Fisher v. Skinner

Smith, J., (after stating the facts). Appellee insists that the demurrer was properly sustained because the complaint does not show that appellee at the time of making the alleged agreement sued on, or at any other time, was under obligation to convey to the appellant the plant therein mentioned, and that, although the complaint alleges that appellee had agreed to sell the plant to appellant, yet it does not allege that appellant had agreed to buy. In support of this position, appellee cites us to decisions of our own, and other courts, where contracts were declared void for want of mutuality. But we think the paper writing sued on, the terms of which are fully recited in the complaint, is not subject to that objection, when read in connection with the other allegations of the complaint. It is alleged “that prior to November 20, 1912, defendant (appellee) had agreed with plaintiff (appellant) to sell plaintiff a certain electric light, ice and power plant, which defendant then owned, situate in the town of Pocahontas, Arkansas,” and that defendant was at the time bound by said agreement to sell said plant to plaintiff, and that in consideration of appellee’s promise to pay the $500 he did permit appellee to negotiate and make a sale to another party. Besides, this is not a suit to enforce the contract for the sale of the plant to appellant, but is a suit upon the subsequent agreement, by which appellant seeks to recover the five hundred dollars there promised him, to waive such rights as he had to insist upon a sale to him of the property in question. The complaint alleges that he waived this right in consideration of the five hundred dollars promised, and the contract is not therefore void for want of mutuality. Appellee further contends that, although the complaint may have alleged that there was a valid and binding contract on the part of the appellee “some time prior to November 20,1912,” yet there is no allegation to show that any snch agreement was in force when the writing sued on was executed. We think this construction of the complaint is too harrow, when its allegations are considered on demurrer. The reasonable interpretation, of the allegation of the complaint, is that the contract was made prior to November 20, and was regarded as an enforceable obligation on that day, at which time it was proposed to appellant that he “step out” and leave appellee free to sell to other parties, with whom he was then negotiating. The judgment of the court dismissing the complaint will be reversed, and the cause will be remanded with directions to the court to overrule the demurrer" to the complaint.