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houses at Cameron to be paid for in cash after the goods were invoiced. Indeed, defendant testifies that at that time complainant refused to go to Cameron to examine the goods, unless it was agreed he should have $20 an acre for his land and retain possession of the farm until January 1, 1901, and have the rents for 1900. The reason for retaining possession and the rents is conclusively shown, viz., that complainant's stock of hogs and cattle were on the farm and had to be cared for, and there were also unsettled accounts with complainant's tenants that he wanted to adjust out of that year's rent. There is no dispute about so much of the agreement as is above stated. There is some controversy about the terms of the oral agreement then made as to the properties at Cameron, as will be seen later. Accordingly, on the 13th of July, defendant left for Cameron, and arrived there the same day, and immediately gave directions for the store to be cleaned up, so that the plaintiff (who was expected next day) could look over it to advantage. On the next day, the 14th of July (which was on Saturday), complainant arrived at Cameron. They proceeded at once to look over and invoice the showcases and fixtures. Defendant contends that during the day, while negotiating about the Cameron properties, there was some friction, growing out of a disposition by complainant to embrace things which were not included in the oral agreement made at Springdale on the 12th of July. There were some differences in the valuations of the showcases and fixtures, natural enough between the parties. These differences were, however, adjusted; and beyond this I am unable to find that there was any other friction about the trade until defendant, at his own suggestion, prepared a memorandum in writing of what he claimed was the oral contract at Springdale, and submitted it to complainant. Parts of this memorandum agreement were objected to and stricken out. The paper was then redrafted and signed by the parties. It is as follows:

"This agreement, made and entered into between J. W. Carrell and W. H. McMurray, made this the 14th day of July, witnesseth: That the abovenamed parties agree to the following trade and conditions hereinafter named : That for and in consideration of J. W. Carrell's 486-acre farm, situated about 15 miles east of Springdale, Arkansas, which is valued at $20.00 per acre, amounting to $9,720.00, W. H. McMurray agrees to sell his store building, two frame storerooms situated back of store and stables, also the vacant property on west side of and back of the store and enclosed under barn fence, all of which is valued at $3,000.00. This does not include either of the dwelling houses nor the lots on which they are situated. It is further agreed that the goods in the store shall be furnished at invoice prices to the amount of $6,720.00, which with the above-mentioned $3,000.00 is in full payment for the 486 acres farm land. It is further agreed that said Carrell shall pay W. H. McMurray cash for the balance of goods at the rate of 80 per cent, on the invoice cost of goods. It is further understood by both parties that any goods that are damaged shall be put in at their actual value.

"J. W. Carrell.

"W. H. McMurray." This agreement I find, after a careful review of the evidence pro and con, embraces the same terms as the oral agreement (as far as it goes) made at Springdale, Ark., July 12th. Defendant at

tempts to show by his own evidence that this agreement was not the same as the agreement made at Springdale, and gave complainant advantages which the oral agreement did not. This is unimportant now; but I do not think the evidence sustains that contention, but quite the contrary. There were some details, as stated, which had to be and were adjusted at Cameron, which were not specifically adverted to in the agreement at Springdale. This was necessarily contemplated by the parties. The values of fixtures and showcases and the like could not be settled fairly by either party except after inspection, and complainant had not examined these at all, and defendant had not seen them for some time. It may be noted in this connection that, while these fixtures and show cases were not adverted to at Springdale, neither are they mentioned in the written agreement of July 14th, although it is conceded that they went with the store and were paid for by complainant. Defendant contends, further, that the barns and lots adjoining were not embraced in the agreement at Springdale. The written notes made by complainant in a small book at the time spoke of the real property at Cameron as “the storeroom and outbuildings," and they were valued at $3,000. No doubt the barn and adjoining lots were embraced in the words "outbuildings" in the Springdale agreement. At all events they are specifically embraced in the written agreement of July 14th prepared by defendant. It does not appear that there was any controversy over them. Indeed, they appear in the original draft of the agreement made by defendant himself as embracing what he understood the Springdale agreement to be. I conclude that these contentions by defendant relating to price of fixtures and barns and lots were mere afterthoughts, intended to make some moral showing for his course of procedure about the rents for 1900. In this connection it is apposite to note that in his letter of August 4, 1900, in which he reviews at considerable length the negotiation and trade, and asserts his rights, he never refers to the barns and adjacent ground. At all events, they are of no importance now, inasmuch as he voluntarily embraced them in the written agreement of July 14th, and no one can read the evidence in this case and fail to get the impression that in that trade defendant's sole purpose was to get something for all he let go.

It may be of some importance to note, contrary to the impression defendant seeks in his evidence to make, that the negotiation at Springdale went so far that complainant learned from defendant to whom he wished the deed to the lands made; for, on the same day defendant left Springdale for Cameron, complainant took his title papers to the land to his brother-in-law, Anderson Sanders, who was a merchant at Springdale, and not a lawyer, and gave him the terms of the trade, stating, among other things, to whom to make the deeds, and that Carrell was to retain the rent for 1900 and the possession of the land for that year, and instructed him to draw the deed and get his sister, plaintiff's wife, to sign and acknowledge it. This Sanders did, and held the deed for further

orders from complainant. In drawing the deed he did not reserve the rent for 1900 or the right to the possession for that year. Complainant and Sanders both say they did not think it proper to put that in the deed. They doubtless thought the oral agreement sufficient to hold possession and the rents for 1900. It thus appears that when the written memorandum agreement of July 14th, providing the terms of the sale, was signed, the deed to complainant's farm was already drawn, signed, and acknowledged, and defendant was totally ignorant of its contents. When complainant left Springdale for Cameron, he left the deed with Sanders. After the written agreement of July 14th, supra, was executed at Cameron, complainant telegraphed for Sanders' son to bring him the deed and a $3,000 draft to pay for the Cameron real estate. Sanders came on Monday at noon, and brought both deed and draft. Meantime a generous rain fell on Saturday night at Cameron, brightening the outlook for the cotton crop already suffering from drouth. The evidence discloses no controversy, or even mention, at Cameron of the rents or possession of the farm for 1900 before the contract of July 14, 1900, was signed. Up to that time the contract at Springdale stood, as to the rents and possession of the farm for 1900, as agreed upon at Springdale. But next day, after the rain on Saturday, we first hear of the rents as a matter of contention by defendant. Durwood McCarty, a witness for the complainant, and who is a cousin of defendant, testifies that he was with defendant on Sunday afternoon "And we was talking about the trade, and he told me then something about how they traded. He said they had a good rain, and the prospects of a good crop, and he didn't think it was right to turn over the store to Mr. Carrell then and not get the farm until January, and if he wouldn't agree to let him have the farm then he wouldn't make no trade on Monday, or back out; that he didn't think it was right for him to turn over the goods then and not get the farm until January. All his year's profits in the store would be from there on."

It was the very next morning, early, when McMurray himself testifies that he told Carrell he did not intend to go on with the trade. He says he did not enter into his reasons to complainant for repudiating the contract. James M. Burdick, the brother-inlaw. of defendant and his own witness, testifies that defendant told him Monday morning, before Carrell came into the store, that he believed he would not trade, and that the contention that day was over the rents. J. P. McDow, defendant's witness, also testified that early Monday morning, when he went to the store, complainant and defendant were talking over the trade. Defendant wanted to call it off, and complainant was insisting on going on under the contract. McMurray was contending for the rents. Robert Stalcup, complainant's witness, heard part of the conversation Monday morning, and states it as follows:

"Q. Now, you may begin, and in your own way tell what you heard of this conversation, and state the names of the parties who entered into the conversation and what they said. A. On Monday morning, after the trade was made on Saturday, Mr. McMurray was in the store, and Mr. Carrell came in presently, and when Mr. Carrell came in Mr. McMurray approached him,

and he said he inferred from a letter he bad received from him in Memphis that he got the rent of that farm for the year 1900, I believe it was. And Mr. Carrell says: 'No.' He says: "That wasn't the trade.' Mr. McMurray says: 'Well, we just call the deal off then.' And Mr. Carrell says: 'No; we will have it just like we had it Saturday.'”

A little later in the deposition the same witness said:

"A. Yes sir; I heard him [McMurray) say something about the rain. He said that we had had a nice rain, and something to that effect, and that he believed he wouldn't trade. He said it had rained, and he believed he would call the deal off if he could, or something like that."

W. P. Pollard, a witness for complainant, testified that on Monday morning, “I was working around there in the store and I passed behind where they were sitting on the counter- Q. (interrupting). Now, you say 'they. Give the names of the parties. A. Mr. McMurray and J. W. Carrell were sitting on the counter, and I passed around behind the counter to make a ticket on the register they use there, and make change, and I heard Mr. McMurray say to Mr. Carrell: 'As you are to keep the farm until the first of January, why not me keep the store and both turn over at the same time?' And Mr. Carrell said: 'No; we will not make a new contract. We will just go on with the old one.' And Mr. McMurray said: 'Well, if you will turn over the rent corn, why we will go ahead and invoice.' And Mr. Carrell said: 'No; we will go ahead just as the trade was made Saturday.' And that was about all I heard about it. That is all I know."

C. G. Adkins, who was the bookkeeper of McMurray, and who did the writing on Saturday for McMurray, testifies that when McMurray was dictating the terms of the sale he said:

"Q. Did he say anything about who was to get the rent for that year? A. Well, he said Mr. Carrell was to get the rent for that year, and he wanted the preference of renting it for the next year."

Complainant relates what took place Monday morning as follows:

"Q. Where did you first meet McMurray on Monday morning, after Saturday night. A. At the store. Q. You may begin at that point and state what occurred between you. A. I went to the store, as we agreed to meet and go to work Monday morning, close up and all, and he said he didn't want to go ahead with the deal unless I would throw in the rent. Q. What reply did you make? A. I told him I didn't want to do that, and that the deal would go on as we had commenced. Q. What next was said by either of you? A. He says that 'as you are to keep the farm until January,' he says, 'I ought to keep the store and we will both turn over at the same time.' I told him he ought to have thought of that sooner. He said he didn't want to go on with the deal, then, unless I would agree to one or the other."

The result of this controversy about the rents on Monday morning was a refusal of defendant to go on with the trade. Meantime the train arrived, and Sanders' son came and brought the deed and draft for $3,000. These were tendered to McMurray, and refused. Both parties went to consult attorneys; Carrell insisting that he would see if there was any law to force defendant to complete the trade. His attorneys told him to go to Adkins and get the written contract of July 14th, and when he went to get it McMurray had taken it and gone. While in the store McMurray came in and asked complainant for the deed, that he might submit it to his attorney. Up to this time McMurray did not know the contents of

the deed. His attorney, after reading the contract and the deed, advised him that the deed carried the rents, in the absence of any reservation in the deed. McMurray immediately returned to the store and ordered the store closed and the clerks to invoice the goods. Carrell's attorneys had never seen either the deed or the agreement, and gave him no advice in regard thereto. McMurray concealed from Carrell the fact that his attorney advised him that the deed would give him the corn and the right to immediate possession, but did tell him, he says, "I wanted it understood the corn crop went to me, and I didn't want any trouble over it.” And he says “Carrell replied: 'If this contract gives you the crop, you can have it; but you cannot get it, except at the end of a lawsuit.' To which he replied: ‘All right; it certainly gives it to me.' And we went to work to invoice the goods to him.” It will be observed that according to McMurray's own evidence the conversation was confined entirely to the contract. No mention was made of the deed, while it was the deed which carried the corn, and not the contract.

It is thus made clear by defendant's own evidence, with a full knowledge on his part that Carrell had never consented for him to have the corn crop or possession of the land for 1900, and he could only get it by a lawsuit, he consummated the deal, in open, flagrant violation of their oral agreement, as to the possession of the land and the rents for the year 1900, at Springdale, knowing and concealing from Carrell the fact that his attorneys had advised him that the deed, and not the agreement, carried the corn, because there was no reservation of it in the deed. This is clearly and conclusively shown by all the evidence bearing on the point, and to the entire satisfaction of the court. It is fair to assume that, up to the time when defendant submitted the July 14th agreement to his attorney, he supposed the agreement did not give him the corn, or, if he supposed he could get the corn, that it would pass by reason of the fact that it was not mentioned in the agreement, and that the agreement would exclude all the oral agreement made at Springdale on the 12th of July; but this cannot be assumed after the defendant submitted the agreement to his attorney, because he was immediately sent back by his attorney for the deed, and at that time he did not know the contents of the deed. When the deed was submitted to his attorney, then it was clear that the deed contained no reservation of the corn, and therefore passed the corn to him. He therefore not only concealed this fact from Carrell, but he misled him by saying the contract, not the deed, gave him the corn. This was not true, and he must have known it, because the attorney did not advise him until he had examined the deed. It is true that on cross-examination Mr. McMurray says:

"Q. Did you tell Carrell that you consulted with your lawyer, and the lawyer said you would get the corn? A. I don't know that I told him I bad consulted with my lawyer, and that my lawyer had told me that; but I told him I wanted to have the deed examined, and I told him this deed gave it to me. Q. You didn't tell Carrell, then, that the lawyer told you that the deed gave you the corn? A. I cannot say that I did or did not."

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