Taylor v. Connell, 5-2319

• Decision Date: 10 April 1961
• Docket Number: No. 5-2319,5-2319
• Citation: 345 S.W.2d 4,233 Ark. 440
• Parties: Charles G. TAYLOR, Appellant, v. Josephine W. CONNELL and R. D. Wilmans & Sons, Inc., Appellees.
• Court: Arkansas Supreme Court

Page 4

345 S.W.2d 4

233 Ark. 440

Charles G. TAYLOR, Appellant, v. Josephine W. CONNELL and R. D. Wilmans & Sons, Inc., Appellees.

No. 5-2319.

Supreme Court of Arkansas.

April 10, 1961.

Erwin & Bengel, Newport, for appellant.

Eldridge & Eldridge, Augusta, for appellees.

WARD, Justice.

The question presented here is whether Chancery should decree specific performance of an alleged contract to convey real estate. The trial court refused to order specific performance, hence this appeal seeking a reversal. Appellant, Charles Taylor, whose home is in Newport and who owns property in that vicinity had apparently for some time considered purchasing a small parcel of land adjoining or near the city golf course for the purpose of erecting a drive-in eating place. It seems that he knew this parcel of land was owned jointly by Josephine W. Connell and the R. D. Wilmans & Sons, Inc., and also knew that Kaneaster Hodges, a Newport attorney, represented the said owners. Mrs. Connell was a non-resident. The said company was domiciled in Newport, and J. E. Wilmans was its president and R. D. Wilmans, its secretary.

Background Facts. Sometime in the spring or summer of 1958, appellant began negotiations with Hodges relative to the purchase of said parcel of land. According to appellant he and Hodges reached an agreement as to all essential terms such as the description of the land and the purchase price. Some time thereafter in October, 1958, Hodges prepared a 'Contract for Sale of Land,' a copy of which, marked Exhibit 3, was introduced in evidence. It showed Mrs. Connell and the Wilmans Company as 'sellers' and appellant as 'purchaser'; it showed that the purchaser agreed to pay the total sum of $1,500, with $500 to be paid upon execution of the agreement and the balance of $1,000 to be paid on or before one year; it bound the sellers to execute and delivery to appellant a good warranty deed; it provided that the purchaser might enter into possession subject to the rights of the sellers and it further provided that the purchaser would leave standing such trees as would be designated by a committee of the Newport Country Club. The description of the land set forth in the contract reads:

'All that part of the Northwest Quarter of the Southeast Quarter, Section 12, Township 11 North, Range 3 West bounded on the east by Highway 17 and 14, on the north by the property of the Free Will Baptist Church, on the west by Newport Golf Club property and on the south by the property of the Newport Levee District and/or the public road.'

The original contract and all copies thereof were retained in Hodges' office. Neither the original contract or any copies thereof were ever delivered by Hodges to appellant, but the original was signed by Mrs. Connell and by the secretary of the Wilmans Company. It was never signed by Mr. J. E. Wilmans the president of Wilmans Company.

Before the contract was written (according to the date shown thereon) and on July 31, 1958, appellant delivered to Hodges a check in the amount of $500 made out to 'Kaneaster Hodges, Att.' This check was deposited by Hodges in a local bank.

Appellant, apparently thinking the transaction had been completed and everything settled, began cutting timber on the land about the last of November or first of December, 1958. A few days thereafter Mr. Wilmans noticed that the timber was being cut and promptly directed Hodges to have the cutting stopped. Thereafter appellees refused to execute the contract or make a deed to appellant, thus precipitating this litigation.

Pleadings. On July 23, 1959, appellees filed a suit in Circuit Court to recover the value of the trees cut by appellant. In due time appellant filed a general denial and also a counterclaim. At the same time appellant moved to transfer to the Chancery Court, which was later granted. In the counterclaim appellant among other things asserted: That the sales contract was executed but appellees refused to give him the original or a copy; that he had paid $500 on the contract and had offered and was then offering to pay the balance due, which appellees refused to accept; that he was put into possession under the contract and had complied with all the terms, and that he was entitled to have the contract specifically performed. The prayer was in accordance with the above assertions.

Appellees filed a reply to the counterclaim which in substance stated: Appellees admit negotiating with appellant for the sale of a certain parcel of land but deny that there was any agreement as to the exact location or description of the land; appellees deny that the Wilmans Company had any authority to sell the land and deny that appellant had any authority to go on the land; they admit that Hodges was given a check for $500 but state that it was not requested but given at appellant's insistence, and that it was tendered back to appellant when it became clear that no agreement could be reached; they say 'it was the design, intent and purpose of all the parties in their negotiations that whatever contract was entered into be integrated in a written contract, which was never executed by the parties thereto', and; that the copy of the contract attached to appellant's counterclaim was obtained from Hodges' office without his knowledge or authority.

For a reversal of the Chancery Court's decree appellant sets forth several assignments of error but they are all embodied in, and we will discuss only, the contentions that: (a) Hodges was the agent of appellees; (b) appellees ratified Hodges' acts and are estopped from denying the contract, and; (c) the court should have at least decreed specific performance against Mrs. Connell.

(a) To prevail on the ground that Hodges was an agent and that therefore appellees were bound by all his acts,...