Tennison v. Hanson

206 S.W. 438, 136 Ark. 266, 1918 Ark. LEXIS 325

• Court: Supreme Court of Arkansas
• Decided: November 11, 1918
• Status: Published

Opinion

Wood, J.

(after stating the facts). The testimony of the appellee tends to show that up to the 25th of September, 1916, he thought that the firm of Scott Bros, was solvent. Two days before this he wrote to the firm of Scott Bros, a letter from which the jury might have found he had concluded at that time to abandon the performance of his contract on account of his inability to procure the cotton, and to pay the damages. This letter, taken in connection with the other testimony set forth in the statement, made it a question for the jury to determine as to whether or not the appellee had violated his contracts before the firm of Scott Bros, became insolvent and went into bankruptcy.

There was testimony also to warrant a finding that the firm of Scott Bros, had sustained damages by reason of the failure of appellee to comply with his contract. If appellee abandoned, and thus failed to perform his contract .at a time when the firm of Scott Bros, was able and ready to perform the contract on its part and damage thereby accrued to Scott Bros., then .the amount of. such damages was an asset of Scott Bros, which upon the filing of the petition in bankruptcy passed into the hands of the trustee and he w.as authorized to sue for the same. These contracts and the rights which had accrued under them, were owned by Scott Bros, at the time of the filing of the petition in bankruptcy, and by the filing, of such petition their rights passed to the appellant, the trustee in bankruptcy. See Petty v. Wilkins, 129 Ark. 364. See also Collier v. Hopper, 133 Ark. 599.

The testimony tended to prove that the appellee made.no tender of the cotton, nor in any way offered to perform his contract, but, on the contrary, the evidence tends to show, as above stated, that he did not intend to comply therewith. If the appellee had tendered the cotton and the firm of Scott Bros, had failed to perform its contract by paying the contract price for the cotton on account of insolvency, then such failure would have been a good defense to the present action. Roberts Cotton Oil Co. v. F. E. Morse & Co., 97 Ark. 513-522 and cases there-cited. But such are not the facts presented by this record. The court therefore erred in directing a verdict in - favor of the appellee, and for this error the judgment is reversed, and the cause remanded for a new trial.