Creighton v. Huggins, 5-1304

• Decision Date: 01 July 1957
• Docket Number: No. 5-1304,5-1304
• Citation: Creighton v. Huggins, 303 S.W.2d 893, 227 Ark. 1096 (Ark. 1957)
• Parties: J. L. CREIGHTON et al., Appellants, v. James C. HUGGINS et al., Appellees.
• Court: Arkansas Supreme Court

Page 893

303 S.W.2d 893

227 Ark. 1096

J. L. CREIGHTON et al., Appellants, v. James C. HUGGINS et al., Appellees.

No. 5-1304.

Supreme Court of Arkansas.

July 1, 1957.

Sloan & Sloan, by Frank Sloan, Jonesboro, for appellants.

Frierson, Walker & Snellgrove, Jonesboro, for appellees.

MILLWEE, Justice.

This is a suit by appellee, James C. Huggins, for specific performance of a contract under which the appellants, J. L. Creighton and wife, were to sell him a house and lot in Jonesboro, Arkansas, for $6,000. Appellee, Donald E. Gilbert, who executed the sales contract on behalf of the appellants, joined in the suit, claiming a 5% commission of the agreed purchase price was due him as a licensed real estate broker employed by the appellants. In their answer appellants alleged that appellees sought by parol evidence and circumstances to modify and alter the written contract by adding to the property to be sold a strip of land 11.4 feet wide and 65 feet long; and that such attempted change was a void effort to modify the contract by parol evidence and within the statute of frauds which was pleaded as a complete bar to the suit.

This appeal is from a decree ordering specific performance of the contract, payment of a commission of $300 to appellee, Gilbert, and denying appellants' counterclaim for unpaid rents and damages. The principal issue is whether Appellee Huggins, under the statute of frauds, was entitled to specific performance of the contract where the description covered only a part of a larger tract owned by appellants and a determination of what part of the larger tract was intended to be included could not be made without resorting to parol evidence.

Appellant J. L. Creighton inherited a tract of land in 1934 described as Lot 3 of Cobb's Survey of the Southwest Quarter of the Southeast Quarter of Section 18, Township 14 North, Range 4 East, in the City of Jonesboro, Arkansas. The tract measures 65 feet east and west and 215.2 feet north and south. It is bounded on the north by Monroe Avenue, on the south by Washington Avenue and on the west by Carson Street. In 1934 the Creighton family residence was located on the south portion of the lot and known as '500 East Washington Avenue.' This residence was subsequently converted into a four-unit brick apartment building. On the north part of the lot there was an old frame dwelling designated as '400 Carson Street,' which was rented to tenants. There was a double garage between the two buildings, which was at first used exclusively by the Creighton family as occupants of 500 East Washington. About 1944 the old house at 400 Carson Street was torn down and materials from it used to convert the double garage to a small apartment which was numbered 400 1/2 Carson Street. In 1947 a new five-room frame dwelling was erected in place of the old house at 400 Carson Street.

Appellants have resided in California for several years. In early 1951 or 1952 Appellee Gilbert succeeded another agency as appellants' local agent for rental of their property. The garage apartment was rented to various tenants prior to 1952 when the city directed that such rental cease because of insufficient plumbing facilities. After 1952 the garage building was used for storage purposes by the tenants at both 400 Carson Street and 500 Washington Avenue. When appellants constructed the new house at 400 Carson Street in 1947 they caused a survey of Lot 3 to be made dividing it into approximately two equal parts; the east-west division line running through the middle of the garage apartment with one room located north and the other room south of said line. In accordance with said survey Lot 3 has been divided on the county tax books since 1948 as: 'Lot 3 (less S. 107.1 ¹)' and 'South 107.1 ¹ of Lot 3.' In 1947 and 1952 appellants executed mortgages on the respective parcels, using the descriptions designated by the 1947 survey. A plat of said survey with a sketch of the dwelling at 400 Carson superimposed upon it as shown by another plat in evidence follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the spring of 1955 Appellee Gilbert, as appellants' agent, rented the property at 400 Carson Street to Huggins for $55 per month. Gilbert wrote a letter to appellants on June 3, 1955, proposing 'the sale of 400 Carson' to Huggins for $6,000. In their reply dated June 13, 1955, appellants authorized sale of 'the house at 400 Carson' on the terms suggested. On July 15, 1955, Gilbert, as appellants' agent, entered into a written contract with Huggins to sell the property described as: '400 Carson St.--Jonesboro, Craighead, Ark.'

Appellees testified that when Gilbert rented the property to Huggins the latter was placed in possession of the garage apartment as a storage room and that tenants in the four-unit apartment were only allowed to so use it by permission from Huggins. This was stoutly disputed by the several tenants of the other apartments who admittedly kept items of personal property stored there and keys to a padlock placed thereon by one of said tenants. This tenant, who was a cousin of Huggins, denied the latter gave him permission to use the building and stated such permission was given by Mrs. Creighton's aunt who then lived in and had charge of the rental of the four-unit apartment. Gilbert was also permitted to testify over appellants' objection to a telephone conversation with appellant, J. L. Creighton, which allegedly took place twelve days after the sale contract was signed, as follows:

'The first part of the conversation concerned what the delay was in closing the sale with James Huggins. Then I told him the delay was because of the G. I. loan and he said, 'I know it takes a lot of time to close those things. How much longer will it take?' Then I said, 'If this survey goes all right it should not take but 15 or 20 days more.' And then I said, 'We have a hitch in the contract of sale with James Huggins. James Huggins has bought the garage apartment lot and now we find a line was established in this description to split the middle of the garage...