dissenting. I do not agree that a question of fact is presented in this litigation. The option agreement is composed of 13 sections, and to my mind, a reading of this instrument makes clear that its provisions .are almost entirely for the benefit of the optionee (Walton), and the only portion that is pointed out by appellant as supporting its argument (that there is a fact question) is found in Section 9, which provides that appellant agrees that it will, at its own expense, undertake to:
“(a) Obtain from the Housing Authority of the City of Little Bock such permissions, consents and approvals, in written form satisfactory to optionee, as might be required to enable1 Optionors to consummate this transaction and to assign and convey to Optionee. Said instruments shall assure, to Optionee’s satisfaction, that the lands conveyed may be used by him for the construction and operation of a motel, motor inn, motor hotel or other similar facility and such other businesses as are usually conducted in connection with such facilities. ’ ’
Appellant asserts that the italicized word means that it had to obtain permission from the Housing Authority before the transaction could be consummated; however, Subsection (c) provides that, if appellant fails to obtain permissions, approvals, and consents, optionee shall have the right, at his option, to take such steps as he may deem necessary to obtain same, and Section 10 sets out that, if the company is unable to obtain all consents, approvals, permissions, etc., and is unable to convey title in accordance with the terms of the contract, “then optionee shall have the right to terminate this contract of sale upon written notice of optionors * * In other words, it is up to Walton as to whether he still desires to purchase the property, even though the company is unable to secure the Housing Authority authorization.
Perhaps, if the option agreement and the affidavit of Bettis were the only evidence offered, it could be said that the provision emphasized hy appellant as creating a fact question (“as might be required to enable optionors to consummate this transaction”), is ambiguous, but a subsequent event, in my opinion, resolved this question. This event was the filing of a complaint by Walton on February 8, 1966, against appellant and Christian Foundation Life Insurance Company, wherein Walton, relying on Ms option agreement of March 23, sought specific performance against the defendants asserting, inter alia:
“Plaintiff has at all times been ready, willing and able to comply with his obligations under the contract between the parties; has expressed his readiness, willingness and .ability to the defendants; and has demanded that they comply with said contract and execute and deliver to him a conveyance of the property described above in accordance with the contract. Despite such demands, Defendants have failed and refused to comply with said contract and have breached same by refusing and continuing to refuse to convey said property to Plaintiff.”
Appellant answered, and for its defense, first alleged that Walton had not complied with the provisions of the option in that he had not exercised same within the time period allowed by that instrument. It was further asserted, inter alia, that the property was inadequate for the construction of Walton’s proposed improvements, and he had advised that he would not proceed unless the defendants agreed to sell him an additional tract of land not included in the option agreement. It was then asserted that the companies had written Walton, returning his $5,000.00; that new plans had been made by them, and that they had purchased for their own use a national motel franchise, and had incurred numerous expenses in connection with their own plans to build a motel. Numerous other defenses, however, not pertinent to the question at hand were pleaded, and finally in Section 9, in the next to last defense, appellant stated that the Little Rock Housing Authority would not approve any conveyance of the property prior to completion of required improvements, and it was impossible to convey title to Walton as contemplated in the option.
Thus, it is observed that the very defense raised in the case presently before us was presented in that litigation, but the court’s decree found that Walton was entitled to a decree, and it directed appellant (and Christian Foundation) to specifically perform the contract and deed the property to Walton upon the payment of the $260,000.00, and the redelivery of the $5,000.00. According to one of the affidavits, an appeal was taken by appellant, but never perfected, Walton dying some five months after the entry of such decree. Pittard’s affidavit sets out:
“I am informed and believe that Christian Foundation Life and Foundation Securities entered into an agreement with the heirs of Gus B. Walton, by which foundation Securities and Christian Foundation Life surrendered their right to collect the purchase money, in the amount of $265,000.00.”
Bettis’ affidavit states:
“Gus Walton died and the heirs were unwilling to complete the sale, and the housing .authority never gave permission for the sale at the purchase price of $265,-000.00. The sale was never completed to Gus Walton or his heirs. The condition precedent in the commission contract was never met.”
Appellee’s agreement with appellant concluded, as follows:
“This commission to be payable upon closing of the sale to Gus B. Walton.”
I think that as far as Pittard’s rights áre concerned, the sale was closed. The court, in rendering the decree for Walton, necessarily found that he had exercised his option in time, and was willing and .able to carry out his part of the agreement, and that the agreement to convey was not conditioned upon approval by the Housing Authority. It is thus apparent that the dear would have been actually closed, except for appellant’s action in refusing to convey. The language in Pinkerton v. Hudson, 87 Ark. 506, 113 S. W. 35, is particularly apropos in this case. There we said:
u* * * And when appellee, by dismissing his suit in chancery to enforce the contract, virtually refused to collect the purchase money, he immediately became liable to appellant for his commission.”
Any agreement between Foundation Securities Corporation and Walton’s heirs could not deprive Pittard of his commission, for the commission was certainly earned no later than when the court entered its decree finding that appellant would not convey. Whatever disposition was made of the appeal is immaterial, since it is established that the appeal was not perfected, thus leaving the Chancery Court’s decree in full force.2 That decree in effect, found that the only reason the agreement between appellant and Walton had not been closed was because the company refused to do so. Under his agreement, Pittard is entitled to his commission.
I respectfully dissent.
Holt, J., joins in this dissent.My emphasis.
The only fact in connection with the Chancery Decree that could have had any effect would be that the decree was set aside, either at the instance of Walton, or by the court, and if this were done, appellant should have — and undoubtedly would have — included such fact in its affidavit.