Banks v. Bowman

• Decision Date: 22 July 1907
• Citation: 104 S.W. 209,83 Ark. 524
• Parties: BANKS v. BOWMAN
• Court: Arkansas Supreme Court

104 S.W. 209

83 Ark. 524

BANKS v. BOWMAN

Supreme Court of Arkansas

July 22, 1907

Appeal from Chicot Chancery Court; James C. Norman, Special Chancellor; affirmed.

Judgment affirmed.

E. A Bolton, William Kirten and W. S. McCain, for appellant.

The contract in this case has already been construed by this court, and under the facts established there can be no doubt of appellant's right to the land. 76 Ark. 578; 78 Ark 333; Id. 574.

W. G Streett, for appellee.

OPINION

HILL, C. J.

H. C. Williamson, of Memphis, Tenn., contracted to sell twenty or thirty tracts of land in Chicot County to negroes on time payments--among others a forty-acre tract to King Banks on the 7th of December, 1899. The consideration was $ 25 cash and five notes for $ 61.85 each, due on the first day of each November for the five following years. The contract is identical, so far as the issues here are concerned, with the contracts construed in Carpenter v. Thornburn, 76 Ark. 578, 89 S.W. 1047, and Smith v. Caldwell, 78 Ark. 333, 95 S.W. 467.

The land, when purchased by Banks, was wooded land; it had been deadened but not otherwise improved. Banks took possession under his contract, and improved and cleared twenty-five or twenty-six acres, built two houses, a crib, cotton houses and other outhouses; planted an orchard, and brought the land, with its improvements, to a value of fifty or sixty dollars an acre. He paid the notes falling due on November 1, 1900, and 1901. This suit grew out of his failure to pay at maturity the note falling due on November 1, 1902.

There is no serious conflict in the evidence. Where there is a conflict, it is a mere difference between two witnesses detailing the same transaction, and the court accepts in such conflicts the testimony accredited by the chancellor--nothing else appearing to determine the preponderance. So treating the testimony, the following facts appear:

Before the maturity of the notes, Williamson would give the negroes notice, and send the notes for collection to Henry Wilson, a negro living in that vicinity. In making the contract with Banks, Wilson had acted as agent for Williamson, and the first two notes had been paid through him.

In October, 1902, Williamson sent a statement to Wilson of the various amounts due from the negroes, together with the notes which were about due. Banks's note was not among the lot, and he wrote Williamson inquiring about it, and was informed that it had been purchased by H. A. Bowman of Little Rock, and he notified Banks of this fact. He says that Banks then got him to write a letter to Bowman (to which Banks's name was signed), asking him if he had this note. This letter was not returned to the writer, and presumably was received by Bowman, but he does not appear to have answered it. Wilson says that it was the last of October when he wrote the letter for Banks. The exact date he does not know. The testimony of Bowman and Williamson is that the assignment of the note to Bowman was made on the 28th of October. From other established facts in the case, it must have been that Bowman purchased the note some short time before the date of its formal assignment.

Bowman says that he came to his plantation in Chicot County, which adjoined the Banks place, in the first part of November, and that Banks then called to see him and asked if he had his notes and had them with him, and he told him that he had. He asked Banks if he was ready to pay the note then due, and Banks said no, and he told him that he had the note whenever he was ready to pay it.

On the other hand, Banks testified that he asked Bowman if he had the note with him, and then Bowman asked him if he had the money to pay it; and "I told him I would get his money in a few days, and I asked him if he had the notes, so that I could get his money, and he said yes." Banks told Bowman that he would get Lacy Brothers & Kimball, commission merchants of Memphis, who were supplying him to pay the note. On November 19, 1902, Lacy Brothers & Kimball wrote to Banks that they found that Bowman had purchased the tract of land, and that Williamson had turned the entire contract over to him, and that, on looking over Williamson's books, they found that Banks owed a note of $ 61.85, together with $ 7.50 for some taxes. That Williamson...