838 ROGERS V. Moss. (216 ROGERS V. Moss.
4-9107 227 S. W. 2d 630
Opinion delivered March 13, 1950. 1. APPEAL AND ERROR.—Where appellee sold to his brother 40 acres of land and the brother finding himself in default in making the deferred payments agreed orally with appellee to a cancellation of the contract, the finding that the contract had been canceled by mutual consent was not against the preponderance of the evidence. 2. FRAUDS, STATUTE OF—PLEADING.—Even if the contract between appellee and his brother was for a sale of the land involved and a
ARIC1 ROGERS v. MOSS. 839 parol agreement to cancel the agreement came within the statute, appellant failed to plead it, and the statute, when relied on as a defense, must be pleaded. 3. CONTRACTS—FOR SALE OF REAL ESTATE—ASSIGNMENT OF—CONSIDERATION.—Where the contract for the purchase of the land was, after the cancellation by mutual agreement, assigned by the purchaser to appellant for which appellant paid $277.73, such payment was without consideration and he was entitled to recover that sum since appellee had sold the land to Koonce. Appeal. from. Jefferson Chancery Court ; Carleton Harris, Chancellor ; affirmed in part and reversed in part. Brockman & Brockman, for appellant. H. K. Toney, Coy M. Nixon and Sam M. Levine,. for appellee. ED. F. MCFADDIN, Justice. This case stems from a dispute between appellant, Rogers, and appellee, Koonce, as rival purchasers of a forty-acre tract (hereinafter called " the land"). The appellee, Billie Moss, a Negro, is the common source of title. FACTS In March, 1942, Billie Moss contracted fo sell the land to. his brother, Andrew Moss, for. a consideration of $450. A form .of contract was used under which An-drew Moss rented the land from Billie Moss and executed to him thne promissory notes, each for $50, due serially and annually on January 1 of each year thereafter, until all should be paid in full. The contract further provided that if the nine notes, and interest, and subsequent ac— cruing taxes be paid promptly when due, then Billie Moss would execute to Andrew Moss a warranty deed conveying the land; and that if default be made by Andrew Moss in any respect for as long as ninety days, the contract would become void and Billie Moss might repossess the premises There was no restriction against Andrew Moss assigning the contract.' All nine notes were left by Billie Moss with Mr. Russell Hollis, whom he authorized to receive the pay-
840 ROGERS V. MOSS. [216 ments and in turn pay the proceeds to a designated creditor of Billie Moss. It is conceded by all parties that Andrew Moss made the payments to and including Jan-uary, 1945, but a disputed question of fact is presented as to defaults after that date. On January 10, 1948, Andrew Moss made the following endorsement on the contract : "For and in consideration of $277.73, the within contract is assigned to F. J. Rogers this the 10th day of January, 1948. (Signed) Andrew Moss." Appellant, Rogers, ascertained from Russell Hollis that the balance due on the contract was $277.73 (the last four notes and interest arid an insurance item) ; and when Rogers paid this amount to Hollis, Andrew Moss made the above mentioned assignment, receiving no money for it. At one place in the record, Rogers indicated that he gave Andrew Moss the right to repurchase from him; and at another place Rogers stated that be gave Andrew Moss the free rent of the premises for the year 1948. At all events, the $277.73 mentioned in the assignment was paid by Rogers to Hollis and by Hollis to the previously designated creditor of Billie Moss. When Rogers demanded a deed from Billie Moss, in accordance with the contract, the latter claimed that Andrew Moss had never paid the notes due in January, 1946, and 1947; that by mutual consent Billie and Andrew had cancelled Andrew's claimed rights under the contract ; and that Billie bad repossessed the land and allowed Andrew (his 'elder and disabled brother) to remain in possession of the house as a brotherly act. Billie Moss, through a real estate b r K o im k b e e r , , who seems to have been his de-facto banker—sold the land to appellee, Koonce, by deed of April 12, 1948, and Koonce placed a tenant in possession of the land. On April 29, 1948, Rogers filed this suit, seeking to compel Billie Moss to specifically perform the Andrew Moss contract held by Rogers. Koonce and his tenant, as well as the real estate agent—Kimber—were made
ARK.] ROGERS V. MOSS. 841 defendants. The issues were joined, the evidence was beard ore tenus, and a decree was rendered, dismissing Roger 's complaint for want of equity. This appeal ensued. OPINION Appellant insists that the contrad between Billie Moss and Andrew Moss was a contract of sale, citing Friar v.-Baldridge, 91 Ark. 133, 120 S. W. 989, and other cases, many of which are listed in our recent case 6f White v. Page, ante, p. 632, 226 S. W. 2d 973 (decided Feb-ruary 13, 1950). Appellee claims that the contract between Billie Moss and _Andrew Moss was a rent contract and cites Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468, and Smith v. Carter, 213 Ark. 937, 214 S. W. 2d 64. It is unnecessary for us to decide between tbese contentions because even if the contract was one of sale (as claimed by appellant), nevertheless Andrew Moss had surrendered his rights thereunder long before his dealings with Rogers. Both Billie Moss and Andrew Moss testified that Andrew failed to make the payments due in January, 1946, and thereafter ; and that in 1946 they cancelled the contract by mutual consent, and that Billie Moss allowed • his elder and disabled brother, Andrew, to remain on tbe land as a brotherly act. The Negroes spoke of the contract as being "dead" because of the defaulted payments. Mr. Kimber 's testimony supports the contention that the contract was cancelled by mutual consent. Further, the 'fact that Billie. Moss, in 1946, listed the land with Kimber to sell, lends credence to the conclusion that Andrew Moss ' contract bad been terminated long before Rogers paid the $277.73 on January 10, 1948. So, on the facts, we cannot say that the Chancellor was in error in bold-ing—as he necessarily did—that the contract was cancelled by mutual consent. This is one of those cases where the evidence. is in tbe sharpest of dispute ; and from a reading of the entire record, we cannot say that the Chancellor 's decision is contrary to the preponderance of the evidence. See Murphy v. Osborne, 211 Ark.. 319, 200 S. W. 2d 517.
842 ROGERS V. MOSS. [216 Appellant, however, urges that the cancellation between Andrew and Billie was oral and therefore insufficient ; and in support of such contention appellant cites Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989, in which we held that a parol rescission of a contract for the sale of land was within the Statute of *Frauds. But even if the Moss contract be one for the sale of land, nevertheless it must be remembered : that this is the type of case in which the Statute of Frauds has to bc pleaded, if relied on as a defense, and it was not so pleaded by any party in the present case. The case at bar is similar in many respects to that of Williams v. Jones, 208 Ark. 303, 186 S. W. 2d 160, in which a contract for the sale of land had subsequently been rescinded by parol. Mr. Justice MCHANEY, speaking for tbis Court, said : "On the question of the right to cancel by parol agreement a prior written contract of sale and purchase of reid estate, appellants cite Carter v. Muns, 55 Ark. 73, 17 S. W. 445, and Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989. . . . Appellants did not plead the statute of frauds as an affirmative defense in their answer and we have held that it cannot be availed of unless pleaded. S.H. Kress Co. v. Moscowitz, 105 Ark. 638, 152 S. W. 298, and cases there cited. . . . We have several times held tbat a verbal rescission of a written contract is not invalid as being within the statute under certain circumstances. In Atkinson v. Thomas, 138 Ark. 47, 210 S. W. 779, it was held that such a 'rescission of .an option contract to purchase land is available in equity to repel a claim. upon that contract.' See, also, Eagle v. Pettus, 109 Ark. 310, 159 S. W. 1116; Robertson v. Lain, 168 Ark. 210, 269 S. W. 574." There is, however, one point that necessitates a reversal; and that relates to the $277.73 which Rogers paid to Hollis, and which Hollis paid to. a creditor of Billie Moss. As to the payment by Rogers, there _has been a complete failure of consideration, and be is entitled to a return of bis money. Kimber, the real estate man—and
ARK.] 843 de facto banker for Billie Moss—testified that be offered to return the money to Rogers ; but the decree makes no reference to sucb tender being made in court: Therefore, tbe decree is reversed and the cause remanded for the Chancery Court to enter judgment that Rogers, upon surrender by him of any check he may have, recover of Billie Moss and Kimber the 8277.73, without interest. In all other respects the decree is affirmed. The costs of this appeal are assessed againSt Billie Moss and Kim-ber ; the costs of the lower court are assessed against Rogers.
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