| Ark. | Mar 3, 1919
(after stating the facts). The record shows that the lands in controversy were purchased from H. L. Hunter for the sum of $4,200, of which R. Gr. Atkinson paid $4,000, and the remaining $200 was paid either by J. L. Thomas for himself and brother or by Mrs. Yirgie Thomas. Atkinson took possession of the lands and has held them ever since. It is the contention of the plaintiff that she signed the contract on her own account; that her husband, J. L. Thomas, had no interest in the lands; that she never authorized him to dispose of her interest therein when he sold to his brothers all his interest in the business conducted by them; and that he did not do so.
On the other hand, it is the contention of the defendant, Atkinson, that he made the contract with J. L. Thomas for the benefit of himself and brothers and that J. L. Thomas signed his wife’s name thereto because he was transacting all his business in her name. In determining whether the contract in question was the independent contract of Mrs. Yirgie Thomas, or whether her name was signed thereto for the benefit of her husband and in consequence, it was his contract, we must not only consider the testimony directly bearing on this phase of the case; but, also, all the testimony relating to the conduct of the parties antecedent to and following the signing of the contract which would tend to show the real character of the transaction and who was the real party in interest.
On the one hand, J. L. Thomas testified that his wife, Mrs. Virgie Thomas, executed the contract for herself and that he had no interest in it. His wife corroborated his testimony and testified that she furnished the two hundred dollars that went to pay for the land over and above the four thousand furnished by the defendant, Atkinson. She testified that she earned the $200 by thq sale of butter, milk and chickens, and kept a few boarders. She made this general statement but did not enter into any particulars about how much she made, or to what extent she was conducting a separate business. She does not show that she had any bank account of her own and the testimony of her husband shows that he kept his own bank account in her name and that it was subject to his check.
On the other hand it is admitted that the defendant, Atkinson, paid $4,000 of the purchase price of the lands to Hunter and that he did this as an accommodation to J. L. and T. A. Thomas. The intention at the time was that they should have an option to purchase the land under the terms mentioned in the contract which is the basis of this suit and Atkinson only furnished the money as an accommodation to them. Atkinson testified in positive terms that he made the contract with J. L. Thomas and that his wife’s name was signed thereto because J. L. Thomas carried on all his business in her name; that Thomas so explained the transaction to him at the time. T. A. Thomas was the one who first thought of purchasing the lands and said that they were to be purchased for the benefit of their business, which was that of furnishing supplies to plantations. He said that it was thoroughly understood that the lands were to be purchased for his brother J. L. Thomas and himself and that J. L. Thomas so admitted to him after the contract had been made and explained that it was made in his wife’s name because he transacted all his business in her name. He further testified that the $200 was taken out of their business and applied toward the purchase price of the lands.
The undisputed evidence shows that J. L. Thomas transacted all his business in his wife’s name. J. L. Thomas himself admitted this to be true. It is not claimed that Mrs. Virgie Thomas ever entered into any other business transaction of her own. All the witnesses say they have known her for quite a number of years and that she had no independent estate or business of her own. She herself does not claim any except what she might have made off of her cows and chickens and does not even pretend to state how much this was. So it may be said that the undisputed evidence shows that J. L. Thomas had conducted all his business in his wife’s name for a period of several years before the execution of the contract in question and that during all this time his wife never engaged in any business transaction whatever, nor did she ever interest herself in her husband’s business affairs. These circumstances shed light upon the transaction in question and tend to show its true character.
In addition, the record shows that Atkinson furnished the money for the purchase of the land in question as an accommodation to J. L. and T. A. Thomas. He did not expect at the time that there would be any considerable rise in the value of land and expected them to pay him his money back and take a conveyance of the land to themselves. He knew that they had means with which to purchase the land and that Mrs. Thomas did not have any means whatever. These facts in addition to those already related tend strongly to show that the contract was made with J. L. Thomas and that the use of the name of Mrs. Virgie Thomas in signing the contract was merely a cloak, or at least, was the use by J. L. Thomas of the trade name by which for years he had carried on his business, and it is immaterial whether he or she actually affixed her signature to the contract.
When all the facts and circumstances preceding and following the execution of the contract are read in the light of the evidence relating to the execution of the contract, we are of the opinion that the clear preponderance of the evidence shows that the contract was made by J. L. Thomas and not by Mrs. Virgie Thomas.
It is next contended that a clear preponderance of the evidence shows that the option contract was annulled or rescinded by the act of the parties and that the $200 was restored to J. L. Thomas. We agree with counsel in this contention. It is true Mrs. Virgie Thomas testified that she did not give J. L. Thomas any authority to rescind the contract; but if we are correct in holding that she was not a party in interest to the contract, it would not be necessary for him to have permission from her. J. L. Thomas admits getting $200 over and above the $8,000 which was to be paid for his share in the business and that the $200 was paid him on account of a real estate transaction; but he says that it was on account of another real estate transaction which he describes. The record shows, however, that this tract of land had been sold prior to the time he sold out his interest in the business and that the proceeds had gone into the business. The cashier of the hank who drew the check in favor of J. L. Thomas for the $8,000 states that the $200 was paid him for his interest in a land contract. T. A. Thomas and Atkinson both testified that the contract was the one involved in controversy in this case. This land was situated near to the store and would be considered a considerable asset in the business. Atkinson was furnishing the money with which to buy out the interest of J. L. Thomas. He knew that Mrs. Thomas did not have any independent means of her own and that the object of buying the lands in controversy was to use them in connection with the business. The parties did not at that time anticipate any considerable rise in the price of real estate. It is conceded that Mrs. Thomas would have had to borrow the money with which to pay for it when she exercised an option to purchase it.
When all these facts and circumstances are read and considered in the light of each other, we are of the opinion that a clear preponderance of the evidence shows that the $200 was paid J. L. Thomas for the purpose of annulling and rescinding the contract which is the basis of this suit.
Again it is sought to uphold the decree upon the plea of the statute of frauds. It is claimed that the admission of oral evidence to show a rescission of the contract would be in contravention of the statute of frauds. J. L. Thomas did not go into possession of the lands. He was paid back the $200 which he had paid out under the contract and as we have already seen, a preponderance of the evidence shows that this was for the purpose of rescinding the contract. It is firmly established that a parol discharge of a written contract within the statute of frauds is available in equity to repel a claim upon that contract. Brown on Statute of Frauds, (5 ed.), sec. 433; Wood on Statute of Frauds, sec. 403; Phelps v. Seely, 22 Grat. (Va.) 573; Marsh v. Bellew, 45 Wis. 36" date_filed="1878-08-15" court="Wis." case_name="Marsh v. Bellew">45 Wis. 36; Jones v. Booth, 38 Ohio St. 405; Miller v. Pierce, 104 N.C. 389" date_filed="1889-09-05" court="N.C." case_name="Miller v. . Pierce">104 N. C. 389, and Arrington v. Porter, 47 Ala. 714" date_filed="1872-01-15" court="Ala." case_name="Arrington v. Porter">47 Ala. 714. It follows that the decree must be reversed and the cause will be remanded with directions to tbe chancellor to dismiss the complaint for want of equity.