereto, Bradley pledged to Greene & Meadors six notes secured by a vendor’s lien on a forty-acre tract of land which had been conveyed by Bradley to one A. C. Moore. Thereafter Moore reconveyed the land to Bradley, thereby vesting the title in Bradley. The court was evidently and correctly of the opinion that the reconveyance of the land to Bradley by Moore did not operate to extinguish the vendor’s lien as against the holder of the purchase money notes. It was found that $936 was due on the $2,500 note, for which judgment was rendered, and it was also ordered that the land be sold. The decree was a complete and final adjudication of the questions raised by the pleadings and the testimony.

Thereafter, but before the expiration of the term at which this decree was rendered, a motion was filed by Bradley to vacate the decree upon the ground of newly-discovered evidence. Bradley had brought the original suit to cancel his note and to secure the return of the six collateral notes, upon the allegation that he had paid the $2,500 note in full. An intervention was filed in the name of Bradley’s wife, in which she alleged that she had never joined in the execution of a deed to Moore, and that the land was her homestead. She prayed that the deed be declared void, and that her rights of dower and homestead be protected.

No ruling was made on the intervention or the motion to vacate the decree of January 14,1933, until April 24, 1933, which was the first day of the April, 1933, term of the Grant Chancery Court. On that day, and before the opening of the new term, the chancellor overruled the motion to vacate, and dismissed the intervention, no competent testimony being offered in support of its allegations. A decree to that effect was entered as a proceeding had at a day of the October, 1932, term of the court. It is unnecessary to pass upon the question whether there could be a session of both terms on the same day.

An appeal has been prosecuted, and a transcript incorporating both the decree of January 14,1933, and that of April 24, 1933, was filed with the clerk of this court on October 5, 1933.

The effect of the decree of April 24, 1933, was to leave in full force the decree of January 14, 1933, and this appeal has not been prosecuted within the time limited by law to bring the January 14th decree before us for review, as inore than six months expired after its rendition before lodging the transcript in this court.

It was held, in the case of Oxford Telephone Mfg. Co. v. Arkansas Nat. Bank, 134 Ark. 386, 204 S. W. 1140 (to quote the headnote), that: “The time for taking an appeal to the Supreme Court is six months after the rendition of the judgment, order or decree sought to be reviewed ; and in a proceeding in chancery this time is not extended by reason of the filing of a motion to vacate the decree.” See also Pearce v. People’s Sav. Bank & Trust Co., 152 Ark. 581, 238 S. W. 1063; Moore v. Henderson, 74 Ark. 181, 85 S. W. 237.

The appeal, not having been taken within the time provided by the statute, must be dismissed, and it is so ordered.


author: Humphreys, J.

text:
    Grand National Bank of St. Louis v. Hutchings.
    4-3305
    Opinion delivered January 29, 1934.

      W. F. Reeves, for appellant.

      Connelly Harrington and C. C. Elrod, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellees, in the chancery court of Benton County, to recover the amount of $25,000 and interest on a note, and to foreclose two mortgages, one on real estate and the. other on household goods, given by appellees on December. 1, 1930, to secure the payment of same. The complaint alleges the purchase of the note for value before maturity and default in the payment of same by appellees.

Appellees interposed the defense that the property described in the mortgage was the sole and separate property- of appellee, Alma E. Hutchings, and that she executed the note and mortgage to a trustee to enable her husband, Harold G. Hutchings, co-appellee herein, who joined in the execution of the note and mortgages, to pledge or use them as collateral along with other collateral he owned to borrow $50,000 from appellant, and that the note for $50,000, in evidence of the amount he borrowed from appellant, was paid in full out of the other collateral deposited with appellant at the time, which had the effect of nullifying the $25,000 note and mortgages sued upon.

The issue joined was tried by the chancellor upon the testimony introduced by the respective parties, from which he made the following finding:

"The court finds that the said $25,000 note, together with real estate mortgage and chattel mortgage, were executed upon the property of Alma E. Hutchings, for the sole purpose of being hypothecated and pledged to secure a certain $50,000 promissory note, by Harold G. Hutchings, to the Grand National Bank of St. Louis, Missouri, dated December 1, 1930, and for no other purpose, and further finds that the property described in said mortgages was the sole and separate property of Alma E. Hutchings, and that the $50,000 note, for which the said $25,000 note secured by said real estate and chattel mortgage was fully paid and discharged on July 20, 1931, thereby fully satisfying and canceling and discharging the said $25,000 note, together with the real estate mortgage and chattel mortage securing same.”

A decree was rendered in accordance with the findings canceling said note and mortgage, from which is this appeal;

We have read the testimony very carefully, and have concluded that the findings of the chancellor are sustained by tbe weight thereof. We deem it unnecessary to set this evidence out, as it would unduly extend this opinion and serve no useful purpose in cases which might arise in the future.

. There is no dispute between the parties that, when a pledge is made and the purposes for which same is made have been fully complied with, the property so pledged is released to the pledgeor. After conceding this proposition of law, learned counsel for appellant attempt to show as a matter of fact that, by mutual agreement, said note and mortgage were again pledged to secure whatever indebtedness might accrue to appellant by appellee, Harold G. Hutchings, in the future. The chancellor found that the evidence was insufficient to show that there was a second pledge of the note and mortgage, and, in the opinion of the court, was correct in so finding.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Parks v. Johnston.
    4-3313
    Opinion delivered January 29, 1934.

      J. S. Jameson and John Mayes, for appellant.

      James B. McDonough, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the chancellor erred in decreeing a specific performance of the contract, appellant claiming that by its terms he had the right to refuse to perform so long as an abstract of title was not furnished “that was satisfactory to him,” and that no more than liquidated damages could be recovered for his breach of the contract, the $100 which he insisted had been agreed upon as liquidated damages and paid to bind the bargain.

The evidence, however, is amply sufficient to show the making of the contract, its terms and appellant’s refusal to- perform it. Appellant could not arbitrarily refuse to accept a title shown by the abstract to be a good and merchantable title, a complete and perfect title in fact; and under no- proper construction of the contract or agreement of- purchase was he»permitted to refuse to perform same for any reason and escape the obligations thereof by the payment of $100 as liquidated damages. There Avas no such provision in the contract. It was a contract of sale and purchase, not an option to buy, properly entered into, and he Avas bound by its terms upon its performance by the appellee to take the land as agreed, and the chancellor correctly held that appellee was entitled to a specific performance of the contract.

There was. no right of election on the appellant’s part under the terms of the contract to refuse to perform it upon the payment of $100 damages for his failure to do so; nor did any such offer lessen in any way appellee’s right to a specific performance, as the chancellor held, upon his compliance Avith the terms of the contract.

Neither is there any merit in appellant’s claim of a right to refuse to perform the contract on account of any insufficient description in the lands for the road to be-laid out on. The testimony shows that there had been a road already laid out and in use on the land, and that the description of the right-of-way of said road was the same in this deed as it was in the deeds under which appellee held the land.

We find the decree of the chancellor in all respects correct, and it must be affirmed. It is so ordered.


author: Mehaffy, J.

text:
    Chapman v. Henderson.
    4-3321
    Opinion delivered January 29, 1934.

      Gaughan, Sifford, Godwin & Gaughan and Mahony & Yocum, for appellants.

      Powell, Smead & Knox, for appellee.
   Mehaffy, J.

The appellee filed snit in the Union Circnit Conrt against the appellants to recover damages for the death of her son. She alleged that she was the mother and next of kin of William Henderson, deceased, who died in Union County, Arkansas, on March 7, 1932, as a result of injury sustained by him on account of the negligence and carelessness of the servants of appellants, E. L. Chapman and Sam E. Wilson, Jr. It was alleged that several days prior to the death of said William Henderson, he was employed by the appellants as a derrick man, engaged in the drilling of an oil well on a lease belonging to appellants, in Union County, Arkansas; that the deceased was a member of the night drilling crew, and was directly under the supervision and control of Homer Durio, the night driller in charge of the operations. The. appellants were partners, and Henderson was employed by them.

It was alleged that on the night of March 7, 1932, the said Henderson was engaged in the drilling of said well in his capacity as a derrick man; that as a part of his duties it was necessary for him to climb up into the derrick, a distance of about 75 feet, and go out on the fourble board for the purpose of connecting the elevators Avith the drill pipe in order to lower the same into the. Avell; that the appellants Avere negligent in failing to exercise ordinary care to provide Henderson with a reasonably safe place in which to Avork; that they had carelessly and negligently permitted large quantities of oil to drip over and upon said fourble board, causing the same to become slippery and dangerous; that on the night of the death of Henderson, snow was falling, and the fourble board had become covered with snow and Avater, and for that reason was slippery and dangerous; that the appellants, their servants, agents and employees had negligently and carelessly failed to maintain proper light upon said derrick, requiring Henderson to perform his duties in almost total darkness; that the drilling-crew had great difficulty that night in getting the drill stem into the hole, and were thereby delayed, and that for that reason the said Durio, the driller in charge, was working his crew at a rapid rate of speed; that shortly before the accident Henderson had gone down to the derrick floor, to assist in the operation there, and when he had completed his labor there, he Avas directed by saidDurio to return to the fourble board; at the time said direction was given by Durio to Henderson to return to the fourble board, Henderson advised Durio that the fourble board was exceedingly slick and dangerous, and that before returning he desired to obtain a bucket of sand to take up with him and put on the fourble board to make his footing more secure; that said Durio, knowing the condition of the fourble board, carelessly and negligently failed and refused to permit the said Henderson to obtain said bucket of sand, assuring him that he would only run two more fourbles, and that it would not be necessary for him to get the sand, and that Henderson could perform his work without danger; that Henderson, relying on the superior knowledge of his foreman, and in compliance with the order of his foreman, ascended the derrick to the fourble board and connected the elevator to the drill pipe; that, by reason of the negligence of the appellants, he lost his footing, slipped upon said board and fell to the floor below, crushing and mangling him, thereby causing his death; that Henderson was 20 years of age, earning $5.50 per day, and gave promise of earning a much larger sum in the future; that he contributed to the support and maintenance of his mother all of his earning except the amount necessary for his own personal expenses; that he contributed to her $35 per week; his mother was a widow and solely dependent upon him for support; that he had from time to time assured appellee that he would continue to contribute to her support throughout the remainder of her life. She sued for $50,000 damages.

Appellants filed answer denying each of the allegations in the complaint, and alleging that the deceased was provided with a safety belt which was so constructed as to fasten around his waist, and when so adjusted, rendered it impossible for the employee using the same to fall; that deceased was instructed to use the same, but failed and neglected to do so, and was not using it at the time he fell; that such negligence and carelessness on his part was the sole and proximate cause of his death; that the condition of the fourble bohrd was open and obvious, and that he assumed the risk.

There was a trial by jury, a verdict and judgment for $7,500, and the case is here on appeal.

The appellants contend first that the evidence was not sufficient to warrant the court in submitting the case to the jury, and that the court should have directed a verdict for appellants. The burden in this case was upon the appellee to establish the negligence of the appellants, and to prove that such negligence was the proximate cause of the injury.

The. fourble board or platform where the deceased was performing his labor was approximately 75 feet above the floor of the derrick. No other person was with the deceased on this platform. The undisputed proof is that it was a cold night, snowing and sleeting. The evidence shows that a very short time before the injury and death of deceased, he went down to the floor of the derrick, and while there, before he started back to the fourhle board, he told Durio, who was in charge of the work, that the platform was slippery, slick and dangerous, and that he needed some sand. Mr. Durio told him that he had but little more work to do, and told him to go back up and do the work, assuring him that it was safe to finish the work without getting the sand. In obedience, to the order of the foreman, deceased went up to the fourble board and finished his work. One or two witnesses testified that they went to the fourble board shortly after the accident, and that it was not slippery, but it is hardly believable that, the snow and sleet having fallen on the fourble board, it would not be slippery and dangerous. At any rate, this was a question for the jury, and, under the evidence in this case, while there is some, conflict, the jury had a right to believe that the fourble board was covered with snow and sleet, and was slick and dangerous, and that this condition caused the fall of the deceased, and his death.

According to the settled law of this State, it is the duty of the master to exercise ordinary care to provide his servants with a reasonably safe place in which to work and reasonably safe appliances with which to work. Booth & Flynn Co. v. Pearsall, 182 Ark. 854, 32 S. W. (2d) 404; International Harvester Co. of America v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340.

Of course, the burden is upon the. appellee to show that the master failed to perform this duty, and that such failure was the cause of the injury and death of deceased. Whether, under the evidence in this case, the master had exercised care to furnish a safe place in which to work, was a question for the jury, and the evidence is sufficient to show that, because of the sleet and snow and slippery condition of the platform, the place was not safe, and the jury was also justified in finding that the deceased asked for sand in order to make his footing more sure, and that he, at the direction of the foreman, who assured him that it was safe, went back and undertook to perform, and did perform his duty on the platform.

As to the question of negligence of the master, the jury’s finding is conclusive. If the platform was slippery and dangerous, and this was the cause of deceased’s death, while he himself was in the exercise of ordinary care, the master is liable. The evidence shows not only that he had gone onto the fourble ¡board as directed, but that he had completed his work. It is contended, however, that the appellants furnished him a leather belt about four inches wide to be worn by him, and the belt was attached to a rope so that if he slipped or fell, he could only fall a very few feet if he had the .belt on. But it is contended that he did not have the belt on; that if he had he could not have fallen.

It is true that he could not have fallen when he had the belt on, but when he completed his work on the fourble board, he could not go down to the derrick floor or ground without taking the belt off. No one testified that he did not have the belt on when he did his work, and no one disputes the fact that when he finished his work, it was necessary to take off the belt, and go to the ladder to go down.

There was some testimony that on a former occasion deceased had been seen working on the fourble board without the belt. There is no evidence, however, that he did that on this occasion. Even if he at one time did some work there without the 'belt, that does uot shoAA that he would go onto the fourble board covered with snow and ice without the belt, and undertake to do his work. Moreover, the evidence shows that the foreman instructed him after that time that he must not Avork up there without the belt. One witness testified that at one time the foreman was so careful in this particular, that he stopped the engine to require the derrick man to put on his belt. The deceased had begun work on the night that he was injured about 7 p. mv and had been working there from that time until his injury, except the feAv minutes that he was doAvn on the floor of the derrick at the time he told the foreman that the platform was slippery, and that he needed sand.

Whether he had on a belt or not would neither prove nor disprove the negligence of the master. If the proof showed that he Avas working there without the belt, this Avould be evidence of contributory negligence on his part, but would in no way tend to show that the master was not guilty of negligence. The presumption is, unless there is evidence to the contrary,.that the master Avas not negligent, and for that reason it is necessary for the servant to show that the master Avas guilty of negligence; but it is equally true that the servant is presumed to be in the exercise of ordinary care, and for that reason the burden is upon the master to show that the servant was not in the exercise of care. There is no evidence in this record tending to show that the deceased was guilty of any contributory negligence, and none to show that he did not wear the belt while doing his work.

The only reasonable conclusion, that can be reached, is that he wore the belt until he had finished his work, and then undertook to go to the ladder, and, while doing this, slipped and fell to his death because of the slippery condition of the platform. We think the evidence is sufficient to justify the jury in reaching- this conclusion.

It is true that the appellee had to show negligence of the master, and that the injury resulted from such negligence, but he Avas “not bound to prove his case so clearly as to exclude the possibility of any other theory." State ex rel. Iola v. Nelson, 57 Wis. 147, 15 N. W. 14.

In civil cases it is only necessary for tlie plaintiff to prove Iris case by a preponderance of the evidence. This is all that is required in negligence cases. Negligence is proved by a preponderance of the evidence.

“It is well settled that evidence of negligence need not be direct and positive. Circumstantial evidence is sufficient. In the nature of the case, the plaintiff must labor under difficulties in proving the fact of negligence; and, as that fact is always a relative one, it is susceptible of proof by evidence of circumstances bearing more or less directly upon the fact of negligence, a kind of evidence which might not be satisfactory in other classes of cases, open to clearer proof. This on the general principle of the law of evidence which holds that to be sufficient or satisfactory evidence which satisfies an unprejudiced mind.” Shearman & Redfteld on the Law of Negligence, vol. 1, 129.

We are of opinion that, when all the evidence, and circumstances are considered, there was sufficient evidence of negligence to take the ease to the jury.

Two or three statements, made by Mr. Durio after the injury and before the trial, were introduced for the purpose of contradicting Durio. These statements, of course, could not be introduced for any other purpose. As to whether he told the truth at the time of the trial was a question for the .jury.

There is no evidence in the record tending to show that deceased was guilty of contributory negligence. Of course, if he undertook to do the work upon the fourble board without the belt, this would be evidence of negligence; but there is no evidence of this, and it is pure speculation.

The case was submitted to. the jury on correct instructions by the court, and no contention is made that there was any error in the instructions. The deceased knew that the platform on which he was performing his work was slippery and dangerous, and for that reason, he called on the foreman for sand to make his footing more sure-, but he was directed to do his work by the foreman, and it was his duty to obey, unless the danger was so obvious that no prudent man would incur it under like circumstances. Ordinarily a servant may assume that his employer has superior knowledge, and may rely thereon, especially when the act is one that could be made safe by the exercise of special care on the part of the employer. The tendency of modern cases is to permit a rócovery, unless the employer’s direction calls for nothing less than recklessness on the part of the employee, leaving no ground for difference of opinions as to the peril of acting pursuant thereto. Owosso Mfg. Co. v. Drennan, 182 Ark. 389, 31 S. W. (2d) 762; Sawyer v. Rumford Falls Paper Co., 90 Me. 354, 38. Atl. 318, 60 A. S. R. 260; 18 R. C. L. 655-659.

It is next contended that the judgment is excessive. Appellants cite and rely on, first, the case of Liston v. Reynolds, 69 Mont. 480, 223 Pac. 507. In that case, the father sued for damages for the death of his son. At the time of the trial the father was 47 years old, in good health, and employed as a grocery clerk. It was not shown but that he was amply able to maintain hirpself and family by his own efforts. His life expectancy was approximately 23 years. The verdict was for $5,500, and the court said :

“ Taking into consideration the fact that the plaintiff was legally only entitled to the earnings of the deceased for a period of a little less than one year at the time of his death, the ability of the plaintiff to maintain himself and family, and the consequent improbability that the deceased would, after his majority, be expected or compelled to contribute for that purpose, as well as the. earning capacity of the deceased, as shown at the time of the trial, we are led to the belief that the testimony does not warrant the conclusion that plaintiff might reasonably have expected to receive the sum of $375 per year from the. deceased, so long as plaintiff lived.” The deceased, at the time of his death, was 20 years old. He had contributed to his father sums ranging from $20 to $60 per month. At the time of his death, however, he was only earning $40 per month, and it was not shown whether at that time he was making any contributions to his father. That decision, we think,- would be authority for the amount of the verdict in this case, or a larger amount.

The next case relied on is Briggs v. Public Service Ry. Co., 91 N. J. Law 1, 102 Atl. 382. There was a verdict in that case for $5,000. This, however, was the third trial of the case, and on the second trial, there was a verdict for only $2,000, and the verdict and judgment on the third trial was reduced to $2,500. The deceased was earning $30 a month, but was likely to have his wages raised to $63.50 per month. He was 18 years and 8 months of age at the time of his death. The father was self-supporting, and the court held that it was not likely that after the son reached his majority, the father would have received anything very substantial from him, and, yet the court sustained in that case a judgment for $2,500.

The next case relied on as showing that the verdict is excessive is C., R. I. & N. G. R. Co. v. Hanna, 273 S. W. 280. This was a suit by the mother to recover damages for the death of her son. The son, at the time of his death, was approximately 17 years of age.. The plaintiff was 59 years of age, and her husband was living at the time of the trial, but had died since. She had another son, 35 years of age, and two daughters, unmarried. The amount of the judgment was $3,100, but it was compensation merely for the period between the death of Hannah and the date when he would have attained his majority. The court said:

“Under such circumstances we feel unable to say that the jury were not authorized in concluding that a son of the characteristics shown would not have continued after his majority, to some extent at least, to care for and maintain his widowed mother and her interests.”

In the case of Walker v. M. P. Rd. Co., (Mo. App.) 253 S. W. 804, there was a verdict for $7,400, and the court reduced it to $6,000. In that ease the mother was 54 years old, and the son was 18. The contributions were smaller than in the present case, and the mother was considerably older; yet the court sustained a judgment for $6,000.

We think the other cases referred to by appellants do not support their contention that the judgment in this case is excessive. In a case where.'.a-young man, 19 years old, was killed, a judgment rendered in favor of the father for $8,500 was sustained. Murgaviro v. C. B. & Q. Rd. Co., 239 Ill. App. 544.

A judgment for $8,600 was held not excessive in the case of Heed v. Gummere, 192 Ind. 227, 136 N. E. 5. The Kansas court said: ‘ ‘ The court cannot interfere with the verdict upon the ground of excessive damages, unless they are so great as to appear to have been given under the influence of partiality or prejudice. Although the amount awarded was liberal, we cannot disturb the verdict on the ground of excessive damages.” A. T. & S. F. Ry. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.

In the instant case the deceased was earning $5.50 per day; he was 20 years old; he xvas the sole support of his mother, who was 49 years of age; and he was not only contributing liberally to her at the time of his death, but the evidence shows that it xvas his intention to do so as long* as his mother lived. The verdict is not excessive.

We find no error, and the judgment is affirmed.


author: McHaney, J.

text:
    Standard Surety & Casualty Company of New York v. Jackson.
    4-3309
    Opinion delivered January 29, 1934.

      E. W. Moorhead, for appellant.

      R. W. Robins, for appellee.
   McHaney, J.

Appellee obtained a judgment in the Faulkner Circuit Court against one John Morgan in the sum of $750 damages for personal injuries sustained by her while riding as a guest in his automobile. Morgan carried a policy of liability insurance with appellant, and, it defended the action for Morgan. Execution issued, on the judgment, and a nulla bona return was made by the sheriff. She thereafter instituted this action against appellant in the Pulaski Circuit Court to recover the amount of her judgment against Morgan, as- she was authorized to do both by the provisions of said policy, and of act 116, Acts of 1927, p. 667. Appellant defended the action on the ground that Morgan failed to cooperate with it in the trial of the case against him, in that he failed to testify to the same statement of facts in the trial, as he had previously given it in writing, and that he thereby violated the terms of the policy,, which relieved it from any obligation to him, and that therefore it is under no obligation to her. Trial to a jury resulted in a verdict and judgment for appellee in the sum of $802.25 with interest from March 1, 1933, at 6 per cent, per annum.

The policy contained this provision: “B. — Cooperation. The assured shall at all times cooperate with the company (except in a pecuniary way), and whenever requested by the company the assured shall aid in securing information and evidence, effecting settlements, the attendance of witnesses and in prosecuting appeals. The company reserves the right to settle or defend any claim or suit, and the assured shall not voluntarily assume any liability, settle any claim or suit except at his own costs, incur any expense (other than for immediate surgical relief at the time of the injury) or interfere in any negotiations for settlement or legal proceedings.”

A short time after the accident in which appellee was injured, Morgan gave appellant this statement: “I have a five-passenger Chevrolet car, and about 5 o’clock I took my wife and baby boy, and my wife’s aunt, Mrs. Jim Jackson, for a ride. We had started to go to town, and then we decided to ride a little. We wanted to show her ‘Park Hill,’ as she was visiting us for a few days.

“I was driving down a pretty good hill, and was going to go up the -same kind of a hill. • There was a narrow draw where.; the- highway had been filled with a’ dump. I was going* about thirty miles an hour or a little more. We were on- concrete pavement. The pavement had sunk into a pretty good drop or ditch. I saw it just as I hit it. The way it dropped and still stayed in place yon cannot see it until you are right on it. Then, too, I was not looking for a place like that on smooth concrete pavement. I had been over it many times before. We always take everybody there that comes to see us.

“When I hit this place, it threw my car up in the áir. My four-year-old boy was thrown upon my back. I found Mrs. Jackson in the back seat limp, and unconscious. I thought she was dead. I drove up the. top of the hill to a house, and called the man out. He brought a pan of water, and. we bathed her face. She came to after that. She was suffering considerable. We hurried home then, and called Dr. Shelby Atkinson. He gave her a hypodermic. He came back to see her yesterday and today. She is improving today. The doctor strapped up her back yesterday. And today, he decided it would not be necessary to take an X-ray picture.”

On the trial of the case in Faulkner County, he testified that he was driving “something over thirty miles an hour; I wouldn’t say how fast, but I was going thirty, forty or forty-five miles an hour.” Also, that his little boy had climbed on his back, and that he was playing with him as he went down the hill, and, quoting, “I won’t be sure whether I was looking ahead or not at that particular time. I was not expecting anything like this to happen. If I had known this place had been broken in, of course, I would have been on the lookout.” Also, that the boy had been on his back, that he had pushed him back, and that he was standing up against the seat when the accident happened. “I was looking back at the time the accident happened. That is what I told you up there. I had pushed him back.”

Now, it is contended that this testimony is in conflict with his written statement made a short time after the accident, and which is quoted in full hereinabove, and that as a matter of law it constitutes a violation of the “cooperation” clause of the policy above quoted, which entitled appellant to an instructed verdict in its favor. We cannot agree. As we view the evidence, when compared with the written statement, there is no' material conflict in them. In the statement he said he was traveling “about thirty miles an hour or a.little more.” In his testimony he said as to speed, “something over thirty miles an hour; I won’t say how fast, but I was going thirty, forty or forty-five miles an hour. ’ ’ Each showed uncertainty as to exact speed,-and each estimated it at “about thirty or a little more,” in effect. In the statement nothing is said about the little boy getting on his back, nor did he say he was looking ahead. He did say he was not looking for a place like that, and he saw it just as he hit it. His testimony does not contradict anything in the statement, except that he said he was looking back at the time the accident happened. There is no material difference between them, and, therefore, no lack of cooperation within the terms of the policy. Since, as we have shown, there was no failure to cooperate and violation of that clause in the contract, the court should have directed a verdict for appellee, as there was no question to be submitted to the jury. This view of the matter makes it unnecessary to discuss the alleged error in modifying and giving appellant’s instruction No. 3.

Affirmed.


text:
    Roberta Lodge No. 204, F. & A. Masons v. Coleman.
    4-3318
    Opinion delivered January 29, 1934.

      Powell, Smead & Knox, for appellant.

      T. D. Wyvme, for appellee.
   McHaney, J.

Appellants are the Masonic Lodge and its officers at Princeton, Dallas County. August 5, 1929, they made a contract with the county to purchase the old courthouse and grounds in Princeton, which had been abandoned for county purposes since the establishment of the new county seat at Fordyce. Their purpose was to repair the house, which was falling into decay, clean up the grounds, and use the building for a lodge hall. The price agreed upon between 'the lodge and the county was $125, and it was contemplated that the money would have to be raised by subscriptions among the inhabitants of the village and others who had formerly resided there, and who were interested in the restoration and preservation of the old courthouse. To this end a committee was appointed to solicit subscriptions or donations, and appellee, Coleman, a member of the lodge, was elected by the lodge as special treasurer of the fund to be so raised. The committee entered upon its duties and collected $45, which was turned over to appellee, who deposited same to his credit as treasurer in a bank. Thereafter the chairman of the committee died, hard times came on, and nothing further was done about the matter, except the lodge did some repairs and cleaning up to and about the premises. On June 8,1931, appellee, Coleman, without returning the $45 to the lodge, without resigning as special treasurer, and without giving any notice to the lodge of his intention so to do, applied to the county court of Dallas County to purchase the’ same property, and,- on the same day an order was. entered by the court appointing a. Commissioner to make the sale to him, and the sale was made, deed executed and approved, for a consideration of $175. Thereupon he notified the lodge officers of what he had done, and they, on June 18,1931, raised the $125 original purchase price, paid it to the Commissioner originally appointed by the court on August 5, 1929, who executed to the lodge a deed conveying to it the same property.

This suit was thereafter instituted by appellants to cancel appellee’s deed, or to have him declared a trustee for its benefit, and to have his title divested out of him and vested in it. Trial resulted in a decree for appellee, dismissing appellants’ complaint for want of equity.

In this we think the court was in error. Mr. Coleman was not only a member of the lodge, but was its agent or trustee for the handling of the fund with which lo buy the property. He was the agent of the lodge in this respect. Good faith, fair dealing and equity would require Mm to be loyal to his principal, and, before he could act for himself, he would be required to relinquish the trust, turn back the funds held by Mm and notify the lodge of his purpose to buy for himself, in the event it desired to abandon the purchase. This he wholly failed to do. Nor. does the fact that his agency is a gratuitous one affect this principle. Huffman v. Henderson Co., 186 Ark. 792, 56 S. W. (2d) 176; Lybarger v. Lieblong, 186 Ark. 913, 56 S. W. (2d) 760. Appellant still holds the lodge’s money, $45.

The decree will be reversed, and the cause remanded with directions to enter a decree divesting title out of appellee and vesting it in appellant on payment to him of $130, which, together with the $45 he now has, equals the purchase price paid by him.


author: Butler, J.

text:
    Randolph v. Porter.
    4-3310
    Opinion delivered January 29, 1934.

      Roy Gean and D. H. Howell, for appellant.

      J. B. Perrymore and Partain & Agee, for appellee.
   Butler, J.

On or about the 27th day of October, 1931, there was made and filed with the clerk of the probate court of Crawford County, Arkansas, the following affidavit:

“Mulberry, Ark., Oct. 26, 1931.
“We, Dr. J. A. Wigley and Dr. S. C. Grant, hereby state under oath that we know R. H. Randolph personally, and know him to be incapable of attending to any business on account the infirmities of old age, as well as being afflicted with senile dementia.
“J. A. Wigley, M. D.
“S. C. Grant, M. D.
“Subscribed and sworn to before me this the 26th day of October, 1931.
“T. J. House, Notary Public.
“(Seal)
“My commission expires 12-15-34.”

On the same day Horace Wagner filed a petition in said court for letters of guardianship of the person and estate of R. H. Randolph, together with a bond as such guardian, in the sum of $16,000. The clerk thereupon issued the letters to Wagner, and on the 16th day of November, 1931, a day of the regular November term of the probate court, an order was made approving the action of the clerk in vacation. The guardian filed an inventory showing the value of the estate of his ward to be approximately $8,000, and proceeded to administer the same under the orders of the court.

On the 12th day of January, 1933, Randolph married a woman with whom he had been boarding, and, upon learning this, the guardian filed a final accounting, and resigned, and the appellee, J. O. Porter, was appointed guardian in succession, and filed in the probate court a petition seeking authority to employ attorneys to institute proper proceedings to annul the' marriage of Randolph. By his attorneys, Randolph filed a petition to set aside the order made appointing the guardian, on the ground that it was void, because there was no appropriate and proper adjudication of his incompetency, and setting up a number of reasons for this contention. Porter filed a petition for an order mmc pro tunc to correct the records, notice of which was served upon Randolph. The court thereupon made an order mmc pro tunc, correcting the records.

Thereafter, a second petition for order nunc pro tunc was filed, and, upon a hearing of the same, the court made an order to the same effect as the one first made, with the additional finding that Randolph was a resident of Crawford County on November 16, 1931, the date when he was adjudicated incompetent. By the last order the court found that the 16th day of November, 1931, was a day of the regular term of the court; that, upon written statement having been made to the effect that Randolph was of unsound mind and incompetent, the court proceeded to examine into that question, Randolph being then present and actually before the court, and found that the facts were not doubtful, but that Randolph, who was a resident of Crawford County, was of unsound mind and incompetent to transact his business, and that on said date, with that information, and with Randolph present, he was duly adjudged by the court as of unsound mind and incompetent, and the court approved the letters of guardianship and the. bond theretofore acted on by the clerk, but that, through clerical misprision of the clerk, the findings of fact and judgment aforesaid were not entered of record. The court thereupon ordered the judgment to be entered as of November 16, 1931.

Randolph appealed from this order to the circuit court, which court heard evidence and upheld the judgment and finding of the probate court, from which judgment is this appeal.

The same contention is made here as in the circuit court, namely, that the judgment of the probate court correcting the record was not sustained by the evidence. The matter was heard before the circuit court on appeal on the testimony of W. C. Hunter, the county clerk, who identified the affidavit first filed and certain docket notations, and the original order of November 16, 1931, and the testimony of Judge J. C. Smalley, judge of the probate court, who was the judge of that court in 1931 and had remained since, and was the judge at the time the order nunc pro time was made and entered. The order of November 16, 1931, merely recited the presentation to 1hc court of the action by the clerk in appointing the guardian with the letters issued, and the bond and the only order appearing in that record entry was that approving the letters and bond. From the testimony of Judge Smalley, it appears that Randolph was before the court, and that his condition'was not doubtful, but that he was mentally incompetent, and the judge based his conclusions upon information derived from an examination by him of Randolph. He then and there found him to be of unsound mind and incompetent to transact his business and adjudged him to be such; also, that he knew that Randolph was a resident of Crawford County and so found, which findings and order, although made then and there, were by clerical misprision of the clerk omitted from the record, and that from his personal knowledge of the proceedings in the probate court on the 16th day of November, 1931, he made the final order mmc pro tunc of March 11, 1933, correcting the record and making it speak the truth.

It appears from the testimony of Dr. Wigley, one of the affiants to the original affidavit, that he was with Mr. Randolph on the date of the original order in the office of the judge of the court, and they remained there for about thirty minutes, while the judge talked with Randolph; that no witnesses were called or sworn, nor did he heay anybody call court or observe the presence of the sheriff and clerk at the time of the examination of Randolph.

The order having recited that the cause was heard on the 16th. day of November, 1931, and that same was a day of the regular term of court, the presumption must-be indulged that the record- correctly states the facts, and the mere fact that the witness was not present at the opening of the court, or that the sheriff and clerk were not present at the hearing, -is not sufficient to overturn the recitals of the judgment. The probate court, acting •within its constitutional limits, is a court of record of superior original jurisdiction, and, as such, has the inherent power to correct its records at any time so as to make them speak the trilth, even after the term is ended at which the record was made, and, in the absence of evidence to the contrary, the court’s recollection of what occurred must be accepted where its action in correcting the record is challenged. The probate court and the circuit court on appeal are the proper judges of the sufficiency and character of the evidence requisite to satisfy them as to what was the real order of the court and the actual proceedings before it. The rules we have stated are well settled, and may be seen by reference to Bowman v. State, 93 Ark. 168, 129 S. W. 80; Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030; and the recent cases of Kory v. Less, 183 Ark. 553, 37 S. W. (2d) 92, and Morgan v. Scott-Meyer Com. Co., 183 Ark. 637, 48 S. W. (2d) 838.

It was not alleged by Randolph in his petition to set aside the order of the court that he was in fact sane, nor did he appear and testify in the present proceedings either in the probate court or circuit court on appeal. It is argued that he had no notice or information of the purpose for which he was being examined by the judge at the hearing on November 16, 1931, but he was present and the contention is without evidence, for, as already observed, he has not testified in the case, and, if indeed he was ignorant of the purpose for which he was before the court and the nature of the proceeding, he could have so stated. If Randolph was and is competent to transact his business, and therefore able to enter into a marriage contract, his rights are amply protected by § 5834 of Crawford & Moses’ Digest, or he may set up said fact in any proceeding which may be brought to annul his marriage.

We find no reversible error in the rulings of the trial court, and its judgment is therefore affirmed.


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    Fletcher v. Dunn.
    4-3322
    Opinion delivered January 29, 1934.

      Lamb & Adams, for appellant.

      John S. Mosby, for appellee.
   Butler, J.

This action was brought by the appellee under the provisions of §§ 6890, 6897, 6898 of Crawford & Moses’ Digest to subject cotton raised by a tenant in the hands of his mortgagee to the payment of rent and advances made to the tenant of farm animals and implements, necessary for the making of a crop upon the plantation of appellee in Poinsett County, Arkansas. The appellants, as merchants, had advanced supplies to the tenant to aid in the making of his crop, and had taken a mortgage on the crop and certain chattels to secure the same. They defended on the ground that there had been a waiver of the landlord’s lien in their behalf, and that the chattels alleged to have been sold to the tenant were not the property of the appellee, but belonged to her husband, and that as to these there could be no lien in her favor.

On the evidence adduced, the court found in favor of the appellee, sustaining the attachment and rendered judgment for a sum agreed upon between her and the tenant as the true amount due, for the" stock and implements in the sum of $600, for an item of $122.90, lands leased to the tenant and not cultivated, and a further sum of $25.81 interest, making a total of $867.21. The court further found that the appellants wrongfully converted the crops in that amount upon which the appellee had a lien, and rendered judgment against them.

It is the contention of the appellants that the evidence adduced sustains their position. It is conceded that, under § 6890, supra, the landlord would have a lien for the rent and for such articles as were necessary to enable him to make and gather his crop, and that stock and farm implements are such necessary articles. It may also be said that there is no contention that the finding of the chancellor to the effect that the landlord should have a lien on the crops for the land leased which was not cultivated was incorrect, it being stipulated in the lease contract that such land as was not cultivated should pay a stipulated rent per acre. Appellants pitch their sole contention for reversal on the defenses we have named which were set up in the answer.

"We are of the opinion that the evidence fails to show any waiver of the landlord’s lien. The two gentlemen who composed the mercantile firm both testified to the effect that they had had no agreement with the landlord about the waiver of her lien; that the tenant had been their customer before he rented the farm from the appellee, and, at his request, they furnished him necessary supplies to make his crop. They do not even say that the tenant informed them that the landlord would waive her lien. The testimony of the tenant is to the same effect.

The appellee’s husband, her agent, stated that he knew that the appellants were furnishing the tenant supplies to make his crop, and that the lease contract itself stipulated that the tenant was to be furnished by some one other than the landlord, if possible. Mere knowledge that her tenant was being furnished supplies by another would not be sufficient to constitute a waiver of appellee’s lien. Jacobson v. Atkins, 103 Ark. 91, 146 S. W. 133. Neither would the fact that appellee knew that appellants were receiving the cotton be a circumstance to estop her from asserting her lien. It was in evidence that the appellants knew that the tenant was farming appellee’s land, and she might well assume that they would not attempt to convert the proceeds of the crops to her prejudice, and her acquiescence in their conduct is not shown to have worked any harm to them or placed them in a situation less advantageous than they would have been had she objected to their handling the cotton.

The next contention is that the evidence introduced to establish the appellee’s ownership of the mules and farm implements was incompetent because given by her husband, and that his knowledge with respect to the evidence given by him was not obtained while acting as her agent. The third subdivision of § 4146 of Crawford & Moses ’ Digest provides as follows: ‘ ‘ The following persons shall be incompetent to testify: * * * Husband and wife, for or against each other, or concerning any communication made, by one to the other during the marriage, whether called as a witness while that relation subsists or afterward, but either shall be allowed to testify for the other in regard to any business transacted by the one for the other in the capacity of agent.”

The testimony of appellee’s husband regarding the ownership of the property began by an answer to a question propounded by the appellants inquiring as to the time when appellee acquired title to the mules sold to the tenant. He answered that she acquired title to them when she bought the farm in 1925. It is then shown by one of the appellants that the appellee’s husband had mortgaged this property since that date to secure an indebtedness of his own in which mortgage the appellee had not joined, and that in a previous lawsuit, since 1925, she had testified to the effect that the personal property on the farm belonged to her husband. The husband was called in rebuttal, and stated that the appellee had paid off from funds derived from a sale of some property of her own a judgment rendered in favor of the appellants in the previous litigation, and that he had then made a formal conveyance to her of the personal property on the farm, to evidence which he had executed a bill of sale on December 15, 1929, which he exhibited as part of his deposition.

It is contended that this testimony was incompetent within the meaning of the statute last above quoted. It seems that the statute is a re-enactment of the common law which had its origin because of the legal identity of husband and Avife, and, as under the common law no person in interest was permitted to testify in a case, married persons Avere prohibited from testifying for or against each other, since, because of their identity, the interest of one Avould clothe the other with the same relation to the suit. The rights of married women have been enlarged by our statutes so that for all intents and purposes their legal identity at common law has been destroyed (Katzenberg v. Katzenberg, 183 Ark. 626, 37 S. W. (2d) 696), and the Avife’s power to make her own separate contracts and deal Avith property is the same as if she were a feme sole. Married persons therefore are not to be supposed as constantly partaldng of the confidence of each other, but rather as persons having adverse interests to maintain or else that they deal with respect to the property of each other in the relation of principal and agent. The plantation in question Avas the property of the appellee; the stock and farm implements used upon it were appurtenant and necessary to its operation, and in dealing with this property appellee’s husband is presumed to have been acting as the agent of his wife. Section 5594, Crawford & Moses’ Digest.

The bill of sale was evidence of the wife’s oAvnership, and we are of the opinion that the evidence is sufficient to establish the agency of the husband, and to make his testimony competent. The fact that there are some discrepancies and contradictions in his testimony as to the time when the appellee first became the orraer of the property and his dealings with it as contradictory of her testimony relating to her OAvnership, were questions of fact for the chancellor. On the whole case, we are of the opinion that the decree of the trial court is supported by a preponderance of competent testimony, and it is therefore affirmed.