Barr Cash & Package Carrier Co. v. Brooks-Ozan Mercantile Co.

101 S.W. 408, 82 Ark. 219, 1907 Ark. LEXIS 329

• Court: Supreme Court of Arkansas
• Decided: March 25, 1907
• Status: Published

Opinion

Wood, J.

(after stating the facts.) In Ware v. Allen, 128 U. S. 590-95 Mr. Justice Miller, in speaking for the court, said: “We are of the opinion that this evidence shows that the contract upon which this suit is brought never went into effect; that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases, well recognized in the law, by which an instrument whether delivered to a third person as an escrow, or to the obligee in it, is made to depend, as to its going into operation, upon events to occur or to be ascertained thereafter.” In Burke v. Delaney, 153 U. S. 228, it is held that: “In an action by the payee of a negotiable promissory note against the maker, evidence is admissible to show a parol agreement between the parties, made at the time of the making of the note, that it should not become operative as a note until the maker could examine the property for which it was to be given, and determine whether he would purchase it.” These cases are cited and quoted from at length in the recent case of Graham v. Remmel, 76 Ark. 140, where Chief Justice Hire, speaking for the court, announced the doctrine that where the delivery of an instrument “would defeat the real contract between the parties, then it is competent to prove by parol (1) the whole contract, and that the writing was only part of the contract, or (2) to explain the consideration, or (3) to show that it was part of the contract that the writing was delivered, but not to become operative until another part of the contract — condition precedent — was fulfilled.” The doctrine of the above cases rules the case at bar, and determines the correctness of the rulings of the trial court which appellant urges here to reverse the judgment. See also State v. Wallis, 57 Ark. 64. The proof on behalf of appellee tended to show that the contract was not to be a completed contract until certain precedent conditions in regard to the arrangement of the store had been fulfilled; and when these were consummated, appellee was to make the order for the carriers under the contract. Then, and not until then, as this testimony on behalf of appellee tended to show, was the contract to be' delivered and to take effect.

Affirm the judgment.