Kelly v. Carter

• Decision Date: 14 November 1891
• Citation: 17 S.W. 706,55 Ark. 112
• Parties: KELLY v. CARTER
• Court: Arkansas Supreme Court

17 S.W. 706

55 Ark. 112

KELLY v. CARTER

Supreme Court of Arkansas

November 14, 1891

APPEAL from Sebastian Circuit Court in chancery, Fort Smith district, JOHN S. LITTLE, Judge.

Decree reversed and cause remanded.

Sandels & Hill for appellant.

1. The removal of the place of public worship was part of the consideration entering into the contract.

2. And this contract was binding on the defendants. The facts constituted Carter the agent of the trustees and congregation. Two of the trustees had knowledge of the trade and their knowledge was knowledge to all. Wade on Notice secs. 682, 676. Notice to Carter, the agent, was also notice to all. Ib., 672.

3. Plaintiffs' remedy was by injunction. 2 High. on Inj. (2d ed.), secs. 1153, 1108, 1106, 1134-5, 1142; 4 Sand. Ch 587,; 27 Md. 42; 7 Id., 408; 1 DeG. F. & J., 33; 3 Kerr on Inj. *pp. 396, 399; 1 Ves. & B., 188.

B. H Tabor for appellees.

1. The contract had been reduced to writing, and parol proof was not competent to contradict the consideration clause, or add a new covenant to it. 8 S.W. 143; 5 id., 341; 29 Ark. 544; 30 id., 180; 16 Gray, 155; 51 How. Pr., 497; 46 Ill. 299; 34 Ind. 319; 17 Ind. 284; 65 id., 94; 1 E. D. Smith, 253; 15 Vroom (N. J.), 331; 5 Dutcher (N. J.), 305; 53 Wis. 415; Benjamin on Sales, 452; 2 S.W. 400; 96 U.S. 548.

2. Carter had no power to bind the trustees or church. The knowledge of two of the trustees did not bind the others of the congregation. 2 Wait's Ac. & Def., p. 265.

3. A verbal agreement by the church and trustees, if made, would be void as against public policy. Greenhood, Pub. Pol., p. 207 and note 3; 11 A. p. 264.

OPINION

HUGHES, J.

The appellees, the pastor and trustees of the local congregation of the Colored Methodist Episcopal Church of America, at Fort Smith, were proceeding to have a church house erected on lot 10, block 59, in said city, owned by the church, for public religious worship by said congregation.

The appellant Kelly owned lots 1, 2, 3, 4, 5 and 6, in block 65, and the appellant Luce owned lots 2, 3, 4 and 5 in block 64, in said city. Fearing, what the evidence in the case shows was a fact, that the erection and maintenance of a church for public worship by negroes would greatly damage the renting and sale of real estate in that vicinity, and both of the appellants having recently built houses upon their lots for rent and for sale, they concluded to try to purchase the lot of the appellees and prevent the erection of their church in that vicinity. They accordingly sent a colored man to ascertain from the pastor Carter if they could purchase the lot. Soon afterwards Carter, the pastor, and Taylor, the elder, of the church, called on appellant Luce and proposed to sell the lot for $ 500. The appellants, believing they represented the church, entered into negotiations with them for the purchase of the lot at the price of $ 500, and, upon the understanding and agreement with them that the sole consideration which moved the appellants to purchase the lot at the price was that the defendants would not erect their church in that vicinity and would remove their place of worship to another neighborhood, a conveyance of the lot to the appellants was made by the trustees, reciting the payment of $ 500 as the consideration therefor, but the agreement about the removal of the church was not mentioned in it. The church owned lot 12 in block 60, in the immediate vicinity of lot 10, in block 59, conveyed to appellants. They were about to build a church on this lot, having laid the foundation thereof, when the appellants applied to the court for an injunction to restrain them from the erection of their church house on lot 12, block 60. They set up substantially the facts above detailed in their complaint. After answer denying the facts relied upon in the complaint, and denying the power of the pastor to bind the congregation by a contract for the removal of the church, the cause was heard upon the complaint, answer, exhibits and depositions. The injunction was refused, the complaint dismissed, and plaintiffs appealed to this court.

Whether Carter, the pastor, was authorized to represent the congregation or the trustees and make the agreement relied on by the complaint or not, we need not determine, for the evidence in the case shows that he made this contract and agreement by representations, promises and assurances given the appellants that if they would buy the lot of the church at $ 500, the place of worship of the congregation would be removed to a point about a mile distant from said lot; and that the appellants, in good faith believing that he represented the...