Massey v. Dixon

99 S.W. 383, 81 Ark. 337, 1907 Ark. LEXIS 420

Opinion

Wood, J.

First. The correctness of the judgment depends primarily upon whether or not the contract under which appellees claim was a completed bargain and sale or an executory contract of sale. “Both these contracts being equally legal and valid, it is obvious that, whenever a dispute arises as to the true character of an agreement, the. question is one rather of fact than of law. The agreement is just what the parties intended to malee it.”

“It is always a question of intention, gathered from all the circumstances.” Benjamin on Sales, page four and cases cited in American note, also p. 263; Chamblee v. McKenzie, 31 Ark. 162. If the written contract unequivocally manifests the intention of the parties, the court should declare its effect. But -where, as in this case, it is not clear from the instrument, taken as a whole, as to whether the parties intended a present or future sale, the court properly submitted the question to the jury for determination.

It is said in Chamblee v. McKenzie, supra, that if it clearly appears to have been the intention of the jparties that the property should be delivered and the title to have been passed, the mere fact that something remains to be done will not govern such intention.

There was no error in the instructions,' and the verdict and judgment are sustained upon principles recognized in the above and recent cases. See St. Louis, I. M. & S. Ry. Co. v. Wynne Hoop & Cooperage Co., post p. 373; Anderson-Tully Co. v. Rozelle, 68 Ark. 307.

Second. The court did not err in refusing appellant’s request for instructions one and two. These were covered by instructions given. No exceptions .are reserved an the -motion for new trial to the refusal to give requests numbered three, four and five.

Third. The question as to whether appellees were estopped by their conduct from treating the contract as an absolute bill of sale was also properly submitted to the jury in its instructions.

Judgment affirmed.