| Ark. | Jul 12, 1915
(after stating the facts). Appellant contends that there was no mutuality between the appellant and the appellee concerning the verbal executory contract for a sale of the electric light- plant; that such verbal contract was impossible of performance on account of certain conditions imposed by the appellee upon the appellant under the terms of that contract. Appellant also contends that this verbal contract was concerning the sale of real estate, and was therefore void under the statute of frauds. But these questions are not germane to this suit, for this is not a suit to enforce the alleged verbal agreement for the sale of the electric light plant, but is a suit to recover on the written contract of November 20, 1912. A similar suit was instituted 'by the appellee against the appellant once before, based upon the same contract, and found its way to this court. (Fisher v. Skinner, 112 Ark. 190" date_filed="1914-03-02" court="Ark." case_name="Fisher v. Skinner">112 Ark. 190.)
In that case we held that the suit was .not to enforce the contract for the .sale of the plant by Skinner to Fisher, but was a suit upon the subsequent agreement by which Fisher sought to recover the $500 promised him in the written contract if he would waive such rights as he had to insist upon a sale to him by Skinner of the property in question. We said: “The complaint alleges that he waived this right in consideration of the $500 promised, and the contract is not .therefore void for want of mutuality.” The contract sued on shows mutuality and the promise of appellant to appellee is based upon a sufficient consideration. The contract sued on acknowledges the obligation that appellant was under to sell to appellee the property and its recitals clearly show that appellant believed at the time that the appellee had rights under the verbal executory agreement for the sale of the property which would at.least prevent appellant from making a sale to the other parties with whom he was conducting negotiations at the time of the execution of the contract sued on. The language “if you will step out and leave me free to sell my plant” clearly shows this, and the language “which I agreed to sell you,” indicates that appellant acknowledged the binding force of the executory verbal agreement.
Even though the statute of frauds might have been interposed if an effort had been made on the part of the appellee to enforce the verbal agreement for the sale of the plant to him by the appellant, still in such case it would not be obligatory upon the appellant to plead the statute of frauds in defense. It would at least be optional with him whether ho did so or not, and his verbal contract to sell the property would at least impose upon him a moral obligation, and the appellee would at least have had the right to sue upon the contract and put the appellant to the test as to whether he would set up the defense of the statute of frauds. See Hamburg Bank and T. N. Doyle v. Ed Ahrens, C. J. Brown, et al., 118 Ark. 548" date_filed="1915-05-17" court="Ark." case_name="Hamburg Bank v. Ahrens">118 Ark. 548. Therefore, the verbal agreement gave to the appellee rights which would have warranted him in interfering with an attempted sale of the property to other parties. Appellant, as we have seen, when he signed the contract in suit, acknowledged those rights and the binding obligation he was nnder to make the sale he had verbally agreed to make, and promised to pay the $500 as a consideration for his abandoning his rights under the verbal contract, even though appellant now disputes that appellee had such rights. The contract sued on plainly shows an agreement on the part of the appellant to pay appellee the sum of $500 for whatever alleged rights the appellee had under the verbal contract, whether these rights were susceptible of enforcement or not. As we construe the contract, the above is its plain meaning.
The rule established by this court since Sykes v. Lafferry, 27 Ark. 407" date_filed="1872-06-15" court="Ark." case_name="Sykes v. Lafferry">27 Ark. 407, is that “Where a party has a valid, subsisting- claim or legal right and waives it, at the instance or request of another, such'waiver is a sufficient consideration to sustain a promise made thereon.” See, also, Snow v. Grace, 29 Ark. 131" date_filed="1874-11-15" court="Ark." case_name="Snow v. Grace">29 Ark. 131; Mason et al. v. Wilson et al., 43 Ark. 172" date_filed="1884-05-15" court="Ark." case_name="Mason v. Wilson">43 Ark. 172; Satchfield v. Laconia Levee Dist., 74 Ark. 270" date_filed="1905-02-18" court="Ark." case_name="Satchfield v. Laconia Levee District">74 Ark. 270; Fender v. Helterbrandt, 101 Ark. 335" date_filed="1911-12-18" court="Ark." case_name="Fender v. Helterbrandt">101 Ark. 335; Fisher v. Skinner, supra, and other authorities cited in appellees’ brief.
Viewing the contract in its most favorable light for appellant, it was in the nature of a settlement between him and the appellee, whereby appellant agreed to pay appellee the sum of $500 if the latter would abandon all claims that he had under the verbal contract for the sale of the property. A settlement in good faith of a controversy concerning a subject-matter about -which the parties have honestly disagreed can not be successfully impeached in a court of justice. 5 R. O. L. pp. 882, 883, and cases cited in note. By analogy, the above authorities are applicable here.
Appellant further contends that the contract in suit, viewed in its most favorable light for the appellee, gave him the right, if the sale was not consummated with the other parties, to either accept the $500, or, in the alternative, the right to purchase the plant at the price and conditions agreed upon, and that inasmuch as. the proof shows that appellant and appellee entered upon negotiations for the purchase of the property after the execution 'of the contract in suit these negotiations showed that appellee had elected to purchase the property; but we can not agree with learned counsel for appellant in his construction of the contract. As we view the contract, it granted to the appellee no altérnative rights, 'but simply the right to demand of the appellant the sum of $500 when the appellant made the sale to the parties with whom he was negotiating at the time the contract was executed. The uncontroverted evidence shows that the appellant did make this sale, and that appellee did not interfere to prevent 'him. In other words, the court was warranted in finding that appellee “stepped down and out,” and that appellant made the sale to the “parties with whom he was negotiating” at the time of the execution of the contract sued on, which facts matured appellee’s right under the contract to the $500. It will be observed that the contract giving the appellee this right was without qualification or condition, and that time was not of its essence. Under the contract, if the appellant had not made the sale then, appellee would have had the right to purchase the plant under the terms of the verbal agreement. Appellee was not put to any election, and did not waive or abandon his right to insist upon the payment of the $500 when the appellant made the sale of the property to the other parties. The negotiations between the appellant and the appellee concerning the sale of the plant between the time of the execution of the contract and the time when appellant consummated the sale to the parties with whom he was negotiating at the time the contract was executed did not constitute a waiver or abandonment upon the part of the appellee of his right to demand of appellant the $500 promised under the contract when the latter consummated the sale to the other parties.
The findings of fact and conclusions of law by the trial court were in all things correct, and its judgment is therefore affirmed.