¶1dissenting. I would affirm this decree without modification. This appeal was brought here on an abbreviated record. The record designated consisted only of the pleadings, the orders and decree of the chancery court. The first point for reversal has to do only with alleged errors in the overruling of appellant’s demurrer to the complaint. The other points for reversal are:
II. The Court erred in awarding damages to the counterclaimant, because the writings do not provide for such a remedy.
III. The Court erred in not construing the writings against the author, to-wit, Mr. Wafer.
IV. The Court erred in finding that the Contract for personal services was severable.
¶2The agreement between the parties contained the following clauses:
Seller agrees to sell and Buyer to buy the accounting business and equipment including all accounts in connection therewith presently being conducted by Seller from his offices at Pyramid Life Building, Little Rock, for the sum of Thirty Thousand Dollars ($30,000.00), Five Thousand. Dollars ($5,000.00) to be paid down, receipt of which is acknowledged, and Five Thousand Dollars ($5,000.00) to be paid annually on or before April 16 of each year, beginning in 1970 and continuing for a period of five years. # # #
In the security aggrement to be executed all equipment, supplied and accounts shall secure the payment of the purchase price. …
It is further agreed that fifty percent of the income of all new business brought in by Seller at any time hereafter shall be paid to Seller for such period as that account shall continue as part of the business of the Buyer.
¶3The security agreement contains the following:
Winfred C. Mullen, Northeast Corner of Fifth and Victory Streets, Little Rock, Arkansas (hereinafter called “Debtor”), for a valuable consideration hereby acknowledged, hereby grants to Rufus W. Wafer, (hereinafter called “Security Party”), a security interest in the following property and any and all additions and accessions thereto (hereinafter called the “Collateral”):
All equipment, supplies and accounts (from Wafer & Co.) to secure payment of the Total Debt of Twenty-five Thousand Dollars ($25,000.00), and all extensions and renewals thereof; all other indebtedness at any time hereafter owing by Debtor to Secured Party as well as the discharge of all obligations imposed upon Debtor hereunder.
¶4Clearly, the equipment, supplies and accounts purchased were not personal services.
¶5The record brought up and the arguments made, both in appellant’s brief and in oral argument, show that appellant was contending that the decree should be reversed as a matter of law. I do not agree that it should be and cannot agree that the matter before us is only a question of law.
¶6In the court’s decree, I find the following:
… from the evidence taken ore tenus at the bar of the Court, the Court doth find that the provisions of the contract sued upon are severable and that the rescisión of the contract and cancellation of the note as prayed for by the plaintiff should not be granted; that plaintiff was an experienced businessman and was aware that Mr. Wafer was getting along in years, had heart trouble, and that it would not be expected that the business would pay for itself within one year.
The Court further finds that while the death of Rufus W. Wafer does not vitiate the contract, that plaintiff was not properly servicing some of the accounts and was not properly crediting income from the accounts to Wafer in the bookkeeping; that while an exact computation is not possible under the present existing proof, the Court finds that in equity plaintiff should have the benefit of a reduction in the purchase price by reason of Rufus Wafer’s inability to assist the plaintiff in bringing his customers to the plaintiff and assist him in keeping them. That the contract price should be reduced in the total sum of $12,500100 and that defendant should have judgment on her cross-complaint for the balance due under the contract — namely, $12,500.000
¶7In my opinion, no one can say as a matter of law that the contract was one for personal services only or that the contract was not severable. The question whether a contract is one for personal services is to be determined from all the facts and circumstances of the particular case. This rule is expressed in Carlock v. LaSalle Extension University, 185 F. 2d 594 (7th Cir. 1950). That case is so closely parallel to this, that I think it should govern. If so, I do not see how*the majority arrives at the modification. Not only is it necessary, in order to do so, to say as a matter of law that the contract was for personal services, except for the sale of equipment and supplies, but also it requires overlooking the fact that the accounts of Wafer and Company were sold.
¶8While it is true that we will indulge no. presumption that the portions of the record omitted from an abbreviated record without objection support the action of a trial court, it is necessary, that the appellant bring up sufficient record touching upon the points urged by him to demonstrate error. Statutory provision for abbreviation of the record certainly should not relieve the appellant from demonstrating that error from the record before the court. While we cannot presume that those portions of the record not before us support the findings of the trial court, we cannot presume that they do not, as the majority has done. From the record before us, I cannot say that the chancellor made an incorrect determination. See Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 442.