Gowen v. Sullins

• Decision Date: 02 February 1948
• Docket Number: 4-8396
• Citation: 208 S.W.2d 450,212 Ark. 824
• Parties: Gowen v. Sullins
• Court: Arkansas Supreme Court

208 S.W.2d 450

212 Ark. 824

Gowen v. Sullins

No. 4-8396

Supreme Court of Arkansas

February 2, 1948

Rehearing Denied March 8, 1948.

Appeal from Stone Circuit Court; S. M. Bone, Judge.

Affirmed.

Ben B. Williamson, for appellant.

Caudle & Mobley, for appellee.

OPINION

Smith J.

On April 14, 1945, appellee, H. E. Sullins, at that time a citizen and resident of Hereford, Texas, negotiated and entered into a contract with one W. C. Branscum, as agent of the United Farm Agency, a corporation engaged in the real estate business, for the purchase of a farm of which C. E. Gowen was the owner.

On the date stated a written contract was prepared by Branscum, as agent, which recited that Gowen had contracted to sell and Sullins had contracted to buy a farm there described as R. E. listing No. 432 -- 164 acres.Branscum had prepared and circulated literature, copies of which had been received by Sullins, which referred to lands the agency had for sale by number, the land of Gowen being listed as No. 432.The contract recited that the purchase price of the land was $ 4,400, payable as follows: "Amount paid on execution of the contract, $ 1,000.Additional cash on delivery of deed, $ 3,400 . . . and agrees to pay the balance as follows: $ 500 as soon as abstract and deed is approved."The contract also recites that "It is mutually agreed that should either party hereto fail or neglect to perform his part of this agreement, he shall forthwith pay and forfeit as liquidated damages to the other party, a sum equal to ten per cent of the agreed price of sale, except, that if said agreed price is less than $ 2,000, said sum shall be $ 200.Deed shall be delivered on the day of , 19 , at o'clock, at the office of in the city of as soon as paid in full."Other recitals indicate that a blank form was used in the preparation of the contract.

On the same day and under the same date to-wit, April 19, 1945, Branscum prepared a written contract entitled "Contract and Escrow Agreement."This writing recited that Gowen, as party of the first part, agrees "to sell and execute a warranty deed and abstract to (Sullins)the party of the second part, certain lands described as being in section 14, T. 14 N., R. 11 W., containing 164 acres, for a consideration of $ 4,400, of which sum $ 1,200 is being paid down and $ 500 upon completion of deed and abstract, and the balance to be paid in annual installments of $ 900 each, with interest at 6% on the unpaid balance beginning with the first installment payment of $ 900, on or before April 16, 1946, and $ 900 on April 19 of each year until the full amount of $ 2,700 is paid in full."It was also recited "that party of the second part, after having read this contract, agrees on his part to make the down payment of $ 1,200 and $ 500 and the balance as set out above."And further that "It is understood that the deed and a copy of the contract shall be held in escrow in the bank at Mt. View, to be collected by said bank, and placed to the credit of the party of the first part, and when all payments have been made said deed to be delivered to the party of the second part."

It was further recited that "It is understood that in the event of the failure of the party of the second part to pay either of the installments in the deed when due, all become due and payable, and this contract becomes null and void, and the deed reverts to the grantor at the option of the grantor."Other provisions relate to the payment of taxes which we do not recite.It will be observed that the escrow agreement makes no reference to the payment of damages by the party failing to perform.

This suit was brought by Sullins against Gowen and against Branscum, both as agent and individually, to recover the payment made, and for liquidated damages for which the original contract provides, it being alleged that they had breached the contract in the manner hereinafter recited, and at the trial judgment was rendered for those amounts, and from that judgment is this appeal.

We think it clear that the escrow agreement, using that term to distinguish one writing from the other, was not intended to cancel and abrogate the sales contract, although it does modify it as to the time and manner of making payments, and it is not insisted that the provisions in the sales contract referring to the abstract were deleted or annulled.The insistence is that the agreement with reference to the abstract was performed.The court below was of the opinion that the writings having been executed simultaneously, or one immediately following the other, should be read together as being intended to evidence a single contract.

The pleadings and the testimony make it perfectly clear that all parties contemplated and intended that the two writings would make a single contract.It is well settled in this state that in the absence of anything to indicate a contrary intention, instruments executed at the same time for the same purpose, and in the course of the same transactions are, in the eyes of the law, one instrument and will be read and construed together.Raleigh Co. v. Wilkes,197 Ark. 6, 121 S.W.2d 886;Daugherty v. Merrifield,190 Ark. 537, 80 S.W.2d 72.The court below so construed the writings, and we think correctly so, indeed appellants quote from and rely upon the sales contract in several respects.

Both writings were prepared and executed in Mountain View.Sullins' wife had accompanied him there, and she inspected the property proposed to be sold, along with her husband, and while neither writing reflects the fact, it is agreed that Mrs. Sullins' name, as well as that of her husband, was to be used in buying the land and the deed was to be made to them as tenants by the entirety.

The escrow agreement required that a deposit of $ 1,200 be made and acknowledged that it had been made, and this money was deposited with the bank as the escrow agent.At the same time a joint deposit in the bank was made in the name of Sullins and his wife, the purpose thereof being to have the money on hand with which to complete the payment required to be made, "upon completion of deed and abstract."Sullins testified that not knowing how much he would be required to pay down, he had brought with him a cashier's check for $ 1,500, of which $ 1,000 was paid to Branscum and this with $ 200 previously paid on another proposed contract, which was never consummated, made the $ 1,200, the receipt of which was acknowledged in the escrow agreement.That agreement did not require Sullins to make the $ 500 deposit and he testified that he made it to be used when the contract was closed as he did not wish to carry the money back with him to Texas and it was left with the bank as a joint deposit of himself and his wife.Sullins was only required to pay the $ 500 when the abstract had been delivered and the title approved.

After the writings had been signed, Mr. Sullins and his wife returned to their home in Texas where they separated, but they became reconciled and their separation was of short duration.But while they were separated Mrs. Sullins wrote a letter, dated May 19, 1945, to Mr. Branscum reading as follows:

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