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ing that the purchaser shall pay the remaining part of the price on or before a certain date,' was not so ambiguous as to render parol evidence of the terms of the contract admissible.

Appeal from Circuit Court, Little River County; Jeff. T. Cowling, Judge.

Action by W. L. Perkins against L. M. Warmack. Judgment for plaintiff, and defendant appeals. Affirmed.

tract. He merely offered to prove that his contract with Ellis was only an option to sell, and that he stood ready at all times to carry out its terms, but that Ellis declined to exercise the option and purchase the property. The court refused to admit that testimony for the reason that the contract was in writing, and was free from ambiguity.

At the conclusion of the introduction of evidence defendant, June R. Morrell, of Ashdown, and Will notwithstanding the Steel, of Texarkana, for appellant. A. D. court's refusal to admit oral testimony showDu Laney, Geo. R. Steel, Steel & Steel, and ing what the understanding was between him John J. Du Laney, all of Ashdown, for ap-ed the court to charge the jury that if the and Ellis in executing the contract, request

pellee.

McCULLOCH, C. J. Defendant owned a light, ice, and power plant in Ashdown, Ark., and operated the same under the name of Ashdown Ice & Power Company. Desiring to sell the property, he entered into a contract with the plaintiff, who was engaged in the real estate business in Ashdown, to find a purchaser for the plant and certain other property owned by defendant, at the price of $44,000. Plaintiff found a purchaser at that price in the person of E. S. Ellis, with whom defendant entered into a written contract as follows:

contract was intended as an option and that defendant was still ready to carry out its terms, plaintiff could not recover. Those were the only issues which defendant asked to be submitted. He did not ask for a submission of any issue concerning the terms of the contract between him and plaintiff, but treated the question of the effect of the contract between him and Ellis and of his readiness to perform that contract as the only issues in the case.

[1] If the understanding of defendant, in order to secure a commission, was merely to produce a purchaser "ready, willing, and able to buy upon the terms named," and he "This agreement, made and entered into on in fact produced one with whom his princithis the 2d day of March, 1917, by and between L. M. Warmack, hereinafter known as the pal entered into a contract for the sale of party of the first part, and Edward S. Ellis, the property, then the commission was earnhereinafter known as the party of the second ed and plaintiff was entitled to recover. part, witnesseth: That the party of the first Pinkerton v. Hudson, 87 Ark. 511, 113 S. W. part has this day agreed to sell to the party of the second part, or his assigns, his light, ice and 35; Moore v. Irwin, 89 Ark. 289, 116 S. W. power plant, together with his block of ground, 662, 20 L. R. A. (N. S.) 1168, 131 Am. St. now where he lives, for the sum of forty-four Rep. 97; Reeder v. Epps, 112 Ark. 566, 166 thousand dollars ($44,000), on the following terms: Fifty dollars cash, receipt of which is S. W. 747; Lasker-Morris Bank & Trust Co. hereby acknowledged. One thousand dollars V. Jones, 199 S. W. 900. ($1,000) on or before April 1, 1917. Fifteen thousand dollars ($15,000) on or before July 1, 1917. At which time the party of the first part agrees to give possession of his entire holdings as above mentioned, with the understanding that the party of the second part shall pay the remaining part of the forty-four thousand dollars ($44,000) on or before January 1, 1918." The contract was signed by both of the parties thereto. Immediately after the contract was entered into between defendant and Ellis, another person appeared on the scene, a Mr. Morgan, to whom defendant had previously given an option for the sale of the plant. Morgan insisted upon his right to purchase the plant under his option, and filed a suit against defendant and Ellis in the chancery court to prevent the consummation of the sale to Ellis and to compel defendant to make good his option contract. The sale to Ellis has never been consummated. Defendant testified in the case, but did not dispute the correctness of plaintiff's testimony concerning the terms of his con

[2, 3] Such are the facts of this case, according to the undisputed evidence, and the court was correct in directing a verdict in plaintiff's favor. But it is contended that the contract between defendant and Ellis was not a binding one for the sale of the plant because it lacked mutuality in that the contract contained no express undertaking on the part of Ellis to purchase the property. We do not agree with this contention, for both parties signed the contract, and the acceptance of its terms by Ellis implied a reciprocal obligation to purchase according to the terms specified in the contract. Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 9, 125 S. W. 659, 140 Am. St. Rep. 93. Nor was there any ambiguity in the language of the contract as contended on behalf of defendant so as to let in oral testimony.

The court was correct in excluding that testimony, for the contract is entirely free from ambiguity.

Judgment affirmed.

BYINGTON v. LITTLE ROCK CHAMBER
OF COMMERCE. (No. 125.)
(Supreme Court of Arkansas. Feb. 4, 1918.)
1. FRAUDS, STATUTE OF 74(1)-"CONTRACT
FOR SALE OF REAL ESTATE" SUBSCRIP-

TION CONTRACTS.

A suit by a Chamber of Commerce on a subscription contract, whereby defendant agreed to pay a certain amount of money in installments upon being allotted certain real estate donated by others, was not one on a contract for the sale of real estate within the statute of frauds, but is on a contract for a subscription made by defendant jointly with others to a common fund.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Agreement for Sale of Real Estate.]

3. CONTRACTS

receive and distribute donations made for that purpose. In the year 1911 a plan was devised for raising a large sum of money, not less than $200,000, to use in securing the location of factories and other business enterprises, and the plan contemplated securing from the real estate owners of the city and vicinity donations of real estate of $200,000 estimated enhanced value in five years by reason of the location of the industries to be thus secured, and also securing subscriptions in money from those who were willing to become the purchasers of the real estate thus donated at prices corresponding with said estimates of the enhanced value. Public appeals were made to citizens of Little Rock for donations of land and subscriptions of

2. CONTRACTS 182 (1) — JOINT CONTRACTS. Where a Chamber of Commerce solicits sub-money upon the assumption that the proper scriptions from prospective allottees of lands use of the funds thus raised for the developdonated by others to promote the welfare of the ment of factories and other enterprises community, the separate contracts of the re- would, during the period of five years, result. spective subscribers constitute a joint contract on their part; the Chamber of Commerce being in substantial enhancement of values of real the agent of the subscribers, and the mutuality estate to the extent that owners of real esof the several undertakings not being destroyed tate would secure the enhancement in value because the subscribers did not sign a joint subon their lands sufficient to compensate for the scription list. donations made by them, and that the subscribers who were to receive the real estate at valuations based on the estimated enhancement during said period would secure, by way of profit on the investment, sufficient compensation to reimburse them for the amount subscribed. The plan was carried out, and donations of lands were obtained in excess of the amount named, and subscriptions of money on the terms stated above

279(1)-ACTIONS-TEN der. In a suit by a Chamber of Commerce upon a subscription contract, whereby defendant was to purchase and pay for an allotment of land donated by others, the right of action is complete when plaintiff offers to fulfill its contract by making an allotment, notwithstanding that the contract would be too indefinite to require specific performance if treated as a contract for

the sale of land.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by the Little Rock Chamber of Commerce against G. W. Byington. Decree for plaintiff, and defendant appeals. Affirmed.

Marshall & Coffman, J. A. Comer, and Manning, Emerson & Donham, all of Little Rock, for appellant. W. B. Smith and Jno. P. Streepey, both of Little Rock, for appellee.

MCCULLOCH, C. J. This case was disposed of below on demurrer to the complaint of appellee, and the only question presented here is whether or not the facts stated in the complaint constituted a cause of action. The facts set forth in the complaint are in substance as follows:

The Little Rock Chamber of Commerce is a corporation organized by citizens of the city of Little Rock for the purpose, as its name implies, of promoting the business interests of the city, and among other things of encouraging public improvements of all kinds, and particularly to secure the location of factories and other business enterprises in the city and vicinity. One of the by-laws provides for the creation of a committee, called the "industrial and development committee," to have control of the disposition of development and industrial funds raised by the Chamber of Commerce, and with authority to

were obtained in excess of the said sum. There were printed blanks for the two classes of subscribers; the one used by the donors of lands provided that in consideration of $1 and the benefits to accrue from the expenditure of the funds thus raised the donor agreed to donate to the Little Rock Chamber of Commerce the real estate described in the contract, on condition that "the said Chamber of Commerce by March 1, 1912, shall have made sales of property donated to it amounting in the aggregate to $200,000"

The subscription blanks signed by those who subscribed money were in the following form:

"The undersigned, as subscriber, hereby agrees to purchase $ in appraised value of real estate from Little Rock Chamber of Commerce acquired by it for industrial and development cent. upon delivery of contract and 2 per cent. purposes, and agrees to pay for same; 5 per per month without interest, until fully paid. This purchase is upon the condition that the Little Rock Chamber of Commerce make sales of the property acquired by it for industrial and development purposes, to the aggregate amount of $200,000. It is agreed that the Chamber of by it appraised by a committee appointed for Commerce will have the real property acquired that purpose at its probable value on the 1st day of January, 1917, as enhanced by the probable growth of the city and the use for industrial Commerce of the fund raised for that purpose, and development purposes by the Chamber of and that the subscriber hereto shall have the

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

right of selection of $- in value of said, used for a specified purpose. Such a conproperty at its appraised value in the order of tract is not within the statute of frauds. his subscription, upon notice being given by the Chamber of Commerce that the property is The fact that separate contracts were signed ready to be allotted; and it is further under- by the respective subscribers instead of a stood that if the subscriber does not promptly joint subscription list does not necessarily apply for his allotment, that the real estate show that the several agreements thus execommittee which appraised said property shall have the right to make the allotment so that cuted were not directed to the same end and the succeeding subscribers may exercise their purpose, nor destroy the mutuality of the right of selection in the order in which their undertakings. All of the contracts executed, subscriptions were taken. It is further agreed under the circumstances shown, constituted that upon said selection or allotment being made, the subscriber will enter into a further a joint contract on the part of the subscribformal written contract of purchase of the par- ers. Belding v. Vaughan, 108 Ark. 69, 157 ticular property selected or allotted according S. W. 400. And the mutual undertakings exto the terms of his subscription, and that upon the subscriber making the 5 per cent. payment, pressed in the numerous subscriptions when he shall be entitled to go into the immediate acted upon by the Chamber of Commerce, possession of said property, but the Little Rock which was the agent of the subscribers, conChamber of Commerce will retain the title of stituted a binding consideration. Rogers v. the property until the payments are fully made, the said contract to contain the usual provi- Galloway Female College, 64 Ark. 627, 44 S. sions of forfeiture contained in the contracts in W. 454, 39 L. R. A. 636; David v. Chambers, use by the real estate agents of Little Rock 123 Ark. 293, 185 S. W. 443; 1 Elliott on where property is sold on the partial payment plan. It is further agreed that upon the sub-Contracts, § 229; Young Men's Christian Asscriber making full payments of the purchase sociation v. Estill, 140 Ga. 291, 78 S. E. 1075, price the Little Rock Chamber of Commerce 48 L. R. A. (N. S.) 783, Ann. Cas. 1914D, 136; will execute to him a special warranty deed for Stewart v. Trustee, 2 Denio (N. Y.) 403; said property." v. Marion Commercial Club, 50 Ind. App. Norton v. Janvier, 5 Har. (Del.) 346; Brown 670, 97 N. E. 958.

Appellant signed the form of contract providing for the payment of money and the acceptance of an allotment of real estate. The committee of the Chamber of Commerce made the appraisements of the lands donated and more than four-fifths of the contracts for the donation of lands and the acceptance thereof by the persons who undertook to do so have been performed, but appellant failed

to make a selection of his allotment of real estate in accordance with the terms of the contract, and when the allotment to him was made by the committee in accordance with those terms he declined to perform the contract. Compliance with the contract on the part of the Chamber of Commerce is alleged in the complaint, and in this action, instituted by the Chamber of Commerce, offer is made to comply with the contract, and the prayer of the complaint is for recovery from defendant of the amount of his subscription, and that he be required to accept the real estate allotted to him.

The contention of counsel for defendant in avoidance of the contract is that it is one for the sale of real estate, and is within the statute of frauds and void by reason of the fact that no particular land was described, but that the undertaking is to purchase land to be secured in the future by the other party to the contract. It is also argued that specific performance should not be decreed for the reason that defendant did not undertake to accept the conveyance of any particular tract of land.

[1, 2] We are of the opinion that the contract when interpreted in the light of its subject-matter and the situation of the parties as set forth in the complaint is not one for the sale of real estate within the meaning of the statute of frauds, but that it is a contract for a subscription by the defendant

contract for us to leave out of consideration It is a mistake in the interpretation of the the exact status of the Chamber of Commerce as one of the contracting parties. It was not engaged in the real estate business, nor did it have property for sale about which the parties were contracting. The Chamber of Commerce was acting in a quasi public capacity for the purpose of promoting the welfare of the community, and the contract as a whole constituted it as the agent of the subscribers-to gather together lands to be donated and to allot them among the subscribers who agreed to pay money. It is true that in the contract the subscriber undertook to purchase the land to be allotted to him. He was also designated in the contract as a subscriber. A literal interpretation of the particular words used in the contract migut defeat its obvious purpose, and when, as before stated, we interpret the language in the light of the circumstances, we can see that the meaning of the contract is that it is an undertaking to subscribe and pay a certain sum of money on conditions specified in the contract; that is to say, the subscriber shall have the right to select his allotment of land in regular turn, or in the event of his failure to make selection himself that an allotment will be made to him by the appraisers. This being the effect of the contract, it would be a mistake to treat it merely as a contract for the sale of land.

[3] Plaintiff having offered to perform the condition prescribed in the contract by allotting to defendant his part of the land at the appraised value, the right to recover the subscription price is mature, and the cause of action is complete. It is said that this is in

company when it issued the policy knew that fact.

6. INSURANCE 120-LIFE POLICIES-EN

FORCEMENT.

Where the beneficiary of a life policy had no insurable interest in the life of one insured, he cannot enforce payment on the theory that beneficiary's death before the insured the polas the policy declared that in event of the icy should be paid to the guardian, executor, or administrator of the insured, to be held in trust for his legal heirs, the beneficiary was a trustee for the legal heirs of the insured, for that contingency never happened.

Appeal from Circuit Court, Searcy County; Jno. I. Worthington, Judge.

the contract. Conceding that such is the effect of the relief granted, it does not follow that relief should be denied merely because the contract, if treated as one for the sale of real estate, would be too indefinite for a court of equity to enforce. The essence of the contract was to pay money upon the condition named, and if it be conceded to be too indefinite to require specific performance when treated as a contract for the sale of lands, yet this does not afford grounds for defendant to escape liability on his subscription contract merely because the effect of the enforcement of the contract is to require him to accept the land allotted to him. He is not Action by Phelps Cotton against the Mutubound to accept it, as his acceptance is not al Aid Union. From a judgment for defenda part of the relief afforded to the plaintiff.ant, plaintiff appeals. Affirmed. All that the plaintiff had to do was to tender performance and the relief to which it is entitled is the recovery of the amount of the subscription. The enforced acceptance under the decree of the court is for the benefit of the defendant, and he is not bound to accept the land, unless he wishes to do so, but he must pay the subscription because the other party to the contract has offered to perform his part.

Decree affirmed.

COTTON V. MUTUAL AID UNION. (No. 172.)

(Supreme Court of Arkansas. Feb. 18, 1918.) 1. APPEAL AND ERROR 171(3)-CHANGE OF THEORY ON APPEAL-PROPRIETY.

In an action on a life policy, though the answer was defective in stating the conclusion of law instead of the facts from which that conclusion might be drawn, yet where the parties treated the answer as raising the issue of whether plaintiff had an insurable interest in the life of deceased, and the cause was submitted and tried on that theory, the defect in the answer cannot be taken advantage of for the first time on appeal.

2. APPEAL AND ERROR ~1033(2)-HARMLESS ERROR-PLEADINGS.

Where a cause was tried and submitted on a particular issue decisive of defendant's liability, it is immaterial on appeal whether any answer raising that issue was filed. 3. INSURANCE 119 WAGERING CONTRACT.

LIFE INSURANCE

A person who insures the life of another in force the contract because it is a wagering contract and contrary to public policy. 4. INSURANCE 116(1)-LIFE INSURANCEINSURABLE INTEREST.

whom he has no insurable interest cannot en

One has no insurable interest in the life of his second cousin who was not indebted to him, and who furnished him with no support, and hence plaintiff, having obtained a policy on the life of his second cousin, was not entitled to enforce it.

LIFE INSURANCE

5. INSURANCE 119
WAGERING CONTRACTS.
The courts will not aid either party in en-
forcing a contract which is void as against
public policy; therefore a contract of insurance
which was a wagering contract because the
beneficiary had no insurable interest in the life
of the insured will not be enforced, though the

D. T. Cotton, of Leslie, for appellant. Dick Rice, of Miami, Okl., for appellee.

HUMPHREYS, J. Appellant brought suit against appellee in the Searcy circuit court to recover $79.44 on a life insurance policy issued by appellee on the 1st day of April, 1916, on the life of Frank Cotton, in which policy appellant was made the beneficiary. The policy provided that upon the death of Frank Cotton appellee would, "within thirty days after the receipt, at the home office, at Rogers, Ark., of satisfactory proof of the death of said applicant, pay Phelps Cotton, whose address is Leslie, Ark., if living, if not, then to the guardian, executor, or administrator of said applicant, to be held in trust for the sole benefit of the legal heirs, the sum of money herein set forth." It was alleged in the complaint that Frank Cotton died on the day of September, 1916.

Appellee pleaded as one of its defenses that appellant "had no insurable interest in the life of the insured, Frank Cotton, and had no lawful right to insure the life of the said Frank Cotton and cause himself to be named as beneficiary in the certificate of insurance, and for that reason is not liable to the plaintiff on the certificate of membership sued on herein." The cause was submitted to the court, sitting as a jury, on certain documentary evidence and an agreed statement of facts. It was adjudged that appellant take nothing by the action, and from that judgment an appeal has been prosecuted to this court.

Appellant procured the certificate of insurance on the life of Frank Cotton, which is the basis of this action, and paid the premiums and assessments under the terms of the policy until the death of the insured. Appellant applied for the policy and signed Frank Cotton's name to the application. Appellant was 29 years of age at the time he brought the suit, and resided at Leslie, in Searcy county, Ark., four miles from the home of the insured, and was a second cousin of the insured. The application for the insurance was made in April, 1916, and the insured died in July, 1916.

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

[6] It is insisted by appellant that he should be treated as a trustee for the legal heirs of the insured for the reason that the contract provides that in case appellant should die before the insured, then the appellee should pay the insurance to the guardian, executor or administrator of the insured to be held in trust for the sole benefit of the legal heirs of the insured. The contingency provided by the contract never happened. The insured died before the beneficiary, and this is a suit by the beneficiary against the insurance company upon the primary undertaking in the contract. Appellant brought this suit for himself, and he cannot recover on a contingency which has never happened. No error appearing in the record, the judgment is affirmed.

[1, 2] The cause was tried upon the issue of [ whether appellant had an insurable interest in the life of Frank Cotton, the insured. Appellant insists that the trial court erred in dismissing his complaint because appellee pleaded its defense of no insurable interest in the form of a negative pregnant. It is true the answer is insufficient in that it states a conclusion of law instead of stating facts from which a conclusion might be drawn, but the parties treated the issue of whether appellant had an insurable interest in the life of the insured as properly and correctly pleaded. The cause was submitted and tried upon that theory. This defect in the answer cannot be taken advantage of for the first time on appeal. J. I. Porter Lbr. Co. v. Hill, 72 Ark. 62, 77 S. W. 905; Cook v. Bagnell, 78 Ark. 53, 94 S. W. 695, 8 Ann. Cas. 251. This cause was submitted upon a particular issue, so it is immaterial on appeal whether HENRY QUELLMALZ LUMBER & MFG. any answer was filed. Pembroke v. Logan, 71 Ark. 364, 74 S. W. 297; Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Ward v. Blythe, 92 Ark. 208, 122 S. W. 508.

CO. v. DAY. (No. 167.) (Supreme Court of Arkansas. Feb. 18, 1918.) 1. APPEAL AND ERROR 799-MOTION TO DISMISS APPEAL-EVIDENCE.

[3] Under the record in this case, the only Under Kirby's Dig. § 1227, providing that relationship that existed between appellant the appeal has ceased the appellee may move to where appellant's right of further prosecuting and the insured, Frank Cotton, at the time dismiss the appeal, the grounds of which motion the policy of insurance was issued, was that shall be stated in writing and verified, if not of second cousins. They did not live together. appearing on the face of the record, or by a It did not appear that appellant was depend- pellant, evidence of facts outside the record, ocwriting purporting to have been signed by apent upon the insured for support and main- curring after the rendition of the judgment, and tenance, or that the insured was indebted to showing that the further right of prosecuting him. This court is firmly committed to the sidered on a motion to dismiss the appeal. the appeal has ceased, may be received and condoctrine that a person who insures the life of 2. APPEAL AND ERROR 790(2)-DISMISSAL another, in which he has no insurable interOF APPEAL-EFFECT OF ADJUDICATION. est, cannot enforce the contract for the rea- An appeal from a judgment for plaintiff, in son that it is a wagering contract and con-ed by defendant under an attachment and sale an action of replevin, to recover lumber claimtrary to public policy. McRae v. Warmack, 98 Ark. 52, 135 S. W. 807, 33 L. R. A. (N. S.) 949; Langford v. National L. & A. Ins. Co., 116 Ark. 527, 173 S. W. 414, Ann. Cas. 1917A, 1081; Security Mutual Life Ins. Co. v. Little, 119 Ark. 498, 178 S. W. 418, L. R. A. 1917A, 475.

[4] The case of McRae v. Warmack, supra, is also authority to the effect that blood relationship of uncle and nephew is not, in itself, sufficient to show an insurable interest on the part of the one in the life of the other. So it follows that the mere fact that appellant was a second cousin to the insured will not warrant an inference that he had an insurable interest in the life of the insured.

in justice court, will be dismissed, where it appears that after the judgment appealed from was rendered the circuit court on an appeal in the report of the sale, and ordered the sale set the justice court action sustained exceptions to aside.

3. JUSTICES OF THE PEACE 86(6)-ATTACHMENT- SALE RIGHTS AND LIABILITIES OF PURCHASER.

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ment sales to be confirmed by the court, a purUnder Kirby's Dig. § 385, requiring attachchaser of attached property at such a sale in justice court became a party to the proceeding, and was bound by a subsequent order setting

aside the sale.

4. ATTACHMENT 200-SALES-NECESSITY OF CONFIRMATION.

Under Kirby's Dig. § 385, the contract of sale of property sold under attachment is not cepted by the court; and, until acceptance, complete until the bid of the purchaser is acthere can be no enforcement of the contract by either party.

5.

APPEAL AND ERROR 781(1)-DISMISSAL
OF APPEAL-MOOT QUESTIONS.

[5] It is said by appellant, however, that appellee is estopped to avail itself of the plea of "no insurable interest" because it knew that they were only cousins at the time the policy was issued. This court is committed to the doctrine that it will not enforce a wagering contract. It has announced in unmistakable terms that the courts of this state will not aid either party in enforcing a contract which is void as against public policy. Security Mutual Life Ins. Co. v. Little, 119 Ark. 498, 178 S. W. 418, L. R. A. 1917A, 475. R. H. Dudley, Judge.

The court will not decide questions, which have ceased to be an issue by reason of facts having intervened, rendering their decisions of tween the litigants, though a dismissal of the no practical application to the controversy beappeal will leave the costs of the litigation on the appellant.

Appeal from Circuit Court, Clay County;

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