51 Ark. 333 | Ark. | 1888
One McMillan was the owner of certain lots in Greenwood in Sebastian county and was indebted to Little & Gaines. They agreed to sell the lots for him and appropriate the purchase money to the payment of his indebtedness to them; and sold to McConnell. McConnell paid all the purchase money except one hundred dollars, and Little & Gaines agreed to procure from McMillan a deed to McConnell for the lots. McConnell took possession and Little & Gaines procured a deed from McMillan to McConnell and delivered it to him, and he received it without objection. The one hundred dollars were to be paid several months after the • deed was delivered. On an examination of the deed, made sometime after its delivery, McConnell discovered that it did not convey the lots he had purchased or any part of either ■of them. When Little & Gaines demanded the one hundred dollars he refused to pay it until they conveyed or caused to be conveyed to him the lots he had purchased. They failed to do so, but sued him before a justice of the peace and recovered judgment and he appealed to the circuit court. In the circuit court he filed an amended answer, saying that the lots had not been conveyed according to agreement and that he had always been ready and willing to pay the one hundred dollars when they were conveyed to him by a deed containing covenants of warranty; and deposited in court the ■one hundred dollars and demanded a deed to the lots. They again recovered judgment and he appealed.
Appellees undertook to procure the conveyance of the lots to appellant before the payment of the one hundred dollars was to be made. The conveyance was a condition precedent to the payment of the money. There was no evidence that appellant accepted the property described in the deed in lieu of the lots. The consequence is, appellees are not entitled to recover the one hundred dollars until they cause the lots to be conveyed according to their agreement. 1 Wharton on Contracts, sec. 581; 2 Parsons on Contracts, (5th ed.) pp., 528, 675-677; Atkinson v. Hudson, 44 Ark., 196; Rudd v. Savelli, Ib., 150; Price v. Sanders, 39 Ark., 306. If they will do so during the pendency of this cause, they will be entitled to the one hundred dollars deposited in court.
Reversed and remanded for a new trial.
