Mann v. Urquhart , 89 Ark. 239 ( 1909 )

Wood, J.,

(after stating the facts.) In McDonough v. Williams, 77 Ark. 261, 272, this court said: “The terms of the contract of sale were evidenced by the letters and telegrams, and it was the duty of the court to construe the contract and declare its terms to- the jury.” So here the contract between appellant and Urquhart was evidenced by the letters and telegrams which passed between Miller, representing Urquhart, and appellant. These show beyond question that appellant was to have a fourth interest in the purchase from the beginning, that he .did not have the money to “go into” the transaction of the purchase from the Huennekes, and that Urquhart agreed “†^ carry,” i. e., to “advance” the money to pay for his interest. This is the ordinary meaning of the term “carry” when used in such transactions. Pickering v. Demerritt, 100 Mass. 416; Price v. Gover, 40 Md. 102; Saltus v. Genin, 3 Bos. (N. Y.) 250. The court did not err in giving that meaning to the word “carry” in the connection it was used here. Ex parte Conway, 4 Ark. 302, 367; Stevens v. State, 3 Ark. 71. See also Brown v. Spilman, 155 U. S. 670. The after transactions of transferring the one-fourth interest from Urquhart to appellant and the execution of the note by appellant to Urquhart were intended to evidence the consummation of what the parties had agreed upon when the purchase of the patent right was effected. As the oral evidence shows, these latter instruments were executed on the 7th of December and dated back to October 31, the day the purchase was made, in order to make them conform to that date. Therefore, in reality they should all be considered together, as contemporaneous writings. They were intended by the parties to be so considered. 1 Greenleaf on Ev., p. 283.

These writings, and the uncontradicted oral evidence, not in conflict, but in explanation thereof, showing the nature of the transaction from the beginning, lead to the irresistible conclusion, that the purchase of the patent right was made for Urquhart, Miller and Mann. Miller conducted the negotiations for them. The title was taken in the name of Urquhart because he advanced the money to pay for same. But, according to the understanding between Miller and Mann, before any transfer was made from the Huennekes to Urquhart, Mann was to have a fourth interest in the purchase. He was a purchaser, in other words,, from the Huennekes to the extent of a one-fourth interest, and Urquhart was to pay for this fourth interest for him. The legal effect of this was that Urquhart simply held the title of the fourth interest for Mann. We do not find that appellant himself, in his testimony, denies that he was to have a fourth interest in the purchase from the Huennekes. His version of the contract does not differ from that of Miller’s, except he contends that Urquhart was to pay for -his fourth interest in consideration of the services he should render thereafter in a sale of the patent right for the State of Missouri. He sjys that the reason for executing the note was (quoting his testimony) “that Mr. Urquhart should have some evidence of the principal, my interest in the matter, so if the patent was sold I would not come in for part of the principal it was sold for.” This evidence, we think, is in perfect 'harmony with the testimony of Miller, and does not establish a different contract from that shown by Miller’s testimony and the writings. It simply shows that Urquhart desired to get his pay for the principal, the money he had advanced for Mann, before the latter should receive any profits. The whole case is simply this: Miller and Mann were desirous of securing the patent right for the territory of Missouri to the sand lime process of making brick. Visions of wealth to be realized from this in the near future loomed before them. They entered upon the project with high hopes but no money. Urquhart, a capitalist, and the father-in-law of Miller, was induced by the latter to furnish twenty-five thousand dollars, the purchase money, and the patent right was purchased for Miller, Mann and Urquhart. The understanding was that Mann was to have a fourth interest, and that Mr. Urquhart should “.carry” him for that amount. It is doubtless true that Miller and Mann thought, when the note in suit was executed, that a sale of the territory in a short while would be effected, and that Urquhart would from this receive .his principal, the twenty-five thousand dollars, and that in this way the note of Mann would be paid. Accordingly they fixed the time for the payment of the note when they expected their dreams to be realized. The note came due, the interest was paid by Mann, and the time extended to meet, as they hoped, a sale of the patent right for the territory of the State of Missouri, arid again the note matured and the interest was paid by Mann and the time extended. The note again matured, Mann and Miller did not succeed in selling the Missouri territory, and Mann has refused to pay the note. The estate of Urquhart demands the money, and should have it. There was no error in the instruction of which appellant can complain.

Affirmed.