dissenting. I respectfully dissent from the majority’s holding that the trial court was not in error in refusing to direct a verdict in favor of appellant with regard to the issue of whether the thirty-day binder was orally modified to be extended beyond thirty days. The majority found that the Rowe Agency could exercise the authority to orally extend the binder as a matter of law in this case. I disagree. Despite whether Ms. Spears was a general agent or a soliciting agent, there is no proof in the record to show that either Ms. Spears or appellee ever discussed the binder in question let alone orally modified the binder.
A contract may be modified, but it is essential that both parties agree to the modification and its terms. Moss v. Allstate Ins. Co., 29 Ark. App. 33, 776 S.W.2d 831 (1989). Also, an oral modification of a written contract must be established by clear and convincing evidence. City Nat’l Bank of Fort Smith v. First Nat’l Bank and Trust Co. of Rogers, 22 Ark. App. 5, 732 S.W.2d 489 (1987).
In this case, there was no evidence in the record that appellee ever discussed the binder with Ms. Spears, the insurance agent for the Rowe Agency. To the contrary, appellee testified that Ms. Spears did not tell him anything about a binder nor mention the word binder to him. He stated that no one ever told him that the binder or application would go beyond thirty days. The only testimony from appellee concerning the length of his coverage was his statement that he thought he had coverage for a year. Ms. Spears testified that she never told appellee that he had insurance beyond thirty days as stated in the binder. Based on the facts in this case, it is clear that both parties did not agree to a modification of the binder. Also, the evidence is not clear and convincing that an oral modification took place. Quite the opposite, the evidence establishes that the binder was never discussed by Ms. Spears or appellee. After reviewing the record, despite the fact whether Ms. Spears was a general agent or soliciting agent, there is no evidence that an oral modification took place in this case or that both parties agreed to modify the binder.
Pittman and Robbins, JJ., join.