Carrell v. McMurray

• Decision Date: 25 March 1905
• Citation: 136 F. 661
• Parties: CARRELL v. McMURRAY.
• Court: U.S. District Court — Western District of Arkansas

136 F. 661

CARRELL v. McMURRAY.

United States Circuit Court, W.D. Arkansas, Fort Smith Division.

March 25, 1905

J. V Walker, for complainant.

Brizzolara Fitzhugh & Wellshear, for defendant.

ROGERS District Judge.

This is a bill of complainant to reform a deed and to enjoin the defendant from the prosecution of a suit at law against the complainant. The complainant, John W. Carrell, owned a farm in Benton county, Ark. He resided at Springdale, a village in that county, and was by occupation a farmer, merchant, and banker. The defendant was a citizen of Memphis, Tenn., and had a store at Cameron, in the Indian Territory. The defendant desired to go out of business at Cameron. The complainant, having learned of this fact, perhaps through Mr Black (who was a brother-in-law, and a merchant at Cameron) opened correspondence with the defendant at Memphis, proposing to trade him his Benton county farm for the store and goods at Cameron. The correspondence culminated in defendant going to Benton county on the 11th or 12th of July, 1900, to examine the farm. After going over the farm the parties entered into a conditional oral agreement to exchange the farm for the store and outhouses and the goods at Cameron. In the exchange the farm was to be valued at $20 per acre, and the balance due on the goods and houses at Cameron to be paid for in cash after the goods were invoiced. Indeed, defendant testifies that at that time complainant refused to go to Cameron to examine the goods, unless it was agreed he should have $20 an acre for his land and retain possession of the farm until January 1, 1901, and have the rents for 1900. The reason for retaining possession and the rents is conclusively shown, viz., that complainant's stock of hogs and cattle were on the farm and had to be cared for, and there were also unsettled accounts with complainant's tenants that he wanted to adjust out of that year's rent. There is no dispute about so much of the agreement as is above stated. There is some controversy about the terms of the oral agreement then made as to the properties at Cameron, as will be seen later. Accordingly, on the 13th of July, defendant left for Cameron, and arrived there the same day, and immediately gave directions for the store to be cleaned up, so that the plaintiff (who was expected next day) could look over it to advantage. On the next day, the 14th of July (which was on Saturday), complainant arrived at Cameron. They proceeded at once to look over and invoice the showcases and fixtures. Defendant contends that during the day, while negotiating about the Cameron properties, there was some friction, growing out of a disposition by complainant to embrace things which were not included in the oral agreement made at Springdale on the 12th of July. There were some differences in the valuations of the showcases and fixtures, natural enough between the parties. These differences were, however, adjusted; and beyond this I am unable to find that there was any other friction about the trade until defendant, at his own suggestion, prepared a memorandum in writing of what he claimed was the oral contract at Springdale, and submitted it to complainant. Parts of this memorandum agreement were objected to and stricken out. The paper was then redrafted and signed by the parties. It is as follows:

'This agreement, made and entered into between J. W. Carrell and W. H. McMurray, made this the 14th day of July, witnesseth: That the above-named parties agree to the following trade and conditions hereinafter named: That for and in consideration of J. W. Carrell's 486-acre farm, situated about 15 miles east of Springdale, Arkansas, which is valued at $20.00 per acre, amounting to $9,720.00, W. H. McMurray agrees to sell his store building, two frame storerooms situated back of store and stables, also the vacant property on west side of and back of the store and enclosed under barn fence, all of which is valued at $3,000.00. This does not include either of the dwelling houses nor the lots on which they are situated. It is further agreed that the goods in the store shall be furnished at invoice prices to the amount of $6,720.00, which with the above-mentioned $3,000.00 is in full payment for the 486 acres farm land. It is further agreed that said Carrell shall pay W. H. McMurray cash for the balance of goods at the rate of 80 per cent. on the invoice cost of goods. It is further understood by both parties that any goods that are damaged shall be put in at their actual value.

'J. W. Carrell. 'W. H. McMurray.'

This agreement I find, after a careful review of the evidence pro and con, embraces the same terms as the oral (as far as it goes) made at Springdale, Ark., July 12th. Defendant attempts to show by his own evidence that this agreement was not the same as the agreement made at Springdale, and gave complainant advantages which the oral agreement did not. This is unimportant now; but I do not think the evidence sustains that contention, but quite the contrary. There was some details, as stated, which had to be and were adjusted at Cameron, which were not necessarily contemplated by the parties. The values of fixtures and showcases and the like could not be settled fairly by either party except after inspection, and complainant had not examined these at all, and defendant had not seen them for some time. It may be noted in this connection that, while these fixtures and show cases were not adverted to at Springdale, neither are they mentioned in the written agreement of July 14th, although it is conceded that they went with the store and were paid for by complainant. Defendant contends, further, that the barns and lots adjoining were not embraced in the agreement at Springdale. The written notes made by complainant in a small book at the time spoke of the real property at Cameron as 'the storeroom and outbuildings,' and they were valued at $3,000. No doubt the barn and adjoining lots were embraced in the words 'outbuildings' in the Springdale agreement. At all events they are specifically embraced in the written agreement of July 14th prepared by defendant. It does not appear that there was any controversy over them. Indeed, they appear in the original draft of the agreement made by defendant himself as embracing what he understood the Springdale agreement to be. I conclude that these contentions by defendant relating to price of fixtures and barns and lots were mere afterthoughts, intended to make some moral showing for his course of procedure about the rents for 1900. In this connection it is apposite to note that in his letter of August 4, 1900, in which he reviews at considerable length the negotiations and trade, and asserts his rights, he never refers to the barns and adjacent ground. At all events, they are of no importance now, inasmuch as he voluntarily embraced them in the written agreement of July 14th, and no one can read the evidence in this case and fail to get the impression that in that trade defendant's sold purpose was to get something for all he let go.

It may be of some importance to note, contrary to the impression defendant seeks in his evidence to make, that the negotiation at Springdale went so far that complainant learned from the defendant to whom he wished the deed to the lands made; for, on the same day defendant left Springdale for Cameron, complainant took his title papers to the land to his brother-in-law, Anderson Sanders, who was a merchant at Springdale, and not a lawyer, and gave him the terms of the trade, stating, among other things, to whom to make the deeds, and that Carrell was to retain the rent for 1900 and the possession of the land for that year, and instructed him to draw the deed and get his sister, plaintiff's wife, to sign and acknowledge it. This Sanders did, and held the deed for further orders from complainant. In drawing the deed he did not reserve the rent for 1900 or the right to the possession for that year. Complainant and Sanders both say they did not think it proper to put that in the deed. They doubtless thought the oral agreement sufficient to hold possession and the rents for 1900. It thus appears that when the written memorandum agreement of July 14th, providing the terms of the sale, was signed, the deed to complainant's farm was already drawn, signed, and acknowledged, and defendant was totally ignorant of its contents. When complainant left Springdale for Cameron, he left the deed with Sanders. After the written agreement of July 14th; supra, was executed at Cameron, complainant telegraphed for Sanders' son to bring him the deed and a $3,000 draft to pay for the Cameron real estate. Sanders came on Monday at noon, and brought both deed and draft. Meantime a generous rain fell on Saturday night at Cameron, brightening the outlook for the cotton crop already suffering from drouth. The evidence discloses no controversy, or even mention, at Cameron of the rents or possession of the farm for 1900 before the contract of July 14, 1900, was signed. Up to that time the contract at Springdale stood, as to the rents and possession of the farm for 1900, as agreed upon at Springdale. But next day, after the rain on Saturday, we first hear of the rents as a matter of contention by defendant. Durwood McCarty, a witness for the complainant, and who is a cousin of defendant, testifies that he was with defendant on Sunday afternoon--

'And we was talking about the trade, and he told me then something about how they traded. He said they had a good rain, and the prospects of a good crop, and he didn't think it was right to turn over the store to Mr. Carrell then and not get the farm until January, and if he wouldn't agree to let him have the farm then he wouldn't make no trade on Monday, or back...