Jones v. Lewis

• Decision Date: 22 February 1909
• Citation: 117 S.W. 561,89 Ark. 368
• Parties: JONES v. LEWIS
• Court: Arkansas Supreme Court

117 S.W. 561

89 Ark. 368

JONES v. LEWIS

Supreme Court of Arkansas

February 22, 1909

Appeal from Polk Circuit Court; James S. Steel, Judge; reversed.

Reversed and remanded.

Mark P Olney, for appellant.

1. An option to purchase is a continuing offer by the vendor to sell. Its acceptance by the vendee completes the contract. 146 F. 8; 8 Am. & Eng. Cases 660; 21 Am. & Eng. Enc. L., [2nd Ed.], 929 and cases cited, note I; Id. 926-929.

2. It was error for the court on its own motion to give a peremptory instruction in favor of the plaintiff, since there was evidence tending to support the defense set up by the defendant. Hughes, Instruction to Juries, § 140; Id. § 141; Id. § 124; 30 So. 108; 33 N.Y.S. 55; 35 Ark. 147; 36 Ark. 451; 39 Ark. 413; Id. 491; 62 Ark. 63; 84 Ark. 57; 82 Ark. 86; 81 Ark 337; 80 Ark. 190.

J. I Alley and Pole McPhetrige, for appellee.

1. Appellant, being the agent of appellee, was bound in good conscience to disclose to his principal all the facts, and give timely notice thereof. 9 Phila. 164. Harrington acted for appellant in the sale to Andrews. Appellant could not delegate his authority to another. 15 Ark. 52; 10 Ark. 18; 28 Ark. 95. All profits or advantages made by an agent in the discharge of his agency beyond his due compensation belongs to his principal. I Parsons on Contracts, 6th Ed., 87, § 89; Id. 84, § 84.

2. If appellant was in possession of all the facts in relation to the deal at the time he deeded the lands, and if, the consideration being more than $ 1000, he voluntarily paid to the defendant a sum greater than the amount agreed upon, then he would be estopped to recover it from defendant. 64 Ark. 217.

OPINION

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, and that in 1907 he employed the defendant to sell the land for him, and that it was agreed that if the land was sold for as much as $ 1000, 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 $ 1000, and that Harrington had resold the land to one Andrews for $ 2000, thereby leaving a profit to Harrington of $ 1000; that, relying on these representations, plaintiff executed a deed for the land to Andrews who paid to plaintiff $ 2000; and thereupon plaintiff paid over to defendant $ 1250 to pay over as follows: to Harrington $ 1000, 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, and that the sale was made by defendant for $ 2000; and that by the above false representations he induced plaintiffs to pay him the $ 1000; 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 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 $ 1000, 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 $ 1000. 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 one dollar and the undertaking by defendant to pay the sum of $ 1000 on or before January 1st, 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 to 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 County, 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, 1908, 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 that 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 $ 1250 to defendant.

The preponderance of the testimony indicates that of this sum defendant retained $ 1000 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, and that $ 50 was to be paid to Heath; that defendant made the sale for $ 2000, and that he had received from plaintiff $ 1250 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 $ 1000, and that, if defendant had actually sold to Harrington for $ 1000, and Harrington had resold to Andrews for the $ 2000, he would not have made any complaint.

It is contended by plaintiff 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; and that this written agreement provided for the entire remuneration which defendant was to receive; and that, being the agent of plaintiff, the defendant was liable for the additional $ 1000 which he had received; and that on this account plaintiff was entitled to a peremptory instruction.

In determining on appeal the correctness of the trial court's action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed. La Fayette v. Merchants Bank, 73 Ark. 561; Rodgers v. Choctaw, O. & G. R. Co., 76 Ark. 520, 89 S.W. 468. And where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. St. Louis. I. M. & S. Ry. Co. v. Petty, 63 Ark. 94, 37 S.W. 300; Wallis v. St. Louis, I. M. & S. Ry. Co., 77 Ark. 556, 95 S.W. 446; St. Louis, I. M. & S. Ry. Co. v. Vincent, 36 Ark. 451; Overton v. Matthews, 35 Ark. 146; Boyington v. Van Etten, 62 Ark. 63, 35 S.W. 622; Fidelity Mutual Life Ins. Co. v. Beck, 84 Ark. 57, 104 S.W. 533.

The defendant was a witness in the case, and he testified that when plaintiff spoke to him in April, 1907, about selling his land, the plaintiff was willing to sell the whole 165 acres for $ 1,000; that in July when Heath agreed to purchase forty acres thereof the...