123 Ark. 24 | Ark. | 1916
Appellant’s assignor, the Mari-Gaunt Co. was a creditor of one J. M. Hawks and appellant instituted this action against W. D. Polk, O. E. Skinner and the Bank of 'Corning (also including said J. M. Hawks as a defendant) to recover the amount of said indebtedness which it was alleged the other defendants, as a part of the consideration for the purchase of a stock of merchandise from Hawks, agreed to pay. Hawks was engaged in the mercantile business at Corning, Arkansas, and in the early part of the year 1913, sold the business either to Polk or to Skinner or to the Bank of Coming, there being some conflict in the testimony as to which of said parties was the real purchaser. It is alleged in the complaint that the sale was to Polk and that the latter agreed with Hawks, as a part of the purchase price, to pay off all of Hawks’ indebtedness pertaining to the business, including the debt to appellant’s assignor. Each' of the defendants named above, except Hawks, filed an answer denying that there was any agreement to pay the debt of Hawks.
“'Coming, Arkansas, March 31,1913.
Received this date of C. E. Skinner, twelve thousand, two hundred fifty-eight and 86/100 dollars in full payment of my interest in the J. M. Hawks stock of merchandise, now known as J. M. Hawks & Co.
“The above payment has been applied as follows: Two thousand, six hundred twenty-one and 50/100 dollars paid to ¡bank of Corning to take up my three notes for the W. P. Barnes stock of merchandise, the receipt of which notes cancelled is hereby acknowledged, and nine thousand, six hundred thirty-seven and 36/100 dollars paid to the Bank of Corning to the credit of my account.
“(■Signed) J. M. Hawks.”
The defendants introduced no testimony, but upon their motion the court peremptorily instructed a verdict in favor of the defendants on the ground that the receipt constituted a written contract, which was the sole evidence of the agreement between the parties, and that it could not be contradicted by oral testimony. ■
Counsel for the defendants rely upon the case of Cache Valley Lumber Co. v. Culver Co., 93 Ark. 383, as sustaining the trial court’s ruling, but we are of the opinion that the doctrine of that ease does riot apply to the facts of the present one. In that case there was a written assignment and release executed by the Culver Company to the Cache Valley Lumber Company, covering “all rights, dioses in action, credits and demands” of the assignor against the assignee, and this court decided that oral testimony was not admissible to establish the fact that there was an agreement to omit from the contract a certain demand. In other words, the release in that case was held to be a contract, the terms of which could not be contradicted by oral testimony, and we entertain no doubt now of the correctness of that decision. In the present case the instrument relied on is nothing more than a receipt for the alleged consideration for the purchase of the stock of goods. It does not constitute the sole evidence of the contract between the parties as to the transaction which formed the basis of the consideration for which the money was paid. The receipt was, in other words, only prima facie evidence of its recitals and could be contradicted by other testimony. Greer v. Laws, 56 Ark. 37; J. H. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426.
No question has been raised as to the failure of appellant to make its assignor a party to the action (the cause of action being assignable under the statute). Kirby’s Digest, section 509; St. L., I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541.
The judgment is reversed as to W. D. Polk and the cause remanded for a new trial.