Fordyce Lumber Co. v. Wallace

• Decision Date: 23 December 1907
• Citation: 107 S.W. 160
• Parties: FORDYCE LUMBER CO. v. WALLACE.
• Court: Arkansas Supreme Court

Page 160

107 S.W. 160

FORDYCE LUMBER CO. v. WALLACE.

Supreme Court of Arkansas.

December 23, 1907.

Appeal from Dallas Chancery Court; E. O. Mahoney, Chancellor.

Bill by the Fordyce Lumber Company against W. M. Wallace. From a decree for defendant, plaintiff appeals. Affirmed.

T. B. Morton and Gaughan & Sifford, for appellant. Harry H. Myers and U. S. Bratton, for appellee.

McCULLOCH, J.

Appellant, Fordyce Lumber Company, instituted this suit in the chancery court of Dallas county to compel specific performance of an alleged agreement of appellee, Wallace, whereby the latter undertook to sell and convey, for a stipulated price, 80 acres of land and the pine timber on 230 acres of land in that county. The complaint accurately describes the land to be conveyed, and also the land on which the timber is situated. It states that at the time of said sale the plaintiff executed to the defendant its promissory note for $1,650, the agreed price of the land and timber, and that in said note a description of the land and timber and a recital of the terms and conditions of the sale were stated. Appellee filed his answer, in which he denied that he ever sold or agreed to sell the land and timber described in said complaint for the sum of $1,650 or any other sum; denied that he owned all the lands described in the complaint, or that he had entered into any contract with the plaintiff for the sale of any lands or timber. He admitted that the plaintiff had delivered to him its note for the purchase price of said land, and that he verbally agreed to convey the land and timber to plaintiff on condition that he could secure his wife's signature to the deed, but that his wife had refused to join in the conveyance. On the trial of the case the said instrument of writing, which both parties designated in the pleadings as plaintiff's note for the purchase price for the land and timber, was introduced in evidence, and is in the following form: "Fordyce, Ark., May 17, 1904. On January 1st, 1905, we promise to pay to W. M. Wallace sixteen hundred fifty dollars. This is the purchase price of pine timber on two hundred thirty acres of land in section 16-7-14, which is to be removed within five years from date or $100 per year paid after that date until it is removed. Also warranty deed to east one-half southeast quarter section 6-7-14, with interest from maturity at eight per cent. per annum. Fordyce Lumber Company, by C. V. Edgar, Sec'y & Mgr. Accepted: W. M. Wallace." The chancellor found that the alleged agreement contained in the writing set forth above was a conditional sale, and was conditioned on defendant's wife joining in the execution of proper conveyance, which she had refused to do; and the court dismissed the complaint for want of equity.

We think that the chancellor erred in dismissing the complaint on that ground, but that his decree is right upon other grounds. The testimony as to there being no condition attached to the alleged agreement clearly preponderates in favor of the plaintiff. It is unnecessary for us to determine whether under the circumstances oral evidence was competent to show that the instrument in question...