*2 McMILLIAN, Before JOHN R. GIBSON BOWMAN, Judges. and Circuit GIBSON, JOHN R. Judge. dispute This case involves a over back Corporation rents after Montwood first six-coach, leased and then sold launched- (the loop “Roaring amusement ride Torna- do”) Springs Corpo- to the Hot Theme Park ration. Springs Montwood and Hot disa- greed price whether the sales included back rents owed on the lease. The district court,1 finding written contract evidencing ambiguous, the sale was al- president manager lowed Springs’ Hot and negotiations to describe the in the verdict, sale. After a Springs. ap- rendered for Hot peals, arguing primarily that the district court should have allowed the evidence. We affirm district court. Springs the Hot Theme Park

Corporation years for ten leased an elabo- rate amusement ride from Montwood Cor- poration. Unfortunately, Springs Hot problems, business pay- failed to make full Montwood, ments to by and June $289,000. owed nearly Since Montwood wanted out park ride amusement business, negotiated sale of the park. ride to the June On Montwood and Hot executed an releasing instrument lease, obligations certain under the Overton, 1. The Honorable William R. United Arkansas. Judge States District Eastern District of sion of the back rents in of sale of the the sales executed bill negotiated Partnership, specifically agreed a some- Ltd. to the H.S. ride Burge entity2 apparently created also Montwood. testified that nebulous he what $500,000.3 seen the purchase, had not to facilitate documents before the meeting prepared were Mont- The documents did not discuss their Thomas, vice-president, Donald L. language with Thomas they wood’s before approved by reviewed and Mont- Thomas and were executed. pur- testified that he *3 lawyers. After Montwood posefully bring in-house did not up question wood’s the $500,000, paid past the it claimed Hot was the rents at the meeting until the Springs $500,000 still owed it additional back rent. documents executed and the however, Springs, claimed that the Hot was transferred to Montwood. $500,000 price included the back rent owed. trial, At the conclusion of the special a brought origi- interrogatory posed suit on the jury:

Montwood to the “Do Springs replied that the you preponderance nal lease. Hot find a of the evi- original 10 voided that instruments dence that the contract of sale included the agreement. paragraph The crucial past payments due rent in purchase in the “Mutual Release”: Following of the ride?” its answer in affirmative, judgment was entered for Subject Springs, Hot to execution Springs. Hot appeals, arguing Montwood is can- agrees that the Lease primarily testimony that admission of the Springs hereby releases Hot celled and negotiations about the parol violated the obligations under any continuing evidence rule. Lease, agrees to make no claims payments for rental against Hot apply

under the Lease which would to I. period following the date of this re- parties agree The that the law of lease. applies diversity Arkansas in this case. In Arkansas, contract, upon in a position It has been Montwood’sconstant suit a written provision parol “requires, this of the does evidence rule that release fraud, duress, and, thus, mistake, past affect the rents owed that it absence of mutual kind, something was entitled to as a matter of or the exclusion of prior contemporaneous, all or oral or original law on the lease. The district writ court, however, vary ten evidence that would add to or denied Montwood’s motions contract, seeking parties’ integrated such for written which and allowed witnesses Ford, unambiguous.” testify Hot to the sale of the Bennett about Walt Wolfe, Burge Doyle presi- Dyer, Ark.App. ride. Paul Inc. v. 4 631 S.W.2d (1982). manager, park gives stability dent and The rule to respectively, of the contracts, sale, at the time of the that inclu- written Arkansas Rock testified & Grav- $40,000 $100,000 Burge, president plus park 2. Paul time an additional to for trans- of the at the sale, during points stated at portation. cross-examination out that at legal entity partnership trial that the was not a time of the sale it could have "obtain[ed] agreed just a name "[i]t for the entire balance of the rent pulled out of the air to make like it was it look which, effect, year owed on the ten lease partnership.” party limited [a] Neither put Appellee either would have out of business partnership the use of the on the bears However, bankruptcy.” or in as Montwood’s issues before us. deposition testimony, vice-president stated in been taken Montwood would such action 3. There was much now discussion at trial and collecting any- have had "little or no chance of price. before this court whether this was a fair thing of this under those circumstances.” None $800,000 Apparently point, at one was discussed directly specific legal on the is- evidence bears purchase price Springs, aas for the ride. Hot us, was, course, properly sues before but however, money. did not have that much There evidence, parol part once of the context of testimony it would have cost Mont- the district court determined such evidence was $300,000 $400,000 wood to take the ride admissible. else, put together down and it back somewhere Co., Ark. after become due the execution re v. Chris-T-Emulsion el Co. (1976); or, addition, payments but there lease already 536 S.W.2d language of due Springs, but re may situations where the which until the be lease, ambiguous and obliged continued to be pay. contract itself is so uncertain, McCurdy, presence of such ambiguity, parol see Blount v. evi (Ct.App. dence 469-70 is admissible. Un Shamburger Ark. 593 S.W.2d 1980), indepen- Bank, Ark.App. an ion simply silent about 650 S.W.2d dent, the transac- expressly provide fact To collateral evidences, Pfeifer, equate release of see Lane future rents does not tion which (1978), with or create a Ark. 568 S.W.2d non-release of rents. back provide excluded. To so evidence should not future rents alone is exceptions simply to remain question is whether such silent as to rents. back above, however, us. before As noted apply rule should to the case the face silence, such contractual evidence be provi- simply urges that comes admissible. See Younger v. Thom *4 controversy is clear in sion of the contract 327, Corp., as International 275 Ark. 629 por- Focusing on that unambiguous. (1982); 298 Lane, S.W.2d 568 S.W.2d releases Hot of the document which tion 215; Toombs, at v. Gallion 268 Ark. “which liability payments Springs from 597 843 (Ct.App.1980). S.W.2d period following the apply to the would release,” argues of this date Further, we note that instru surplusage,” not mere that this clause “is ment on June executed 10 contained no “[t]hus, payments those lease due and that (that is, merger clause in con clause owing specifi- are prior to the release date stating agreements tract that all been have excluded,” cally and that exclusion is such “merged” instrument, into the written is, “expressly provide[d].” There of leaving part hence not of the contract course, specific express no or exclusion of there). any not written terms While Mont- payments.4 Rather, such Montwood can in asserting wood is correct that the ab properly argue only implication that the sence of such a clause preclude prior pay- contested clause is that application parol rule, of the evidence none payable. ments were still due and theless, such absence is in deter relevant mining parties whether the to in intended that, believe, however, as a We mat tegrate agreement their entire doc into the law, implication ter the correct to be See, in ument the case. e.g., Walt language drawn contractual Ford, Inc., Bennett 631 S.W.2d at 313. so uncertain court that the district found that other evidence was needed to While Montwood cites us to numerous meaning determine the the contract. parol Arkansas cases which the evidence purpose, point applied, The release exception recites as its rule was without those reservation, blank and begin by finding without that “the cases the contract at issue unambiguous. See, desire their contractual e.g., to dissolve clear and Green relationship and does ex 263 Ferguson, under the Lease” Ark. 567 S.W.2d 89 pressly paragraph (1978); state Dyer, in the contested Miller v. Ark. upon (1968); that released Aquilino, execution Hot S.W.2d 275 Brown v. any obligations “from under continuing (Ct.App.1980). Ark. 608 S.W.2d 35 In added). distinction, (emphasis the Lease” The doc here the district court found as ument leaves this lan unclear a matter of law that such exist- ambiguity whether guage refers only payments parol would ed that evidence was admissible to Indeed, No, Thomas on cross-exami- A it Thomas] admitted this doesn’t. [Mr. at trial: Q nation mention it It doesn’t at all? * * Q anything Is there A Release No. in the Mutual past expressly that even talks about receivables that are in this case? at issue paid Montwood for the ride moments after its determination jury in aid Gilstrap See the documents of were executed meaning the contract. Jackson, accepted payment. and that Montwood S.W.2d Ark. Arkansas, common Under law of conclude that cannot We (Ct.App.1980). U.C.C., under the fact, partial payment well as Montwood itself error. this was take the contract out of will the statute of need of such evi- recognize Blackmon, Talley v. frauds. See 271 Ark. corporate records it claims dence when (Ct.App.1980); 609 S.W.2d position. its Mont- support 85-2-201(3)(c) Ark.Stat.Ann. § exclusively prepared documents wood accepted payment, Having Montwood can- now be heard to com- It will at issue. argue that not now the contract of June 10 allowed at trial evidence plain of was unenforceable.6 uncertainty ambiguity cre- dispel ated. argues Montwood next the district giving certain court erred instructions II. certain of Montwood’s re- also that even quested instructions. Its here admissible, evidence if the virtually repetition of its contentions are part fact it means that admitted regarding evidence rule and the was oral and thus viola sales contract statute of frauds which we have addressed frauds. It Thus, statute of relies wanting tion of the and found above. for exam- 1-206 of the Uniform argument on section ple, requested The conditions of that “any tending Code. Commercial instructed evidence section, however, any undertaking agree- were met the bill of show that oral *5 * * * Further, if tending any vary 10.5 even we were ment manner to sale of June instruments, fell outside the these two must find that the transaction the terms of U.C.C., wholly disregarded.” It now undisputed that Hot be it is * * * 85-1-206(1) (1961) Springs] provides: Appellee seeks to avoid [Hot 5. Ark.Stat.Ann. § application by of the statute of frauds the Except in the cases described in subsection agreement” arguing (2) that there was an "oral a contract for the sale of of this section * * * by way purchase Appellee its personal property is not enforceable the ride. bases beyond premise five thousand argument of action or defense of an "oral on the false [$5,000] remedy dollars in amount or value of underlying problem agreement.” The writing unless there is some which indicates escape Appellees the with [sic] made be- that a contract for sale has been application is the evi- of the statute frauds parties price, tween the at a defined or stated dentiary The fact is weakness of the defense. matter, reasonably subject the and identifies Appellee’s is based on the the defense signed by against party is the whom enforce- individuals, testimony no one of of four sought by agent. ment is his authorized knowledge of the facts of this whom has apply If this statute does to the sale of the during preceding it and its both transaction ride, price, the three amusement conditions — fragment- had his own Each consummation. matter, subject signature— identification and hearsay. on to some extent ed version based by the bill of sale. were met Montwood also issue. Since reply not address the The does involving Arkansas cases cites us to several sec- undisputed, a matter of law the payment Code, which tion 2-201 of the establishes a of frauds. out of the statute contract was goods. statute of frauds for the sale of It is wheth- questions district court were for the then category that the ride fell into the doubtful "goods," composite contract in er the evidence of the it was neither "moveable at the since first admissible written and oral form was the contract of the identification to time sale,” jury the justify conclusion the sufficient to (1961), 85-2-105(1) nor a Ark.Stat.Ann. § parol evi- the came to. We have found realty by "to be severed the seller.” on structure admitted, sufficien- and the 85-2-107(1). dence was should be If section 2-201 Id. § appeal cy challenged on applicable, would also have met the evidence is not the bill of sale writing except requirements peripheral established there. of a in this If Montwood the fashion. 85-2-201(1) issue, comment 1. raising & the § See id. reviewed this we have carefully, record conclude from and cannot brief, reply apparently ar- Montwood In its sufficiency lacking the evidence was so application on gues of the statute of frauds judgment that the must be reversed. evidentiary grounds: We affirm erred in court of the district that the district court. proffer- instruction because actually requesting

ing the instruction was McMILLIAN, jury Judge, dissenting. as to the court to “instruct requires a find- which Parol Evidence Rule I respectfully dissent. I would hold as documents do not evi- ing that the written matter language of law that the contained agreement complete between dence the in the June 10 Mutual Release was clear as to the terms of parties ambiguous or are unambiguous. For that I be- reason thus agreement.” testimony lieve the improperly in- argue that the Theme Park prior negotia- witnesses about exceptions to the structed as to the tions about the inclusion of the back rents given, The instruction how- evidence rule. in the sales should have been exclud- exception: ever, clearly treats ed evidence rule. I would reverse of the district court. evidence that you If believe agreement between totally to be contained not intended signed them,

the instruments but both written

rather consisted of and oral portions oral

promises, then the

agreement may just enforced appeared

though portions these contract. written CO., CHEMICAL SALES given, instructions We have reviewed the INC., Appellee, conformity find them in with the law regarding parol Arkansas evidence and the CO., DIAMOND CHEMICAL statute of we have frauds which discussed INC., Appellant. above, and cannot conclude that the district instructing jury. court erred in so finally argues CO., CHEMICAL SALES *6 allowing district court erred INC., Appellant, argue (and last) reply in closing first jury. only to the As the issue CO., DIAMOND CHEMICAL dispute point at this in the trial was INC., Appellee. whether the back rents included in $500,000 price, sales as Hot 84-2006, Nos. 84-2075. proof the burden on this . Appeals, Court of United States issue, allowed open clos Eighth Circuit. ing arguments. court’s lay decision discretion,

within its sound see Martin v. March 1985. Submitted Inc., Chesebrough-Pond’s 614 F.2d Decided (5th Cir.1980), we are certainly not prepared find it “inconsistent with sub justice.”

stantial Fed.R.Civ.P. 61. “The right

matter of a court’s allocation open go and close to the controversy long

merits of a and has subject

been the of writ error.” Moreau Oppenheim, (5th 663 F.2d

Cir.1981), denied, cert. U.S.

S.Ct. L.Ed.2d