Murrey v. Little Rock Chamber of Commerce

HART, J., (after stating the facts). The contract which was made an exhibit to the complaint is the foundation of the suit. It was executed on the first day of January, 1913, and recites the execution of a prior contract between the Little Rock Chamber of Commerce and T. P. Murrey entered into on the 29th day of January, 1912. The contract of that date which is recited in the contract sued on is in all essential respects similar to the contract which was sustained in the case of Byington v. Little Rock Chamber of Commerce, 132 Ark. 361, and reference is made to the opinion in that case for a copy of it. The original contract contained a provision that the purchase of the property is made by the subscriber upon the condition that the Little Rock Chamber of Commerce makes a sale, of the property acquired by it for industrial and development purposes to the aggregate amount of $200,000. It is insisted by counsel for the defendant that the complaint is defective because it does not allege that this condition has been complied with by the plaintiff. The contract sued on recites that in fulfillment of the contract of subscription, the Little Rock Chamber of Commerce has sold to T. P. Murrey the property described in the complaint for the price of $250. It also recites that the Little Eock Chamber of Commerce has had the real property acquired by it for industrial and development purposes appraised by a committee appointed for that purpose pursuant to the terms of the subscription contract and that T. P. Murrey has selected the property appraised at the amount of his subscription. Thus it will be seen that the contract sued on goes further than the contract involved in the case of Byington v. Little Rock Chamber of Commerce, supra. The contract sued on contains a provision in which the Little Eock Chamber of Commerce bargains and sells to Murrey certain specific real estate for a designated price. This contract is complete in itself and is sufficiently definite and certain to sustain the present action if no reference had been made to the original subscription contract. When the whole contract is considered, however, it shows that the parties recognized that the contract sued on was executed pursuant to the provisions of the original subscription contract. This is a suit in equity, and the contract which is made an exhibit to the complaint is the foundation of the action. Under our rules of practice, the exhibit will control averments of the complaint and the nature of the cause of action. Swift v. Erwin, 104 Ark. 459, and cases cited; Cox v. Smith, 99 Ark. 218, and McMillan v. Morgan, 90 Ark. 190. The contract contained an acceleration clause providing that upon default of any installment the whole debt should become due. The complaint contains an allegation that the whole debt had become due and that the defendant had neglected and refused to pay the same. In other words, according to the allegations of the complaint the defendant had wholly failed to perform and carry out the contract which he had entered into with the plaintiff. Upon his demurrer to the complaint being overruled, he declined to plead further and the court properly entered a decree in favor of the plaintiff. The decree will be affirmed.