Opinion
Randall L. Gammill, Hazen, and Carl J. Madsen, P.A., Stuttgart, for appellants.
Catletts&sStubblefield by H.B. Stubblefield, Little Rock, for appellee.
SUPPLEMENTAL OPINION ON REHEARNG.
[282 Ark. 206-B] HAYS, Justice.
Appellee's petition for rehearing warrants response. The assertion that by our decision, 282 Ark. 203, 668 S.W.2d 1, we have changed the law of this State cannot be sustained, as we have never held that where assets are subject to escrow simply for the payment of a purchase price the purchaser may not lawfully assign his rights under such an agreement. The cases petitioner cites as reaching that result are distinguishable and none of them involve the factual situation here presented. Moreover, our legislature long ago announced the express policy of this State with respect to the assignment of rights under contracts for the payment of money and neither it, nor this court, has made exception simply because the parties used an escrow as the device by which to accomplish the exchange. Ark.Stat.Ann. § 68-801 (Repl.1979). Here, the parties themselves omitted to restrict the right of assignment from their agreement, so why should the law impose a condition which they did not?
As the trial court correctly found, the appellee has no interest in the property held in escrow, except the right to receive the annual installment payments in accordance with the terms of the escrow, which in fact he has received, and to permit him to cancel the agreement, retain virtually the entire purchase price, and the property as well, only because the balance of the purchase price is tendered to him by an assignee of the purchaser, rather than by the purchaser himself, would operate as a forfeiture in the truest sense, which the law has traditionally abhorred.
Petition denied.