Koons v. Markle , 1910 Ark. LEXIS 490 ( 1910 )

Hart, J.,

(after stating the facts). “The only question for the consideration of the Supreme Court, upon a defendant’s appeal from a default decree duly rendered against him, is, whether the allegations of the complaint are sufficient to authorize the relief granted by the decree.” Benton v. Holliday, 44 Ark. 56; American Freehold Land & Mortgage Co. v. McManus, 68 Ark. 263.

The complaint alleges that appellant contracted and agreed to sell and convey “to appellee certain lands for a consideration of $700, which contract and agreement is evidenced and ratified by certain correspondence between the parties hereto, copies of which are attached as exhibits and asked to be made parts hereof.” Thus it will be seen that the complaint alleges that whatever contract was had between the parties was contained in the exhibits, which were made a part of the complaint and became a part' of the record. Hence the exhibits, being the alleged contract, were the foundation of the action, and, according to the well established rule in equity, will control the averments of the complaint. Beavers v. Baucum, 33 Ark. 722; Buckner v. Davis, 29 Ark. 444; American Freehold Land & Mortgage Co. v. McManus, supra.

We have not set out the exhibits, as they are somewhat voluminous. It is sufficient to say that we have carefully considered them, and that they do not show that an agreement for the sale of the land in question was entered into between the parties to the suit, but on the contrary negative the idea that such contract was made. The letters of appellee were merely offers to purchase on his part; and the letters of appellant show that he merely considered the offer, but they do not show that such offer to purchase was ever accepted by him. Therefore, the allegations of the complaint do not establish a contract between the parties for the purchase or sale of the land in question, and do not authorize the relief granted by the court.

The decree will be reversed, and the cause remanded with directions to grant appellee leave to amend his complaint so as to entitle him to the relief prayed for, if he is advised that he can do so; or in default thereof that the complaint be dismissed for want of equity.