• 930 GREGG V. ENGLAND LOAN COMPANY. [171 GREGG V. ENGLAND LOAN COMPANY. °Opinion delivered October 4, 1926. s PECIFIC PERFORMANCE—AGREEMENT TO BID.—An agreement to bid a certain amount at a foreclosure sale if the' mortgagee would foreclose is not an agreement to purchase, and hence the mortgagee could not enforce specific performance. 2. CONTRACT—CON SIDERATIO N.—Where defendants agreed tb bid a particular amount at a foreclosure sale if the mortgagee would authorize u certain attorney to institute the foreclosure proceedings, held that the employment of such attorney was not an essential part of the contract, or, if so, was sufficiently complied with by his employment, though he was subsequently discharged by the mortgagee. 3. Co NTRACTS—WAIVER OF BREACH.—In an action for breach of a contract to bid a certain amount at a foreclosure sale, provided a certain attorney should be employed to institute the proceedings, defendants will be held to have waived such provision where another attorney was substituted, and defendants offered no objection thereto, but appeared at the sale and offered a bid for a less amount than agreed.
ARK.] GREGG V. ENGLAND LOAN COMPANY. 931 Appeal from Pulaski Chancery Court ; John .. Martineau, Chancellor ; affirmed. D. K. Hawthorne, for appellant: McMillen (6 - Scott, for .appellee. Toon, J. This is an action in the chancery court by the. appellee against the appellants. The facts are stated by counsel.for appellants as follows : The England Loan & Trust Company loaned Charles E. Taylor $3,000, and, As security therefor, took notes secured by a deed of. trust on certain lots in Weil's Addition to the city of Little Rock. Default was made in payment of said notes and interest thereon, and the appellant, Gregg, entered into a contract with the appeh lee wherein he agreed that he would bid enough at the sale of the lots by foreclosure of 'the said deed' of truSt to pay the amount of the debt due thereunder, including improvement taxes, State and county taxes, interest, arid costs, provided the appellee would authorize D. K. Hawthorne to foreclose .the deed of trust, and he agreed to pay D. K. Hawthorne such fee as he might charge for the foreclosure proceedings. Appellant . Harrington guaranteed the performance Of this contract. Pursuant to this agreement, the appellee authorized D. K. Hawthorne to bring suit to foreclose the deed of trust on the, property, and he brought the suit. The appellee became dissatisfied with the progress , of the suit, .and requested Harrington to authorize the substitution of Andrew Scott for D. K. Hawthorne. Harrington agreed. to this, provided it was satisfactory to Gregg. .The England Loan & Trust Company, then authorized A. H. Scott to bring , suit to foreclose the mortgage, arid he brought the suit after _ suit had already been filed by D. K. Hawthorne. , Decree was rendered in the second suit, and the property was advertised for sale. Appellant Gregg saw , , the advertisement of the -sale the day before the sale was to take place, and called his aftorney's attention to it. After investigation it was discovered by Mr. Gregg that Scott & McMillen had brought a second suit to ' foreclose the deed of trust given by Taylor to the England Loan &
932 GREGG V. ENGLAND LOAN COMPANY. [171 Trust Company, and that a decree had been rendered thereunder, and the sale adyertised to take Place the next day. At this sale the property was struck off to Frank B. Gregg, but, on account of some differenee between him and W. E. Harrington, he declined to take the property. Inasinueh aS Mrs. Frank B. 'Gregg had not been made a party to ,the original complaint, a . suppleinental coMplaint was filed, making her a party, arid in due 'course Of time a decree. Was taken authorizing the foreclosUre -of *the • mortgage, and, at the sale . under this , second decree, the* England Loan & , Trust Cornpany,. now the England LOan Company, bid the sum of $3,050, and ihere was . then due the , England . Loan Conipany the sum . of $3;890.08. • At A later time the Englara Loan Company sued,. W. E. Harrington and Frank B. Gregg, alleging a COD-tract with Frank B. Gregg,- guaranteed by,, W., E. Harrington, in•which 'Gregg agreed to bid enough . at the., sale of the 'property *to - protect the England L:oan Coinpany -from' loss, and alleging that the loan company purchased. the property-at the sale and -tendered •a to the apPellants; and asked that they- be required•to :. accept it and pay the -Sum of $5,813.92. -• • •-• • The appellants agreed to bid enOUgh at . the sale 'of the, property: under 'foreclosure proceedings . to proteet the appellee, provided p. K. HawthOrne Was 'authorized' to bring the . foreclosure . prnceedings . . , : After theSe fore: clostire . proceedings Were ' brought : by. him, -the , 'aPPellee talked With ' Harrington and obtained his consent,to,'Snb-• stitution of attorneys, proVided . it, Was agreeable .to Gregg. 4r. Gregg, however, ' was :never consulted about; the sUbstitution, : and 'knew nothing' of it Until the 'daY befOre the . :sale ; of the property under the foreClOSure proceedings 'brought hy. Scott & Default had.' been made under . the terms of the deed of • trust &edited' . by ,charles E. Taylor to . tbe England Loan & Truk' Conipany, at the time Q-regg wrote the letter to if . ..pro- ': posing „ to bid at the sale 'of the , property, if foreclOsure proceedings were brought by D. K. Hawthorne.
ARK ] GREGG V. ENGLAND LOAN COMPANY. 933 A stipulation in the record shows that the difference between the amount due the appellee by Charles E. Taylor and others on September 28, 1923, the date of the last sale of the property, and the amount bid by appellant Gregg at that sale, together with the attorney's fee of $150,_ amounted to the sum of $990.08. The - trial court entered a decree for that sum, from which is . thi§ appeal. 1. The undisputed testimony shows that there •Was no agreenient 'upon the part of the appellants to purdhase the property. The agreement, as shown by the letter of - Gregg, was that he would bid enough at the sale of the - lots by foreclosure of the truSt deed to pay the amount - of the debt due the appellee thereunder by Taylor and others, including improvement, State and county taxes, - interest, costs and attorney's fee, provided the appellee wbuld authOrize D. K. Hawthorne to foteclose the deed. of trust. Under this agreement the appellants could not be reqUired to imrchase the property, and therefore the • court correctly held that the appellee was not entitled to specific performance. The appellants, however, contend that they are not liable because the appellee violated the contract in substituting the attorney Andrew H. Scott for D. K. Hawthorne, and in authorizing the foreclosure proceedings, after such substitution, to be conducted by the firm of Scott & McMillen instead of D. K. Hawthorne, as the contract contemplated. We are convinced that the appellee did not violate • its contract in the substitution of attorney Scott for attorney Hawthorne. This substitution was made on the . authority of Harrington, as shown by the testimony of ' the appellant, Gregg. While Gregg was not informed of,: this. substitution untillhe day before the sale, neverthe- '- less he knew that the substitution had been made,• and he did not on that account refuse to bid on the property,• but, on the contrary, did bid for himself and asSociates the sum of $3,000. This change of attorney§ was not a :material alteration of the contract. The consideration.of the contract moving-from the appellee to the appellant
934 GREGG V. ENGLAND LOAN COMPANY. [171 Gregg was the institution of the suit for foreclosure. That was the real purpose and the real consideration for the agreement. That was carried out On the part Of the appellee. The testimony of Gregg showed that it was the agreement between . him and Harrington that they were to obtain ihe lots and divide thena, but they didn't get together on the deal and didn't complete the purchase of the lots because of this failure to agree upon a division after the sale. Although the letter specified that the suit of foreclosure was to be instituted by D. K. Hawthorne and that the appellant Gregg was to pay his fee, this did not - constitute Hawthorne the attorney of appellant Gregg. On the contrary, he was employed to institute the action for the appellee, and was the appellee's attorney, and appellee had the right to control the litigation and • to discharge its attorney if he was not satisfactory to it, and to substitute another in his stead. The appelleb complied with its contract in employing Hawthorne to institute the first action for foreclosure, and did not violate its contract in sulbstituting another attorney to conduct the litigation when it deemed it advisable to do so. It is apparent that the naming of Hawthorne as the attorney to institute the action for foreclosure in appellant Gregg's letter was a mere incident and not the consideration, or, at least, not a material part of the consideration for the contract. It occurs to us that the appellee had the right to assume, upon obtaining Harrington's consent to the change, that there would be no objection upon the part of the appellants because there was a change and substitution of attorney Scott for attorney _Hawthorne. We are persuaded that there was no breach of contract on the part of the appellee, ;because the real object which the parties had in mind, and the real consideration therefor, as we have stated, was the foreclosure, which was had. 2. But, if we are mistaken in this, unque'stionably the conduct of Gregg, after he learned of the substitution, in not making any protest or objection to the appellee on that account, and in not giving the appellee an oppor-.
ARK.] 935 . . tunity, as . plaintiff in the foreclosure, to hold up _the sale and to dismiss the action to foreclose, and in his appearance at the sale and bidding the amount he agreed to bid, and the express authoiity given by Harrington to substitute attorney Scott for attorney Hawthorne, all clearly constitute a waiver on the part of the appellants of any violation of the contract on the part of the appel-lee, if any, in the substitution of one attorney for another. See Grayson-McLeod Lbr. Co. v. Scott, 102 Ark. 79.. The decree is in allthings correct, and it is therefore affirmed.
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