Kelly v. Keith

McCulloch, J., (after stating the facts.) The proof sustains the finding of the chancellor that Mary J. Kelly agreed with •appellee in writing for a valuable consideration, i.-e., the payment -of $50 commission and the extinguishment of her alleged liability to him for the difference in value between the interest she owned and that which her deed purported to convey, to purchase for him the interest of S. Thomas Miller. This was a valid and enforcible contract, founded on good consideration, and a court of equity should require the specific performance of same. This is but the application of a familiar equitable doctrine, and needs no citation of ‘authority to sustain it. McMurry v. Mobley, 39 Ark. 309; 1 Am. & Eng. Enc. Law, p. 1082, and cases cited.- It is not important to inquire whether Mrs. Kelly was in fact indebted to appellee upon the warranty in her deed conveying the one-seventh interest, or whether the- same was barred by limitation. Whether it was a valid and subsisting liability or not, its assertion by appellee and the agreement to extinguish the same was sufficient to constitute a valid consideration for Mrs. Kelly’s undertaking to purchase the remaining interest in the land for appellee. Richardson v. Comstock, 21 Ark. 69; Sykes v. Lafferry, 27 Ark. 407; Burton v. Baird, 44 Ark. 556; Mason v. Wilson, 43 Ark. 177. Appellant says further that appellee cannot claim the benefit of the purchase because he refused to pay the price asked by Miller for his interest. It is true that appellee did decline to pay $500 for the interest, but Mrs. Kelly purchased it for $350, and the correspondence does not show that $300 was the maximum price which appellee authorized her to pay. She agreed to purchase the land for him, and both fixed $300 as a fair price for it, and she assured him thfit she could purchase it from her brother at that price. When she ascertained that she could not buy it for less than $350, she should, before purchasing for herself at that price, have notified appellee, and given him an opportunity to either accept or reject that offer. Having failed to do so, she must, at his election, be held to have purchased for him in performance of her agreement. Appellant also complains that the chancellor erred in holding that appellee should not be required to pay the $50 commission in addition to the $350 purchase price paid by Mrs. Kelly to Miller. She is in no position to complain at this ruling, as the $50 were to be paid to Mrs. Mary J. Kelly as compensation for her services, and appellant was not subrogated to her right to secure it. Mary J. Kelly is the only party who can complain, and she has not appealed from the decree. We find no error in the proceedings and conclusion of the chancellor, and his decree is affirmed.