Parker v. Carter

• Decision Date: 17 May 1909
• Citation: 120 S.W. 836,91 Ark. 162
• Parties: PARKER v. CARTER
• Court: Arkansas Supreme Court

120 S.W. 836

91 Ark. 162

PARKER v. CARTER

Supreme Court of Arkansas

May 17, 1909

Appeal from Monroe Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

C. E Pettit and Ratcliffe, Fletcher & Ratcliffe, for appellant.

Where two written instruments, constituting one transaction, are executed and delivered at the same time, they will be construed as one instrument. 34 Am. Dec. 684; 47 Id 335. Where a contract is prepared in writing, assented to and acted upon by both parties, though signed by only one of them, the other will not afterwards be permitted to deny the binding force of the contract. 104 Cal. 310; 42 Cal. 245; 30 F. 225; 77 Wis. 33; 125 Ind. 19; 24 N.E. 756; 130 Ill.App 131; 129 Ill. 101. A suit could have been based on the deed alone, and the five-year statute of limitations would apply. 84 Miss. 509; 101 Mich. 409; 30 Ark. 872; 78 Ky. 475. When one has five years in which to bring a suit, four years' delay is not laches. 75 Ark. 382. An acknowledgment of the payment of the purchase money in a deed may be contradicted by parol; and if proved not to have been paid it is a promise in writing to pay it, and the statute of limitations applicable to written instruments applies. 84 Miss. 509; 77 Miss. 872; 73 Miss. 665. The writing does not have to be signed, if it shows the debtor agreed to settle. 74 Cal. 60; 4 Houst. 14. A promise to settle at a future day will remove the statute bar. 30 Miss. 40. "I will settle in a few days" removes the bar. 18 N.C. 18; 32 N.C. 86. That he would settle and make all right removes the bar. 49 N.C. 510. Promise to settle a note is equivalent to a promise to pay it. 8 Wend. 600. A simple promise to settle is sufficient. 38 Vt. 159; 16 Vt. 297; 15 Vt. 560; 13 Vt. 574. Although a debtor denies the indebtedness, yet if he agrees to settle it if established, and the indebtedness is proved, the bar is removed. 18 Vt. 485.

C. F. Greenlee, for appellee.

To take a case out of the operation of the statute, there must be an acknowledgment of the debt as due at the time, and a promise to pay it. Such acknowledgment and promise must be unqualified and unconditional. 10 Ark. 134; 12 Ark. 595; 11 Ark. 666. If there be any condition attached to the promise, it will not remove the bar. 52 Ark. 456; 12 Ark. 762; 26 Ark. 540; 20 Ark. 293.

OPINION

FRAUENTHAL, J.

The plaintiff, H. A. Parker, instituted this suit against the defendant, H. A. Carter, on October 28, 1903, in the Monroe Circuit Court, alleging that the defendant was indebted to him in the sum of $ 887.87 upon a promissory note, and also alleging that there was a long account existing between the parties, but giving no items and filing no statement of any account. He asked for judgment for $ 887.87.

The defendant filed an answer, in which he denied the execution of any note, and denied that he was indebted to plaintiff on any note or on any account, and pleaded the statute of limitations against any such alleged indebtedness. He also alleged that plaintiff had on February 21, 1889, executed to him a note for $ 400, upon which there was a balance unpaid of $ 44.21.

Thereafter the plaintiff filed an amended complaint, in which he alleged that defendant was indebted to him for various items of attorney's fees, beginning in 1882 and extending to 1894 and also alleged that on February 14, 1898, he sold to defendant certain real estate in Brinkley, Arkansas, for the sum of $ 2,000, which was paid in the following manner; defendant conveyed to certain parties for plaintiff's benefit some lots in Brinkley, and of the balance he paid $ 550 by check, and the remainder of $ 565.00 was to be paid in the manner set out in a writing which was signed by plaintiff at the time of the execution of the deed by him and is as follows:

"This memoranda made and entered into this the 14th day of February, 1898, by and between H. A. Carter on one part and H. A. Parker of the other, as follows: Said Parker has this day sold the J. M. Folkes property to H. A. Carter for a certain sum in money and property. Now, H. A. Carter this day pays H. A. Parker $ 550.00 in cash, and owes said Parker a balance of $ 565.00, which is to be paid at the end of the year; and note is to be given when Parker and Carter settle up their other matters. H. A. Parker is to execute deed to Carter. This agreement is signed in duplicate.

"H. A. Parker."

This instrument is the writing upon which plaintiff instituted this suit. He alleged that this instrument was executed in duplicate, one being retained by him and the other by defendant. Plaintiff in the amended complaint also asked for an accounting between the parties. Upon the motion of the plaintiff the cause was transferred to the chancery court. The defendant denied every material allegation of the amended complaint, and pleaded the statute of limitations against each item of said alleged indebtedness.

The cause was tried by the chancery court upon the pleadings and depositions filed in the case; and that court found that, if plaintiff, who is an attorney at law, ever had a cause of action for the matters set out in the complaint and amended complaint, it was barred by limitation, and thereupon dismissed the same. And from that decree the plaintiff prosecutes this appeal.

It appears from the testimony that the defendant employed the plaintiff to attend to a number of suits and matters involved in litigation from time to time extending from 1882 or 1883 to 1893 or 1894. The plaintiff claims that for his services in attending to a great number of these suits the defendant had not paid him. The defendant testified that he had paid plaintiff for all his services as such attorney in all these matters. A great deal of testimony was taken relative to these items; but, however the preponderance of the testimony may be as to the respective contentions of the parties, it appears that the claims of plaintiff were separate and independent items of charges for these different services, and that there was no running mutual account between the parties; and the last item of charge for said service was in 1894. On February 21, 1889, plaintiff borrowed from defendant $ 400, and on that day executed his note to defendant for that sum due December 1, 1889, with ten per cent. interest per annum from date till paid. On July 13, 1893, by agreement of both parties and at the direction of plaintiff, a credit of $ 150 was indorsed upon the note in payment of attorney fees of the plaintiff.

Upon February 14, 1898, the plaintiff sold to defendant certain real estate in Brinkley, Arkansas, and on that day executed to him a deed, the descriptive part of which is as follows:

"Know all men by these presents: That we, H. A Parker and May B. Parker, his wife, for and in consideration of the sum of two thousand dollars ($ 2,000) to us in hand paid by H. A. Carter, Sr., of which amount the sum of $ 1,295 is paid in hand, and the residue is paid in property, to-wit: Two houses and one lot in the town of Brinkley, which houses and lot are deeded to one L. J. Folkes on this date." And at the same time the plaintiff drafted the writing set out above in said amended complaint in duplicate and signed the same. He testified that it was understood that defendant should also sign the said writing in duplicate, but by oversight he did not do so. The defendant denies that it was agreed or understood that he was to sign the writing. But it is undisputed that plaintiff delivered to defendant one of these written instruments duly signed by plaintiff, and that defendant accepted and took same and retained it from that day to the trial.

The plaintiff contends that this was the written evidence of the agreement between the parties, and, being accepted and acted on by the defendant, was a written contract binding upon him, although it was not actually signed by him; that his account for fees was sufficient to pay off the note executed by him to defendant, and that the defendant owes the amount represented by this writing. And it is upon this written instrument that the cause of action of the plaintiff is founded.

The defendant testified that he purchased the real estate from the plaintiff for which he gave him the check for $ 550, and conveyed certain property for his benefit, and that the balance of $ 565 was to go in payment of the note which he held against plaintiff.

The preponderance of the testimony establishes that the above writing, signed by plaintiff in duplicate, was executed at the time of the execution of the deed, and that one of these written instruments was accepted by the defendant and retained by him, and that it was understood at the time by the parties that it was the written evidence of their agreement. The contract of the sale of the land was executed, and not executory, and was thus performed by the defendant taking possession of the land under the deed; and this writing was but the evidence of the manner of the payment of the consideration. It thereby became a contract between the parties founded upon a writing, though signed by only one of the parties. As is said in 1 Page on Contract, § 50: "A written contract by one party may be accepted by the other party assenting to it and acting upon it, even if he does not sign it."

A written contract, not required to be in writing, is valid if one of the parties signs it and the other acquiesces therein. The contract or agreement is thus evidenced by the writing and where the party accepts and adopts the writing as the evidence of the contract he becomes bound by its terms. And in a great many jurisdictions it is held that a deed poll, when accepted by the grantee, becomes the mutual contract of the parties, and the promise of the grantee, therein provided for, is not...