{
  "id": 8719018,
  "name": "HYDE WHOLESALE DRY GOODS COMPANY v. Jack EDWARDS",
  "name_abbreviation": "Hyde Wholesale Dry Goods Co. v. Edwards",
  "decision_date": "1973-10-08",
  "docket_number": "73-94",
  "first_page": "211",
  "last_page": "214",
  "citations": [
    {
      "type": "official",
      "cite": "255 Ark. 211"
    },
    {
      "type": "parallel",
      "cite": "500 S.W.2d 85"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "237 Ark. 391",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "weight": 2,
      "year": 1963,
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    {
      "cite": "114 S. W. 923",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1908,
      "opinion_index": 0
    },
    {
      "cite": "88 Ark. 406",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1517151
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      "year": 1908,
      "opinion_index": 0,
      "case_paths": [
        "/ark/88/0406-01"
      ]
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  "last_updated": "2023-07-14T17:24:11.540726+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Harris, C. J., dissents."
    ],
    "parties": [
      "HYDE WHOLESALE DRY GOODS COMPANY v. Jack EDWARDS"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nThe appellant Hyde brought this foreclosure suit to enforce'promissory notes and a real estate mortgage executed in the 1950\u2019s by Mrs. Katherine T. Edwards. As to. Mrs. Edwards (who died while the suit was pending below) the debt was barred by limitations. Hyde joined Mrs. Edwards\u2019 son as a codefendant, asserting that he assumed liability for the debt, both orally and in writing. Edwards successfully moved for a summary judgment, disclaiming any legal responsibility for his mother\u2019s obligation. Hyde appeals.\nThe summary judgment was based upon the pl\u00e9ad-ings and upon affidavits filed by both sides-. Hyde\u2019s counsel, in contending that the chancellor erred as a matter of law, relies upon three separate actions taken by Edwards.\nFirst: In 1966 Mrs. Edwards\u2019 ownership of the mortgaged real estate prevented her from obtaining state welfare payments. According to the plaintiff\u2019s affidavits, on June 2, 1967, Edwards orally agreed with Hyde\u2019s attor,-ney that if that attorney would help Edwards obt\u00e1in welfare assistance for his mother, Edwards would assume and pay the debt. That oral agreement, st\u00e1hding alone, was barred by the three-year, statute of limitations when the summons against Edwards was issued in this case on May 30, 1972. Ark. Stat. Ann. \u00a7 37-206 (Repl. 1962).\nSecondly: Pursuant to the plan to obtain welfare payments for Mrs. Edwards, she conveyed the mortgaged realty to her son on June 6, 1967, reserving a life estate. We are unable to agree with Hyde\u2019s insistence that Mrs. Edwards\u2019 deed amounted to a written assumption of the debt by her son. The conveyance was an ordinary warranty deed that made no mention whatever of the mortgage indebtedness. The situation is unlike that considered in Kenney v. Streeter, 88 Ark. 406, 114 S. W. 923 (1908), cited by Hyde. There the complaint asserted that Kenney in writing assumed the payment of the notes sued upon. While it was true that the deed to Kenney did not recite that he assumed the obligation, the court held that his failure to deny the allegation in the complaint justified the conclusion that he had assumed the debt by some other writing. In the case at bar there was no comparable failure by Edwards to deny the allegations of Hyde\u2019s complaint.\nThirdly: Hyde, to avoid Edwards\u2019 plea of limitations and the statute of frauds (Ark. Stat. Ann. \u00a7 38-101, subsection 2), relies upon certain correspondence between the parties. We do not find in the letters any such positive assumption of the debt as is required to satisfy the statute of frauds or to toll the statute of limitations. \u00a7 37-216. The letter most favorable to Hyde\u2019s position was written by Edwards to Hyde\u2019s attorney on September 8, 1967, and reads in part: \u201cI plan to be back in El Dorado in November and hope to be able to make arrangements to take care of mortgage holders at that time and I would like to be able to have this welfare matter behind me at that time, if possible.\u201d It will be seen that the letter falls far short of binding Edwards to pay the debt personally. The suggested arrangements might have entailed various other possibilities, such as the payment of the debt by Mrs. Edwards or by the sale of her property. The letter contains no statement that Edwards bound himself to pay the debt.\nIn a second point for reversal Hyde argues that the entry of a summary judgment was error, because the record discloses a genuine question of fact. That contention is based upon Edwards\u2019 own affidavit. There Edwards stated that in late November, 1966, Hyde\u2019s attorney telephoned him to say that some \u201ctoken payment\u201d on the debt had to be made at once to avoid foreclosure (as the statute was about to run). In answer to that demand Edwards sent a check for $10 directly to Hyde. Edwards\u2019 accompanying letter reads in part: \u201cEnclosed is our check for $10.00, in payment on the mortgage held by you, on my Mother\u2019s property.\u201d In his affidavit Edwards went on to say: \u201cBy forwarding this sum to Mr. Camp [Hyde\u2019s attorney] I was simply complying with his request and in no means intended to assume the mortgage indebtedness of my mother.\u201d\nAs we understand counsel\u2019s argument, it is contended that Edwards\u2019 statement that he did not intend to assume the mortgage indebtedness would not necessarily preclude the chancellor from finding as a fact that Edwards did so intend. That argument is unsound. Edwards\u2019 affidavit established a prima facie basis for a summary judgment in his favor. The burden then shifted to Hyde, as plaintiff, to file a controverting affidavit. Since that was not done, the defendant was entitled to summary judgment. Epps v. Remmel, 237 Ark. 391, 373 S.W. 2d 141 (1963). Even though an interested party\u2019s statement is not to be taken as undisputed, that rule does not mean that his denial of a fact amounts to proof that the fact exists. It is our conclusion from the record that the appellant simply allowed the statute of limitations to run before filing suit.\nAffirmed.\nHarris, C. J., dissents.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Ronald L. Griggs and Camp \u00e91 Thornton, for appellant.",
      "Shackelford \u00e91 Shackleford, for appellee."
    ],
    "corrections": "",
    "head_matter": "HYDE WHOLESALE DRY GOODS COMPANY v. Jack EDWARDS\n73-94\n500 S.W. 2d 85\nOpinion delivered October 8, 1973\n[Rehearing denied November 5, 1973.]\nRonald L. Griggs and Camp \u00e91 Thornton, for appellant.\nShackelford \u00e91 Shackleford, for appellee."
  },
  "file_name": "0211-01",
  "first_page_order": 233,
  "last_page_order": 236
}