138 Ark. 105 | Ark. | 1919
(after stating the facts). The contract sued on herein is very similar in much of its language to the contract sued on and set forth in Clark v. J. R. Watkins Medical Co., 115 Ark. 166 (170-174). But it also differs in some very material respects from the language of that contract, and there is eliminated from the contract in the instant case the language which rendered the contract ambiguous in the case of Clark v. J. R. Watkins Medical Co., supra. Moreover, other language contained in the contract, here in suit, which was not in the contract in the above case, served to differentiate that case from the one at bar, and renders the contract in the present case free from ambiguity.
The court, therefore, erred in not construing the contract as one which created the relation of vendor and vendee. There is no language in the contract which would warrant the court in submitting this as an issue of fact to the jury. The contract being one which in plain terms created the relation of vendor and vendee, the court should have so declared as a matter of law. The case is ruled on this point by the cases of W. T. Rawleigh Medical Co. v. Holcomb, 126 Ark. 597, and Lange Medical Co. v. Johnson, 131 Ark. 15.
Nor do we find that the allegations of the answer are sufficient to justify the conclusion that the parties to the contract, by their conduct, had abandoned the same, and entered upon a new and different contract which would relieve the appellee and his sureties from liability on the contract sued on.
It follows that the court erred upon the pleadings in not granting appellant’s prayer for a directed verdict in its favor.
The judgment is, therefore, reversed and judgment will be entered here for the appellant in the sum of $731.26, as prayed for in its complaint.
