Daly v. Arkadelphia Milling Co
| Decision Date | 27 November 1916 |
| Citation | 189 S.W. 1053,126 Ark. 405 |
| Parties | DALY v. ARKADELPHIA MILLING CO |
| Court | Arkansas Supreme Court |
[Copyrighted Material Omitted]
Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor reversed.
STATEMENT BY THE COURT.
On September 21, 1914, the appellant, T. J. Daly, and his sister executed a deed conveying a certain lot upon which a dwelling house was situated in the town of Arkadelphia, Arkansas. The consideration named in the deed was $ 820.00, to be paid on or before June 15, 1915. The deed was placed in escrow in a local bank at Arkadelphia, and the grantee, R. A. Roberson was given possession with the understanding that he was to pay an amount equal to eight per cent. interest on the $ 820.00. When Roberson's note for $ 820.00 became due in June, 1915, he did not pay the purchase price or any part thereof, and asked Daly to extend the time for such payment until September, 1915, which request Daly granted.
Between June and September, 1915, Roberson bought lumber from the Arkadelphia Milling Company, and hardware from the Graves Hardware Company, and employed C. D. Gregory, a carpenter and had certain repair work done on the house. Roberson did not pay these parties for the material and labor and they instituted this suit against Roberson and Daly for the amounts claimed by them and asked that the same be declared a lien upon the house.
Daly answered, setting up that the deed from himself and his sister to Roberson had never been delivered to Roberson, but was placed in the Citizens National Bank in escrow, to be held until June 1, 1915, when the deed was to be delivered to Roberson upon his paying to the bank the sum of $ 820.00; that Roberson was given immediate possession of the property, and upon his request permission was granted him to make certain repairs thereon upon his own responsibility, but that no authority was given him by the owners to make the repairs on their account, and that he did not act for them as agent in buying the material and having the work done; that the owners extended the time for Roberson to make the payment from June 1 to September, and that Roberson having failed to pay for the property in September, the deed was withdrawn from escrow.
Roberson answered admitting the purchase of the materials and the performance of the labor under contracts made with him, and averring that he went into possession for the purpose of improving the property so that he could get a loan on the property with which to pay Daly, and alleged that Daly knew that he was making the improvements in order to apply for a loan with which to pay Daly; that the improvements were placed on the property with the consent and knowledge of Daly. He further alleged that when he entered into the contract with Daly for the purchase of the property it was understood that Daly would furnish him an abstract showing perfect title; that Daly failed to comply with his contract in this respect, and for that reason he was not able to obtain the loan.
Roberson testified in substance as follows: That he entered into the contract for the purchase of the property with one J. D. Townsend, whom he understood to be the agent of Daly. Townsend was also representing Roberson in endeavoring to secure a loan on the property, and at Townsend's request, partly, Roberson had the work done. The reason the trade between himself and Daly was not closed was on account of some dispute with reference to a part of the lot, being a strip of ground on the north side of the lot 10 feet wide and 110 feet long, that was claimed by a Mr. Cleveland. Roberson did not know about this claim until he had let the contract for the repair work and it was nearly completed. When he noticed the abstract showed this defect he wrote to Daly about it and finally Daly came to Arkadelphia and they tried to settle it, but could not. The deed was not to be delivered to Roberson until the note was taken up. Roberson regarded Townsend as Dr. Daly's agent in effecting the sale of the property and felt that in speaking to Townsend he was speaking to Daly, because Townsend represented to witness that he was Daly's agent. The improvements were put upon the property with the approval and consent of Daly and Townsend. Witness would not have put the improvements there without their consent. Witness supposed that Daly and his sister had a perfect title or they would not be selling the lot. He cautioned Daly about the abstract in every letter that he wrote, and also informed him that witness would have to borrow the money to pay the note, and that it would require an absolute title. He exhibited a letter written to Dr. Daly, at Palmer, Texas, in which he informed Daly that it would be satisfactory for him to execute deed and deposit the same with the Citizens National Bank of Arkadelphia, together with a bona fide abstract, conveying perfect title, and note of witness payable June 15, 1915. In this letter he informed Daly that he would be compelled to borrow at least part of the money with which to handle the note when it matured, saying, "Therefore, we cannot be too particular in the matter of making sure of a perfect title." He concludes the letter by saying: "If we are to deal at all it will have to be done at once as I contemplate considerable improvement of this property so that it will prove an attractive rental proposition." Daly replied to this, "I am perfectly willing to have my wife, sister and her husband to sign the deed with me so as to make you a clear title to the house and lot, and if you wish you can begin your improvements at once, as it will take some time to make you a deed as you request."
In answer to Daly's letter, Roberson, among other things, said:
Townsend testified that he was Dr. Daly's agent "in looking after this property at Arkadelphia and closing the deal." As such agent he authorized Roberson to go into possession of the property and make the improvements. Daly knew that Roberson was in possession and making the improvements, and approved of it. As a part of the contract, Daly was to give Roberson a perfect title to the lot and an abstract showing that fact. Witness, as agent of Daly, knew, and Daly also knew, that Roberson expected to get the money, or part of the money, on the property by borrowing it from a loan company. Roberson was not able to get the money because of a defect in the title. Witness took that matter up with Dr. Daly. Daly did not have the alleged defect in the title removed, and that stopped the trade and prevented Roberson from carrying out his part of the contract.
Witness exhibited with his deposition a letter that he received from Daly, which witness construed as giving witness more authority than simply closing the deal. The letter was received by witness while the deal was pending for the sale of the property to Roberson. It reads as follows:
Other letters which passed between Daly and Townsend after the deed was executed and deposited in escrow were read in evidence. In one of these letters Townsend informs Daly that he could loan Roberson $ 2,500.00 on his home place and the one he was getting from Daly, which would enable Roberson to pay his note in the bank to Daly. In one of Townsend's letters to Daly while the negotiations were pending he states: "
In one of the letters written by Townsend to Daly after the deed and abstract had been deposited in the bank Townsend informed Daly that Roberson was complaining "about Mr. Cleveland claiming the right to use 10 feet across the property;" and in this letter Townsend states that, "the abstract shows that this alley is on the property just north" of Daly's lot. And Townsend further states that he (Townsend) does not believe that Cleveland can hold the alley, but that Roberson will not close the deal until the matter is settled, and Townsend asks what he must do.
In answer to this letter Daly wrote Townsend as follows:
In answer to this letter Townsend wrote Daly that he had seen...
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