Graham v. Remmel

• Decision Date: 24 June 1905
• Citation: 88 S.W. 899
• Parties: GRAHAM et al. v. REMMEL.
• Court: Arkansas Supreme Court

88 S.W. 899

GRAHAM et al. v. REMMEL.

Supreme Court of Arkansas.

June 24, 1905.

Appeal from Circuit Court, Jackson County; Frederick D. Fulkerson, Judge.

Action by H. L. Remmel against H. C. Graham and others, doing business as Graham Bros. From a judgment in favor of plaintiff, defendants appeal. Reversed.

The following is a copy of the note referred to in the opinion: "Tuckerman, Ark., Feb. 27, 1902. On the delivery or thirty days thereafter, of a joint life policy in the sum of thirty-five thousand dollars ($35,000) on the ten year distribution plan in the Mutual Life Insurance Company of New York, on the lives of Henry C. Graham, J. R. Graham, T. J. Graham, Nimrod Graham, Nathan Graham, Josephus S. Graham and James Graham, known as the Graham Bros., we promise to pay to the order of H. L. Remmel the sum of four thousand seven hundred and fifty-three and seventy-hundredths dollars ($4,753.70). Should the policy not be issued then this obligation to be null and void."

Jno. W. & Jos. M. Stayton and Morris M. Cohn, for appellants. Rose, Hemingway & Rose and S. D. Campbell, for appellee.

HILL, C. J.

In Jackson county there were seven brothers named Graham, engaged in mercantile pursuits and farming, and all in prosperous condition; and it developed in argument of the case at bar that they were each over six feet tall—fine specimens of Arkansas manhood. Mr. H. L. Remmel, the general manager of the state of one of the large insurance companies, knowing them, and recognizing the advantage to his company of securing a policy on the joint lives of these gentlemen, undertook personally to secure such a policy, and, to that end, visited them. The result was, an application was signed for a $35,000 policy on the lives of the seven Grahams, and a note for $4,753.71, payable to Mr. Remmel, was executed and delivered to him. Later a 10-year distribution plan policy for $35,000 was sent to the Grahams. It was not accepted, and negotiations were had between Mr. Remmel and some of them, looking to the securing of a different policy than the one sent. Mr. Remmel tried to get the one desired, and failed, and tendered a policy according to what he claims was the contract when the note was executed; and, on the refusal of the Grahams to accept it, he brought suit on the note. The testimony of Mr. Remmel is to the effect that an absolute agreement was reached when the application was signed and the note executed, and the policy tendered as in full and complete fulfillment of the contract as called for in the note, which will be set out in the statement of facts by the reporter. Mr. Remmel was supported in his statements by a letter written to him during the negotiations for the different policy, in which Graham Bros. stated: "Will say we are pleased with contract and have no objection whatever, but would like to have it changed to the five year distribution plan, as we have changed our minds on taking it on the plan applied for." They explain this letter by saying that it was dictated by Mr. Remmel himself to their attorney. This is admitted. And they further say it was written merely to facilitate Mr. Remmel in his effort to obtain from his company the policy they desired. The court excluded evidence offered by the appellants contradictory of Mr. Remmel's as to the execution of the note. The record reads as follows: "The defendants thereupon offered to prove by Thos. Graham that the plaintiff requested that they execute the note; that it might be necessary to attach the note to the application to show their good faith, but would not be binding upon them, except that if the policy, when it arrived, was satisfactory, and they accepted it the note would be binding, otherwise it would be void. This was a condition which went with its execution. The evidence so offered having been ruled out, defendants excepted." Several other Grahams were offered on the same point. The court directed a verdict for Mr. Remmel on the note sued upon, judgment was rendered accordingly, and the Grahams have appealed.

The appellee relies upon Findley v. Means, 71 Ark. 289, 73 S. W. 101, and the authorities therein cited, to sustain the action of the circuit court in excluding this testimony. The syllabus of that case is as follows: "A deed, note, or other instrument of writing delivered to the grantee or obligee, to take effect when certain conditions are performed, becomes operative and binding from the time of delivery, though the conditions be not fulfilled." The authorities cited are Pope v. Latham, 1 Ark. 66; Inglish v. Breneman, 5 Ark. 377, 41 Am. Dec. 96; Scott v. State Bank, 9 Ark. 36; Chandler v. Chandler, 21 Ark. 95; Campbell v. Jones, 52 Ark. 493, 12 S. W. 1016, 6 L. R. A. 783. With the exception of Chandler v. Chandler, all these cases were cases of escrow, where the point decided was that there could be no delivery in escrow to the obligee of a bond, note, or other written instrument. Chandler v. Chandler holds that, where a bond or other writing is delivered conditionally to...