{
  "id": 8722275,
  "name": "Pacific Insurance Company of New York v. Anna Belle Martin",
  "name_abbreviation": "Pacific Insurance Co. of New York v. Martin",
  "decision_date": "1967-05-15",
  "docket_number": "5-4234",
  "first_page": "621",
  "last_page": "624",
  "citations": [
    {
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      "cite": "242 Ark. 621"
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    {
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      "cite": "414 S.W.2d 594"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name_long": "Arkansas",
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      "cite": "249 N. W. 12",
      "category": "reporters:state_regional",
      "reporter": "N.W.",
      "year": 1933,
      "opinion_index": 0
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      "cite": "263 Mich. 613",
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      "reporter": "Mich.",
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      "year": 1933,
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    {
      "cite": "232 Ark. 993",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1694143
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      "year": 1961,
      "opinion_index": 0,
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        "/ark/232/0993-01"
      ]
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  "last_updated": "2023-07-14T15:00:12.038660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Hab\u00e9is, 0. J., not participating."
    ],
    "parties": [
      "Pacific Insurance Company of New York v. Anna Belle Martin"
    ],
    "opinions": [
      {
        "text": "Conley Byrd, Justice.\nAppellant, Pacific Insurance Company of New York, was the corporate surety bondsman, pursuant to Ark. Stat. Ann. \u00a7 67-1238 (Repl. 1966), for M & M Securities Company, Inc., a bonded and licensed securities broker under Act 254 of 1959 (Ark. Stat. Ann. \u00a7\u00a7 67-1235 \u2014 67-1262 (Repl. 1966). Pacific appeals from a judgment in favor of Anna Belle Martin for $1,838, together with 6 per cent interest and $500 attorney\u2019s fee taxed under Ark. Stat. Ann. \u00a7 67-1256 (Repl. 1966): The basis of appellee\u2019s judgment was that an agent of M & M Securities Company, Inc., misrepresented the value of 2,000 shares of stock in Allied Companies, Incorporated, which he exchanged with appellee for 1,838 shares of First Security Life Insurance Company common stock. Judgment by default was entered against M & M.\nFor reversal, appellant alleges that the court erred in admitting appellee\u2019s testimony as to the value of the First Security stock; that on the record the trial court should have granted a judgment notwithstanding the verdict for $385.98, the value placed upon the First Security stock by appellant\u2019s expert witness; and that the trial court erred in awarding an attorney\u2019s fee because no tender of the stock was made to the dealer, M & M Securities Company, Inc., prior to entry of the judgment. The first two interrelated issues will be discussed together.\nThe testimony shows that appellee, a lady 53 years of age with a tenth-grade education and a farmer by experience, had had no practical experience with securities such as stocks; and that on January 14, 1964, she owned 1,838 shares of First Security common stock which she traded to M & M for 2,000 shares of Allied. When asked what she paid for the stock, she stated $1,-838, but this answer was struck from the record by the trial court. Thereafter the only testimony about the value of the First Security stock was her testimony that the agent for M & M represented to her that it was worth $1 per share, whereas the Allied stock was worth $1.15 per share \u2014 i. e., that her First Security stock was worth $1,838 but that the Allied stock which she was receiving was worth over $2,000. Appellee also testified that the Allied stock was then of absolutely no value. There was no cross-examination of appellee.\nDayton Covington, a stock broker with Trulock & Company, Inc., of' Little Rock, was called as an expert witness by appellant. He testified, based upon two over-the-counter transactions of First Security stock, that the stock sold for 20 cents and 21 cents per share. His opinion was that on January 14,1964, a share of First Security common stock was not worth more than 21 cents.\nWhile we have held that an owner\u2019s testimony on value of personal property is competent evidence, Pettit v. Kilby, 232 Ark. 993, 342 S. W. 2d 93 (1961), it is seen that in this case appellee did not pretend to know the value of her First Security stock. Therefore, we must agree with appellant that there was no competent testimony here to show that the value of the 1,838 shares of First Security stock was in excess of that testified to hy Mr. Dayton Covington. Upon this state of the record, we hold that the trial court should have granted appellant judgment notwithstanding the verdict for $385.98.\nAppellant contends that the trial court erred in awarding an attorney\u2019s fee under Ark. Stat. Ann. \u00a7 67-1256, supra, because no tender of the Allied stock was made to M & M, the stock dealer, prior to the entry of the judgment. In making this contention, appellant relies on People ex rel. Harley v. Hendrie, 263 Mich. 613, 249 N. W. 12 (1933). The Michigan court decision is based upon 2 Comp. Laws of Mich. 1929, Ch. 188, \u00a7 9788, which provides that in case of sale contrary to law the sale shall be voidable and.the person making such sale \u201c. . . shall be jointly and severally liable to such purchaser, upon tender to the. seller or in court of the securities sold..., for the-full amount paid by such purchaser.\u201d (Emphasis supplied.)\nOur statute with respect to the allowance of attorney\u2019s fee and a tender, Ark. Stat. Ann. \u00a7 67-1256, supra, provides as follows:\n\u201c(a) Any person who\n# * *\n\u201c(2) offers or sells a security by means of any untrue statement. . . is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at six per cent [6%] per year from the date of payment, costs, and reasonable attorneys\u2019 fees, less the amount of any income received on the security, upon the tender of the security and any income received on it, or for damages if he no longer owns the security. \u201c(c) Any tender specified in this section may he made at any time before entry of judgment.\u201d (Emphasis supplied.)\n# # #\nWith reference to the tender, the record shows that appellee\u2019s counsel mailed the Allied stock to appellant\u2019s counsel on October 26, 1966, and it was returned to ap-pellee\u2019s counsel on October 27, 1966; that on October 28, 1966, counsel for appellee attempted to file the stock with the clerk of the court in which the action was pending; and that on November 1, 1966, the clerk returned the stock certificate to counsel for appellee. While the record shows that the judgment was dated October 27, 1966, it was entered nunc pro tunc on November 7,1966. In view pf the fact that M & M, the securities dealer, wholly defaulted and made no appearance in the litigation, we hold that under the circumstances here the foregoing was a sufficient tender to permit the allowance of attorney\u2019s fee under Ark. Stat. Ann. \u00a7 67-1256, supra.\nTherefore, we hold that the trial court should have entered a judgment notwithstanding the verdict for the amount of $385.98, together with interest and attorney\u2019s fee. If appellee., before the issuance of the mandate herein by the clerk,, enters a remittitur for the difference between the principal sum of $385.98 plus interest and the sum of $1,838 plus .interest allowed by the trial court, the judgment will be affirmed. Otherwise the matter will be reversed and remanded .for a new trial.\nHab\u00e9is, 0. J., not participating.",
        "type": "majority",
        "author": "Conley Byrd, Justice."
      }
    ],
    "attorneys": [
      "House, Holmes & Jeivell; By: Hon F. Hamilton, for appellant.",
      "White & Young, James K. Young, for appellee."
    ],
    "corrections": "",
    "head_matter": "Pacific Insurance Company of New York v. Anna Belle Martin\n5-4234\n414 S. W. 2d 594\nOpinion delivered May 15, 1967\n[Rehearing denied June 5, 1967.]\nHouse, Holmes & Jeivell; By: Hon F. Hamilton, for appellant.\nWhite & Young, James K. Young, for appellee."
  },
  "file_name": "0621-01",
  "first_page_order": 643,
  "last_page_order": 646
}