Cox v. Smith

• Decision Date: 07 February 1910
• Citation: 125 S.W. 437
• Parties: COX v. SMITH.
• Court: Arkansas Supreme Court

125 S.W. 437

COX v. SMITH.

Supreme Court of Arkansas.

February 7, 1910.

Appeal from Scott Chancery Court; J. V. Bourland, Chancellor.

Suit by W. R. Cox against H. N. Smith. From a decree dismissing the bill, complainant appeals. Reversed and remanded, with directions.

W. A. Bates and A. G. Leming, for appellant.

FRAUENTHAL, J.

This is an appeal from a decree of the chancery court sustaining a demurrer to the complaint and dismissing same for the want of equity. The complaint, in substance and effect, alleged that the plaintiff, W. R. Cox, was the owner of a block of land in the town of Waldron, Ark., containing four lots, and that on the 21st day of February, 1907, he sold one of these lots, describing same, to the defendant, H. N. Smith, for the price and sum of $550; that the defendant paid $250 of said purchase money in cash, and he agreed to pay the balance of said purchase money, to wit, $300, in the following manner: The plaintiff was the owner of the lot adjoining the lot sold to defendant, and the defendant agreed to build a partition brick wall of the height of a two-story building, and from 60 to 80 feet long, at the defendant's option, so that one half of said partition wall should stand on the lot retained by the plaintiff, and the other half on the lot sold to defendant, and that plaintiff should own and use the said one-half of said wall for a building which he might construct on his lot; and defendant agreed to complete the wall by October 1, 1908. The plaintiff at the time of the sale executed a deed to the defendant for the lot, in which the consideration is named at $250, and as paid. At the same time the defendant executed to plaintiff an instrument, which is styled a bond for title, but which plaintiff alleges is a mortgage, which was duly acknowledged and recorded. The writing is as follows:

"Title Bond.

"Know all men by these presents: I, H. N. Smith, of Waldron, Arkansas, am held and firmly bound unto W. R. Cox, of Waldron, Arkansas, in the sum of $300, in lawful money of the United States of America; conditioned, however, as follows: Whereas, the said H. N. Smith has this day purchased of the said W. R. Cox part of the lot 1, block 6, in the original donation of the town of Waldron, being 27½ feet by 100 feet on the south side of said block, and has agreed to build thereon a brick house two stories high, 60 or 80 feet long, the north wall of said house to be built on the line of said lot, nine inches on the one side of said line and nine inches on the other side of said line, the said wall to be built on or before the 1st day of October, 1908. Now, if the said H. N. Smith shall build or cause to be built said wall by said date this obligation shall be void; otherwise to remain in force and effect. Said W. R. Cox shall have a lien on said lot for the payment of said sum of $300.

                  "Witness my hand this 21st day of February
                1907.                      H. N. Smith."
                

The plaintiff alleged that the defendant had wholly failed and refused to build said wall on or before October 1, 1908, or thereafter, and had failed to pay the said $300, the balance of the said purchase money for said lot. He asked for a judgment for $300, and that same be declared a lien on said lot.

Did this complaint state a cause of action? If a cause of action can be reasonably inferred from the allegations of the complaint, it is not subject to a general demurrer. If the facts stated, together with every reasonable inference therefrom, constitute a cause of action, then the demurrer should be overruled. Murrell v. Henry, 70 Ark. 161, 66 S. W. 647; 6 Ency. Plead. & Prac. 389; Cazort & McGehee Co. v. Dunbar, 121 S. W. 270.

By the allegations of this complaint the plaintiff sold the lot to defendant for $550, of which a part was paid in cash, and for the balance of the purchase money the defendant was to do certain work and perform certain services for the plaintiff in the construction of a partition wall, and the value of that work and material in the construction of the wall was placed at $300, the said balance of the purchase money. It was agreed that the wall was to be completed by a specified time, and it is urged that this agreement is in the nature of a penalty or forfeiture for which equity will not grant relief. But under the allegations of the complaint the lot was sold for a specific consideration in money, and it was only agreed that a certain and definite portion thereof might be paid in certain work to be done by a fixed time. If the work was not done or the service rendered, then the plaintiff could recover said balance in money. If the defendant failed to pay this balance, either in work or money, by the day named, then it became a fixed debt due by him. Young v. Harris, 36 Ark. 162; Nix v. Draughon, 54 Ark. 340, 15 S. W. 893. But if the contract should be considered to be of a nature that named a stipulated amount which defendant should pay upon its breach, it would not be a penalty, but liquidated damages. The breach of the contract to build the wall would make uncertain and difficult of ascertainment the amount of damages which the...