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ing that the purchaser shall pay the remaining / tract. He merely offered to prove that his part of the price on or before a certain date,

contract with Ellis was only an option to was not so ambiguous as to render parol evidence of the terms of the contract admissible. sell, and that he stood ready at all times to

carry out its terms, but that Ellis declined Appeal from Circuit Court, Little River to exercise the option and purchase the propCounty; Jeff. T. Cowling, Judge.

erty. The court refused to admit that tesAction by W. L. Perkins against L. M. timony for the reason that the contract was Warmack. Judgment for plaintiff, and de- in writing, and was free from ambiguity. fendant appeals. Affirmed.

At the conclusion of the introduction of June R. Morrell, of Ashdown, and Win evidence defendant, notwithstanding the Steel, of Texarkana, for appellant.

A. D. court's refusal to admit oral testimony showDu Laney, Geo. R. Steel, Steel & Steel, and ing what the understanding was between him John J. Du Laney, all of Ashdown, for ap-ed the court to charge the jury that if the

and Ellis in executing the contract, requestpellee.

contract was intended as an option and that

defendant was still ready to carry out its MCCULLOCH, C. J. Defendant owned a terms, plaintiff could not recover. Those light, ice, and power plant in Ashdown, Ark.,

were the only issues which defendant asked and operated the same under the name of to be submitted. He did not ask for a subAshdown Ice & Power Company. Desiring mission of any issue concerning the terms to sell the property, he entered into a con- of the contract between him and plaintiff, tract with the plaintiff, who was engaged in but treated the question of the effect of the the real estate business in Ashdown, to find contract between him and Ellis and of his a purchaser for the plant and certain other readiness to perform that contract as the property owned by defendant, at the price only issues in the case. of $44,000. Plaintiff found a purchaser at

[1] If the understanding of defendant, in that price in the person of E. S. Ellis, with order to secure a commission, was merely whom defendant entered into a written con

to produce a purchaser "ready, willing, and tract as follows:

able to buy upon the terms named,” and he “This agreement, made and entered into on in fact produced one with whom his princithis the 2d day of March, 1917, by and between pal entered into a contract for the sale of L. M. Warmack, hereinafter known as party of the first part, and Edward S. Ellis, the property, then the commission was earnhereinafter known as the party of the second ed and plaintiff was entitled to recover. part, witnesseth: That the party of the first Pinkerton v. Hudson, 87 Ark, 511, 113 S. W. part has this day agreed to sell to the party of the second part, or his assigns, his light, ice and 35; Moore v. Irwin, 89 Ark. 289, 116 S. W. power plant, together with his block of ground, 662, 20 L. R. A. (N. S.) 1168, 131 Am. St. now where he lives, for the sum of forty-four Rep. 97; Reeder v. Epps, 112 Ark. 566, 166 thousand dollars ($44,000), on the following terms: Fifty dollars cash, 'receipt of which is S. W. 747; Lasker-Morris Bank & Trust Co. hereby acknowledged. One thousand dollars v. Jones, 199 S. W. 900. ($1,000) on or before April 1, 1917. Fifteen [2, 3] Such are the facts of this case, acthousand dollars ($15,000) on or before July cording to the undisputed evidence, and the 1, 1917. At which time the party of the first part agrees to give possession of his entire hold-court was correct in directing a verdict in ings as above mentioned, with the understand- plaintiff's favor. But it is contended that ing that the party of the second part shall pay the contract between defendant and Ellis the remaining part of the forty-four thousand was not a binding one for the sale of the dollars ($44,000) on or before January 1, 1918.” plant because it lacked mutuality in that

The contract was signed by both of the the contract contained no express undertakparties thereto. Immediately after the con- ing on the part of Ellis to purchase the proptract was entered into between defendant erty. We do not agree with this contention, and Ellis, another person appeared on the for both parties signed the contract, and the scene, a Mr. Morgan, to whom defendant had acceptance of its terms by Ellis implied a previously given an option for the sale of reciprocal obligation to purchase according the plant. Morgan insisted upon his right to the terms specified in the contract. Thomto purchase the plant under his option, and as-Huycke-Martin Co. v. Gray, 94 Ark. 9, filed a suit against defendant and Ellis in 125 S. W. 659, 140 Am. St. Rep. 93. Nor was the chancery court to prevent the consumma- there any ambiguity in the language of the tion of the sale to Ellis and to compel de contract as contended on behalf of defendfendant to make good his option contract. ant so as to let in oral testimony. The sale to Ellis has never been consum The court was correct in excluding that mated. Defendant testified in the case, but testimony, for the contract is entirely free did not dispute the correctness of plaintiff's from ambiguity. testimony concerning the terms of his con Judgment affirmed.

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receive and distribute donations made for BYINGTON v. LITTLE ROCK CHAMBER that purpose. In the year 1911 a plan was OF COMMERCE. (No. 125.)

devised for raising a large sum of money, not (Supreme Court of Arkansas. Feb. 4, 1918.) less than $200,000, to use in securing the lo1. FRAUDS, STATUTE OF 74(1)—"CONTRACT

çation of factories and other business enterFOR SALE OF REAL ESTATE' SUBSCRIP- prises, and the plan contemplated securing TION CONTRACTS.

from the real estate owners of the city and A suit by a Chamber of Commerce on a vicinity donations of real estate of $200,000 subscription contract, whereby defendant agreed to pay a certain amount of money in install- ) estimated enhanced value in five years by ments upon being allotted certain real estate reason of the location of the industries to be donated by others, was not one on a contract thus secured, and also securing subscriptions for the sale of real estate within the statute of in money from those who were willing to befrauds, but is on a contract for a subscription made by defendant jointly with others to a com

come the purchasers of the real estate thus mon fund.

donated at prices corresponding with said es[Ed. Note.-For other definitions, see Words timates of the enhanced value. Public apand Phrases, Second Series, Agreement for peals were made to citizens of Little Rock Sale of Real Estate.]

for donations of land and subscriptions of 2. CONTRACTS Cw182(1) - JOINT CONTRACTS.

Where a Chamber of Commerce solicits sub- money upon the assumption that the proper scriptions from prospective allottees of lands use of the funds thus raised for the developdonated by others to promote the welfare of the ment of factories and other enterprises community, the separate contracts of the re-would, during the period of five years, result spective subscribers constitute a joint contract on their part; the Chamber of Commerce being in substantial enhancement of values of real the agent of the subscribers, and the mutuality estate to the extent that owners of real esof the several undertakings not being destroyed tate would secure the enhancement in value because the subscribers did not sign a joint sub- on their lands sufficient to compensate for the scription list. 3. CONTRACTS em 279(1)-ACTIONS-TENDER.

donations made by them, and that the subIn a suit by a Chamber of Commerce upon scribers who were to receive the real estate a subscription contract, whereby defendant was at valuations based on the estimated enhanceto purchase and pay for an allotment of land do- ment during said period would secure, by nated by others, the right of action is complete when plaintiff offers to fulfill its contract by way of profit on the investment, sufficient making an allotment, notwithstanding that the compensation to reimburse them for the contract would be too indefinite to require spe- amount subscribed. The plan was carried cific performance if treated as a contract for out, and donations of lands were obtained the sale of land.

in excess of the amount named, and subscripAppeal from Pulaski Chancery Court; Jno. tions of money on the terms stated above E. Martineau, Chancellor.

were obtained in excess of the said sum. Suit by the Little Rock Chamber of Com. There were printed blanks for the two classes merce against G. W. Byington. Decree for of subscribers; the one used by the donors of plaintiff, and defendant appeals. Affirmed. lands provided that in consideration of $1

and the benefits to accrue from the expendiMarshall & Coffman, J. A. Comer, and Man- ture of the funds thus raised the donor ning, Emerson & Donbam, all of Little Rock, agreed to donate to the Little Rock Chamber for appellant. W. B. Smith and Jno. P. l of Commerce the real estate described in the Streepey, both of Little Rock, for appellee. contract, on condition that “the said Cham

ber of Commerce by March 1, 1912, shall have McCULLOCH, C. J. This case was dis- made sales of property donated to it amountposed of below on demurrer to the complaint ing in the aggregate to $200,000" of appellee, and the only question presented The subscription blanks signed by those here is whether or not the facts stated in the who subscribed money were in the following complaint constituted a cause of action. The form: facts set forth in the complaint are in sub

"The undersigned, as subscriber, hereby agrees stance as follows:

to purchase $ in appraised value of real The Little Rock Chamber of Commerce is estate from Little Rock Chamber of Commerce a corporation organized by citizens of the city acquired by it for industrial and development of Little Rock for the purpose, as its name cent. upon delivery of contract and 2 per cent.

purposes, and agrees to pay for same; 5 per implies, of promoting the business interests per month without interest, until fully paid. of the city, and among other things of en-This purchase is upon the condition that the couraging public improvements of all kinds, of the property acquired by it for industrial and

Little Rock Chamber of Commerce make sales and particularly to secure the location of fac- development purposes, to the aggregate amount tories and other business enterprises in the of $200,000. It is agreed that the Chamber of city and vicinity. One of the by-laws pro- by it appraised by a committee appointed for

Commerce will have the real property acquired vides for the creation of a committee, called that purpose at its probable value on the 1st the “industrial and development committee,” day of January, 1917, as enhanced by the probato have control of the disposition of develop- ble growth of the city and the use for industrial ment and industrial funds raised by the Commerce of the fund raised for that purpose,

and development purposes by the Chamber of Chamber of Commerce, and with authority to land that the subscriber hereto shall have the

Sow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

right of selection of $ in value of said, used for a specified purpose. Such a conproperty at its appraised value in the order of tract is not within the statute of frauds. his subscription, upon notice being given by the Chamber of Commerce that the property is The fact that separate contracts were signed ready to be allotted ; and it is further under- | by the respective subscribers instead of a stood that if the subscriber does not promptly joint subscription list does not necessarily apply for his allotment, that the real estate show that the several agreements thus execommittee which appraised said property shall have the right to make the allotment so that cuted were not directed to the same end and the succeeding subscribers may exercise their purpose, nor destroy the mutuality of the right of selection in the order in which their | undertakings. All of the contracts executed, subscriptions were taken. It is further agreed under the circumstances shown, constituted that upon said selection or allotment being made, the subscriber will enter into a further a joint contract on the part of the subscribformal written contract of purchase of the par- ers. Belding v. Vaughan, 108 Ark. 69, 157 ticular property selected or allotted according S. W. 400. And the mutual undertakings exto the terms of his subscription, and that upon pressed in the numerous subscriptions when the subscriber making the 5 per cent. payment, he shall be entitled to go into the immediate acted upon by the Chamber of Commerce, possession of said property, but the Little Rock which was the agent of the subscribers, conChamber of Commerce will retain the title of stituted a binding consideration. Rogers v. the property until the payments are fully made, the said contract to contain the usual provi- Galloway Female College, 64 Ark. 627, 44 S. sions of forfeiture contained in the contracts in W. 454, 39 L. R. A. 636; David v. Chambers, use by the real estate agents of Little Rock 123 Ark. 293, 185 S. W. 443 ; 1 Elliott on where property is sold on the partial payment plan. It is further agreed that upon the sub-contracts, $ 229; Young Men's Christian Asscriber making full payments of the purchase sociation v. Estill, 140 Ga. 291, 78 S. E. 1075, price the Little Rock Chamber of Commerce 48 L. R. A. (N. S.) 783, Ann. Cas. 1914D, 136; will execute to him a special warranty deed for Stewart v. Trustee, 2 Denio (N. Y.) 403 ; said property." Appellant signed the form of contract pro- v. Marion Commercial Club, 50 Ind. App.

Norton v. Janvier, 5 Har. (Del.) 346; Brown viding for the payment of money and the ac- 670, 97 N. E. 958. ceptance of an allotinent of real estate. The committee of the Chamber of Commerce contract for us to leave out of consideration

It is a mistake in the interpretation of the made the appraisements of the lands donat- the exact status of the Chamber of Comed and more than four-fifths of the contracts for the donation of lands and the acceptance merce as one of the contracting parties. It thereof by the persons who undertook to do

was not engaged in the real estate business, so have been performed, but appellant failed nor did it have property for sale about which to make a selection of his allotment of real the parties were contracting. The Chamber estate in accordance with the terms of the of Commerce was acting in a quasi public cacontract, and when the allotment to him was

pacity for the purpose of promoting the welmade by the committee in accordance with fare of the community, and the contract as

a whole constituted it as the agent of the those terms he declined to perform the contract. Compliance with the contract on the subscribers—to gather together lands to be part of the Chamber of Commerce is alleged scribers who agreed to pay money. It is true

donated and to allot them among the subin the complaint, and in this action, instituted by the Chamber of Commerce, offer is that in the contract the subscriber undertook made to comply with the contract, and the to purchase the land to be allotted to him. prayer of the complaint is for recovery from He was also designated in the contract as a defendant of the amount of his subscription, subscriber. A literal interpretation of the and that he be required to accept the real particular words used in the contract migui estate allotted to him.

defeat its obvious purpose, and when, as beThe contention of counsel for defendant in fore stated, we interpret the language in the avoidance of the contract is that it is one light of the circumstances, we can see that for the sale of real estate, and is within the the meaning of the contract is that it is an statute of frauds and void by reason of the undertaking to subscribe and pay a certain fact that no particular land was described, sum of money on conditions specified in the but that the undertaking is to purchase land contract; that is to say, the subscriber shall to be secured in the future by the other par- have the right to select his allotment of land ty to the contract. It is also argued that in regular turn, or in the event of his failspecific performance should not be decreed ure to make selection himself that an allotfor the reason that defendant did not under- ment will be made to him by the appraisers. take to accept the conveyance of any particu- This being the effect of the contract, it would lar tract of land.

be a mistake to treat it merely as a contract [1, 2] We are of the opinion that the con- for the sale of land. tract when interpreted in the light of its [3] Plaintiff ha ng offered to perform the subject matter and the situation of the par-condition prescribed in the contract by allotties as set forth in the complaint is not one ting to defendant his part of the land at the for the sale of real estate within the mean- appraised value, the right to recover the subing of the statute of frauds, but that it is a scription price is mature, and the cause of contract for a subscription by the defendant action is complete. It is said that this is in jointly with others to a common fund to be effect requiring the specific performance of

the contract. Conceding that such is the ef- , company when it issued the policy knew that fect of the relief granted, it does not follow fact. that relief should be denied merely because 6. INSURANCE Cw120 – LIFE POLICIES EN

FORCEMENT. the contract, if treated as one for the sale

Where the beneficiary of a life policy had of real estate, would be too indefinite for a no insurable interest in the life of one insured, court of equity to enforce. The essence of he cannot enforce payment on the theory that the contract was to pay money upon the con- beneficiary's death before the insured the pol

as the policy declared that in event of the dition named, and if it be conceded to be too icy should be paid to the guardian, executor, or indefinite to require specific performance administrator of the insured, to be held in trust when treated as a contract for the sale of for his legal heirs, the beneficiary was a trustee lands, yet this does not afford grounds for for the legal heirs of the insured, for that con

tingency never happened. defendant to escape liability on his subscription contract merely because the effect of the

Appeal from Circuit Court, Searcy County; enforcement of the contract is to require him Jno. I. Worthington, Judge. to accept the land allotted to him. He is not Action by Phelps Cotton against the Mutubound to accept it, as his acceptance is not al Aid Union. From a judgment for defend. a part of the relief afforded to the plaintiff. ant, plaintiff appeals. Affirmed. All that the plaintiff had to do was to tender D. T. Cotton, of Leslie, for appellant. Dick performance and the relief to which it is Rice, of Miami, Okl., for appellee. entitled is the recovery of the amount of the subscription. The enforced acceptance under the decree of the court is for the bene- against appellee in the Searcy circuit court to

HUMPHREYS, J. Appellant brought suit fit of the defendant, and he is not bound to accept the land, unless he wishes to do so, sued by appellee on the 1st day of April

, 1916,

recover $79.44 on a life insurance policy isbut he must pay the subscription because the

on the life of Frank Cotton, in which policy other party to the contract has offered to per appellant was made the beneficiary. The polform his part.

icy provided that upon the death of Frank Decree affirmed.

Cotton appellee would, "within thirty days after the receipt, at the home office, at Rog

ers, Ark., of satisfactory proof of the death of COTTON V. MUTUAL AID UNION. said applicant, pay Phelps Cotton, whose ad(No. 172.)

dress is Leslie, Ark., if living, if not, then to (Supreme Court of Arkansas.

the guardian, executor, or administrator of Feb. 18, 1918.)

said applicant, to be held in trust for the 1. APPEAL AND ERROR 171(3)–CHANGE OF sole benefit of the legal heirs, the sum of THEORY ON APPEAL-PROPRIETY.

In an action on a life policy, though the inoney herein set forth.” It was alleged in answer was defective in stating the conclusion the complaint that Frank Cotton died on the of law instead of the facts from which that con

day of September, 1916. clusion might be drawn, yet where the parties

Appellee pleaded as one of its defenses that treated the answer as raising the issue of whether plaintiff had an insurable interest in the life appellant “had no insurable interest in the of deceased, and the cause was submitted and life of the insured, Frank Cotton, and had no tried on that theory, the defect in the answer lawful right to insure the life of the said cannot be taken advantage of for the first time Frank Cotton and cause himself to be named on appeal. 2. APPEAL AND ERROR E1033(2)— HARMLESS as beneficiary in the certificate of insurance, ERROR--PLEADINGS.

and for that reason is not liable to the plainWhere a cause was tried and submitted on a titf on the certificate of membership sued on particular issue decisive of defendant's liability, herein." The cause was submitted to the it is immaterial on appeal whether any answer raising that issue was filed.

court, sitting as a jury, on certain documenta3. INSURANCE Cm119 LIFE INSURANCE

ry evidence and an agreed statement of facts. WAGERING CONTRACT.

It was adjudged that appellant take nothing A person who insures the life of another in by the action, and from that judgment an apwhom he has no insurable interest cannot enforce the contract because it is a wagering con- peal has been prosecuted to this court. tract and contrary to public policy.

Appellant procured the certificate of insur4. INSURANCE 116(1)-LIFE INSURANCE-ance on the life of Frank Cotton, which is the INSURABLE INTEREST.

basis of this action, and paid the premiums One has no insurable interest in the life of and assessments under the terms of the polihis second cousin who was not indebted to him, and who furnished him with no support, and cy until the death of the insured. Appellant hence plaintiff, baving obtained a policy on the applied for the policy and signed Frank Cotlife of his second cousin, was not entitled to en-ton's name to the application. Appellant was force it.

29 years of age at the time he brought the 5. INSURANCE Omw119 LIFE INSURANCE WAGERING CONTRACTS.

suit, and resided at Leslie, in Searcy county, The courts will not aid either party in en- Ark., four miles from the home of the insurforcing a contract which is void as against ed, and was a second cousin of the insured. public policy; therefore a contract of insurance The application for the insurance was made which was a wagering contract because the beneficiary had no insurable interest in the life in April, 1916, and the insured died in July, of the insured will not be enforced, though the 1916.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

G

Ark.)

HENRY QUELLMALZ LUMBER & MFG. CO. V. DAY

125

[1, 2] The cause was tried upon the issue of 1 [6] It is insisted by appellant that he
whether appellant had an insurable interest should be treated as a trustee for the legal
in the life of Frank Cotton, the insured. Ap- heirs of the insured for the reason that the
pellant insists that the trial court erred in contract provides that in case appellant
dismissing his complaint because appellee should die before the insured, then the appel-
pleaded its defense of no insurable interest lee should pay the insurance to the guardian,
in the form of a negative pregnant. It is executor or administrator of the insured to
true the answer is insufficient in that it be held in trust for the sole benefit of the le-
states a conclusion of law instead of stating gal heirs of the insured. The contingency
facts from which a conclusion might be provided by the contract never happened.
drawn, but the parties treated the issue of The insured died before the beneficiary, and
whether appellant had an insurable interest this is a suit by the beneficiary against the
in the life of the insured as properly and cor- insurance company upon the primary under-
rectly pleaded. The cause was submitted taking in the contract. Appellant brought
and tried upon that theory. This defect in this suit for himself, and he cannot recover
the answer cannot be taken advantage of for on a contingency which has never happened.
the first time on appeal. J. I. Porter Lbr. Co. No error appearing in the record, the judg-
v. Hill, 72 Ark. 62, 77 S. W. 905 ; Cook v. Bag- ment is affirmed.
nell, 78 Ark. 53, 94 S. W. 695, 8 Ann. Cas. 251.
This cause was submitted upon a particular
issue, so it is immaterial on appeal whether HENRY QUELLMALZ LUMBER & MFG.
any answer was filed. Pembroke v. Logan, 71

CO. v. DAY. (No. 167.)
Ark. 364, 74 S. W. 297; Cribbs v. Walker, 74(Supreme Court of Arkansas. Feb. 18, 1918.)
Ark. 104, 85 S. W. 244; Ward v. Blythe, 92 1. APPEAL AND ERROR m799-MOTION TO
Ark. 208, 122 S. W. 508.

DISMISS APPEAL-EVIDENCE.
[3] Under the record in this case, the only where appellant's right of further prosecuting

Under Kirby's Dig. § 1227, providing that relationship that existed between appellant the appeal has ceased the appellee may move to and the insured, Frank otton, at the ime dismiss the appeal, the grounds of which motion the policy of insurance was issued, was that shall be stated in writing and verified, if not of second cousius. They did not live together. appearing on the face of the record, or by a It did not appear that appellant was depend- pellant, evidence of facts outside the record, oc,

writing purporting to have been signed by apent upon the insured for support and main-curring after the rendition of the judgment, and tenance, or that the insured was indebted to showing that the further right of prosecuting him. This court is firmly committed to the sidered on a motion to dismiss the appeal.

the appeal has ceased, may be received and condoctrine that a person who insures the life of 2. APPEAL AND ERROR Om790(2)-DISMISSAL another, in which he has no insurable inter OF APPEAL-EFFECT OF ADJUDICATION. est, cannot enforce the contract for the rea An appeal from a judgment for plaintiff, in son that it is a wagering contract and con- ed by defendant under an attachment and sale

an action of replevin, to recover lumber claimtrary to public policy. McRae v. Warmack, in justice court, will be dismissed, where it ap98 Ark. 52, 135 S. W. 807, 33 L. R. A. (N. S.) pears that after the judgment appealed from 949; Langford v. National L. & A. Ins. Co., was rendered the circuit court on an appeal in 116 Ark. 527, 173 S. W. 414, Ann. Cas. 1917A, the report of the sale, and ordered the sale set

the justice court action sustained exceptions to 1081; Security Mutual Life Ins. Co. v. Little, I aside. 119 Ark. 498, 178 S. W. 418, L. R. A. 1917A, 13. JUSTICES OF THE PEACE O 86(6)-ATTACH475.

SALE RIGHTS AND LIABILITIES OF [4] The case of McRae v. Warmack, supra,

PURCHASER. is also authority to the effect that blood re ment sales to be confirmed by the court, a pur

Under Kirby's Dig. $ 385, requiring attachlationship of uncle and nephew is not, in it- chaser of attached property at such a sale in self, sufficient to show an insurable interest justice court became a party to the proceeding, on the part of the one in the life of the other. and was bound by a subsequent order setting

aside the sale. So it follows that the mere fact that appel

4. ATTACHMENT w 200_SALES-NECESSITY OF lant was a second cousin to the insured will

CONFIRMATION. not warrant an inference that he had an in Under Kirby's Dig. § 385, the contract of surable interest in the life of the insured.

sale of property sold under attachment is not

complete until the bid of the purchaser is ac[5] It is said by appellant, however, that cepted by the court; and, until acceptance, appellee is estopped to avail itself of the plea there can be no enforcement of the contract by of “no insurable interest” because it knew either party. that they were only cousins at the time the 5. APPEAL AND ERROR ww781(1)—DISMISSAL

OF APPEAL-MooT QUESTIONS. policy was issued. This court is committed The court will not decide questions, which to the doctrine that it will not enforce a wag- have ceased to be an issue by reason of facts ering contract. It has announced in unmis- having intervened, rendering their decisions of takable terms that the courts of this state tween the litigants, though a dismissal of the

no practical application to the controversy bewill not aid either party in enforcing a con- appeal will leave the costs of the litigation on tract which is void as against public policy. the appellant. Security Mutual Life Ins. Co. v. Little, 119 Appeal from Circuit Court, Clay County ; Ark. 498, 178 S. W. 418, L. R. A. 1917A, 475. R. H. Dudley, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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