Holland v. Walls, CA

• Decision Date: 30 September 1981
• Docket Number: No. CA,CA
• Citation: 621 S.W.2d 496,3 Ark.App. 20
• Parties: Alfred J. HOLLAND, Appellant, v. Frances WALLS and Walls Abstracter, Inc., Appellees. 81-83.
• Court: Arkansas Court of Appeals

Page 496

621 S.W.2d 496

3 Ark.App. 20

Alfred J. HOLLAND, Appellant, v. Frances WALLS and Walls Abstracter, Inc., Appellees.

No. CA 81-83.

Court of Appeals of Arkansas.

Sept. 30, 1981.

Alfred J. Holland, Paragould by H. David Blair, Batesville, for appellant.

Branch & Thompson, Paragould, for appellees.

CORBIN, Judge.

On March 18, 1975, the appellant and appellee entered into a written executory contract by which the appellant agreed to buy and the appellee agreed to sell an existing abstract business known as the Paragould Abstract Company in Greene County, Arkansas. By the terms of the agreement, the appellant was to receive the assets of the business except the accounts receivable, cash on hand or money on deposit as of the close of business on May 16, 1976. The appellant was to pay the appellee the purchase price over a prescribed schedule set forth in the contract.

Prior to the consummation of the contract of sale by delivery of the business and abstract books to the appellant, the appellee had microfilm copies made of part of the tract books.

The contract provided that appellant would employ appellee for two years after the sale of the business. The agreement also provided that appellee would not compete with appellant for three years from the date of May 16, 1976. The appellee terminated her employment with appellant in February, 1979. In March of 1979, she started working on abstract books with the intention of forming another abstract business. Around this time, two employees of the appellant terminated their employment and went to work for the appellee. In June of 1979, appellee's title plant was licensed and she went into direct competition with appellant.

The prints of the microfilm copies of a portion of the tract books were used along with new tract books made by the appellee and her employees to obtain a license for a title plant. The appellee did not advise appellant that a duplicate set of tract books had been made nor did the appellant otherwise acquire this knowledge until later.

Appellant commenced this action seeking injunctive relief against the appellee's use of the tract books reproduced from appellant's books and an accounting of benefits gained by use of the tract books. The trial court denied all relief and from that judgment comes this appeal. We reverse.

In matters of equity the Court is one of conscience which should be ever diligent to grant relief against inequitable conduct, however ingenious or unique the form may be. Whitaker & Co. v. Sewer Improvement District No. 1., 229 Ark. 697, 704, 318 S.W.2d 831 (1958).

The sales agreement dated March 18, 1975, between the parties stated in part:

(1) The Seller agrees to sell and the Buyer agrees to buy on May 16, 1976, the Seller's business known as Paragould Abstract Company, which consists of the inventory, supplies and equipment used in and making up Paragould Abstract Company, including, but not limited to, the following:

8 property tract books currently posted to date of sale; all exposed microfilm which shall include filmed copies of all record books which are currently being copied by the Seller, which copies shall include all such books which are completed and filled through July, 1975; The Seller shall not be obligated to microfilm any such books which are only partially filled as of July 31, 1975; inventory of abstracts and plats ....

The appellee, Frances Walls, stated upon direct examination:

He did buy the entire Paragould Abstract Company and got everything I had at that time, everything that was listed on the contract and more. ... I did sell him the business.

These tract books, about which this litigation centers, are indices of deeds and mortgages affecting title to land within Greene County, Arkansas, which indices are arranged by legal descriptions of the property. Thus, by use of these books a list of citations to the books of record, wherein all transactions affecting a given parcel may be located, can be readily compiled. From this, an abstract of title may be quickly prepared. These tract books are both a practical and legal necessity for engaging in the business of abstracting the title to land. They are a practical necessity because the time which would be required to trace the chain of title to a particular tract of land is expedited by use of indices maintained by the recorder. On this point appellee testified:

Q. That's the value of having these books made in that form, is that it lists all transactions by legal description. And you save tremendous amount of time in checking out title, doesn't it.

A. Yes.

We believe the contract between the parties included the duplicates of the tract books. The appellee breached the contract when she failed to turn over the duplicates to appellant. The terms of the contract included the language "including, but not limited to," and listed certain specific items.

We find that the duplicates were tangible property rights. It would be foolish for us to believe that the appellant paid $60,000 for the right to compete with appellee. The duplicates were part and parcel of the sales agreement and should have been relinquished by the appellee at the time she turned the business over to the appellant.

Additionally, appellee converted the duplicates (which we find to be the property of appellant) when she exercised dominion over the property in violation of appellant's right to possession. Whether the conversion was actual or constructive, there was nevertheless a conversion. See Plunkett-Jarrell Grocery Co. v. Terry, 222 Ark. 784, 263 S.W.2d 229 (1953).

These abstracts were not made for publication in the general sense. Publication as such would defeat the reason for their production. Their value derives chiefly from the time and expense incurred in their production; and very...