(222 S.W.) tiff and defendant with regard to the lands. There is nothing in the testimony to establish this fact. It was a mere conclusion on his part, suggested by the question asked him. The testimony of the parties to this suit shows conclusively that no partnership existed between them. According to Pumphrey's own testimony, Furlow was to buy the land, and was to let him have a part of it at the price he paid for it. There was no agreement to hold the land, and sell it, and share the profits and losses arising from the transaction. There was no community of interest whatever between them. In order to constitute a partnership, it is necessary that there should be something more than a joint ownership of the property. There was no agreement to buy the lands for the purpose of resale, sharing equally in the expenses and profits, as was the case in Beebe v. Olentine, 97 Ark. 390, 134 S. W. 936. Hence they were not partners in fact nor in law. [2] Again, it was contended by counsel for the plaintiff that under the facts a resale trust arose in favor of the plaintiff. We cannot agree with counsel in this contention. In Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340, it was held that a resulting trust did not arise where a trustee purchased property solely upon his own credit and subsequently paid for it with trust funds. In order to constitute a resulting trust, the purchase money must be paid by another, or secured by another at the same time or previously to the purchase, and must be a part of that transaction. The trust must arise by virtue of the purchase, and, as none was created at that time, none can arise afterwards. In order to create a resulting trust in favor of one who pays the purchase money for property bought in the name of another, the payment must be contemporary with the trust, and not afterwards. Here, according to Pumphrey's own testimony, the purchase money was paid by him some time after the contract of purchase was made. Hence no resulting trust arose in his favor. [3] Finally it is insisted that Pumphrey and Furlow entered into an oral agreement whereby the latter was to buy the tract of land and let the former have a part of it at the price originally paid for it, and that this contract was executed by Furlow's purchasing the land, and at a later date entering into a written contract with Pumphrey to sell him a part of it at $25 per acre, when in truth and in fact Furlow had bought it for $15 per acre. Even if it be held that this entitled Pumphrey to an abatement of the purchase price, it cannot be said that the decree of the chancellor should be reversed; nor can it be said that the finding of the chancellor in favor of the defendant is against the preponderance of the evidence. The testimony of the parties to this suit is in direct and irreconcilable conflict. Pumphrey stated in posi222 S.W.-3 tive terms that it was understood between him and Furlow that Furlow should buy the land and let him have a part of it at the original purchase price. On the other hand, Furlow is equally positive that no such agreement was made between him and Pumphrey. He stated that Pumphrey agreed to give him as much as $25 an acre for a part of the land in order to induce him to go and make a trade for the land. He admits that he bought the land for $15 an acre, but denies in most positive terms that he agreed to let Pumphrey have a part of it at that price. According to his testimony, it was understood in advance that Pumphrey was to pay him $25 an acre for the land, and that Pumphrey actually agreed to pay that price at the time their written contract was executed. It is insisted by counsel for the plaintiff that the plaintiff's testimony is strongly corroborated by the witness A. Hall. We do not think so. In the first place, Hall admitted that he did not like Furlow, and, when his whole testimony is examined in the record, it shows that he simply answered "Yes" to direct questions propounded to him. On crossexamination he showed that he did not know much about the matter, or at least did not understand it. He admitted that the transaction had slipped his memory. Again, it is insisted that the testimony of the plaintiff is corroborated by the cashier of the bank, because he admitted that Furlow had told him that he did not want Pumphrey to know what he had paid for the land. This does not tend to corroborate the plaintiff's testimony. It may be that Furlow did not want Pumphrey to know what he gave for the land, for fear that Pumphrey would not carry out his agreement to purchase a part of it for $25 an acre. It will be remembered that their agreement in the beginning was a verbal one. Then, too, according to Pumphrey, when he paid for his part of the land, the cashier of the bank and Furlow acted as if they were drawing up a mortgage in favor of the bank for Furlow's part of the purchase money. Both the cashier of the bank and Furlow denied that anything of this kind occurred. Again, it is contended that the fact that Furlow withheld his contract from the record tended to corroborate the testimony of Pumphrey. We do not think so. There is nothing to indicate that it was withheld for that purpose. On the other hand, as soon as Pumphrey asked for the contract, it was delivered to him. The evidence of Furlow is corroborated to a certain extent by that of Davis, who bought some timber from Pumphrey on the part of the land allotted to him. Davis said that at the time he bought the timber Pumphrey told him that he did not know what Furlow had paid for the land. This tends to corroborate the testimony of Furlow. It follows that the decree will be affirmed. WOOD, J., dissents, holding with appellant | the purchase of the commodity as set forth in on the last proposition, to wit, that appellant the complaint. There was a trial of the isand appellee entered into an oral agreement sues before a jury, and the court directed whereby appellee was to buy the tract of the jury to return a verdict in favor of appelland, and let appellant have a portion of it lee, which was done, and judgment was renat the same price that appellee paid for it dered accordingly. per acre. The finding of the trial court on this issue is clearly against the preponderance of the evidence. MCCORKLE v. H. K. COCHRAN CO. (No. 17.) (Supreme Court of Arkansas. May 31, 1920.) Appellee's agent, Mr. Ownes, testified that he made the sale to appellant at the latter's place of business at Wheatley, Ark.; that appellant gave witness the order which witness reduced to writing and made a carbon copy thereof; and that appellant signed the original order, and witness delivered to appellant the carbon copy to which he subscribed the name of appellee. The original order with appellant's name signed to it was exhibited to the jury by the witness and was introduced in evidence. Appellant testified as a witness in his own behalf and denied that he signed the written order. He testi 1. Frauds, statute of 159-Peremptory instruction on conflicting evidence, error. Giving peremptory instruction for plain-fied that the order was verbal, and that it tiff in action on a contract required to be in writing is error, there being a sharp conflict in the evidence as to whether it was oral or written. 2. Evidence 410-Parol evidence admissible to add to contract, where memorandum is not signed as required by statute of frauds. A contract to sell goods, required by statute of frauds to be in writing signed by the party to be charged, rests in parol if he did not sign the memorandum of sale, and so no rule of evidence is violated by oral testimony of a term in addition to that in the writing. 3. Frauds, statute of 152(1)-Not required to be pleaded where plaintiff declares on written contract and defendant denies it. The statute of frauds need be pleaded only when plaintiff attempts to recover on an oral contract, and so not where plaintiff declares on a written contract signed by defendant, and defendant denies that he entered into a written contract. was reduced to writing by Mr. Ownes as a memorandum of the sale, and that a carbon copy was delivered to him, but that he did not sign either the original or the carbon copy. He offered to testify that it was agreed between him and Mr. Ownes as a part of the oral contract of sale that he should have the right to cancel the order at any time on or before the date of delivery, January 31, 1919, and that he directed appellee before the date of delivery to cancel the order. The court excluded this testimony from the jury and, as before stated, gave a peremptory instruction in favor of appellee. We are of the opinion that the court erred in excluding the offered testimony, as well as in giving the peremptory instruction. [1, 2] The main issue in the case was whether or not the contract was oral or written, and there was a sharp conflict in the testimony on that issue. Appellant testified positively that he did not sign the written Appeal from Circuit Court, St. Francis order. If that was true, the written memoCounty; J. M. Jackson, Judge. randum signed by appellee alone did not constitute a written contract and was within the statute of frauds. Lee v. Vaughan's Seed Store, 101 Ark. 68, 141 S. W. 496, 37 L. R. A. (N. S.) 352. Appellant not having bound himself by writing, the contract rested in parol, and no rule of evidence was violated by permitting oral testimony to be introduced establishing the additional agreement not set forth in the writing, to the effect that appellant should have the right to cancel the order before delivery. [3] The point is made by counsel for appellee that the statute of frauds was not pleaded, but the answer to that contention is that the denial in appellant's answer was as broad as the allegation in the complaint. Appellee declared upon a written contract signed by appellant, and the latter denied that he entered into a written contract. It is unnecessary to plead the statute of frauds (222 S.W.) until appellee undertakes to recover upon an oral contract. For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. LAVENDER et al. v. FINCH. (No. 6.) (Supreme Court of Arkansas. May 24, 1920.) 1. Sales 316(1)-Statutory remedy of seller cannot be enforced where property has reached purchaser for value. The statutory remedy in the nature of attachment authorized by Kirby's Dig. §§ 4966, 4967, in favor of a vendor of chattels to enforce payment of the purchase money, is not a lien, and cannot be enforced where the property has passed into the hands of a purchaser for value, though with notice before purchase that the price has not been paid. 2. Sales 328-Whether company, in whose hands timber attached, purchased through or from purchaser held for jury. In action by seller of timber, wherein defendant company brought cross-action for wrongful attachment under Kirby's Dig. §§ 4966, 4967, where there was evidence on both sides on question whether individual defendant who purchased timber from plaintiff was acting for himself or as agent for defendant company, instruction submitting issue whether company purchased timber direct from individual defendant, so that plaintiff's statutory remedy was not enforceable against defendant company, should have been given. Lee & Moore, of Clarendon, for appellants. Geo. J. Crump, of Harrison, for appellee. WOOD, J. Carl Finch executed a timber deed to M. M. Lavender conveying to him all the timber except cedar upon 320 acres of land described in the deed situated in Cleburne county, Ark. The consideration was $6,000; $1,600 cash and the balance of $4,400 to be paid in semi-monthly payments of $450 beginning from the date when the timber operations on the land were started. Lavender was to have two years from the date of the deed for cutung and removing the timber. The conveyance was subject to a lien on the timber in favor of C. L. Moore for $750. The instrument contains the following provision: "The payment of $450 semimonthly are computed on basis of manufacture of 150,000 feet of lumber per month. In the event that said M. M. Lavender should fail to manufacture said amount the monthly payments shall be reduced in proportion to the number of feet of lumber manufactured. In the event that more than 150,000 feet of lumber is manufactured monthly then in that event the semimonthly payments are to be increased in proportion to the amount so manufactured. The above conditions shall be of natural origin and not of willful neglect or negligence. "Lien is hereby retained upon the timber hereinafter mentioned to secure the residue of said above-mentioned deferred payments." The appellee instituted this action against M. M. Lavender, H. K. Wellborn, and James Walls, doing business as the Holly Grove 3. Trial 252 (19)-Where undisputed evidence negatives payment, instruction on is-Lumber Company, hereafter for convenience sue of payment properly refused. Where undisputed evidence showed timber had not been paid for by individual defendant, instruction that, if jury found timber attached in hands of corporate defendant was fully paid for by individual defendant as set forth in timber deed, plaintiff could not recover against corporate defendant, was properly refused. 4. Pleading 380-Evidence on point not in issue inadmissible. called the company. He set up the timber deed and alleged that the sum of $2,740 was due him thereunder; that the timber was sold to the company. He alleged that he had a specific lien on 100,000 feet of lumber in the possession of the company for the sum due him under the timber deed. He prayed for a specific attachment of the lumber for the balance due him. Appellant Lavender answered denying that Where there was no issue, in view of an he was a partner in the company. He alleged individual defendant's express admission, as to amount of consideration he was to pay for that the company was composed of H. K. timber purchased from plaintiff by corporate Wellborn, J. B. Wellborn, and J. A. Walls; defendant either through or from the individual that he had no interest in the company. He defendant, his testimony in explanation of admitted the execution of the timber deed, plaintiff's timber deed to him, as to how con- and denied that the company knew anything sideration of $6,000 was arrived at, was inad-about it. He alleged that they had no intermissible. Appeal from Circuit Court, Cleburne County; J. M. Shinn, Judge. est under the timber deed. Denied that the timber was purchased by him for the company. Alleged that it was purchased for himself. He denied that he was due the apAction by Carl Finch against M. M. Laven- pellee any sum, and by way of cross-action der and others, doing business as the Holly he set up that the appellee had represented Grove Lumber Company. From judgment for that there were at least 1,000,000 feet of plaintiff against defendants Lavender and the merchantable timber on the land described in company, they appeal. Judgment as to de- the timber deed; that these representations fendant Lavender affirmed, and as to defend- were designedly made to induce Lavender to ant company reversed and cause remanded. I purchase the timber; that he relied upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes them; that such representations were false and were known to be false by the appellee at the time they were made. had paid him under his contract $2,222.47, leaving a balance due him of approximately $2,937.50, including a lien on the property at Harrison, which appellee took in part payment of the purchase money. Lavender alleged that there were only 470,652 feet of merchantable timber, and that he had more than paid the price of such timber W. R. Casey testified that he was an atin accordance with the terms of the timber torney, and that he was employed by the deed. He stated that the payments required appellee to institute suit against Lavender; under the timber deed would amount to $2,- that the day before the suit was instituted 823.93 and that he had paid appellee the sum he heard the conversation between the appelof $3,097.47. He denied the allegations of ap- lee and Lavender in which Lavender admitpellee's petition for specific attachment. Al- ted that he owed appellee on the contract the leged that the 100,000 feet of lumber was the difference between the payments, a statement property of the company; that he in good of which he exhibited, and $6,000 the considfaith had sold the lumber to the company. eration named in the timber deed. He stated He prayed that the writ of attachment be dis- that he was sorry that he had not been able solved and for such other relief as he might to pay, but the timber had not turned out as be entitled to have. he had expected it to turn out. In the conversation Lavender told them that the timber was bought for the company; that he was acting merely as its agent; that he received a salary and some little commission; that was the reason that witness included the company as party defendant in the suit. Lavender said that most of the lumber attached came off of the land and belonged to the company. Upon that statement witness attached the lumber. The company answered denying that Lavender was a member of the company and denied the allegations of appellee's complaint as to it. It alleged substantially the same facts as were set forth in the separate answer of Lavender and denied the allegations of appellee's petition for specific attachment. It alleged that the lumber attached was purchased by it from Lavender and that the attachment was wrongfully issued. It set up that by reason thereof it had been damaged in the sum of $3,000, for which it prayed judgment. The appellee answered the cross-complaint of Lavender and the company and denied specifically their allegations and prayed that they be dismissed and that he have judgment as asked in his original complaint. Lavender testified that he had bought the timber from appellee as evidenced by the timber deed; that he had cut and removed all the timber from the land embraced in that deed; that there were 470,272 feet; that he had paid appellee for this timber under the contract; that he did not owe him anything but in fact had overpaid him. He denied the The appellee testified that he executed the conversation testified to by witness Casey. timber deed to Lavender; that Lavender told He stated that there was no one interested him that he was in the employ of the com- with him in the purchase of the timber from pany; that he was its agent or partner; that appellee. He denied that he had ever told he was letting the company have the timber or indicated to any one that he was the agent that was cut from appellee's timber; that the of the company. He stated that he told apcompany handled it exclusively; that in dis- pellee and Casey that he was employed on a cussing the trade Lavender asked appellee salary of $50 per month and a commission of about the amount of the timber, and appellee 50 cents per thousand to buy and handle lumtold him that it had been estimated at 1,250,- ber for them. His contract with the com000 feet. Appellee was not present when the pany was in writing. The company was in estimate was made, but that was his informa- no sense interested in the purchase of the tion. Before the trade was consummated, ap- timber from appellee. He and appellee made pellee and Lavender agreed upon the price an estimate of the timber before the deed was of the timber. Lavender went upon the land executed. Appellee stated that he was sure and made an estimate of the timber and came that there was 1,000,000 feet. Witness back and bought the timber of the appellee. thought there would be something like 1,000,Appellee did not represent to Lavender that 000 feet, and told appellee that he could the tract of land carried 1,000,000 feet of tim- afford to purchase at $6 per thousand if ber or more. Appellee was not an experi- there were 1,000,000 feet, and a contract was enced lumberman, but Lavender was. They entered upon under the assumption that there went back and forth across the land, and was 1,000,000 feet. Witness made the payLavender estimated it by the trees, and that ments as the contract provided. When the is the basis upon which he bought it. Appel- lumber was cut and brought to witness, he lee was selling the timber for $6,000 on the sold it to the company. It paid for it, and tract of land consisting of 320 acres. He sold witness paid appellee. Witness was never at it as a lump trade, and Lavender thought any time a partner in the company, in this that there was ample timber there to justify timber deal or any other matter. The comhim in buying same and paying the sum of pany did not authorize witness to buy any $6,000 for it. timber for it. Witness was only authorized (222 S.W.) not want the attachment brought against the Lavender may not have paid the appellee for company, as they did not have a thing in the the timber and even though the company had world to do with the deal; that is the reason actual notice that the purchase money had witness asked appellee and Casey not to at- not been paid by Lavender. tach. Witness did not know exactly how much they attached, but there must have been 150,000 feet. The company got the lumber and shipped it away. There was testimony corroborating the testimony of Lavender as to the amount of the timber. Toney Lewis testified that his firm, the Lewis Bros., contracted with Lavender to cut the timber on the land in controversy, and it proceeded to cut all the commercial timber on the tract; that Lavender paid for same with checks on Heber Springs bank. H. K. Wellborn testified: That the company was composed of himself, Walls, and B. G. Wellborn. That Lavender was not a The [1] The court erred in refusing to grant this prayer for instruction. Appellee asked and obtained specific attachment of the timber under the provisions of chapter 101 of Kirby's Digest. In Neal v. Cone, 76 Ark, 273, 88 S. W. 952, we held: Digest, §§ 4366, 4967, in favor of a vendor of "The statutory remedy authorized by Kirby's chattels, to enforce payment of the purchase money, is not a lien, and cannot be enforced where the property has passed into the hands of purchasers for value, even though they may have had notice before their purchase that the purchase money had not been paid." See, also, McComb v. Judsonia St. Bank, 91 Ark. 218, 120 S. W. 844. [2] The appellee caused the attachment to be issued on the theory that Lavender was a partner in the company or that he was the agent of the company to purchase the timber of the appellee. The court instructed the jury that the undisputed evidence showed that Lavender was not a partner in the company. There was testimony tending to prove that he was not the agent of the company for the purchase of the timber. There was evidence to warrant the finding, and therefore a submission of the issue to the jury as to whether or not the company purchased the timber direct from Lavender. Therefore the above prayer for instruction should have been granted. member of the firm and had never at any "We, the jury, find for the plaintiff against the defendant M. M. Lavender in the sum of $2,740 and sustain the attachment herein on the lumber." The court rendered judgment against Lavender in favor of the appellee for that sum and sustained the attachment. The court also rendered judgment against the company and its bondsmen. From that judgment is this appeal. The appellant company asked the court to Instruct the jury in substance that, if the company purchased the lumber from Lavender and paid him for the same before the issuance of the writ of attachment, their verdict should be for the company, even though The appellant company also asked the court to instruct the jury that, if they found that the timber attached was fully paid for Lavender in the manner set forth in the timber deed, the appellee could not recover as against the company. [3] As we construe the timber deed, the undisputed evidence shows that the timber had not been paid for by Lavender. Therefore there was no testimony to warrant the submission of that issue to the jury, and the court did not err in refusing to grant such prayer. The company urges that there was a conflict in some of the instructions given by the court, which we find to be the case; but we deem it unnecessary to discuss these for the reason that the court is not likely to repeat this error on rehearing. Appellant Lavender contends that by the terms of the timber deed he was to pay appellee $6 per thousand for all commercial timber except the cedar on the 320 acres of land described in the deed, and that the court erred in refusing to permit him to testify in explanation of the timber deed as to how the consideration of $6,000 was arrived at; but we do not find in the abstract of appellant where the court refused to permit testimony to this effect to be introduced by Lavender. |