Kilgore Lumber Co. v. Halley

140 Ark. 448 | Ark. | 1919

HART, J.,

(after stating the facts). (1-3) The court erred in sustaining a demurrer to the complaint. The rule is that if the facts stated in the complaint, together with every reasonable inference therefrom, constitute a cause of action, the demurrer should be overruled. Cox v. Smith, 93 Ark. 371, and Sallee v. Bank of Corning, 122 Ark. 502. In the. application of this rule to the facts stated in the complaint it can not be said that no cause of action is stated. It is fairly inferable from the language of the complaint that the parties entered into a contract for the purchase and sale of the timber on 600 acres of land at a stated sum and that the plaintiff agreed to furnish an additional sum of money for the purpose of placing a mill on the timber lands. It was further agreed between the parties that the defendant should secure the indebtedness due by him to the plaintiff by a mortgage on the mill and timber. Where the terms of a contract are agreed upon orally the. same become effective, although it is further agreed that the terms of the undertaking are to be embodied subsequently in a written instrument and signed. Emerson v. Stevens Gro. Co., 95 Ark. 421; Friedman v. Schleuter, 105 Ark. 580; Sheen v. Ellis, 105 Ark. 513, and Alexander-Amberg & Co. v. Hollis, 115 Ark. 589.

(4) According to the allegations of the complaint, the plaintiff furnished the defendant an additional amount of money for the purpose of erecting a mill on the timber lands, and pursuant to the contract the defendant entered into possession of the lands and erected the mill thereon with the money furnished by the plaintiff. This constituted such performance of the contract as to take it out of the statute of frauds. Moore v. Gordon, 44 Ark. 334.

It follows that the court erred in sustaining a demurrer to the complaint and in dismissing the plaintiff’s complaint for want of equity. For that error the decree will be reversed and the cause remanded for further proceedings according to the principles of law and equity and not inconsistent with this opinion.