Briggs v. Frazer

• Decision Date: 19 March 1923
• Docket Number: 229
• Citation: 249 S.W. 9,157 Ark. 518
• Parties: BRIGGS v. FRAZER
• Court: Arkansas Supreme Court

249 S.W. 9

157 Ark. 518

BRIGGS v. FRAZER

No. 229

Supreme Court of Arkansas

March 19, 1923

Appeal from Pulaski Chancery Court, John E. Martineau, Chancellor affirmed.

Decree affirmed.

John D. Shackleford, for appellant.

The unsigned memorandum contract of sale being definitely recognized and referred to by appellee in signed letters constituted a memorandum in writing that takes the transaction out of statute of frauds. Ft. Smith v Brogan, 49 Ark. 306. Statute does not apply to contract of sale of land made by correspondence. Joppa Mattress Co. v. Ark. Standard Oil Co., 101 Ark 548. Statute not inflexible. Pindall v. Trevor, 30 Ark. 249. Actual offer of money for agreed purchase price not necessary to constitute tender, appellee having refused to accept it. Burr v. Daugherty, 21 Ark. 559; Nix v. Rector, 4 Ark. 251; 28 Am. & Eng. Encyc. 5.

T. N. Robertson and A. J. DeMers, for appellee.

Contract for resale of the premises not enforceable, not being signed nor any memorandum thereof to take it out of requirement of statute of frauds. Sec. 4862 C. and M. Digest. Lee v. Vaughan Seed Store, 101 Ark. 68; Fort Smith v. Brogan, 49 Ark. 306; Cane v. Crowe, 114 Ark. 121; Holt v. Moore, 37 Ark. 145; Henry v. Knod, 74 Ark. 390. Case of Joppa Matress Co. v. Ark. Standard Oil Co., 101 Ark. 548, cited by appellant, distinguished Neither was there any tender of the purchase money nor any waiver of it. 38 Cyc. 143; 92 N.Y.S. 891.

OPINION

MCCULLOCH, C. J.

Appellant instituted this action against appellee in the chancery court of Pulaski County to compel specific performance of an alleged contract for the conveyance of certain real estate in Little Rock and a lot of furniture and other household effects in the building on the premises. The trial before the chancery court resulted in a decree dismissing appellant's complaint for want of equity.

The real estate in controversy, a house and lot on West Third Street in the city of Little Rock, was owned by appellee and operated as a rooming house.

On May 18, 1918, appellee entered into a written contract with appellant to sell the property to appellant for the sum of $ 9,500, of which sum appellant paid $ 1,000 in cash, assumed a mortgage to a banking institution of Little Rock in the sum of $ 4,000, and gave forty-five notes for $ 100 each, payable monthly. Appellant took possession under the contract and occupied the house, and paid sixteen of the notes as they fell due. The sale included also the furniture in the house at the stipulated price of $ 2,000, making a total of $ 11,500 for the house and furniture. Later appellee conveyed the real estate to appellant by warranty deed, reserving a lien in the deed for the unpaid balance of the price.

On July 30, 1919, appellant, being still in possession of the premises, executed and delivered to appellee a quitclaim deed conveying to appellee all her interest in said real estate and personalty and delivered, possession of same to appellee.

It is alleged in the complaint that at the time of the reconveyance of the property by appellant to appellee the latter entered into another contract in writing with appellant for resale of the property to appellant within one year upon the payment of the original purchase price. Appellee denied this allegation in her answer as well as in her testimony. Appellant exhibited with her complaint what purports to be a written contract for the resale of the property to appellant, but the instrument does not purport to have been signed by appellee. Appellant testified that the terms of the contract were orally agreed upon between her and appellee on the day she reconveyed the property to appellee, and that the contract was prepared on that day, but...