Public-domain · open source
OpenJurist

113 Ark. 15

Brickey v. Continental Gin Co.

Supreme Court of Arkansas

Decided April 27, 1914

Supreme Court of Arkansas · decided 1914-04-27

Appellee was the plaintiff below, and alleged in its complaint, which was filed on October 10, 1913, that it had sold the defendants a gin outfit for the sum of $1,572, of which $524.04 had been paid in cash; the balance to be paid according to the terms of certain notes, made a part of the contract of sale, due and payable November 15, 1913, and November 15, 1914, respectively; that the defendants agreed to insure the property in ten days after its arrival in some good and…

Relies on Meyer v. Roberts · Von Berg v. Goodman · Hickey v. Thompson

Good law ✅— No negative treatment on recordhow we know

reversed · Decided 1914-04-27

How this case has been cited

Cited by 4 later decisions — most recently January 1931

4 state decisions

20191419201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Smith, J.,

¶1(after stating the facts). This suit was brought upon the theory that the notes had matured and become payable because of appellants’ failure to insure the property, as required by the contract of sale.

¶2Appellants alleged that the suit had been prematurely brought because of the subsequent agreement, by the terms of which appellee agreed to insure the property. The effect of such agreement, if valid, would be to abate the suit on the notes for the reason that it was prematurely brought. Appellees’ failure to insure the property would not make the notes due and payable, before they would otherwise become due, if they had been relieved of that obligation by a subsequent parol agreement, by which the insurance should be taken out and paid for by the gin company.

¶3We think the court erred in sustaining the demurrer to the answer. In the case of Von Berg v. Goodman, 85 Ark. 605, it was said: “No rule is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written contract.” The original contract gave appellee the right to insure the property in the event the appellants failed to do so, and to charge the costs thereof to appellants, together with interest at the rate of 8 per cent per annum.

¶4The answer presents a question of fact, and if it be true that this subsequent agreement was entered into, then this suit must abate as having been prematurely brought. Rodgers v. Wise, 106 Ark. 310; Hickey v. Thompson, 52 Ark. 234.

¶5Appellee insists that the parol agreement is void under the statute of frauds because the contract of sale was made April 25, 1913, and the last note would not fall due until November 15, 1914, and that the suit itself was begun more than a year before the maturity of the last note, and that therefore the period for which the insurance was to be carried was more than one year. But while the .contract of insurance would have continued for more than a year, the agreement to take out the insurance was one to be performed immediately, and the statute of frauds has no application. Meyer v. Roberts, 46 Ark. 80.

¶6The judgment will therefore be reversed, and the cause remanded with directions to overrule the demurrer.

/113/ark/15 · .json · Public domain