author: M cHaney, J.

text:
    Randle v. Overland Texarkana Company.
    Opinion delivered December 8, 1930.

      Carter d Carter and Pratt P. Bacon, for appellant.

      H. M. Barney, for appellee.
   M cHaney, J.

Appellee sued appellants on two promissory notes representing the 'balance of the purchase price of an automobile, to which title was retained, and which was in the possession of appellant Bandle. An order was issued, in the nature of an attachment, directing the sheriff to take possession Of the property, and hold same subject to the orders of the court in accordance with §§ 8729 and 8730, O. & M. Digest. The car was taken and service had on both appellants. Thereafter appellant Nash answered denying that he signed the notes and all other allegations in the complaint as to him. On the same day this answer was filed, appellee applied for and was granted an order of court directing the sheriff to sell the automobile on the ground that it was perishable, highly, depreciable and expensive to store and care for. Sale was made in accordance with the order of court, and the sheriff reported that he had sold it to appellee for $100 which was credited on the notes. All this took place in November and December, 19i29. In March, 19301, appellant Nash filed an amendment to his answer admitting that he signed said notes, but that he- did not intend to become a party thereto or to be bound; that he signed same at the request of appellee’s manager, who told him that he did not know Randle, .but knew him and wanted him to sign so that he could locate or communicate with Randle when the notes became due. He further alleged lack of consideration for his signature in that the sale to Randle had been completed, the car delivered, the notes signed by Randle and delivered to appellee before he signed. Appellant Randle filed, on the same date, an answer and cross-complaint. He admitted the purchase of the car by him, the execution of the notes, their non-payment, and denied that Nash signed the notes or that he was concerned in the purchase of the car. For his cross-complaint he alleged that it was the duty of the sheriff to hold the car, and not sell same before a final hearing; that the sale was wrongfully had before a final hearing, without notice to him, and that the sale under the circumstances amounted to a conversion of the property to his damage in the value of the car. Demurrers were interposed and sustained to both answers. Appellants declined to plead further and the cause proceeded to trial on appellee’s complaint and its evidence which resulted in a directed verdict for appellee for the sum sued for, and the fixing of a purchase money lien on the car and the proceeds of the sale of same.

As to appellant Randle’s cross-complaint, there can be no doubt that he has no right to complain of the sale of the car and the price it brought at the sale. At the same time he was served with a summons in the action, November 16, the car was taken from his possession by 'a writ of attachment under § 8730,0. & M. Digest. At the time of filing the petition for an order of sale, same was served on counsel, for appellant Nash, the only defendant who had answered, although thirty days had elapsed Prom the date of service and repossession of the car, and no answer filed for appellant Randle, and none was filed until March 6, 1930. Under the allegations of the petition for the order of sale, heretofore set out, the court had the right to make the order so that the value of the property might be preserved and not wasted in depreciation and expense of storage and care. Under snch circumstances it was the duty of the court to order the sale for the preservation of the fruits of the litigation, especially in view of the fact that appellant Bandle had not controverted the right of appellee to the car, and to- subject it to the enforcement of a purchase money lien.

As to appellant Nash, the court correctly sustained the demurrer to the answer as amended, as it failed to state a defense, and also in sustaining objections to testimony in support thereof, as being violative of the párol evidence rule. According to appellant’s abstract of his answer, “he alleged that, while it was true his name was on said notes, he did not sign the same as a party thereto; that he signed same at the request-of B. E. Dove, the manager of appellee, who represented to him that he did not know Bandle, but did know defendant (Nash), and wanted him (Nash) to sign the notes so that he (Dove) could communicate with defendant when- the notes matured and defendant could notify Bandle.” Proof was offered in support of this allegation and excluded. There is no charge of fraud or trickery in obtaining his signature to the note, but the allegation simply means that, although he signed the note, there was a contemporaneous oral agreement that he should not be bound, but that he signed for reference merely. Under such circumstances thé rulé is that parol evidence is not admissible to contradict or vary the written instrument, which appellant Nash sought to do. In Frits v. Frits, 32 Ark. 327, it was held that ah answer to a suit on a note, -purporting to have been executed by defendant, alleging that she-could hot read or write, and that if she signed the note she did not know that it was a note, stated no defense. In Lawrence County Bank v. Arndt, 69 Ark. 406, 65 S. W. 1052, we held, to quote a syllabus: “"Where the- only evidence on the face of the promissory note that the persons sighing did not intend to bind themselves personally was the suffix to their signatures of some designation of agency, as by signing themselves, respectively, as president, vice-president, secretary, and treasurer, without stating for whom or for what company they were acting, they are liable personally, and cannot as a defense show by parol evidence that they intended to bind a certain corporation for which they were acting". ’ ’ This case has been many times followed. See Bank of Corning v. Nimnich, 122 Ark. 316, 183 S. W. 756 Ann. Cas. 1917D, 566 ; United Drug Co. v. Bedell, 145 Ark. 96, 223 S. W. 372 ; Shanks v. Clark, 175 Ark. 883, 300 S. W. 453 ; First National Bank of Jonesboro v. J. H. Snyder Mfg. Co., 175 Ark. 1134, 1 ■S. W. (2d) 817. In the last case above cited, we said:

“This court has often decided that parol evidence cannot be admitted to vary the terms of a written contract or to show a contrary intention than that disclosed by the instrument unless there is an ambiguity. This rule has been applied in the case of promissory notes. Lawrence County Bank v. Arndt, 69 Ark. 406, 65 S. W. 1052. In that case the only evidence on the face of the promissory note that the persons signing it did not intend to bind themselves personally was the affixing- to their signatures of some designation of agency, as by signing themselves, respectively, as president, vice-president, secretary and treasurer, without stating for whom or for what company they were acting-. Under these circumstances they were liable personally, and could not, as a defense, show by parol evidence that they intended to bind a certain corporation for which they were acting. ’ ’

There is no ambiguity in the note now under consideration, and parol evidence cannot be resorted to to vary its terms. Therefore the answer was open to demurrer, and the proffered testimony inadmissible. The .judgment is accordingly affirmed.

Kirby and Mehaffy, JJ., dissent.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Shelby v. Shelby.
    Opinion delivered December 8, 1930.

      W. D. Jones and T. M. Hooker, for appellant.

      Bridges, McQaughy •& Bridges, for appellee.
   McHaney, J.

In the year 1899, appellant and his two brothers, W. J. and George A. Shelby, acquired a tract of land in, or adjacent to, the town of Wabbaseka, containing approximately 3.71 acres, and including the strip of land in controversy, containing about 1.25 acres, or the north 1/3 of the tract. In about 1901, they built a house on the south part of the tract for appellant, and some two or three years later they built a house on the north end of the tract, behind which, and on the land in controversy, a bam was built. In 1909 they decided to divide the land, and W. J. and George A. deeded to appellant a portion of the tract, describing it by metes and bounds, but oinitting the township, the range, the county and State in which the land is located.

It is conceded that there was no intention to convey to appellant the whole of the 3.71-acre tract, but only a part thereof. Twelve years later,-in 1921, appellant, conceiving that his deed was void for lack of description, secured from George A. and his wife, the appellee, and Nannie, who1 is, and was at that time, the widow of W. J., a correction deed, supplying the supposed defects in the former deed. This latter deed contained the same metes and bounds description as the former, and recited that it conveyed 2.52 acres of land, which in fact constituted the south 2/3 of said tract. W. J. and George A. Shelby went into possession of the north 1/3, including the land in controversy, and .built a fence between their property and that deeded to appellant. In 19101 W. J. Shelby died testate, leaving his wife, Nannie, and his brother, George A, each a one-half interest in this property. Later Nannie sold all her interest therein to George A., who continued in exclusive possession thereof to his death in 1902, leaving surviving his widow, the appellee, who continues to the present time in possession thereof as a homestead. In '1926, appellant sought to build a fence on what he claimed to' be the correct line according to the description in his deed, but appellee prevented him from so doing. He thereupon instituted this action against her to enjoin her from interfering with his right to the land and his’ right to- build the fence, and to quiet title to said strip of land in him.

Appellee answered that the first, deed appellant obtained from his brothers was void for want of proper description; that the second or correction deed was-obtained through misrepresentation and fraud, in that he told the grantors that the description conveyed only the south two-thirds of the tract, and that it was void because executed and delivered on Sunday; and that she had acquired title to the north one-third thereof by adverse possession. On a trial the court, found for' appellee and that she “is the owner of all the land now held in possession by her, extending as far south as the division fence now located.” Decree was entered quieting title thereto in her and dismissing appellant’s complaint for want of equity.

We find it necessary to discuss only one question, that of adverse possession, to a proper determination of this case. We think the trial court reached the correct conclusion in finding" the issues of both law and fact against appellant. If the line should he established where appellant contends it should (be, he would have more than three-lfourths of the acreage. Was any such result intended by the three brothers in 1909 when they divided it? We think not, and that the preponderance of the evidence, when all the attendant circumstances are considered, support the court’s finding to the contrary. Two of the brothers are now dead and were long before'this suit was instituted. Their mouths are closed, but their acts and deeds are still living witnesses.- The fact that W. J. and George A. immediately took possession of exactly one-third of the land; that they built a fence on the division line where no fence had been before; that they thereafter paid the taxes on 1.25 acres of this land; that when W. J. died, he left one-half olf it to his widow and one-half to his brother George A; that thereafter the widow conveyed her one-half to George A. by deed; that they remained in possession of the north one-third from 1900 to 1926 without question of right, during which time they made valuable improvements—all speak more eloquently than mere witnesses. We cannot escape their effect, as they are all inconsistent with appellant’s claim of title to any part of said land north of said division-fence.

Appellant contends, however, that appellee is in the situation of a g’rantor who remains in possession after executing a deed of conveyance, that is, that limitations will not begin to run against the grantee until notice of - the hostility of the grantor ’s claim. But, conceding that she is a grantor in possession and that there was no mutual mistake, or no mistake on her part accompanied by fraud or other inequitable conduct on the part. of the - ■grantee in the procurement of the deed, still the possession of appellee and those under or through whom she claims continued for such a length of time as to overcome and rebut the presumption that she was holding in subordination to the title conveyed. In Stuttgart v. John, 85 Ark. 520, 109 S. W. 541, one o-f the cases cited and relied on by appellant, this court said: “Where a vendor, after having executed a deed, remains in possession of the premises conveyed, he is presumed to hold in subordination to the title conveyed, unless there is affirmative evidence of a contrary intention; and, where his occupancy and use are not manifestly inconsistent with the right of his grantee, notice of the hostility of his claim must in some way be brought home to his grantee before the statute of limitations will begin to run.” An exception to that rule is stated in Tegarden v. Hurst, 123 Ark. 354, 185 S. W. 463, where it was said:

“We are also of the opinion that the evidence shows very clearly an intention on the part of Hurst to hold the land in hostility to any other claim, and that, even if there was no right to reformation, that Hurst’s occupancy ripened into a title by adverse possession for the statutory period. On that branch of the case, the defendants invoke the doctrine that where a grantor remains in possession, there is a presumption that he does so in subordination to the title he has granted, and not in hostility thereto'. While that is true, there is an exception where the occupancy continues unexplained for an unreasonable length of time, and under those circumstances the presumption is gradually overcome by lapse of time. American Building & Loan Assn. v. Warren, 101 Ark. 163, 141 .S. W. 765. The fact that Hurst remained in undisputed possession of the land, openly and notoriously, for a period of fourteen years is sufficient to overcome the presumption that he was holding in subordination to his original grant. Such occupancy was, under the circumstances, sufficient notice to • Tegarden as to the hostility of the possession. He admits in his testimony that when he was negotiating a purchase from Estes, he was told that the line went right across the river, and to some extent into Hurst’s field, and he was therefore put upon- notice that there was an adverse occupancy which had at that time continued for a period of about nine years. He is therefore in no better attitude than was his grantor, Nathaniel Estes, (for he had notice of the adverse claim, and had no right to rest upon a presumption that Hurst, the original grantor, was holding possession in subordination of his conveyance to Estes.”

Moreover there were many definite acts of ownership of the strip in controversy after the conveyance which were sufficient to bring notice home to appellant that title was being claimed to the division fence in hostility to the claim now asserted, and “much affirmative evidence of a contrary intention” to hold subordinate to the title described in the deed. When all is considered, together with the length of time which has elapsed in which undisputed possession was had, seventeen years, openly and notoriously, the court was correct in holding that the presumption that she was holding in subordination to the original grant was overcome. Her occupancy and those through whom she claimed, was, under the circumstances already related, sufficient notice to appellant of the hostility of the possession.

Affirmed.


text:
    Walsh v. Maners.
    Opinion delivered December 8, 1930.

      W. A. Leach, for appellant.

      M. F. Elms, for appellee.
   McHaney, J.

This case has been before this court heretofore, Maners v. Walsh, 180 Ark. 355, 22 S. W. (2d) 14. It was there reversed with directions to transfer to equity. On a retrial, in the chancery court, the court found for appellant in the sum of $250 damages and $67.50 paid by her to appellee on the contract, which latter amount had been tendered into court at the beginning of the action, with interest, which amount was reduced by the costs incurred in the former trial and appeal, and entered a decree accordingly, from which judgment there is an appeal and cross-appeal.

We deem it unnecessary to set out the contract which forms the basis of this action, as it was copied in full in the opinion on the former appeal. We have carefully considered this contract and the evidence supporting the respective contentions of the parties and have reached the conclusion that, by the great preponderance of the evidence, appellee signed the contract, not as a grantor, for it is undisputed that he was not the owner, but only for the purpose of enabling the owner, Williams, and appellant, to enter into a contract of sale and purchase of the property. A suit was pending in the chancery court for the foreclosure of appellee’s first lien against the property, which had proceeded to a decree in his favor for $2,018.01 and for a sale of the property to satisfy this judgment. The contract so specifies as follows : ‘ ‘¡Said decree being for the principal sum of $2,018.01, in favor of the said W. H. Maners with costs thereon and interest thereon at the rate of ten per cent, per annum from the rendition of said decree. After the amount herein mentioned due the said W. H. Maners is fully paid, then the balance of the consideration herein-before expressed shall (be paid by the said party of the second part (appellant) unto Ida R. Williams.” Both appellant and Williams knew that the extent of appellee ’s interest in the property was the amount of his mortgage judgment, and that all he was to realize from the sale from Williams) to appellant was this amount and no more. Instead of having the property sold under the decree to satisfy his judgment, he simply agreed, as a matter of grace, to accept payment of his-indebtedness from appellant at the rate of $67.50' per month. There can be no doubt that all parties understood this, and that he executed the contract to enable Williams and appellant to make the trade, thereby agreeing to accept payments on the monthly plan, but that his claim should first be satisfied. The property was at all times to' stand security for the debt, and his relation of mortgagee continued with appellant substituted as mortgagor instead .of Williams. :

As said by this court on the former appeal: ■ “Equity looks beyond the mere form in which the transaction is clothed and shapes its relief in such way as to. carry out the true intent of the parties to the agreement, and to this end all the facts and circumstances of the transaction, the conduct of the parties thereto, and their relations to one another and to the subject-matter, are subjects for consideration.” .When we have done this, the conclusion is irresistible that appellee, for the accommodation of others, simply agreed that the security he held for the indebtedness in one form might continue to be' security in another form.

Under this view of the matter, there was no obligation upon appellee to bid the property in at the foreclosure sale. That duty rested upon Williams, the real owner, and the record shows that appellant secured a judgment against Williams for her damages. There was, therefore, no liability on appellee either for improvements made by appellant while in possession or for damages as for breach, as he was not an obligor in the contract. The decree on appeal will be modified and affirmed for $67.'50', the payment made to appellee under the contract, with costs to the date of tender by appellee of said sum and interest. On the cross,-appeal the decree is reversed, and remanded with directions to dismiss the ■complaint for want of equity, with costs to appellee.

It is so ordered.


author: Butler, J.

text:
    United Order of Good Samaritans v. Campbell.
    Opinion delivered December 8, 1930.

      U. A. Gentry, for appellant.

      E. F. McFaddin, for appellee.
   Butler, J.

The sole question in this case is the right of the intervener, John Campbell, to recover from the appellant, United Order of Good Samaritans, an undertaker’s bill. Carrie Oarrigan ivas a member o'f' the United Order of Good Samaritans, but at the time of her death, which occurred on July 25, 19|2'5, her certificate of membership and her rights thereunder were in abeyance because of failure to pay her monthly assessments when due. About the 10th of July, 1925, she had paid her arrears 'but under the terms of the policy it did not become reinstated until thirty days thereafter, and she, having died within that time, was what was termed by the officials of the order ‘ ‘ unfinancial. ” In a suit ¡by the beneficiary named in the certificate against the appellant company the court properly directed a verdict for the appellant from which no appeal was taken. In that suit Campbell, who was a negro undertaker, intervened for a bill of $93 which he stated was ¡for furnishing a casket and embalming the body. He stated that this was done at the instance of the officers of the local lodge who assured him that the order would pay for these services; that he was familiar with the way these matters were usually handled by the order as. he had at one time been the chief officer in the local lodge; that he had joined every negro society in the south; that he had helped to bury many members of tbe United Order of Good Samaritans, dealing, with other people occupying the same positions as the local officers in this case, and that the order had never refused to pay him; that he had never had the order to pay him on funeral claims where liability was denied on the policy, and that in all cases where he had been paid for funeral expenses the order admitted the insurance to be in force; that the local officers in this case told him that the deceased sister was “ financial.’r

Further evidence was to the effect that the secretary of the local lodge and one McCrary, who was known as the colonial chancellor and the presiding officer of the local lodge, had no authority to obligate the order for funeral expenses, the duty of the colonial chancellor being to preside over the local lodge and that of the secretary to collect the monthly dues and remit to the home office at Little Rock.

•Since Campbell had been a colonial chancellor, he of course knew the authority of these officers, and when they made the arrangements, in so far as the order was concerned, they were acting without the scope of such authority, actual or apparent. Therefore, the order was not bound by any promise they might have made. Such is the well-settled rule of this court. Wales-Riggs Plantations v. Grooms, 132 Ark. 155, 200 S. W. 804 ; Pierce v. Fioretti, 140 Ark. 306, 215 S. W. 646 ; Ozark Mutual Life Assn. v. Dillard, 169 Ark. 136, 273 S. W. 378.

The certificate and by-laws of the order were introduced in evidence, among the provisions of which was the following: ‘‘Upon receipt of proper advices affirming the death of the member and if this certificate is in force, the order will pay to such persons designated by the beneficiaries $50, which sum when paid shall be charged against the accumulated value of this certificate, but this preliminary payment made on account of burial expenses shall not be as an acknowledgment of any liability under this certificate, should any fraud or noncompliance with the terms and conditions of this certificate and constitution and laws of the order be discovered.” This provision was an essential paid of the contract, and, as the certificate was not in force at the time of the death of 'Carrie 'C'arrigan, there was no burial benefit in force. Since this was the case, and there being no evidence to' the effect that the local officers were clothed with any express authority, and their positions being such that no authority might be implied, the court erred in directing a verdict for the intervener. A verdict should have been directed for the United Order of Good Samaritans on ¡both branches of the case.

The judgment of the trial court is therefore reversed, and the case is dismissed.


author: Hart, C. J.,

text:
    Wright v. Marshall.
    Opinion delivered December 15, 1930.

      Harrison, Smith Taylor, for appellant.
    - Reicl, Evrard 'é Henderson, for appellee.
   Hart, C. J.,

(after stating the facts). It is well settled in this 'State that contracts in partial restraint of trade with reference to a particular business, where ancillary to its sale and the good will thereof, are valid and enforceable to the extent reasonably necessary for the protection of the purchaser. Such contracts are intended to secure to the purchaser the good will of the business; and, as a guaranty, the vendor agrees not to engage in like business at that place. The courts recognize that in such cases the vendor has received an equivalent to abstain from business at the place where it was formerly conducted. Webster v. Williams, 62 Ark. 101, 34 S. W. 537 ; Shapard v. Lesser, 127 Ark. 590, 193 S. W. 362, 3 A. L. R. 247, and cases cited; and Culp Bros. Piano Co. v. Moore, 162 Ark. 292, 258 S. W. 326.

Counsel for appellant insist that the court erred in refusing to allow parol evidence to the effect that the $1,000 in cash and the assumption of debts in the sum of $1,452.53 by the purchaser was the sole consideration for the contract, and the agreement not to re-engage in the restaurant business in the city of Blytheville on the part of the seller was an after thought, and that there was no consideration upon which to base it. Counsel, in making this contention, rely upon the case of Kimbro v. Wells, 112 Ark. 126, 165 S. W. 645. We do not think that case has any application whatever. There, the second contract, according to the testimony of the defendant, was executed some time after the first instrument was executed, and, although it referred to the first instrument, it was not a part of it. Because the contracts were executed at different times, and, according to the testimony of one of the parties, were separate instruments, each complete in itself, the court admitted parol evidence to show the intention of the parties in executing them. In the case at bar there is only one contract, and its terms are plain and unambiguous. The case calls for the application of the well-known rule that parol, contemporaneous evidence is inadmissible to contradict, vary, or add to the terms of a valid and unambiguous written contract. Ogletree v. Smith, 176 Ark. 597, 3 S. W. (2d) 683, and cases cited. The offered evidence in the present case would necessarily tend to vary the terms of the contract as written.

Again, counsel for appellant insist that the case falls within the rule announced in McRae v. Farquhar & Albright Co., 168 Ark. 39, 269 S. W. 375, where it was held that when a contract is actually entered into between the parties with the intention to become bound thereby, it is consummated within the meaning of the law, although it .was agreed that the terms of th'e contract should be reduced to writing. This case would apply if the parties had rested after their preliminary negotiations and had not had the contract reduced to writing. When the contract was reduced to writing,'it became the agreement between the parties, and the clause which provided that the seller should not re-enter the restaurant business in the city of Blytheville was just as much a part of the written contract as any other provision in it, and was just as binding upon the parties as the other provisions of the contract. Otherwise, no useful purpose would have been served by the parties in having their contract reduced to writing. The object of reducing the contract to writing was to have a plain statement of the contract which could not be contradicted by parol evidence of matters leading up to the mailing and execution of the contract. Parties would be afraid to enter into negotiations with each other if these matters could be proved by parol evidence and contradict the terms of a written contract relating to the subject-matter of their negotiations which they finally executed.

Therefore the decree will be affirmed.


author: Smith, J.. Humphreys, J.,

text:
    Elliott v. Cravens.
    Opinion delivered December 15, 1930.

      Joseph R, Brown, for appellant.

      Cravens & Cravens, for appellee.
   Smith, J..

The facts out of which this litigation arose are recited in the decree from which this appeal comes, and are as follows:

On December 23,1924, Jeff P. Nix and wife borrowed $1,350 from the Lyman Eeal Estate Company, and as security therefor executed a mortgage on two lots in the city of Fort Smith. On March 6,1926, the real estate company assigned this mortgage and the debt which it secured, without recourse, for value, to E. L. Elliott. On February 19, 1925, Nix and wife conveyed these lots to Ben Cravens, it being recited in the deed to him that he assumed and agreed to pay the mortgage in favor of the Lyman Eeal Estate Oompany.

The court found the fact to be that Cravens was unaware of this provision in the deed to him, and that he never, in fact, assumed that debt or agreed to pay it.

The court further found that, by deed dated October 26, 1927, Cravens and wife conveyed the lots to Dyer Meadors and wife, and that these grantees, in their turn, assumed and agreed to pay the Lyman Eeal Estate Company mortgage.

Upon this finding of fact the court decreed a lien on the lots for the amount of the mortgage and the interest thereon, and ordered the property sold in satisfaction of the lien, but refused to render a personal judgment against Cravens.

Cravens’ testimony was to the following effect: In February, 1925, he and O. J. Hawkins owned a farm in Crawford County, for which Jeff Nix offered to trade other property. The offer was accepted, and Nix conveyed the lots in Fort Smith to Cravens and other property to Hawkins for their Crawford County farm. The deed from Nix to Cravens, as well as the deed from Nix to Hawkins, were both delivered to Hawkins, who, without submitting them to Cravens, caused them to be recorded, and Cravens did not, in the trade, agree to assume and pay the mortgage on the Nix property. Hawkins’ testimony was to the same effect.

According to the recitals of the deed from Nix to Cravens, that conveyance was not made subject merely to the outstanding mortgage in favor of the real estate company, but ivas made upon the consideration of the assumption of its payment. The agreement to pay this mortgage was a part of the consideration of the deed, and upon accepting the deed this contractual obligation was imposed. Such conveyances are quite common, and their effect is well defined.

In the case of Wallace v. Hammonds, 170 Ark. 954, 281 S. W. 902, it was said: “It is well settled in this State that, where a purchaser of mortgaged lands from the mortgagor assumes and agrees to pay the mortgage thereon, he becomes personally liable therefor, which liability inures to the benefit of the mortgagee, who may enforce it in an appropriate action.” See also Felker v. Rice, 110 Ark. 70, 161 S. W. 162 ; Walker v. Mathis, 128 Ark. 317, 194 S. W. 702 ; Kirby v. Young, 145 Ark. 507, 224 S. W. 970 ; Beard v. Beard, 148 Ark. 29, 228 S. W. 734 ; Patton v. Adkins, 42 Ark. 197 ; Benjamin v. Birmingham, 50 Ark. 433, 8 S. W. 183.

In the case of McCown v. Nicks, 171 Ark. 260, 284 S. W. 739, 47 A. L. R. 332, the facts were that McCown and others sold a tract of land to Willis, and reserved a vendor’s lien to secure balance of unpaid purchase money. Willis conveyed the land to Nicks, the deed reciting that Nicks assumed the payment of the balance of the unpaid purchase money. Nicks made a payment on the purchase money and secured an indulgence of time, when, without completing the payments, he reconveyed to Willis for a consideration, recited in the deed, of $1,000 in cash and the assumption by Willis of the payment of the unpaid purchase money notes executed by Willis for the purchase of the land.

McCown and the other vendors sued both Willis and Nicks. The latter denied personal liability on the notes, and alleged that, after purchase of the land by Nicks from Willis, he resold the property to Willis, and by such sale was absolved from liability to the plaintiff vendors, and that he was never indebted directly to the plaintiffs for the unpaid purchase money.

The court treated the law as being settled that Nicks was liable to the vendors of his grantor upon his assumption of payment of the balance of unpaid purchase money, but the case was disposed of upon the decision of the question of rescission by a reconveyance of the property by Nicks to his own grantor, whose debt he had assumed as a part of the consideration for the conveyance to himself. It was pointed out in the opinion that there was a contrariety of view as to whether one who sells property, upon which there is an incumbrance, and procures from his grantee, as a consideration or part consideration of the purchase price, a promise to pay off the debt or incumbrance, can afterwards release his grantee from the obligation or liability to pay the debt to the creditor holding the lien. We held, however, that Nicks’ right to rescind this obligation to pay Willis ’ debt existed, provided the right to rescind was exercised before any privity had been established between the lienholder and Nicks. We held that privity had arisen by part payment by Nicks and the procurement of an extension of time for other payments, and in holding Nicks liable for the debt he had assumed we saidThe doctrine of this court is that the ‘acceptance of a deed containing a stipulation whereby the grantee agrees to pay a mortgage on the land implies a promise to perform it; on which promise, in case of failure, assumpsit will lie’ ” [citing authorities].

Here there has been no attempt to rescind. Indeed, by his conveyance of the land to Meadors, Cravens has placed it beyond his power to rescind. He has not only conveyed the lots, but he passed on to his grantee the identical obligation as to part of the consideration for the deed from himself which he had assumed in the deed to himself.

The testimony establishes the fact, as the court found, that Hawkins did not tell Cravens that the deed to Cravens recited this obligation. But the fact remains that Hawkins was Cravens’ agent. This is true as a matter of law. The deed was delivered to Hawkins for Cravens, and the ratification of this action is conclusively shown by the fact that Cravens has since conveyed the title'which he thus acquired. Cravens cannot therefore be heard to say that Hawkins was not his agent in this transaction. He accepted the benefit of the exchange of lands negotiated by Hawkins, and he must therefore also accept the obligation of that contract.

The decree of the court below will therefore be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion.

Humphreys, J.,

(dissenting). The appellant is in no better position than Lyman Beal Estate Company, and as against it appellee was entitled to a reformation of the deed to show that it was not intended to assume the payment of the note and mortgage. The testimony meets the rule that deeds may be reformed to show the intention of parties to them. The intention may be shown by clear and decisive proof. Therefore I dissent from the opinion of the majority.


author: Humphreys, J.

text:
    Arkansas Amusement Corporation v. Kempner.
    Opinion delivered December 15, 1930.

      Brickhouse & Brickhouse and Rose, Hemingway, Cantrell \& Loughborough, for appellant.

      Robinson, House •& Moses and Harry E. Meek, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the Third Division of the circuit court of Pulaski County to recover weekly salary installments which had accrued and not been paid up to the date of the institution of the suit and which would accrue up to the date of the trial thereof, under and by virtue of a written contract of employment entered into by appellee and the Little Rock Amusement Company, on the 30th day of July, 1925, which obligation on the part of the Little Rock Amusement Company had been assumed by appellant.

Although the contract was set out in haec .verba, the following paragraph thereof was made the basis of the suit:

“Little Rock (meaning Little Rock Amusement Company) agrees to employ Kempner either as vice presiden! or, at its option, in other executive capacity, for the period between the date of this contract and November 1, 1939, and Kempner agrees to accept said employment and to give to Little Rock and its affairs such of his time, attention and service as it requests of him. Little Rock agrees to pay Kempner in' return for said services salary at the rate of eight thousand dollars a year from the date hereof to November 1, 1939, said salary to be paid in weekly installments of one hundred fifty-three dollars and eighty-five cents ($153.86) each.”

Appellant filed an answer admitting the assumption of the obligations of the Little Rock Amusement Company under the alleged contract, but pleading as a defense to the payment of the salary therein provided for appellee that he failed to perform the executive duties requested of him by it.

The cause was submitted upon the pleadings, testimony and instructions of the court resulting in a verdict and consequent judgment of $9,428.65 against appellant, from which is this appeal.

Appellant contends for a reversal of the judgment upon several grounds, the main contention being that the trial court admitted parol testimony relative to negotiations leading up to the execution of the contract, as well as prior contracts between appellee and the Little Rock Amusement Company and others, to explain what duties appellee should perform for appellant under the written paragraph of the contract set out above. The trial court admitted the evidence upon the theory that the paragraph in question was ambiguous as to the nature and character of the services to he rendered by appellee to appellant in order to earn the salary.

It is the settled rule in this State that parol evidence of conversations and negotiations leading up to the execution of a contract, as well as the relation of the parties thereto and the attendant circumstances to explain and aid in the interpretation of uncertainties and ambiguities contained in writing mav be admitted. Jones v. Lewis, 89 Ark. 368, 117 S. W. 561 ; Wood v. Kelsey, 90 Ark. 272, 119 S. W. 258 ; Wilkes v. Stacy, 113 Ark. 556, 169 S. W. 796 ; Seelig v. Phillips County, 129 Ark. 473, 196 S. W. 456 ; Brown & Hackney v. Daubs, 139 Ark. 53, 213 S. W. 4. Of course, the converse rule is true that parol testimony will not be admitted to explain provisions in the contract which do not háve double meanings and are not susceptible of two interpretations. American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50.

We are unable to discover any ambiguity in the contract as to the nature and character of services appellee bound himself to perform. In just so many words he obligated himself in payment of a stated salary for a definite period to perform any executive function the company would request him to perform. Executive functions have relation to the management of all or some part of a business and imply activity. An executive officer or employee is one who assumes command or control and directs the course of the business, or some part thereof, and who outlines the duties and directs the work of subordinate employees. Such functions are easily and readily distinguishable from routine work and ordinary labor required in the conduct of a business. It was the duty of appellee, under the wording of the contract, to perform any executive function connected with the picture show business which appellant should call upon him to perform. Appellee cannot be heard to say, as he attempted to do in the trial of the cause, that his duties were to be perfunctory or nominal, and that his position was to be that of a sinecure.

'Conversations, letters and other negotiations leading up to the execution of the contract in question, and independent contracts made by appellee with the Little Rock Amusement Company and others relative to the conduct of the picture show business were inadmissible, as the contract with reference to the duties he obligated himself to perform were certain and unambiguous. Not only did the trial court err in admitting irrelevant and incompetent testimony upon-the issue joined in the pleadings, but also erred in sending the cause to the jury to determine the nature and character of services to be performed by appellee under the contract. The trial court told the jury that the contract was ambiguous and directed them to interpret its meaning with respect to the kind of services appellee was to perform; whereas, he should have instructed them that it was the duty of appellee to- perform any services of an executive nature connected with the picture show business when requested to do so, and that he could not recover if he failed or refused to perform such duties. The jury should have been instructed that appellee could not recover his weekly salary unless he performed the excutive service connected with the picture show business which appellant called upon him to do.

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

Hart, O. J., and McHaney, J., dissent.


author:
Kirby, J.,
      Butler, J.,

text:
    Home Life Insurance Company v. Miller.
    Opinion delivered December 15, 1930.

      Searcy <& Searcy and Wynne Sb Miller, for appellant.

      King & Whatley, J. II. Landes and McKay <& Smith, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in refusing to give its peremptory instruction directing a verdict in its favor and the contention must be sustained.

The rule has often been stated that this court will not interfere with a verdict supported by any substantial evidence, and that in arriving at that conclusion the strongest probative force will be given to the testimony and the reasonable inferences deducible therefrom favoring the party for whom the verdict is rendered. If the facts are such that men of reasonable intelligence may honestly draw therefrom different conclusions on the question in dispute, then the issues are properly submitted to the jury for determination, and in such cases the court should not substitute its judgment for that of the jury. Harris v. Bush, 129 Ark. 369, 196 S. W. 471 ; Guardian Life Ins. Co. v. Dixon, 152 Ark. 597, 240 S. W. 25 ; Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742 ; Mutual Life Ins. Co. of N. Y. v. Raymond, 176 Ark. 883, 4 S. W. (2d) 536.

.An eminent annotator in discussing the right of an insurer to a directed verdict upon the issue of suicide makes the following statement of the law relative to the rule governing trial courts in suits upon insurance policies when the defense of suicide is relied upon, to-wit:

‘ ‘ Althoug'h in all jurisdictions the courts apparently recognize the existence of a strong presumption against suicide, the presumption is rebuttable, and it is held that an insurer setting up suicide of the insured as a defense to a recovery on a policy may be entitled to a directed •verdict in its favor on the issue o!f suicide, if the evidence produced is so clear and conclusive as to overcome the presumption and leave no reasonable basis for a jury to arrive at any other, conclusion than that of suicide. Under such conditions the issue of fact is no longer one for the jury to speculate on and should be decided by the court by means of a peremptory instruction to render a verdict for the insurer. '
"So where all the evidence produced on the trial overcomes the presumption, convincingly indicates suicide, and is inconsistent with accident or murder, the insurer is entitled to a directed verdict on the defense of suicide.” 37 A. L. E. 171.

This rule appears to have been adopted and followed by the majority of courts, both State and Federal, and our own court has announced the rule and its adherence thereto in Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532, and in Mott v. Sovereign Camp, 155 Ark. 259, 244 S. W. 733.

The insured either killed himself purposely or by accident, or was killed by some one else. The undisputed testimony shows he was continually worried and harassed about existing conditions in Ms office, that he was depressed at all times, not to say gloomy, that he was listless and indifferent about the conduct oif his office, knew that he was short in his accounts, was unable to make settlement with the State for the revenues collected, and that his shortage would be immediately discovered. Upon returning from the last visit to his fiance at Shreveport, he wrote the letters expressing a fixed determination to kill himself, saying that he was then looking into the face of death, which he regarded as most horrible, expressed the belief that he would be forgiven for Mlling himself, and wrote resignedly as though his determination was fixed and irrevocable. The undisputed testimony shows that he was in possession of the pistol, which had belonged to his former wife, with which he was killed, and still clutched it in his right hand when his body was. discovered after he had been shot therewith. It was impossible for him to have ¡killed himself accidentally, the second shot fired, the fatal one, occurring about five minutes after the firing of the first, the bullet from which did not penetrate the skull. Evidently the shots were fired after he had lain down on the bed with the pistol pressed against his forehead. The physicians stated that he would not have been able to get into the bed and assume the position hé was found lying in had he been standing up during the firing of either of the shots. One of them stated that the first shot mig'ht not have rendered him unconscious, and, although the others testified that it would, they said it would only have been temporarily so. There was time enough between the firing of the shots for him to have recovered from the shock of the first sufficiently to press the pistol against his head and fire the second shot in accordance with his fixed determination to kill himself. There was no evidence whatever of the presence in the room of any one else when the shots were fired or indicating that they might have been fired by some one else on the outside of the building. There was no evidence whatever indicating the presence of any one in the vicinity who would have attempted to kill the insured, and it is unbelievable, in view of human experience, that one who sought to murder the insured would fire the first shot into his head and wait five minutes before firing the last. Although the testimony showed that the sheriff had been active in enforcing the prohibition law and had received one threatening letter from a particular township in his county if he should come down there for that purpose, there was no particular threat shown to have been made by any one who desired his death or might have attempted to kill him.

It is true this woman, who received the letters, written the last night oif his life, expressing his undying affection for her and a fixed determination to kill himself, did not testify, but the proof was conclusive that the insured wrote the letters, and they were of no less probative value, having been shown to have been written by him, than if this woman “he loved,” who delivered them to the insurance company, had appeared personally in court and testified to the circumstances under which she received them.

The physical facts, as already said, are not consistent with the theory of an accidental ldlling which could be conceived of and cannot be reconciled with any manner of killing other than suicide. There is no suggestion in the record of any facts (from which a reasonable inference might be taken that the insured met his death at the hand of another through foul play. The presumption of accidental ldlling was overcome by the undisputed facts and circumstances, and the court should have directed a verdict for appellant in accordance with its request.

The .judgment is accordingly reversed for failure to do so, and judgment will be rendered here for the $1,000, one-tenth of the face oif the policy, in accordance with the terms thereof and the admission of appellant’s liability therefor. It is so ordered.

Humphreys, Mehaffy and Butler, JJ., dissent.

Butler, J.,

(dissenting). I confess that much of the evidence, if not indeed the preponderance, sustains the conclusion reached by the majority that the wounds causing the death were self-inflicted. But there are other circumstances which cast doubt upon this and which, under our settled rules of practice, I think sufficient to constrain us to uphold the finding of the jury. In the first place, the letters of September 1st and 2d, written by the deceased to his fiance are confessedly the strongest evidence tending to establish suicide, but it will be noted that, although the letter of September 2d was written on the evening of that day and in that letter the writer stated that he would kill himself that night, he did not in fact do so—neither that night, the next day, nor the night following. Notwithstanding that declared intention, he was actively engaged all the day following in the discharge of his duties, and two nights and a day passed before he was killed. Men frequently express the intention of doing something and then fail to carry that intention into execution. Therefore the jury might have reasonably concluded that, in as grave a matter as the taking of one’s own life, where the intention is not carried speedily into execution and there is a reasonable lapse of time, the deceased might have reconsidered.

It is argued in the majority opinion that no one could have entered the room, in which the deceased was found dying. I think the testimony does not show that fact conclusively, and, while the doors were closed, they were not fastened in such a manner as to necessarily indicate that they were fastened immediately before the killing, for the door leading into the alley might well have been fastened by one departing from the room and pulling it to after him. The fact that the deceased had two bullet wounds in his head, one of which, according to practically the uncontradicted testimony, would have rendered him unconscious, and the other that would cause immediate and complete paralysis, might have led the jury to ’believe that the deceased could not have fired both shots and that therefore he fired neither. Certainly, if the wounds were self-inflicted, the one that entered the brain and caused instant and complete paralysis could not have 'been fired before the bullet which entered the outer layers of the skull and fastened against “the second table ’ ’ of the skull. There is abundant testimony to show that this last-mentioned bullet produced such a shock as to render the deceased profoundly unconscious, and, notwithstanding the testimony of the experts who stated that this unconsciousness would not endure longer than five (minutes, the jury, from the testimony of others and judging the wound and its consequences in the light of common sense, might have reasonably inferred that the unconsciousness endured for a longer time and that the deceased could not have fired the shot into his brain which killed him.

Only one witness testified that there were any powder 'burns on the face or forehead of the deceased, and his statement was not a positive one. There were nine witnesses, all of whom made examinations immediately after the discovery of the body of the deceased, and all stated that there were no powder burns or discolorations from powder on the face or' forehead of the deceased. A number of witnesses testified that, from their observation and experience, powder burns would appear where the pistol was held against the forehead or within eighteen inches of it at the time the pistol was fired. One witness experimented on the body of a freshly plucked fowl by firing shots into its body -with a pistol muzzle pressed against it and from six to eighteen inches away, and he testified that each of the shots caused powder burns to appear on the body of the fowl. There was some testimony that a pistol fired with the muzzle touching' the forehead would not leave any powder burns, but this was strongly disputed.

Another significant fact appearing from the evidence was that the jpistol which was taken from the hand of 'the deceased was examined by two witnesses on tbe same day of the killing, and one of these witnesses appears to have been a disinterested witness. He testified that he examined the pistol by looking down its barrel with a white paper placed at one end and 'by this means conld see down the barrel. He stated that there were rust stains for a part of the way and the remainder was bright, and those familiar with the use of firearms testified that this condition would not appear if the pistol had been recently fired.

The deceased was found lying on his back, and, as one of the wounds caused instant and complete paralysis, he must have been in that position when the shots were fired. Both shots went “straight in,” and one who experimented testified that in order for the wounds to have been self-inflicted the pistol must have been held in a most awkward and unusual manner. Another circumstance was that when found the deceased lay upon his back with his hand naturally grasping the pistol and lying upon his' stomach. It was argued that if he fired the shot that caused immediate and complete paralysis, his hand would have fallen by the force of gravity on his breast, and this the jury might have inferred.

When if is remembered that there is a strong presumption of law against suicide and that fact must be affirmatively shown by direct proof, or from circumstances from which no other reasonable inference could be drawn, and when the further rule is borne in mind that we are irrevocably committed to the doctrine that we will not interfere with verdicts supported by any substantial evidence, and iii arriving- at whether the verdict is supported bv substantial evidence the strongest probative force will be given to the testimony and every reasonable inference deducible therefrom, in favor of the party receiving the verdict, I must respectfully dissent to the conclusions of the majority and to the order of reversal and dismissal.

I am authorized to say that Messrs. Justices Humphreys and Mehaeey join in this dissent.


author: Mehaeey, J.

text:
    Lewis v. United Order of Good Samaritans.
    Opinion delivered December 15, 1930.

      Carmichael $ Hendricks, for appellant.

      Bruce T. Bullion and Jno. P. Streepey,.for appellee.
   Mehaeey, J.

This is a suit on a foreign judgment. The complaint states that on November 2, 1929, plaintiff in the district court of Wyandotte County, Kansas, under the style of Louisiana Lewis, plaintiff, v. United Order of Good Samaritans, a corporation, and F. Fitzpatrick, defendants, filed a petition to recover on a policy of insurance issued (by the United Order of Good Samaritans on the life of Anthony Lewis, in which plaintiff was named as beneficiary, and which provided for payment of $1,000 for natural death and $2,000 for accidental death. That summons was issued on said petition and services were had as shown by a copy of the service set out in the complaint; that judgment was rendered against the defendant by the Kansas court on December 16, 1929, for $2,000. The prayer is for judgment for $2,000, interest and costs. A copy of the petition filed in the District Court of Wyandotte ¡County, Kansas, was attached to and made part of this complaint. ¡Copy of the judgment of the Kansas court recited that the defendant had been personally served with summons, service of same being had on the agent of the above company, as provided by law;. Defendant filed motion to dismiss, answer, motion to transfer to equity and motion for bond for costs. Thereafter the defendant filed a substituted answer in which it is alleged that neither F. Fitzpatrick nor Bessie (E.) Young were agents of defendant in the State of Kansas at the time service of summons was attempted to be made on said Bessie (E.) Young by delivering a copy thereof to her in Wyandotte County in said State; neither F. Fitzpatrick nor Bessie (E.) Young were authorized or empowered to represent defendant in any capacity in the iState of Kansas at said time. The said Fitzpatrick was not employed by defendant in any capacity at the time it is alleged a policy of insurance for plaintiff’s intestate was issued, and was not employed by defendant in any capacity at the time it is alleged he took up such policy of insurance; that the defendant is a fraternal benefit society, and service of process, under the laws of Kansas, can only be made on it by making service on the Insurance Commissioner of said State, if it had been admitted to transact business in said ¡State; that it was not and never had been licensed or admitted to transact business in said State of Kansas and therefore could not be sued in said State; that it had never transacted business in the State of Kansas, and had never applied for or been licensed to do so; that said court had no jurisdiction of it to render any judgment against it; that it was never notified of the pendency of said suit; had no knowledge of same and never appeared in said action nor otherwise gave the court trying same jurisdiction over it. The appellant filed the f ollowing .demurrer to the substituted answer:

“1. The answer does not state facts sufficient to constitute a defense.
“2. The answer does not state facts sufficient to entitle the defendant to the relief sought.
“3. The duly verified and certified copy of the judgment attached to the complaint, and upon which suit is based, finds and shows there was proper service.
“4. The recitation in the Kansas judgment that service was had is conclusive, and the record reciting it cannot be contradicted.
“5. The defendant cannot show by testimony aliunde that the defendant was not served properly in the State of Kansas, because each State is a judge of its own service, and the finding of the judgment as to service is conclusive on every one.
‘ ‘6. Foreign judgments must be treated like domestic judgments, and the validity of a domestic judgment cannot be impeached as to want of service by testimony aliunde, but the recitations in the record are conclusive.”

The court overruled the demurrer, and plaintiff declining to plead further, the complaint was dismissed. The case is here on appeal. The only question for our consideration is: Is the recital as to jurisdiction in a foreign judgment conclusive or can it be impeached for want of jurisdiction ?

Article 4, § 1, of the 'Constitution of the United States is as follows: “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. ’ ’

“Under the provisions of the Constitution of the United States and the Federal statutes enacted thereunder requiring that a judgment rendered in one State must be given in all other States the same faith and credit which it has by law or usage in the State in which it was rendered, judgments in personam of sister States are placed on the same footing as domestic judgments as regards the merits oif the claim or subject-matter of the suit, and when offered as evidence, or pleaded as the foundation of a right, in an action in the courts of another State, are entitled to the same force and effect as they have in the 'State where rendered,” 15 R. O. L. p.. 927 et seq.

There is no conflict in the authorities as to the above statement of the law. It will however be observed that the foreign judgment is placed on the same footing as domestic judgment as regards the merits of the claim, but “the clause of the Federal Constitution which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State applies to the records and proceedings of courts only so far as they have jurisdiction, and the courts of one State are not required to regard as conclusive any judgment of the court of another State which had no .jurisdiction of the subject or of the parties. It follows therefore that the jurisdiction of a court rendering a judgment or decree is always open to inquiry under proper averments, where its .conclusiveness is questioned in a court of another State, and when a defendant is sued in the court of his domicile on a judgment obtained against him in another State he may show that the court of such other State did not have jurisdiction to render the judgment against him. ” 15 R. '0. L. p. 929, et seq; 34 C. J. p. 1142; 34 O. J. p. 1144.

The general rule is that the full faith and credit clause of the Constitution and the laws enacted thereunder apply only where the court rendering the judgment had jurisdiction. The Supreme Court of the United States, in construing the provisions of the Constitution and the laws thereunder enacted, said: “This does not prevent an inquiry into the jurisdiction of the court in which a judgment is rendered to pronounce the judgment, nor of the right of the State to exercise authority over the parties or the subject-matter, nor whether the judgment is founded in, or impeachable for, a manifest fraud.” Cole v. Cunningham, 133 U. S. 107, 10 S. Ct. 269 ; Old Wayne Life Ins. Co. v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345 ; Thompson v. Whitman, 85 U. S. 457 ; Nat. Surety Co. v. Mulligan, 105 N. J. Law 336, 146 Atl. 372 ; U. S. Fidelity & Guaranty Co. v. Richey, (Tex. Civ. App.) 18 S. W. (2d) 231 ; Bonnet-Brown Sales Service v. Utt (Mo.) 19 S. W. (2d) 888 ; 2 Black on Judgments, p. 1250.

The weight of authority is to the effect that a foreign judgment, under the full faith and credit clause of the Constitution and the laws enacted thereunder, is conclusive on collateral attack except for fraud or want of jurisdiction. This court said in a recent case: “It is equally well settled that a foreign judgment can be attacked collaterally without violating the full faith and credit clause of the Federal Constitution in an action thereon in a State other than that in which it was rendered, by showing that the defendant had not been served with process and did not enter his appearance to the action in the State where the judgment was rendered.” Miller v. Brown, 170 Ark. 949, 281 S. W. 904. See Pickett v. Ferguson, 44 Ark. 177 ; National Exchange Bank of Tiffin v. Wiley, 195 U. S. 257, 25 S. Ct. 76 ; Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 37 S. Ct. 492 ; Barkman v. Hopkins, 11 Ark. 157. It is true that the judgment in the case of Miller v. Brown, supra, was a judgment of the justice of the peace court, but the transcript had been filed in the circuit court, as provided by the statute of Missouri. Bevised Statutes of Missouri, 1919, §§ 2850 and 2851, provide that the judgment shall be under the control of the court where the transcript is filed and may be revived and carried into effect in the same manner and with like effect as judgment of circuit courts, etc. “Where by the laws of one State a judgment of a justice of the peace, by virtue of entry of a transcript thereof in a superior court, acquires the force and effect of a judgment of the court in which it is entered, such judgment must be given the same force and effect in every other State.” 34 C. J. p. 1154.

Appellant contends however that when a judgment of a sister State is sued on in Arkansas it must be treated as a domestic judgment rendered by the courts of Arkansas. He quotes from and relies on the case of Boyd v. Roane, 49 Ark. 397, 5 S. W. 704. The Boyd v. Roane case is an Arkansas judgment rendered in one county in Arkansas and sued on in another county in Arkansas. It does not discuss the question here involved. We are required under the Constitution and laws to give full faith and credit to the judgment of a sister State. That is a judgment rendered in one State must be given in all other States the same faith and credit which it has by law or usage in the State in which it was rendered. The judgment sued on here was rendered by the court in the State of Kansas, and we must therefore give it tho same faith and credit which it has by law or usage in the State of Kansas.

In a case in the Kansas court the sheriff’s return showed that the writ was executed “by leaving a copy thereof at the usual place of residence of the defendant.” The Kansas court, after discussing the English rule and the decisions of the courts in this country, said: “We are aware it is a question of evidence and not of pleading; but we know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where is their place of business; and when tlie statute made it the duty of the sheriff to ascertain these facts, it did not make his return of such facts conclusive. Of his own acts his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge he must act from information, which will often come from interested parties, and his return thereof ought not to be held conclusive.” Bond v. Wilson, 8 Kan. 228, 12 Am. Rep. 466.

In a later Kansas case the court said: “It is true that § 572 of the Civil Code provides that a judgment shall not be vacated on motion, or petition, until it is adjudged that there is a valid defense to the action; but this section in the nature of things does not apply to judgment rendered by a court having no jurisdiction of the person of the defendant, and where the judgment, so called, is a nullity.” Hanson v. Wolcott, 19 Kan. 207. See also Reynold v. Fleming, 30 Kan. 106, 1 Pac. 61 ; McNeill v. Edie, 24 Kan. 108 ; Schatt v. Linscott, 80 Kan. 536, 103 Pac. 997 ; O’Neil v. Eppler, 90 Kan. 314, 133 Pac. 705 ; Supply Co. v. Whan, 111 Kan. 687, 208 Pac. 563.

If we give the same faith and credit to the judgment sued on herein as it has by the law or usage in the State of Kansas where it was rendered, we must hold that it may be impeached for want of .jurisdiction, notwithstanding the recitals in the record. Appellant calls attention to the case of Beauchamp v. Bertig, 90 Ark. 359, 119 S. W. 75, 23 L. R. A. (N. S.) 659 ; It is said in that case: “It is held-that the same effect is to be given to the record in the courts of the State where produced as in the courts of the State from which it is taken.” Applying that rule, here, the judgment sued on is to be given the same effect here where produced as in the courts of the State of Kansas from which it is taken. The latest case in this court is Miller v. Brown, supra, where the same rule was announced. The judgment of the circuit court is affirmed.

Hart, C. J., concurs.


author: Mehahfy, J.

text:
    Chastain v. Hall.
    Opinion delivered December 15, 1930.

      Finis F. Batchelor and Starbird Starbird, for appellant.

      Partain <& Agee, for appellee.
   Mehahfy, J.

Appellant filed suit in the Crawford Circuit Court for the value of certain, crops raised on appellant’s land. Appellant had entered into an oral contract with his relative, Ed Rogers. Rogers was in bad health and made an agreement with appellee by which he sold the hay and the use of the pasture to appellee. The appellant testified in substance that Rogers agreed to cultivate such of the farm as he could and to take pay for any improvements he might make out of the rent, and that the payment of the rent was to be made to appellant; that he did not rent Rogers any hay-lands. He testified that he knew there was three times as much land as Rogers could cultivate.

Appellant went with Jim Holland to the farm and knew that Holland was thinking of buying Rogers ’ crop. Appellee was present at the time, and Rogers told appellant that he had given all the Johnson grass to appellee. When Hall purchased the crop, he took possession and mowed the meadow, but no one had a right to cut the meadow without talking to appellant, and $50 would have been a reasonable price for the hay cut; doesn’t know how many apples there were but understood that they were worth 75 cents a bushel; thought there was 100 or 150 bushels. He did not claim any part of the crop, but claimed that for use of the pasture he should have $50 and for the hay $50. Rogers was to make certain repairs. The only thing said about rent was that Rogers might take pay for his work out of rent. Rogers told appellant he was going to sell to Hall. Appellant sent John Myers to- get some apples, and he got some apples and a few cantaloupes. Rogers, who made the contract with appellant, testified that he had the place and lived there about three months. He was to have all he made and they were to divide the apples equally. He was to pay no rent, that he had made some improvements and sold what he had there to appellee. He did not remember that he agreed with appellant to take any pay for work out of the crop. There was nothing said about anything except the apples; told appellant that appellee was there to cut the Johnson grass. He got five bushels of apples. He did nothing to the meadow except fix a little fence.

Appellee Hall testified that when Rogers got sick he bought his crop and pasture and had already bought the hay; bought everything except the apples; gathered five bushels of apples.

Appellant told appellee that he ought to have some of the crop and appellee told him to help himself. Witness testified that Myers took about everything away. When asked if Myers got some peanuts, he said no, but that he got about everything else.

There were other witnesses who testified, but we do not deem it necessary to set out their testimony.

The court then on its own motion gave the jury the following instructions:

“1. Gtentlemen of the jury, the plaintiff sues defendant for use and rent, especially for the hay and pasture, of certain farm lands. Defendant admits he used the premises for pasture and received the hay. Defendant denies he owes anything, but charges he purchased the use of the premises for pasture and hay from Ed Rogers.
“2. You will find for the plaintiff the reasonable value of the hay that you find was produced on the premises, and the reasonable value of the use of the pasture as used by defendant, not to exceed the sum of $125, unless you find he purchased it from Ed Rogers and that Rogers had a right to sell.
“3. The plaintiff contends that he was to have half of the apples. Defendant admits he was to have half of the apples. Plaintiff contends that he did not receive half of the apple crop. If you find that he didn’t, and the failure was caused by defendant, Hall, then plaintiff would be entitled to half the apple crop, less that he did receive. ’ ’

Appellant contends for a reversal of the case because he says if Bogers was to pay no rent he was not a tenant, but a mere licensee. However, Bogers was to make some improvements, and the undisputed proof shows that he did make some improvements. Moreover, one could be a tenant under a. contract like the one Bogers says was made in this case, whether he was to pay any rent or not. A tenant is one who holds possession of real estate by any kind of right; one who has the occupancy or temporary possession of land or tenements, the title of which is in another.

Appellant next contends that instruction No. 1 given by the court was misleading because it indicated that Bogers had authority to rent the farm to the appellee, although appellant says Bogers had no authority.

In the first place, instruction No. 1 does not indicate that Bogers had authority to rent to appellee, but is simply a statement of the issues, one of which is that appellee claimed to have purchased from Bogers. Instruction No. 2 clearly submitted the issues to the jury and was as favorable to appellant as he was entitled to. It directed the jury to find for the plaintiff the reasonable value of the hay and the reasonable value of the use of the pasture, unless they found that appellee purchased it from Bogers and that Bogers had a right to sell. In other words, blefore the jury could find for the defendant under the above instructions, it would have to find from the evidence, first, that appellee purchased from Bogers, and, second, that Bogers had a right to sell. Certainly it cannot be contended that appellant would be entitled to recover if appellee purchased from Rogers’ property that Rogers had a right to sell.

Appellant contends, however, that there was no testimony upon which to base instruction No. 1. We think Rogers’ testimony not only justified the giving of this instruction, but that appellant acquiesced in the sale made by Rogers. Pie was present when Plolland went to purchase the crop and made no objections. Appellant also complains about the action of the court in giving instruction No.' 3 and in refusing to- give instructions requested by the appellant. Whether the instructions requested by appellant are correct statements of law of not, is immaterial, because instruction No. 2 given by the court covers the whole case, for under that instruction it was a question of fact for the jury as to whether appellant purchased the property from Rogers, and also a question of fact for the jury as to whether Rogers had a right to sell.

The jury having found these issues against the appellant, their findings on these matters are conclusive, and the judgment of the circuit court is affirmed.


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    Mikel v. State.
    Opinion delivered December 15, 1930.

      G. L. Grant, for appellant.

      Hal L. Norwood, Attorney General and Robert F. Smith, Assistant, for appellee.
   Mehaeey, J.

The grand jury of Sebastian County returned an indictment against the appellant charging him with ¡manufacturing intoxicating liquor. A change of venue was granted by the court to Scott County upon application of the appellant. There were three indictments against the appellant, one for manufacturing intoxicating liquor, another for possessing a still, and another for possessing mash. The jury found the appellant not guilty of the crime of possessing a still and also found him not guilty of the crime of possessing mash, but he was convicted of the crime of manufacturing intoxicating liquor and sentenced to a year in the penitentiary. He prosecutes this appeal to reverse the judgment of conviction.

The officers who made the arrest testified to facts which, if believed by the jury, justified it in finding defendant guilty. The evidence offered on the part of appellant was in direct conflict with the evidence of the State, but, under the well-established rule, if there was any substantial evidence to support the verdict of guilty, such verdict will not be disturbed by this court on account of the insufficiency of the evidence. The appellant himself says that, if the witnesses who testified on behalf of the State are to be believed, the appellant is guilty. It is therefore unnecessary to set out the evidence.

It is earnestly contended however by the appellant that the court arbitrarily excluded appellant’s witnesses and ordered the State’s witnesses to remain in the court room, and that the court erred in declaring counsel for defendant to be guilty of improper conduct in commenting upon the fact that the State’s witnesses were permitted to remain in the court room. Section 4191 of C. & M. Digest, provides: “If either party require it, the judge may exclude from the court room any witnesses of the adverse party not at the time under examination so that he may not hear the testimony of the other witnesses.” It is insisted that when the trial began the defendant moved the court to exclude all witnesses from the court room. The record does not show this. What the record does show is that the court refused to exclude the State’s witnesses who were officers of Sebastian County, and that appellant objected and excepted to this action of the court. It may perhaps be inferred from this that there had been a request of the court that the witnesses be excluded, but the record does not otherwise show it. It simply shows that the court refused to exclude the officers of Sebastian County, who were witnesses in the case. Whether any other witnesses were excluded is not shown by the record; however, assuming that the request was made to exclude all witnesses, and assuming that the court excluded all except the officers of Sebastian County, this was a matter within the discretion of the trial court. “The question as to whether any witness or all of the witnesses shall be put under the rule is one that addresses itself to the sound discretion of the court, and that discretion was not abused in permitting Duty to testify.” Oakes v. State, 135 Ark. 221, 205 S. W. 305. Duty was one of the attorneys employed in the prosecution, and had not been put under the rule as other witnesses had. The excluding of witnesses from the court room when not under examination is within the discretion of the court. St. L. I. M. & S. R. Co. v. Pate, 90 Ark. 135, 118 S. W. 260 ; Hlass v. Fulford, 77 Ark. 603, 92 S. W. 862. It does not appear that the court abused its discretion in refusing to exclude the State’s witnesses from the court room. The appellant gave no reason for objecting to the action oif the court; he did not at that time claim that any prejudice would result; he simply contented himself with objection to the action of the court in not excluding the State’s witnesses from the room. As we have already said, however, the record does not show except inferentially that any witnesses were excluded.

The appellant insists that the court erred in not permitting counsel for appellant to argue that the State had obtained an unfair advantage over the defendant by reason of the State’s witnesses being allowed to remain in the court room to hear each other testify and to hear defendant’s witnesses testify. The court, of its own motion, interrupted defendant’s attorney and would not permit him to make this argument; the attorney attempted several times to argue that the State had obtained an nnfair advantage over the defendant. The court instructed the jury not to consider this argument and admonished the attorney not to persist in this argument. There is nothing in the record to show that an unfair advantage was obtained by the court’s refusal to exclude the State’s witnesses from the court room, and the question of excluding witnesses as well as other questions of procedure during the trial are within the sound discretion of the trial court, and a judgment will not be reversed because of the court’s action unless it appears that the court’s discretion was abused. Brooks v. Perry, 23 Ark. 32 ; Dobbins v. Oswald, 20 Ark. 624 ; Tuttle v. State, 83 Ark. 379, 104 S. W. 135 ; Midland Valley Railroad Co. v. Hamilton, 84 Ark. 81, 104 S. W. 540 ; United Order of Good Samaritans v. Lomax, 172 Ark. 350, 288 S. W. 709.

It does not appear that the court abused its discretion in this case. The counsel'for appellant, of course, had the right to call attention to the fact that the State’s witnesses heard each other testify and heard the witnesses for defendant testify and had a right to argue from that the credibility of the witnesses, but it was improper to state to the jury that the ruling of the court had given the State an unfair advantage, and to persist in that argument after he had been admonished by the conrt that it was improper. There is nothing to indicate that the trial court abused its discretion, and the judgment of the circuit court is therefore affirmed.


author: •McHaney, J.

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    Livingston v. Forest Park Corporation.
    Opinion delivered December 15, 1930.

      McGill £ McGill, Gish £ Johnson, Owens <£ Ehrman and John M. Lofton, Jr., for appellant.

      Breckenridge £ Bostick, Williams ■£ Williams and A. L. Smith, for appellee.
   •McHaney, J.

In the case of Mazda Oil Corporation v. Sloan, post p. 945, we sustained the right of the Forest Park Corporation to borrow money from the appellee, Thompson Oil & Gas Company, and affirmed a judgment in its favor against the Forest Park Corporation for approximately $100,000. This judgment was rendered in the chancery court of Benton County on November 8,1929. Shortly after the rendition of this judgment, the officers of the Forest Park Corporation called a meeting of the common stockholders for December 27, 1929, notice of which was given to all holders of common stock,. they being the only stockholders entitled to vote at such meeting, for the purpose of determining what further steps should be taken to pilot its course through the stormy seas of financial difficulties which had overtaken it. This meeting was held according to notice, and a resolution was then and there adopted to dissolve the corporation, liquidate its assets, and surrender its charter to the -Staté. Appropriate certified copies of this resolution were promptly filed with the county clerk and Secretary of State by the proper officers of the company, who were authorized and directed so to do by said resolution. On the next day after said meeting, December 28, Thompson 0:1 & Gas Company filed its complaint in the chancery court, alleging the insolvency and the dissolution of the corporation as above stated, the indebtedness to it, and other allegations showing the necessity for the appointment of a receiver, and prayed that a receiver be appointed to take charge of the assets. This was done on the same day, without objection, and the cause continued to January 10, to permit objection to the granting of a petition for an order to sell the assets. Appellants, Mrs. A. M. Livingston and four others, intervened in this action and made objections to the appointment of a receiver and to the petition to sell the properties on a number of grounds, some of which have now passed out of the case by reason of the decision in Mazda Oil Corporation v. Sloan, supra. The court overruled all objections, declined to permit further proof thereon, and on March 4, entered an order confirming the appointment of C. R. Jones as receiver, directed him to make and file on or before March 12, 1930, a correct inventory of all assets, and continued the matter to March 14 to set a date of sale. On the latter date the court ordered the property sold on April 10 on terms fixed by the court, which sale was held and report made that all the assets were sold to the judgment creditor for $80,000, it being the only person who had filed a claim. This report was approved, confirmed .and deed ordered made to purchaser of all real estate and proper assignment and delivery of all personal property to it. The interveners have appealed.

■Complaint is made that the directors of the Forest Park Corporation failed to protect the interests of the stockholders, and that they resisted every action of the interveners. What they could have done to save the company is not pointed out, and we are unable to see wherein they violated their trust. It was hopelessly insolvent. This is nowhere denied by appellants. It owed Thompson Oil & Gas Company on judgment more than $100,000, had no money with which to keep its property insured, to pay taxes, or to hire a caretaker, much less to pay said judgment and operate its properties as a summer resort known as Forest Park. It had operated during the past season at a heavy loss.

The principal contention for a reversal seems to he that the court acted arbitrarily in refusing to permit appellants to fully develop their case. They say they wanted to prove that no notice was given to holders of preferred stock of the meeting at which the dissolution resolution was voted; that a large amount of stock voting in favor of said resolution had been issued without consideration and was void; that certain common stock had been issued to Mr. Breckenridge and Williams & Williams illegally; and that, on account of the pending appeal in Mazda Oil Corporation v. Sloan, it could not be definitely known whether the judgment in favor of Thompson Oil & Gas Company would be sustained, and, if reversed, Forest Park Corporation would be solvent and owe no debts. It occurs to us, as it undoubtedly did to the trial court, that none of the evidence desired to be offered, was of any importance to a proper determination of the case, and therefore immaterial and irrelevant. Whether the holders of preferred stock were entitled to notice or not, we do not decide, for the court had the power and the duty to appoint a receiver on petition of Thompson Oil & Gras Company irrespective of the stockholders’ meeting, or any action taken thereat, in view of the facts alleged in the petition therefor. Therefore it becomes immaterial as to whether common stock voted for the resolution which had been improperly issued. In Mazda Oil Corporation v. Sloan, it was definitely decided that there was a valid judgment against Forest Park Corporation. So we are unable to see wherein any of the evidence appellants wanted to offer could have changed the result. The property has been sold for $80,000. The sale was widely advertised in the leading newspapers of Arkansas and Oklahoma. Appellants had notice of the day of sale. It brought a very substantial sum, of which no complaint is made, but not enough to pay the judgment creditor in full, and nothing to preferred stockholders. They being prior to common stock, with Class A preferred ahead of Class B, we think it cannot very much concern a Class B preferred stockholder how much common is outstanding, and whether issued legally or otherwise, as it is without value except possibly for decorative purposes, or perhaps as silent reminders of a pleasant dream.

Affirmed.


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    Rachels v. Deener.
    Opinion delivered December 15, 1930.

      'J. N. Rachels, for appellant.

      Brundidge <& Neelly, for appellee.
   McHaney, J.

Appellant, who is a "reputable lawyer of Searcy, Arkansas, sued appellees for damages, alleging that they had libeled him by writing, mailing and causing to be delivered the following letter:

“August 20, 1926.
“J. C. Wyatt, Sec’y & Treas.,
“Union Trust Co.,
“Carthage, Mo.
“Dear Sir: We are in receipt of your letter of the 18th asldng information concerning J. N. Rachels, attorney, of Searcy, Ark.
“Mr. Rachels has lived in Searcy for the past twenty years. During this time he has been engaged in the practice of law. For four years he was district attorney; this position he filled with fair credit and satisfaction. Since that time he doesn’t seem to have gotten on very well. He claims to have lost some money in the oil business. We have found it necessary to charge off some notes that he owed this bank as they were unoolleetable. Would suggest rather conservative dealings with him.
“We ask that you keep this information strictly confidential. We really prefer your destroying this letter after it has served its purpose.
“Tours truly,
“J. H. Deener, Vice Pres.”

It is alleged that the contents of said letter were false and malicious and known to be false by appellees; that it was written for the purpose of injuring’ him in his good reputation, and of destroying confidence in blm as a lawyer; and that it constituted a libel on his character and reputation to his damage in the sum of $10,000, for which amount he prayed judgment. A demurrer was interposed and sustained to this complaint, one of the grounds of which was “because the instrument set out in said complaint is not actionable, per se, and the complaint fails to allege any specific damage sustained by plaintiff.” Appellant declined to plead further, and his complaint was dismissed. Hence this appeal.

Was the publication of the above letter libelous pet se? If so, the demurrer was improperly sustained; but, if not so, then the complaint was open to demurrer in the absence of an allegation of special damages. Honea v. King, 154 Ark. 462, 243 S. W. 74. There was no such allegation. One sentence in the letter says that “For four years he was district attorney, this position he filled with fair credit and satisfaction.” This, we take it, is complimentary. Next it says: “(Since that time he doesn’t seem to have gotten on very well.” Nothing libelons about that. “He claims to have lost some money in the oil business.” Nothing there to sustain an action for libel. “We have found it necessary to charge off some notes that he owed this bank as they were uncollectable. Would suggest rather conservative dealings with him.” This is the most damaging statement contained in the letter, and it is not libelous per se, as, when analyzed, it amounts only to a statement that his credit at the bank is not so good as it once was. Our statute, (§ 2390, O. & M. Digest), defines libel as follows: “ A libel is a malicious defamation, expressed either by writing, printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, veracity, virtue or reputation, or to publish the natural defects of one who is living, and thereby expose him to public hatred, contempt and ridicule.” In Honea v. King, supra, we held that in determining whether the written words are libelous, the entire article must be considered and construed, and the words used must be taken in their plain and natural meaning. When we have done this, we find nothing in the letter which tends “to impeach the honesty, integrity, veracity, virtue or reputation” of appellant, nor anything to “expose him to public hatred, contempt and ridicule.” True, the.letter states the bank holds some notes which were charged off because uncollectable. But that does not amount to a charge of dishonesty, nor impeach his integrity, for we all know that many honest men, men of high integrity, sometimes become unable to pay their honest debts. The words used do not impute to him a want of capacity or fitness to engage in his profession as a lawyer and nothing is said which can reasonably be construed to be a reflection on him in his professional capacity. The most that can be said is that there is an imputation of insolvency which is not actionable per se. 17 R. C. L., p. 307, § 47.'

The words used not 'being libelous per se, and there being no allegation of special damages, the complaint failed to state a cause of action, and the demurrer was properly sustained.

Affirmed.


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    Blanton Company of Delaware v. Stewart.
    Opinion delivered December 15, 1930.

      Moore & Moore, for appellant.

      Sheffield \& Coates, for appellee.
   Butler, J.

The only question in this case is whether the oral contract sued on was to be performed within one year from the date it was made. It was and is the contention of the appellant that the evidence showed that the oral contract was not to be performed within one year and was -within the statute of frauds, § 486'2 of C. & M. Digest, which provides: “No action shall be brought * * * to charge any person upon any contract, promise or agreement that is not to be performed within one- year from the making thereof, unless the agreement, promise or contract upon which such action shall be brought or some memorandum or note thereof shall be made in writing and signed by the party to be charged therewith, or signed by some other person by him thereunto authorized.”

The appellee contends that the contract upon which he brought suit and for breach of which he claims damage was to be performed within one year from the date of its making. This issue was submitted to a jury under instructions which are conceded to have been correct. The appellee testified that he was employed by the appellant’s agent on the first day of August, 1929, at a certain monthly salary, his time to begin on the day the contract was made and to terminate on the 31st day of July, 1930; that at the time the contract was made he was in the city of Memphis and the services he was to render were to be performed at Helena; that it was about five or six days from the time the contract was made before he actually entered upon the discharge of his duties, but that the understanding was that his time should begin on the first day of August, 1929, and continue for a year.

There were certain statements made by the appellee during his examination which were contradictory of other statements as to the time when his contract should terminate, and which indicated that his employment was to continue for more than one year from the date of the contract. These statements were brought out on cross-examination of the appellee, and his was the only testimony relative to the duration of his contract, the testimony on the part of the appellant being to the effect that there was no contract except a month to month employment. From the testimony of the appellee the jury might have inferred that the contract was to be performed within one year, but there was sufficient equivocation for them to have concluded that the contract was not to be performed within one year. This testimony, therefore, made it clearly a question of fact for the jury, and, as it is admitted that the court correctly declared the law, the verdict and judgment of the lower court must be affirmed.