Miles v. Scales

• Decision Date: 13 June 1927
• Docket Number: 71
• Citation: 295 S.W. 375,174 Ark. 412
• Parties: MILES v. SCALES
• Court: Arkansas Supreme Court

295 S.W. 375

174 Ark. 412

MILES v. SCALES

No. 71

Supreme Court of Arkansas

June 13, 1927

Appeal from Union Circuit Court, Second Division; W. A. Speer Judge; reversed.

Case reversed, and remanded.

Kitchens & Harris, for appellant.

Mahony Yocum & Saye and Patterson & Rector, for appellee.

OPINION

MEHAFFY, J.

On November 24, 1925, the appellant, plaintiff below, filed in the circuit court his complaint, alleging that, on the 6th day of November, 1922, plaintiff, together with E. L. Pye, H M. Johnson and the defendant, J. L. Scales, purchased an undivided one-sixteenth interest in and to all of the oil gas and other minerals, covering 160 acres of land located in section 3, township 16 south, range 16 west, Union County, Arkansas, the title to said interest so acquired being taken in the name of H. M. Johnson as trustee; that the purchase price paid for said property was $ 11,160, same being pro-rated equally between said H. M. Johnson, E. L. Pye and this plaintiff and defendant; that on the 6th day of November, 1922, the day upon which said purchase money was paid, it was understood and agreed between this plaintiff and defendant that the amount owing by defendant as his part of the purchase price, to-wit, the sum of $ 4,790, would be advanced for him as a loan by plaintiff in payment of his interest in said property; that, pursuant to said understanding and agreement, plaintiff then and there paid said sum of money for and on behalf of defendant; that thereafter, on the 28th day of November, 1922, an undivided one-fourth interest of the aforesaid one-sixteenth interest in said property so acquired by this plaintiff and defendant together with the said E. L. Pye and H. M. Johnson, was sold for the sum of $ 5,000, and the part due the defendant therefor, to-wit, $ 1,250, was, by agreement between defendant and plaintiff, duly credited on the sum of $ 2,790 loaned by plaintiff to defendant in the manner hereinabove alleged; that there now remains due this plaintiff the sum of $ 1,540, and no part thereof has been paid. Plaintiff states that on the 20th day of October, 1925, and at numerous times subsequent thereto, he has demanded said sum of $ 1,540 from this defendant, but he has not repaid the same. Wherefore, premises considered, plaintiff prays judgment against defendant in the sum of $ 1,540, and for all proper relief."

The appellee, who was defendant below, filed a motion to require plaintiff to make his complaint more specific and certain, which is as follows:

"Comes the defendant, J. L. Scales, and moves the court to require plaintiff to make his complaint more specific and certain in this:

"First. Whether the contract of November 6, 1922, alleged as between plaintiff and defendant for the sale and purchase of an interest in land, was in writing; and, if said alleged contract be in writing, that plaintiff be required to amend his complaint so to state, and also to attach to the complaint the original or a copy of said contract as exhibit thereto.

"Second. Whether the alleged agreement of November 28, 1922, as between plaintiff and defendant, under which it is alleged that defendant agreed with plaintiff that a payment of $ 1,250 be credited on the sum of $ 2,790 alleged to have been loaned by plaintiff to defendant was in writing; and, if in writing, that plaintiff be required to so allege and attach a copy of said written contract or agreement to his complaint and make same part thereof. And that the defendant have his costs herein."

The plaintiff thereafter, in response to said motion, filed the following:

"That there was no contract of sale and purchase between this plaintiff and defendant of an interest in the land described in plaintiff's complaint, as stated in defendant's motion. That the only contract or agreement between plaintiff and defendant related to defendant's part of the consideration paid for his interest in said land, which, as stated in the complaint, was loaned to defendant by plaintiff at the time said interest was purchased, and said agreement as to said...