139 Ark. 390 | Ark. | 1919
Appellee instituted suit in replevin in the Logan Circuit Court, Northern District, against appellant, for the possession of a barn, placed upon appellant’s land while he occupied the premises under lease, which expired in the year 1915. Appellee alleged that the barn was built under permission to remove same .after the expiration of the lease; that his right to remove the barn had not expired ;_that he was entitled to the immediate possession of the property, but appellant was wrongfully detaining same; that the barn was of the value of $350, and that by reason of the wrongful detention of same, he was damaged in the sum of $100.
Appellant answered, denying the material allegations of the complaint and affidavit in replevin, and pleaded, by way of further defense, a written contract between them, of date December 22, 1915, under the terms of which, it was alleged, appellee’s right of removal of said barn expired before the institution of this suit.
The cause was submitted to .a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned in favor of appellee for the barn, or its value, $350, and damages in the sum of $150. A judgment was rendered in accordance with the verdict, from which, under proper proceedings, an appeal has been prosecuted to this court.
In the year 1910, or 1911, .appellee verbally leased a farm from appellant’s agent, Honea Crossno, which lease expired in the year 1915. Crossno became interested as a partner in the lease the following fall. During the term of the lease, appellee and,his partner built a barn upon the land. Appellee afterwards purchased his partner’s interest in the lease and barn. In the fall of 1915, a dispute arose between appellee and appellant which resulted in the institution of a suit by .appellee against appellant. The suit was compromised by the execution of a written rental contract, of date December 22, 1915, for the rental of the farm for the year 1916. Appellee bound himself by one of the provisions in the contract to pay appellant $775 for the use of the land for the year 1916, and the right to remove the barn from the premises within twelve months after the expiration of the lease, or by January 1, 1918. Over the objection of appellant, appellee was permitted to testify that the barn was built under contract that it should remain the personal property of himself and partner, with the right to remove it from the premises just as other personal property. An exception to the admissibility of this evidence was properly preserved. The evidence on the part of appellee also tended to show that in December, 1917, some five days before the time expired under the contract for moving the barn, appellant extended the time indefinitely to appellee for moving same. The evidence on the part of appellant tended to show that the barn was built upon the land without, any understanding that it should remain the personal property of appellee and his partner, with the right to remove it from the premises at any time; also to show that appellant never extended the time to appellee for removal beyond January 1, 1917, the time specified in the contract. Under the view of this court as to the disposition of the case, we deem it unnecessary to set out the substance of the evidence responsive to the issues collateral to the main question involved on this appeal.
• As to coming within the statute of frauds and therefore void, appellant cites section 3656 of Kirby’s Digest, which is as follows: “No contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall be binding on the parties unless, first, there be some note or memorandum, signed by the party to be charged; or, second, the purchaser shall accept a part of the goods so sold, .and actually receive the same ; or, third, shall give something in earnest to bind the bargain, or in part payment thereof. ’ ’
The oral extension of time, if granted, in which to move the barn was in no sense a ‘ ‘ sale of goods, wares and merchandise,” and, therefore, not 'included in or controlled by the terms of the statute cited.
Neither was the extension of time, if granted, in which to move the barn, void for the want of consideration. The detriment that would have resulted to appellee in the loss of his right to remove the barn, by reason of the extension of time, if not enforced, was sufficient to support the new agreement for further time in which to move it. This identical question was involved in the case of Nothwang v. Harrison, 126 Ark. 548. In upholding a contract for an extension of time to cut and remove timber from lands held under a timber lease, the court said: “An agreement as to the time or manner of the exercise of some legal right when so acted upon that the right has become valueless unless it may be enjoyed pursuant to the agreement, is a sufficient consideration to support a contract to that effect.”
For the errors indicated, the judgment is reversed and the cause remanded for a new trial.