Green v. Owens
| Decision Date | 28 May 1973 |
| Docket Number | No. 73--41,73--41 |
| Citation | 254 Ark. 574,495 S.W.2d 166 |
| Parties | Andrew J. GREEN and Doris F. Green, Appellants, v. Mack C. OWENS, Jr., Appellee. |
| Court | Arkansas Supreme Court |
Paul K. Roberts, Warren, for appellants.
Ronald L. Griggs, Camp & Thornton, El Dorado, for appellee.
Appellants contend that the chancery court erred in refusing to decree foreclosure of their agreement for the sale of a newspaper. The chancery court denied this relief upon a holding that appellants had released appellee from any and all responsibility under the agreement. Even though there is considerable conflict in the evidence as to the tenor and effect of conversations and conduct of the parties, we affirm because we are unable to say that this finding was clearly against the preponderance of the evidence.
Appellants were the owners of two newspapers as partners. They combined the two into one publication called 'Calhoun Herald and Arkansaw Plain Dealer.' They sold it on July 10, 1964, to J. W. and Marilyn Lindsey for $10,000, retaining a lien for $8,000 deferred purchase price, payable in monthly installments of $50 each, with interest at 6% per annum. The sale included all printing equipment and other personal property used in the publication of the paper. A seller's lien was retained by appellants. On July 14, 1965, the Lindseys sold the newspaper to appellee Mack C. Owens. Part of the consideration for the sale was Owens' agreement to assume the $7,887.14 balance of the purchase price the Lindseys owed appellants. The contract between the Greens and the Lindseys prohibited a sale or assignment without written consent of appellants, but consent to the sale to Owens was given. Owens continued the operation of the newspaper and made payments on the indebtedness until December 15, 1966, at which time the unpaid balance on the contract of sale amounted to $7,722.60. Appellee defended upon the ground that he had been released from his obligation to pay the balance due on the purchase price and that all the equipment covered by the agreement had been returned to appellants.
It was admitted by appellant Andrew Green that appellee was threatening to cease publication of the newspaper after making a payment about December 15, 1966, and that he asked appellee to keep it going. Owens advised Andrew Green at the time by telephone that the newspaper was not profitable. Owens testified that he told Green in the spring of 1967 that he could not make a go of the newspaper and was trying to find someone to take over the purchase agreement. He said that Green told him to forget about the notes and continue publication until Green could get someone to take the newspaper off his hands and promised Ownes $2,500 if he would do so. Owens stated that Green remarked that it was necessary that the status of the paper as a 'legal publication' be maintained until a buyer was found. According to Owens, Green later stated that he had advertised the paper for sale and that he would pay Owens a commission to sell it. Green admitted that he advertised the paper for sale in the Trade Journal during 1967 and 1968, pricing it at $11,000 and that he would have paid Owens a commission for arranging a sale which avoided the necessity of Green's returning to Arkansas from Orange, Virginia, where he had resided since the sale to the Lindseys. He also admitted that continued operation of the newspaper was essential to its sale and that Owens kept it going.
At some time following his conversation with Green, Owens left Hampton, where the newspaper was published, and accepted employment in Tyler, Texas, leaving his brother Buddy Owens and the brother's wife Nell Owens in charge of the newspaper, the publication of which was continued until April 10, 1969. In September 1967, Owens had contracted for the purchase of 'offset' printing equipment. The reason for changing to this equipment, according to appellee, was his inability to employ persons experienced in the use of the original equipment. The equipment formerly used in the printing of the newspaper was called hot press or hot-type equipment, and the offset equipment was referred to as cold-type equipment. Ownens said he also moved the operation to another location because there was not sufficient room for the offset equipment, but took nothing from the old building except a typewriter and an enlarger.
Thereafter, Green entered into an agreement with one Haynie for the sale of the newspaper. Haynie sent $100 to Green at Orange, Virginia, as earnest money to evidence his interest, and an agreement for the sale was made after Green came to Hampton in August 1968. Haynie then paid Green an additional $500. Green could not recall the terms of the sale and referred questions about it to Haynie. He did ask Buddy and Nell Owens to stay and assist Haynie, and they agreed to continue as employees of Haynie. Green considered the transaction complete and unconditional, except for preparation of a written contract, and returned to his home in Virginia and did not return to Hampton until January 1971. He then found that appellee was working in Tyler, Texas. In the intervening period, Mack Owens had been advised of the sale by both Green and Haynie, but when Haynie did not take over the operation, Owens gave up his employment in Texas in October 1968 and returned to Hampton and took charge of the newspaper. Green refunded the money paid him by Haynie on December 5, 1969. He said that he did not make the refund earlier because Haynie had not requested it. The testimony as to the reason Haynie did not complete the transaction is in hopeless conflict and confusion. Green contends that Owens refused to turn the plant over to Haynie, and Owens denies this. Green relied upon letters from Haynie in arriving at his conclusion, but did not produce them. He said that he was not sure what was going on in Hampton and did not even receive copies of the newspaper. Owens claimed that when he tried to find out when Haynie was to take over, he was unable to communicate with...
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