Minich v. Bass, 4-3419.

• Decision Date: 09 April 1934
• Docket Number: No. 4-3419.,4-3419.
• Parties: MINICH v. BASS.
• Court: Arkansas Supreme Court

70 S.W.2d 1039

MINICH v. BASS.

No. 4-3419.

Supreme Court of Arkansas.

April 9, 1934.

Rehearing Denied May 21, 1934.

Appeal from Circuit Court, Arkansas County, Southern District; W. J. Waggoner, Judge.

Suit in ejectment by E. B. Minich against T. P. Bass. From a judgment for defendant, plaintiff appeals.

Affirmed.

Rowell & Rowell and W. B. Alexander, all of Pine Bluff, and W. A. Leach, of Stuttgart, for appellant.

G. W. Botts, of De Witt, for appellee.

MEHAFFY, Justice.

This is a suit in ejectment, and involves the right to the possession of lots 13 and 14, block 14, in the town of Gillett, Arkansas county, Ark.

The appellee, T. P. Bass, was adjudged a bankrupt on December 6, 1922, and the other members of the firm of J. N. Bass & Sons were also adjudged bankrupts at the same time. At the time and prior to the bankruptcy proceedings, J. N. Bass & Sons were indebted to the Hammett Grocery Company, C. M. Ferguson & Son, and W. E. Collier, in the sum of $7,508.83. The real property of the bankrupts was purchased at the sale by the trustee for $3,600, including the property involved in this suit.

All of the property was conveyed to W. E. Collier, who afterwards conveyed the same to W. B. Sanders, trustee. Sanders executed a declaration of trust to the effect that he was holding all of the said real estate as trustee for A. W. Nunn, W. E. Collier, and H. H. Ferguson. The lots involved were subject to a mortgage of $6,000 with past-due interest, and the other real estate was subject to an indebtedness of $8,298.28 in favor of the Home Bank of De Witt.

On March 23, 1923, a corporation was formed under the name of J. N. Bass & Sons for the purpose of operating a mercantile business in the town of Gillett. Its authorized capital was $10,000, of which $8,375 was paid in cash. Appellee, T. P. Bass, was not a stockholder in this corporation, and had no financial interest in the corporation or in the business operated by it. T. P. Bass was put in charge of the business as manager for the owners, A. W. Nunn, W. E. Collier, and H. H. Ferguson, and was paid for his services as such manager. The business was carried on in the brick store building situated on the lots here in controversy.

On March 23, 1923, A. W. Nunn, W. E. Collier, and H. H. Ferguson gave the appellee, T. P. Bass, a written agreement to the effect that at any time within three years, upon the payment to them of the sum of $17,000 with interest at the rate of 8 per cent. per annum, they would transfer to appellee the capital stock of J. N. Bass & Sons, and all the real estate held by W. B. Sanders, trustee.

There were several other agreements made which we do not think it necessary to set out.

The appellant states that the questions for consideration are: First, the issues raised by the pleadings; second, the alleged verbal contract of purchase; third, the plea of res judicata; fourth, the admission of testimony; and, fifth, the instructions.

There were numerous pleadings filed, but finally the pleadings were narrowed down to the issues stated by appellant as follows:

"1. Was there such an executory contract of purchase as could be made the basis of a defense to the appellant's action.

"2. Is the appellee's election of remedies and the order of dismissal a bar to any further action on behalf of the appellee based on said alleged contract."

The contention of appellant is that there was no contract of purchase, but that the appellee had an option to purchase. We do not deem it necessary to set out the evidence in this case, because the evidence is substantially the same as the evidence in the case of Minich v. Bass, 183 Ark. 350, 36 S.W.(2d) 66, 67. That suit was between the same parties, and involved the right of possession to the same property. The only difference in the two suits is that the first suit, that named above, was an action of unlawful detainer, and this suit is an action in ejectment. In both suits it was claimed by the appellant that he was the legal owner of the property, having received a deed from W. B. Sanders, trustee, conveying him the property, and in both suits the contention of the appellee was that he was in possession of the property, occupying it under an agreement to purchase.

In the case now before the court, the court instructed the jury at the request of the appellant as follows:

"No. 2. The plaintiff brings this action to recover the possession of lots 13 and 14 in Block 14 in the Town of Gillett. Both parties claim under W. B. Sanders, trustee, W. E. Collier, H. H. Ferguson and A. W. Nunn. The plaintiff claims under and by virtue of a deed executed by W. B. Sanders as trustee for himself, W. E. Collier, H. H. Ferguson and A. W. Nunn executed and delivered on December 23, 1929. Your verdict will be for the plaintiff unless you find from the evidence that prior to the 23rd day of December 1929 the defendant acquired from W. B. Sanders, W. E. Collier, H. H. Ferguson and A. W. Nunn such right, title or interest in said property as would entitle him to the possession thereof."

"No. 3. The defendant claims the right to the possession of the property in controversy under and by virtue of a verbal contract with W. E. Collier, acting for himself and the other interested parties made in July 1929. You are instructed that the burden is upon the defendant to establish this verbal contract and all the terms thereof by evidence that is clear, unequivocal and convincing and that he has complied with or offered to comply with all the terms and conditions of said contract on his part to be complied with."

The jury returned a verdict for the appellee, and the case is here on appeal.

This court said in the former case: "The only question at issue in the trial court under the pleadings and testimony was whether or not the relationship of landlord and tenant or that of vendor and...