Robertson v. Lain

269 S.W. 574, 168 Ark. 210, 1925 Ark. LEXIS 114

• Court: Supreme Court of Arkansas
• Decided: March 16, 1925
• Status: Published

Opinion

Hart, J.,

(after stating the facts). The decision of the chancellor on the facts was sustained by a preponderance of the evidence, and,, under the settled rules of this court, it will not be set aside upon appeal.

The defense of Lain to the suit was that the original contract, whereby he conveyed to Robertson some timber for the automobile, was rescinded. On this point Robertson denied that the contract had been rescinded, and stated that he took the car back because, on account of short crops, Lain was unable to- pay the difference between the agreed value of the car and the timber which he sold to Robertson.

On the other hand, Lain testified positively that they agreed to rescind the contract in whole, and that, pursuant to this agreement, he gaye the car hack to Robertson, and the latter agreed to give him back his timber deed. Lain said that the reason the trade was rescinded was because Robertson had refused to make certain repairs on the car which he had agreed to make.

Lain’s testimony is corroborated by that of. the automobile mechanic where the automobile was delivered by Lain to be repaired. The repairs were not made as had been agreed upon, and Robertson then took the car back, in two or three-weeks.

Another witness testified that Lain told him that he had delivered the car back to Robertson, and could not sell it to him. Robertson admitted that he had received the car, and proposed to sell it to this witness for $700. Therefore a preponderance of the evidence on this point is in favor of the defendants, and the chancery court correctly held that the parties had rescinded the contract.

The plaintiff contends, however, that the rescission, if made, was an oral one, and therefore void under the statute of frauds. Counsel for the plaintiff contends that the conveyance of timber by the timber deed -was a conveyance of an interest in the land, and that the land could not be reconveyed to Lain by Robertson by an oral contract. Hence they contend that the court erred in not finding for the plaintiff under the rule laid down in Arkmo Lumber Co. v. Cantrell, 159 Ark. 445.

This would be true if- the plaintiff had entered into the possession of the land before the oral contract of rescission had been made. In that event the contract would have been fully executed, and it ■ would- have required a deed to have reconveyed the land to' Lain.

The record showsj however, that Robertson never entered into possession of the land or took possession of the timber on it. The oral contract for a rescission was miade, and the automobile was delivered by Lain to Rob.ertson. pursuant to the contract of rescission. Because of this fact, and for the further reason that Robertson had never taken possession,of the land, Lain would be allowed to defend this suit under the principles announced in Atkinson v. Thomas, 138 Ark. 47.

It follows that the decree will be affirmed.