Skinner v. Fisher
| Decision Date | 12 July 1915 |
| Docket Number | 113 |
| Citation | 178 S.W. 922,120 Ark. 91 |
| Parties | SKINNER v. FISHER |
| Court | Arkansas Supreme Court |
Appeal from Randolph Circuit Court; J. B. Baker, Judge; affirmed.
STATEMENT BY THE COURT.
The appellee sued appellant, alleging, in substance, that appellant owned a certain electric light and ice plant in Pocahontas; that on the 8th day of November, 1912, appellant and appellee entered into a verbal executory agreement whereby appellant was to sell, and appellee to buy, the plant for the sum of $ 10,500, it being understood that appellant would do certain things, towit, furnish a certified copy of the ordinance allowing the maintenance and operation of the system and recording a trustee's deed and other things in regard to making the abstract of title and the execution of a warranty deed to the appellee by the appellant, together with an indemnity bond, conditioned to hold appellee harmless in the possession of the property; that on the 20th day of November, 1912, appellant made to appellee the following proposition: This proposition was in writing and signed by appellant. That at the time the proposition was made, the verbal agreement between them for the sale and purchase of the property was in full force and effect; that appellee immediately accepted the written proposal of appellant, but with the distinct understanding and agreement that if appellant did not sell the property to the other parties with whom he was then negotiating that appellee should retain his rights under the contract of sale above mentioned; that the appellant sold the plant to the other parties on the 10th of January, 1914, for a sum in excess of the amount he had agreed to accept from the appellee; that appellant refused to pay appellee the $ 500 or any part thereof, for which appellee prayed judgment.
Appellant answered, admitting that he executed the writing sued on, but alleged that same was without consideration. He further set up that on the day the written proposal sued on was executed appellant called upon the other parties with whom he had been negotiating for the purpose of selling them the plant, but failed to effect a sale of same and immediately thereafter so informed the appellee, and again offered to sell the appellee the plant upon the terms above agreed upon; that appellant and appellee then resumed negotiations for the sale of the plant, but that the sale was not concluded on that day; that about the 3d of January, 1913, appellant called upon appellee and insisted that the deal be closed, whereupon the appellee raised other objections, and was then told by appellant that the deal was off. After that, about the 15th of January 1913, appellee sold the plant to other parties.
By agreement, the cause was tried by the court sitting as a jury.
It could serve no useful purpose to set out the testimony in detail. There was testimony on the part of the appellee and the appellant tending to support the allegations of their respective pleadings. Such facts as may be necessary will be stated in the opinion.
The court made a general finding of facts and declared the law in favor of the appellee and rendered judgment in his favor in the sum of $ 500 with interest at 6 per cent. from November 23, 1914, from which this appeal has been duly prosecuted.
Judgment affirmed.
S. A. D. Eaton, for appellant.
1. There was no consideration for the contract sued upon, and there was no mutuality between appellant and appellee concerning the sale of the plant by the former to the latter prior to the execution of the agreement sued upon. Without such mutuality, there could be no contract between them. 35 Ark. 17; 64 Ark. 398; 156 S.W. 1069; 174 Id. 393; 9 Cyc. 327, and cases cited.
2. If there had been a definite verbal agreement touching such sale, yet, since the plant was real estate, it was within the statute of frauds, and not enforceable. Kirby's Digest, § 3654; 66 Ark. 26. Forbearance from insisting upon the performance of an unenforceable contract does not afford a valid consideration for a 9 Cyc. 341, 342, and cases cited; 20 Ala. 309; 13 Ill. 140; 122 Ind. 211; 62 Kan. 743; 78 Ky. 550; 135 Mass. 310; 160 Mo. 159.
3. The alleged agreement to purchase, viewed in the light most favorable to appellee, amounted to nothing more than an option given appellee for an indefinite time to purchase the plant, and that upon an improbable condition. Such an agreement is not enforceable. 9 Cyc. 317 (b), and cases cited. A promise to pay money where there is no legal obligation to pay is not enforceable. 55 Ark. 372; 83 Id. 150; Id. 170; 100 Id. 514; 9 Cyc. 318 (d), and cases cited.
4. The writing sued on, if valid, was an alternative obligation. Appellant was under no obligation to sell the plant to the parties with whom he was negotiating, and, unless he did make such sale, no action would accrue on the agreement, unless appellant thereafter refused the appellee an opportunity to purchase, in accordance with the other alternative of said agreement. There could be no breach of the contract unless appellant refused to perform both alternatives. 19 Am. Dec. 661; 9 Cyc. 647, and cases cited.
5. After failure of appellant's negotiations to sell, when he returned to appellee and offered to resume negotiations with appellee for the sale of the plant upon the previously agreed terms and conditions, and the negotiations were resumed, then there was an election by both parties between the two alternatives which became irrevocable. 30 Ark. 453; 65 Ark. 380; 9 Cyc. 648.
T. W. Campbell, for appellee.
1. As to whether the contract is supported by a valid consideration, and also the proper construction of the contract were both decided adversely to appellant's contentions on the former appeal. 112 Ark. 190.
That there was mutuality and full agreement of the parties is sufficiently shown in the evidence; but this question and the question whether the verbal agreement comes within the statute of frauds, while they might have been raised in an action to enforce the verbal agreement, can not be raised in this case. Id. 193.
The rule is uniform in this State that the compromise of a disputed claim or forbearance to insist upon an alleged right under a contract is a sufficient consideration to support an express promise, although there may have been no merit nor foundation for such claim or the contract was utterly unenforceable. 112 Ark. 190; 101 Ark. 335; 43 Id. 172; 74 Id. 270; 27 Id. 407; 29 Id. 131.
The early English rule in this respect was never adopted in this State, has been overruled by modern English cases and repudiated by most of the States of this country. See 163 Ill. 433, 45 N.E. 281; 51 Ala. 529; 100 Cal. 339; 128 Ill. 110, 21 N.E. 196; 180 Mass. 170; 62 N.E. 248; 87 Ind. 348; 37 Ia. 255; 35 Kan. 668; 27 Md. 157; 46 Pa.St. 252; 128 N.Y. 324; 28 N.E. 499.
2. Under the obligation sued upon, appellee was assured of receiving one of two rights, viz., $ 500, if appellant sold the property to the other parties, or the property itself if appellant did not sell to the other parties. Appellee has not been permitted to receive either of these rights. His right of recovery can not be doubted.
OPINIONWOOD, J., (after stating the facts).
Appellant contends that there was no mutuality between the appellant and the appellee concerning the verbal executory contract for a sale of the electric light plant; that such verbal contract was impossible of performance on account of certain conditions imposed by the appellee upon the appellant under the terms of that contract. Appellant also contends that this verbal contract was concerning the sale of real estate, and was therefore void under the statute of frauds. But these questions are not germane to this suit, for this is not a suit to enforce the alleged verbal agreement for the sale of the electric light plant, but is a suit to recover on the written contract of November 20, 1912. A similar suit was instituted by the appellee against the appellant once before, based upon the same contract, and found its way to this court. (Fisher v. Skinner, 112 Ark. 190, 164 S.W. 735.)
In that case we held that the suit was not to enforce the contract for the sale of the plant by Skinner to Fisher, but was a suit upon the subsequent agreement by which Fisher sought to...
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Freer v. Less
... ... on appeal, and is therefore too late to be considered, as one ... is not required to plead it, and may waive that defense ... Skinner v. Fisher, 120 Ark. 91, 178 S.W ... It is ... insisted that the demurrer filed in the cause raised that ... question. But we do ... ...
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Betnar v. Rose, 76--3
...i.e., that a contract in violation of the statute is merely unenforceable. This is best illustrated by language in Skinner v. Fisher, 120 Ark. 91, 178 S.W. 922. We Even though the statute of frauds might have been interposed if an effort had been made on the part of the appellee to enforce ......
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Norton v. Hindsley
...a party against whom it is asserted has the option of either pleading the statute of frauds as a defense or waiving it. Skinner v. Fisher, 120 Ark. 91, 178 S.W. 922. While this is a sound rule, there are situations to which it cannot and should not be strictly When an oral contract is plead......
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Freer v. Less
...time on appeal and is therefore too late to be considered, as one is not required to plead it and may waive that defense. Skinner v. Fisher, 120 Ark. 91, 178 S. W. 922. It is insisted that the demurrer filed in the cause raised that question. But we do not think so. It is true the question ......