Jones v. Lewis

• Decision Date: 22 February 1909
• Citation: 117 S.W. 561
• Parties: JONES et al. v. LEWIS.
• Court: Arkansas Supreme Court

117 S.W. 561

JONES et al. v. LEWIS.

Supreme Court of Arkansas.

February 22, 1909.

Appeal from Circuit Court, Polk County; Jas. S. Steel, Judge.

Action by M. J. A. Lewis against M. W. Jones and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Olney & Lundy, for appellants. J. I. Alley and Pole McPhetrige, for appellee.

FRAUENTHAL, J.

The appellee, who was the plaintiff below, instituted this suit against the defendant, and, in substance, alleged: That he was the owner of 125 acres of land. That in 1907 he employed the defendant to sell the land for him. That it was agreed that, if the land was sold for as much as $1,000, the defendant was to have $200, and one Heath $50, leaving the net sum of $750 for plaintiff. That afterwards the defendant represented that he had sold the land to one Harrington, a resident of Kansas City, Mo., for $1,000, and that Harrington had resold the land to one Andrews for $2,000, thereby leaving a profit to Harrington of $1,000. That relying on these representations, plaintiff executed a deed for the land to Andrews, who paid to plaintiff $2,000, and thereupon plaintiff paid over to defendant $1,250 to pay over as follows: To Harrington $1,000, to defendant $200, and to Heath $50. That later he found that the representations made by defendant as to said sale to Harrington and resale by Harrington to Andrews were false and made for the purpose of defrauding him. That as a matter of fact Harrington had no interest in the sale. That the sale was made by defendant for $2,000. And that by the above false representations he induced plaintiffs to pay him the $1,000, for which sum he asks for judgment against defendant. The defendant filed an answer denying the material allegations of the complaint, and also filed a cross-complaint, in which he alleged that plaintiff had wrongfully secured the arrest of defendant on the false charges of obtaining money under false pretenses and of embezzlement, and prayed for judgment for damages against plaintiff. The defendant also filed a motion to transfer the cause to the chancery court, which motion was overruled, and to said ruling defendant excepted. The plaintiff filed a demurrer to the cross-complaint, which was sustained, to which ruling defendant duly excepted. The cause proceeded to trial with a jury, and also a number of witnesses testified on both sides. After the jury had deliberated for a considerable time in endeavoring to arrive at a verdict, they reported that they could not agree upon a verdict. The court thereupon peremptorily directed the jury to return a verdict in favor of the plaintiff for $1,000, which was done, and judgment was entered up accordingly, from which this appeal is prosecuted.

It appears from the testimony that the plaintiff owned 165 acres of land, and that in April, 1907, he was contemplating selling same, and defendant, learning of this, spoke to plaintiff about it and agreed to endeavor to sell the land for him. The plaintiff after some discussion agreed to sell the 165 acres for $1,000. Later the defendant claims that he secured one Heath to agree to purchase 40 acres of the land, and in July, 1907, reported this to plaintiff, who declined to sell the 40 acres. Thereupon on July 28, 1907, the plaintiff executed to defendant an instrument, styled an "option deed," by which it is provided that in consideration of $1 and the undertaking by defendant to pay the sum of $1,000 on or before January 1, 1908, the plaintiff granted and sold the remaining 125 acres of land to defendant, with the further provision that, if defendant failed to pay the said sum within said time, the conveyance should be void, and all rights and liabilities thereunder should cease. This instrument was signed also by plaintiff's wife, who therein relinquished dower. On the following day, as the instrument is dated, or on the same day, as would appear from its context, the plaintiff and his wife executed the following: "Board Camp, Polk Co., Ark., July 29, 1907. Be it known that we, the undersigned below, promise to pay Morris W. Jones the sum of two hundred and fifty dollars, if he or we sell our land situated in Polk Co., Ark., as mentioned in the deed this day between the said M. W. Jones and M. J. Lewis and Maud Lewis, his wife. Witness our hands this 29th of July in the year 1907. M. J. Lewis. Maude Lewis." On December 28, 1907, by written indorsement thereon signed by plaintiff and his wife, the terms of agreement of the above instrument were extended from January 1, 1907, to March 1, 1908, and on the same day, by indorsement made in said "option deed" signed by plaintiff and his wife, the time of the "option" was extended to March 1, 1908. On January 31, 1908, the plaintiff testified the defendant reported the sale to Harrington and the resale by him to Andrews, as set out above in the complaint, and on that day plaintiff executed the deed to Andrews and paid the $1,250 to defendant. The preponderance of the testimony indicates that of this sum defendant retained $1,000 in addition to the $200 and paid $50 to Heath, although it is admitted that he sent a draft for $500 to Harrington. The evidence also tends to prove that plaintiff had employed defendant to sell the land, and for his services defendant was to receive $200, that $50 was to be paid to Heath, that defendant made the sale for $2,000, and that he had received from plaintiff $1,250 under the belief by plaintiff that defendant had actually sold to Harrington and that Harrington had resold to Andrews. The plaintiff also testified that he had agreed to take $750 net in event defendant had sold the land for $1,000, and that if defendant had actually sold to Harrington for $1,000, and Harrington had resold to Andrews for the $2,000, he would not have made any complaint. It is contended by appellee: That the undisputed evidence is that there was no consideration paid for the "option deed," and therefore it was not effective and binding; that the above-written agreement to pay defendant $250 was executed after the "option deed," which, if effective, was merged in the said last agreement; that this written agreement provided for the entire remuneration which defendant was to receive; that, being the agent of plaintiff, the defendant was liable for the additional $1,000 which he had...