Fleming v. Cooper, 5-790

• Decision Date: 05 December 1955
• Docket Number: No. 5-790,5-790
• Citation: 284 S.W.2d 857,58 A.L.R.2d 694,225 Ark. 634
• Parties: , 58 A.L.R.2d 694 Francis W. FLEMING, Appellant, v. Ellis COOPER, Appellee.
• Court: Arkansas Supreme Court

Page 857

284 S.W.2d 857

225 Ark. 634, 58 A.L.R.2d 694

Francis W. FLEMING, Appellant, v. Ellis COOPER, Appellee.

No. 5-790.

Supreme Court of Arkansas.

Dec. 5, 1955.

Rehearing Denied Jan. 9, 1956.

Jeff Duty, Claude Duty, Rogers, for appellant.

Lovell & Evans, Springdale, for appellee.

HOLT, Justice.

Francis W. Fleming, appellant, is the wife of Joe W. Fleming and has, for the past 15 years, owned a small farm in Washington County. Appellee Cooper in 1939, under an oral lease agreement with Joe W. Fleming, became Fleming's tenant from year to year on a fifty-fifty basis and so continued until January 22, 1952, when he left the premises to avoid eviction by the Sheriff. On August 4, 1952, Cooper sued Joe W. Fleming, as the owner of the leased premises (In Case 12872), for his share of the profits alleged due under his lease. Fleming answered, admitting that Cooper was his tenant, and in a cross complaint alleged, in effect, that under the tenancy agreement, Cooper owed him a substantial amount for expenses incurred in 1949, 1950 and 1951. Cooper filed a reply and also a cross complaint. Upon trial the court, on September 30, 1953, rendered a decree in favor of Cooper. On appeal here that decree was affirmed. Reference is made to that opinion,--Fleming v. Cooper, Ark., 271 S.W.2d 772, for the complete decree which appears embodied therein.

Pending execution on the mandate from this court in the above decree, appellant, wife of Joe W. Fleming, on November 12, 1954 filed the present suit alleging, in effect, that Cooper became her tenant in October 1939 on the same land involved in the first suit above (12872) and continued as her tenant until the close of 1951: that during 1951 and 1952 she spent substantial sums of money on the land, that her husband, Joe W. Fleming, was her manager and that Cooper had orally agreed to pay her the money she had expended; that in November 1951 she and Cooper became involved in a disagreement or controversy as to the correct amounts owed to each party, and as to further occupancy of the real estate, and that she had served notice on him to vacate; that on January 15, 1952 Cooper, through his attorney, proposed an accord and satisfaction based on two letters attached to her complaint, and that she agreed to his proposal. She sought to enforce this accord and satisfaction agreement. She further alleged that Cooper had a judgment against her husband, Joe W. Fleming, in the amount of $828.80, proceeds from the 1952 crop on the above land, which she alleged to be her property, and further prayed for judgment for this amount. Her husband, as garnishee, answered that he had paid this money to his wife, Francis W. Fleming, November 18, 1954 and asked to be discharged. Joe W. Fleming on December 6, 1954, paid into the registry of the court $917.43 which amount he had paid to his wife on November 18, 1954. A demurrer to Francis W. Fleming's complaint was overruled and on February 5, 1955, Cooper filed a combined motion to dismiss and an answer. His answer was a general denial and he specifically pleaded that Francis W. Fleming was barred, in the present suit, by the statute of limitations, and by the former suit (12872) on the ground of res judicata and estoppel.

On a trial the court, February 26, 1955, sustained Cooper's plea of res judicata and estoppel, dismissed appellant's complaint for want of equity, and awarded Cooper $941.10 plus interest and costs. From that decree is this appeal.

Appellant relies on two points: 'I. The court erred in sustaining the motion to dismiss filed by the appellee in that the defense of res judicata and estoppel does not apply under the facts in this case and was not established by the appellee. II. The appellee did not discharge the burden of proof necessary to establish the defense of res judicata and estoppel.' In the decree of February 26, 1955 the trial court found in part--'* * * the examination and study I have made of the instant case and prior case No. 12872 convinces me in truth and in fact that the two cases were identical in that the plaintiff (appellant) having set up and pleaded a contract, proceeds to plead and set up in almost precisely the same language, the earlier accounts of debit and credit and the same basis for debit and credit and the same prayer for relief as was embodied in the complaint in the first suit; * * * It is my belief that the pleader in this case had asked for the specific relief that the plaintiff in the former complaint had asked for in his prayer of relief and that the relief in both cases was based on the same set of facts; that there was the same previously pleaded owner-tenant farm arrangement; that the court does not pass on whether or not the newly alleged contract was a proper contract but it is clear to me that the two cases are the same; that the first case was tried in my court and appealed to the Supreme Court and decided by the Supreme Court; that res judicata is simply the basic proposition of estoppel; * * * It is, therefore, on particular facts involved in the case concerned, its pleadings and the particular circumstances existing, that sometimes a wife may be collaterally estopped by reason of her husband's act or acts as in the instant suit by reason of the relationship of husband and wife where the wife has knowledge of such acts * * *. She knew about the other suit because she stated in the notice to vacate 'You are hereby notified to quit and vacate our property' and that such notice was signed by Joe W. and Francis W. Fleming, owners. In the original suit I do not recall that it was alleged or admitted in specific terms that Joe W. Fleming was the owner of the land but is certainly clear to me from the pleadings and the testimony all the way through that Joe Fleming asserted himself to be the owner; that in this action the plaintiff says: 'I am the owner and Joe Fleming was my manager, under my immediate supervision, and that certain things were done.' The plaintiff then knowledgeably acquiesced in her husband's assertion of rights on his own account, and now she seeks to assert those same rights on her own account relegating her husband to the role of farm manager, or owner's agent. I think it boils down to the fact that the Flemings were husband and wife. In the second suit in which Francis Fleming is plaintiff, she is trying the second time to cover the same ground that her husband covered in the original suit.'

We agree that the preponderance of the evidence supports the above findings. These two cases covered the same subject matter, the same evidence, and involved, in effect, the same issues sought to be raised in the present suit. The only difference in that Francis W. Fleming, the wife of Joe W. Fleming, was not made a party in the first suit. We are convinced, however, that in that first suit her husband with her knowledge and consent and within the scope of his authority was acting as her agent and manager; that all the while she stood idly by with full knowledge of what was going on, the pendency and progress of the suit, and the final result thereof. In fact, appellant seems to concede that her husband was her agent until the alleged contract of January 19 (based on the letters). She says: 'In this case, the appellant alleged that Joe W. Fleming was her agent during the rental of the farm and in the negotiation of the contract with the appellee, but no where does she allege that he was her agent after the contract of January 19th was entered into.' It appears conclusive that she must have known about the suit because she and her husband had the following Notice to Vacate served on Cooper.

'To Ellis Cooper, Route 2, Springdale, Arkansas.

'You are hereby notified to quit and vacate our property, more particularly described as follows: [describing it]. You are to vacate said property within ten (10) days after the service of this notice upon you. Witness our hands this 9th day of January, 1952.

'/s/ Joe Fleming

'/s/ Francis Whitlow Fleming, Owners.'

In this notice it will be observed that they both claim to be owners of the property involved. It further appears that Francis W. Fleming, following the above notice, called the court reporter several times inquiring about the progress of the suit, and in the circumstances, we hold that she was in privity with him and being his wife was equally bound and concluded by the first suit above. The general and applicable rule is stated in 50 C.J.S., Judgments, § 798, p. 342, 'There is no legal privity between a husband...