text:
    Howington v. Friend.
    4-3036
    Opinion delivered May 1, 1933.

      C. T. Carpenter, for appellant.

      James G. Coston, J. T. Coston and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Johnson, C. J.,

(after stating the facts). It is insisted, on behalf of appellant, that this case is ruled by City Oil Works v. Helena Improvement District No. 1, 149 Ark. 285, 232 S. W. 28, 20 A. L. R. 296, and McCoy v. Board of Directors of Plum Bayou District, 95 Ark. 345, 129 S. W. 1097, 29 L. R. A. (N. S.) 396. We cannot agree with this contention. In the McCoy case the alleged damages accrued'by reason of the construction of the levee in the first instance. This court held in effect that the levee district was not liable to a property owner for damages accruing by reason of the construction of the levee. In the City Oil Works case it was determined that it was necessary to move the levee back and cut off the oil'mill between the new levee and the river because of the caving in of the old levee. It.was not contended in either case that taxes had been paid to the district for a long number of years. In the instant case appellee has paid taxes to the levee district for the past thirty years and had a perfect right to expect that his lands would continue to be protected by the levee. This, in our opinion, differentiates the instant case from either of the cases cited supra.

Again, when this court passed upon the questions presented in the City Oil Works case and the McCoy case, there was no authority of laiv for the board of directors in levee districts to contract or assume any liability for damages which accrued by reason of the withdrawal of levee protection.

Notwithstanding, the board of directors of St. Francis Levee District had no authority under the law to make a contract with appellee at the time this one was made, we are of the opinion that this contract has been validated by act 14 of 1932 and is now a binding obligation of the district. Section 1 of act 14 of the extraordinary session of the Legislature of 1932, in part, reads as follows:

“Section 1. In all cases where the board of directors or commissioners of any levee district have, prior or subsequent to the passage of this act, agreed, contracted or promised, formally or informally, to pay any landowner or landowners for damages to land caused by withdrawal of levee protection therefrom, or by inclosing such land within a loop or circle of such levee, or surrounding the same by such levee, such agreement, contract, promise or understanding, when evidenced by a writing, whether a formal contract or a resolution of the board, or other instrument, shall be valid and enforceable between the parties.”

There is, and can be, no doubt but that the Legislature could have in the first instance authorized the assessment of damages to the property owners for the withdrawal of protection. Since the Legislature could have done this in the first instance, it can 'by a subsequent act cure and validate all contracts and agreements in reference to such sub.ject-matters. This, we think, has been done in the instant case.

This court held in State ex rel. Hall, v. Canal Construction Company, 134 Ark. 447, 203 S. W. 704, quoting from the syllabus:

“In statutes governing improvement districts, if a defect consists in doing some act, or in the mode or manner of doing it, which the Legislature might have made immaterial by a prior law, it may do so by a subsequent one. * * *
“Under, the statute providing for the organization of an improvement district, an error was made in the engineer’s estimate of the amount of''excavation. The contractor bid upon the erroneous estimate. Held, it ivas propeí for the Legislature thereafter to pass an act providing for payment for the increased cost of the improvement. ’ ’

In Favor v. Wayne, 134 Ark. 30, 203 S. W. 22, quoting from the syllabus, this court held: “The rule in regard to curative or healing acts is that, if the thing omitted or not done, and which constitutes a defect in the proceedings, is something which the Legislature might have dispensed with by a previous statute, it may do so by a subsequent one.”

In Allen v. Harmony Grove Consolidated School District, 175 Ark. 212, 298 S. W. 997, the court used the following language, quoting from Green v. Abraham, 43 Ark. 420: "The rule applicable to cases of this description is substantially the following: If the thing wanting, or failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And, if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.”

In Hall v. Mitchell, 175 Ark. 641, 1 S. W. (2d) 59, this court held: “The Legislature, when enacting our homestead statute, could have dispensed with any requirement as to the wife’s signing it, and, this being so, it had the authority, where no vested rights are affected, to do the same by subsequent legislation. The right which a curative statute or healing act takes away in such a case is the right in the party to avoid his contract. Such legislative acts are sustainable only because they are supposed not to operate upon the deed or contract by changing it, but upon the mode of proof. ’ ’

In the more recent case of Common School District No. 42 v. Stuttgart Special School District No. 22, ante p. 119, this court held:

“We think that § 54 of act 169 of 1931 is applicable to the order of the county board of education made and entered on March 8, 1930, and that all omissions and irregularities therein, whether by lack of petition or notice, are cured and validated by said act, and that said order of the county board of education of Arkansas County has established the true boundary line between said two districts. ’ ’’

Since we have reached the conclusion that the Legislature could have authorized by an appropriate act the recovery of damages fox withdrawal of levee protection in the first instance, we now hold that it is authorized to validate and cure by a subsequent act all contracts and agreements with reference to the payment of such damages.

Since the conclusions here announced are decisive of all the issues in this case, it will not be necessary to discuss other interesting points discussed by counsel.

It follows from what we have said that the levee district could not recover this fund from appellee in the first instance, therefore a. citizen and taxpayer’s rights stand upon no higher ground. Since the levee district could not maintain this suit, certainly the appellant cannot maintain it as a taxpayer for the use and benefit of the district.

The decree df the Poinsett Chancery Court is in all things affirmed.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Afflick v. Lambert.
    4-3000
    Opinion delivered May 1, 1933.

      Brewer & Cracraft and W. G. Dinning, for appellant.

      Bevens & Mundt, for appellee.
   Mehaffy, J.

The appellee, J. B. Lambert, brought suit in the Phillips Chancery Court against the appellants, C. W. Afflick and B. C. Pouncy, for the dissolution of a partnership which was formed in April, 1928, and for a distribution of the assets.

It was alleged that appellee and appellants were partners operating under a written contract, which was filed as an exhibit to the complaint; that on January 20, 1932, the partnership was dissolved by the appellee in accordance with the option stated in the contract; that at the time of dissolution there were no debts owing by the partnership, and that it owned a large body of real estate, consisting of acreage, suburban and city property, which was described at length; that the legal title to said property was in C. W. Afflick as trustee, for the benefit of all the partners, and that appellee was the owner of an undivided one-third interest in and to said property.

The complaint alleged the value of the real property and other property belonging to the partnership; that there were mutual accounts existing between the appellee and appellants, and that it was necessary to have the accounts adjusted. We do not deem it necessary to set out the written contract, because there is no controversy about its terms.

Appellee afterwards filed an amendment to his complaint reaffirming and reiterating all the allegations of the original complaint, and stated that the original written contract was, subsequent to its execution, modified by verbal agreement, had and made by and between all of the parties thereto, whereby charges made on the books of the partnership against the account of appellee were agreed to be temporary charges only, which upon settlement were to be adjusted according to the rights and equities of the parties.

The original written contract was unambiguous, and there is no controversy about its construction or interpretation, but the only controversy in the case arises on the question of the oral modification of the written contract. The appellee contends that the contract was modified, and the appellants contend that there was no modification of the written contract. This is the only question presented for our determination.

This court has many times held that a contract may be varied by the parties before performance. One of the recent cases is Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379. In that case the court referred to a number of authorities, and then said:

“The principles of law decided in these cases are recognized as controlling- by counsel for the plaintiff, but he claims that under the original contract the time for performance expired at the end of sixty days, and that after this time the plaintiff was under no legal obligation to take the bonds. In carrying out and applying the rule of law above announced, the parties to a contract may modify or waive their rights under it and engraft new terms upon it by letters, and in such case the promise of one party is the consideration for that of the other. In other words, a contract may be varied by the parties before the performance, for the reason that the power to enter into the contract equally authorizes them to abrogate or modify it, and this right to change or modify the contract equally extends to a change in the time of performing it. * * #
“There is no rule of law forbidding the relinquishment of an existing contract and the substitution of a new one in its stead, and that is what was done in the case at bar. * * *
“It is well settled that the parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights and the substitution of new obligations is a sufficient consideration.”

It is therefore a well-settled rule of this court that any parties who can make a contract can rescind or modify it by mutual consent. If they are capable of making the contract in the first instance, they may by mutual consent modify it in any manner. Parties to a written contract may rescind it by oral agreement, or they may modify it by oral agreement. Black on Rescission & Cancellation, vol. 1, p. 20; 13 C. J. 593; 6 R. C. L. 914. The appellee testified that a modification of the partnership contract was made in the spring of 1929. He said:

“It became very evident in the spring of 1929 that to carry on the work it would be necessary for Merrifield ■& Lambert to receive some compensation for their services.” He then testified that he met Mr. Afflick and Mr. Pouncy in Simsboro, and it was agreed upon at that time for them to allow a drawing account of five per cent, on all sales made, which should be chargeable against appellee’s interest in the partnership.

He then testifies about another conference with Afflick and Pouney in the spring of 1930, in which he states they went thoroughly into the cost of operation in the promotion work, and it was agreed that they were to be allowed a commission of five per cent, as a drawing account, and that whatever cost there was to the firm of Merrifield & Lambert would be adjusted at the expiration of the partnership. The firm of Merrifield & Lambert were doing the promotion work. The appellee’s testimony is corroborated by the testimony of Merrifield. Both Mr. Afflick and Mr. Pouney contradict the evidence of Lambert and Merrifield.

Whether there was a modification, as testified to by appellee, was a question of fact for the chancellor. This court has repeatedly held that, where there is a mutual agreement to modify a contract, the mutual promise of the parties will constitute a sufficient consideration for a valid agreement. There was not only the testimony of the witnesses, but numerous letters were introduced in evidence and considered by the chancellor, but we do not deem it necessary to set out the testimony at length.

We have not called attention to nor discussed the numerous authorities cited ami relied on by the parties, and have not discussed their different contentions, because, as we view the case, it is simply a question of fact as to whether there was a modification of the contract by mutual consent. The chancellor found that there was, and his findings are not against the preponderance of the evidence.

Since there is no controversy about any other feature of the case, except the modification of the contract, the decree of the chancellor must be affirmed. It is so ordered.


author: Butler, J.

text:
    Reilly v. Henry.
    4-3003
    Opinion delivered May 1, 1933.

      Utley & Hammock, for appellant.

      Harvey G. Combs and John F. Park, for appellee.
   Butler, J.

The plaintiff, appellant here, brought suit to recover from the property of her divorced husband, Robert B. Henry, deceased, alimony and costs formerly decreed to her in the Pulaski Chancery Court, alleging that the same was under the control of the defendants, Mrs. Zada Henry and J. T. Henry, mother and father of the deceased, ancl also in the action sought to recover the proceeds of a certain life insurance policy issued by the Central States Life Insurance Company upon the life of the said Robert B. Henry, in which policy the plaintiff was named as beneficiary at the time of its issuance. Plaintiff alleged that she was the rightful beneficiary by virtue of a contract fully performed with her deceased husband; that the defendant, Mrs. Zada Henry, had been fraudulently substituted as beneficiary. She prayed for an injunction against the insurance company restraining payment of the proceeds of the said policy to the substituted beneficiary and for judgment on said policy as the rightful beneficiary. Plaintiff also sought to recover a one-third interest as a partner in the mercantile business of J. T. and W. T. Henry.

The defendants, the Henrys, answered, denying all the material allegations of the complaint, and the defendant, Central States Life Insurance Company, filed a separate answer admitting liability on the policy and tendering its check payable to the chancery clerk in the sum of $1,985.68 in full discharge of the policy and prayed for an order requiring Mrs. Zada Henry to surrender the policy to the clerk of the court and to discharge the defendant life insurance company. This tender was approved by the court, and Mrs. Zada Henry was required to surrender the original policy into the registry of the court to be held with the proceeds thereof pending determination as to the rightful beneficiary.

Testimony was adduced at the trial on behalf of the plaintiff and the defendants, and the court entered a decree denying the prayer of the. first paragraph of the complaint for reformation of the policy that plaintiff be named as beneficiary therein. The court decreed that the prayer of the complaint for a one-third interest in the mercantile business of the Henrys be denied, and found that the plaintiff was entitled to the sum of $310 before then adjudged to her as alimony and rendered judgment against the defendants, Henrys, for said sum, and that said judgment be a lien upon the store with all assets therein. From this part of the decree no appeal has been prosecuted by the defendants, but plaintiff has appealed from that part of the decree denying her right to recover the proceeds of the policy and an interest as a partner in the mercantile business.

We first dispose of the question of the partnership as the issue involved is merely one of fact. The storehouse was built in the summer of 1926, and a stock of merchandise was installed therein and business begun sometime in the fall of that year. Plaintiff drew a check on her account in a local bank for the sum of $750 which it is admitted was used in the construction of the store building, and which plaintiff claims was for the purchase of a one-third interest in the business thereafter to be conducted therein. There was evidence tending to support this contention, likewise evidence to the contrary; all of which we have carefully considered and are unable to say that the conclusion reached by the trial court on this question is against the preponderance of the testimony. The decree in this respect will therefore be affirmed.

Regarding the contention of plaintiff as to the ownership of the proceeds of the insurance policy, a more difficult .question is presented. The policy was issued January 2, 1926, on the life of Robert B. Henry, and plaintiff, then his wife, was named as beneficiary therein. The policy, however, provided for a change of beneficiary by the insured under the title “Beneficiary,” which is as follows: “The insured may designate one or more beneficiaries if none be named herein, and may designate one. or more contingent beneficiaries whose interest shall be as expressed in or by indorsement of the company on this policy and may change any beneficiary or contingent beneficiary at any time while this policy is in force, all by written notice to the company at the home office, and subject to any assignment hereof. Such designation or change shall take effect only upon approval and indorsement of the same on the policy by the company.”

Counsel for the appellee states the contention of the appellant as follows: “Appellant earnestly insists that she is the owner of insurance policy No. 73243 by reason of the fact that this policy was taken out by her husband and delivered to her with the understanding or agreement that she was to pay all premiums on said policy, and that thereby it became her property. This contention would be sound and be worthy of merit if it were not for the terms of the policy itself.”

Plaintiff and Robert B. Henry were married in October, 1923. The insurance policy was issued in January, 1926. In June, 1932, plaintiff brought suit for a divorce from Robert B. Henry and obtained a decree of divorce on July 7 of that year. On August 7 following Robert B. Henry was fatally injured and died within a few days. The evidence, which is undisputed, is to the effect that the policy was taken out and .given to the plaintiff by the insured with the understanding.that she was to pay all the premiums. Plaintiff remained in actual possession of the policy until about May, 1932, when she delivered it with other of her papers to her father-in-law, J. T. Henry, with the request that he put it in his safety deposit box for safe keeping. The policy remained in the deposit box until after plaintiff instituted her action for divorce when her father-in-law delivered it to her husband without her knowledge or consent, and he obtained a change in the name of the beneficiary to Mrs. Zada Henry, also without her knowledge. This was accomplished just a few days before the rendition of the decree of divorce. The day after the funeral of Robert B. Henry, plaintiff went to the office of the insurance company in Little Rock for the purpose of making proofs required by the policy. She was then informed for the first time that her father-in-law had surrendered the policy to Robert B. Henry, and that he had obtained a change in the name of the beneficiary.

It is admitted that plaintiff paid the first premium, all intervening premiums, and the last premium. These were payable quarterly, and each was for the sum of $14.32. There were twenty-six jjremiums which plaintiff paid. It is her contention that the premiums were paid in accordance with the agreement of her husband when the policy was first procured; that they were paid out of her own funds, and that the policy was at all times her property of which she had possession at all times. While admitting that the plaintiff paid the premiums, it i ^ the contention of the defendants that they were paid with her husband’s money, and their counsel insist that this fact is established by plaintiff’s own testimony. To support this view, they present certain excerpts from plaintiff’s testimony which, if taken without reference to her testimony as a whole, would tend to show that during the time she was making payments of the premiums she was not working, had no money of her own, that what money she had was earned by her husband, and all payments of premiums were made with money which he had given her. These excerpts, taken from the body of plaintiff’s testimony, would give support to the contention of counsel. It is clear, however, when we consider the entire evidence, not only of the plaintiff but of the other witnesses, that she was referring to the payment of premiums from the time of the issuance of the policy until the time the Iienry mercantile business commenced. During this interval she was not working except as a housewife, and the money she received was earned by her husband and was given to her as allowances for household and personal expenses, and what she could save from these allowances was her own to do with as she pleased, and out of these savings she paid the insurance premiums. • Her savings account at the bank was introduced and showed during these times she had been able to save substantial sums.

The evidence is undisputed that beginning in October, 1926, plaintiff worked continuously in the mercantile establishment until the latter part of May or the first of June, 193'2, when she left her husband and brought suit for divorce. A part of this time her husband was also working in the store, but for how long and what else he did the record does not disclose. .Plaintiff admits in her testimony that, after she began working in the store, when the premiums would fail due she would get the money at the store, either from the cash drawer or ask some one in the store for it. This, however, does not indicate that it was not her own money for she was rendering valuable services during all that time, nor does it support the contention that ‘ ‘ every premium paid oh the life insurance policy of Robert B. Henry was paid with money earned by him and furnished to her for the express purpose of keeping these premiums alive, and that later when appellant and her husband came out to the home of the appellees to work in the store on Prospect Avenue that all of said premiums were paid with money furnished appellant from the store by the appellees.” From the testimony it is. evident that the store was conducted as a family enterprise, the father, one son, W. T. Henry, and the plaintiff working all the time, and plaintiff’s husband working part of the time. For a little more than the first year plaintiff was paid no salary, for about two years she was paid a small salary of $5 per week, and for the remainder of the time she again worked without salary. During this last period the hank account discloses she was able to accumulate very little.

J. T. Henry, the father, in his testimony intimates that plaintiff’s personal bills were paid out of the store in excess of the value of her services, but it is significant that the items of such expenses and amounts of money were not given. Mr. Henry contented himself with the general statement: “I paid most of Miss Reilly’s bills, or she was given money for same by me or the boys. She was privileged to take money from the cash drawer and ticket same to herself. I reckon she paid her house rent and other bills herself and with money she took from the store.”

Relating to the manner in which the premiums were paid and the source from which the money was derived, plaintiff testified: “The insured, Robert B. Henry, did not furnish me the money to pay the premiums, although some of it may have been paid out of money he furnished me for household and living expense.” This testimony is not disputed except by insinuation which we think is not warranted from the testimony.

It is our conclusion that the preponderance of the testimony establishes these facts: first, that the policy was procured with an understanding- between the plaintiff and her then husband that she was to pay the premiums ; that with this understanding, when the policy was obtained, it was delivered to the plaintiff and kept by her until surreptitiously taken from the lock box, and that during all of the time she complied with her agreement by paying- the quarterly premiums out of her earnings or with money she saved out of her allowances given her by her husband which was her own to do with as she pleased.

The rule is well established that where the policy provides for a change of beneficiary by the insured, the beneficiary first named has no vested interest as in ordinary policies, but this rule is not absolute and indefeasible, as contended by the appellees. Circumstances may arise, either in the procurement or during the life of the policy, such as would establish an equitable interest in the proceeds thereof. There are many cases which recognize this exception to the rule, and we have found none to deny it where the contest for the proceeds is between rival claimants and which do not involve the rights of the insurer arising out of the contract as written.

The principle just stated is recognized by the Supreme Court of Vermont in the case of Modern Woodmen of America v. Headle, 188 Vt. 37, 90 Atl. 893, reported at page 580, L. R. A. 1915A, and many cases are there cited supporting it.

In Cronan v. Metro. Life Ins. Co., Supreme Court of Rhode Island, reported at page 618, 147 Atl., 50 R. I. 323, it is said: “The law is well settled that a beneficiary who pays premiums or loans money upon the security of the policy acquires in the policy a vested right which will be protected in equity against one who thereafter, without valuable consideration, becomes the substituted beneficiary. Although the policy contains a clause to the effect that no assignment of the policy will be recognized unless consented to by the insurance company, a beneficiary who acquires vested rights is only required to notify the insurance company of the fact before payment is made to another person.”

In the case of Shoudy v. Shoudy, 55 Cal. App., p. 344, 203 Pac. 433, the husband had procured a policy which provided that he might change the beneficiary, and at the time the policy was written he named his wife as the beneficiary. Afterward, in contemplation of divorce, he agreed to maintain the policy for his wife as long as she remained single. The divorce was obtained, and shortly afterward the beneficiary was changed, and one whom the insured had married was substituted as beneficiary in lieu of the divorced wife. The substituted beneficiary, just before her marriage to the insured, had loaned him a sum of money equal to the policy, and after the marriage her husband informed her that he .had protected her with the life insurance policy. She, however, did not become possessed of the .policy and never saw it. Neither did she or the first-named beneficiary know of the change until after the death of the insured. In a c ontest which arose between the first and the substituted beneficiaries, it was the latter’s contention that the judgment of divorce determined' all the rights of the first-named beneficiary, and that her interest in the policy at no time was more than a mere expectancy subject to defeat at any time by the act of the insured under the power given by the terms of the contract of insurance. The court disagreed with both contentions, and as to the last, while holding that when the policy was first taken out the beneficiary named had no vested or equitable rights therein which the insured could not have ended at will by change of beneficiary, yet when he agreed for a consideration to keep the policy in being for the beneficiary as long as she remained single, and “when this offer was accepted by her, the quality of her interest as a beneficiary in said policies became changed from that of a mere expectancy to a more fixed and permanent relation. She had thenceforth an equitable interest in said policies of which she could not be divested by the mere act of the insured in changing the name of the beneficiary. ’ ’

In McDonald v. McDonald, a case from the Alabama Supreme Court, reported in 212 Ala. 137, 102 So. 38, 36 A. L. R. 761, in referring to the contention that the face of the policy at the death of the insured with respect to the beneficiary where the same had been changed under the power in the policy, must be taken as conclusive, the court recognized that some courts support the contention and made the following declaration: ‘ ‘¡But we think it should be considered at least that equities may arise in favor of the named beneficiary which would deny such right, as, for example, the insured may for valuable consideration estop himself from changing his- designation of the beneficiary. ’ ’

In the case of M’Glynn v. Curry, 82 App. Div. 431, 81 N. Y. S. 855, the facts were that the insured, on obtaining a life insurance policy in which her niece was designated as beneficiary, delivered the same to said niece, using language from which a gift might be inferred. Afterward the policy, at the mutual request of the insured and the beneficiary, was delivered to an uncle df both for safe keeping, and was deposited by him in a safe in his house where it remained for a time when it was sent by the mother of the beneficiary with other papers to the insured without directions from the beneficiary or any one representing her, or any expressed or implied intent of the beneficiary, to part with the ownership. The insured, after obtaining possession of the policy, attempted to substitute another for the beneficiary first named under the power contained in the policy. Upon the death of the insured, in an action between the first and last named beneficiaries, the insurer, as in the case at bar, appeared not as a contestant but for the purpose of having determined which one" of the claimants was entitled to the proceeds of the policy. In deciding in favor of the beneficiary first named, the court held that from the circumstances as disclosed by the testimony it was fairly to be inferred that, when the insured delivered the policy to the beneficiary, it was her intention to convey to said beneficiary the policy — that the unqualified delivery was effectual for that purpose — and the .rights thus fixed could not afterwards be divested by the act of the insured: “Each installment is, in fact, part consideration of the entire insurance for life (New York Life Ins. Co. v. Statham, 93 U. S. 24, 30, 23 L. Ed. 789); and when the insured, in the case at bar, made her initial payment and delivered the policy, with intent to convey ownership in the plaintiff, there- was a value involved, of which the plaintiff could not be divested by any subsequent act on the part of the insured without her consent. The plaintiff, by reason of the consummated gift, had a property right in the whole- contract; and, while this might be forfeited by a failure on the part of the assured or the plaintiff to make the quarterly payments provided for in the policy, the insured had parted with the right to transfer this policy or its benefits to any other person than the beneficiary named, and her letter requesting the company to insert in the policy the name of a new beneficiary could not operate to vest in the- defendant (the substituted beneficiary) any right to the money which is now conceded to be due under the policy. ’ ’ Followed in Jacobs v. Strumwasser, 84 Misc. 28, 145 N. Y. S. 916, and cited in Continental Life Ins. Co. v. Sailor, 47 Fed. (2d) 911, which announces the same rule.

As suggested by the Alabama court there are some cases which would appear to hold a view contrary to the principles announced in the cases above cited and quoted from, but an examination of those cases, in so far as our research has extended, discloses that these were contests between the beneficiary first named and the insurer, and to sustain the contention of the first beneficiary loss would fall upon the insurer, and it is for that reason that contracts, either express or implied, between the insured and the beneficiary which would prevent the former from exercising the privilege of changing the beneficiary as provided in the policy are not recognized. “The remedy to enforce any contract of that kind is not to be applied in a suit on the. policy between the original beneficiary and the company.” Royal Union, etc. v. Lloyd, 254 Fed. 407, 135 C. C. A. 627.

It must be remembered that the insurer in the instant case appears, not as a contestant, hut merely for the purpose of determining the rights of the respective claimants to the proceeds of the policy, which, when ascertained, it is ready to pay and has, indeed, already paid the proceeds into the court. As between the claimants, the preponderance of the evidence establishes a case for the beneficiary first named stronger than in the cases cited which deny to the insured the right to exercise the privilege of changing the beneficiary allowed by the terms of the policy. All that the insured ever did was to make application for the policy and the agreement between him and his wife, the delivery to and the subsequent possession of the policy by her, and the payments by her of the premiums, are facts which, if not sufficient to warrant the conclusion that she was at all times the legal owner of the policy, did create such equities in her favor as in good conscience would prevent the exercise of the power of change contained in the policy and render ineffectual any attempt of the insured to divest her interest therein.

It follows from the views expressed that the decree of the trial court must be, and it is, hereby modified and judgment is entered here in favor of the appellant (plaintiff in the court below) for the proceeds of the policy, and its custodian is directed to pay the same over to her on demand. As thus modified, the decree is affirmed.


author: Johnson, C. J.,

text:
    Johnson v. Young Men’s Building & Loan Association.
    4-2996
    Opinion delivered May 8, 1933.

      Basil Baker and E. L. Westbrooke, for appellant.

      Chas. D. Frierson and Charles Frierson, Jr., for appellee.
   Johnson, C. J.,

(after staling the facts). It is apparent from the foregoing statement of facts that hut one question is presented here for determination, namely: Was there a delivery and acceptance of the deed dated January 12, 1923, from C. W. Claunch and wife to their son, C. L. Claunch?

The acceptance of the deed in the instant case will be presumed because the grant is beneficial to the grantee, and, in addition to this, his father or mother could have accepted the grant for him, the grantee then being a minor. Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1023.

This court has clearly stated the rule in reference to the delivery of a deed as follows:

“Any disposal of a deed accompanied by acts, words or circumstances which clearly indicate that the grantor intends that it shall take effect as a conveyance is a sufficient delivery.” Russell v. May, 77 Ark. 89, 90 S. W. 617.

The facts and circumstances in the instant case are to the following effect:

C. W. Claunch and wife had but one living child, the grantee in the deed of January 12, 1923. The wife and mother owned and contributed towards the purchase of this property equally with her husband. A very valuable portion of the property was owned by them under conveyances which effected an estate by the entirety. The mother and father desired to avoid the consequences of this estate by executing a deed to their only child, thereby preventing either survivor taking the title in the event of death.

It is perfectly evident that the mother joined in this deed with the specific intent of vesting a present title in the son because she could have had no other reason for executing the deed. She owed no debts at the time the deed was executed, and owed no debts at the time of her death in January, 1931. She had told her son of the deed and of her wishes on many occasions and had so advised her husband. The husband stands in no different light except he contracted certain surety liabilities beginning in 1928, some five years after the execution of this deed.

It is insisted on behalf of appellant that,the retention of the deed by the grantors destroys their apparent intention of delivery. This is not the case. It was the purpose of the grantors to retain possession of the property until the death of one or the other of them. This is not always inconsistent with the grant or intention of delivery of the deed.

This court held in Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244, quoting from the fourth headnote:

“The fact that a deed was found among the effects of the grantor at his death raises no presumption against delivery if the grantor reserved an interest in the property conveyed, and therefore had an interest in the preservation of the deed.”

Since the grantors had the intention and purpose of retaining the possession of the property until the death of one or the other of them, they had the right to retain the deed to effectuate this purpose.

It is next insisted by appellant that the failure to have the deed recorded is fatal to the presumption of delivery. AVe cannot agree to this. This court held in Irwin v. Dugger, 142 Ark. 104, 218 S. W. 177, quoting from the fourth headnote:

“The mere facts that a debtor did not record a deed to him of land, and that his wife and son did not record deeds from him, are not of themselves sufficient evidence of fraudulent purpose as to constitute fraud in law, but are circumstances tending to impeach the want of good faith of the parties.”

The recording of the deed in the instant case might have defeated the purpose of the grantors in retaining possession and control of the property until the death of one of them, and we think a fair explanation of it.

It is next insisted that the continued possession and control of the property by the grantors and their lease of the property for a term of years nullifies the apparent intention of delivery. Neither can we agree to this. Their continued possession and control was nothing more nor less than the enjoyment of the estate retained by them or which was intended to be retained and enjoyed.

No error appearing, the decree is affirmed.


author: Smith, J.

text:
    Stutzenbaker v. Arkansas Power & Light Company.
    4-3007
    Opinion delivered May 8, 1933.

      A. G. Meehan and John W, Moncrief, for appellant.

      House & Moses and Ingram & Moher, for appellee.
   Smith, J.

Mrs. Mae Stutzenbaker owned a house in the city of Stuttgart, which she occupied as her home. She rented certain of the rooms to other occupants. This building was partially destroyéd by fire on February 20, 1932, which also damaged the furniture and furnishings belonging to all the occupants of the'house. Suit was brought by all of the occupants for the damage thus caused against the Arkansas Power & Light Company, it being alleged that the fire was the result of the negligence of the defendant in the manner hereinafter discussed. From a verdict and judgment in favor of the defendant is this appeal.

The building had been wired for electricity by a contractor' employed by Mrs. Stutzenbaker, who owned and used several electrical appliances in the house, including a cook stove. The light company contracted to furnish electric current for use in the house and had made electrical connections with it. The plaintiffs decided to move from the house, and notified the light company to discontinue service and to disconnect the wires from the stove so that it might he removed.

The house — a frame dwelling — faces north on West Fourth Street. In the rear of the house is an alley which runs east and west. In order to furnish electrical service to the house, a pole was located in the alley, and from this pole three wires ran to the house and were fastened to the rear or south side thereof by means of porcelain knobs. One of these wires is known as a 220-volt wire, and the other two are known as 110-volt wires. The 220-volt wire entered the house through a piece of iron pipe an inch in diameter. This conduit through which that wire entered the house was located at a point opposite a switch box on the south wall of the kitchen, and the stove meter was directely below the switch box. From the bottom of the switch box the wires, inclosed in a flexible cable about lVs inches in circumference, led to the electric stove. On the outside south wall of the house was located a light meter near a point where the wires extending from the pole reached the house. This meter was installed in a rectangular box built in the wall. The light service wires entered the wall through two porcelain tubes immediately above the box containing the meter, and the wiring from the porcelain tubes to the meter is concealed in the wall. This wiring and the box were the property of Mrs. Stutzenbaker, and were installed by her. From the porcelain tubes the light wires come out of the wall and connect to two of the wires supplying current to the stove. The two wires to which the light wires are connected are known as 110-volt wires, and this connection and the other wiring in the house were installed by Mrs. Stutzenbaker’s contractor.

In response to the direction to discontinue service, an electrician employed by the light company went to the house at about 8:30 on the morning of the fire, and he first pulled the stove switch in the box on the wall. He did this for his own safety, and when the switch was pulled the current to the stove was shut off. The electrician then cut the. 220-volt wire six inches from the knob, and he testified that he wrapped the short end so cut around the porcelain knob on the outside -of the house. Whether the short end was wrapped around the porcelain knob is one of the disputed questions of fact in the case. The electrician testified that he cut the remaining two 110-volt wires immediately below the connection which Mrs. Stutzenbaker’s contractor had made and taped the ends of both wires. He further testified that he then removed the conduit from the wall and taped the ends, and he then cut the wires below the switch box which served the electric stove, and Mr. Stutzenbaker moved the stove out from the wall. The electrician further testified that, when the wires Avere cut beloAv the switch, this completely eliminated any current to the stove, and he then took off the lock nuts, which fastened one end of the conduit to the switch box, and removed the conduit and wires entirely, and remoAmd the switch box from the wall. This left no wires Avhatever inside of the house which led to the stove. He testified that, before leaving the premises, he went out in the alley and cut the 220-volt wire off a feAv inches from the pole 160 feet from the house, and Avrapped it back around a porcelain knob on the pole. This left only the 112-volt lighting service to the house, which was fed from the remaining two service wires coming from the porcelain knobs down to the wires and the connection made by appellants ’ contractor. According to the testimony on the part of the plaintiffs, the wires were not cut at the pole until after the fire had occurred and been extinguished.

After the electrician left, Mr. Stutzenbaker carried away the stove, the wires, the switch box and the conduit entrance used in connection with the stove. There was left in the house a new oil cook stove, which had been brought there only a day or so before the fire, but the oil cook stove had not been put in use according to the testimony of the plaintiffs, and contained no oil. Smoke coming from the house was discovered about 11 a. m. of the same day, and, before the fire causing it could be extinguished, the damage had been done, for which the- plaintiffs sue.

Certain pictures offered in evidence and other testimony in the case leave little doubt as to the point of origin of the fire. Mrs. Wilson, the first witness to see the fire, testified that the blaze first appeared near a point where the two light wires entered the building. The fire chief testified that in his judgment the fire originated on the inside of the kitchen where Mrs. Wilson saw the first blaze coming out. There was in the west wall at this point a 2 x 4 studding, which was burned nearly in two. McConnell, tile first person to enter the house, testified that as he went into the kitchen the three wires extending from the pole to the house were still up, and immediately after he had passed under them, two of the three wires came loose from their anchorage to the house and fell to the ground, and, to prevent further contact, this witness pulled the down portion of one of the wires away from the down portion of the other wire. Witness Estes, who came up to the rear of the house im-. mediately following McConnell,' observed the two down wires, and testified that the insulation substance on them had burned for some distance toward the pole.

Appellants state their theory of the case as follows: When the electrician cut the three wires loose from the stove, he did so at a point some distance below where the two extensions entered the house near the west door top,, thus leaving them loose and with their ends naked. A considerable wind was blowing and two of the three wires formed a short circuit so that they dropped loose from their fastenings some 14 or 15 feet away from the location of the wires, this being evidenced by the fact that the insulation burned off these two wires some distance towards the pole.

The court submitted the case to the jury under instructions declaring the law to be that, if the defendant’s electrician by disconnecting the wires from the stove had left them uninsulated, and had so cut the wires as to leave them near enough each other for the dangling ends to be brought or blown together, thereby producing a short circuit and causing the fire, and this was negligence, then the defendant was liable for the damages thus occasioned.

This instruction appears to correctly submit the controlling question of fact, and the verdict of the jury in defendant’s favor would be conclusive of the case if other instructions had not been given which we think are erroneous.

Instruction numbered 2 reads as follows: “You are instructed that, if you find from the evidence that the fire originated inside of the building of the plaintiff, then your verdict should be for defendant company.” This instruction is peremptory in its nature, as the testimony appears to be undisputed that the fire originated inside of the house. If the fire was caused by cutting the wires and leaving their ends untaped, so that a short circuit might be and was formed as a result of that action, it would be immaterial where the fire originated. The defendant would be responsible for the result of its negligence, if it were negligent, wherever the vagaries of the -electric current manifested the negligence.

There were six plaintiffs in the case, and in an instruction numbered 12 the court stated the damages for which each had sued. This instruction was concluded with the following declaration of law: “You are instructed that each plaintiff would have to make out his or her own case, and you are further instructed that you cannot find for one plaintiff merely because one or more of the plaintiffs, in your judgment, might be entitled to a verdict. The burden of proof is upon each plaintiff to make out his own or her own case by a preponderance of the testimony.” The part of the instruction above copied was erroneous. Several of these plaintiffs offered no testimony as to the origin of the fire, although there was testimony as to the damages which the plaintiffs had severally sustained. If there was liability as to any one of the plaintiffs, there was liability as to alh If any one of them was entitled to be compensated, all of them were; and if the testimony on the part of one or more of the plaintiffs established liability, the others were entitled to the benefit of that testimony, although they may have had no knowledge as to the cause of the fire and had offered no testimony on that subject.

For the error in giving instructions numbered 2 and 12, set out above, the judgment must be reversed, and the cause will be remanded for a new trial.


author: Humphrey, J.

text:
    Murphy v. Martin.
    4-2958
    Opinion delivered May 8, 1933.

      David L. King, for appellant.

      Sidney Kelly and W. P. Smith, for appellee.
   Humphrey, J.

The purported last will and testament of S. P. Murphy, deceased, was filed in vacation with the clerk of the probate court of Sharp County, Southern District, and by him examined, approved, and admitted to probate on the 5th day of May, 1930. At the succeeding regular term of the probate court, appellees entered a contest, making averments as follows:

“1st. That the paper writing alleged to be the last will and testament of S. P. Murphy, deceased, is not in form as required by law; therefore is not subject to probate.
“2d. That said S. P. Murphy was not possessed of testamentary capacity at the time of the alleged execution of said paper writing purported to be his last will and testament.
“3d. That said purported will is not in the handwriting of said S. P. Murphy.”

An answer was filed by appellants denying the first two allegations contained in appellees ’ contest.

On the trial of the cause, the probate court admitted the will to probate, from which judgment an appeal was duly prosecuted to the circuit court of said county, Southern District, where a change of venue was prayed and granted to the Northern District thereof.

The cause was there tried de novo and sent to a jury upon the pleadings, testimony adduced, and instructions of the court, resulting in a verdict and consequent judgment that the instrument in controversy was an invalid will, from which is this appeal.

The undisputed testimony showed that the will was written by Yerdus Murphy, a son of S. P. Murphy, and signed by the testator writing his initials “S. P.,” which was the usual way of signing his name; that he also signed the will by mark, which signature was witnessed by Cleo Massey and Theodore Eason; that the will was read to S. P. Murphy, after which he signed same in the manner set out above in the presence of the witnesses aforesaid and that they, at his request, signed same as witnesses in his presence and in the presence of each other.

In view of this undisputed testimony, the court should have assumed, in instructing the jury, that the will was in due form and executed in the manner prescribed by law. Instead of doing so, he submitted that issue to the jury in instruction No. 4, over the objection and exception of appellants. Instruction No. 4 is as follows:

“You are instructed that in this case the contestees contend that S. P. Murphy did subscribe the will in question by fixing thereto the initials, “S. P.,” and they contend that the initials were used by him as a usual and customary signature, and, if you should believe from the evidence that the initials, “S. P.,” were the usual and customary signature of S. P. Murphy, and that he thus subscribed the paper in question, using the said initials “S. P.” for his signature, then and in that event the will, would have been properly subscribed. You are instructed that the other part of the purported subscription, the part S. P. Murphy written by another party to the will, is to be considered by you as no part of the subscription to the will for the reason that it does not comply with the law as to what constitutes a subscription to a will, and you are therefore to consider only the initials “S. P.,” alleged to have been fixed to the will, in arriving at a conclusion as to whether the will has been subscribed.”

The submission of this issue to the jury was calculated to confuse and mislead them. The sole issue which should have been submitted to the .jury under the disputed testimony was the testamentary capacity of the testator at the time he executed the will. The testimony was in conflict on that issue.

On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial.


author: McHaney, J.

text:
    Wylie v. Rural Special School District No. 9.
    4-3005
    Opinion delivered May 8, 1933.

      T. D. Wynne, S. F. Morton and J. T. Richardson, for appellant.

      Paul G. Matlock and John L. McClellan, for appellee.
   McHaney, J.

October 10, 1930, appellee school district, having complied with act 119, Acts of 1927, p. 358, entitled “An act creating a revolving loan fund to aid needy school districts in repairing, erecting and equipping necessary school buildings, and for other purposes, ’ ’ borrowed $10,000 from said fund through the State Board of Education. This amount was remitted to appellee by draft in its favor which was deposited with Ed Hawkins, then treasurer of Dallas County, who credited same to appellee on his books as “building fund,” and he deposited said sum, to the best of his recollection, to his credit as county treasurer, in the Bank of Fordyce. He also had on deposit in said bank other county and school funds. On November 17, 1930, Hawkins as county treasurer had deposits in Bank of Carthage, First State Bank of Stuttgart, Merchants’ & Planters’ Bank & Trust Company, Pine Bluff, Merchants’ & Planters’ Bank, Sparkman, Bank of Fordyce, and the First National Bank of Fordyce. On said date all of said banks closed their doors with the exception of Merchants’ & Planters’ of Sparkman and the First National of Fordyce, and were taken over by the Bank Commissioner for liquidation. The treasurer had on deposit in all. banks the sum of $64,941.39, and in insolvent banks $44,980.85, consisting of county and school district funds. None of said banks were authorized depositaries, but were such as selected by the treasurer. . He therefore sustained a loss of approximately 70 per cent, of all funds.

Appellee school district had let a contract to construct a new school building with the funds so borrowed, and from time to time, both before and after the bank failures, drew its warrants on its “building fund” to its credit in the county treasury to pay for the construction of said school building, and all of said warrants were honored by the treasurer and checks were drawn on open banks in payment of said warrants, all of which were paid. Appellant succeeded Hawkins as county treasurer in January, 1931, and she thus honored one or more warrants on appellee’s “building fund” in said month. Appellee at all times had to its credit on the books of the treasurer a sum in excess of all Avarrants drawn on its “building fund.”

Sometime in the spring of 1931, the State Auditorial Department made an audit of the treasurer’s books and reached the conclusion that the loss of school district and county funds occasioned by the failure of banks should be prorated among the different agencies. The result of this Avould be that appellee had been overpaid by reason of such Avarrants draAAm on its “building fund” and honored, after the bank failures in the sum of $5,136.25, and appellant was directed to charge back to appellee said. sum. This suit Avas brought by appellee to enjoin appellant from so doing. The court granted the relief prayed, hence this appeal.

Several interesting questions are discussed by learned counsel on both sides, but Ave think it necessary to discuss only one of them in this opinion. Was there in fact any overdraft against appellee? We think not. While the record fails to show affirmatively that the Bank of Fordyce, the bank in which the $10,000 “building fund” was deposited, was reorganized or reopened and paid its depositors in full, it inferentially shows such to be the fact. The total loss above mentioned was sustained in three banks, one in Pine Bluff, one in Stuttgart and 'one in Carthage. No loss was therefore sustained in the Bank,of Fordyee, although appellee’s “building fund” borrowed as aforesaid, was there deposited to the best recollection of- Mr.- Hawkins. If so, then there has been no loss of appellee’s “building fund” sustained, and consequently no overdraft. The evidence supports the chancellor’s finding, and the decree must be affirmed.


text:
    Smith & Shoptaw v. Stanton.
    4-3009
    Opinion delivered May 8, 1933.

      C. C. Wait, for appellant.

      Robert Bailey, for appellee.
   Butler, J.

The principal question argued by appellants involves the action of the trial court in refusing to dismiss an appeal prosecuted to that court from the probate court.

In the motion filed by the appellants it was alleged that J. A. Akins died in February, 1917, the owner of 15914 acres of land and personal property valued at $350. He left surviving him his widow, Mrs. Lou M. Akins, and a daughter, Mrs. Stanton, his only child and sole heir at law. J. L. Stanton, the husband of the aforesaid daughter, was appointed administrator of the estate, at what time the record does not disclose. Mrs. Akins, the widow, was allotted the lands as her dower and homestead, and occupied the same as such until her death .on January 15, 1927. She purchased from the appellants a bill of lumber which was furnished at different times from the latter part of July to November, 1926, and was used by her in repairing or rebuilding a house on her homestead. She paid a part of this bill before her death, but at that time there remained unpaid a balance in the sum of $286.24. Administration was had upon her estate which appears to have been solvent, and was in the course of administration during that year. It seems that the administration of the estate of J. A. Akins had not been closed, and the appellants, being uncertain to whom they should look for payment of the balance of their account, filed two claims for the same, one against the estate of J. A. Akins and the other against the estate of Mrs. Lou M. Akins.

On the 24th day of October, 1927, the probate court acted upon both of these claims, disallowing the one filed against the estate of Mrs. Lou M. Akins and allowing the one against the estate of J. A. Akins. From the latter order the administrator of the estate of J. A. Akins made an affidavit for, and prayed an appeal on the date of the rendition of the judgment in the probate court. No appeal was taken by the appellants from the order of the court disallowing their claim against the estate of Mrs. Lou M. Akins. The appeal taken by the administrator of the estate of J. A. Akins was not lodged in the circuit court until October 22, 1928. On November 7, following, the circuit court met, and on that day the appellants filed in that court a motion to dismiss the appeal. No action was taken by the court on said motion or any proceedings had on the said appeal until November 7, 1932, a day of the fall term of the circuit court, when the appellants renewed their motion to dismiss the appeal.

In the meantime the administration of the estate of Mrs. Lou M. Akins had been concluded, and after all debts due by the estate had been paid a balance was left in the hands of the administrator which he was ordered to, and did, remit to the heir of Mrs. Lou M. Akins who resided in Rome, Georgia.

Included in the motion to dismiss was a copy of the order of the probate court just referred to approving the settlement of the administrator and directing him to pay over the balance on hand to the heirs of Mrs. Akins. Prom the recitals of this order it appears that there had been litigation in the chancery court between the heirs of J. A. Akins and the heirs of Mrs. Lou M. Akins, in which litigation the administrators of the respective estates were parties. A demurrer was filed to the motion to dismiss upon which the court did not act, but in its judgment rendered at that term of the court the motion to dismiss the appeal was overruled. After the recital overruling the motion to dismiss, it is recited in the judgment that the attorney for the administrator moved for a trial of the issues, and the attorney for the appellants, electing to stand on his motion to dismiss, refused to plead further. Thereupon the court “proceeds to hear the issue, and the court finds that Smith & Shoptaw, appellants, did not have a bona fide claim against J. L. Stanton, administrator of the J. A. Akins estate, but that their claim, if any, was against the estate of Mrs. Lou M. Akins,” and rendered judgment in favor of the appellee.

It is contended that the refusal of the trial court to dismiss the appeal prosecuted from the probate court was contrary to law and an abuse of the court’s discretion. This contention is based on § 2262 of Crawford & Moses’ Digest, which provides that all appeals allowed ten days before the first day of the term of the circuit court next after appeal allowed shall be determined at such term, unless continued for cause, and upon our decisions construing that section and similar provisions of the statute relating to appeals from justice of the peace and county courts.

In many of those cases the action of the circuit court in dismissing the appeal for failure to prosecute the same within the time named in the statute was upheld; in others its action in refusing to dismiss the appeal was likewise upheld. This court has held that the statute impliedly imposes upon the appellant the duty of having the transcript filed at the commencement of the next term of the circuit court, where the appeal was allowed by the probate court ten days before the first day of the next term of the circuit court; that the statute is merely directory, but should not on that account be ignored, but should be followed by persons appealing. We have laid down the rule, however, that the failure to have the transcript filed within the time mentioned in the statute does not give the other party to the suit the absolute right to have the appeal dismissed, but that in each case the circuit court in the exercise of a sound discretion may or may not dismiss the appeal, and that it would be only in cases where there waS an abuse of this discretion that this court would overrule the judgment of the circuit court.

The industry and research of counsel for the appellants has collected in his brief nearly all the cases of this court bearing on the question presented, which cases sustain the announcement just made. Among these cases are the following: Miller v. Oil City Iron Works, 184 Ark. 900, 45 S. W. (2d) 36; Briner v. Holleman, 115 Ark. 213, 170 S. W. 1010; Graham v. Drainage District No. 11, 161 Ark. 40, 255 S. W. 883; Goyne v. Ashley County, 31 Ark. 552; Hughes v. Wheat, 32 Ark. 292; Wilson v. Stark, 48 Ark. 73, 2 S. W. 346; Bates v. Mitchell, 96 Ark. 555, 132 S. W. 917; Hart v. Lequieu, 110 Ark. 284, 161 S. W. 201; Geo. E. Keith Co. v. January, 131 Ark. 389, 199 S. W. 89; Miller v. Fearis, 184 Ark. 859, 44 S. W. (2d) 343.

It appears from the record before us that there has been great delay on the part of both parties, the appellee delaying the filing of his appeal and the appellants delaying the prosecution of their motion to dismiss. Just what the reasons were for this inaction is not clearly shown, hut, plainly, both parties have been dilatory in the prosecution of their respective contentions before the circuit court. The appellee delayed the filing of his appeal until just within the year allowed for appeals from judgments of the probate court, and the appellants delayed nearly four 'years in bringing to the attention of the circuit court and pressing for its decision his motion to dismiss. It was the duty of the appellee, of course, to excuse his delay, but there is significance to be attached to the delay on the part of the appellants to press their motion for a decision, and from all the circumstances in the record before ns we are unable to say that there was any abuse of the court’s discretion in the judgment reached by it.

On the question of the liability of the estate of J. A. Akins, the trial court reached a correct conclusion. It is the general rule that a life tenant may not recover from the reversioner for improvements made by the former and consequently no charge for the same can be made upon the inheritance. To this general rule exceptions may, and do, arise, where to apply it would be contrary to good conscience and fair dealing. 21 C. J. 953; 17 R. C. L. 635, § 25; Merritt v. Scott, 81 N. C. 385; Dean v. Feely, 69 Ga. 804; Pratt v. Douglass, 38 N. J. Eq. 516; Caldwell v. Jacob, 22 S. W. 436, 16 Ky. Law Rep. 21-24; Killmer v. Wuchmer, 79 Ia. 722, 18 Am. St. Rep. 392; Gambril v. Gambril, 3 Md. Ch. 259.

The case at bar does not come within the exception, and the general rule stated is applicable. The judgment of the trial court is therefore affirmed.


text:
    Cox v. Wasson.
    4-3071
    Opinion delivered May 15, 1933.

      M. F. Elms, for appellant.

      Ingram & Moher, for appellee.
   Johnson, C. J.,

(after stating the facts). It is perfectly evident from the foregoing statement of facts that the chancellor was fully warranted in finding from the testimony that the deposits made by Mrs. Cox on January 28 and February 2 were general deposits and not collection items. This is established by the testimony of Mr. Hayes, the assistant cashier -of the bank, and he is fully corroborated by the deposit slips which were issued at the. time and accepted by Mrs. Cox as the evidence of the transaction.

A chancellor’s finding of facts will not be disturbed on appeal unless clearly against the preponderance of the evidence. Cherry v. Brizzolara, 89 Ark. 309, 116 S. W. 668; Compagionette v. McArmick, 91 Ark. 69, 120 S. W. 400; Sullivan v. Winters, 91 Ark. 149, 120 S. W. 843; Lyons v. First Nat’l Bank, 101 Ark. 368, 142 S. W. 856; Kissire v. Plunkett-Jarrell Grocery Co., 103 Ark. 473, 145 S. W. 567.

It is true, of course, that the testimony on behalf of appellee was controverted by the testimony on behalf of appellants, but this made the issue of fact for the trial court’s determination, and we cannot say that the chancellor’s findings were against a preponderance of the testimony.

It is next insisted on behalf of appellant that the deposit slip executed on February 17, 1933, evidencing the deposit in the. name of the administrator of the estate of Mrs. Cox, which deposit slip provided on its face, “trust fund to be paid under of court,” created an express trust under subdivision 5 of § 1 of act 107 of 1927. To this we cannot agree. This court held in State, etc., v. Arkansas Bank & Trust Company, 183 Ark. 1108, 40 S. W. (2d) 429; that the agreement there under-consideration did not create an express trust “because the agreement was not with the county, and to be an express trust within the meaning of the act (act 107 of 1927), the agreement must be between the trustee and the cestui que trust, signed by the trustee at the time the contract for the deposit of the fund was made. Express trusts are thus created by the direct and positive act of the parties manifested by some instrument in writing whether by deed, will or otherwise. ”

It is perfectly evident that the. notation on the deposit slip referred to above does not create an express trust as defined in the case cited supra or as defined by any other authority which has been called to our attention in briefs.

We therefore conclude that the chancery court of Arkansas County was correct in classifying the claims in this controversy as common instead of preferred. No error appearing, the decree of the Arkansas Chancery Court is in all things affirmed.


text:
    Matthews v. Byrd.
    4-3094
    Opinion delivered May 15, 1933.

      C. E. Love, for appellant.

      C. B. Crumpler, for appellee.

      Hal L. Norwood, Attorney General, Sam T. Poe, Tom Poe and M. A. Matlock, amici curiae.

   Smith, J.

This appeal involves the constitutionality of §§ 5 and 6 of House Bill No. 559, which, after its final passage, became act 250 of the Acts of 1933. The Secretary of State has certified that this bill, having remained with the Governor twenty days,' the General Assembly not being in session, became a law March 30, 1933.

The title to this bill, when introduced in the House, was “A bill for an act to be entitled: ‘An act to fix the compensation of county officers,’ ” and this title was. not changed.

The legislative journals show that the bill, having-been passed in the House, was amended in the Senate, and that the House concurred in the Senate amendments. The amendments consist in the addition of the two sections of the act which are numbered 5 and 6.

Section 2 of this act fixes the compensation of the county officers of all the counties of the State. It deals with each count/' separately, and contains various provisions in regard to compensating these officers, and it is insisted that this, in effect, is the consolidation of seventy-five local bills into a single act, all of which are void, because all are local, and that therefore the entire act must fall as being unconstitutional.

Section 3 of the act provides that the compensation allowed by § 2 shall be the maximum compensation, records of which shall be kept, with directions as to the disposition of fees collected in excess of the compensation allowed, etc.

Section 4 provides that nothing contained in the act shall be construed as limiting or restricting the right of the people to initiate such laws as they may, from time to time, deem advisable for the compensation of county officials.

The first amendment to the bill, which appears as § 5 of the act, reads as follows: “That § 10,084 of Crawford & Moses ’ Digest of the statutes of Arkansas be amended so as to read as follows: ‘The clerks of the several counties of this State shall cause the list of delinquent lands in their respective counties, as corrected by them, to be entered in a well-bound book, appropriately labeled, which book shall be a permanent public record, and open to the inspection of the public at all times.’ ”

A comparison of this § 5 of the act with the section of the digest which it amends discloses that it eliminates the requirement appearing in § 10,084, Crawford & Moses’ Digest, that the county clerk shall cause the list of the delinquent lands to be published weekly for two weeks, and, in lieu thereof requires the clerk to enter of record the list of delinquent lands in a well-bound book, to be kept as a public record, open to the inspection of the public at all times.

The other amendment to the bill, which appears as § 6 of the act, amends § 10,085, Crawford & Moses’ Digest. The amendment is to the effect that, instead of publishing the list of all the delinquent property, as § 10,085, Crawford & Moses’ Digest, requires, there should be published a notice in substance as follows :

“NOTICE OF DELINQUENT TAX SALE
“The lands and lots and parts of lots returned delinquent in..................County for the year 19......, together with the taxes and penalties charged thereon agreeable to law, are contained and described in a list or record on file in the office of the clerk of the county court and notice is hereby given to all parties in interest that said several tracts, lots or parts of lots, or so much thereof as may be necessary to pay the taxes, penalties and costs due thereon, will be sold by the county collector at the courthouse in said county on (here state the date of sale) unless the said taxes, penalties and costs as charged thereon agreeable to law, be paid before that time; and that the sale will be continued from day to day until the said tracts, lots and parts of lots be sold.”

Section 6 of the act provides that this notice shall occupy a space, of not more than six inches double column in the publication in which it appears, and that the county clerk shall make a certificate, at the foot of the record, containing the delinquent list, stating in what newspaper the notice of the delinquent land sale was published, and the dates of publication.

Sections 7 and 8 of the act read as follows:

Section 7. The provisions of this act are hereby declared to be severable, and, if any provision of this act should be declared unconstitutional by any court of last resort, the same shall not affect the remainder of this act.
‘ ‘ Section 8. That by reason of the distressing financial condition of the State, which has resulted in the partial collapse of many factors of State and county governments and the inability of the people to meet the demands of government at this time, an emergency is hereby declared to exist, and this act, being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after its passage.”

The court below held that §§ 5 and 6, supra, were, unconstitutional, and the effect of that holding is to leave §§ 10,084 and 10,085, Crawford & Moses’ Digest, in force and effect, and these statutes, unamended, require the publication of the delinquent lists in a newspaper for the time and manner there specified.

For the affirmance of this decree, it is insisted that the provisions of § 2, relating to the compensation of county officers, are unconstitutional and void, and that the whole act must therefore fail, notwithstanding the provisions of § 7, above quoted, as to the separability of the act, for the reason that, if § 2 of the act is void, the whole legislative scheme and purpose is defeated.

We do not consider or decide whether § 2 is valid legislation or not, for the reason that the provisions of §§ 5 and 6 may stand and be enforced, whether § 2 be constitutional or unconstitutional. The law of the subject has been many times declared, and in one of the latest of these cases, that of State v. Hurlock, 185 Ark. 807, 49 S. W. (2d) 611, it was said:

“This court has frequently held that, when a statute is unconstitutional in part, the valid portion of an act will be sustained if complete in itself, and capable of being executed in accordance with the apparent legislative intent.’’ (Citing cases.)

The Legislature has manifested and declared its intention in regard to this legislation in a manner too plain to admit of doubt. Section 2 fixes the compensation of county officials. Section 3 makes the provisions of § 2 effective by providing the disposition to-be made of fees collected in excess of the compensation allowed by § 2. Sections 5 and 6 dispense with the publication of the delinquent list. These are the provisions of the act, and the Legislature has declared these provisions to be sever-able, and has declared that, if any provision should be declared unconstitutional, that declaration should not affect the remainder of the act.

We therefore proceed to consider the constitutionality of §§ 5 and 6, without regard to the. constitutionality of §§ 2 and 3. Standing apart and considered alone, we think §§ 5 and 6 are valid laws and within the power of the General Assembly to enact, and it is not contended that the provision for notice of delinquency to the property owners, there provided for, does not constitute due process of law. Turpin v. Lemon, 187 U. S. 51, 23 S. Ct. 20.

It is insisted, however, that the amendments appearing as §§ 5 and 6 of the act are violative of article 5, § 21, of the Constitution, which provides that: “No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its purpose.”

It is argued that the purpose of this bill, as reflected by its title, was to fix the compensation of county officers, and that this purpose was changed by the amendments to such an extent as to violate the section of the Constitution above quoted. We do not think so. The recitals of § 8, set out above, of the. facts constituting the emergency requiring that the act take effect immediately, disclose the legislative purpose to he the reduction of the cost of government generally, and by this act to reduce the cost of county government in particular.

The Attorney General, in the brief filed by his office, calls attention to his report to the General Assembly which enacted the legislation in question, and to the recommendations which that report contain showing the great cost of tax sales and the small revenue, in comparison, derived from them. There was a movement in the General Assembly, little short of a crusade, to reduce the cost of government, and this act, 250, is a manifestation of that purpose, as is evidenced by the recitals of its emergency clause, set out above. It appears to be reasonably certain that the primary purpose of the act was to reduce the expenses of county government, and the amendments to it have a direct relation to that purpose, and certainly do not change the purpose to reduce expenses.

Prior to this act the county clerks of all the counties were allowed fees: “For furnishing copy of delinquent lands to printer for each tract, .05.” Section 4577, Crawford & Moses’ Dig’est. The amendments dispense with this service, and to that extent change the fees which county clerks have heretofore been allowed. Act 157 of the Acts of 1933, which was approved March 25, 1933, increased the fee to 10 cents for furnishing copy of delinquent lands to the printer for each tract, if that service was still required.

We do not think the amendments are violative of § 21 of article 5 of the Constitution. In the case of Hickey v. State, 114 Ark. 526, 170 S. W. 562, it was said that it was not the object of this section to hamper legislation by requiring a number of bills to accomplish the result which a single bill might effect, but that the purpose of the section was to forbid amendments which were not germane to the subject, thereby changing its original purpose. Cone v. Garner, 175 Ark. 860, 3 S. W. (2d) 1; Loftin v. Watson, 32 Ark. 414.

Like all other legislation, the General Assembly has a discretion, not to change the purpose of the bill, but to determine whether an amendment does change the purpose, and a legislative act will not be declared unconstitutional as violative of this section of the Constitution unless it obviously appears that the amendments adopted do change its original purpose.

It is argued that the title of the act declares its pur- • pose, and cannot be reasonably construed as embracing legislation having only an incidental relation to compensation of county officers.

Section 22 of article 5 of the Constitution of 1868 provided that “No act shall embrace more than one subject, which shall be embraced in its title.” But this provision was omitted and does not appear in our present Constitution. We said, in the case of Westbrook v. McDonald, 184 Ark. 746, 43 S. W. (2d) 356, 44 S. W. (2d) 331, that: “It is settled law that even the title of an act is not controlling in its construction, although it is considered in determining its meaning when such meaning is otherwise in doubt. Conway v. Summers, 176 Ark. 796, 4 S. W. (2d) 19.”

In the case of Cone v. Garner, supra, it was contended that the act there under review was violative of § 21 of article 5 of the Constitution, and the title of the act was cited as supporting that contention, but we there said:

“But our Constitution does not provide, like many Constitutions, that each bill shall have a title in which shall be expressly stated the purpose of the bill, or any words to that effect.
“ In a very recent case this court said: It is obvious that the title is not as broad as the act, but there is no provision in our Constitution to the effect that the caption of an act must indicate all the subject-matter embraced in the act itself.’ Huff v. Udey, 173 Ark. 464, 292 S. W. 693.”

We conclude therefore that §§ 5 and 6 of act 250 are valid enactments, and the decree of the court below will be reversed and the cause remanded to the chancery court, with directions to enter a decree restraining the county clerk from causing appellant’s land to be advertised in the manner and form required by §§ 10,084 and 10,085 of Crawford & Moses’ Digest, which sections were amended as herein stated.


author: Humphreys, J.

text:
    Hines v. Mills.
    4-3012
    Opinion delivered May 15, 1933.

      Cleveland Cabler, for appellant.

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

This is an appeal from a judgment of the circuit court of Jefferson County affirming an order of the probate court of said county directing appellee, as guardian of Veota House, to invest $994.50 of the ward’s money in Cities Service common stock. The order was made by the probate court on petition of the guardian on September 9, 1930. The trust fund invested was obtained from the United States Government through the Veterans’ Administration, and appellant, acting in the interest of the trust fund, through his attorney, in 1932, filed a petition in said probate court to charge appellee with the amount thus invested on the ground that the probate court was without authority to make such order. The order of the probate court was made pursuant to § 12 of act 36 of the General Assembly of 1929, known as the Uniform Veterans’ Guardianship Act, which is as follows:

“Every guardian shall invest the funds of the estate in such manner or in such securities, in which the guardian has no interest, as allowed by law or approved by the court.”

The language of the act is unambiguous, and, as written, has one meaning only. It says and means that a guardian may invest his ward’s funds in securities “allowed by law or approved by the court.” It is contended by appellant that the word “or” should be construed as meaning “and” in order to effectuate the intent of the Legislature. In other words, it is contended that the statute means and was intended to mean that a guardian might invest the trust fund in only such securities as the law allowed if and when approved by the court. It is only permissible to use the words “or” and “and” interchangeably in statutes where the context requires that it be done to effectuate the manifest intention of the Legislature or where not to do so would render the meaning ambiguous or result in an absurdity. It is not necessary to substitute the conjunctive “and” for the disjunctive “or” in the statute to prevent either a dubious meaning or an absurd one. There is nothing in the context to indicate that the Legislature intended in the enactment to use the word “and” in the place of the word “or.” If the purpose of the Legislature was to authorize guardians to invest the trust fund in securities designated by it as well as those which the probate court might approve, then the word “or” was not used by it through mistake. The word “or” was used without rendering the meaning either dubious or absurd. It would not be permissible for this court to substitute the word “and” for “or” to effectuate a change in the intention of the Legislature. Such a change would amount to an encroachment upon legislative prerogatives.

Appellant argues that it must be done in order to harmonize this statute with other statutes relating to the same subject. We think not if this statute be treated as enlarging previous statutes by permitting the guardian to invest the trust fund in additional securities when approved by an order of the probate court. There is no conflict between this act and previous acts relating to the investment of trust funds by guardians; so, if the word “or” is left in the act in question, all the acts are in pari materia, and may be read as a harmonious whole.

“The current of authority at the present day is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of limiting or extending their operation." Waller v. Harris, 20 Wend. 562; Phillips County v. Pillow, 47 Ark. 404, 1 S. W. 686; Fernwood Mining Company v. Pluna, 138 Ark. 459, 213 S. W. 397; Parker v. Wilson, 99 Ark. 344, 137 S. W. 926.

No error appearing, the judgment is affirmed.


text:
    Squires v. New Amsterdam Casualty Company.
    4-3077
    Opinion delivered May 15, 1933.

      John L. McClellan and Sam T. & Tom Poe, for appellant.

      Buzbee, Harrison, Buzbee & Wright, for appellee.
   Humphreys, J.

This is an application to this court for a writ of prohibition against Will Gr. Akers, special chancellor of the Pulaski Chancery Court, and the New Amsterdam Casualty Company, which is a party to the litigation in said court, to inhibit them from proceeding by restraining order or injunction to prevent petitioner herein from prosecuting his suit in the Little Eiver Circuit Court to recover on a $10,000 judgment which he obtained against H. E. Pattison in the circuit court of Saline County. The suit to collect the judgment from the New Amsterdam Casualty Company was based upon a bond executed by it to qualify the Union Indemnity Company to do business in Arkansas, in which latter company H. E. Pattison held an indemnity policy.

Appellant sustained injuries in an automobile collision through the negligent operation of a car owned by H. E. Pattison and recovered the judgment aforesaid against him on account of the injuries received. He obtained an execution against Pattison out of the circuit court of Saline County, which was returned nulla bona. The Union Indemnity Company, in which Pattison held an indemnity policy, became insolvent. It owned some real estate in Little Eiver County in this State. Subsequent to the insolvency of the Union Indemnity Company, the petitioner herein filed an attachment suit against the Union Indemnity Company in the circuit court of Little Eiver County and levied upon the real estate. He made the New Amsterdam Casualty Company a party defendant, alleging its liability for the payment of the judgment under its qualifying bond executed to obtain the right of the Union Indemnity Company to do business in Arkansas. During the pendency of this suit in Little Eiver County, the New Amsterdam Casualty Company was made a defendant in a suit brought by the Independence Indemnity Company in the chancery court of Pulaski County, which company had also executed a qualifying bond to qualify the Union Indemnity Company to do business in Arkansas. Tbe New Amsterdam Casualty Company filed an answer and cross-oomplaint in tbe suit of the Independence Casualty Company; in which it made the petitioner herein a cross-defendant along with others, in which it pleaded that the petitioner herein be required to interplead and file its claim against the New Amsterdam Casualty Company for adjudication in the' Pulaski Chancery Court and that he be enjoined from further prosecution of. his suit at law in the circuit court of Little River County against the New Amsterdam Casualty Company. In the cross-complaint, it admitted the execution of the qualifying bond in the sum of $20,000, but denied any liability thereunder to the petitioner or other cross-defendants, and obtained from Will Gr. Akers, special chancellor, a restraining order commanding your petitioner to refrain from prosecuting his suit at law in the circuit court of Little River County against the New Amsterdam Casualty Company.

This application must be treated as a request for a writ of prohibition against Will Gr. Akers, special chancellor, only, for a writ of prohibition lies to the court and not to the parties to the litigation. Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d) 421.

The only other question arising on this petition for a writ of prohibition is whether the chancery court of Pulaski County had jurisdiction under the allegations of the cross-complaint of the New Amsterdam Casualty Company to issue a restraining order against the petitioner herein. The gist of the cross-complaint was to implead the petitioner herein to file and litigate their respective claims against the New Amsterdam Casualty Company under the qualifying bond it executed in behalf of the Union Indemnity Company. It admitted the execution of the bond, but denied any liability to the cross-defendants thereon. The doctrine of the prevention of a multiplicity of suits is invoked to sustain the jurisdiction of the chancery court and to justify the issuance of the restraining order. Other legal or equitable rights to relief must exist in one before equity will, at his instance, enjoin the prosecution of numerous actions at law growing out of the same transaction. 1st Pomeroy’s Equity Jurisprudence (Fourth Edition), § 250; Jones v. Harris, 90 Ark. 51, 117 S. W. 1077.

The cross-complaint cannot he maintained as an action of interpleader or- an action in the nature of inter-pleader, thereby conferring jurisdiction' on the chancery court to issue the .restraining order, for essential and necessary averments are lacking to so treat or construe it.

In the first place, liability under the bond was not admitted; but, on the contrary, was specifically denied. An admission of liability was essential and necessary before the cross-complaint could be treated as a bill of inter-pleader or a hill in the,nature of a bill of interpleader. Southwestern Telephone & Telegraph Co. v. Benson, 63 Ark. 283, 38 S. W. 341; Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 So. 480.

In the next place, the money was not deposited in the court to be prorated among th.e claimants, nor ivas an offer to do so contained in the cross-complaint, and for this reason also the cross-complaint was fatally defective as a bill of interpleader or a bill in the nature of a bill of interpleader conferring jurisdiction on the chancery court to issue a restaining order. 15 R. C. L., 230.

“In a proper case for a bill of interpleader complainant may have an injunction restraining claimants from further prosecution of their actions at law pending the. litigation under the interpleader, but only on bringing the fund into court. 33 C. J. 452.

The case of Chicago, Rock Island & Pacific Railway Co. v. Moore, 92 Ark. 446, 123 S. W. 233, cited and relied upon by respondent, in no way contravenes the principles announced herein. In that case the Chicago, Rock Island & Pacific Railway Company admitted liability and offered to pay the amount into court, and also averred an equitable issue of alleged claim of a lien upon its railroad in addition to th.e prevention of a multiplicity of suits. That' suit was clearly one in the nature of a bill of interpleader.

The writ of prohibition is granted.