author: Johnson, C. J., Smith, J.,

text:
    Smith v. Cole. Brown v. Pennix.
    4-3089
    Opinion delivered May 22, 1933.

      James D. Head and R. H. Berry, for appellants.

      Hal L. Norwood, Attorney General, Pat Mehaffy, Assistant, Will Steel and R. V. Wheeler, for appellees.

      Ben E. Carter, William C. Gibson and Joseph Morrison, amici curiae.

   Johnson, C. J.,

(after stating the facts). There, are two questions presented on these appeals for adjudication, namely:

First, is § 2 of act 250 of 1933 general in its application or special and local? Secondly, if local and special in its application, then is it administrative in effect!

A provision of § 2 of act 250 reads as follows:

“The county judge and the sheriff, county clerk, circuit clerk, treasurer and assessor and their respective deputies shall receive the respective compensations as now fixed by the Initiative Act for Union County, as adopted at the general election for the year 1932.”

Section 2 has no application to Union County other than the above quotation, therefore, it must be admitted that this is a clear exemption of Union County from the provisions and application of § 2 of said act.

Since Union County has been exempted from the provisions of section 2 of act 250 of 1933 under the doctrine as laid down by this court in Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617, this section is local and special in its application.

In Webb v. Adams, just cited, this court said in reference to an exemption of one county from the application of the enactment: “Now if a general law must apply throughout the territorial limits of the State, the exclusion of one or more counties from its provisions makes it a local statute.”

The exemption of Union County from application of the provisions of section '2 of said act brings it squarely within the teeth of the case just cited, and we have no hesitancy in holding that section 2 of act 250 of 1933 is local and special in its application.

Since determining that section 2 of said act is local and special in its application, it then behooves us to determine whether or not it is administrative in its purposes and therefore justified, notwithstanding it is local and special under previous decisions of this court.

Amendment No. 14 to our Constitution reads as follows :

“The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

In the case of Cannon v. May, 183 Ark. 107, 35 S. W. (2d) 70, reading from the first headnote, this court held:

“Acts 1929, No. 150, placing the treasurer and clerk of the county and probate courts on salary, is unconstitutional, being a ‘local or special act’ within the prohibition of amendment 12 (14) to the Constitution, since it applies to only one county in the State.”

In the earlier case of Smalley v. Bushmiaer, 181 Ark. 874, 31 S. W. (2d) 292, this court held an act fixing the compensation of the sheriff of Crawford County and the deputy clerk of said county to be local and special legislation and therefore prohibited by Amendment 14 to our Constitution.

In the case of Powell v. Durden, 61 Ark. 21, 31 S. W. 740, this court expressly held that an act of the Legislature fixing the salaries of officials of Sebastian County was a local act under the Constitution of this State.

In all the cases which have appeared in this court wherein county officials’ salaries were involved by acts of local application, we have uniformly held that such acts were local in their application, and special in their nature.

It is true that this court in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, held that statutes establishing or abolishing separate courts relating- to the administration of justice were not local or special in their operation, but it would certainly be a long step for this court to now hold that a county official salary act, as set up in § 2 of act 250, was in aid of the administration of justice, and therefore one in which the State would be interested in its sovereign rights. By implication this doctrine was denied by this court in Cannon v. May, and Smalley v. Bushmiaer, cited supra, and other cases recently decided by this court.

It is next most earnestly contended on behalf of appellants that, since section 4 of article 16 to the Constitution of 1874 providing: “The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number of salaries of the clerks and employees of the different departments of the State shall be fixed by law,” it is and was the imperative duty of the Legislature to fix the salaries of the county officials by either general, special or local legislation, and that special or local legislation is not prohibited because of this constitutional mandate.

This contention was so strenuously argued in the case of Webb v. Adams, cited supra, and received such serious consideration as to évoke a dissenting opinion by three justices of this court, but the court in the end specifically held against this insistence in the following language:

“It is true that article 14 of our Constitution deals with the subject of education and requires the Legislature to make provision for the support of our common schools. It does not require, however, the Legislature to accomplish that purpose by local or special legislation. ’ ’

In our opinion it is immaterial whether or not local legislation is induced by constitutional mandate or is passed because not prohibited by the Constitution. If such legislation is invalid, it is not strengthened by the fact that it was superinduced by constitutional mandate. It is the duty of this court to harmonize all provisions of the Constitution and amendments thereto and to construe them with the view of a harmonious whole.

The objective of the constitutional mandate found in § 4 of article 16 can be fully accomplished .by general legislation throughout the State, and we know of no other method to be pursued, so long as the 14th Amendment is permitted to stand.

It is next insisted on behalf of appellants that, since this court has held in Matthews v. Byrd, cited supra, that §§ 5 and 6 of act 250 of 1933 were constitutional and valid enactments, therefore, under the doctrine of State v. Pitts, 160 Ala. 133, 49 So. 441, all the provisions of this act thereby became constitutional and valid. This contention is based upon the theory that where a substantial portion of an enactment is general in its application, other and minor provisions of the act would stand, notwithstanding they do not have application to all sections of the State.

It is true this court cited State v. Pitts, with approval in the case of Webb v. Adams on the question of an exemption of one county, but it does not follow from this that we must adhere to all that is said in the opinion. We think that to hold in the instant case that, because §§ 5 and 6 of the act were found to be constitutional and valid enactments, this would cure constitutional objections to the balance of the act, would in effect nullify Amendment 14 to our Constitution. This part of the opinion in State v. Pitts we consider unsound, and especially in view of the fact that the 14th Amendment to our Constitution specifically condemns local legislation when it does not have application throughout the entire State. We therefore decline to follow this part of the holding of the Alabama court. Dozier v. Ragsdale, 186 Ark. 654, 55 S. W. (2d) 719.

The effect of our views is that § 2 of act 250 of 1933 is unconstitutional and void, and that the trial courts committed no error in so declaring.

The act is attacked on other constitutional grounds which we find it now unnecessary to consider.

The views herein expressed do not in the least conflict with the doctrine announced in State v. Crawford, 35 Ark. 263, nor in Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844, nor with the law as laid down by the Supreme Court of the United States in Harwood v. Wentworth, 162 U. S. 547, 16 S. Ct. 890. We are in full accord with the law and doctrine announced in each of these cases, but neither of them have application to the facts of this case.

Let the judgments be affirmed.

Smith and McHaney, JJ., dissent.

Smith, J.,

(dissenting). In the dissenting opinion in the case of Cannon v. May, 183 Ark. 112, 35 S. W. (2d) 70, I undertook to show that the G-eneral Assembly had power to fix the compensation of all officers in the State, either by fees or by a fixed salary, under the authority of section 4 of article 16 of the Constitution. In the later case of Dozier v. Ragsdale, 186 Ark. 654, 55 S. W. (2d) 779, it was held that the electors of each county had the power, under Amendment No. 7, to fix the fees and salaries of county officers.

Conferring- this power upon the electors of -a county did not deprive the General Assembly of the same right. It was said in the case of State ex rel. v. Donaghey, 106 Ark. 56, 152 S. W. 746, construing the first I. & R. Amendment, that it was not the purpose nor the intention of the people, in the adoption of the I. & R. Amendment, to abrogate or destroy the Constitution of the State. Subsequent cases construing this amendment and the later I. & R. Amendment have reiterated this holding, and have declared the purpose and effect of the amendments to be to reserve to the people the right “to propose laws and amendments to the Constitution, and to enact or reject the same at the polls as independent of the General Assembly” ; but, in reserving that power to themselves, the people did not deprive the General Assembly of the power committed to it by the Constitution to legislate. So it does not follow that, because the electors of a county may fix county salaries under the present I. & R. Amendment, the General Assembly may not do so under an original section of the Constitution. The present state of the ,law is, in my opinion, that fees and salaries of county officers may be fixed either by the electors themselves or by the General Assembly. There are now two methods of doing so. I do not repeat here the argument presented in the dissenting opinion in Cannon v. May to the effect that the right of the General Assembly to fix fees and salaries was not affected by the amendment prohibiting the General Assembly from enacting local or special laws. Whether right or wrong, that opinion presents my views on the subject and speaks for itself.

Answering the argument by which the majority reached the conclusion announced in Cannon v. May, supra, I there undertook to distinguish that case from the case of Smalley v. Bushmiaer, 181 Ark. 874, 31 S. W. (2d) 292, which the majority thought was controlling, and I did this by pointing out that in the Smalley case the General Assembly had fixed a different fee for- feeding prisoners in Crawford County from that paid in other counties, and I there said that, although the Constitution might contemplate that the same fee should be paid for the same service throughout the State (which 1 did not concede), it certainly did not contemplate that all similar officers of different counties placed upon a salary should be paid the same salary.

It must be conceded — and I make the concession— that the fees and salaries fixed by act 250 of the Acts of 1933 are not equal and uniform, but why should they be to make such legislation valid? I know of no constitutional requirement that they shall be, and the majority opinion in the instant case, and other cases which it cites, recognizes that they do not have to be equal and uniform, provided the General Assembly, in fixing diverse fees and salaries, does so according to some basis of classification. Now, if the General Assembly has this power at all, should we not assume that the power had been exercised in a‘ constitutional manner? The Legislature does not have to declare the reasons inducing its action in a particular case, or in any cáse, and the court should go no further than to inquire whether the General Assembly has exceeded its power or had acted without power. Cobb v. Parnell, 183 Ark. 429, 36 S. W. (2d) 388.

The history of act 250 of the Acts of 1933 is too recent to be ignored. It was enacted pursuant to a demand for economy in government, which was wide-spread and insistent, and which would take no denial. Committees to which the legislation was referred held numerous public sessions, which were attended by large delegations from all sections of the State. The legislative journals show that innumerable amendments were offered and considered, and who can know what information was acquired by the General Assembly as to the diverse conditions of the various counties which induced the lack of uniformity in the matter of. fees and salaries? 'The General Assembly was not required to incorporate its findings of fact in the legislation, and citation of authority is not required upon the proposition that every intendment must be indulged in favor of the constitutionality of an act, and that legislation will not be held unconstitutional unless it is obviously-so.

The act under review has been held unconstitutional because it omits.Union County from its provisions, but I submit it is not open to that objection. It fixes the fees of Union County. It does this, it is true, by adopting the fees fixed in the initiated act upheld in the case of Dozier v. Ragsdale, supra, but this adoption is a re-enactment of the initiated legislation.

The Dozier case, as I read it, is authority for upholding the act here struck down. It was there said: “Appellant cites and relies on act 216 of the Acts of 1931. That, however, is not a general law fixing the fees of the county officers of the State, but that law provides that the Legislature has determined and declared that the fees now being drawn by the different county officers, according to the provisions of general statutes of the State, and special and local acts are based on proper classification, and that they shall continue to receive the salaries and fees under said local and special acts. Therefore the act itself provides that they are still receiving the fees and salaries under special acts, and not under general acts. We do not think the people had in mind legislation of this character in adopting the amendment which provided that no local law shall be enacted contrary to a general law. ’ ’

Will act 216 of the Acts of 1931 now be held unconstitutional? It cannot, in my opinion, be distinguished from act 250 of the Acts of 1933. The act of 1931 reads as follows: “Section 1. It is hereby determined and declared that the salaries and fees now being drawn by the different county .officers of the State of Arkansas according to the provisions of the general statutes of the State and special and local acts passed by the General Assemblies of the State of Arkansas for the years of 1927,1929 and 1931. are based upon a proper classification of the different counties of the State according to population, wealth, location and volume of business transacted in the different counties, and it is hereby declared that all of said county officers shall continue to receive the salaries and fees they are at this time receiving under said laws and local and special acts. And the deputies and employees of all such offices shall be entitled to and continue to receive the same salary as now provided hy said special acts the same salary as they are now receiving under such local and special acts heretofore passed. And all such county officers shall he entitled to receive such other emoluments and office expenses as are now provided under special or local acts heretofore passed.”

There was enacted, at the sessions of the 1927, 1929 and 1931 General Assemblies, numerous acts fixing fees and salaries for various officers, without attempting to make them equal and uniform throughout the State, and all these acts were passed subsequent to the general election of 1926, at which time the amendment was adopted prohibiting local and special legislation, and, if any of these scores of acts are valid, I do not think act 250 of the 1933 session can be declared invalid.

In my opinion, act 250 of the Acts of 1933 is- valid legislation, and should be upheld as such.

And I am authorized to say that Mr. Justice McHaney concurs in that view.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Haglin v. Hunt.
    4-3019
    Opinion delivered May 22, 1933.

      Geo. F. Youmans, for appellant.

      Hill, Fitzhugh & Brizzolara, for appellee.
   Smith, J.

Appellees owned two lots' in the Sebastian Bridge District which district was created by act 104 of the Acts of 1913 (Acts 1913, page 380). The act provides, among other things, for the assessment of benefits on the real property in the district, for making the amount of the assessment against each piece of real property a lien thereon, and for the collection of the benefits in annual installments. The method provided for enforcing delinquent assessments is by suit in the chancery court to foreclose the lien of the assessment, leading, as in other cases of foreclosure, to the sale of the property by a commissioner of the court appointed for that purpose.

The lots owned by appellees are described as lots 8 and 9, in block 4, of East End Place, an addition to the city of Port Smith. Prior to the assessment of benefits a house had been built on the lots, a portion thereof being on each lot, and when the betterments were assessed the two lots were assessed as a single tract. The value of the lots was assessed at $4,000, and the annual benefit installment payable each year was $5. The 1927 installment was not paid, and a decree was rendered to enforce payment, pursuant to which the lots were sold to Ed Haglin, as a single tract, for the sum of $10, and upon the expiration of the time allowed for redemption, redemption not being made, a commissioner’s deed was executed and approved by the court. A short time before this sale a loan of $2,300 was obtained on the security of the property from a local building and loan association.

This suit was brought to cancel the commissioner’s deed, it being alleged that the sale was not made in conformity with the requirements of the act pursuant to which the improvement district had been organized and the sale held. It was also alleged and shown that full tender had been made to the purchaser.

Section 8 of the act provides that, immediately after ascertaining the cost of the improvement, the assessors of benefits there provided for shall assess “the value of all benefits to be received by each landowner by reason of the proposed improvement as affecting each tract of land within said district,” and that: “They shall ascertain the value of the real property within said district without said improvement, and the value thereof as benefited by said improvement, and shall charge against each lot, tract or parcel of real estate in said district an assessment according to the value of the benefit that will accrue to it by reason of the construction of said bridge.”

The assessments having been made and approved, § 13 provides that the secretary of the district “shall annually thereafter extend against each of said lots, tracts and parcels of real estate the payment due thereon for such year. ’ ’

After providing the procedure to enforce payment of delinquent assessments, § 25 of the act directs as follows: “The suit shall be brought in the name of the district, and, in its decree of condemnation, the court shall direct that, if the sum adjudged shall not be paid within ten days, the property shall be sold by a special commissioner, appointed for that purpose, upon twenty days’ notice. Provided, that only so much of the property shall be sold as will pay the assessment, costs and penalty, and no more.”

Notwithstanding this requirement, the report of the commissioner who made the sale shows that the two lots owned by appellees were sold in solido as a single parcel of land to Haglin for the sum of $10. The court below held that this sale was void, as not having been made in the manner required by law, and this appeal is from that decree.

At § 1200 of Sloan’s Improvement Districts in Arkansas it is said: “The following defects in the notice of sale and the publication thereof are cured by confirmation and furnish no ground for a subsequent collateral attack on the sale: Failure to recite in a municipal district notice of sale that ‘only so much of the property shall be sold as will pay the assessment, costs and penalty and no more’.” The case of Cassady v. Norris, 118 Ark. 449, 177 S. W. 10, is cited in support of the text quoted.

The property involved in the Cassady case was there referred to as “the lot in controversy.” As a matter of fact, the transcript in the case shows that the property involved was a half-lot. It was there insisted “that the sale was invalid because there was no notice to the effect that ‘only so much of the property shall be sold as will pay the assessment, costs and penalty and no more.’ Kirby’s Digest, § 5700.” A comparison of this section with § 25 of act 104 of the Acts of 1913 shows that the latter was copied from the former. The court there held that upon collateral attack the omission to state that only so much of the property would be sold as was required to pay the assessment, costs and penalty was a question which could not be raised. However, it was not held that this was an irregularity, but only that, if so, it was an irregularity which had been cured by the confirmation of the sale.

We have here a different question. The provisions of § 5700, Kirby’s Digest, and those also of § 25 of act 104 of 1913, would apply in applicable cases, whether the notice of sale recited them or not, and we do not think this recital in the notice of sale would be essential to the validity of the sale in either case. Neither provides that the notice of sale shall recite that only so much of the property shall be sold as is necessary to pay the assessment, etc., but the direction is that only that quantity shall be sold, and the sale is subject to this statute, whether the notice recited its provisions or not. It is not stated in the opinion in the Cassady case, supra, that the sale was not made in conformity with § 5700, Kirby’s Digest. The contention was that the notice of sale did not recite that it would be so sold; whereas in the instant case the fact is that the sale did not conform to the requirements df § 25 of act 104, and the form of the notice is therefore unimportant.

In the case of Knight v. Equitable Life Assurance Society, 186 Ark. 150, 52 S. W. (2d) 977, various objections were made to the form and sufficiency of a commissioner’s notice of sale, and the authorities upon the subject were there reviewed. The objections to the form of notice of sale were overruled, the opinion holding, in effect, that statutory requirements regarding such sales would be read into the notice, and need not be recited in it.

We conclude therefore that the Cassady case does not foreclose the question here presented.

At § 1611 of the chapter on Taxation in 61 C. J., page 1195, appears the following statement of the law: “A statute, providing that the officer conducting the tax sale shall sell only so ‘much as may be necessary’ of a tract to satisfy the taxes and costs, imposes an imperative limitation on him, and the sale will be void where he sells an entire tract when a portion of it would have been enough, or sells a larger portion than was necessary, or continues selling after enough has been disposed of to raise the required amount; and the fact that it was necessary to sell the quantity actually sold must, in some jurisdictions, appear of record, but there is authority that the record may be amended to show that in fact only so much was sold as was necessary to pay the tax and charges due thereon.”

In the preceding section on this same page of C. J. appears this statement: “If there is a statutory provision that land sold for taxes should be sold as a whole, a sale to one who was asked to take the. least quantity which he would accept .for paying the taxes is void, although the purchaser refused to accept less than the whole. ’ ’

The case of Richards v. Howell, 60 Ark. 215, 29 S. W. 461, is cited in the note, to the text last quoted. In this Richards case a tax sale was made under a statute which required that the whole tract should be sold to the person offering to pay the highest price therefor, but the deed to the tax purchaser showed that the least quantity of the land was sold that any one would take and pay the taxes, penalty and costs charged against it, and that, no one having offered to pay them for less than the whole of the tract, it (the entire tract) was struck off to the person who offered to pay that price. In holding that the sale was void as not having been made in conformity with law, Judge Battle said: “But it may be said that the whole tract sold only for the taxes, penalty and costs, and the original owner was not affected or prejudiced. How can this be truly said when it was not offered to the highest bidder? No one can tell how much it would ha-ve sold for, had it been sold in the manner prescribed by law. Some one might have given more for the entire tract, when he would not have paid the taxes, penalty and costs for less than the whole. It might have sold for more; it could not have brought less. The owner was entitled to the experiment. The collector had no authority to take it from him, and constitute himself the judge of what was for his benefit. The sale in question was void.”

Here we have lots the assessed value of which, appearing upon the assessment books of the district itself, was $4,000, and upon the security of which the owner had recently borrowed $2,300. These lots were sold for taxes amounting to $5, with penalty and costs in addition. Can it be said that no one would have paid this small sum for one or the other of these lots had they been separately offered for sale, as the statute, requires ? As was said by Judge Battle in the Richards case, supra, the owner was entitled to the experiment.

In the case of LaCotts v. Quertermous, 83 Ark. 174, 103 S. W. 182, the headnote reads as follows: “Where the evidence shows that, though a town was not incorporated, it was a town in fact, and that the land within its limits was, for convenience, laid off into lots and blocks similar to the system prevailing in cities and incorporated towns, and was so assessed, a tax deed is void which shows on its face that two separate, lots of land within such town were sold in mass for a lump sum.” See also Harris v. Brady, 87 Ark. 428, 112 S. W. 974; Chatfteld v. Iowa & Ark. Land Co., 88 Ark. 395, 114 S. W. 927; Belcher v. Harr, 94 Ark. 221, 126 S. W. 714; Campbell v. Sanders, 138 Ark. 94, 210 S. W. 782; Culver v. Gillian, 160 Ark. 397, 254 S. W. 681.

We conclude therefore that the court below was correct in holding that the lots- had not been sold in conformity with the law, and that the commissioner’s deed was properly canceled, the amount due the purchaser having been tendered into court. Decree affirmed.


author: Humphreys, J.

text:
    Hill v. Dillard.
    4-2968
    Opinion delivered May 22, 1933.

      W. A. Singfield and J. H. Carmichael, Jr., for appellant.

      W. R. Morrow, for appellee.
   Humphreys, J.

This is an appeal from a decree of the chancery court of Pulaski County vesting the title to the north '29% feet of lots 10, 11 and 12 in Fulk’s subdivision of block 317, original city of Little Rock, Arkansas, in appellee and awarding him the possession thereof. Appellant claimed the title thereto under a probate sale of the south one-half of lot 13, block 317, Fulk’s subdivision to the city of Little Rock, Arkansas, in November, 1930, to satisfy the debts of Aaron Battle, alleging that it was the purpose and intent of the administrator of the estate of Aaron Battle to include in the probate sale the north 29% feet of lots 10, 11 and 12 in block 317, aforesaid, which property was also owned by Aaron Battle at the time he died. Aaron Battle died testate, leaving all his property to Mittie Hill, appellant herein. Lots 10, 11 and 12 in block 317, aforesaid, were not actually included in the application to the probate court to sell the lands of Aaron Battle, deceased, to pay his indebtedness, which amounted to $300 or $400, nor in the order of sale, report of sale, confirmation of sale, or the administrator’s deed. The only land included in the probate proceeding- and the administrator’s deed made pursuant to the judgment rendered therein was the south one-half of lot 13 in Fulk’s subdivision "of block 317, original city of Little Rock, Arkansas. The south one-half of lot 13 was valued at about $400, and the other lots and improvements thereon at about $2,200;

The administrator and appellant testified that it was the intention to also include in the probate sale the north 29% feet of lots 10, 11 and 12 in said block 317, which Aaron Battle owned and upon which he lived at the time of his death.

Vesting the title to the north 29% feet of lots 10, 11 and 12 in block 317 in appellee and decreeing him the possession thereof was in effect to reform the proceedings of the probate court and the administrator’s deed made pursuant to the judgment rendered therein in substance and not form or for clerical errors only. Administrators ’ or commissioners’ deeds may be reformed for clerical errors or in matters relating to form only. Gates v. Gray, 85 Ark. 25, 106 S. W. 947; Cates v. Cates, 157 Ark. 181, 247 S. W. 780. We are unable to find any authority in the chancery courts to reform orders of judgments of probate courts or deeds made pursuant thereto in matters of substance.

On account of the error indicated, the decree is reversed with directions to dismiss appellee’s complaint.


text:
    Arkansas Power & Light Company v. Stuck.
    4-3020
    Opinion delivered May 22, 1933.

      Hawthorne, Hawthorne & Wheatley, for appellant.

      Foster Clarke and H. M. Cooley, for appellee.
   Humphreys, J.

This suit was brought in the circuit court of Craighead County, Jonesboro District, by appellee against appellant to recover $3,383.15 for damages to his brick kilns and contents through the alleged failure of appellant to furnish adequate equipment to operate said kilns with natural gas. The contract sued upon and alleged to have been breached as a ground for money damages claimed is as follows:

“Pine Bluff, Arkansas,
“November 18, 1929.
“Mr. E. C. Stuck, Jonesboro Brick Company, Jonesboro, Arkansas.
“Subject: Natural gas equipment.
“Dear sir: Complying with our verbal understanding and in consideration for the signing of a year’s contract for natural gas in your brick plant, we will equip your plant to burn natural gas at our expense, and you are to use it for a year’s time to determine if it is satisfactory. If the gas is satisfactory to you, you are to keep the equipment and pay us for same at a total cost of $1,200. If for any reason you decide to discontinue the use of gas, we are to take the equipment out at our expense, and you are not to pay us anything for the installation and for the use of it. You are to pay only for the amount of gas used under the regular rate schedule attached to contract.
“It is understood that the equipment is to consist of necessary meters and regulators which remain in our possession and a header of sufficient capacity for any of the kilns with outlets on this header, so that any kiln can be used plus two headers with nine burners each for installation on any kiln which you might use, and these will be equipped with necessary valves and unions so that they can be connected and reconnected on another kiln at any time. This also includes a burner under your boiler.
“In other words we are to give you a trial installation at our expense, and, if satisfactory, you keep it and pay for it, and, if not satisfactory, we take it out at no cost to you other than the gas which you use.
‘ ‘ Sketch of equipment we furnish is attached hereto.
“Yours very truly,
“ Arkansas Power & Light Co.
“By Chás. M. Rogers.
“Accepted E. C. Stuck.”

Attached to this contract was a diagram showing the equipment and the .construction thereof.

The equipment was. installed by appellant, and the brick plant operated with natural gas until three kilns were finished. During the operation and completion of the first two kilns, complaint was made by appellee that the burners were working- unsatisfactorily, and they were removed and plain open end pipes were installed in their places under a written supplemental agreement of date May 26, 1930, in which it was recited that the equipment was installed as per agreement, but the burners, proving unsatisfactory, were removed and plain open end pipes installed in their places, for which a deduction of $700 less actual cost of open end pipes should be deducted from the original price of $1,200 for-the equipment. After the kilns had been furnished and the brick removed, appellee notified appellant to remove the equipment on .account of its failure to perform the work intended. The notice was given in June, 1930, and, after appellant removed same, this suit for damages was instituted.

Appellant filed an answer denying the material allegations of the complaint. The cause proceeded to a hearing upon the pleadings, and at the conclusion of the testimony appellant moved for an instructed verdict, which was refused by the court over its objection and exception. The cause was then submitted to the jury upon the issues joined and the testimony adduced, which resulted in a verdict and consequent judgment against .appellant in tlie sum of $3,000, from which is this appeal.

The contract upon which appellee based his suit provided the remedy in case appellee should become dissatisfied with the equipment. It plainly says: “ If for any reason you decide to discontinue the use of gas, we are to take the equipment out at our expense, and you are not to pay anything for the installation and for the use of it. * * * In other words, we are to give you a trial installation at our expense, and if satisfied, you keep it and pay for it; and if not satisfied, we take it out at no cost to you other than the gas which you use.”

It is apparent from the written contract that the equipment was sold subject to test and the principle governing sales of personal property on test is laid down in 24 R. C. L. 192 as follows:

“The general rule seems to be that an article of personal property sold subject to a test to be made by the buyer must be regarded as sold without warranty of fitness, and none can be or is implied.”

A case involving the same principle as this may be found in 176 Mich. 109, 142 N. W. 362, 50 L. R. A. (N. S.) 805, under the style of Twin City Creamery v. Godfrey. In announcing the principle in the case mentioned, the court used the following language:

“Money damages cannot be recovered because of failure of a refrigerating plant to comply with the specifications, if the contract provides that in case the plant does not fulfill the conditions of the contract the contractor shall be allowed to enter and remove it upon refunding the payments which had been made upon the contract."

In the instant case, it is apparent that no other damages were contemplated by the parties than those incident to the removal of the equipment on notice. This remedy or measure of damages provided in the contract is exclusive; hence money damages for injuries incident to the test cannot be recovered.

The result would have been the same in the instant-case had the contract contained an express warranty that the equipment would properly function because the contract itself provided for a remedy or measure of damages. This court said in the case of Crouch v. Leake, 108 Ark. 322, 157 S. W. 390, 50 L. R. A. (N. S) 774:

“The written contract expressed the terms of the warranty and provided the remedy that should accrue from a breach of it which was exclusive of any other mode of compensation and afforded the only relief to which they were entitled.”

On account of the error indicated, the judgment is reversed, and appellee’s complaint is dismissed.


author: Kirby, J.

text:
    Fort Smith v. McLean.
    4-3025
    Opinion delivered May 22, 1933.

      George W. Dodd, for appellant.

      Cravens & Cravens, for appellee.
   Kirby, J.

This is the second appeal of this case, a sufficient statement of which appears in the former opinion in McLean v. Fort Smith, 185 Ark. 582, 48 S. W. (2d) 228.

The court directed a verdict in said cause, from which the appeal was taken, and this court reversed and remanded with directions for a new trial on April 11, 1932.

The facts developed upon this trial are virtually the same as were shown upon the first trial, and were in sharp conflict as to whether the building was a nuisance, and because that question was not submitted to the jury the cause was reversed.

Upon this trial upon virtually the same conflicting evidence, the. court refused to submit the question to the jury of whether the building constituted a nuisance in fact or at common law which could be abated by the city, submitting only the question of damages for its destruction to the jury — in effect directing a verdict upon the- very question for which the cause was remanded in the first appeal for determination by the jury — and, of course, erred in doing so, the former decision being the law of the case. McLean v. Ft. Smith, supra. See also Murphy v. Cupp, 182 Ark. 334, 31 S. W. (2d) 396.

The court erred in refusing to leave to the determination of the jury the question of whether the building-constituted in fact a nuisance that the city could abate, the ordinance giving it no such right unless the building was in fact a nuisance.

For this error, the judgment must be' reversed, and the cause remanded for a new trial. It is so ordered.


author: Butler, J.

text:
    American Company of Arkansas v. Baker.
    4-3013
    Opinion delivered May 22, 1933.

      Buzbee, Pugh & Harrison, for appellant.

      Golden & Golden and Williamson & Williamson, for appellee.
   Butler, J.

The defendant (appellant) is a corporation. Plaintiff (appellee) was its servant and, in the discharge of his duties as such, was injured. The negligence of a fellow-servant concurring with that of another was charged as the proximate cause of the injury. An action was brought by appellee for damages against the fellow-servant and the corporation which resulted in a verdict for the defendant servant and against the employer, from which the latter has appealed.

1. On the return of the verdict into court, both the appellee and the appellant moved for a judgment, notwithstanding the verdict. The appellee moved for judgment in his favor against the defendant, Mitchell Cod-win, his fellow-servant, and the appellant moved for a judgment in its favor. The overruling of appellant’s motion is one of the principal grounds assigned for re-versal of this case, the appellant basing its position on the general rule announced in the case of Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, as follows: “Where a recovery is sought in an action against a principal and his agent based upon the act or omission of the agent which the principal did not direct and in which he did not participate and for which his responsibility is simply that cast upon him by law by reason of his relationship to the agent, a judgment i-n favor of and exonerating the agent generally ex proprio vigore relieves the principal of responsibility, and may be availed of by the principal for that purpose.”

Appellant recognizes that there is an exception to this rule where the liability of the master and the servant is governed by different rules, as pointed out in the recent cases of Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. (2d) 255, and Mo. Pac. Rd. Co. v. Morrison, 186 Ark. 689, 55 S. W. (2d) 993, but contends that the exception cannot be applied in the case at bar for the reason that the court instructed the jury that contributory negligence was a complete defense as to both defendants. The instruction referred to is instruction No. 8 and was given by the court over the objection of the appellee and at the request of the appellant. The declaration of the court correctly stated the general rule, but failed to take into consideration the exception created by § 7145, Crawford & Moses’ Digest. That section is as follows: “In all actions hereafter brought against any such corporation under or by virtue of any of the provisions of this act to recover damages for personal injuries [to an employee, or where such injuries] (a) have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury (and not by the court) in proportion to the amount of negligence attributable to such employee; provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such corporation of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

Because of the above statute a different defense obtains as to the fellow-servant and the corporation.' As to the former, the contributory negligence of the plaintiff, if any, remains a complete defense, whereas this is not so as to the corporation; as to the latter, the doctrine of comparative negligence established by the statute applies, and the rule announced in the Senn and Morrison cases, supra, therefore applies to the instant case. “It will therefore be seen that it might be perfectly proper to find a verdict in favor of the employee charged with negligence and against the master, because appellee would be entitled to a verdict against the corporation, notwithstanding his contributory negligence, but would not be entitled to a verdict against the servant, no matter how guilty he may have been of negligence, if the injured party was guilty of any contributory negligence." Miss. River Fuel Corp. v. Senn, supra.

The appellant argues that, because of instruction No. 8, it cannot be said that the jury failed to find against the fellow-servant, Godwin, because of contributory negligence of plaintiff, for under the instruction of the court, whether right or wrong, if the jury found contributory negligence on the part of the plaintiff, it was its duty to return a verdict in favor of both defendants. This argument is untenable for the reason that the court was drawn into error at the suggestion of the appellant, and it is therefore in no position to take advantage of it, and the court correctly overruled its motion for judgment notwithstanding the verdict.

2. The second ground urged for reversal of' the judgment and dismissal of the case is based upon the refusal of the court to direct a verdict because of failure of the evidence to justify the submission of the case to the jury. The appellant argues with great force that the testimony fails to establish any negligent act on the part of Godwin, the fellow-servant, which was the proximate cause of the injury to the appellee.

That part of the evidence necessary for an understanding of this issue establishes the following facts; appellee was a truck driver, and at the time of the injury was conveying a truck loaded with merchandise of the appellant along Highway No. 4 traveling toward Warren from Monticello. At a point between these two towns a considerable portion of the highway was covered with water, and in attempting to pass through this the truck driven by the appellee became mired and could not be driven further. He got out of the truck and waded through the water toward the west until he emerged from it. From this point the ground gradually ascended for about 500 feet to what the witnesses called “the brow of the hill.” Between the edge of the water and this hill another truck of the appellant was standing which had been driven from Warren by Godwin and in which another employee of the appellant, a Mr. Caraway, was riding. When they discovered the predicament of the truck driven by the appellee, they went back to where their truck was standing, then headed toward Warren, and turned it around and drove downward to near the edge of the water, their purpose being to take appellee with them and. return to the mired truck and remove a part of its load so that it might be driven out. When God-win’s truck was near the water’s edge, it was stopped for the purpose of allowing appellee to get on. Near the place where the truck stopped, a car driven by Mr. Beard was parked on the side of the highway. As appellee was preparing to, or in the act of, boarding Godwin’s truck, a Ford car driven at a rapid rate of speed by a negro man attempted to pass between the truck and Beard’s c'ar, striking* the appellee and inflicting* upon him serious injuries. As to how and when the negro’s car approached and for what length of time the truck had been standing, the evidence is in conflict.

Two disinterested witnesses, Mr. Triber Beard and Mr. R. L. Ragar, who were present at the time of the accident, testified that the truck driven by Godwin approached the water’s edge and stopped before the negro appeared in his car over the brow of the hill some 540 feet away and at which point the truck could be plainly seen; that, without stopping or slackening his speed, the negro- drove at a very fast rate — estimated by the witnesses to 'be between 35 and 50 miles an hour — between the standing truck and the car parked on the edge of the highway, glancing the door of Beard’s Ford and without touching the truck. As to the relative position of God-win’s truck and Beard’s car, these witnesses stated that there was ample room for the negro’s car to pass between them, the back end of the truck which had been stopped about the middle of the highway being anywhere from ten to twenty-five feet from the front end of Beard’s car.

The appellee testified that the truck driven by God-win came rapidly down the hill and suddenly stopped with the rear end about even with the front end of the parked Ford, and that Godwin did not hold out his arm or give any signal that he was about to stop the truck; that the truck had no rear-view mirror on it and just as it came to. a stop — almost at the same instant — the negro came right in behind the truck striking the side of the truck and scraping the side of the car. At the time the witness was standing in front of the Ford car which prevented him from seeing the car driven by the negro until too late to avoid being* struck by it; that the first time he saw the negro’s car it had hit the Ford car and the truck about six feet from him. He estimated the time between the stopping of the truck driven by God-win and the collision as not over three seconds.

It appears to us that the negligence, if any, was the sudden stopping of the truck without giving* any signal or warning of that intention to one who might be driving closely behind it. The circumstances of this case are peculiar, but we are unable to say as a matter of laiv that there is no substantial evidence of any negligent act on the part of Godwin, the fellowrservant of the appellee. This court has no power to vacate a verdict of the .jury or the judgment based thereon on the weight of the evidence, but we are obliged on appeal to view the evidence in the light most favorable to the appellee, giving to it every reasonable inference in support of the verdict, and, however much we may think the evidence preponderates against the finding of the jury, we may not interfere. This court has repeatedly pointed out that this is a duty and power resting solely with the trial judge to be exercised whenever, in his opinion, the verdict is against the clear preponderance of the evidence, and on that question his judgment is conclusive if there is any substantial conflict therein. Taylor v. Grant Lumber Co., 94 Ark. 566, 127 S. W. 962; McDonnell v. St. L. Sw. Ry. Co., 98 Ark. 334, 135 S. W. 925; Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922; McElroy v. Arkansas Valley Trust Co., 100 Ark. 596, 141 S. W. 196; Johnson v. Mantooth, 108 Ark. 99, 156 S. W. 448; Wilhelm v. Collison, 133 Ark. 166, 202 S. W. 28.

3. It is our opinion however that the case was submitted to the jury on the wrong theory. We think that the court correctly declared the law in instruction No. 9 by which the jury was told to disregard Godwin’s failure to signal his intention to stop, etc., if it found the truck was stopped before the Ford driven by the negro came into view, but erred when, at the request of the defendant (appellant), it took from the jury the question of Godwin’s negligence, if any, in suddenly stopping his truck without giving any signal of his intention to do so, if this was the proximate cause of the injury of appellee.

was truck stopped approximately in the center of the highway leaving less than fifteen feet of the main portion of the highway open for passing vehicles. In that state of the case, the court applied the statute which makes it unlawful for any person to park or leave standing any vehicle upon any highway unless a clear an unobstructed width of not less than fifteen feet upon the main traveled portion of the highway opposite such vehicle be left for free passage other vehicles, and in instruction No. 1 told the jury that if Godwin so left his truck he was guilty of obstructing the

We are also of the opinion that under the facts in this case instruction No. 2 was abstract. In the statute upon which instruction No. 1 is grounded the expression “or leave standing” is nothing more than a legislative definition of the word “park” which precedes it. Both the word “park” and the expression “or leave standing” have been frequently defined by the courts and must be deemed to have been used by the Legislature as meaning something more than a mere temporary or momentary stopping on the road for a necessary purpose.

“Under the automobile statutes the term ‘park’ has been defined by the courts as meaning, in substance, the voluntary act of leaving a car on the main-traveled portion of the highway when not in use. It means something more than a mere temporary or momentary stoppage on the road for a necessary purpose. Whether or not a vehicle standing in the roadway is parked must be determined from all of the surrounding circumstances and the reason for the vehicle standing, and is usually a question for the jury.” Huddy, Ency. of Automobile Law, vol. 3-4, § 59, p. 104.

In the statute before us the Législature makes it clear by the use of the words “or leave standing” that it did not intend to make the temporary stopping of a vehicle in the highway a violation of the law, for by this expression they meant something more than a temporary stopping in the road where a fifteen feet clearance is not given. Generally, it is a question for the jury to determine from all of the surrounding circumstances and from the reason for the vehicle stopping whether it violates the law against parking on the public highway.

In Oregon the statute prohibiting the parking of vehicles on the highway provides that “no vehicle shall be parked upon the main-traveled portion of the highways of this State, provided that this shall not apply to any vehicle so disabled as to prohibit the moving of the same.” In construing that statute the Supreme Court of Oregon in the case of Martin v. Oregon Stages, 129 Or. 435, 277 Pac. 291, said: “The word ‘park’ as used in the statute has not been accurately defined. It cannot be precisely defined so as to apply thé meaning of the Legislature to all cases. Whether or not a motor vehicle standing in the roadway is parked must be determined from all the surrounding circumstances and the reason for the vehicle standing.”

Under a statute similar in its effect to ours, the Supreme Court of South Dakota, in the case of Bruening v. Miller, 57 S. D. 58, 230 N. W. 754, 758, held that leaving a tractor upon the highway while the operator procured gasoline was not parking under the statute. In the case of Newell Contracting Co. v. Berry, 223 Ala. 109, 134 So. 870, the court said: “Parking with reference to motor vehicles is a term used as meaning the permitting of motor vehicles to remain standing on a public highway or street; the voluntary act of leaving a vehicle on- the highway when not in use, and to ‘park’ means something more than mere temporary or momentary stoppage on the road for a necessary purpose’.”

In Village of Wonewoc v. Taubert, 203 Wis. 73, 233 N. W. 755, the court defined the term “parking” as applied to automobiles as meaning not only the voluntary act of leaving a vehicle on the street unattended, but also to stopping on the highway though occupied and attended for a length of time inconsistent with the reasonable use of the streets or highways, considering the primary purpose for which they exist.

In the case of Sahms v. Marcus, 239 Mich. 682, 214 N. W. 969, cited by appellant, in applying its statute making it “unlawful to park a vehicle on the beaten track or paved surface of any highway, etc.,” the Supreme Court held as a matter of law that the statute was not violated where a driver stopped his car for a moment to recover his wife’s hat, explaining that there is a difference between stopping and parking; that the statute is aimed at vehicles unable to move under their own power and left standing and those which are able to move, but left standing without watchman or caretaker; the purpose of the act being to keep the improved highways open for travel and free from non-moving vehicles, but not to prohibit a temporary stop for a necessary reason.

In Billingsly v. McCommick Transfer Co., 58 N. D. 913, 228 N. W. 424, a decision from the North Dakota court, in discussing the statute of that State regulating the use of the highways, the court held “that ‘parking’ means more than a momentary or temporary stopping— that is, it has an element of a purpose unconnected with the car itself and an intent to leave it there in a supposedly safe place while engaged in other business or pleasure.” See also Bowmaster v. Depree Co., 252 Mich. 505, 233 N. W. 395; Dare v. Boss, 111 Or. 190, 224 Pac. 646.

Several of the witnesses, including the negro whose negligence is' undisputed, testified that the truck had just stopped as the negro appeared on the brow of the hill some 540 feet away, while the appellee placed the time the truck was standing before the accident at a shorter interval than the others, so in any view of the evidence it is apparent that the truck was not “parked or left standing” within the meaning of the statute, but momentarily for the purpose of affording appellee an opportunity to embark thereon that he might assist in the performance of a necessary work.

For the errors stated the judgment of the court below is reversed, and the cause remanded for a new trial.


text:
    Davis v. Oaks.
    4-3017
    Opinion delivered May 22, 1933.

      Murphy & Wood, for appellant.

      Jay M. Rowland, for appellee.
   Butler, J.

The Conservative Loan Company at Little Bock brought suit in the Garland Chancery Court against O. C. Davis to recover on a debt owing it by the latter and for foreclosure of a mortgage given on a twenty-five acre tract of land, with other lands, to secure the same. On the 15th day of October, 1923, it recovered judgment for $972.30 and a decree foreclosing the debt- or’s equity of redemption in the said lands.

In 1928 Davis moved to Texas, and the following year the Liberty Bealty Company, acting through its agent, W. C. Oaks, took possession of the twenty-five acre tract. In August, 1932, Davis brought suit in ejectment to recover possession of said lands naming as defendants the appellees, Liberty Realty Company, W. C. Oaks and Carrie Oaks, his wife. The defendants, appellees, answered and by way of cross-complaint set up an interest in the lands as owners of the judgment rendered in 1923 aforesaid and as owners of certain notes and deeds of trust executed by Davis, and further alleged ownership by virtue of a purchase from certain persons to whom the lands had been sold for the taxes delinquent thereon. The case, on motion of defendants, was transferred to the Garland Chancery Court, which after hearing the evidence, found that the appellee, Liberty Realty Company, was the owner of the judgment obtained by the Conservative Loan Company aforesaid which it found was a valid and subsisting judgment, and the court rendered judgment in favor of the said appellee for the amount of the same with interest from its date and declared the same a lien on the lands involved, etc. From that judgment and decree comes this appeal.

The pleadings and evidence have raised several questions involving the application of the statute of limitations, the ownership of a certain note for $1,925 and deed of trust to secure the same and certain other notes and deeds of trust executed from time to time by the appellant, and the rights of a mortgagee in possession after default, and the duty of the mortgagor attempting to recover, the effect of the tax sales under which appellee claimed title, etc. None of these questions become necessary for us to consider for the reason that the trial court has found as determinative of the rights of the parties these facts, namely, that a valid and subsisting judgment exists of which the appellee Liberty Realty Company is the owner, and which constitutes a lien on the lands sought to be recovered by the appellant.

The contention is made for the appellant, first, that said judgment has been paid. In support of this, the appellant testified that the judgment was included in a note for $1,925 with a deed of trust to secure the same executed by him to the Como Trust Company with the express agreement made at the time that said note was given and received in full satisfaction and payment of a judgment obtained by the Conservative Loan Company, and which had been purchased from it by the Como Trust Company. He further claimed that the $1,925 note was barred by the. statute of limitations. His counsel insist that an order caused to be entered by the chancery court, which was introduced in evidence, makes his client’s testimony conclusive. That order, dated February 18, 1924, is as follows:

“Chancery Record N., p. 121.
“Conservative Loan Company, v. No. 8171
“Oscar C. Davis et al.
“Settled and Dismissed.
“On this day it appearing to the court that this cause has been settled and should be dropped from the docket, it is therefore ordered, adjudged and decreed by the court that this cause be and the same is hereby dropped from the docket.”

Section 6332, Crawford & Moses’ Digest, is cited, which provides that, where the court is satisfied that the plaintiff has received full satisfaction of a judgment or decree, an order shall be made directing the clerk to enter its satisfaction on the record thereof which shall have the same effect as if it had been done by the party, and attention is called to the holding in the case of State v. Martin, 20 Ark. 629, that the action of the court under that section becomes res ¡judicata as to all the facts determined by the court in such order. It is insisted that, before proceeding further on the judgment in favor of the Conservative Loan Company, it would be necessary to first vacate the order of February 18, supra.

The term at which the judgment of October 8, 1923, was rendered expired before the third Monday in December at which a new term began,-so that the court was without jurisdiction to vacate that judgment except for the causes and in the method prescribed by the statute. Therefore, the order of February 18, following was ineffectual to accomplish that purpose, and, indeed, it is apparent no such purpose was intended, or that it was a proceeding under the section of the Digest above noted. There was no direction to the clerk or action taken by him under the provisions of that section. In that case there was nothing further before the court except to act on the report of sale when made, and the order, from its- very terms, merely directed that the case be omitted from the docket and served to abate further proceedings until such time as the court’s action might be asked. The recital, “It appearing to the court that this cause has been settled,” at most is only evidentiary in its nature and subject to be rebutted as any other evidence.

Although the appellant testified in positive terms that the $1,925 note was given and received in full satisfaction of the judgment, he admitted that nothing had in fact ever been paid on the debt evidenced by the note. As he was the plaintiff, he was an interested party, and therefore his evidence could not be said to be- undisputed, and his interest was doubtless taken into consideration by the court in determining the weight to be attached to his testimony. Then, too, opposed to his statement was the testimony of the attorney of the Como Trust Company, who prepared the $1,925 note and deed of trust securing it, and who stated that the note and deed of trust were not taken in satisfaction of the debt, but that the judgment was purchased by said trust company from the Conservative Loan Company for the sum of $1,000, and, contemporaneously with the execution of the aforesaid note and deed of trust, the Conservative Loan Company assigned in writing to the- trust company its judgment, which assignment was on the same date filed for record in the office of the recorder, of deeds and mortgages in and for Garland County; and that it was the intention not to accept the note in payment of the judgment but to retain the .judgment lien as well. He gave as his reason for this action that he was not then informed of the condition of the title, and secured an assignment of the judgment for fear of some possible intervening incumbrance.

To refute this testimony, the appellant calls to our attention the testimony of a Avitness Avho at the time of testifying had charge of the records of the Liberty Realty Company, which company had purchased the assets of the Como Trust Company, and who, at the time of the above transaction, Avas in the employ of the Como Trust Company. This Avitness testified that he had no knowledge of the assignment of the judgment until his attention Avas called to it about the time the Liberty Realty Company took possession of the property. His lack of knoAvledge of this transaction has but little weight, for it appears that he had nothing to do Avith the dealings betAveen the Como Trust Company, the Conservative Loan Company and the appellant Davis “except in a clerical capacity.”

The preponderance of the evidence, as Ave view it, supports the chancellor in his finding that the judgment Avas unsatisfied and a present and valid liability.

It is next strenuously insisted that there is no evidence to sustain the chancellor in his finding that the Liberty Realty Company is the oAvner of the judgment. On this branch of the case the evidence is vague, but Avhat there is seems to be undisputed, and is to the effect that the Como. Trust Company paid the Conservative Loan Company $1,000 for the judgment against the appellant and took from it the assignment mentioned supra. Afterward it became insolvent, and on March 8, 1928, its affairs were placed in the hands of Hon. E. H. Wootton, a Special Deputy Bank Commissioner, for liquidation under the direction of the Garland Chancery Court. In the instant case there Avas introduced in evidence a number of the petitions, schedules, and court’s orders in that proceeding. From these it appears that the affairs of the Como Trust Company Avere in great confusion, due to the conduct of one of its trusted officers. It is also fairly inferable from these records that the Liberty Realty Company purchased the entire assets of the Como Trust Company, which included the judgment in question, although no specific mention is made of it. In vieAv of the fact that some of the assets, transfers of Avhieh Avere approved by the court, are not identified in the petitions or orders with particularity, the evidence of E. H. Wootton, who testified from personal knowledge regarding the purchase by the Liberty Realty Company of the Davis judgment, was competent. In that connection Mr. Wootton testified that the deed of assignment of the judgment became, and is, the property of the Liberty Realty Company, and that he, himself, obtained and was' familiar with the orders made transferring all of the assets of the Como Trust Company to the Liberty Realty Company. There was no testimony offered on behalf of the appellant controverting this evidence, and, while it may be said to be slight, we think it is sufficient to support the finding of the trial court.

An inference to be drawn from the argument of appellant’s counsel is that, as there is no proof or claim that the transfer of the judgment to the Liberty Realty Company was made in writing, no valid assignment was made; counsel’s statement being: “All assignments of judgments of courts of record must be in writing,” and § 6303, Crawford & Moses’ Digest, is cited.

A judgment may be transferred by parol so as to confer on the transferee an equitable interest therein which courts of equity will recognize and protect. Clark v. Moss, 11 Ark. 736; Wier v. Pennington, 11 Ark. 745; Desha v. Robinson, 17 Ark. 248; Wright v. Yell, 13 Ark. 503; 58 Am. Dec. 336.

The statute, § 6303 supra, was enacted to provide ‘ ‘ a method of notice to protect all persons having an interest in causes of action and judgments.” K. C. etc. Ry. Co. v. Joslin, 74 Ark. 552, 86 S. W. 435. This statute did not prescribe the only method for the transfer of judgments, and the rights of an assignee by parol assignment will still be protected in courts of equity.' “But, aside from any statute on the subject, the rights of the judgment creditor can be transferred to another so as to carry the right to enforce the judgment.” Am. Ins. Co. v. McGehee, 113 Ark. 486, 169 S. W. 251.

In view of the decision reached by the chancellor, the other questions raised and argued become unimportant, and, as we are of the opinion that the conclusion of the trial court is not against the preponderance of the evidence, its decree is affirmed.


text:
    McCann v. Dyke.
    4-3026
    Opinion delivered May 29, 1933.

      Hill, Fitzhugh & Brizzolara, for appellant.

      Daily & Woods, for appellee.
   Smith, J.

Appellees, doing business under the firm name and style of Dyke Brothers, brought this suit, in the chancery court of the Fort Smith District of Sebastian County, to enforce a materialman’s lien against certain property owned by appellant. The complaint alleged that the plaintiffs had furnished building material used by defendant in the construction of the home in which she now resides, between August 31, 1928, and April '22, 1930, as shown in an itemized statement filed with the complaint, and that a just and true account of the material had been filed with the clerk of the Sebastian Circuit Court, duly verified, as required by § 6922 Crawford & Moses’ Digest, on May 9, 1930. It was alleged that all proper credits had been allowed, and that a balance of $1,779.10 was due, including interest.

An answer was filed, admitting the original contract to purchase material, but which alleged that all proper credits had not been allowed, and that none of the items embraced in the original contract had been furnished within three months next prior to May 9, 1930. The answer further alleged that much of the material furnished was defective and worthless, and that because of the defects appellant had been and would be required to replace the material or to be content with an inferior and faulty house, whereas she had contracted for the best material and had been charged therefor. It was alleged “that, on account of such defective material, and the furnishing of material not in accordance with the contract of purchase, the defendant has suffered a loss of $1,721.66, said loss being the amount it will cost the defendant to replace said defective and worthless material and to finish the same in accordance with the plans and specifications of said house, all of which was well known to the plaintiffs. ’ ’ This allegation — which we will first dispose of — presents the only serious or difficult question in the case.

The defendant owner had employed an architect to build her home, but had not let a building contract. On the contrary, she employed a building superintendent, who employed the labor and ordered the material from the plaintiffs used in the construction of the building. Thirteen witnesses testified on behalf of the plaintiffs, and one more than that number for the defendant, and the record of this testimony has made a large transcript, which has been carefully read, but the testimony will not be set out in detail, as it would serve no useful purpose to do so.

The testimony very clearly establishes the fact that the plaintiffs furnished and the defendant received all the material charged for, and that all proper credits were allowed for material not used but returned, and there is much conflict as to the character of the'material. There is no question that only the best material was ordered, as the owner contemplated the erection of a handsome home. The conflict is as to whether material of this character was furnished.

Complaint was made of the roof, which consisted of asbestos shingles. It was shown that the roofing was purchased from a standard company, and, whether the roof was defective or not, it was replaced without additional cost to the owner with a roof to which there appears to be now no valid objection.

It was insisted that material was furnished which was not properly seasoned, but was green and defective for that reason, and the principal conflicts in the testimony are upon this fact.

There was testimony on the part of the owner that the downstairs flooring was defective, and that this defect became apparent only after the floor had been put down, and that it should be replaced, and that the cost of so doing would be about $400. On the other hand, testimony was offered on the part of the plaintiffs to the effect that the flooring was not defective, and that the floors were in good condition after three years’ use. Similar conflicts appear in the testimony in regard to other building material, but the court below found against the owner on these issues of fact, and we are unable to say that this finding is contrary to the preponderance of the evidence.

The testimony establishes the fact that much of the material ordered by the building superintendent, on the authority of the owner, during the last ninety days covered by the bill for the material was used in building a rock wall, a fish pond, and a chicken house. But it also appears that all of the material was used to improve the land which has been charged with a lien, and that all of it was furnished under what the plaintiff’s manager called a “continuous account.” According to this witness, there was never but one contract, and that was to furnish the material ordered by the owner’s superintendent, and that the only account opened and kept against the OAvner covered these items, and that at least two of these items Avent into the construction of the residence.

In discussing a similar question it was said, in the case of Planters’ Cotton Oil Co. v. Galloway, 170 Ark. 712, 280 S. W. 999, that the amount of the items furnished during the last ninety days covered by the builder’s account is not the test as to whether they are embraced in the original contract, but that the test is whether the items fall naturally and ordinarily within the account. It was there also said that, if the items furnished during the last ninety days covered by the account were furnished under the original contract, and were not furnished merely for the purpose of bringing that claim within the ninety-day statute, the lien would be enforced as to the entire account, although most of the items had been furnished more than ninety days before the lien was claimed.

It was said also, in the case of Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353, that § 6922, Crawford & Moses’ Digest, contemplated that the items comprising the account will bear different dates; “in other words, that there will be items of debit and credit, and the requirement of the statute is that, within ninety days of the date of the last item debited, the account shall be filed.” (Citing cases.)

We conclude therefore that the claim of lien was filed within the time provided by law.

It is insisted that excessive interest was charged, but the insistence is without merit. The material appears to have been sold and charged for on a cash basis, and the interest on each bill of material was charged from the last day of the month in which it was delivered. In the case of Roberts v. Wilcoxson, 36 Ark. 355, which was a suit to enforce the lien of a materialman, it was said that, in the absence of a showing to the contrary, the presumption is that building material was to be paid for on delivery, and that interest accrues on material so sold from the date the payment is due. The interest charged was so calculated, and is correct.

Upon a consideration of all the testimony, we are of the opinion that the finding and decree of the court below is not contrary to the preponderance of the evidence, and the decree will therefore be affirmed.


text:
    Sewer & Waterworks Improvement District No. 1 v. McClendon.
    4-2923
    Opinion delivered May 29, 1933.

      Ned Stewart and Searcy & Searcy, for appellant.

      E. F. McFaddin and E. A. Upton, for appellee.
   Humphreys, J.

This is an appeal from a judgment of $2,000 recovered by appellee from appellant in the circuit court of Lafayette County for damages resulting to his lands from the construction of a sewer or disposal plant in Lewisville in Lafayette County.

Appellee resided upon 116 acres of land, for which he paid $7,000, and upon which he expended $6,000 in constructing a dwelling and other improvements. This land was adjacent to an acre of ground which had been purchased by appellant and upon which it constructed a septic tank through which to discharge the effluent from the plant into Battle Branch, which ran through appellee’s land for 1000 feet.

It was alleged in the complaint that damages resulted to this land by pollution of the branch, and the land and dwelling from foul and offensive odors arising from the branch and disposal plant. These allegations were denied, and the cause was tried and sent to a. jury upon the theory of whether appellee’s lands were permanently damaged, and, if so, in what amount. The testimony introduced pro and con was conflicting on both issues.

Appellant first contends for a reversal of the judgment because, the trial court admitted the testimony of A. M. Shirey and Howard McClendon relative to the amount appellant paid for the acre of land upon which to construct the septic tank. The specific objection interposed to the admission of their testimony was that the acre tract was not similar in location or topography to appellee’s lands, and that it was purchased for a particular purpose. It is now objected that the testimony of both was inadmissible under the rule of evidence announced in the case of Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. (2d) 886. The rule in that case is not applicable here because, in the instant case, the only objection made to the introduction of the evidence was that the two tracts were not similar in location dr topography, and that the acre tract was purchased. for a particular purpose. It is now argued for the first time that their evidence was inadmissible under the rule in the Yonts ease because the district itself purchased the acre of land. This specific objection should have been made in the court below. It is too late to make it now. The only specific objection available in the Supreme Court against the evidence is the specific objection made in the trial court. Arkansas Coal Company v. Dunlop, 142 Ark. 358, 218 S. W. 839; Missouri State Life Ins. Co. v. Fodera, 185 Ark. 155, 46 S. W. (2d) 638. All other specific objections not made in the trial court are waived. Kahn v. Lucchesi, 65 Ark. 371, 46 S. W. 729. The specific objection made in the trial court was without merit because the rule is that sales of other lands in the same locality is a fair criterion to aid in establishing market value. Missouri Pacific Railway Company v. Green, 172 Ark. 423, 288 S. W. 908.

Appellant next contends for a reversal of the judgment because the court permitted Zembra Everett to testify as to the value of his farm situated about seven miles from Lewisville. He testified as to the acreage of his farm and the character of improvements thereon and what he sold it for about the time the disposal plant was constructed. There were similarities detailed by him between his tract and appellee’s land; so the testimony was admissible notwithstanding they were separated by a distance of seven miles. In these days of good roads and rapid means of transit, it cannot be said as a matter of law that the lands were in different localities. The description of the two tracts make the testimony of Everett admissible under the rule of evidence announced in the case of St. Louis, Iron Mountain & Southern Railway Company v. Maxfield, 94 Ark. 135, 126 S. W. 83.

Appellant next contends for a reversal of the judgment because the court refused to give each of its requested instructions Nos. 3, 4, 6 and 7.

Instructions 3 and 6 were requests to exempt appellants from liability if the odor from the sewer plant was caused by the negligence of its agent in not running enough water through the plant. No such issue was joined in the pleadings, and the testimony adduced had not presented any such issue, so the requests were abstract and properly refused.

Instruction No. 4 is as follows:

“The jury is told that defendant would not be responsible for any unusual or extraordinary rain storm or rainfall then and there prevailing, which caused an unusual amount of water to accumulate in Battle Branch, thereby overflowing its filtering bed and otherwise preventing the proper functioning of its disposal plant for the time, and any injury and pollution of said stream resulting to plaintiff by reason thereof will not be considered by you as an element of damages in this case.”

This instruction was requested on the theory that part of the time the odor was a result of a rise in the branch that could not have been anticipated and might be regarded as an act of Grod. The testimony however fails to reflect that there were any unusual floods. It appears that all rains of any consequence flooded the branch and that, a part of every winter, water stood over the particular lands through which the branch ran. This condition was not exceptional, but a common occurrence, which might or should have been anticipated in constructing the plant. There was no evidence to warrant such an instruction, so it was properly refused.

Instruction No. 7 was to the effect that, if the jury found the odor was temporary or induced through the temporary pollution of the branch, then he could recover only the reduced rental value of his farm during such temporary period. No such issue was in the case. The suit was for alleged permanent injury to the farm, and the correct measure of damages was the difference in the market value of the farm before and after the construction of the sewer disposal plant. The instruction was properly refused.

Appellant next contends for a reversal of the judgment because the court refused to continue the case on account of the absence of its witness R. Gr. Scott. The motion filed by appellant for a continuance set out the testimony witness would give if present and was regular in form. Appellee admitted that, if present, he would testify to the facts contained in the motion, which motion was treated and read as a deposition of R. Gr. Scott in the case. The court followed § 1270 of Crawford & Moses’ Digest in refusing to continue the case, and nothing appears in the record to show any abuse of discretion by the trial court in this regard.

Appellant lastly contends for a reversal of the judgment because the damages allowed by the jury were excessive and the result of passion and prejudice. The record does not reflect that the verdict was motivated by either passion or prejudice or both, and there is nothing in the record from which such an inference might be drawn. According to the testimony introduced by appellee, sixteen acres of his pasture land adjoining Lewisville was practically destroyed for use as a pasture. The water of the branch was rendered unfit and dangerous for stock to drink on account of the effluent from the septic tank; and the odors from the branch and septic tank injured the $6,000 dwelling and other improvements for occupancy as a home. These were injuries suffered by him 'which were not suffered by the general public, and we do not think the amount awarded him was too much under all the circumstances.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Gordon v. New York Life Insurance Company.
    4-3018
    Opinion delivered May 29, 1933.

      Edw. Gordon, for appellant.

      W. P. Strait and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Kirby, J.,

(after stating the facts). It is urged that the court erred in directing the verdict against appellant, the beneficiary in the insurance policy sued on.

It is not contended, nor was any testimony introduced tending to show, that the money, the second premium, claimed to have been paid to R. H. Fiser, a former agent who solicited the insurance and collected the first premium, was ever paid to the insurance company or received by it. He was only a special agent with limited authority as shown for soliciting insurance and not a general agent within the meaning of that term.

The policy provides for the payment of all premiums on or before their due date at the home office of the company, “or to an authorized agent of the company, but only in exchange for the company’s official premium receipt signed by the president, a vice-president, a second vice-president, a secretary or the treasurer of the company, and countersigned by the person receiving the premium. No person has any authority to collect a premium unless he then holds said official premium receipt. ’ ’

The testimony also tended to show that Fiser’s authority to represent the company as a soliciting agent had been terminated by the company before the money for the payment of the premium was received by him; and, without regard to whether the testimony is undisputed that notice of the discharge of the agent who collected the second premium for the insurance was brought home to the insured before the payment thereof, there is no presumption that his authority to receive payment for premiums continued, since, after such first payment of said first premium, his authority was limited by the terms of the policy, or rather the insured had knowledge by its terms that premiums could be paid only at the home office or to an authorized agent of the company, “but only in exchange for the company’s official receipt, etc.,” and, “No person lias any authority to collect a premium unless he then holds said official premium receipt.”

Of course, due payment of the premium might have been made without receiving such a receipt, but the burden of proof would be on the party claiming said insurance to show that it had been paid, when disputed; and there was no testimony showing the payment of this premium to an authorized agent or that the company itself ever received the money.

If it had been shown that the money was paid in fact to the insurance company, a different question would be presented, but there is no such question in this case of ratification or estoppel of the company to deny the payment.

In United Friends of America v. Phillips, 186 Ark. 70, 52 S. W. (2d) 628, cited by appellant, the facts are unlike those in this case, and it has no application here, being altogether different, the dues or premiums therein having been actually paid to and received by the secretary, which was a sufficient payment under the circumstances.

There was no issue to be submitted to the jury upon the undisputed proof herein, and the court did not err in directing a verdict, and the judgment must be affirmed. It is so ordered.