Moraz v. Melton

Hart, J. (after stating the facts). The principal ground relied upon by the defendants for a reversal of the judgment is that the promise of Moraz to pay for the coal, if made, was unenforceable under the statute of frauds. In determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded; and, in determining such intention, the words of the promise, the situation of the parties, and all of the circumstances attending the transaction should be taken into consideration. Millsaps v. Nixon, 102 Ark. 435, and Black Bros. Lumber Co. v. Varner, 164 Ark. 103. The defendants base their right to a reversal of the judgment upon that part of the plaintiff’s testimony to the effect that Moraz told him that if he would let him have the oar of coal, he would see that he got paid for it. The contention is that this promise is collateral under the statute of frauds. This testimony, however, is not controlling. On reexamination the plaintiff stated that Moraz had agreed to pay for the car of coal. Again he stated that Moraz had repeatedly agreed to pay for all the coal that the plaintiff sold the corporation which Moraz represented. He said that the second car of coal was sold to the Dunkin-O’ Brien Company for $142.50, and that was the price that Moraz was to pay for it. Again the plaintiff stated that he would not have given Moraz permission to unload the second car of coal unless he had agreed to pay for 'all the coal he had sold to the corporation, and also to pay for that particular car. The court found for the plaintiff in the sum of $142, which was the price, less fifty cents, of the second car of coal. The testimony of the plaintiff, which we have just referred to, might have been considered by the circuit court trying the cause as explanatory of the first part of the testimony of the plaintiff, to the effect that Moraz told the plaintiff that, if he would let him have the second car of coal, he would see that he got paid for it. Therefore, when the testimony of the plaintiff is considered as a whole, the circuit court was legally justified in finding that Moraz had agreed to pay the plaintiff for the second ear of coal. On the' question of the attachment but little need be said. The evidence shows that the defendants were nonresidents, and that the drilling equipment belonged to Moraz. The ground for the attachment was that the defendants were nonresidents of the State and were about to ship their property out of the State, not leaving sufficient property therein to pay their creditors. No answer was ever filed by the defendants denying the existence of the ground for attachment as stated in the affidavit. The record shows that the attached property belonged to M-oraz. It follows that Dunldn was not injured by the levying of the attachment, and the effect of the judgment of the circuit court was to sustain the attachment as to Moraz. This finding was warranted under the facts as they appear in the record. It follows that the judgment must be affirmed.