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(232 S.W.)

plied with the laws of this state authorizing | favor, are the errors assigned for the reversit to do business in this state, and for an- al of the judgment in appellee's behalf. swer denied that it had purchased or received any goods from appellant.

At the trial below appellant introduced a certificate of registration of itself as a corporation in Missouri, and another certificate of the secretary of state of that state showing an increase of its capital stock. At this trial E. G. Turner testified that he was vice president of the appellant corporation, and had personally made the sale of the goods, and that the goods had been delivered to appellee, who had, without authority so to do, reshipped them.

It appears that a firm doing business as Pace Bros. had outstanding with appellant a blanket order for merchandise, which was not to be binding on either party until the O. K. of Pace Bros. had been obtained. For the purpose of obtaining this O. K., witness Turner called at the place of business of Pace Bros. on January 30, 1920, and found that Pace Bros. had been succeeded in business by appellees. Witness took up Witness took up with Joe Price, a member of appellee firm, the list of goods carried by appellant, and obtained from appellee an order. This order was canceled on June 30th, and the witness Turner again went to Pocahontas, appellee's place of business, to see about the order. The order was then revised, so as to include only hosiery. That order was a verbal one, and this litigation arises over a dispute about its terms.

The goods were shipped from Springfield on July 19th, and arrived at Pocahontas on July 26th, and were billed out from Pocahontas to appellant on August 18th. Appellant refused to receive the goods, and brought this suit to recover the purchase price. Appellee Price admits buying the hosiery, but says the sale was on approval, and that on examination he found the goods were priced too high, and in a letter dated August 12, 1920, he so advised appellant. This letter was written in response to a letter from appellant dated 8-7-20.

The court submitted the cause to the jury under instructions which in effect told the jury to find for appellant unless the goods had been sold and shipped on approval, and refused to give an instruction, numbered 1, requested by appellant, reading as follows: "No. 1. You are instructed that the proof in

this case shows that the contract between Price Bros. and the Turner Furnishing Goods Company was one consummated outside of the state of Arkansas, and defendants' plea that same was a contract made within this state, and that the plaintiff is not entitled to bring suit on same, should not be considered by you."

[1] No error was committed in refusing to give the instruction set out above, for the reason that the instructions which were given eliminated that issue from the jury. These instructions submitted to the jury the question whether the goods were sold subject to approval, or unconditionally, and the jury was told to find for appellee in the one case and for appellant in the other.

[2] Price was strongly corroborated by one Perrin, an employee, who testified that he was present when the sale was made, and that it was made subject to appellee's approval. proval. Perrin heard only one conversation to that effect, and it is earnestly insisted that that conversation was in January, when the order was first given, and not in July, when it was revised. As tending to show that Perrin did not hear the conversation in July, it is insisted that his own testimony shows that he was away from Pocahontas, making the race for sheriff, and that therefore the conversation about which he corroborates witness Price must have occurred in January, and not in July.

We will not review the various circumstances and incidents on which this argument is based. These are questions of fact which have been passed upon by the jury. Price's testimony is legally sufficient to support the verdict, without the corroboration of Perrin; but Perrin fully corroborates Price, and it was the province of the jury to weigh and pass upon this testimony.

No error appearing, the judgment is affirmed.

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MCCULLOCH, C. J. This is an appeal The refusal to give this instruction, and from a decree of the chancery court of Clay the refusal to give an instruction directing county (Western district), confirming a sale the jury to return a verdict in appellant's of land made by the court's commissioner For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in a suit for partition. The purchaser at [er suffered his bid to be accepted by the sellthe sale was appellant's attorney, who rep- ing officer without attempting to withdraw resented her in the original cause, and also it before the acceptance of the bid. We appeared at the sale for the purpose of pro- find nothing in the conduct of the appellee tecting her interest. Appellant filed excep- or his attorney which constitutes collusion tions to the commissioner's report. The court or hindrance to bidding. Appellee was enoverruled the exceptions and confirmed the tirely within his rights when he decided to sale. refrain from further bidding, and the fact that he did this on the advice of his counsel does not render his conduct wrongful. The other bidder could not have been misled by his conduct, for he was bound to know that appellee would stop bidding if he kept raising the bid himself. The purchaser testified that he heard, before the sale, that appellee had stated that he would run the property up to $10,000; but appellee denied in his testimony that he ever made such a statement, and there is no proof that he had

The exceptions of appellant to the report of the commissioner are not based on the fact that her attorney became the purchaser, but it is claimed that the conduct of appellee, who was also a bidder at the sale, was such as to stifle the bidding and prevent a fair sale, and that on this account the bid of appellant's attorney should be rejected and the sale set aside.

(149 Ark. 355)

At the sale made by the commissioner there were bidders other than appellee himself and appellant's attorney. The other bidders, how-in fact made the statement. ever, dropped out of the bidding, which nar- There being nothing to impeach the fairrowed down to a contest between appellee ness of the sale made by the commissioner, and appellant's attorney. Appellee finally it follows that the court was correct in conbid $7,990, and appellant's attorney raised firming the sale, and the decree is affirmed. the bid to $7,995. Just at that time appellee had a brief consultation with his attorney, who had just arrived, and then announced to appellant's attorney that he would not ROBINSON v. FLORENCE SANITARIUM. raise the bid, and that the attorney could have the property at the last bid. There was no further bid made, and the commissioner, who was the clerk of the court, struck off. the property to appellant's attorney at the bid mentioned above. The purchaser testified on the hearing before the court that, as soon as appellee announced to him that he would not raise the bid, he (witness) immediately announced that he would withdraw his bid and "stop it where it was." The preponderance of the testimony appears, how-held supported by preponderance of the evi

ever, to be against this contention, and we must assume that the court found to the contrary.

Appellee and his attorney, and several other persons who were present at the sale, testified that when appellee announced that he would not again raise the bid the purchaser offered to let him have the land at the last bid; but they all testified that they did not hear appellant's attorney make any statement of his withdrawal of his bid, or inform the commissioner that the bid was withdrawn. The commissioner was introduced at the trial, and testified that the bid was not withdrawn before the land was struck off to the purchaser, and that he never heard of any withdrawal of the bid until a short time after the land was struck off, and he had retired to his office to prepare the bond for the purchaser to sign. He testified that, as soon as he struck off the land, he asked the purchaser whether he was bidding for himself or some one else, and the purchaser replied that he was bidding for himself.

We have a case, then, where the purchas

(No. 67.)

(Supreme Court of Arkansas. June 27, 1921.) Specific performance 121 (8)-Preponder

ance of evidence held to sustain chancellor's findings against fraud by vendors.

In a suit by vendors for the specific performance of a contract for the purchase of real estate, the findings of the chancellor that the officers of vendor who negotiated the contract were not guilty of fraud or misrepresentation

dence.

2. Frauds, statute of 152(1)-Where statute not pleaded, held, that it must be taken as conceded that written bid, accompanied by check and acceptance thereof, constituted binding contract.

In a suit for specific performance of a contract to purchase real estate, where the statute of frauds was not pleaded, it must be taken as the property, accompanied by his check, and the acceptance thereof by the directors and stockholders of plaintiff corporation, constituted a completed executory contract for the sale of the property.

conceded that the written bid of defendant for

3. Specific performance 66-May be granted

to a vendor of real estate.

The remedy of specific performance may be granted to a vendor of real estate. 4. Specific performance

51, 52, 53, 55-Con

tract must be fair and free from fraud and mistake.

A contract for the purchase of real estate will not be specifically enforced, unless it is free from fraud, misrepresentation, mistake, or illegality, and is fair and just in its terms.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S. W.)

5. Specific performance 53 - Untrue statement of material fact will prevent specific performance.

An untrue statement of a material fact will prevent specific performance of a contract, irrespective of a party's intent to deceive, where the party against whom the contract is to be enforced relied upon such misrepresentation. 6. Specific performance 121 (8) - Evidence held to show parties dealt at arm's length.

In a suit by a corporation for specific performance of a contract for the purchase of real property, testimony that the purchaser consulted the president of the corporation regarding the proposed purchase as a trusted friend and in a confidential way does not establish the legal relation of trust and confidence between them, so as to show they were not dealing at arm's length, where the purchaser knew the president held that office and that he was representing the corporation.

7. Specific performance 121(8) -Evidence held not to show collusión to induce purchaser to raise his bid.

In a suit for specific performance, evidence held not to show collusion between the president and vice president of the vendor corporation, but to show that the president did not understand the vice president's statement they had a better offer to refer to another offer by defendant, so that the president acted in good faith in inducing the defendant to increase his bid.

had stopped the payment of the check given to the appellee as earnest money, and had refused to accept the deed which appellee tendered; and prayed that the appellant be required to specifically perform the con

tract.

The appellant answered, and, after denying all the material allegations of the complaint, set up that, if the offer alleged was made it was made because of the representation of the president of the appellee, who assumed to represent it in conducting the negotiations for the sale of the property; that he represented that the proposed sale embraced everything in the building except groceries, one chair, and a few surgical instruments; that the appellee discovered, before concluding the purchase, that there were many other valuable furnishings of the building which did not belong to the appellee, and which appellee could or would not include in the conveyance; that these furnishings which did not belong to appellee were worth $2,000 or $3,000 or more; that after making this discovery appellant notified the appellee that he would not purchase the property. Appellant further alleged that on or about the 7th of August, 1920, he did offer to the president of the company the sum of $29,000 for the property, including all the furnishings and contents; that the president on the same day informed the appellant that another

Appeal from Jefferson Chancery Court; person had offered $30,000, and that it would John M. Elliott, Chancellor.

Suit by the Florence Sanitarium against Adam J. Robinson for specific performance of a contract for the purchase of real estate. Decree for plaintiff, and defendant appeals. Affirmed.

require $30,000, to purchase it; that it was upon this representation that appellant delivered to the president of the appellee an offer to purchase the building and its contents for the sum of $30,000, but appellant learned that the appellee had not had an offer for

Bridges & Wooldridge, of Pine Bluff, for $30,000 for the property, and he thereupon appellant.

notified the appellee that he would not pur

Coleman & Gantt, of Pine Bluff, for appel- chase. The appellant also alleged that he gave

lee.

WOOD, J. The appellee instituted this action against the appellant in the Jefferson chancery court, alleging that it was owner of a certain half block of land, with the improvements thereon, in the city of Pine Bluff, Ark.; that it agreed to sell the land to appellant for the sum of $30,000, as evidenced by a written bid or offer from the appellant to the appellee of that sum for the purchase of the property. With the offer was a certified check for $4,500 cash, and the balance to be paid in three years at 8 per cent. per annum, payable semiannually, with the privilege of paying the sum of $500 or any multiple thereof at any interest-paying period. Appellee alleged that it accepted the proposition, and on August 26, 1920, it executed and delivered to the appellant its warranty deed, conveying the property to him in accordance with the agreement; that appellant

the appellee a check for the sum of $4,500, which had not been paid by the drawee bank, but was withheld from the appellant. He prayed that the appellee be required to surrender the check.

The appellee also instituted an action against the drawee bank to recover judgment for the amount of the check which the bank had refused to pay. The bank answered, and alleged that before the check was presented the drawer of the check had notified it not to pay the same. It asked that Robinson, the drawer of the check, be made a party, and that in order to avoid a multiplicity of suits the cause be transferred to the chancery court, and consolidated with the suit of appellee against the appellant pending therein. The transfer and consolidation were made.

The appellee is a domestic corporation and owns the property in controversy, on which it maintains and conducts, as its name

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

indicates, a hospital or sanitarium. D. B. He told him that he had been informed that Niven testified that he was the president of there was a better bid, and that appellant the appellee; that the appellant delivered would have to raise his bid. The furniture to him a written proposal to purchase the had cost the appellee $6,000 or $7,000. Withospital, which he identified, and the same ness was sure that appellant was misled was introduced in evidence, and is substan- probably by the fact that witness told him tially as set forth in the complaint. He that it had cost $10,000. He may have further testified substantially to the facts as thought that witness told him it was worth they are alleged in appellee's complaint. He that. Witness knew that appellant could testified that he told appellant that certain not get $10,000 for it, because appellee had doctors had some surgical instruments in the sold it to Howard for $7,000, and afterwards hospital that were not the property of the bought it back. Witness had told the apappellee; that witness did not know any-pellant that he thought $29,000 would buy thing about these instruments, but that the the property, and after Dr. Jordan told witonly personal property that the appellee ness that he had a better bid, witness then incould sell to the appellant was contained informed the appellant of this fact, and, as alan invoice that the appellee had obtained ready stated, asked him to go to the board from Dr. Jordan, from whom it had purchased the property. Witness called appellant's attention to this invoice. Witness told appellant that the appellee paid for the stuff on the inventory the sum of $10,000. Witness did not know anything about the surgical instruments, but did undertake to tell the appellant about the furniture. He told appellant that the furniture was worth $2,500; that he could realize as much out of the furniture as it would cost him to change the sanitarium into an apartment house, as appellant contemplated doing. It had been furnished and was being operated as a hospital. The witness stated that the appellant, the day before the board of directors were to receive bids, came into witness' office, and after they had gone over the value of each department in detail appellant made a bid of $29,000. The next morning one of the directors, Dr. Jordan, asked witness if anybody had sent in any bids, and witness informed him that there had been a bid of $29,000; whereupon Dr. Jordan said that it was no good-that he had a better one. Witness felt interested in appellant, inasmuch as he had discussed the proposition in a confidential way with witness, and witness thought that he wanted to purchase the property. It was not time for the board meeting. Witness went over to appellant's office, and told him that witness understood there would be a better bid than his, and asked appellant to come to the meeting, as he was a stockholder anyway; that witness would be glad for him to come and protect his bid. Appellant asked witness to take care of his bid, and witness replied that he did not want to do that, and asked appellant to bid whatever he wanted to give. Appellant then asked witness for his bid, and changed it from $29,000 to $30,000. When the board met, witness presented appellant's bid, and it was accepted. Witness notified appellant, and he did not make any objection to it at the time, and never had made any objection to witness.

Witness did not know what the amount of the other bid was, and did not tell the appellant that there would be a bid of $30,000.

meeting. Witness told the directors he wish-
ed they would make the price $29,000 to
the appellant because witness was the cause
of appellant's raising his bid. Witness told
them that he felt a little guilty, but he was
entirely innocent in it. It was witness' un-
intentional misrepresentation that caused ap-
pellant to bid $30,000 for the property. Wit-
ness was sure that appellant would have
got it for $29,000, and went to the board two
or three times, and tried to get them to take
off the $1,000; but they would not do it.
Witness felt bad over it, and thought appel-
lant ought to have it for $29,000 and wanted
him to have it for that price as far as wit-
ness was individually concerned. Appellant
afterward told witness that he did not want
the property. Witness was only a small
stockholder, and it did not care personally
whether appellant took it or not. In the
conversations witness had with appellant he
had acted as president of the appellee. In
the conversation with reference to the per-
sonal property, appellant did not seem to
lay any stress on the furniture and stuff at
all. He said that it was the kind of stuff that
could not be used.
sent to the appellant that Dr. Jordan's surgi-
cal instruments in the hospital were con-
tained in one case. Witness never discussed
the title with appellant at all. Witness did
not expect appellant to take it unless the title
was good. The board had their attorney to
prepare the deed and tendered it to the ap-
pellant. The deed was introduced in evi-
dence.

Witness did not repre

The attorney who prepared the deed testified that, when he tendered the deed to appellant, appellant said that he did not know whether he wanted to take it or not, because he was not getting all the personal property he expected to get, and that he had been caused to bid more for the property than he thought was necessary. Witness saw appellant again in a few days, and he still had not made up his mind, but after several weeks appellant finally told witness that he would not accept the deed. The deed was a warranty deed conveying the land with all improvements

(232 S.W.)

Mrs. Harris testified that she was a tenant in one of the houses on the sanitarium property at the time she heard that appellant had bought the same. It was reported in the paper. After that appellant came out and was looking around at the property, and witness asked him if he was the man who had bought the same, and he replied that he was. He told witness that he was about to tear the house down that she was living in and, said he would be glad if witness would look around for a new house. Appellant and Dr. Jordan had been out before that day.

thereon, and all furniture and furnishings [ing together, and witness showed appellant all belonging to the grantor and now in the of its contents, except the boiler room, and building on said land, and contained recitals showed him what witness claimed as his own showing the terms of the purchase money property. The appellant then said, "I don't in accord with the appellant's bid. know what I am going to do with this doctor's junk." Witness replied, "Give me 10 per cent., and I will sell it for you." Appellant replied, "The job is yours." Appellant meant by doctor's junk the tables, sterilizing plant, and things of that kind, which were considered hospital furniture proper. There were two cases containing surgical instruments worth several thousand dollars. Besides these, two or three doctors had small packages left on the operating tables. There were two of these tables. The appellant did not give the witness a written bid of $30,000. Witness was requested by Harry Hanf to let him bid on the property and the stockholders' meeting was called for the purpose of negotiating with him. He had bid $27,500. Another man, Mr. Leo Andrews, one of the directors, said he would not let the property go for that. IIe was at the meeting, but made no offer. Niven, the president of the appellee, had stated to witness that he had a proposition from appellant of $29,000, and witness told Niven that appellant had agreed with witness on $30,000; that he and appellant had talked it over, and that appellant said that $30,000 was all right.

Another witness, a Mrs. Reynolds, testified that she was also a tenant in one of the houses on the property, and stated that, after she saw in the paper the statement to the effect that the appellant had purchased the property, the appellant was out looking at the house, and she asked him if he was the man who had purchased the property, and he said "Yes." He discussed with witness certain improvements that he contemplated making on the house in which she lived, and discussed the amount of rent that witness was paying, and asked witness what amount she could afford to pay. Afterward two of appellant's plumbers came out and did certain work that was necessary to be done. Appellant went through the house in which witness lived, and discussed with her the changes he was willing to make.

Dr. Jordan, one of the stockholders and a vice president and director of the appellee, testified that on Friday preceding the stockholders' meeting on the next day, appellant came to his office and asked if the sanitarium was for sale. Witness informed him that it was, and told him that the board wanted $35,000 for it; that for a speedy sale it might be had for $30,000, and witness and appellant began to figure it on that basis. Witness wrote out a proposition, which he laid before the appellant as a tentative offer for the property at $30,000, with the terms specified. Appellant said that it was all right, except for the cash payment of $5,000. Appellant stated that, if the cash payment could be made $4,500, it was all right. Witness told him that could be arranged. Appellant stated that he would see his attorney and have him prepare the proposition in legal form, and appellant would bring it around in the morning with his check for $4,500. Appellee did not own any surgical instruments. The doctors furnished their own instruments, although they sometimes kept them at the hospital. On Tuesday following the Saturday on which the sale was made, appellant and witness went all over the build232 S.W.-38

The appellant testified that in company with Dr. Jordan he looked at the property in controversy on the afternoon of Friday, the 5th of August; that Dr. Jordan showed him all the rooms and their contents, and told him that it had cost between $11,000 and $12,000 to furnish the building. While they were looking at it, Jordan asked witness, who was in the plumbing business, to send a man out to fix a certain defect in the sewer connecting one of the cottages. Witness talked with Niven in regard to the purchase, and consulted with him about converting the building into an apartment house. Witness asked Niven if he had a list of the contents of the building, and Niven informed him that he thought there was one. Niven told witness that there were some groceries and a chair and some surgical instruments that Dr. Jordan had in one of the cases; that this was all that would not be included in the sale. After receiving this information from Niven, and talking again with Dr. Jordan, witness went back to see Niven, and asked him what he thought about an offer of $28,000. Niven informed witness that he could not get the building for that, but he could get it for $29,000. Niven told witness that he could get $6,000 or $7,000 out of the contents. Niven assured witness that he could get $2,500 or $3,000 out of the furniture. Witness stated that on Saturday morning, August 6th, Dr. Jordan had left a memorandum of figures on witness' desk, showing the

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