Clinton v. Ross , 108 Ark. 442 ( 1912 )

■ Kirby,-J., •

(after stating- the facts). It is insisted that the contract is within the statute of frauds, and, by its terms, not complete, that there was no consideration, for it, and that the court erred in admitting parol testimony to supply the missing terms.

All the parties recognized that Batson had the right to sell the lumber after the payment of Ross’s debt, and that the title to it remained in Ross until the debt was paid. Ross, in fact, had no interest in the lumber beyond the amount of his claim against Batson for money and supplies furnished, to enable him to manufacture it, nor any concern as to what became of the price for which it was sold, beyond the amount of his debt, which was to be paid to him.

In conditional sales of personal property where the title is retained by the vendor, until the purchase price is paid, the vendee acquires an interest that he can sell or mortgage without the consent of the vendor, but the vendor’s right to recover the property, if the purchase price is not paid, is not prejudiced by such sale or mortgage. Sunny South Lumber Co. v. Niemeyer Lumber Co., 63 Ark. 268; Snyder v. Slatter, 92 Ark. 530; Triplett v. Mansur-Tibbetts Implement Co., 68 Ark. 230; Bank v. Collins, 66 Ark. 240.

The contract entered into between the parties here is an agreement upon the part of appellant to pay the debt owed by Batson to appellee, the amount of which is specified therein, and a recognition of his, Ross’s, right to the lumber until the payment thereof. It was not a sale by Ross of the lumber to Clinton, but an agreement on the part of Clinton to pay Batson’s debt to Ross, upon the purchase of same from Batson, the manufacturer, and satisfies the statute of frauds requiring such contract to be in writing. -And if it be conceded that the court erred in permitting the introduction of testimony to show that he agreed to pay the debt within sixty days from the date of the execution of the contract, the number of days being left blank in same, it would not prejudice appellant’s right, for he was bound'by the contract, in any event, to pay the debt within a reasonable time after the execution of the contract, which was complete upon its signature and delivery. It is unimportant that the contract was not signed by appellee, for it was made by both the others for his benefit, and signed by appellant, the party to be charged thereunder.

We do not find any prejudicial error in the record, and the judgment is affirmed.