Indiana & Arkansas Lumber & Mfg. Co. v. Pharr

• Decision Date: 06 May 1907
• Citation: 102 S.W. 686
• Parties: INDIANA & ARKANSAS LUMBER & MFG. CO. v. PHARR et al.
• Court: Arkansas Supreme Court

102 S.W. 686

INDIANA & ARKANSAS LUMBER & MFG. CO. v. PHARR et al.

Supreme Court of Arkansas.

May 6, 1907.

Appeal from Lee Chancery Court; Edward D. Robertson, Chancellor.

Action by the Indiana & Arkansas Lumber & Manufacturing Company against Harry N. Pharr and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This suit is by appellant against appellees to have the title to certain lands in Lee county vested in appellant under the following contract:

                           "Memphis, Tenn., May 29, 1905
                

"Received of Indiana & Arkansas Lumber & Manufacturing Company the sum of one hundred dollars as earnest money and part payment for the following described property, a warranty deed to be furnished as soon as title is examined, which is guaranteed perfect:

"All section 31, T. 3 N., R. 4 E.

"South ½ 30, T. 3 N., R. 4 E.

"East ½ 26, T. 3 N., R. 3 E.

"West ½ and southeast ¼ section 25, T. 3 N., R. 3 E.

"North half section 36.

"East of bayou all of section 32.

"Price on above is $7.00 per acre, on which there is a credit of $500.00 per agreement with S. G. Helm.

"The entire deal is to be closed within 60 days. Terms one-third cash, one-third six months, one-third twelve months, bearing 6 per cent. interest satisfactorily secured.

                   "[Signed]             H. N. Pharr."
                

The complaint alleged that under this contract appellees agreed to sell the appellant the lands described therein. That appellant had the lands surveyed, as was understood between the parties, and had offered to perform, its part of the contract, and had demanded a deed in accordance with the same. That appellant was ready, and had been at all times, to carry out the contract on its part, and tendered with its complaint the purchase money, as provided by the terms of the contract. That appellee Harry N. Pharr is the owner in fee of the lands, and appellee Stella Pharr has dower. That while appellee Harry N. Pharr alone signed the contract, yet he was authorized by appellee Stella Pharr to dispose of the lands absolutely.

Appellee Mrs. Stella Pharr answered, separately, that she is the owner of the dower interest, but denies that she had authorized or empowered Harry Pharr to dispose of the lands, and claims that she knew nothing of the execution of the contract.

Harry N. Pharr answered that he had executed the contract, but denied that he agreed to sell the lands described, except in the limited and conditional way described in the contract; that by said contract for the consideration of $100 he gave the plaintiff the right to buy said lands within 60 days, with the express understanding that the entire transaction should be closed up within 60 days; that at no time within 60 days did the plaintiff tender to the defendant one-third of the purchase money in cash and satisfactory security for the two deferred payments; that under the contract the plaintiff's right to purchase expired on the 28th of July, 1905; that the plaintiff addressed a letter to the defendant, written on the 26th of July, but which was first mailed by the plaintiff to its head office at St. Louis, and from there it was mailed to this defendant on the night of July 27th; the defendant was out of his office during the 29th of July, and consequently did not see the letter until the 30th; that in said letter the plaintiff stated it would be ready to close the option on July 29th, a day subsequent to the expiration of the option.

Appellant introduced the following letters: "Marianna, Ark., July 26, 1905. Mr. H. N. Pharr, Memphis, Tenn. — Dear Sir: We will be ready on Saturday, July 29, '05, to close the option on your lands in Lee county, Arkansas. The deeds to the lands to be approved by our attorney, H. F. Roleson. Mr. Roleson has had some correspondence with you regarding the Schwartz matter as well as a minor child living in Washington who has some small interest. These we presume you will have in proper shape and send to Mr. Roleson for his approval. Yours truly, Ind. & Ark. Lmbr. & Mfg. Co., per M. P. Fulton, Treasurer." This letter, as shown by registry receipt, was received at St. Louis July 27, 1905, for registration, to H. N. Pharr, Memphis, Tenn. This letter was forwarded to Memphis, and was received there as shown by receipt signed "H. N. Pharr, by R. B. Barton, July 29, 1905."

Another letter, as follows: "Marianna, Ark., July 28, 1905. H. N. Pharr, Memphis, Tenn. — Dear Harry: I am in receipt of the instrument executed by Wm. Schwartz. It is all right. Mr. Fulton advised me over the phone that the certificate is now in, together with their plat of the land, and they are ready to close the deal whenever you are. The only thing to be reserved now is the small amount necessary to protect them against any possible claim of Miss Foreman. They may not care anything about that, but consider it protected by your warranty. Advise me or Mr. Fulton a couple of days in advance when you are coming over. Yours truly, H. F. Roleson." Appellant shows that the letter signed by H. F. Roleson, was written for it.

Appellant's witness, M. P. Fulton, who was its manager and treasurer, among other things testified: "I wrote a letter on July 26th put in evidence in Mr. Luehrmann's deposition, and sent it to Mr. Luehrmann at St. Louis for his inspection, and to be forwarded to Mr. Pharr. In a letter dated the 11th of July, I wrote Mr. Pharr as follows: `We now expect to be through with our survey on Friday of this week. We would like to have the other matters which Mr. Roleson wrote you about fixed up so we can close the deal with you in the next ten or fifteen days. Kindly let us hear from you.' After writing the letter dated July 26th, I had a conversation with Mr. Pharr on the 29th, at Marianna. About 3 or 4 o'clock, he came to the phone, and I told him we were ready to take those lands. He asked me how I was going to pay for them, and I said we would pay cash. He said it would have to rest for a few days. I told him we were ready to pay whenever he was ready. That evening, about 6 o'clock, I came up town and drove around and got Mr. Pharr and took him down to our office and got out the blue prints of the survey that had been made. We got in the buggy, and in coming on back I said: `As we are giving you all cash, you should give us 2 per cent. discount.' I said it was customary in business matters. He asked how I expected to pay for this land, and I said by check or draft on St. Louis. He then remarked that his mother was down in Texas; that she had a certain interest. That was the first I knew of his mother having any interest. He said he was going to Memphis and make out the deed and send it to her and have it back to me by the 7th or 8th of August. After supper I walked a portion of the way to the depot with him, and told him to get the deed ready, and mail it here to the Lee County Bank, give us a short time for our attorney to examine it, and we were ready to pay the money for the property. He made no objections in the world to that arrangement at the time. He claimed no violation of the contract, but merely said he would send the deed to Texas and get his mother to sign it. On the 29th of July I said to him that we were ready to pay the money, and to comply with our contract. He said it could be fixed up as soon as the deed could go to Texas. He never said anything about expecting or requiring us to make a tender of actual money. The deed from Wm. Schwartz and Son was received by Mr. Roleson on the 28th of July. It would have been impossible for us to go to Memphis and make a tender of performance of an actual tender on that date, as the train going to Memphis does not leave Marianna until 7:30 o'clock in the evening, and there was no way to get to Memphis until the morning of the 29th."

Mr. Luehrmann, the president of the company, testified to the contract, and exhibited the letters above, and identified same, and also produced various letters received from appellee H. N. Pharr after the 29th of July, which it is unnecessary to set out. Reference will be made to these in the opinion. He testified to the payment of the $100 mentioned in the contract, and further testified as follows: "Our company was ready on the 26th of July to close this deal. We were absolutely able, financially, to do so, and were prepared to pay the money. We asked Mr. Pharr to make the deed. He made no objection on account of the fact that we did not tender him the cash. He never made any such suggestion prior to the 28th of July. We never tendered Mr. Pharr during the life of the option any actual cash, nor any notes that were secured. I told him to make his deed, and we would pay him the cash. I told him that in the letter of July 26th. That is the only time I told him that, prior to the expiration of the contract time. At the time Mr. Pharr signed the contract, I asked him if it was necessary to get his mother's signature. He informed me that it was not; that he was the sole owner of the property. I am offering now to pay in court the full amount of purchase price, regardless of her dower. Mr. Helm, who is mentioned in connection with title, is in our employ, and we agreed to account to him for $500 which he was to have."

One of the letters of Pharr adduced by ap...