author: McCulloch;, C. J.

text:
    Tipler-Grossman Lumber Company v. Forrest City Box Company.
    Opinion delivered April 4, 1921.

      1. Sales — waiveR of prompt delivery. — Though a contract for the sale of lumber specified lumber which had already been manufactured on the seller’s mill yard, where the purchaser’s attention was called to the fact that the seller was selling part of such lumber to another but the purchaser did not insist on the performance of the- contract to the exclusion of other sales by the seller, it will be held to have waived the expeditious performance of the contract and consented to later delivery.
    2. Sales — time of payment — waiver.—In a buyer’s action for failure to deliver lumber sold, in which the seller claimed that the buyer broke the contract by failure to pay for the lumber delivered, within the time it had agreed to pay, it was error to ignore the issue as to a waiver of prompt payment where there was evidence tending to prove such fact.
    S. Contracts — performance — interference by government.— While a party is generally bound by his contract to perform same, he is excused by lawful interruption or interference by the government of the place where the contract is to be performed.
    4. Contracts — nonperformance — governmental requisition. — A requisition of the subject-matter of a contract by the government in time of war constitutes an excuse for nonperformance by the party who obeys the requisition.
    5. Contracts — governmental interference — instruction.—Where there was no evidence that the seller of lumber was required to furnish lumber under governmental order which interfered with his contract with the buyer, it was error to instruct the jury that the seller’s delay in performance would be excused if caused by priority orders under government control or necessity for war purposes.
    Appeal from St. Francis Circuit Court; J. M. Jackson. Judge;
    reversed.

      C. W. Norton, for appellant.
    1. Plaintiff was not entitled to any so-called government priority orders as having the effect of releasing defendant from its contracts or justifying the cancellation of its contracts by defendant. If Mr. Seaton had had direct and preferential orders from the .government, that would not have authorized him to refuse to perform these contracts. 126 Ark. 46; 189 S. W. 654; Elliott on Contracts (2 ed.), §§ 1891, 1897; 148 Fed. 597; 244 Id. 250; 29 Ark. 330.
    2. The court erred in its construction of the contract that the lumber was to he delivered to plaintiff (purchaser) when loaded on cars at shipping point, and the same error was made in its instructions. 200 S. W. 795. See, also, 111 Ark. 521; Ann. Cases 1916 A 1043; 128 Ark. 124; 193 S. W. 498; 86 Ark. 491-6; 83 Id. 551.
    The two defenses — priority of government orders and a prior breach of contract by plaintiff by nonpayment — are without merit, either in fact or law.

      Mann & Mann, for appellee.
    1. Appellant bad willingly and cheerfully released appellee or acquiesced in the conduct of appellee in not shipping to appellant the lumber as ordered. The consent of appellant to the disposition of the lumber relieves the court of the necessity of construing the contract as it relates to the place of delivery. The authorities cited by appellant do not excuse from performance of the contract, and have no application where performance is waived. 3 A. L. B. 32. The entire output of appellee was consumed by government orders. 9 A. L. B. 1510-15. Appellant can not complain of the instructions given.
    2. There was no breach of contract by appellee. This case is controlled by 188 Ark. 491, and the court properly instructed the jury.
   McCulloch;, C. J.

This is an action instituted by appellant against appellee to recover damages for alleged breach of contract for the sale and delivery of lumber. Appellee denied that it had broken the contract, and alleged that the first breach was committed by appellant in failing to pay for lumber delivered under the contract. Appellee also filed a counterclaim for an unpaid balance in the sum of $323.14 for lumber sold and delivered. There was a trial of the issues before a jury, which resulted in a verdict in favor of appellee on its counterclaim for the recovery of three hundred and five dollars and seventy-two cents.

Appellant was engaged in the lumber business, with its principal place of business in the city of Green Bay, Wisconsin, and appellee was engaged in the lumber manufacturing business at Forrest City, Arkansas, and .had a mill at Calion, Arkansas, where it manufactured rough lumber.

On March 10, 1917, and on March 17, 1917, appellee, entered into contracts with appellant to sell the latter certain specified lumber then manufactured and situated at appellee’s mill at Calion. These contracts were in writing in the form of correspondence between the parties. The first contract was for gum and plain white oak lumber, and the second was for quarter-sawed white oak. The last contract was, as we understand the testimony, substantially complied with, but the breach was committed in the performance of the first contract in regard to the gum lumber. It was specified in the writing that the lumber was to be delivered “Chicago, Illinois, rate of freight, ’ ’ and that the terms of payment were to be cash in sixty days with 2 per cent, discount on payments within ten days from date of invoice. Appellee made shipments of lumber to appellant on these contracts from time to time, beginning on April 28, 1917, and running down to November 14, 1917, when the last car was shipped. Payments were made by appellants on these shipments from time to time, the last payment being made on December 25, 1917, leaving a balance, which the jury found to be the sum specified in the verdict, three hundred and five dollars and seventy-two cents.

During the progress of these transactions a controversy arose between the parties as to when these payments should be made, whether strictly within sixty days after date of invoice, or, as contended by appellant, after the delivery of the lumber at point of destination and the receipt of freight bills, which appellant was to pajr and deduct from the invoices. The controversy does not appear to have reached an acute stage or to a demand on the part of appellee that the payments be made more promptly on penalty of a forfeiture of the contract. The contracts specified lumber which had already been manufactured on the mill yard at Calion, but the evidence discloses the fact that the parties did not continue to treat the contract as applying solely to that lumber, but elected to treat it as applicable to any lumber of those specifications to be manufactured by appellee. The evidence discloses the fact that during the pendency of the contract appellee was selling lumber to Swift & Company of Kansas City, to be used as “shooks” or material for the making of pacldng cases used in the shipment of food products. This was brought to the attention of appellant, who did not insist on the performance of the contract to the exclusion of other sales by appellee in the operation of its mill. This testimony, in other words, warranted a finding that appellant waived the expeditious performance of the contract and consented to later delivery.

The contention of appellant, however, is that appel-lee definitely broke the contract by the unequivocal refusal expressed in a letter of May 6, 1918, to continue to perform the contract. This letter was introduced in evidence, and it expresses a refusal on the part of appellee to furnish any more lumber under the contract. The refusal to do so was put on the ground that appellee was engaged in furnishing shooks to Swift & Company, and that it was in response to a governmental requirement for war purposes. At the conclusion of the letter, however, the subject of appellant’s failure to pay the balance due for lumber shipped was referred to, but was not stated as a breach of the contract on the part of appellant. The letter concludes in the following language :

“While we are on this subject, we should like to remind you that we still hold open account on two cars shipped for you, which have never been settled for, notwithstanding these shipments are about as old as the order itself. There may be some specific and good reason for this delay, but we do not comprehend why the consequences should be ours, particularly so since we do not know where the stock is or who got it.

“We have no other stock which we can offer you; in fact, as stated, all our efforts are centered on supplying our factory, and we have shipped nothing excepting a certain amount of oak for government use.”

The contention of appellee in the trial below was that at that time appellant had already broken the contract by failing to make the payments for lumber already shipped, and that appellee was justified in refusing to ship any more lumber.

There are numerous assignments of error with respect to.the court’s charge to the jury and its refusal to give certain instructions requested by appellant. We deem it sufficient for disposal of the case here to discuss only those assignments which relate to the instructions given by the court at the request of appellee. The first three of these instructions read as follows:

“You are instructed that if you find from a fair preponderance of the evidence that the plaintiff, Tipler-Grossman Lumber Company failed and refused to pay for said lumber, or any part thereof, when the same fell due, which under the contract was within sixty days from the date fo shipment, then the defendant was not required to continue to furnish lumber to the plaintiff while any part of the account was due and unpaid, and your verdict would he for the defendant.”

“You are instructed that if you find from the evidence that the plaintiff Tipler-Grossman Lumber Company failed or refused to pay for said lumber, or any part thereof, when such payment fell due, which under the contract within sixty days from the date of shipment, this would constitute a breach of the contract, and your verdict would be for the defendant.

“And if you further find from the testimony that there is due the defendant on its cross-complaint any sum from the plaintiff, your verdict will be for the defendant for such sum as you may find to he due according to the evidence. ’ ’

“You are instructed that, under the terms of the contract involved in this suit, payments were to'be made two per cent, discount if payment made within ten days of date of shipment or sixty days from date of shipment, so if you find that payments of any sum on any car was withheld after the same was due and request made for payment, this would constitute a breach of the contract, and the plaintiff could not recover, and your verdict should be for the defendant for the balance due it.”

These instructions amounted to a peremptory direction to the jury to return a verdict in favor of appellee, for it was undisputed that appellant had failed to pay some of the invoices for lumber within sixty days after the date thereof. But the instructions ignored the issue raised by the proof as to whether or not appellee waived the punctual payment within the time specified in the contracts. There is proof to the effect that there was necessary delay in ascertaining the amount of freight bills so as to deduct the same from the invoices, and in the correspondence between the parties appellee never at any time insisted that the contract would be forfeited unless payments be made within sixty days from the date of invoice, regardless of time of delivery or the ascertainment of the amount of freight.

Learned counsel refer especially to letters from ap-pellee to appellant, dated, respectively, on October 22, 1917, and November 19, 1917, asking for payment of past due bills, but in neither of these letters was it insisted that there would be a forfeiture of the contract unless payment be promptly made. These letters were merely requests for payments, and, according to the undisputed proof, appellant continued to make partial payments from time to time up to December 25, 1917, and large sums were paid during that time without any objections on the part of appellee that the payments were not being made strictly in accordance with the terms of the contract. These instructions were erroneous in ignoring this issue, and they were in conflict with other instructions on this subject given at the instance of appellant.

The court also' gave the following- instruction, over the objection of appellant:

“You are instructed that if the delay by the defendant in shipping lumber to plaintiff was caused by priority orders under government control, or necessity for war purposes, such delay was not the fault of the defendant, and the priority orders were a legal excuse for such ' delay. ’ ’

The language of this instruction is very obscure in leaving it to the jury to determine what would constitute “priority orders under government control, or necessity •for war purposes,” and without furnishing the jury any guide as to the law on the subject. The general rule of law is that a party is bound by 'his contract to perform, and that he must perform or pay damages upon his failure to do so, but there are exceptions to this general rule, one of which is that performance is excused by lawful interruption or interference by the government of the place where the contract is to be performed. A requisition of the subject-matter of the contract by the government in time of war comes within the exceptions to the general rule, and constitutes an excuse for nonperformance by the party who obeys the requisition.

The Congress of the United States enacted a statute, which was approved June 3,1916, known as the National Defense Act (Compiled Statutes, section 3115 g), which empowered the President of the United States, acting-through the head of any- department of the government, “in addition to the present authorized methods of purchase or procurement, to place any order with any individual, firm, association, company, corporation, or organized manufacturing industry for such products or material as may be required, and which is of the nature and kind usually produced or capable of being produced by such individual, firm, etc.” The act also provides that compliance with all such orders shall be obligatory on any such individual, firm or corporation, and it prescribes a penalty for failing to comply with its provisions.

The case of Roxford Knitting Co. v. Moore & Tierney, 265 Fed. 177, is a leading case on the construction of this statute, and the Supreme Court of the United States refused a writ of certiorari to carry the case up for further review. The court construed the statute not to mean that “all contracts made by the government in a period of national emergency are to have precedence over civilian contracts,” but that where material is furnished under the form of a voluntary contract with the government it will be held to be a requisition under the statutes if under the circumstances it appeared that the contract was executed merely as a form of obedience to governmental orders. To quote the exact language the court said: “That the entire surrounding cireum-stances must be considered to determine whether the formal contract entered into was a voluntary agreement covering the whole matter, or whether it was a mere settlement of details after the manufacturer had been directed to furnish certain material. And it affirmatively appears that the officer in charge of the purchase of supplies for the navy thought he was entitled to use and did use the contract form in cases where the parties on both sides reached an agreement with regard to the price of material. ’ ’

And again the court said: “And when a manufacturer is given to understand that he is required to supply certain goods to the government of the United States, and is told that he has no option to decline to comply, we are satisfied that as to those goods an ‘order’ has been placed or received, within the spirit and intent and the letter of the statute, whether the authoritative direction is written or oral, and notwithstanding the fact that the parties actually come to an agreement in what has the form of a contract.”

There is no evidence in this case that appellee was required to furnish material under a governmental order, written or verbal, which caused interference with the performance of his contract with appellant. In appel-lee’s correspondence with appellant and in the testimony of appellee’s manager on the trial of .the case below, general statements were made that they were furnishing their lumber under government order; but when the witness was interrogated specifically as to the form of the transaction he was unable to make any statement on the subject, except that appellee furnished shooks to Swift & Company, of Kansas City to use in packing food products for transportation for the government. This testimony is at most but hearsay, and does not even establish the fact that Swift & Company were operating-under a requisition from the government or that appellee was acting under such a requisition, either directly or indirectly. The instruction was therefore entirely without any evidence to support it, and should not have been given.

There was sufficient evidence to warrant a submission to the jury of appellant’s charge against appellee of having broken the contract without justification, and this issue should have been submitted to tire jury tree from objectionable instructions.

The judgment is therefore reversed, and the cause is remanded for a new trial.


source: Caselaw Access Project

author: McCulloch:, C. J.

license: Public Domain

text:
    Standley v. Mason.
    Opinion delivered April 4, 1921.
    VENDOR AND PURCHASER — FORECLOSURE OF VENDOR'S LIEN — REDEMPTION. —Though a sale of land under contract to convey the same on payment of the purchase price constitutes a reservation of the legal title merely as security for the payment of the price, and •though equity treats this form of transaction as having the same effect as a mortgage, it is not a mortgage in the strict sense of the term, and does not fall within the statute which allows a year for redemption from sales under mortgages or deeds of trust.
    Appeal from Carroll Chancery Court, Eastern District; B. F. McMahan, Chancellor;
    affirmed.

      Johnson & Simpson, for appellants.
    The demurrer of appelleees admitted the allegations of the complaint. 104 Ark. 466. The complaint states facts sufficient to constitute a cause of action. The effect of the contract alleged was to create a mortgage on the lands in favor of the vendor, Mason. 13 Ark. 533; 15 Id. 188; 16 Id. 126; 27 Id. 61; 29 Id. 357; 34 Id. 113; 66 Id. 167; 84 Id. 160; 100 Id. 543. The relationship between appellant and James W. Mason was that of mortgagor and mortgagee, and Mason prosecuted one of the remedies given by law (13 Ark. 533), but the court, through error or oversight, cut off and barred appellant’s right of redemption under the foreclosure sale. Appellant clearly had the right to redeem within one year. The right to redeem must be clearly waived in the mortgage. Kirby’s Digest, § 5420; 117 Ark. 412. The court erred in barring appellant’s equity of redemption. 14 Ark. 633.

      Roy Thompson and F. 0. Butt, for appellees.
    The only question at issue is whether or not a purchaser of land under a bond for title has any right of redemption after a sale under foreclosure to recover the purchase money. The decisions of this court settle the proposition adverse to the contentions of the appellant. 106 Ark. 79; 126 Id. 313; 139 Id. 218. The chancellor was correct in finding that appellant failed to show any equitable cause of action or right to relief.
   McCulloch:, C. J.

The land in controversy was originally owned by appellee Mason, who entered into a written contract to sell the same to appellant Standley on the terms specified in detail in the contract. There was a default in the payment of the purchase price, and appellee sued in the chancery court to foreclose his lien. There was a decree foreclosing the lien, and the prop-, erty was sold thereunder.

This is an action instituted by appellant to compel appellee to allow a redemption of the property, the right to which is claimed under a statute which provides that where land is sold under decree of the chancery court to foreclose a mortgage or deed of trust, “the mortgagor, his heirs or legal representatives, shall have the rig’ht to redeem the property so sold at any time within one year from date of sale,” but that “the mortgagor may waive such rig’ht of redemption in the mortgage or deed of trust executed and foreclosed. Crawford & Moses ’ Digest, § 1411.

The question has been decided by this court against appellant’s contention in the case of Priddy v. Smith, 106 Ark. 79. In that case the sale was to foreclose a vendor’s lien, and we decided that the statute permitting redemption applied only to instruments in the form of mortgages or deeds of trust and not to equitable mortgages, but we stated in the opinion that the decision was based “on the broader ground that an equitable mortgage is not within the terms of the statute allowing redemption after sale.”

This rule was reaffirmed in the later case of Bothe v. Gleason, 126 Ark. 313.

A sale of land under contract to convey the same on payment of the purchase price constitutes a reservation of the legal title merely as security for the payment of the price, the same as if a conveyance had been executed and a mortgage given in return to secure the price. A court of equity treats this form of transaction as having the same effect as a mortgage. But it is not a mortgage in a strictly legal sense, and does not fall within the scope of the statute which allows a year for redemption from sales under mortgages or deeds of trust. The decree refusing to allow the redemption was correct, and the same is affirmed.


author: McCulloch, C. J.

text:
    East v. East.
    Opinion delivered April 4, 1921.
    1. Divorce — payment of alimony. — Where a decree of divorce ordered the husband to pay a certain amount as alimony to the wife, and the husband, in a proceeding to compel performance of such order, admitted that he had sufficient funds at the time of the decree, it devolved upon him to account for them, and the chancellor was not bound to accept as true his unsupported statement that the funds had been stolen from him.
    2. Divorce — enforcement of alimony decree. — While the common-law writ of ne exeat has been abolished, Crawford & Moses’ Digest, §§ '3506-9, provide adequate remedy for the enforcement of decrees for alimony and maintenance.
    3. Divorce — alimony—imprisonment.—Imprisonment of a divorced husband for failure to pay alimony is justified only on the ground of wilful disobedience to the orders of the court, and as soon as it is made to appear that he is unable to comply with such orders he should be discharged.
    Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      Smith & Gibson, for appellant.
    The evidence is undisputed that appellant is unable to comply with the order of court and he should be discharged. 81 Ark. 504; 9 A. L. R.., Snook v. Snook. Appellant has neither the means nor ability to comply with the order of court, and the chancellor should have ordered his discharge.

      W. A. Gunmnghmi, for appellee.
    The evidence as a whole shows that the court was fully justified in disbelieving appellant’s story about los- ■ ing the money, and the action of the chancellor was right.
   McCulloch, C. J.

Appellant R. A. East and ap-pellee Sula East were formerly husband and wife, but were divorced by decree of the chancery court of Lawrence County, rendered in January, 1920, in an action instituted by appellee against appellant on the ground of cruel treatment. There were four living children of these parties, the oldest one being eighteen years of age and the youngest four years of age, and in the decree the custody of each of the children was awarded to appellee, and the court also decreed to appellee the pajunent of the sum of $1,150 by appellant as alimony out of funds which he then had in bank. Certain other items of personal property were also decreed to appellee.

The decree for alimony was pursuant to a written stipulation of the parties. Instead of paying over the money to appellee in accordance with the decree of the court, appellant drew the money out of the bank and, taking his youngest child with him, he left Lawrence . County. He went to Heber Springs, and stayed there awhile, and then to Hot Springs, Arkansas, and afterward went to Springfield, Missouri.

In April, 1920, appellee filed in the chancery court of Lawrence County her petition in the nature of a prayer for a writ of ne exeat to cause appellant’s arrest and compel him to comply with the decree of the court. Appellant was arrested under the writ, and, failing to give bond as directed by the court, he was incarcerated in jail and remained there for eight weeks up until the trial of the present proceedings below. Appellant filed a petition for modification of the order committing him to jail, and alleged in the petition that he was unable to comply with the order of the court and asked to he discharged. This petition was heard by the chancery court, and a decree was entered denying the relief prayed for, and an appeal has been prosecuted to this court.

On the trial of the issues below appellant was introduced as a witness in his own behalf and undertook to give an account of the loss of the money he had on hand at the time the decree against him was rendered. He claimed that the money had been partly lost and partly spent, and was all gone at the time he was arrested, except the sum of $300 one-half of which lie had since spent in expenses of this litigation, and the remaining $150 he tendered to appellee’s counsel in open court, and that sum was accepted by counsel. He testified that in November or December, 1919, he had between $2,500 and $3,000 in the Bank of Black Bock at Black Bock, Arkansas, and that he drew it out of the bank, and that he left Walnut Bidge and took the youngest boy with him and went to Heber Springs. He stated about being sick there and the amount of money he spent on himself and on the child, and went from there to Hot Springs for treatment, and he stated the amount of the expenses of that trip. He testified then that he went from there to Springfield, Missouri, and that the sum of $1,500 was stolen from his pocket while he was in a large gathering of people at a show or entertainment of some kind. He testified also that he gave three of the older children $750, and placed it in the bank at Black Bock and that he gave another of the children $300, but he got that back from the child, and this was the sum out- of which he paid appellee’s counsel the sum of $150.

Appellant’s account of the loss of $1,500 is not convincing, and we can not say that the testimony does not support the chancellor’s conclusion that appellant had not lost the money, but still had it in his possession. Appellant admitted that he had the money in his possession at the time of the decree, and it devolved upon him to account for it, and the chancellor was not bound to accept as true his unsupported statement that it had been stolen from him. That being true, the chancellor was justified in refusing to discharge him from custody without producing the money and paying it over in accordance with the previous orders of the court.

Under our statutes the common law practice of issuing writs of ne exeat is abolished, but the statutes provide adequate remedy for the enforcement of decrees for alimony and maintenance in divorce' cases. Crawford & Moses’ Digest, sections 3506, 3509. Those statutes authorize imprisonment, both as punishment for refusal to obey the orders of the court and to compel, obedience of such orders. But imprisonment is, as was said by Judge Riddick, speaking for the court in Ex parte Caple, 81 Ark. 504, “only justified on the ground of wilful disobedience to the orders of the court, and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged. ” The imprisonment can not be made perpetual for recalcitrancy; and when it becomes manifest that further punishment will not compel obedience, then it is the duty of the court to refrain from further punishment, otherwise it would convert the exercise of the court’s power into an instrument of imprisonment for debt or would constitute the imposition of unusual and cruel punishment. The court found, however, upon what appears to be sufficient evidence that appellant had not spent the money, that it was still in his possession and unacounted for, and the court was justified in assuming that appellant could:be compelled by further punishment to produce the money. We cannot say, therefore, that the conclusion of the court was unsupported by the evidence or that there was an abuse of the court’s power.

The decree is therefore affirmed.


author: Wood, J.

text:
    McCollum v. Neimeyer.
    Opinion delivered April 4, 1921.
    1. Limitation op actions — pleading.—In an action at law upon a contract to purchase corporate stock on demand the statute of limitations is purely a matter of defense which even the defendant is not bound to plead, and the plaintiff is not bound to set forth in his complaint the existence of facts which will show that he is barred from maintaining the action, in response to a motion to require him to make his complaint more specific.
    2. Pleading — motion to make complaint moke specific. — Plaintiff may not complain of the granting of a motion to make his complaint more specific where he did not stand on his complaint, but undertook to comply with the order of the court.
    3. Limitation op actions — complaint held not to show bar.— A complaint alleging that ten years previously plaintiff was induced by defendant to purchase stock in a corporation, that said purchase was upon the understanding that defendant would repurchase the stock at any time that plaintiff desired him to do so, and that thereafter on several occasions, at intervals of less than three years and continuing up to within two years of the bringing of this action defendant verbally and personally accepted, ratified and affirmed said agreement to repurchase, held not to show affirmatively that plaintiff’s cause of action was demurrable as barred by the statute of limitations.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    reversed.

      Troy W. Lewis, for appellant.
    On the former appeal this court held that a cause of action was stated and that the facts do not affirmatively show that no facts exist which would take the action out ■of the statute bar. 219 S. W. The complaint here is good as held on the former appeal. The complaint does not affirmatively show that the action is barred, and an action at law did not lie. 31 Ark. 684; 34 Id. 164; 49 Id. 253; 116 Id. 233.
    The contract was fundamentally one to repurchase the stock from McCollum, an employee, some time in the future at his election. Limitation can not be raised by demurrer, as the complaint does not affirmatively show that the action is barred. 105 Ark. 293.

      Emsworthy, Henderson & Emsworthy, for appellee.
    The complaint, as amended, fully states the appellant’s canse of action, and, the promise being- a verbal one, it falls within the bar of the statute. C. & M. Digest, % 6095. An oral waiver of the statute of limitations, or a promise not to plead it, need not be in writing. 19 Am. & Eng. Enc. Law 322; 132 Mo. 524; 85 Tenn. 561; 1 Wood on Limitations, p. 76; 10 Humph. (Tenn.) 176; 132 Ind. Ill; 215 S. W. 631; 11 Ark. 30.
   Wood, J.

This action was brought by the appellant against the appellee on January 29, 1919, to recover the sum of $1,500. The appellant alleged in substance that on April 8, 1909, he was induced by the appellee, who was the president and a large stockholder of A. J. Nei-meyer Lumber Company, a corporation,, to purchase a block of its stock, for which he paid the sum of $1,500; that said purchase was made upon the understanding with the appellee that he would repurchase the stock at any time appellant desired him to do so, and in the meantime would pay appellant six per cent, interest per annum on the amount he had invested; that thereafter on several occasions at intervals of less than three years, and continuing up to uñthin two years of the bringing of this action, the appellee verbally and personally aclmowl-edged, ratified and affirmed said agreement to repurchase; that on the 28th of February, 1918, the appellant demanded of the appellee that he repurchase the stock in fulfillment of his agreement, which appellee refused to do, to the appellant’s damage in the sum of $2,500.

The appellee demurred to the complaint on the ground that it showed upon its face that it was barred by the statute of limitations. The demurrer was sustained. The appellant stood upon his complaint, and the court rendered a judgment dismissing the same, from which is this appeal.

This is the second appeal of this cause. McCollum v. Neimeyer, 142 Ark. 471. On the first appeal the complaint was substantially the same as that above set forth, except that it did not contain the following clause: ‘ ‘ That thereafter, on several occasions, at intervals of less than three years, and continuing up to within two years of the bringing of this action, the defendant (appellee) verbally and personally acknowledged, ratified and affirmed said agreement to repurchase. On the former appeal before the above clause was added to the complaint we held that the the complaint stated a cause of action, saying: “This is a suit at law, and the statute of limitations could not be raised by demurrer, unless it affirmatively appeared in the complaint that no facts existed which exempted the action from the operation of the statute.” On remand of the cause the appellee moved to require the appellant to make the complaint more specific. This motion was sustained, ánd the clause above quoted was added over the objection of appellant.

The question for decision on this appeal is whether or not the complaint as it now stands, containing the above clause, states a cause of action. In other words, do the allegations of the complaint now show affirmatively that the cause of action stated therein is barred by the statute of limitations ? In actions at law on contracts of the character set forth in appellant’s complaint, the statute of limitations is purely a matter of defense which even the defendant is not bound to plead. Therefore, the appellant was not bound to set forth in his complaint the existence of facts which would show that he was barred from maintaining the action by the statute of limitations. The court erred in granting the motion of the appellee requiring the appellant to make his complaint more specific in an effort to have appellant set forth therein matters which would show affirmatively that the appellant was barred by the statute of limitations, and which would enable the appellee to avail himself of the statute by a demurrer.

The original complaint was sufficiently definite and certain, and, as we held on the former appeal, stated a cause of action. The appellant, however, is not in an attitude to complain of this ruling of the court because he did not stand on his complaint, but undertook to comply with the order of the court requiring him to make the same more specific by adding to his original complaint the clause above quoted. Therefore, the question recurs as to whether such clause states affirmatively the existence of facts which show that the appellant is barred by the statute of limitations. Section 6965 of Crawford & Moses’ Digest, provides: “No verbal promise or acknowledgment shall .be deemed sufficient evidence in an action founded on contract whereby to take any case out of the operation of .this act, or to deprive the party of the benefits thereof.”

In Burnett v. Turner, 105 Ark. 293, construing this statute, we said: “It is equally well settled by the authorities that an'oral waiver of the statute of limitations, or promise not to plead it, does not fall within the statute above quoted, and need not be in writing. The suspension of the statute by reason of a promise not to plead it is based on the doctrine of estoppel, and, in order for it to be effective, the promise must be an express one not to plead the statute, or the language of the promise must be such as clearly evinces an intention not to do so upon which the creditor has a right to rely. Otherwise it could not be said that he was estopped by the conduct of his debtor, and the rule does not apply.”

The clause in the complaint under review states that, “up to within two years of the bringing of this action, the defendant, A. J. Neimeyer, verbally and personally acknowledged, ratified and affirmed said agreement to repurchase.” This language does not show that the ap-pellee expressly or impliedly promised not to plead the statute of limitations; nor can it be said that the language quoted evinces an intention on the part of the ap-pellee not to plead the statute of limitations. The clause quoted does not set forth what words were spoken or the circumstances under which the agreement to repurchase was acknowledged, ratified and affirmed. Therefore, whether the appellee expressly or impliedly promised not to plead'the statute of limitations, or whether, by any language he used in “acknowledging, ratifying and affirming the agreement to repurchase,” he evinced an intention not to plead the statute, is not affirmatively shown by any of the allegations in the complaint. In this respect, the complaint is precisely the same as it was on the former appeal. In other words, the complaint still does not show affirmatively the existence of facts which would bar the appellee from maintaining the action. The fact that appellee “verbally and personally acknowledged, ratified and affirmed” said agreement to repurchase does not show that he expressly promised that he would not plead the statute of limitations, or that he in any manner by his conduct led appellant to believe that he would not set up the statute in bar of the action.

The clause in the complaint under consideration does not negative the existence of grounds of avoidance of the operation of the statute of limitations. If these grounds really exist, they are matters to be developed by the testimony on the issue as to whether the action is barred by the statute of limitations when that issue is properly pleaded, which has not yet been done. The court erred in sustaining the demurrer and in dismissing appellant’s complaint. The judgment is, therefore, reversed and the cause is remanded with directions to overrule the demurrer.


text:
    Coblentz & Logsdon v. L. D. Powell Company.
    Opinion delivered April 4, 1921.
    1. Appeal and error — presumption in absence op bill op exceptions. — In the absence of a bill of exceptions setting forth the facts on which the cause was heard, every presumption must he indulged in favor of the judgment of the court below.
    2. Corporations — foreign corporation doing business in state.— The taking of an order for law hooks by the traveling salesman of a foreign corporation, which order was transmitted to the corporation and accepted by it and the books shipped to the purchasers under a contract by which the title was retained in the seller until the purchase money was paid, was not the “doing of business in the State,” in contemplation of Crawford & Moses’ Digest, § 1826.
    3. Sales — Remedies of seller. — Upon the failure of the purchasers to pay for books, title being reserved in the seller, the latter had the right either to bring replevin for the books or to waive the reservation of title and affirm the sale by suing for the debt, in which case it could impound the books’ under Crawford & Moses’ Digest, §§ 8729, 8730.
    Appeal from Pike Circuit Court; Jas. 8. Steel, Judge;
    affirmed.

      Pinnisc & Piniiisc, for appellants.
    1. This case falls within the familiar elementary rule that the seller of personal property who has reserved title until the purchase money is paid may upon default retake the property and thereby cancel the debt or may sue to recover the debt and thereby affirm the contract. 88 Ark. 99; 113 S. W. 1023. The contract in question was conditional, the purchase price must be paid, or the property might be retaken. The option belonged to ap-pellee as vendor, and not to appellants as vendees. The debt was absolute if appellee elected to treat it as such. When appellants discontinued their payments on account, appellee could either retain the property as its own or sue for the price, but it could not do both. It was for ap-pellee to elect. 3 Johns. Chy. 416; 18 N. T. 552. It could not recover the price and also retake possession of the goods sued. 24 R. C. L., p. 491, § 785; 27 L. R. A. (N. S.) 220; 83 Wis. 31; 35 Am. St. Rep. 17 and. note; 10 Id. 487-494 and notes; 38 Id. 626; 146 U. S. 42; 84 Fed. 80; 62 Conn. 25.
    2. A man can not have a lien on that which he owns. 118 U. S. 663; 93 Id. 664; 72 Id. 5 Wall. 307; 102 U. S. 235; 48 Ark. 273; 49 Id. 63; 55 Id. 642; 60 Id. 133; 100 Id. 403; 97 Id. 432. The title to the property remains in ihe seller, and the transaction is an intrastate one and can not be enforced in this State. 136 Ark. 55.

      J. S. Butt, for appellee. ’
    Appellee was not “doing business in” this State. 60 Ark. 120; 115 Id. 166; 125 Id. 413. The contract was made and the goods delivered in a foreign State. 100 Ark. 403; 108 Id. 442; 111 Id. 640. See, also, 117 Id. 496; 78 Id. 529.
    Appellee had the right to take the property and hold it subject to the order of court. Kirby’s Digest, § 4967.
   Wood, J.

This is an action by the appellee against the appellants to recover the sum of $257.65, the purchase price of certain law books which the appellants purchased of the appellee. By consent of the parties the cause was heard before the trial court sitting as a jury. The judgment of the court recites that the cause was heard “on the following evidence: The contract for the purchase of the books in controversy, the affidavit for issuance of attachment to enforce vendor’s lien thereon, the writ issued thereunder, the return of the officer on the said writ, and the agreed statement of the facts in the case signed by the attorneys representing the respective sides.”

The agreed statement of facts in the transcript is as follows: “It is agreed between J. S. Butt, attorney for plaintiff, and T. W. Bountree, attorney for defendants, that the plaintiff is a foreign corporation.

“It is further agreed that said plaintiff has not complied with the law of the State authorizing foreign corporations to do business in the State.

“It is further agreed that the books upon which the claim sued on is based were contracted for in the State of Arkansas, or rather that the order was taken in the State by a traveling man representing the plaintiff.

“It is agreed that the books were shipped by plain- and the express paid by plaintiff.

“It is further agreed that the contract expressly provided that the title should remain in the plaintiff until they were paid for.

“That said plaintiff has never parted with the title to such books. It is further agreed that all the books claimed by plaintiff to have been shipped have been except volume 22 of Encyclopedia' of Procedure, and defendants offer to return books.”

The court found, as recited in the judgment, as follows: “That the debt herein sued on was for the purchase money due on the two sets of books sold defendants by the plaintiff, towit, Encyclopedia of Evidence, and Standard Encyclopedia of Procedure, and that the said books were at the time of the issuance of the writ in the hands of the purchasers thereof, and were levied on by the officer serving said writ and are at this time in the hands of the officer as shown by his return, and that the plaintiff is entitled to a lien thereon for the amount due, and that there is now due the plaintiff the sum of $264.01.” The court thereupon entered a judgment in favor of the appellee against the appellants in the sum of $264.01, and ordered the books sold and the proceeds thereof credited on the judgment. From that judgment is this appeal.

There is no bill of exceptions brought into this record setting forth the contract, the agreed statement of facts, the affidavit for the vendor’s lien, the writ issued thereunder, and the return of the officer on the same, upon which the cause was heard as recited in the judgment of the court. In the absence of a bill of exceptions setting forth the above facts upon which the cause was heard, every presumption would have to be indulged in favor of the judgment of the trial court, and its judgment would have to be affirmed for that reason if there were no other. But, even if there were a bill of exceptions showing the facts as set forth in the alleged agreed statement, and .setting forth the contract, and the proceedings to impound the property, the judgment would still have to be affirmed. The taking of an order from the appellants by the appellee’s traveling* salesman for certain books which order was transmitted to the appellee and accepted by it and the books shipued to the appellants under a contract by which the title was reserved in the appellee until the purchase money was paid, is not the doing of business in this State in contemplation of act of May 13,1907, page 744, Crawford & Moses’ Digest, § 1826; see also § 1832.

The contract for the sale of these hooks was consummated when the order therefor was accepted by the ap-pellee at its home office in a foreign State and the books delivered there to the transportation company for shipment to the appellants. When this was done, the appellee lost all control over the books except the owner’s rights and remedies in case the appellants failed to pay for the books and thus to comply with the conditions upon which they were purchased. The case differs in all essential particulars on the facts from the ease of Hogan v. Intertype Corp., 136 Ark. 58, and cases there cited upon which the appellants on this point rely. Conceding that the facts were as stated in the agreed statement, the sale and purchase in this case was wholly a transaction of interstate commerce, and not in violation of any of onr statutes forbidding foreign corporations to do business in this State except in compliance therewith.

Upon the failure of appellants to pay the purchase price and thus to comply with the conditions upon which the sale was made, the appellee either had the right to elect to bring replevin under its reservation of title and recover the books sold by it, or it could waive this right and sue to recover the debt and affirm the sale. Butler v. Dodson, 78 Ark. 569: Bowser Furn. Co. v. Johnson, 117 Ark. 496. The appellee has elected in this case to pursue the latter remedy, and, having done so, its choice to pursue this course is not inconsistent with the rights given it as a vendor under chapter 156, Crawford & Moses’ Digest, to impound the property while the same is in the possession of the vendee and to hold the same subject to the order of the court. See sections 8729-30, Crawford & Moses’ Digest, and cases cited under the latter section.

.The judgment is correct, and it is therefore affirmed.


author: Wood. J.

text:
    International Harvester Company of America v. Layton.
    Opinion delivered April 4, 1921.
    1. Appeal and error — absence op motion for new trial. — In an action against two defendants, in which judgment was rendered for plaintiff against one defendant and in favor of the other defendant, where plaintiff appealed from the adverse judgment against him and the losing defendant cross-appealed, the judgment against the latter will be affirmed in the absence of a motion for new trial by the cross-appellant; the errors complained of not appearing of record.
    2. Appeal and error — conclusiveness op verdict. — A general finding of the trial court, sitting as a jury, in favor of the defendant, will he sustained if there is any substantial evidence to sustain any of the grounds of defense set up in the answer.
    3.. Partnership — release of partner — evidence. — In an action against partners for a balance alleged to be due on an account, evidence held to sustain a finding that plaintiff released one of the partners from liability on dissolution of the partnership.
    4. Partnership — release of partner. — Where a creditor of a partnership, with knowledge that the partnership had been dissolved, made a settlement with one of the partners and accepted his notes in full payment, the other partner was released.
    5. Appeal and error — conclusiveness of court’s finding. — Even though a finding of a trial court sitting as a jury is against the decided preponderance of the evidence, it is not the province of the Supreme Court on appeal to determine where the preponderance of the evidence lies, as this court must give the evidence its strongest probative force in favor of the court’s finding.
    Appeal- from Marion Circuit Court; J. M. Shinn, Judge;
    affirmed.

      J. G. Floyd, for appellant.
    1. The court erred in refusing to enter judgment against Ernest Layton or J. B. Melton & Company for the sum claimed. Layton held himself out as a partner to Powell, and is liable as a partner so far as creditors are concerned. 2 Ark. 346; 99 Id. 602; 139 S. W. 544; 32 Ark. 733; 87 Id. 123; 5 Id. 61; 2 Id. 34; 93 Id. 301; 80 Id. 33. This case does not fall within the rule in 29 Ark. 512; 24 Id, 12; 23 Id. 411. See 20 L, R. A. 595 and note.

      2. Partners are liable jointly and severally for the firm debts. 4 Ark. 164; 37 Am. Deo. 777; 21 Ark. 186; 21 Id. 411.
    Appellees can not avoid the contracts signed by the firm by reason of the alleged misnndertsanding as to their character. They were perfectly plain and nnambiguons. If not read, they had the right to do so, and should have done so, as they had the opportunity. 6 it. C. L. 624, note 20. If the contracts are void for an alleged mistake, acceptance of the goods and appropriation of them raised an agreement to pay for them. 6 R. C. L. 989, § 357. A retiring partner remains liable for all existing debts of the firm unless the creditors consent to the retirement and agree to look to the other members of the firm for payment. 20 R. C. L. 981, § 215; 30 Cyc. 612; 117 Ala. 611; 92 Ga. 350; 63 Kan. 453. See, also, 9 L. R. A. (N. S.) 77; 114 Ala. 536; 19 Mont. 200; 37 L. R. A. 515; 61 Am. St. Rep. 498; 47 Pac. 995-6; 62 Neb. 478; 84 N. Y. Supt. 934; 47 W. Ya. 201; 24 S. E. 991.
    Mere knowledge upon part of the creditor of the dissolution of the firm and of the changed relation is not enough. 67 Mo. App. 45; 30 Ohio C. O. 389; 27 Am. Rep. 464; 8 Watts 485; 47 W. Va. 201; 34 S. E. 991.
    Mere notice by a retiring partner after dissolution that the continuing one would pay the debts does not release him in the absence of an agreement by the creditor. 9 L. R. A. (N. S.) 79; 73 Ill. App. 266; 29 Mich. 332.
    Appellant is not estopped, as no release was given, and there is no evidence to sustain the plea of estoppel. It was error to refuse to enter judgment against Ernest Layton, a member of the firm.

      Williams & Seaivel, for appellee, Ernest Layton.
    The finding in favor of Ernest Layton was general, in a law case, and the finding is as conclusive as the verdict of a jury, as the evidence is legally sufficient to sustain it. 56 Ark. 621; 53 Id. 161; 136 Id. 3; 132 Id. 45. No declarations of law were asked or made and the presumption is that the court correctly applied the law to the facts. Ill Ark. 190; 55 Id. 329; 112 Id. 47.' Appellant’s motion for a new trial presents only the question of the sufficiency of the evidence, and it is sufficient. 101 N. W. 776; 30 Cyc. 472. The .findings and judgment are amply supported by the evidence.
    Appellant is estopped as against Ernest Layton. 64 Ark. 627; 99 Id. 260; 131 Id. 77.

      J. H. Blade, for cróss-appellant, J. B. Melton.
    There was a settlement between appellant arid cross-appellant upon an account stated in which appellant was paid in full. Appellant accepted the benefits of said settlement and is estopped from repudiating it, and the notes given by J. B. Melton are outstanding. Appellant at no time offered to place J. B. Melton in statu quo. Appellant could not accept the benefits of the settlement with notice of the facts and afterward not be estopped from repudiating it. 50 Ark. 45i8; 78 Id. 603; 88 Id. 363; 10 B. C. L., par. 22; 93 Ark. 252; 98 Id. 269. It was error to render judgment against cross-appellant.
   Wood. J.

This action was brought by the appellant, International Harvester Company, a corporation of Wisconsin, authorized to do and doing "business in this State, against appellees J. B. Melton & Co., a partnership, composed of J. B. Melton and Ernest Layton. The complaint alleged that the appellees entered into certain written contracts with appellant to purchase wagons, trucks and other farm machinery and supplies upon the terms and conditions of the contracts, which were made exhibits to the complaint. Appellant alleged that there was a balance due it on account under these contracts of $1,-329.99, for which it asked judgment.

Melton and Layton filed separate answers, in which they set up the same defenses. They admitted that they were partners doing business at Yellville, Arkansas, under the firm name of J. B. Melton & Company. They alleged that the business of the firm was buying and selling-dry goods and groceries. They denied that the firm as sueli was dealing in farming implements, wagons, • and hardware, and alleged that neither member of the firm was authorized to enter into a contract with the appellant for that purpose, and denied that they executed the contracts which form the basis of the account set forth in the complaint. They set up that the contract entered into with appellant was an agency contract, under the terms of which they were to sell wagons, trucks, farming implements and supplies upon a commission basis. They alleged that they were not indebted to appellant in any sum on the account. They further set up that on the 27th day of May, 1916, the partnership was dissolved, Melton taking over and continuing the business with appellant; that the appellant was notified of such dissolution, and it released the appellee Layton from any liability on the contract and turned over all of its property of every character in the hands of the former partnership to Melton, and made arrangements with him to continue the agency business and accepted his notes in settlement of all amounts, then due. Layton alleged that the account sued on was created after the dissolution of the partnership, and after he had been released by the appellant, and that the appellant was estopped by its conduct from asserting any claim against him. Melton alleged that the appellant, after the dissolution of the partnership, accepted the individual notes of J. B. Melton in settlement of the balance of the partnership indebtedness, and that he had since fully liquidated all the indebtedness due by him to the appellant.

The contracts, which were exhibits to the complaint, were identified and introduced in evidence. They are signed J. B. Melton & Co., by J. B. Melton, and by appellant through "W. "W. Nelson, General Manager. There was testimony on behalf of the appellant tending to prove that the contracts were entered into as alleged in the complaint; that the appellee Layton authorized Melton to enter into the contracts for the firm and that the orders and net sales contracts, out of which the alleged indebtedness evidenced by the account was incurred, were signed J. B. Melton & Co., by J. B. Melton. There was testimony on belialf of the appellee Layton tending to prove that he did not authorize Melton to enter into the contracts as alleged and to sign the name of the firm to such contracts; that the contract that he authorized Melton to sign was merely a contract by which J. B. Melton & Co. was to sell appellant’s wagons, trucks, farming implements and supplies as agents, on a 15 per cent, commission.

By consent of all parties, the cause was submitted to the court sitting as a jury, and the court found that Melton was justly indebted to the appellant in the sum claimed in its complaint, and also found that the appellee Layton was not liable to the appellant in any sum. The court thereupon entered a judgment in favor of the appellant against Melton for the amount claimed and also in favor of the appellee Layton against the appellant for costs. The appellant filed its motion for a new trial against appellee Layton, which was overruled, and appellant duly prosecutes this appeal. The record as abstracted does not show that Melton filed any motion for a new trial in the court below. After the lodging of the transcript Melton took a cross-appeal in this court.

1. The judgment in favor of the appellant against Melton must be affirmed for the reason that it does not appear from this record that he moved for a new trial. The errors of which he here complains should have been called to the attention of the trial court in a motion for a new trial. On an appeal taken in a law case, where the errors complained of do not appear from the record, and there is no motion for a new trial, there is nothing before this court for its determination. See Gardner v. Miller, 21 Ark. 398; Hamilton v. State, 62 Ark. 543, and other cases cited in 1 Crawford’s Digest, Appeal and Error, 179, sec. 116 (D), “Motion For a New Trial.”

2. There was a general finding in favor of the ap-pellee Layton. Therefore, if there is any substantial evidence to sustain any of the grounds of defense set up in his answer, .the verdict of the trial court sitting as a jury will be sustained. Dixon & Co. v. Scroggins, 136 Ark. 33; Mueller v. Coffman, 132 Ark. 45. One of the defenses of appellee Layton was that, after his partnership with Melton was dissolved, the business of J. B. Melton & Company with the appellant was settled, by mutual consent, and said business was turned over to Melton, and appel-lee Layton was released by the appellant from all liability to it on account of said business.

Conceding that the undisputed testimony proved that the contracts were entered into by the appellant with Melton'and Layton, as partners under the firm name of J. B. Melton & Company, yet it also proves that this partnership was by mutual consent dissolved. J. B. Melton testified concerning the settlement with appellant after the dissolution of the partnership in part as follows : The wagons arrived after appellee Layton had retired from the firm. Shortly thereafter, Harry Hill, who was a traveling salesman for the appellant, was in Yell-ville, and while the wagons were still at the station witness talked with him about the dissolution of the firm and told him that Layton was out, and that witness was not able to handle the wagons, and that he was going to another town. Hill told witness to pay the wagons out and do the best he could with them. Witness paid the freight and took them out. Hill told witness that they did not want to ship the wagons back. Witness had the conversation with Hill while the firm of J. B. Melton & Co. was taking inventory and selling out to one Mr. Nanny.

Layton testified that Hill, a representative of the appellant, was present while they were taking the inventory and knew that his firm was closing out. Hill asked witness if they were fixing to sell out and witness told him that they were — they were taking an inventory then. Hill said to witness that Melton would continue the line and that he would not consider witness in it in any way whatever — that witness would be out of it; that he would turn the business over to Melton. Witness asked Hill about the commission on some stuff they had sold and about $140 freight, and Hill told witness to settle with Mr. Melton on .that, and it would be satisfactory. Witness replied, “All right,” and Hill, without any solicitation, told witness that he could consider himself out. Witness relied on that, and didn’t have anything further to do with the company. The firm of J. B. Melton & Co. was dissolved in May, and no demand was made on witness for the debt in controversy until the 28th of the following December'.

Nanny testified that he bought out the firm of J. B. Melton & Company, and that while they were taking the inventory Hill tried to get him to form a partnership with Melton for the purpose of handling the business of appellant. Witness talked over the business of appellant with Hill and told him that he didn’t want any partner. Hill told witness that Ernest Layton wanted it, but he was not going to let Ernest have it and preferred that witness and Melton have it as partners. Hill told witness that he was going to let Melton have it.

W. B. Crabb, who was in the employ of the appellant as “block-man,” was sent to Yellville in the fall for the purpose of making a settlement with J. B. Melton & Co. for the goods that they had purchased of appellant during the year 1916. He testified that the settlement was made with Melton, who informed witness that there had been a dissolution of the firm, and that Layton had no further connection with it. Witness made the settlement as far as he could make it, but told Melton that the company would not accept a settlement from lfim as final without the signature of the company. The bookkeeper had already made out and delivered to them a stated account. Witness added to it some credits, and all the charges were made out at the office by the bookkeeper from the books of the appellant. The testimony of Crabb further shows that the settlement called for the signing of certain notes; that these notes were signed by Melton. He told Melton that the best he could do would be to effect the settlement and to send it in to the company for its approval; that witness was sure that they would not accept it, as they did not; that witness had no authority to accept it for tlie company. "Witness took six notes in making the settlement stated. Witness took the notes in payment of the account. Witness was asked if in making the settlement with Melton he was making it with him individually, and answered, “Yes, but he was treating it as the company’s business.” He knew at the time that Layton and Melton were Claiming that the partnership had been dissolved, and that Melton was claiming that the wagons and the agency had been turned over to him individually, and that Layton had nothing further to do with it. There was considerable more testimony of this witness to the same effect, which it is unnecessary to set out in detail.

Melton was recalled and further testified that the account that was rendered to him and which he signed was made out against J. B. Melton; that the characters “& Co.” were not on the account stated at the time same was rendered to him. In regard to the statements of Crabb, he testified that he told him that the best he could do would be to give him what money he had and his notes. Crabb replied that was all right. Witness gave him his check for $250 and witness’ notes for the balance. Witness denied that Crabb said at the time that the settlement would have to be subject to the approval of the general manager. Witness understood from the fact that Crabb had the account of the company and from his conversation that he had authority to settle the matter. Witness understood when he executed the notes that it was done in settlement of the matter: Crabb did not ask witness to sign the company’s name to the settlement.

There was further testimony tending to prove that the appellant cashed the individual check of J. B. Melton and forwarded the notes to its collection department, which in turn sent them to the Bank of Yellville for collection and allowed them to remain there until after one of them was past due without making any demand upon Layton for the payment of these notes.

We have reached the conclusion that the court was warranted in finding from the above testimony that the appellant had released the appellee Layton from all liability under the contracts made with J. B. Melton & Company. The above testimony was legally sufficient to warrant a finding that the appellant had knowledge of the fact that the partnership between J. B. Melton and Ernest Layton had been dissolved, and that the appellant made a settlement with Melton and accepted his individual notes in payment of the balance due on the contracts between appellant and the firm of J. B. Melton & Co., and thereby released the appellee Layton. Even though such finding of the court were against the decided preponderance of the evidence, it is not our province on appeal to determine where the preponderance lies. Under the often announced rule of this court, we must give the evidence its strongest probative force in favor of the court’s finding.. Gossett v. Gossett, 112 Ark. 47. .

It follows that the judgment of the court is correct, and it must be affirmed. It is so ordered.


author: Hart, J.

text:
    State ex rel. Rosenstein v. Hoover.
    Opinion delivered April 4, 1921.
    1. Parent and child — effect of surrender of custody of child.— While a parent may surrender the custody of his child to another so as to make the latter’s custody legal, yet the gift is not irrevocable, and in all controversies subsequently arising the matter of controlling importance is the interest and welfare of the child.
    2. Infants — custody of child. — In deciding the question of awarding the custody of a child, the court seeks to promote its physical, mental and moral development.
    3. Infants — custody of orphan. — In a proceeding to determine the custody of an orphan girl eleven years old, it appeared that the father had given the custody of the child five years before to ap-pellee, who was not related, but was attached, to the child, and was properly educating and caring for her; that the child was intelligent and capable of judging for herself. Held that the child’s custody will be left with appellee, rather than with an aunt living in another State, who had never done anything for the child, and had not even written to her.

      4. Infants — custody of orphan child. — In determining the right to the custody of an orphan child, the court will consult the child’s inclination if it is of sufficiently mature age to judge for itself; and while the court will not listen to mere whims, it should consider the child’s feelings, affections and probable contentment in the future.
    Appeal from Jefferson Circuit Court; W. B. Sor-rells, Judge;
    affirmed.

      W. B. Cowan, for appellants.
    The custody of the child is controlled by .the best interest, present and future well-being, of the little girl. In habeas corpus cases the courts are not bound to deliver a child to the claimant or any other person, but will act in their sound discretion as the best interest of the child requires. 78 Ark. 193; 80 Id. 461; 89 Id. 501; 102 Id. 93; 82 Id. 461; 4 Hun 582; 16 Pickle 227; 22 Id. 549; 50 Miss. 413. In applying the rule, the court will treat the fact that the child wishes to remain where it is only as a circumstance of the case — not controlling. 78 Ark. 193; 50 Miss. 413. Evidence that the father gave the child to respondent is only a circumstance and not binding on any one. 102 Ark. 93; 104 Id. 206. The evidence shows that it is best for the well-being of the child that the custody be given to appellants. 97 S. W. 49; 37 Ark. 30. 82 Ark. 461, is peculiarly in point. As to the wishes of the child, see 78 Ark. 193; 50 Miss. 413. The wishes of the child are not controlling, but it is to the best interests of the child, that it should be with her aunt and grandmother.

      Geo. D. Hester and E. W. Brockman, for appellee.
    1. The last domicile of the father, deceased, constitutes and remains the domicile of a minor child and can not be changed by the child’s acts until it reaches majority. 16 Ark. 377; 72 Id. 299; 116 Id. 361. These cases are applicable, as Zula May’s mother has been dead several years.
    2. In habeas corpus cases for custody of a child, courts are not bound to deliver the child to any claimant or other person, but after investigation of all the circumstances act as the welfare of the child requires; if the infant he of sufficient discretion, the court will consult its personal wishes. 50 Ark. 351; 78 Id. 193. The evidence shows that from past and present acts and circumstances it is best for the child to remain with ap-pellee, and the finding of the chancellor should he affirmed. * , ■
   Hart, J.

This case comes before us on certiorari to review the judgment of the circuit judge of Lincoln County giving to Mrs. Sallie Hoover the custody and control of Zula May Palmertree, a girl eleven years old. The facts are as follows:

Zula May Palmertree was born in September, 1908, and her father, Thomas A. Palmertree, and her mother went to Memphis while she was an infant. The father and mother separated several times and finally the father moved to Arkansas. The mother kept the child until her death, about the 8th day of January; 1915. Soon after that the father had the child sent to him in Lincoln County, Arkansas. The child was then about six years of age. In a short time after the child was brought to Arkansas, the father gave her to a son of Mrs. Sallie Hoover where she remained about one month. The father then thought of placing the child in an orphan’s home, but, at the instance of Mrs. Sallie Hoover, he gave the child to her when she was about six years old, and the child remained in her custody until her father’s death about five years later.

Mrs. Sallie Hoover was a witness for herself. According to her testimony, the father of Zula May Palmer-tree gave her the child and told her that she could have the child as long as she lived. Mrs. Hoover is now fifty-nine years of age and resides with two unmarried sons and an unmarried daughter, on a farm. She does not own any land herself, but her two sons each have a farm comprising a hundred acres of good land. They have a good school in the neighborhood from six to nine months during the year. Zula May has been sent to this school and is now ready for the fifth grade. She has worked in the fields some, but has attended school regularly. Mrs. Hoover has become very much attached to the child and loves her like one of her own children. The relatives of the child have never given her anything since she has been in the custody of Mrs. Hoover. Zula May’s father left her an insurance policy of $1,500 and a very small amount of personal property when he died. He resided in Lincoln County near Mrs. Hoover all the time she had possession of Zula May. He drank and gambled some, but was regarded as a kind-hearted man and loved his daughter.

Several witnesses who lived in the neighborhood testified that Mrs. Hoover was an excellent woman and had cared for Zula May as if she was her own child. Two of. these witnesses said that the father of Zula May had told them that he intended for Mrs. Hoover to have Zula, May and did not intend that she should be raised by his sister in Memphis, who is one of the petitioners for the custody of the child in this case.

Zula May Palmertree was a witness in the case. According to her testimony, she is eleven years old and lives with Mrs. Sallie Hoover in Lincoln County, Arkansas. She has lived with Mrs. Hoover about five years. She thinks a great deal of Mrs. Hoover and is treated well by her. She remembers living with Mrs. Lela P. Rosen-stein a little while. She did not live with her father after the death of her mother. Mrs. Hoover’s sons treat her as if they were her own brothers, and Mrs. Hoover’s daughter treats her like a sister. She would rather live with Mrs. Hoover than to go with Mrs. Rosenstein. Mrs. Hoover has never whipped her and has always treated her well. She attends church and Sunday school, which is about one mile away. Mrs. Hoover goes to Sunday school and is a member of the church. Her sons and daughter go to church.

Mrs. Lela P. Rosenstein was a witness for herself. According to her testimony, her brother, Thomas A. Palmertree and Ms wife did not get along well together. They frequently separated, and she kept Zula May during the periods of their separation. After the father left MempMs, the mother continued to reside there and kept Zula May with her. Finally the mother was taken sick, and, realizing that she was about to die, gave Zula May to Mrs. Rosenstein. After Mrs. Palmertree died, the father sent for Zula May and had her brought to Arkansas. This was some five years before he died. Mrs. Rosenstein did not see Zula May any more after she sent her to Arkansas until she filed her petition in the present case after Zula May’s father had died.

Mrs. Rosenstein was divorced from her first husband in the fall of 1914, and married her present husband soon thereafter. Her present husband is a merchant and worth about $35,000 and has a good income. He has a good residence and is well able and suited to have the care and custody of Zula May.

Other witnesses testified that Mr. and Mrs. Rosen-stein had only one child; that they loved children and were well able to provide for Zula May. Mrs. Rosen-stein’s mother lived with her, and they both loved Zula May. Mr. Rosenstein promised to bring up Zula May at his own expense and save her insurance money and the accumulated interest for her. In this connection it may be also stated that Mrs. Hoover said that she did not want Zula May’s money; that all she wanted was the child.

The authority of a parent over his child, has been generally said to arise from the duty he is under to maintain, protect and educate it. Hence the weight of authority, and the adjudicated cases in this State sustain the doctrine that the right of a parent to the custody of a child can not be defeated by a mere parol gift of the child by the parent to another. While a parent can by agreement surrender the custody of the child so as to make the custody of him to whom he surrenders it legal, yet the gift is not irrevocable, and in all controversies subsequently arising the matter of primary and controlling importance is the interest and welfare of the child. Washaw v. Gimble, 50 Ark. 351; Coulter v. Sypert, 78 Ark. 193; Clark v. White, 102 Ark. 93 and cases cited; Mantooth v. Hopkins, 106 Ark. 197 and case notes to 6 A. & E. Ann. Cas. at p. 939, and Ann. Cas. 1915 B, 1015 at 1019. Hence, in deciding the delicate question of awarding the custody of a child, the court seeks to promote its physical, mental and moral development.

In the instant case both parties have expressed a willingness to rear the child at their own expense and have declared their great love for the child. Mrs. Bosen-stein is an aunt of the child and her husband is a well-to-do business man in the city of Memphis, Tennessee. They have only one child, and they expressed themselves as willing to rear Zula May at their own expense and to give her the amount of insurance left her by her father with the accumulated interest when she reaches full age. They have the reputation of being kind-hearted people and are well respected by their friends and acquaintances. They had not seen the child for five years before filing the petition for her custody in this case.

On the other hand, Mrs. Hoover, while poorer in this world’s goods, lives with two unmarried sons, who have good farms and are taking care of her. It has been urged that they might marry and leave Mrs. Hoover to shift for herself. The family is shown, by the record, to be a very affectionate one, and there is nothing to indicate any separation of them. Zula May testified that Mrs. Hoover’s children appear to love her as if she was their own sister.' It might with equal propriety be said that the Bosen-steins might grow tired of her and place her in an orphanage or other institution. They live beyond the jurisdiction of the court, and it would have no way of compelling them to care for her.

Another thing- to be considered is that ties of affection have grown up between Mrs. Hoover and the child. The father saw fit to place her in the custody of Mrs. Hoover. While he was addicted to drink, the evidence shows that he was a kind-hearted man and loved his daughter. He evidently thought that he was acting for her best interest in giving her to Mrs. Hoover. So far as the record discloses, Mrs. Rosenstein did not write to Zula May after she came to Arkansas or make any effort to induce the father to return the child to her, although, if she had made any inquiry, she could have ascertained that the father had given the child to Mrs. Hoover. The child testified that she wished to continue to live with Mrs. Hoover. She has been sent regularly to school and to church. Her testimony shows that she is intelligent and is capable of judging to some extent for herself. Courts will consult the inclination of an infant if it be of a sufficiently mature age to judge for itself. 2 Kent’s Com. (14 ed.), p. 194. Of course the court should not listen to the mere whim of the child, but it should consider the child’s feelings, its affections, and its probable contentment in the future. The record discloses that both parties love Zula May and would try to make her happy; and are capable of taking care of her.

When we consider, however, that her father was a resident of this State and chose to give her to Mrs. Hoover, coupled with the fact that Zula May has lived with Mrs. Hoover for five years, and that the warmest feelings of affection have sprung up between them and now exist, the court is of the opinion that the circuit judge did not err in awarding the custody of Zula May to Mrs. Hoover.

The judgment will therefore be affirmed.


author: Habt, J.'

text:
    Walker v. Walker.
    Opinion delivered April 4, 1921.
    1. Exemptions — husband’s liability por wipe’s attorney’s'fee:4A husband’s liability for attorney’s fee of his wife in a divorce suit is statutory (Crawford & Moses’ Dig., § 3506), and not a “debt by contract,”’ within Const., art.' 9, § 1, exempting personalty of an unmarried person, as against “debts by contract.”
    2. Exemptions — wages of laborers. — Crawford & Moses’ Digest, ■ - § 3506, exémpting-the wages of laborers and mechanics for sixty days from seizure by garnishment or other legal process, was intended to limit the right of exemption to debts by contract, as provided by Const., art. 9, § 1.
    Appeal from Howard Chancery Court; Jas. D. Shaver, Chancellor;
    affirmed,
    STATEMENT OE EACTS.
    On the 4th day of May, 1920, Laura Walker obtained a decree of divorce and a judgment for the sum of $25 for attorney’s fee, and $6.75 costs of suit against Rube Walker. Subsequently in the same chancery court she caused a writ of garnishment to be issued against the Missouri Pacific Railroad Company, to collect said sums.
    Rube Walker filed a schedule, claiming the amount owed him by the Missouri Pacific Railroad Co., together with all the other property owned by him did not exceed $200. He further stated that he was an unmarried man, a resident of Arkansas, and that the amount owed him by said railroad company was the wages due him by said company for the preceding sixty days. He claimed that the railroad company owed him the sum of $44.50.
    The court disallowed his claim of exemptions and quashed the writ of supersedeas which had been issued by the clerk. To reverse that decree, Rube Walker has prosecuted this appeal.

      D. B. Sain, for appellant.
    The court erred in disallowing the claim of exemption. The time wages of appellant, a laborer, are exempt from seizure by garnishment or other legal process. Act November 27, 1875; 52 Ark. 91. The statute is remedial and should be liberally construed in favor of the debtor. 38 Ark. 112. There is no authority by statute or common law authorizing a garnishment básed on a decree of the chancery court.

      A. F. Auer, for appellee.
    The Constitution only allows the right of exemption to debts by contract, and the allowance of attroney’s fees to a wife in a divorce case is purely statutory and not founded on contract. 84 Ark. 187; 122 Id. 579; 33 ■Id. 688; 184 S. W. 64. There is no merit in the appeal.
   Habt, J.'

(after stating the facts). Section 3506 of 'Crawford & Moses’ Digest provides that during the pen-dency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt.

In Kincheloe v. Merriman, 54 Ark. 557, the court, in referring to this statute, said that an allowance under it was in the sound discretion of the court, and, before the court would make the allowance, the wife must show merit.

The court further held that in this State an attorney can not recover against the husband in an action at law for services rendered the wife in a suit for divorce. The reason given was that prosecuting or defending a suit for divorce has no relation to her protection as a wife. The liability is therefore purely statutory, and is not a debt by contract within the meaning of article 9, section 1 of the Constitution of 1874, which provides, in effect, that the personal property of any resident of this State, who is not married, in specific articles to be selected by such resident, not exceeding fin value the sum of $200, in addition to his wearing apparel, shall be exempt from seizure on attachment or sale on execution or other process from any court, issued for the collection of any debt by contract.

It will be noticed that, although marriage is a civil contract, yet the allowance in favor of the wife for attorney’s fee against her husband is, under the authority cited above, statutory and is not founded upon a contract, express or implied, within the meaning of the Constitution.

But counsel for appellant claims that the exemption should have been allowed under section 5546 of Crawford & Moses’ Digest relating to the exemption of time wages of laborers. The section, in substance, prescribes that the wages of all laborers and mechanics, not exceeding their wages for sixty days, shall hereafter be exempt from seizure by garnishment, or other legal process, provided that the defendant in any case shall file with the court from which such process shall be issued, a sworn statement that the sixty days’ wages claimed to he exempt, is less than the amount exempt to him under the Constitution of the State, and that he does not own sufficient other personal property, which, together'with the said sixty days’ wages, would exceed in amount the limits of said constitutional exemption.

In Porter v. Navin, 52 Ark. 352, in construing this section, the court held that the right to claim the exemption is limited to persons entitled to the exemption under the Constitution, and does not extend to nonresidents. The court said that the statute only gave the laborer the right to claim as exempt wages which are less than the value of the personal property exempt to him under the Constitution, and thus manifests the intent to limit the right of exemption to those entitled to exemption under the Constitution.

As we have already seen, the Constitution only gives the right of exemption to debts by contract, and the allowance for attorney’s fees to the wife in a divorce proceeding is purely statutory and not founded on contract.

Therefore, the court properly disallowed the claim of Bube Walker for exemption, and the decree will be affirmed.