{ "id": 1656531, "name": "Arnold Barber & Beauty Supply Company v. Provance", "name_abbreviation": "Arnold Barber & Beauty Supply Co. v. Provance", "decision_date": "1952-12-22", "docket_number": "4-9951", "first_page": "385", "last_page": "389", "citations": [ { "type": "official", "cite": "221 Ark. 385" }, { "type": "parallel", "cite": "253 S.W.2d 367" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "2 Ark. 14", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1848170 ], "opinion_index": 0, "case_paths": [ "/ark/2/0014-01" ] }, { "cite": "194 S. E. 398", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "56 Ga. App. 877", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1484569 ], "opinion_index": 0, "case_paths": [ "/ga-app/56/0877-01" ] }, { "cite": "2 A. L. R. 114", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "168 N. W. 491", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "202 Mich. 215", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1758185 ], "opinion_index": 0, "case_paths": [ "/mich/202/0215-01" ] }, { "cite": "298 S. W. 884", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "175 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403605 ], "opinion_index": 0, "case_paths": [ "/ark/175/0158-01" ] }, { "cite": "37 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871000 ], "opinion_index": 0, "case_paths": [ "/ark/37/0614-01" ] }, { "cite": "218 Ark. 274", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1611971 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0274-01" ] } ], "analysis": { "cardinality": 492, "char_count": 6950, "ocr_confidence": 0.497, "pagerank": { "raw": 2.6989081727656567e-07, "percentile": 0.8282450057899129 }, "sha256": "dfe7fb67953e9ccfbeb66ed62be789739bd47b56c1548366d111f63c673dcbbb", "simhash": "1:62e446f319ed094c", "word_count": 1193 }, "last_updated": "2023-07-14T17:46:24.085624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Arnold Barber & Beauty Supply Company v. Provance." ], "opinions": [ { "text": "George Rose Smith, J.\nThis is a suit by tbe appellant to recover a balance of $526.79 owed to it under a title retaining contract by which it had sold certain beauty shop equipment to Opal Parker. Upon the filing of the complaint the plaintiff obtained a writ of attachment and had the sheriff take possession of the above equipment. The appellee, Virginia Provance, by intervention asserted that several months before the suit was brought she had formed a partnership with Opal Parker and had bought a half interest in the fixtures that were later attached. The intervener, alleging that the partnership property was not subject to attachment for Opal Parker\u2019s individual debt, sought damages for the wrongful seizure of the equipment. On an earlier appeal we held the intervention not demurrable, since by electing to sue for the debt the plaintiff had waived its retention of title. 218 Ark. 274, 235 S. W. 2d 970.\nTrial resulted in a verdict for Mrs. Provance in the sum of $300. To support her claim for damages Mrs. Provance proved her written partnership agreement with Opal Parker, showed that she had bought a half interest in this and other equipment owned by Mrs. Parker, and testified as to the rental value of the attached property. In defense of the intervener\u2019s claim the appellant proved that Opal Parker, in selling an interest in her business, failed to comply with the Bulk Sales Law, Ark. Stats. 1947, \u00a7\u00a7 68-1501 et seq., and further that the partners had operated under a trade name, Opal\u2019s Beauty Shop, without having filed the certificate required of persons doing business under an assumed name. \u00a7\u00a7 70-401 et seq.\nThe appellant\u2019s assignments of error all relate to the giving or refusal of instructions. It is said that the court should have directed a verdict for the plaintiff, upon the theory that since Mrs. Provance had just begun learning the business of cosmetology she could not have been damaged by the fact that the attachment had the effect of putting the firm out of business. But Mrs. Provance is suing not for loss of profits but for the rental value of her property while it was in the sheriff\u2019s custody, Boatwright v. Stewart, 37 Ark. 614, and her evidence sustains the amount of the verdict.\nAnother contention is that the court should have instructed the jury that Mrs. Provance, by entering the partnership, became liable for all prior partnership debts and that this liability might be satisfied ont of partner^ ship property. This requested instruction is assertedly. based on \u00a7 17 of the Uniform Partnership Act, Ark. Stats., \u00a7 65-117, but the statute is not susceptible of the interpretation urged by' appellant. It applies only to one who enters an existing partnership, and here Mrs. Parker had done business by herself until the new concern was formed. What happened was that Opal Parker put encumbered property into the venture. Of course the appellant might have asserted a prior claim by replevying the property, but we held on the other appeal that it waived its superior title by suing for the debt. By that action it elected to look to Opal Parker personally for payment of its claim, and the Act is explicit in providing that^a partner\u2019s interest in specific partnership property is not subject to attachment for such a personal debt. Ark. Stats., \u00a7 65-125 (2, c); Commissioners\u2019 Notes, 7 U. L. A. \u00a7 25. In this situation the Act allows a judgment creditor to obtain a charging order against his debtor\u2019s interest in the profits, \u00a7 65-128, but the appellant has not attempted to pursue that remedy.\nWe think the court correctly refused to instruct the jury to find for the plaintiff if the Bulk Sales Law had been disregarded in Mrs. Parker\u2019s sale of a half interest in the business to Mrs. Provance. By its terms that law applies to the sale of \u201ca stock of merchandise, or merchandise and fixtures.\u201d \u00a7 68-1501. It does not, for example, affect the transfer of a restaurant devoted primarily to the serving of food and drink, even though merchandise such as cigars and confections is incidentally sold to patrons. D. C. Goff Co. v. First State Bank of DeQueen, 175 Ark. 158, 298 S. W. 884. So here, the operators of the beauty shop were engaged principally in the rendition of services and made only isolated sales of minor items such as lipstick.\nAnother refused instruction would have unconditionally directed the jury to return a verdict for the plaintiff if it were found that the partners had engaged in business under a trade name without having filed the certificate required by Act 11 of 1943. The charge, in the form offered, was properly rejected. The statute does not by its terms .deny all recourse to the courts to those who ignore its provisions; it merely imposes a small fine for disobedience. \u00a7 70-405. Under an assumed name statute of this type it is usually held that noncompliance does not prevent the partners from maintaining a tort action. Denton v. Booth, 202 Mich. 215, 168 N. W. 491, 2 A. L. R. 114. This should certainly be the rule when the failure to file the certificate \u201chas no causal relation to the injury.\u201d Hudgens v. Douglas, 56 Ga. App. 877, 194 S. E. 398. Here the appellant made no effort to establish such a causal connection, as by proof that it searched the public records before attaching property thought to belong to Opal Parker alone. Even had such evidence been offered its weight would have been for the jury rather than for the court. Hence the court properly declined an instruction which would have required the jury to find for the plaintiff upon the fact\" of noncompliance only, without regard to the issue of proximate cause.\nFinally, in closing its brief the appellant rather casually criticizes the instructions that were given. These instructions take up more than four pages in the printed abstract, but the appellant has only this to say about them: \u201cAppellant insists that the oral statement by the court, the oral instructions and the court\u2019s four written instructions were misleading and not backed up by the evidence and the law.\u201d We do not regard this statement as a sufficient assignment of error. An appellant must specify the mistake he complains of. \u201cHe must be able to lay his finger upon the error, and point it out, if he seeks to review or correct it. \u2019 \u2019 Lenox v. Pike, 2 Ark. 14. This appellant\u2019s criticism of the court\u2019s instructions amounts to no more than a conclusion of law; no doubt its insertion in the brief was based on the hope that we might discover some inaccuracy not perceived by counsel. This practice is not uncommon, however, and we think it not amiss .to say that, except in reviewing felony convictions, we must decline invitations to search for errors not specifically brought to our attention.\nAffirmed.", "type": "majority", "author": "George Rose Smith, J." } ], "attorneys": [ "Beloit Taylor and A. D. Whitehead, for appellant.", "Dinning & Dinning, for appellee." ], "corrections": "", "head_matter": "Arnold Barber & Beauty Supply Company v. Provance.\n4-9951\n253 S. W. 2d 367\nOpinion delivered December 22, 1952.\nBeloit Taylor and A. D. Whitehead, for appellant.\nDinning & Dinning, for appellee." }, "file_name": "0385-01", "first_page_order": 409, "last_page_order": 413 }