85 Ark. 439 | Ark. | 1908
All the matters in controversy between the parties to this suit were compromised and settled by the agreement entered into November 6, 1905. The appellants performed the agreement on their part except the payment of the $47. This failure to pay the $47 did not authorize the appellee to treat the agreement as null and void, and to sue appellants as joint tort feasors for damages for the wrongs and injuries of which she complains in her complaint. Upon breach of the contract for compromise that had been partly performed by appellants, the remedy for appellee was to sue on the contract for damages for the part that remained unperformed. In Love v. Van Every, 91 Mo. 575, a case very similar in principle was decided. The court said: “The matter in controversy was compromised and settled by the written contract. That contract was partially performed by the defendant in the payment of the $212.70, the amount plaintiff claimed he had paid Adams on the ties; in the recognition and acceptance of Mathney and Crabb in plaintiff’s stead in the tie contract, and in advancing them two hundred of the five hundred dollars he had agreed to advance. This partial performance by the defendant and acceptance of its benefits by the plaintiff placed it out of the power of the plaintiff to abandon the contract and sue for the original consideration, as he attempted to do in this case. He must resort to his action for damages on the contract, if any he has sustained, for the part not performed.”
Judgment reversed and cause dismissed without prejudice to appellee’s rights under the compromise agreement.
