149 Ark. 55 | Ark. | 1921
(after stating the facts). It is first insisted by counsel for the defendant that the court erred in giving instruction No. 1, as follows:
“1. If you find from a preponderance of the evidence that the plaintiff, Mattie B. Draper, through herself or her agent, and within one year from June 30, 1915, offered to pay the plaintiff (defendant) the sum of $7,000 as the balance due on the ‘ Custer place, ’ and that the defendant refused said offer, or waived a tender of said sum, and failed to execute a deed to plaintiff to said land, your verdict will be for the plaintiff.”
The correctness of this instruction depends upon whether or not the contract between O. M. Battle and Mrs. Mattie B. Draper of the date of June 30, 1915, is ambiguous.
It will be observed that the court construed the contract and declared it valid in giving this instruction. It is well settled in this State that it is the duty of the court to construe a written contract and declaré its terms and meaning to the jury where the contract contains no words of latent ambiguity. Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, and Wilkes v. Stacy, 113 Ark. 556.
It is first insisted by counsel for the defendant that the construction is erroneous because the contract lacked mutuality. We can not agree with counsel in this contention.
In Johnson v. Wilkerson, 96 Ark. 320, the court held that the entire contract must be looked to as a whole in determining the consideration for its various obligations and the question of mutuality of the obligations. The court held further that one condition is sufficient to support several undertakings and promises.
In Kilgore Lumber Co. v. Thomas, 98 Ark. 219, the court held that mutual obligations imposed by a contract form a sufficient consideration for entering into it. See, also, Fisher v. Skinner, 112 Ark. 190.
Tested by the principles announced in those cases, it can not be said that the contract was. void for want of mutuality. By the terms of the contract O. M. Battle bound himself to hid in all the land at the foreclosure sale and that he would take care of $15,000 of the mortgage indebtedness and that Mrs. Draper should take care of the balance of it, which amounted to about $7,000.
It will be remembered that Mrs. Draper had conveyed the Smith place to O. M. Battle in December, 1912, for the consideration of $16,800, most of which was on deferred payments. The sale was subject to the mortgage of J. J. Battle. The contract further provided that, unless Mrs. Draper paid her part within twelve months, the agreement should he void, and that O. M. Battle, should own the Custer land absolutely. The contract then recites that this option is given in consideration of a large concession of the indebtedness due Mrs. Draper on the Smith place by O. M. Battle. Thus it will be seen that, if O. M. Battle had carried out the contract on his part and had bid in the. land for the amount of the, mortgage indebtedness, interest and costs, he would have had an absolute title to the Custer place, provided Mrs. Draper did not exercise her option to repurchase under the contract and Battle would have been released from the payment of the purchase money which he agreed to pay Mrs. Draper on the Smith place in excess of $15,000. He had agreed to pay $16,800. Thus it will be seen that the difference was a substantial sum and was a good consideration for the contract. The agreement on the part of Mrs. Draper to release a part of his indebtedness to her for the purchase price of the place was a sufficient consideration for his agreement to bid in the lands at the foreclosure sale. There was a benefit derived on each side from the contract, and that fills the demand of the law as to consideration. Any benefit conferred on O. M. Battle to which he was not lawfully entitled or any detriment suffered or agreed to be suffered by Mrs. Draper is a good consideration and will support the contract.
It is also urged that the last part of the contract which deals with the question of what the parties should do in case of a reasonable bid being offered and accepted by an ontside party is ¡ambiguous. We need not consider this, however, for there was no bid by any outside party exceeding the mortgage indebtedness, as contemplated by the parties. The whole tenor of the agreement shows that O. M. Battle was to bid the amount of the judgment and costs, and the clause of the contract relative to outside parties bidding refers to them bidding more than the mortgage indebtedness and costs. This is shown by the language used, because it provides that such .a sale should not change the basis of the settlement, and that the owner of the land so sold should have the ¡overplus so bid. We think the court was right in construing the contract to mean that 0. M. Battle must bid at least the amount due J. J. Battle under the foreclosure decree.
The undisputed evidence shows that 0. M. Battle did not bid in the land as he had agreed to do, and there was no error in giving the instruction.
It is true the contract was signed by the agent of the plaintiff, and that there was no writing authorizing him to do so, but that does not make any difference. The evidence shows that the agent had authority to sign the contract for his principal, and such authority was not required to be in writing. Davis v. Spann, 92 Ark. 213.
It is also true, as contended by counsel for appellant, that Captain Thomas did not show the contract to Mrs. Draper until after it was executed; but that does not make any difference. Mrs. Draper stated that he was her agent in making the contract, and this constituted him as her general agent. She stated specifically that she gave him power to act as her agent in the matter. Therefore being her general agent to make the contract, she was bound by its terms as soon as her father made it, regardless of the fact of whether he had shown it to her. or stated the terms of it to her before he signed it for her as her agent.
Again it is urged that the judgment should be reversed because the complaint alleges that if the contract had not been entered into the plaintiff conld and would have raised the necessary funds and would have saved her land from sale under the foreclosure decree. This allegation was immaterial and had no part in the case. It was not treated as material to the issues raised by the nleadings, and no evidence was introduced relative to it. The reason is apparent. The parties had entered into a contract with regard to the matter and the terms of this •contract, which, if valid and binding, fixed their rights and the measure of damages for a breach of it. We have held the contract to be a valid and binding one. and the undisputed evidence shows a breach of it by O. M. Battle. This suit was brought by Mrs. Draper against him within the period of the statute of limitations, and she had a right to maintain it.
The court correctly instructed the jury on the measure of damages. It is claimed that the verdict is excessive. That the verdict was excessive is not made one of the grounds for a new trial, and the defendant, having failed to include it in his motion for a new trial, can not for the first time raise the question on appeal. Moreover, the evidence for the plaintiff was sufficient to1 warrant the jury in returning the verdict in the amount found by it.
It follows that the judgment must be affirmed.
