Block v. Smith

• Decision Date: 16 November 1895
• Citation: 32 S.W. 1070
• Parties: BLOCK et al. v. SMITH et al.
• Court: Arkansas Supreme Court

32 S.W. 1070

BLOCK et al. v. SMITH et al.

Supreme Court of Arkansas.

November 16, 1895.

Appeal from circuit court, Cross county; James E. Riddick, Judge.

Action by R. M. Smith and others against R. Block and another on a rent note and to enforce a landlord's lien. Judgment was rendered for plaintiffs, and defendants appeal. Modified.

In 1889 appellees R. M. Smith and C. M. Hamilton, then engaged as a partnership in a mercantile business, and being the owners of the north part of the S. W. ¼ of section 33, in township 7 N., of range 4 E., and the north half of private survey 494, township 6 N., of range 4 E., in Cross county, Ark., bargained and sold the same to appellant Sam Benson, for the sum and price of $2,000, to be paid in five equal installments, due and payable on the 15th days of December, 1889, 1890, 1891, 1892, and 1893, respectively, and executed and delivered their bond for title on the payment of the purchase money. Five notes were executed and delivered to Smith & Hamilton, in pursuance of said bargain and sale. The contract of sale is as follows, to wit: "Know all men by these presents, that we, C. M. Hamilton and R. M. Smith, are held and firmly bound unto Sam Benson, in the sum of $4,000.00, for the payment of which we bind ourselves, our heirs, and assigns, firmly by these presents. Witness our hands and seals this 2nd day of February, 1889. Whereas, the said Sam Benson this day purchased of the said C. M. Hamilton and R. M. Smith the following tract of land in the county of Cross and state of Arkansas: [described as in appellees' complaint] and agreed to pay therefor the sum of $2,000 in the following manner: $400.00 Dec. 15, 1889; $400.00, with 10 per cent. interest, Dec. 15, 1890; $400.00, with 10 per cent. interest, Dec. 15, 1891; $400.00, with 10 per cent. interest, Dec. 15, 1892; and $400.00, with 10 per cent. interest, Dec. 15, 1893, — which several amounts are evidenced by five promissory notes, due and payable as above stated. In default of the payment of either of said notes, when due, the said Sam Benson this day executes five rent notes of even date herewith, and due and payable on or before January 1st, 1890, January 1st, 1891, January 1st, 1892, January 1st, 1893, and January 1st, 1894, with interest on same at the rate of ten per cent. per annum from date. Now, if the said C. M. Hamilton and R. M. Smith shall, on the punctual payment of said notes, and of all the taxes legally assessed against said land, and the surrender of this instrument, convey, or cause to be conveyed to the said Sam Benson, his heirs or assigns, the above-described premises, then this obligation to be void; otherwise, not. In witness whereof we have hereunto set out hands and seals the day and year above mentioned. R. M. Smith. [Seal.] C. M. Hamilton. [Seal.]" The contract of sale was delivered to Benson, and, it appears, continued in his possession and that of his coappellant, Block, up to the trial of the cause in the court below. The principal of each of the rent notes referred to appears to have been $150. Benson paid the first vendor's note of $400 in due time, but paid no other, and continued in possession. Some time afterwards, appellants Smith, Graham & Jones bought out the firm of Smith & Hamilton, and, the testimony is, "succeeded them in business, and were the owners of all rights under the contract with Benson." There does not appear any deed, however, from Smith & Hamilton to Smith, Graham & Jones, conveying their real estate. R. M. Smith appears to be the person named as a member of the old firm and as a member of the succeeding firm. Smith, Graham & Jones, claiming to occupy the place of Smith & Hamilton, and to be the landlords of Benson, instituted this suit on the lost rent note of 1892, calling for the sum of $150, claiming that Benson had abandoned his purchase under the terms of the contract, and was obligated thereby to pay said rent. This proceeding was instituted on the equity side of the docket, for the reason, as alleged, appellant Block had purchased of Benson 8 or 10 bales of cotton of that year, produced on said land. Smith & Hamilton, by consent, were made parties plaintiff. Decree for plaintiffs, and defendants appealed.

J. D. Block, for appellants. N. W. Norton, for appellees.

BUNN, C. J. (after stating the facts).

The first question that presents itself for our consideration is, was there an abandonment of the purchase, and an election to stand on the alternative part of the contract, to wit, the lease? By their suit plaintiffs elected to proceed under the lease or rent clause of the contract. The appellants, by their contention, deny that plaintiffs below (and appellees here) had any election in the matter, and from that standpoint contend that "the burden is on appellees to show, by a preponderance of the testimony, some sort of contract whereby Benson became their tenant of the premises for the year 1892, and obligated himself to pay rent therefor." In the first place, as to the four absent rent notes, we think that all of the notes for the rent were either given to Smith & Hamilton by Benson, and afterwards all except the one were lost or mislaid by them, so that they could not be produced on the trial; or else that, by inadvertence, they were not actually executed and delivered, as was agreed upon, and as was intended, by the terms of the contract, to be executed. In either case, it is but just and equitable that the appellant should be held bound just as if the note of 1892, as well as the other absent notes, had been produced in court, because in equity that which was agreed to be done, and ought to have been done as a part of the contract, is to be considered as done. It was said in Ish v. Morgan, 48 Ark. 416, 3 S. W. 440: "If the contract shows that the defendant was in under an agreement to purchase, the idea of a tenancy was rebutted, and neither...