{
  "id": 1597736,
  "name": "W. W. MISENHIMER, Trustee and SECURITY BANK v. PERKINS OIL COMPANY",
  "name_abbreviation": "Misenhimer v. Perkins Oil Co.",
  "decision_date": "1970-04-06",
  "docket_number": "5-5209",
  "first_page": "434",
  "last_page": "436",
  "citations": [
    {
      "type": "official",
      "cite": "248 Ark. 434"
    },
    {
      "type": "parallel",
      "cite": "451 S.W.2d 864"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "5 S. W. 2d 742",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1928,
      "opinion_index": 0
    },
    {
      "cite": "177 Ark. 55",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8718508
      ],
      "year": 1928,
      "opinion_index": 0,
      "case_paths": [
        "/ark/177/0055-01"
      ]
    },
    {
      "cite": "200 Ark. 38",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1453484
      ],
      "weight": 2,
      "year": 1940,
      "opinion_index": 0,
      "case_paths": [
        "/ark/200/0038-01"
      ]
    },
    {
      "cite": "186 S. W. 607",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1916,
      "opinion_index": 0
    },
    {
      "cite": "124 Ark. 112",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1554907
      ],
      "year": 1916,
      "opinion_index": 0,
      "case_paths": [
        "/ark/124/0112-01"
      ]
    },
    {
      "cite": "186 S. W. 299",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1916,
      "opinion_index": 0
    },
    {
      "cite": "124 Ark. 43",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1554936
      ],
      "year": 1916,
      "opinion_index": 0,
      "case_paths": [
        "/ark/124/0043-01"
      ]
    },
    {
      "cite": "40 S. W. 2d 989",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1931,
      "opinion_index": 0
    },
    {
      "cite": "184 Ark. 149",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1438584
      ],
      "year": 1931,
      "opinion_index": 0,
      "case_paths": [
        "/ark/184/0149-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 309,
    "char_count": 4106,
    "ocr_confidence": 0.811,
    "pagerank": {
      "raw": 6.087085966315723e-08,
      "percentile": 0.37701039713126133
    },
    "sha256": "0a13594a07735ca55daf0cb8f5a8147cbed79b08d607f6ed11d42e5d08c576a2",
    "simhash": "1:1872701629b4a102",
    "word_count": 718
  },
  "last_updated": "2023-07-14T16:47:57.001151+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. W. MISENHIMER, Trustee and SECURITY BANK v. PERKINS OIL COMPANY"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nThe question in this case is priority of lien between two real estate deeds of trust, which we will refer to as mortgages, executed by Parsons Gin Company. The earlier mortgage was executed by the gin company on April 30, 1957, and is held by the appellee, Perkins Oil Company. The later mortgage was executed by the gin company on January 5. 1967, and is held by the appellant, Security Bank of Paragould. The chancellor upheld the oil company\u2019s claim to priority under the earlier mortgage. We find the decree to be correct.\nThe controlling issue is really whether the oil company\u2019s mortgage was saved by part payments from the bar of the five-year statute of limitations. Ark. Stat. Ann. \u00a7 37-209 (Repl. 1962). That mortgage was executed by the gin company to DeSoto Oil Company to secure five $6,000 notes due annually from December 15, 1957, to December 15, 1961. The first note was paid. Part payments were indorsed on the other four notes by DeSoto before it went out of business and sold those four notes to the appellee, Perkins Oil Company, on 'May 22, 1963. Perkins Oil Company continued to carry on business with the gin company.\nThe oil company set up two ledger accounts on its books with respect to the gin company. The first one, which accumulated only a half dozen entries, was entitled \u201cNotes Receivable \u2014 Parsons Gin Company,\u201d and reflected the gin company\u2019s note indebtedness and the payments thereon. The second account, entitled \u201cParsons Gin Company,\u201d was the general account in which day-to-day transactions between the parties were entered. On January 31 of two separate years the oil company struck a balance in the latter account and transferred the sum standing to the gin company\u2019s credit as a payment on the note account. In that manner the oil company credited $5,165.17 to the note account on January 31, 1964, and $9,488.36 to the note account on January 31, 1966. Those are the part payments relied upon by the oil company to avoid the bar of limitations.\nTo continue the statement of facts, the gin company executed its second mortgage to the appellant, Security Bank, on January 5, 1967. That instrument contains this recital: \u201cThis lien on the above property is second and inferior to lien held by Perkins Oil Company.\u201d Under our law that recital prevents the bank from taking advantage of the oil company\u2019s failure to indorse the gin company\u2019s part payments upon the margin of the recorded mortgage. Gunnels v. Farmers\u2019 Bank of Emerson, 184 Ark. 149, 40 S. W. 2d 989 (1931). Thus the bank\u2019s claim to priority narrows down to its insistence that the oil company\u2019s transfer of credits to the Parsons note account in 1964 and 1966 did not cause the statute of limitations to begin running anew.\nWe cannot sust\u00e1in that argument. The important point is the fact of payment, not its indorsement upon the notes or upon the ledger. See Slagle v. Box, 124 Ark. 43, 186 S. W. 299 (1916); King v. Boles, 124 Ark. 112, 186 S. W. 607 (1916). And where thei;e are two or more obligations owed by the debtor, the creditor is entitled to apply a part payment as he chooses if the application has not been directed by the debtor. Hawkins v. Hawkins, 200 Ark. 38, 137 S. W. 2d 904 (1940).\nHere T. C. Lee, the president of the oil company, testified that the applications of the payments were made with the debtor\u2019s consent. \u201cWe consulted with Mr. Parsons and told him what the status of his account was, and he said to apply it on his Notes Payable.\u201d There is no merit in the bank\u2019s objection to Mr. Lee\u2019s testimony under the hearsay rule. The gin company, a partnership, was the principal defendant in the case; so the quoted statements were properly received as admissions made by a party to the suit. Greer v. Davis, 177 Ark. 55, 5 S. W. 2d 742 (1928). They, together with the ledger entries, establish the part payments which kept the notes alive.\nAffirmed.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Douglas Bradley, for appellants.",
      "Branch, Adair ir Thompson, for appellee."
    ],
    "corrections": "",
    "head_matter": "W. W. MISENHIMER, Trustee and SECURITY BANK v. PERKINS OIL COMPANY\n5-5209\n451 S. W. 2d 864\nOpinion delivered April 6, 1970\nDouglas Bradley, for appellants.\nBranch, Adair ir Thompson, for appellee."
  },
  "file_name": "0434-01",
  "first_page_order": 456,
  "last_page_order": 458
}