Brickey v. Continental Gin Co.

Smith, J., (after stating the facts). This suit was brought upon the theory that the notes had matured and become payable because of appellants’ failure to insure the property, as required by the contract of sale. Appellants alleged that the suit had been prematurely brought because of the subsequent agreement, by the terms of which appellee agreed to insure the property. The effect of such agreement, if valid, would be to abate the suit on the notes for the reason that it was prematurely brought. Appellees’ failure to insure the property would not make the notes due and payable, before they would otherwise become due, if they had been relieved of that obligation by a subsequent parol agreement, by which the insurance should be taken out and paid for by the gin company. We think the court erred in sustaining the demurrer to the answer. In the case of Von Berg v. Goodman, 85 Ark. 605, it was said: “No rule is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written contract.” The original contract gave appellee the right to insure the property in the event the appellants failed to do so, and to charge the costs thereof to appellants, together with interest at the rate of 8 per cent per annum. The answer presents a question of fact, and if it be true that this subsequent agreement was entered into, then this suit must abate as having been prematurely brought. Rodgers v. Wise, 106 Ark. 310; Hickey v. Thompson, 52 Ark. 234. Appellee insists that the parol agreement is void under the statute of frauds because the contract of sale was made April 25, 1913, and the last note would not fall due until November 15, 1914, and that the suit itself was begun more than a year before the maturity of the last note, and that therefore the period for which the insurance was to be carried was more than one year. But while the .contract of insurance would have continued for more than a year, the agreement to take out the insurance was one to be performed immediately, and the statute of frauds has no application. Meyer v. Roberts, 46 Ark. 80. The judgment will therefore be reversed, and the cause remanded with directions to overrule the demurrer.