Wofford v. Dequeen Real Estate Company

• Decision Date: 22 December 1919
• Docket Number: 68
• Citation: 216 S.W. 710,141 Ark. 310
• Parties: WOFFORD v. DEQUEEN REAL ESTATE COMPANY
• Court: Arkansas Supreme Court

216 S.W. 710

141 Ark. 310

WOFFORD v. DEQUEEN REAL ESTATE COMPANY

No. 68

Supreme Court of Arkansas

December 22, 1919

Appeal from Sevier Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

J. S Lake and B. E. Isbell, for appellant.

1. The evidence is insufficient to support the verdict. If plaintiffs were entitled to anything the jury should have found for the full sum of $ 1,500, or nothing. The jury could not legally disregard the undisputed evidence. 96 Ark. 42; Ib. 500; 101 Id. 536; 116 Id. 82. The verdict rests purely on speculation or conjecture and should not stand. 114 Ark. 112; 116 Id. 82; 117 Id. 638; 174 S.W. 547.

2. There is no evidence that the contract was changed or modified.

3. The court erred in its instructions given and refused. They were misleading, prejudicial and erroneous.

4. There was no consideration for the change in contract, and really none was made. 34 Ark. 44; 122 Id. 169; 112 Id. 226; 111 Id. 223. A verdict should have been directed for defendant.

Abe Collins, for appellee.

1. The only issue is whether or not appellee entered into the contract with Pemelton. The evidence is sufficient to sustain the verdict, and appellant can not complain because the jury were too lenient. 78 Ark. 275: 122 Id. 530.

2. The instructions are correct and there was no error in admitting evidence. Only general objections were made to any of the instructions. 66 Ark. 264; 70 Id. 558. Specific exceptions should be made. 89 Id. 24.

3. One can not complain of errors to his benefit. 5 Ark. 408; 26 Id. 142; 89 Id. 195; 78 Id. 275; 122 Id. 530.

4. Parties to a contract may, by new agreement, change the terms thereof and the new undertakings will support it. 112 Ark 223.

OPINION

WOOD, J.

This suit was instituted by J. S. Whitten, W. M. Gilstrap and H K. Ford, partners doing business under the firm name of DeQueen Real Estate Company, against J. A. Wofford.

It was alleged in the complaint that Wofford was indebted to the plaintiffs in the sum of $ 1,500 for commission earned by the plaintiffs in selling a farm for the defendant, Wofford. It is alleged that under the contract the farm was listed by the defendant with the plaintiffs to be sold at the net price of $ 11,000 and that if plaintiffs should succeed in selling the place for an amount greater than $ 11,000 they were to receive all in excess of that sum as a commission. They further allege that they had found a purchaser who was ready, willing and able to purchase the place for the sum of $ 12,500 and that the defendant refused to carry out his contract and to accept the purchaser to whom the plaintiffs had contracted to sell the farm, all to plaintiffs' damage in the sum of $ 1,500, for which they asked judgment.

The defendant in his answer admitted that he had listed the farm with the plaintiffs for sale but alleged that under the agreement he specifically stipulated he must have as much as $ 3,000 of the purchase money in cash. He denied that this sum or any other sum in cash was ever offered to him by the plaintiffs or anyone else for them and he offered to deed the farm to the purchaser named by the plaintiffs if the sum of $ 3,000 was paid to him and reasonable arrangements made for the deferred payments.

Upon the above issue evidence was heard and the cause was submitted to a jury, under instructions, which returned a verdict in favor of the appellees in the sum of $ 400, for which sum judgment was entered in their favor. From that judgment is this appeal.

The appellant contends that under the undisputed evidence if the farm was sold at all by the appellees it was sold for the sum of $ 12,500 and that the verdict, therefore, should have been for the full sum of $ 1,500 or nothing; that there is no evidence to sustain a verdict for the sum of $ 400.

The appellees introduced a contract executed by the DeQueen Real Estate Company and one G. H. Pemelton, by which the company sold to Pemelton the Wofford farm. The contract recites a consideration of $ 12,500, of which $ 1,500 was cash in hand and the balance to be paid on receipt of the abstract of title and upon the execution of a warranty deed to anyone whom Pemelton might name. The contract specified the amount of the deferred payments and when they were to be made. The contract among other things recited, "Cash payment, above referred to, to be held by the party of the first part until the abstract of title is inspected by the party of the second part," and, should it be impossible for the party of the first part to make a good title, the cash payment was to be refunded. This contract was executed on September 2, 1918. On the same day Pemelton executed to the DeQueen Real Estate Company a bill of sale to an automobile, a pair of mules, a set of harness, bonds and stamps, all for the aggregate sum of $ 1,350, cash in hand paid.

The testimony of the appellees was to the effect that they executed the contract as above set forth; that Wofford said for appellees to go ahead and sell the farm on those terms; that after making the contract Pemelton turned over his car and gave the bill of sale to the other personal property. Appellees were going to send for the mules and he was to mail the stamps. After the contract was executed with Pemelton appellees presented it to Wofford and he said it was all right except he wanted another $ 1,000 in cash. Wofford told appellees that he was to be paid $ 2,000 in cash and stamps and bonds $ 150, but that he couldn't take the other stuff and appellees told him they would take it and he said it was all right.

The testimony for the appellant tended to show that he made a verbal contract with the appellees to sell his farm; they were to have all they could sell it for over $ 11,000. The appellant was to have one-third of the sale price of $ 11,000 in cash and balance upon such terms as might be agreed upon. The appellees never offered appellant any cash. Appellant denied that he approved the contract entered into between the appellees and Pemelton. Appellant's testimony was to the effect that he looked over it and told Gilstrap, who brought the contract to him, that he would not accept it at all; that he told...