Coleman v. Fisher

• Decision Date: 04 November 1899
• Parties: COLEMAN v. FISHER et al.
• Court: Arkansas Supreme Court

Page 671

53 S.W. 671

COLEMAN v. FISHER et al.

Supreme Court of Arkansas.

November 4, 1899.

Appeal from Pulaski chancery court; David W. Carroll, Chancellor.

Bill by Edward W. Coleman against J. W. Fisher and another. From a decree for defendants, plaintiff appeals. Reversed.

P. C. Dooley, for appellant. C. S. Collins and John Barrow, for appellees.

BUNN, C. J.

This case was decided by us some time ago (reported in 41 S. W. 49), but appellees showed to the court, after the decision was rendered, that the case had been prematurely submitted, because there had been no service of notice of the appeal and summons to them; and the judgment was thereupon set aside, and proper service of summons was served upon appellees as nonresidents, and the cause afterwards redocketed and resubmitted. The facts involved are the same as when presented to us before, and no new issues of law are raised. With little additions, we adopt our former as the decision of this cause, and the same is as follows, to wit:

This is a bill to foreclose a mortgage on a house and lot in the city of Little Rock, filed by appellant against appellees on April 12, 1893, in the Pulaski chancery court. Answer and amended answer set up failure of consideration, and partial failure of consideration, and payment, nonjoinder of parties plaintiff, statute of limitations, and usury. Upon the pleadings and testimony in the case the chancellor found generally "upon the whole case for defendants, and dismissed the bill for want of equity, and plaintiff appealed." Appellee J. W. Fisher being in the employ of Sweeton, Coleman & Co., and receiving a weekly salary from them, in January, 1889, or just previously, purchased the lot in suit, and obtained money from his employers with which to pay for the same, in whole or in part. In March following, desiring to build a residence on the lot, and to otherwise improve it for a home, he entered into a contract with the said Sweeton, Coleman & Co. whereby they agreed to furnish him the money and materials to enable him to build the house, to the estimated amount of $590, including the amount they had already advanced to him to pay for the lot. This amount was secured by a mortgage on that day, to wit, the 13th March, 1889, executed and delivered to them by Fisher and his wife, Dora, on said lot, and the improvements thereon, and to be placed thereon. It appears that the money and materials were to be paid and furnished as Fisher should need them. The...