text:
    Smith v. Smith.
    4-2992
    Opinion delivered May 1, 1933.

      Oscar Barnett, for appellant.

      H. B. Means, for appellee.
   Mehaffy, J.

The appellant, Stella Smith, and appellee, Filus Smith, were husband and wife, and in the latter part of 1931 appellant filed in the Hot Spring Chancery Court a suit for divorce, alleging that appellee had offered to her such indignities, consisting of rudeness, unmerited reproach, contempt, studied neglect, and open insult, rendering her condition intolerable. She also alleged that appellee wilfully deserted her on June 28, 1930, and that he continues to desert her and abandon her.

In the same complaint appellant alleged that Filus Smith wrongfully and wickedly conspired with J. Millard Smith to deprive her of her rights to enjoy herself as the wife of Filus Smith that appellant and appellee, Filus Smith had acquired certain real estate, and that Filus Smith and his father maliciously, wrongfully and wickedly conspired to defraud her of said lands by allowing same to go on delinquent land list for taxes, and permitting said J. Millard Smith to buy same in at tax sale; that he procured tax deeds for said lands and had them recorded with the malicious and wicked intent to defraud.her and deprive her of its use; that said tax deeds were procured by fraud to prevent her from collecting alimony due from Filus Smith. She also alleged that they had conspired to teach her children to hate her, and that J. Millard- Smith wickedly influenced her husband to leave,'desert, and abandon her. She prays judgment against J. Millard Smith in the sum of $'25,000, and also prays judgment against Filus Smith in the sum of $25,000 and asked judgment against both of them in the sum of $25,000, and asked that the tax deeds be set aside.

Answer was filed by both Filus Smith and his father denying the material allegations of the complaint as to causes for divorce and conspiracy. Filus Smith filed a cross-complaint alleging that appellant wilfully deserted him without reasonable cause for more than the space of one year, and still continues to desert and abandon him, and prays that he be granted a divorce.

The evidence is in conflict, and it would serve no useful purpose to set it out here.

The court entered a decree holding that the allegations of the cross-complaint are fully sustained by the evidence, and granted Filus Smith a divorce, and dismissed the complaint of the appellant.

The court further found, that the lands described in the complaint were acquired by Stella Smith and Filus Smith, and that during the litigation between them J. Millard Smith, the father of Filus Smith, through fraud and connivance with Filus Smith, procured tax deeds and placed them on record; that said deeds were procured by fraud with the intent to defeat the title and interest of Stella Smith. The decree set the tax deeds aside and held them for naught, and revested the property in Stella Smith and Filus Smith, clear of any claim of J. Millard Smith.

The court also gave judgment for $163.35 alimony, and $25 attorney’s fee, and decreed a lien on the land to pay the same. The custody of the children, Filus and Stella Smith, was awarded to the appellee, Filus Smith.

This appeal is prosecuted to reverse the decree granting divorce and awarding the custody of the children to the father. There is no appeal from the decree setting aside the tax deeds, and revesting title in Stella and Filus Smith.

The appellant first contends that the appellee does not allege the place of marriage, the date of marriage, or the place of separation. The appellant, however, in her complaint alleged the date and place of marriage, and the appellee, Filus Smith, in his answer stated that he admitted all the allegations of the complaint for divorce, except that he deserted appellant on June 2.0,1930.

It is next contended by the appellant that there is no proof in the record anywhere that appellant deserted or abandoned appellee, except the statement of appellee himself. It is true that nobody else testifies that she left him on March 2, 1929.

It appears that this is the third time appellant has brought suit for divorce.

Anna Forelines testified that she was 58 years of age, knew Filus Smith and his wife when they lived together. She did not know the date when they separated. She heard appellant say while they were living together that he was good to her, and that they got along but for her terrible temper; that the statements made by appellant in the presence of witness were prior to the last separation.

Amanda Buris stayed with Filus Smith and his'wife about two weeks some years ago, and testified that Smith' was kind to her, but appellant told her that she did not intend to live with appellee.

Regine Smith testified that they were living at their home, and that appellee came to the home of witnesses and brought his two children. Witness also testified that, as long as they lived together, they lived at the home appellee provided for her.

A number of witnesses testified as to appellee’s kindness to appellant.

D. M. Buck, father of the appellant, testified that he was present in June, 1930, and heard Filus Smith testify, and that his daughter and Filus Smith had not lived together since then.

There were, in addition to testimony of the witnesses, circumstances tending to corroborate the appellee. As already stated, there seems to have been two or three suits for divorce, all of them evidently in Hot Spring County, and the chancellor had had the parties before him in these other suits, and, probably for that reason the attorneys on each side were not as careful in the presentation of testimony as they otherwise might have been.

The manner of separation was purely a question of fact.

Appellant calls attention to the case of Reed v. Reed, 62 Ark. 611, 37 S. W. 230. It was there held that a husband was not entitled to a divorce on the grounds of desertion by the wife where she separated from him by his consent, and such consent may be expressly given or implied from the words or acts.

There is no evidence in the record tending to show that appellee consented to the separation. He testified: “I did not have any strings on my wife; after I seen she was going, of course I asked her to go fifty-fifty in taking care of the children. I do not know that it was impossible for my wife to live there in the house with my people.” He was then asked: “Will you take your wife back?” He declined to answer this question.

We do not think he was under any obligation to answer this question for the reason that there is no evidence that she- had offered to go back to him. If she wanted to go back -to him, and had made this known to him, it would then have been time for him to determine whether he would take, her back, but, as she had not expressed any willingness to return, there was no reason for him to say whether he would or would not take her back.

The court made an order vesting the title to the land described in appellant’s complaint in Filus Smith and Stella Smith, and there is no appeal from this part of the decree. The chancellor also gave a lien on the lands for the alimony, cost, and attornev’s fee.

This court also made an order requiring the appellee to pay $25 attorney’s fee and costs, and this, together with the alimony and costs in the lower court, is adjudged against the appellee, and a lien given on his interest in the lands to secure the payment of these amounts.

The findings of the chancellor are not against the preponderance of the evidence, and the decree is affirmed.


source: Caselaw Access Project

author: McHaney, J. Johnson, C. J.,

license: Public Domain

text:
    Union Investment Company v. Hunt.
    4-2993
    Opinion delivered May 1, 1933.

      George C. Lewis, for appellant.

      M. F. Elms and W. A. Leach, for appellee.
   McHaney, J.

Appellee is the owner of the southeast quarter of section 10, township 2 south, range 5 west, Arkansas County, which is included in Big Island Drainage District No. 8. The district was organized under the general drainage district laws known as the alternative drainage district .system. M. Beck formerly owned the land above described, but, after his death, which occurred prior to January 1,1918, Ms heirs conveyed same to appellee on January 20, 1920, and the latter has been in the actual possession thereof since that time, cultivating it as a rice farm. The 1920 drainage district taxes on this and other lands were not paid and were returned delinquent. Thereafter, on December 4, 1925, said district brought suit in the chancery court to foreclose its lien against the delinquent lands, including the lands in controversy, correctly describing them in the complaint. Notice of the pendency of the suit was given by publication in a newspaper, and on January 5, 1926, decree was returned condemning* the land to be sold for the taxes, penalty and cost against it, and thereafter same was sold to the district, the sale confirmed, and a certificate of purchase issued to the district. This certificate was later assigned to appellant, and on April 15,1931, on the surrender of the certificate to the commissioner in chancery, a deed was executed and delivered to appellant and approved by the court. After appellee’s purchase of said land he paid all the drainage taxes accruing against it for 1921 and subsequent years. It is agreed that the 1920 tax, the one for which the sale was made, amounting to $27.40, was not paid, and that there has been no redemption from the commissioner’s sale unless the later payments made by appellee and accepted by the district may be held to be a redemption. In the decree condemning said land to sale for the delinquent taxes for the year 1920, this finding is made: “That due and proper service has been had upon all of the owners of the said lands and real estate hereinafter described by means and reason of the publication of a notice of the pendency and purpose of said suit as is required by law, which notice was published for four consecutive weeMy issues in the Stuttgart Arkansawyer, a newspaper of bona fide circulation in the northern district of Arkansas County, therein describing said lands and real estate,” etc. Said decree then continues: “Whereupon said cause is submitted to the court upon plaintiff’s complaint, the proof of publication of the notice aforesaid, ” etc.

Appellee brought this action to cancel and set aside the sale of said land for taxes and the deed issued to appellant by the commissioner making the sale. On a trial of the case on an agreed statement of facts the court found for appellee and entered a decree canceling and setting aside its former decree condemning the. above-described land for sale, canceling and holding for naught said sale, and canceling the deed issued to appellant. A lien was declared upon said land in favor of appellant in the sum of $27.40.

In the agreed statement of facts is the following: “It is agreed that the notice attached to the complaint as Exhibit C is a correct copy of a notice appearing in the files of said cause. It is likewise agreed that the record shows that a proof of publication was filed in said cause, and that the copy of proof of publication attached to plaintiff’s amended complaint as Exhibit C-2 is a correct copy of the same. It is also agreed that the list of lands named in said proof of publication is the same as that contained in the notice aforesaid, and that the lands here involved are not mentioned nor described in either said notice or said proof of publication.”

Several interesting questions are discussed by able counsel for both parties. We find it unnecessary to discuss but one of them. It is undisputed that the notice published in the Stuttgart Arkansawyer, proof of publication of which was found among the papers on file in the case, failed to include the above-described land, and it is conceded that this suit is a collateral attack on the decree of the chancery court of January 5, 1926, condemning said land to sale for the unpaid drainage district taxes. It is earnestly insisted by appellant that the finding in said decree that notice had been given for the time and in the manner prescribed by law is conclusive as to the jurisdiction of the court, and that no extrinsic evidence is competent to contradict it on collateral attack. Section 6239, Crawford & Moses’ Digest, provides: “In all cases where it appears, from a recital in the records of any such court, that such notice has been given, it shall be evidence of such fact.” It has been many times held that in determining whether a domestic judgment, collaterally attacked, is void for want of notice, it must be done by the court on an inspection of the record only. Boyd v. Roane, 49 Ark. 397, 5 S. W. 704; McDonald v. Ft. Smith & W. R. Co., 105 Ark. 5, 150 S. W. 135. In the latter case it was said: “In a case seeking to impeach collaterally a domestic judgment, the question as to whether or not process has been served in the manner prescribed by law, upon the. parties defendant therein is tried alone by an inspection of the record, and the verity of such record cannot be assailed by parol evidence. ’ ’

The reason for the rule is that judgments and decrees ought to and do import verity and stability, and, as said in Boyd v. Roane, supra: “It is generally thought to be better that the doctrine that the record importing absolute verity should work an occasional hardship than that public confidence should be shaken in the stability of judicial proceedings by suffering them to be lightly overturned; and for this reason the weight of authority in the case of a domestic judgment collaterally attacked is that the question of notice or no notice must be tried by the court upon an inspection of the record only.”

On the other hand, as has been frequently held, if the record contradicts the finding of service or notice in the decree, the record stultifies itself, and the decree is overcome. In § 273, Black on Judgments, it is said: “But while it is inadmissible to contradict the record by extrinsic evidence, it is always open to the party to show that one part of the record contradicts another part. Thus the recital of service in a judgment may be contradicted by producing the original summons and the return. See also State ex rel. Atty. Gen. v. Wilson, 181 Ark. 683, 27 S. W. (2d) 106; Holt v. Manuel, 186 Ark. 435, 54 S. W. (2d) 66. In the case of Giese v. Jones, 185 Ark. 548, 48 S. W. (2d) 232, it was held that, although the decree recited that publication of the notice as required by law was given, still, if the decree itself contradicted such finding, it was open to collateral attack. In Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158, it was again held that every presumption in favor of the jurisdiction of the court and the validity of the judgment is indulged unless it affirmatively appears from the record itself that facts essential to the jurisdiction are lacking, and that a judgment or decree entered upon constructive service by publication is upon an equal standing with a judgment upon personal service, and it was there said: “The affidavit in proof of the publication of the notice of pendency of-the suit is not a part of the record, however, from which it can be shown that there was want of jurisdiction by the court rendering the decree, no mention or recital of such proof of publication being found therein. ’ ’ In other words, in that case the decree failed to identify the service or notice that was published, but was couched in the following general terms: “Upon call of this cause, it appearing that all persons and corporations having or claiming interest in any of the lands hereinafter described have been fully and constructively summoned as required by law, and that said interested persons and corporations come not but make default. ’ ’

The finding in the case at bar in the foreclosure decree is entirely different. It particularly identifies the manner of service in the language above set out. It names the newspaper in which the notice was published and the length of time it was published and further recites that the cause was submitted to the court upon the complaint, the delinquent list and “the proof of publication of the notice aforesaid.” We think this is sufficient identification of the notice and proof of publication in the decree itself to make it a part of the record of the proceedings in this cause, arid, while there is a general finding of due and proper service upon all the owners of said lands, it is limited by the terms of the decree itself when it undertakes to describe the means and manner of service by publication of the notice in a certain newspaper and by stating that the cause was submitted upon the proof of publication of said notice. The statute under which the notice was attempted to be given, § 3631, Crawford & Moses’ Digest, requires that the notice shall contain a list of supposed owners with a descriptive list of delinquent lands and the amount due thereon from each. Since the notice as published failed to describe appellee’s land, the court was without jurisdiction to condemn it for sale, and therefore correctly canceled it, unless, indeed, there is a presumption that some other or different notice was published. We think there is no room for any such presumption in this ease. The suit was filed December 4, 1925, and the decree was had January 5, 1926. Within that time it would not have been possible for a new publication to have started and been completed before the decree.

The decree of the court was therefore correct, and must be affirmed.

Johnson, C. J.,

(dissenting). I cannot agree with the majority opinion. In my opinion the effect of the majority opinion is to overrule a line of decisions which are-now considered rules of property in this State. The majority opinion is to the effect that the solemn recitals of a judgment or decree may be contradicted by an affidavit. This is not the law and has never been, in my opinion.

The decree in this case reads as follows: “That due and proper service has been had upon all the owners of said lands and real estate hereinafter described by means and reasons of the publication of a notice of the pendency and purpose of said suit as is required by law, which notice was published for four consecutive weekly issues in the Stuttgart Arkansawyer, a newspaper of bona fide circulation in the Northern District of Arkansas County, etc.”

The majority opinion advances the novel statement that, since the court found that the notice was published by the Stuttgart Arkansawyer, therefore any affidavit or proof of publication filed by the Stuttgart Arkansawyer is conclusive evidence of the manner of service.

The effect of the majority opinion is that, the solemn recitals of this decree in a court of general jurisdiction may be overturned, contradicted and nullified by an affidavit attached to a publication. This assumption is based only upon the fact that the name of the newspaper which published the notice happens to appear in the decree. The question as to whether or not proper service was had in this case was purely and only a question of fact for the trial court to determine, and the mere fact that the decree recites that the notice was published in the Stuttgart Arkansawyer should not open the flood gates and tear down, nullify and contradict solemn judgments and decrees of. courts of general jurisdiction. The only effect of naming the newspaper in which the publication was published is to name the witness who effected the proof of publication. Certainly, this court would not permit the publisher of this newspaper to now make an affidavit that the Stuttgart Arkansawyer did not publish any such notice and thereby contradict, nullify and destroy the solemn recitals of this decree. If this court would not permit this procedure, then why it will permit the decree to be contradicted by an ex parte affidavit made and filed in said cause is beyond my power of comprehension.

Concededly, this is a collateral attack upon the decree of the court of superior and general jurisdiction.

In the case of McDonald v. Ft. Smith & W. Ry. Co., 105 Ark. 5, 150 S. W. 135, this court, quoting from the third paragraph of the syllabus, said: “In the case of a domestic judgment collaterally attacked, the question of notice or no notice must be tried by the court upon an inspection of the record only; and where a judgment recites that the defendants were duly served with summons as required 'by law, it must be taken as true unless there is something in the record to contradict it. ”

In the McDonald case just cited it was a collateral attack upon the judgment of the circuit court condemning certain lands for right-of-way purposes, The appellant in the suit offered to show by an agreed statement of facts that “Ella Hare was, at the time of the institution of such condemnation suit, and has been continuously ever since that time, a person of unsound mind.” The trial court refused to admit this evidence in contradiction of the record. The court held that this testimony was not admissible for the purpose, of contradicting the recitals of the judgment to the effect that due and proper notice had been given.

It was also insisted in the McDonald case that the record did not disclose that any answer was filed or a defense made by the guardian of the insane person, and that the record affirmatively showed that an answer was only filed by the defendant Mat Dray, administrator. This court in disposing of that contention said: “Omission to appoint a guardian does not impair the authority of the court to proceed in the case, but at most is an irregularity in the exercise, of its lawful jurisdiction which on settled principles of law may impregnate its judgment with error, but cannot render it absolutely null. The effect of the omission to appoint a guardian ad litem for one laboring under legal disability, therefore., will not be to vitiate the judgment on collateral attack, but to make it voidable only by appeal, or other direct proceeding.”

In the case of Price v. Gunn, 114 Ark. 551, 170 S. W. 247, this court, quoting from paragraph one of the syllabus, said: “In a decree, ordering the sale of land in an action foreclosing a tax lien, the recital of facts necessary to the court’s jurisdiction are conclusive upon a collateral attack.”

In the same case, reading from the fourth section of the syllabus, this court said: “In an action attacking a decree, collaterally for want of jurisdiction, the affidavit in proof of the publication of the notice of the pendency of the suit is not a part of the record from which can be shown a want of jurisdiction in the court rendering the decree. ’ ’

In the Price case, the decree in the foreclosure proceedings which was collaterally attacked, reads as follows: “Upon call of this case it appearing that all persons and corporations having or claiming- interest in any of the lands thereinafter described have been fully and constructively summoned as required by law, and that said interested persons and corporations come not but make default.”

In the statement of facts this court said: “Appellee attempts to show in this, an entirely different proceeding, that the judgment of the court condemning the lands to sale for payment of the delinquent taxes was without jurisdiction for failure to give notice of the pendency of the suit by publication as the law requires, notwithstanding the recitals of the decree that such notice had been duly given, by introducing what purported to be an affidavit in proof of the publication of such notice, showing only that it was published two times instead of four, as the statute provides.”

In reference to this the court held: ‘ ‘ The affidavit in proof of the publication of the notice of the pendency of the suit is not a part of the record, however, from which it can be shown that there was want of jurisdiction by the court rendering the decree, no mention or recital of such proof of publication being found therein. Another affidavit or other proof of the publication than the one presented here could have been filed in the other case, and it is conclusively presumed, as against this collateral attack, that the notice was published and that all persons interested were, as the decree recites, “duly and constructively summoned as required by law.”

In the case of Fiddyment v. Bateman, 97 Ark. 77, 133 S. W. 192, this court held: “Where an overdue tax decree recited that due notice was given by publication of warning order as required by law, it will be presumed on collateral attack that due notice was 'given, though the proof of the warning order was defective in failing to show that the newspaper in which the publication was made had a bona fide circulation in the county and had been regularly published therein for one month before the date of the first publication of the warning order, and was also defective in failing to show the date of the second insertion of the warning order. ’ ’.

Numerous .decisions of this court might be cited establishing the rule as stated in these cases. This court squarely decided that the affidavit in proof of publication of the notice of the pendency of the suit is not a part of the record which can be looked to in determining whether or not the court acquired jurisdiction of the subject-matter. If the recitals of the decree cannot be contradicted by the affidavit in proof of the publication, it is difficult to conceive just how such affidavit may be used in this case, to contradict the solemn recitals of the record. It is my opinion that the effect of this majority opinion is to overrule the case of Price v. Gunn.

Next it is sought to uphold the decree of the trial court in this case on the doctrine announced in Giese v. Jones, 185 Ark. 548, 48 S. W. (2d) 232. The decree attacked collaterally in this case provided: ‘ ‘ The first publication thereof was made on the 22d day of October, 1925; the second on the 29th day of October, 1925, the third on the 5th day of November, 1925, and the last on the 12th day of November, 1925.”

“In the decree rendered in the suit brought by the commissioners of District No. 7 it is recited that the notice was published -October 22, 1925, October 29, 1925, November 5, 1925, and November 12, 1925.
“It thus appears, from the face of these decrees, that the four weeks’ notice required bylaw had not been given in any case when the decree of sale was rendered.”

The decree collaterally attacked in Giese v. Jones was rendered by the court on November 14,1925, and the last publication of the fourth notice occurred on November 12, 1925; therefore, it appeared from the fact of the decree itself that the notice was invalid which rendered the decree a nullity according to its own recitals.

By no stretch of imagination can it be said in the instant case that the Giese v. Jones case is authority therefor. I heartily agree that Giese v. Jones was rightly decided.

This court in the case of Clay v. Bilby, 72 Ark. 101, 78 S. W. 749, held: “If the decree or judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the court to sustain its finding as to the publication of notice.” The majority opinion in this case is squarely in the teeth of Clay v. Bilby, just cited.

This court in the majority opinion in effect holds that, since the decree states that the publication was made in the Stuttgart Arkansawyer, no presumption will be allowed that any other or different evidence was produced or that the fact was otherwise than as stated in the decree. This seems to have -been the doctrine announced by the Supreme Court of the United States in Settlemier v. Sullivan, 97 U. S. 444; but this court did not follow the case referred to, but on the contrary distinguishes between the two by using the following language: “But this is not true in case of service by publication. In that case, no statute forbidding, parol evidence may be received to prove publication of notice; and, if the decree of judgment does not exclude the conclusion, the presumption is that sufficient and competent evidence was before the. court to sustain its findings as to the publication of notice.” Clay v. Bilby, supra.

This court in Shaw v. Polk, 152 Ark. 18, 237 S. W. 703, quoting from the third paragraph of the syllabus, held: “A recital in a decree that the defendants had been duly served with summons cannot be contradicted in a collateral attack by proof to the contrary. ’ ’

This court held in Road Improvement Dist. No. 4 v. Ball, 170 Ark. 522, 281 S. W. 5, quoting from the second paragraph of the syllabus: “Objection to the jurisdiction of a court of superior jurisdiction which does not appear on the face of the record is not available in a collateral attack, but only on appeal.”

The majority are perfectly willing to accept as true the statement in the decree that the notice was published in the Stuttgart Arkansawyer, but unwilling to accept as true the other recitals in the decree to the effect that the notice was published in the form and manner required by law; they permit an ex parte affidavit to contradict and nullify this recital in the decree. It is immaterial whether or not this notice was published in the Stuttgart Arkansawyer; it is immaterial who made the affidavit in the proof of publication. This court should conclude that the trial court had before it legal and competent testimony to establish the facts recited in the decree.

The great weight of American authority is that the recitals of a judgment or decree of a court of superior jurisdiction are conclusive except when directly attacked. See case note 68 A. L. R. 390.

Suppose the decree collaterally attacked in this case had provided “that service was had by publication in the form and manner required by law,” and it was ascertained by evidence that but one newspaper was published in the county, and that this newspaper denied by affidavit that it had published the notice. Would this court hold that the decree could be contradicted and nullified in this manner? I think not, but in effect this is exactly what this court is now holding. I conceive the settled law of this State to be that on collateral attack a judgment or decree in its recitals as to jurisdictional matters is conclusive unless it appears from the face of the decree that it is a nullity.

No Arkansas case is cited in support of the rule now announced by this court, and I am sure that we are now departing from an established rule which has become a landmark in judicial construction and interpretation which almost amounts to a rule of property.

For these reasons I respectfully dissent.


author: McHaney, J.

text:
    Haydel v. Widow’s Fund of Sahara Temple.
    4-3001
    Opinion delivered May 1, 1933.

      A. M. Coates, for appellant.

      Coleman & Gantt, for appellee.
   McHaney, J.

M. L. Case was a member of Sahara Temple, an organization of Shriners in Pine Bluff, Arkansas. He was also a member of the Widow’s Fund, a beneficiary organization open to members of the Shrine. As such member, he was issued a certificate, and, under the bylaws, it was provided that upon his death in good standing the sum of $1,000 should be paid to the beneficiary named in said certificate. Charles E. Case, the only child of M. L. Case, was named his beneficiary therein and died September 6, 1931, leaving surviving him the appellant as his only child and heir by law. M. L. Case died April 4,1932, but, prior thereto and subsequent to the death of his son, Chas. E., he made a will leaving all his property to appellant and to his sister, Mrs. Erminnie Loetzerich, share and sharé alike. Under the bylaws of the Widow’s Fund, a member might change his beneficiary at will, and, although Mr. Case discussed the matter of change of beneficiary with the secretary of the Widow’s Fund, he never actually did so, unless his Avill executed in the presence of said secretary may be said to be a change of the beneficiary. Under the will Mrs. Loetzerich was appointed executrix, 'but, after having qualified, she resigned, and the appellee, Simmons National Bank, was appointed executor in succession. On the death of Mr. Case the Widow’s Fund of Sahara Temple was uncertain as to whom the $1,000 should be paid, and therefore brought its interpleader suit in the Jefferson Chancery Court, paid the fund into court and prayed that the true OAvner be ascertained, the fund paid to such owner and it be discharged. Both appellant and the Simmons National Bank answered the interplea claiming the fund, and the court entered decree awarding the fund to the executor.

We think the WidoAv’s Fund- of Sahara Temple must be considered as a mutual benefit association and the rights under the certificate as if it were a 'beneficiary certificate issued by such association. In 7 Cooley’s Briefs on Insurance 6410, it is stated: “The beneficiary in the certificate issued by a mutual benefit association, in which the member is given full poAver to direct the disposition of the benefit and to change the beneficiary, has no vested right in the contract of insurance evidenced thereby, as the contract is between the association a'nd the member to whom the certificate is issued, and not between the association and the beneficiary named in the certificate. ’ ’

Charles E. Case therefore did not take any vested interest in the certificate, and whatever expectancy he had in the certificate terminated at his death. Therefore, unless a new beneficiary had been designated by the member, M. L. Case, the proceeds of the certificate were payable to his estate on his death and therefore to his administrator. We have many times held that “when the beneficiary in a policy of life insurance unlawfully kills the insured, public policy prohibits a recovery by him, and that the amount of the insurance automatically becomes an asset of the deceased’s estate, to be recovered by the administrator for the payment of debts and distribution to the heirs.” Cooper v. Krisch, 179 Ark. 952, 18 S. W. (2d) 909, and cases there cited. Moreover the will executed in the presence of the secretary of the Widow’s Fund might be said to be a new designation of beneficiary, as under § 4 of the bylaws of the Widow’s Fund it is provided that “such beneficiary may be changed by notifying the secretary, in writing, of the new beneficiary.” The secretary was so notified in writing by the will to which he was a witness.

Affirmed.


author: Johnson, C. J.,

text:
    Home Indemnity Company of New York v. Jelks.
    4-3006
    Opinion delivered May 8, 1933.

      Buzbee, Pugh & Harrison and Dudley & Barrett, for appellant.

      Basil Baker, for appellee.
   Johnson, C. J.,

(after stating the facts). But one question is presented in this appeal for determination, namely: Did the trial court err in refusing to direct a verdict for appellant?

We think that, under the terms of the policy of insurance sued on in this case, when appellee produced facts and circumstances in testimony showing, or tending to show, that the safe was forcibly broken and entered, and that loss was sustained by reason thereof, this made a prima facie case on behalf of appellee, and the burden then shifted to appellant to show by testimony that the burglary was effected by manipulating the tumblers or lock, which would exempt it from liability.

In brief and oral argument it is insisted on behalf of appellant that the testimony of the two expert witnesses, Johnson and Linzel, is reasonable, consistent and unimpeached, therefore that the trial court should have, as a matter of law, so advised the jury.

Let’s see. This court held in Tatum v. Mohr, 21 Ark. 349, quoting from a headnote of the opinion:

“It is competent for witnesses skilled in the science ' and practice of medicine to give their opinions to the jury on questions involving the soundness of a slave, in relation to the disease with which he was afflicted, its character, etc., but the jury are the judges of the weight to be attached to their opinions. ’ ’

Again, this court held in Arkansas S. W. Ry. Co. v. Wingfield, 94 Ark. 75, 126 S. W. 76:

“It is for the jury to determine what value his opinion is entitled to under the circumstances, and to give it such weight as they think it deserves.”

It is evident from previous decisions of this court that it is the exclusive province of the jury to determine the value and weight to be given the testimony of expert witnesses, and the jury is authorized to believe or disbelieve the whole or any part of such expert witnesses’ testimony.

The jury, in the exercise of their exclusive province in this case, has determined to disregard the testimony of the expert witnesses, therefore we cannot, as a matter of law, say that they should not have done so. To do so would overrule the cases hereinabove cited, and we are unwilling .to do this.

No error appearing, the judgment of the trial court is affirmed.


author: Smith, J.

text:
    Futrall v. McKennon.
    4-2945
    Opinion delivered May 8, 1933.

      Harry T. Wooldridge, for appellant.

      I. N. Moore and Henry W. Smith, for appellee.
   Smith, J.

When the receiver, appointed for that purpose, took over the National Bank of Arkansas, of Pine Bluff, for liquidation, he found, among its assets, a note dated February 14, 1930, executed by C. R. McKennon & Son to the order of Walter C. Hudson, who had been president of the- bank. Hudson had sold the note to the bank for its face value, less a discount of six per cent, to its due date, and had received credit on his deposit for the proceeds of the note. The receiver demanded payment of the note, but the makers refused to pay unless a certain credit was allowed, which, being refused, resulted in this suit.

Two defenses were interposed, the first being that, the president of the bank having full knowledge of the circumstances under which and the consideration for which the note had been executed, the bank was bound by his knowledge. This defense passed out of the case under the authority of Bank of Hartford v. McDonald, 107 Ark. 232, 154 S. W. 512, where it was held that, when an officer of a bank is individually interested in a note, his knowledge concerning it is not to be imputed to the bank, when his acts conflict with the interests of the bank.

The note was transferred by Hudson to the bank by delivery and without indorsement, and the second defense, which was predicated upon that fact, is this: Hudson rented his farm to McKennon & Son for the year 1930 for $1,500. Under the rental contract, which constituted the consideration for the note, it was agreed that the tenants should have credit for necessary repairs, including damage done by fire. Hudson advised his tenants that the buildings on the farm were insured against loss by fire, and directed that he be notified if such loss occurred. Two buildings burned, and Hudson was advised of that fact, and directed his tenants to rebuild them. This was done, and the cost thereof, with certain smaller items for repairs, constitute the credits which the makers of the note demanded be allowed before paying the balance due on the note.

There was a finding for defendants, and judgment accordingly, and for the reversal thereof it is insisted that this defense is not available against a transferee of the note. No other question is presented for decision.

It was held in the case of Funk v. Young, 138 Ark. 38, 210 S. W. 43, that a receiver of an insolvent bank is not an innocent purchaser of its notes, and takes them subject to any equities that could be asserted against the baiik itself.

To decide the question stated, it is necessary to consider certain sections of the Uniform Negotiable Instruments Act, approved February 21, 1913 (Acts 1913, page 260), appearing as parts of the chapter on Negotiable Instruments in Crawford & Moses' Digest.

By § 7796 of this chapter, it is provided that an instrument, if payable to order, is negotiated by the indorsement of the holder completed by delivery; and $ 7797 of the same chapter provides that the indorsement must be written on the instrument itself or upon a paper attached thereto.

Section 7815 of this chapter reads as follows: “Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee' is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.”

Section 7824 of the same chapter reads as follows: “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non.-negotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to the latter.”

It was held in the case of Harrison v. Morgan-Curry Co., 115 Ark. 44, 150 S. W. 117, that one who takes a negotiable note payable to order by delivery merely, but without written indorsement, is not an innocent purchaser, and takes the note subject to all equities existing between the original parties. This holding was reaffirmed in the case of Johnson v. T. M. Dover Merc. Co., 164 Ark. 371, 261 S. W. 913, and the later case of Shultz Construction Co. v. Crawford County Bank, 182 Ark. 569, 32 S. W. (2d) 177.

Appellant argues, for the reversal of the judgment appealed from, that the doctrine of set-off was unknown to the common law, and that no provision is made therefor in the Negotiable Instruments Law in effect in this State, and that our set-off statute has no relation to suits on promissory notes except where there exists some inherent defect in the note itself, and that, as the makers could not maintain an independent action by separate suit against a transferee of the note for their claim for the expenditures for the repairs, they cannot, in a suit on the note against them by the transferee, set np these expenditures by way of a set-off.

We do not concur in this view. Act 267 of the Acts of 1917 (vol. 2, Acts 1917, page 1441) is the most comprehensive legislation on the subject of counterclaim and set-off of which we have any knowledge. It is there provided that a counterclaim “may be any cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them,” and that “A set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort.”

We think this statute is sufficiently broad to admit a defense against one, not being the holder of a note in due course, that there were credits which should be applied against the note.

Appellant cites as sustaining his position the case of Harris v. Esterbrook, decided by the Supreme Court of South Dakota and reported in 55 S. Dak. 538, 226 N. W. 751, and which, he says, is on all fours with the instant case. This is a well-considered case, and is followed by an extensive annotation in 70 A. L. R. 241.

In the case just cited a bank sold the note of a depositor, payable to its order, to the purchaser by delivery and without written indorsement. After the bank had been taken over by the State Superintendent of Banks for liquidation, its transferee sued the maker of the note, who sought to set off against the note the amount of his deposit in the bank on the day it closed its doors. The opinion refers to several sections of the Uniform Negotiable Instruments Act of that.State which are identical with our own, but it quotes also § 2307, Rev. Code 1919, of that State, which reads as follows: “In case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration, before due.” We have no statute containing any such limitation on set-offs or counterclaims.

Referring to the manner in which the note had 'been transferred, the court there said: “It is also well established that such a transferee, whether his title be legal or equitable, takes title subject to equities and defenses. The apparent unanimity on this point is as marked as the lack of unanimity as to the time when such equities and defenses may accrue.”

The opinion recites that on the day the note matured the maker had on deposit with the bank more than sufficient funds to pay the note, 'but it is recited also that he did not use the deposit for that purpose. The opinion recites that the maker’s balance on the date the bank sold the note was only $7.94, but it was said: “It is not necessary therefore to decide whether the $7.94 was a valid set-off between appellant [purchaser] and respondent [maker]; because the deposit balance on the day of transfer was entirely withdrawn.” The- opinion had quoted cases holding that “the defense of set-off or counterclaim which is available to a debtor as against an assignee of a creditor must have existed as a present right when the assignment was made,” and construed § 49 of the Negotiable Instruments Law of that State, which is identical with § 7815, Crawford & Moses’ Digest, as meaning that “* * * the set-off that may be interposed against a negotiable promissory note transferred without indorsement, in good faith, and for value, must be a set-off which existed as a present right when the transfer was made.”

The effect of the decision in that case is that, there being no right of set-off at the time of the transfer, that right could not subsequently be acquired.

Certain cases are cited by appellant which apparently support his contention, but a careful analysis of them discloses the fact that they originated in States having statutes which impose limitations on the right of counterclaim and set-off somewhat similar to those at common law, which do not prevail in this State, and for this reason we do not review them.

The annotator’s note to this South Dakota case contains a declaration of law, in support of which many cases are cited, reading as follows: '“ The cases seem to be unanimous in holding that a set-off or counterclaim between the maker and the payee of a negotiable instrument is available against one not a holder in due course, where the set-off or counterclaim arose out of the same transaction as the instrument itself and existed at the time of the transfer by the payee.”

This declaration of the law is itself decisive of this case. The consideration for the note here in suit was.the rental contract between Hudson and C. R. McKennon & Son, and this contract was that the McKennons should pay, as rent, the sum of $1,500, less the cost of repairs. It is true these repairs had not been made when the note was executed, but- it is true also that it was executed in contemplation that such repairs would be made and that the cost thereof would be credited on the note. The credit claimed arose out of the same transaction as the note itself, and the right thereto, when the repairs had been made, existed at the time of the transfer of the note to the bank.

The credit was therefore properly allowed, and the judgment allowing it is affirmed.


author: Kirby, J.,

text:
    Smallwood v. Pettit-Galloway Company.
    4-2990
    Opinion delivered May 8, 1933.

      Verne McMillen, for appellant.

      W. R. Donham, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in not finding her entitled to a deduction from the price for materials and installation of the waterworks system in the residence as indicated in her statement of the amount required to put it in a usable condition with the purchase of the larger tank as shown to be necessary for its practical operation.

Appellee examined the. premises and determined what materials were necessary to be furnished and did the work of installation of these material's into the waterworks system, guaranteeing it should be done in a workmanlike manner, and the warranty was necessarily implied that the materials used would be reasonably fit for the purpose for which they were intended, appellee knowing when the proposal was made that appellant had no information about such materials and the construction of the plant, and that she was necessarily relying upon the. judgment of appellee for the right materials to be furnished and the work properly done in order to supply and distribute the water through said system.

The law implies that, where chattels or machinery are sold for a particular purpose and the purchaser knows nothing about such materials or their use, he necessarily relies on the judgment and good faith of the vendor that the articles purchased are reasonably fit for the purpose for which they are intended, the law implying the warranty that they are of such character. McCaskey Register Co. v. McCurry, 181 Ark. 649, 26 S. W. (2d) 1108; Dyke v. Magdalena, 171 Ark. 225, 283 S. W. 374; Western Cabinet & Fixture Co. v. Davis, 121 Ark. 370, 181 S. W. 273.

When there is an agreement that the work, for which the materials were agreed to be and are furnished by the contractor, shall be completed in a workmanlike manner, it covers not only the construction and installation, but also the system used to accomplish the result desired and contracted for. There was a waterworks system to be installed by appellee on premises that had already been inspected by it for distributing- and carrying water for domestic use throughout the premises from a well already dug, and the contractors are bound to the construction of such a system under the agreement that it shall be done in a workmanlike manner, and will, upon completion, give reasonably good and satisfactory service, since he knew what was to be done, the result to be accomplished, and that the manner or method of accomplishing the desired result was left to his judgment, knowledge and experience. The law will import into the contract an implied agreement that the waterworks or system of distributing the water will be proper and suitable for the purpose for which it was designed, namely, the proper distribution of the water through the house and premises, it being a contract for the doing of certain work to accomplish certain results. Miller v. Winters, 144 N. Y. Supp. 351.

The testimony shows that the materials for construction of the waterworks were suggested and selected by appellee, who was familiar with the construction of such systems, and appellant had as much right to expect reasonably satisfactory service from this plant when it was completed as though it had already been completed and sold to appellant for such use as it was proposed to be put to in its construction under the contract. The testimony shows the service rendered was not reasonably satisfactory because of either wrong construction or the wrong selection of materials for construction by the appellee, who was experienced in such matters and had the sole selection of materials to be used, knowing that appellant was altogether unfamiliar with such matters.

The preponderance of the testimony discloses that the waterworks as constructed by appellee were inadequate, and did not distribute the water throughout the premises as appellant under her contract had the right to expect would be done; and that appellee was notified of this fact, and finally, not remedying the condition, appellant had to install certain other machinery, tanks, etc., for securing the service she was entitled to expect under the contract made.

The chancellor erred in not allowing her credit on the contract price for the cost of the larger tank and the installation thereof, which should have been deducted from the contract price. The cause therefore must be reversed, and it will be remanded with directions to allow the credit of appellant for $243.51 and render judgment for the balance due under the contract, $362.83. It is so ordered.


author: Mehaffy, J.

text:
    Tarleton Drainage District No. 15 v. American Investment Company.
    4-2987
    Opinion delivered May 8, 1933.

      Ingram & Moher, for appellant.

      G. W. Botts, for appellee.
   Mehaffy, J.

This is the second appeal in this case. The opinion on the first appeal is reported in 186 Ark. 20, 52 S. W. (2d) 738. The facts are stated in that opinion, and it is unnecessary to restate them here.

The suit, as originally brought, was for tax, penalty and interest. The answer filed denied the material allegations in the complaint, denied that the lands were included in the drainage district, and denied that there were any assessments or taxes due on the lands.

The chancery court held that no proper notice was given, and that the county court had no jurisdiction to annex the lands, and dismissed the complaint of the drainage district for want of equity. The drainage district appealed to this court, where the decree of the chancery court was reversed, and the cause remanded for further proceedings.

At the trial in chancery court after the cause was remanded, a decree was entered declaring a lien on the lands for the delinquent assessments and costs, providing for a sale of the lands if assessments and costs were not paid, and giving a judgment for attorney’s fees, hut not allowing any penalty or interest.' This appeal is prosecuted to reverse the decree finding against appellant as to penalty and interest.

Section 3631 of Crawford & Moses’ Digest provides for the payment of taxes in drainage districts, and further provides that, if the taxes are not paid at maturity, the collector shall report such delinquencies to the commissioners of said district, who shall add to the amount of the tax a penalty of 25 per cent., and shall enforce the collection by chancery proceedings in a court of the county in which the lands are situated having chancery jurisdiction, and said court shall have judgment against said lands for such taxes, said penalty of 25 per cent, and interest on the same.

The judgment of this court on former appeal is the law of the case and is conclusive of every question decided on the former appeal. Shackleford v. Ark. Baptist College, 183 Ark. 404, 36 S. W. (2d) 78; American Co. of Arkansas v. Wheeler, 183 Ark. 550, 36 S. W. (2d) 965; City of N. Y. Ins. Co. v. American Co. of Ark., 184 Ark. 426, 42 S. W. (2d) 757; Childs v. Motor Wheel Corp., 164 Ark. 149, 261 S. W. 28; Jeffett v. Cook, 175 Ark. 369, 299 S. W. 389.

The complaint in the original case was for taxes, penalty, attorney’s fees and interest. The main contentions of the appellee in the court below on the first trial were that the lands in controversy were not included in the district, and that the law was not complied with in extending the district so as to embrace these lands. If the lands were not within the district, of course there would he no taxes, penalty, attorney’s fees, nor interest. On the other hand, if the lands are properly within the district, then it follows of course that the taxes, penalty, attorney’s fees and interest are due.

This court reversed the case and remanded it for further proceeding's in accordance with the principles of ecpiity and with the opinion. That necessarily meant that the lower court should enter a decree for the taxes, penalty, attorney’s fees and interest.

When this case was here on former appeal, it was reversed and remanded as we have said, and that meant that the decree as a whole was reversed. “We were speaking- of the decree as a whole, and not that part only which referred to the finding of the trial court with reference to the Standard Shingle Company. The trial court found that the complaint of Gross and Shields should he dismissed for want of equity. That part of the decree was reversed as well as that part relating to the Shingle Company. For, as we have stated, the decree was reversed as a whole and not in part. If it had been the purpose of this court to reverse the decree in part and affirm in part, we would have expressly so declared and indicated that part which was affirmed, and that part reversed, and given directions accordingly. By declaring that the decree is therefore reversed, and directing the trial court to render a decree in accordance with this opinion, we intended, and the language necessarily means, that the trial court should understand that its entire decree was erroneous, and that a decree should be entered by it accordingly, in effect changing and reversing its former decree in toto.” Berry v. Gross, 172 Ark. 1084, 291 S. W. 801.

In the instant case the decree was reversed, and the cause remanded with directions to enter a decree in accordance with the opinion of this court. That necessarily means a finding that the lands are -within the district, and that the taxes, penalty, attorney’s fees and interest are due.

The appellee prosecutes a cross-appeal to reverse that portion of the decree allowing attorney’s fees.

Section 2 of act 506 of the Special Acts of 1923 reads as follows: “The attorney filing or bringing said suit shall receive a fee not exceeding 10 per cent, of the first $500 of taxes collected by such proceedings, and 5 per cent, on all additional sums up to $5,000 and 3 per cent, on all other sums so collected and that same be taxed as costs and apportioned against the several tracts in proportion to tax thereon. No suit for the collection of such delinquent taxes shall be brought after three years from date same became delinquent.”

It follows from what we have said that the decree must be affirmed on cross-appeal, and reversed on appeal with directions to enter a decree in accordance with this opinion.


text:
    Holmes v. Metropolitan Life Insurance Company.
    4-2903
    Opinion delivered April 10, 1933.

      Sam T. Poe, Tom Poe and Donald Poe, for appellant.

      Moore, Gray & Burrow, for appellee.
   Johnson, C. J.,

(after stating the facts). "We think the trial court erred in giving to the jury appellee’s instruction No. 1, which is copied in the statement of facts.

This instruction told the jury that: “even though you may find from a preponderance of the evidence that the plaintiff is partially disabled, and even though you find that he has lost his eye entirely, and that by reason thereof his efficiency in the prosecution of an}? work or the pursuit of any occupation for which he may be fitted by training and experience is thereby impaired, nevertheless it does not follow from this that such partial disability entitles him to recover on the $2,000 certificate and its accompanying group policy, etc.”

The effect of this instruction was to tell the jury that the loss of appellant’s left eye was only a partial disability. This was one of the controverted issues in the case. It was a question for the jury to determine whether or not the loss of an eye constituted total and permanent or partial disability.

Section 23, article 7, of the Constitution of this State provides: “Judges shall not charge juries with regard to matters of fact, hut shall declare the law, and in jury trials shall reduce their charge or instructions to writing on request of either party.”

The instruction given by the trial court and heretofore quoted was in violation of this constitutional mandate. It told the jury that the loss of an eye was partial disability, when this was a question of fact for the jury to determine.

If the loss of appellant’s left eye, or the impairment of the vision of his right eye, or the loss or impairment of any one of the other physical defects complained of by him, either singly or all concurringly, produced or effected a total and permanent disability, he would be entitled to recover. It was therefore reversible error to single out the loss of an eye and tell the jury that this was only a partial disability.

Furthermore, this instruction is erroneous for the reason that it emphasizes to the jury the fact that the loss of an eye is only partial disability under the clauses of the policies sued on, instead of submitting the loss of an eye with all other physical defects for consideration and determination of the jury.

In a long line of decisions by this court it has been held: “It is not the province of the court to instruct the jury upon the effect or weight of evidence. It is the exclusive province of the .jury to judge of the strength or weakness of all facts adduced to sustain an issue.” Keith v. State, 49 Ark. 439, 5 S. W. 880, and cases therein cited.

It is insisted on behalf of appellee that subsequent clauses in instruction No. 1 cured and made harmless the defect complained of in said instruction. To this we cannot agree. It was impossible for the jury to harmonize the different phrases in said instruction.

Since this case must be reversed and remanded for the error herein pointed out, we deem it unnecessary to discuss other alleged errors because it is probable that they will not occur on a retrial of the case.

For the error indicated, this case is reversed and remanded to the Pulaski County Circuit Court for a new trial in accordance with law.

Smith and McHaney, JJ., dissent.


author: Butler, J.

text:
    Bourland v. Coleman.
    4-3002
    Opinion delivered April 10, 1933.

      George W. Dodd and Daily & Woods, for appellant.

      W. L. Curtis, for appellee.
   Butler, J.

The city of Fort Smith operates under a commission form of government, as established by act No. 13 of the Acts of 1913 and as amended by act No. 3 of the Acts of 1917. The governing body consists of a mayor and two commissioners, and these, by the act as amended, also constitute the respective board of commissioners for each of the improvement districts in the said city. It is required that they shall cause to be kept the records of the money and revenues of each improvement district separate from the others, and separate and distinct from those of the city. It is also required that “each and every board of improvement district shall quarterly print in pamphlet form a detailed and itemized statement of the receipts and expenditures,” etc., to which report any taxpayer may within six months file exceptions in the chancery court, which there may he examined and disallowed as to any items found to be illegal with the right of appeal to the party aggrieved.

This action was instituted by taxpayers of Improvement District No. 3'5, and is grounded upon exceptions taken by plaintiff to certain items in two quarterly reports, one covering the period of October 1, 1931, to December 31, 1931, and the other from January 1, 1932, to March 31,1932. The complaint alleges the organization of the district, official capacity of the defendant, and charges illegal expenditure of funds which plaintiff alleged were collected for the purpose of paying interest and retiring bonds of the district. Various items were challenged, but the only item involved is $1, attorney fee, paid George W. Dodd, in the first report named above and a similar item in the second report. From a decree holding the two items improper charges against said district and adjudging a recovery thereof, this appeal is prosecuted.

It is the contention of counsel for the appellee that, from the record made in the case, the sole question presented is whether or not one-half of the salary of the city attorney can be paid out of the funds of the various improvement districts. He asserts that the appellant’s abstract of the record discloses that the salary of the city attorney is fixed by the city commissioners at $200 per month, one-half of which salary is paid by the city and one-half by the improvement districts, and that therefore, under our decision in Bourland v. Southard, 185 Ark. 627, 48 S. W. (2d) 555, the chancellor correctly found the items in question were illegal charges against the district and that their recovery should be had.

By § 8 of ordinance 1494 of the city of Fort Smith provision is made for a city attorney at a salary of $100 per month; and by § 14 of that ordinance, under that part relative to improvement districts, it is provided that the city attorney shall be legal adviser for the various improvement districts, for which services he shall receive the salary of $100 per month. The evidence is to the effect that the salary provided by $ 8 aforesaid was paid to the attorney by a city warrant drawn on the city treasury, and the $100 per month provided by § 14, supra, was prorated among the various districts upon a fair and equitable basis, and the part allocated to each district was paid ont of the funds of that district. The board of commissioners, acting for the improvement districts from time to time, would meet and make the necessary appropriations, including that of the proportionate part of the salary of the attorney. In order to show the manner in which this was done, the record book of District No. 35 was introduced, and the record of the meeting of its board of commissioners of date October 3,1931, was introduced and made a part of the evidence. It is as follows:

“Regular meeting of the board of Improvement Paving District No. 35. Hon. Fagan Bourland, chairman, presiding. Board met at 10:00 a. m.
“Members present: * * *
“The secretary reported the following collections for the month of September: * * *
“The following payroll for the month of September was approved and ordered paid: * * *. Geo. W. Dodd. $1.
“There being no further business, the meeting was declared adjourned”; signed by the chairman and secretary.

Mr. Dodd has served twice as city attorney, first for about two and a half years, including the year 1924, and to May, 1925; then again from April, 1929, until the present time. He organized district No. 35, drew the ordinance and supervised the selling of the bonds and letting of the contracts. He was paid for his services just as he is being paid now. After he went out of office as city attorney in 1925, he was not paid anything more until he became the city attorney again. During all this time he has not filed a claim against the district and has attended to all the legal business of the several districts without the aid of any other attorney. He has received from the beginning until now.for all his services as attorney for the districts $100 per month, allocated among them, and paid by check thereon, holding himself ready to perform, and performing all legal services necessary, including the enforcement of the collection of delinquent taxes. His method in this particular is to write a letter to the delinquent, giving about a month’s notice before filing suit. Under the statute, when suit is filed, a $3 fee is taxed against each tract as costs, which, under the plan pursued, is not appropriated by the attorney, but paid into the treasury of the respective districts. District No. 35 is still functioning, and since its organization the attorney has been paid for his entire services to it from its funds a total of $67.75.

The estimated cost of Improvement District No. 35 was $6.1,670, including $1,000 for legal and clerical expenses and, with the estimated interest, totalling $80,000. The authorized bond issue was $53,000 of coupon bonds with maturities beginning August 1, 1925, each year to and including August 1, 1934, and the total amount paid the contractor was $41,539.93.

The above is a fair summary of the pertinent facts, and, in our opinion, does not justify the conclusion reached by counsel for the appellee or sustain that of the court below; nor does it bring this case within the rule stated in Bourland v. Southard, supra. The court there stated: “The question for us to determine is whether the commissioners had the right to expend any of the funds of the improvement district to pay a part of the salaries of certain officers in the employ of the city or to expend the funds for any purpose other than the cost of construction, engineering and legal services.” In answering that question in the negative, the reason given by the court was that “the commissioners could not lawfully expend any money collected from the taxpayers except that which was necessary, as a part of the cost of construction. When Improvement District No. 11 was formed under the Constitution and laws, a majority of the taxpayers agreed to it. A majority must have consented in order to form a district. Under the law existing at that time they consented to assessments which were necessary in the cost of the construction of the improvement, and the taking or appropriating of any part of the assessments collected for any other purpose would be a violation of the Constitution.”

In the instant case, the facts are essentially different from those in the case cited, and the question presented is not that “suggested by counsel for the appellee, but, rather, can the commissioners of the city of Fort Smith, acting in their capacity as the board of the various improvement districts therein, employ an attorney with a continuing salary to represent the districts in all legal matters, fairly prorating the salary among the districts and employ the same person as city attorney, paying him for such services as the legal representative of the improvement district from the funds thereof, and for his services as city attorney from the city treasury?

The learned chancellor himself bears witness to the wisdom and fairness of the plan in the following words: “I feel sure you are saving the district money, and, if you can do it legally, it is a fine thing, but the question is, can you do it legally?” We agree with the chancellor’s estimate of the plan and think his question can be answered in the affirmative.

The board of improvement is clothed with the duty of conducting the affairs of the district and is impliedly vested with the power necessary for the proper administration of these affairs, and, under § 5656 of Crawford & Moses’ Digest, it is expressly impowered with the authority to employ whatever agents may be needed and to provide for their compensation, which, with all other necessary expenditures, shall be taken as a part of the cost of the improvement. The services of an attorney are necessary in the proper formation of an improvement district, the raising of funds to carry on the work and to attend to such litigation as might from time to time arise, and that such does arise we take judicial knowledge. Boards of improvement therefore have power to employ attorneys, and we can see no .just reason why an attorney who perchance may represent the city in which the improvement districts lie may not also represent the improvement districts. It could make no difference, although the. board of commissioners of the city is also the governing board of the district.

Act No. 233 of the Acts of 1931 makes the attorney representing cities of the second class and incorporated towns the attorney for all hoards and commissioners of improvement districts within the municipality, and providing for his compensation as may he agreed upon by the board of commissioners. While there is nothing in the act relating to cities of the first class, it registers the legislative approval of a plan similar to that employed by the city of Fort Smith as applicable to municipalities of lesser grade and indicates to our minds that the Legislature thought that for cities of the first class acting under a commission form of Government such as Fort Smith no such legislation was needed, as they already had that power, which we so hold..

It will be remembered that the actual cost of construction exceeded $40,000, and the authorized bond issue in District No. 35 exceeded $50,000. The taxpayers in forming the district recognized that a district of this character needs the services of an attorney and themselves determined their probable value, impliedly leaving to the commissioners to fix within the limit named the amount of the compensation and how and when it should be paid. It would make no difference, it appears to us, when or in what manner the fee was paid, so that it was reasonable and the services performed. It may be that the greater portion of the work of an attorney for an improvement district is performed during, and soon after, its creation, but, as suggested by counsel for the appellant, it is equally true that important legal questions may arise from time to time as long as the district functions, and litigation may arise of great importance to it and its taxpayers. Therefore the plan adopted by the city of Ft. Smith and its improvement districts appears to be both wise and lawful.

In the case at bar, as we interpret the facts, the commissioners had not expended any money of the improvement districts for paying its city attorney as such, but rather the items of expense questioned were paid to the attorney as the representative of the improvement districts, and these items were in the minds of the taxpayers when they consented to the formation of the districts, as it was contemplated and expressly provided that as much as $1,000 might be needed and used for legal and clerical expenses. Therefore, the rule stated in Bourland v. Southard, supra, that the “taking or appropriating of any part of the assessments collected for any other purpose” (than the necessary cost*of construction of the improvement) “would be a violation of the Constitution,” does not apply.

It follows from the views expressed that the trial court erred in decreeing that the items questioned (attorney’s fees) were improperly expended and that a recovery of the same should be had. The decree as to these items is therefore reversed, and the cause remanded with directions to dismiss the complaint as to these items. In all else the decree is affirmed. *


text:
    Ætna Life Insurance Company v. Davis.
    4-2971
    Opinion delivered April 17, 1933.

      James B. McDonough, for appellant.

      John P. Roberts, for appellee.
   Butler, J.

On January 6, 1932, Harvey A. Davis and Riley T. Davis brought suit to recover for total and permanent disability benefits against the .¿Etna Life Insurance Company on a policy issued by the company to Harvey A. Davis on July 11, 1925, in which Riley T. Davis was named as beneficiary. It was alleged that Harvey A. Davis became totally and permanently disabled by disease during the time the said policy was in full force. A breach of the contract was alleged, for which anticipatory damages were laid in the sum of $2,999, for which judgment was prayed.

The defendant company made answer, admitting the issuance of the policy, but denying that the plaintiff became totally and permanently disabled at a time when the policy was in effect, and alleged failure to pay the annual premium due July 11, 1930, when due or within the grace period; and, “by reason of such failure, the said policy wholly lapsed and became null and void on and after August 11, 1930.”

On the trial of the case under the evidence adduced, there was a verdict and judgment in favor of the plaintiff in the sum of $2,500.

The applicable part of the policy is as follows: “If, before default in payment of premium, the insured becomes totally and permanently disabled by bodily injuries or disease and is thereby prevented from performing any work or conducting any business for compensation or profit, the following benefits will be available :

“When such disability occurs before age sixty: A waiver of the payment of premiums falling due during such disability, and an income of ten dollars a month for each one thousand dollars of the sum insured payable to the life owner each month in advance during such disability.
“If, before attaining the age of sixty years, the insured becomes totally disabled by bodily injuries or disease and is thereby prevented from performing any work or conducting any business for compensation or profit for a period of ninety consecutive days, then, if satisfactory evidence has not been previously furnished that such disability is permanent,, such disability shall be presumed to be permanent. In such a case, benefits shall accrue from the expiration of the said ninety days, but not from a date more than six months prior to the date that evidence of such disability satisfactory to the company is received at its home office. No benefit shall accrue prior to the expiration of said ninety days unless during that period evidence satisfactory to the company is received at its home office while the insured is living that the total disability will he permanent, in which event benefits will accrue from the commencement of disability.”

Counsel for the defendant insurance company challenge the correctness of the ruling and judgment of the court below on a number of grounds, which will be considered in the order suggested.

1. The first ground for reversal presented by counsel, and upon which he seems chiefly to rely, is that plaintiff “failed to prove that Harvey A. Davis made proof to the home office of the company as required by the policy, and for that reason there can be no recovery in this case.” In developing this contention, counsel.assert that “the failure of the insured to make proof ninety days prior to the expiration of the policy defeats absolutely plaintiff’s right of recovery. ’ ’ This contention and the supporting argument appears to be based on the assumption that the contract of insurance prescribed the time, form and place of the making of proof of disability, and that the failure to do this in the manner specified works a forfeiture of the insured’s right to recover. There may be such conditions in contracts of insurance, but we do not find any such in the one before us. It is a familiar rule that contracts of insurance should be construed so as to effectuate the intention of the parties, and in cases of ambiguity the doubtful questions should be resolved in favor of the insured. In order to sustain the contention of the appellant, something must be read into the policy which the appellant company failed to incorporate therein. The only restriction we find in the contract is that no recovery can be had for a period of time greater than six months previous to the date the proof of disability is made and received by the company where it is not made and received within ninety days after the disability has commenced. There is no mode specified by which the proof of loss is required to be made or how it is to be transmitted to the insurer. From a fair consideration of the contract, the right to recover must be based on the total and permanent disability occurring during the life of the contract and not on any particular time when proof is made and received. Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1, 143 S. W. 85, 38 L. R. A. (N. S.) 62, Ann. Cas. 1914A, 268; Sovereign Camp, W O. W., v. Meek, 185 Ark. 419, 47 S. W. (2d) 567.

If therefore the disability exists and commenced when the contract was in force, it is immaterial how or when proof is made, if within the statutory period, and recovery may be had for the damage sustained, excluding that occurring beyond six months from the time proof is made. As stated in the case of Hope Spoke Co. v. Maryland Cas. Co., supra, the proof of disability is intended to give the insurer an opportunity to investigate the facts affecting the question of its liability and the extent thereof. This end is served when the complaint is filed, and no prejudice can result if, as in the instant case, no claim is made for benefits accruing before the filing of the complaint or the statute prescribing a penalty or attorney’s fee is invoked.

2. The second, third and fourth grounds for reversal are based on the contentions (a) that the evidence is insufficient to prove that the insured was totally and permanently disabled prior to the lapse of the policy, (b) which it is claimed occurred when plaintiff failed to pay the premium due July 11, 1930, on or before the expiration of the grace period, and (c) there can be no recovery upon a permanent disability arising prior to the lapse of the policy.

The policy was issued on July 11, 1925, and the annual premiums were regularly paid when due down to July 11, 1930. The premiums were payable in advance, and the time for paying the premium due on July 11, 1930, did not expire until August 11, 1930. The policy was written when the insured was nineteen years old. In April, 1926, the insured entered the State Sanitorium at JBooneville, suffering with tuberculosis, and was discharged from that institution in January, 1927, during which time he ivas paid five monthly installments of sick benefits. On his discharge from the sanitorium, the superintendent caused to be sent to the insurer (at whose request we are not advised) a certificate stating that the insured “is now leaving the sanitorium with an arrested case (tuberculosis) and in good physical condition.” The insurer paid no further monthly benefits, and the insured paid the annual premium falling due in that year and for the years subsequent, including the year ending July 10, 1930. The evidence tendered by the insured and accepted by the jury is to the effect that, while he was in the sanitorium, acting under the orders of the physician in charge, he did some light work in the institution, occupying him about two hours a day, for which work he was paid; that on his discharge he was directed by the physician to rest and eat wholesome and nutritious food, and these directions he attempted to follow as much as he was able. After leaving the sanitorium, he took his temperature for a time and begun in the afternoons to have a rise in temperature. Just when this began after his discharge is not shown, but, as stated by him, he had a little temperature in the afternoons “all along.” In the summer of 1927 he tried to do some work on the farm, but could only do a small amount of work and soon had to quit. He tried to do other work. In 1928 he began to work for a lumber company, but was unable to continue long in this employment. As he expressed it, “T tried it, but did not hold out very long.” He was unable to work in 1929. About July 1, 1930, he secured employment with a construction company on a State highway. He soon became unable to do the work first assigned him, and was given lighter work, keeping time and turning on and off the water at a pump station as required. He was unable to put in a whole day during this time, was obliged frequently to rest, and was spitting up Mood. He stayed with this job several weeks, finally quitting sometime in August. Before beginning the highway job he suffered with pains in his lungs and ran a temperature in the afternoons.

Dr. J. T. Riley, who is now and has been in charge of the State Sanitorium at Booneville for some time, but who was not in charge when insured was first received, testified in the case and was given a history of the insured from the time he entered the sanitorium in April, 1926, down to and including the time he was working on the highway in 1930. Witness was asked whether or not in his opinion the insured was able to perform any work for compensation or profit. After some colloquy between counsel for the defendant and the court, witness stated in effect that during these times the insured was unable to do any work, and that in his opinion the insured was totally and permanently disabled.

Another physician testified to the effect that one suffering from active tuberculosis on being treated in the sanitorium is discharged with an arrested case should do no work for at least two years after leaving the sanitorium; that, when the insured was again received into the sanitorium, he was afflicted with marked active, tuberculosis.

The evidence adduced on behalf of the plaintiff, having been accepted by the jury, must be considered in the light most favorable to him and given its strongest weight, and, when so considered, is ample to warrant a finding that the insured was totally and permanently disabled within the meaning of the policy in July and August, 1930, and, indeed, had been at all times from the date of his discharge from the sanitorium in 1927. It is argued that, since the insured worked in July and August of 1930 at a remunerative wage, that is sufficient to establish the fact that he was not suffering from a total and permanent disability within the meaning of the contract sued on. We do not think that this fact is conclusive of the question. The evidence in this case shows that the insured was a farm laborer,, and it is reasonable to infer that he was without training or experience which would enable him to conduct with success any business or be able to make a living except by manual labor. This being his situation, in order to perform any work or conduct any business for compensation or profit, more is required than mere strength to perform any given task or to follow any certain vocation for a time. It must exist to the extent as would enable one to do all the substantial acts necessary in the performance of the work or vocation in the usual and customary manner. This expression connotes the ability, moreover, to do the work or follow the vocation without suffering physical pain caused thereby and without danger to one’s physical wellbeing. One of the physicians expressed it in the following way: When asked if he thought a man was totally disabled when he had recently worked at a job for $2 per day, answered, “You can work a horse when he is sick, but it wouldn’t be to the best interest of the horse”; and Dr. Riley said, “The fact that he worked and earned $2 a day would not convince me that he was able to do so.”

It clearly appears from the evidence that the insured was never at any time since April, 1927, able to do all the substantial acts necessary in the conduct of any vocation in which he was fitted to engage in the usual and customary way without peril to his health; he was therefore totally and permanently disabled within the meaning of the policy. Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Travelers’ Protective Ass’n v. Stephens, ib. 660, 49 S. W. (2d) 364; Mutual Life Ins. Co. of N. Y. v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433.

It is sufficient to say on the third and fourth grounds urged for reversal that it is immaterial whether or not the premium due July 11, 1930, was paid, and there was no lapse of the policy because the total and permanent disability commenced prior to that date, and under the provisions of the contract there were no premiums- due as they were waived.

The fifth ground urged is that the plaintiff is not entitled to recover present value of the payments upon the theory that the defendant breached the contract. This contention cannot be sustained because liability was denied on the ground that the policy lapsed for failure to pay the annual premium before the expiration of the grace period, August 11, 1930. This was a renunciation of the contract on the part of the insurer, and brings this case within the rule announced in Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, followed in Kirchman v. Tuffli Bros., 92 Ark. 111, 122 S. W. 239, and in Liberty Life Ins. Co. v. Olive, 180 Ark. 339, 21 S. W. (2d) 405; Ætna Life Ins. Co. v. Spencer, supra; Travelers’ Protective Ass’n v. Stephens, supra; National Life & Accident Co. v. Whitfield, 186 Ark. 198, 53 S. W. (2d) 10; Atlas Life Ins. Co. of Tulsa v. Bollin, 168 Ark. 218, 53 S. W. (2d) 1. The rule in those cases may be thus stated: “If the insurer renounces the continuing contract of insurance, upon his part, and unequivocally refuses in advance of its maturity to perform it, the insured may at his option take the insurer at his word. The insured is then relieved of the duty of further performance on his part, and may maintain an action at law for damages, before the specified date of expiration. ’ ’

It is contended, in the last place, that the court erred in giving and refusing certain instructions. We have examined these instructions with care, and are of the opinion that they correctly submitted the issues to the jury in accordance with the views we have expressed. If there was any error, it was in favor of the appellant, and it therefore has no cause to complain.

Let the judgment be affirmed.


author: Johnson, C. J., Butler, J.,

text:
    Smith v. School District No. 89.
    4-2986
    Opinion delivered April 24, 1933.

      D. H. Howell, for appellant.

      Partain & Agee, for appellee.
   Johnson, C. J.,

(after stating the facts). The trial court erred in submitting this controversy to a jury. The uncontradicted testimony shows that no' valid contract was made between appellant as a teacher and the appellee district. The testimony of Mr. Meadows, quoted in the statement of facts, demonstrates that the minds of the parties never met upon the terms and conditions of the contract of employment. Appellant had applied for the position of teacher for a nine months’ period at a salary of $95 per month. A majority of the board refused to employ him at this salary. A majority of the board also agreed that they would employ Mr. Smith as a teacher for the approaching term at $90 per month, and that this reduction of salary would be taken up with appellant for his acceptance, but this did not make a contract between the parties. The contract was actually made and consummated when appellant agreed to teach the school at $90 per month, which occurred some four or five days after the board meeting. All the witnesses agreed that no meeting of the board was had after March 20. Therefore the board was not in session when this contract was finally executed.

It is elementary law that, where a party submits an dffer of a contract, this offer must be accepted without reservations. Any reservations or limitations in the acceptance in law is a rejection of the offer.

The rule is well stated in 6 R. C. L., § 31, page 608, as follows: “* * *The acceptance (of the terms of a contract) must likewise be unequivocal and unconditional. If to the acceptance of the proposal a condition be affixed before the party to whom the offer is made, or any modification or change in the offer be made or requested, there is a rejection of the offer.”

The rule is stated as follows in 13 C. J., § 86: “An acceptance, to be effectual, must be identical with the offer and unconditional. Where a person offers to do a definite thing, and another accepts conditionally or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat or it is a counter proposal, and in neither case is there an agreement. This is true, for example, where an acceptance varies from the offer as to time of performance, place of performance, price, quantity, quality, and in other like cases.”

In the case of Weaver v. Gay, 31 W. Va. 736, 8 S. E. 743, 3 L. R. A. 94, quoting from the third paragraph of the syllabus, the Supreme Court of West Virginia held: “If to the acceptance of such proposal a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be made or rejected, this will in law constitute a rejection of the offer.”

The Supreme Court of North Dakota stated the rule as follows, in the case of Horgan v. Russell, 24 N. D. 490, 140 N. W. 99, 43 L. R. A. (N. S.) 1150:

“It is the settled law of this State that, -before an acceptance of an offer becomes a binding contract, the-acceptance must be unconditional, and must accept the offer without modification or the -imposition of new terms.”

Since appellant had no valid contract with appellee district, he is not entitled to recover herein. This view of the situation makes it unnecessary for us to discuss or determine other questions presented in briefs.

Since the judgment entered by the trial court is the only lawful one which could have been entered under the facts in this case, the- same is in all things affirmed.

Kirby and Butler, JJ., dissent.

Butler, J.,

(dissenting). All members of the board of directors were present when appellant’s application to teach the school was submitted to it. Therefore, a majority could legally contract with him. School District v. Bennett, 52 Ark. 511, 13 S. W. 132; School District v. Traywick, 118 Ark. 597, 177 S. W. 27. The question, then, is from a view of the evidence most favorable to the appellant, was there such an agreement then made which he could enforce? The majority has answered in the negative and invoked the'familiar rule that where an offer is made the acceptance must be unequivocal and unconditional; that, where that acceptance is conditional or a new element is contained in it,-there is no agreement, but such condition or new matter engrafted is to be deemed and-treated as a rejection of the offer.

In the state of the case made by the appellant, it is my judgment that the rule announced has no application. If, when appellant’s offer to teach the school at $95 per month had been rejected by the modification of the salary, the board had rested, then the rule stated in support of the decision reached would have applied. This, however, is not the- situation, as is to be observed from the statement of facts formulated by the majority and which fairly reflects appellant’s evidence. He was acceptable to the majority as a teacher, but the price set by him for his services was thought to be too much and it was then agreed to hire him at a salary of $90 per month if he would accept the same. This was a rejection of the application of the appellant but it was also something more. It was a counter offer which the appellant had the right to accept within a reasonable time, in which there would arise a contract, the action on the part of the board having been taken at a time and place where it was authorized to act.

“A counter proposition operates as a rejection of an offer, even if the offeree performs some services referable to such offer '* * *. Since the acceptance with a modification is at least a counter offer, it may be accepted by the original offeror and thus may constitute a contract.” Page on Contracts, § 184; Iron Works v. Douglass, 49 Ark. 355, 5 S. W. 585.

As I view it, the situation in legal effect is as if appellant had filed no application with the board, but that it, without any such, had agreed for him to teach the school at $90 per month, and, this being communicated to him, he within a reasonable time had accepted. In such state of the case, it seems to me there could be no question but that under the rule stated and our decisions there would have arisen a binding contract. Kempner v. Cohn, 47 Ark. 519, 1 S. W. 869; Emerson v. Stevens Grocery Co., 95 Ark. 421, 130 S. W. 541; Blanton v. Manufachiring Co., 138 Ark. 508, 212 S. W. 330; Jerome Hdw. Co. v. Davis Bros. Lbr. Co., 161 Ark. 197, 255 S. W. 906; Southern Surety Co. v. Phillips, 181 Ark. 14, 24 S. W. (2d) 870.

The general rules governing the making and construction of contracts have been uniformly applied to such as were made by school districts or other quasi corporations, subject only to some statutory limitation, and the rule that an offer made when accepted within a reasonable time constitutes a completed contract when made by school boards. Morton v. Hancock Co., 161 Tenn. 324, 30 S. W. (2d) 252; Baxter v. School District, 217 Mo. App. 389, 266 S. W. 760; Picou v. St. Bernard Parish (La.) 132 So. 130.

Lee v. Mitchell, 108 Ark. 1, 156 S. W. 450, was a case where the majority of a school board at a meeting attended by all of the directors and participated in by all of them agreed to hire a teacher, who was not present, at a certain salary. The contract was drawn and signed by the president and secretary of the board and then sent through the mail to the teacher who accepted and signed the contract. The contract was attacked as invalid, but this court upheld it.

The argument made by the appellee district, which appears to have weig’ht with the maj.ority of this court, is that the signing of the contract was at a time when the board was not in session and when one of the directors was absent from the State, and therefore that this was the time when the contract was made, and it is invalid under the rule announced in the case of School Dist. v. Bennett, 52 Ark. 511, and the case of School Dist. v. Jackson, 110 Ark. 262, 161 S. W. 153, that no contract can be made except at a meeting of the school board. This contention overlooks the fact that the contract was made at a meeting of the board (subject to acceptance or rejection by the teacher), and the written contract was merely the evidence of its former action. It would therefore be immaterial when or where the contract was actually signed if it was signed within a reasonable time. Lee v. Mitchell, supra; School District v. Hundley, 126 Ark. 622, 191 S. W. 238.

I therefore respectfully dissent from the opinion of the majority.