slope on the land owned by the party of the HARBOTTLE v. CENTRAL COAL & COKE first part in the town of Hartford, Sebastian county, state of Arkansas, about half way between the No. 2 mine of the party of the first part, and the Midland Valley Railroad, for the purpose of producing coal.

"It is further stipulated, understood and agreed by and between the parties of this contract that the party of the second part agrees to sell to the party of the first part, at the option of the party of the first part, the entire output of the mine, and the party of the first part, if it exercises its option to buy said coal, shall pay for all mine run coal loaded from said mine, the sum of per ton for all merchantable coal, railroad weights to govAppeal from Sebastian Chancery Court; ern, and said coal shall not contain more than W. A. Falconer, Chancellor.

and move all available coal as shown within the boundary lines on map marked Exhibit A above referred to.

"Upon failure of the party of the second part to keep up the mine in a workmanlike manner for a period of ninety days, this contract shall be null and void, except such suspensions be caused by strikes or unavoidable accidents. "Witness our hands this 16th day of February, 1911. Bolen-Darnall Coal Co., by Jas. A. Bolen, Vice Pres., Party of the First Part. Thos. Harbottle, Party of the Second Part. Witnesses: M. K. McCoubrey, W. S. Sampson."

After the adoption of the federal Judiciary Act a suit was brought in the federal court of Oklahoma against the Darnall Company, in which all its property, including the coal lands in Arkansas, were placed in the hands of a receiver. An ancillary bill was filed also in the federal court of Oklahoma by the mortgagee for the foreclosure of its mortgage. A decree of foreclosure was rendered, and the property of the Darnall Company, including its coal lands in Arkansas, was sold to Paxton and James, who received a deed to the property. Harbottle entered into possession, and operated the mine under the terms of the contract, paying Darnall Company royalty for the coal that he took out and disposed of himself, or the Darnall Company received the coal from Harbottle, and paid him satisfactory price for the same. After the receiver was appointed Harbottle continued to operate the mine under the contract with the Darnall Company, but paid royalty to the receiver instead of that company. Harbottle was not made a party to the suit in the federal court for the appointment of a receiver and for the foreclosure of the mort

gage.

had no adequate remedy at law, and unless Harbottle was enjoined, that the plaintiffs would suffer irreparable injury. They prayed for temporary restraining order and upon a final hearing for a perpetual injunction.

Harbottle filed demurrer, setting up that the court was without jurisdiction, because the plaintiff had an adequate remedy at law, and also that the plaintiffs had not alleged a title at law, and that the plaintiff did not allege that the defendant was insolvent. The defendant, Harbottle, without calling for a ruling of the court on the demurrer, answered denying the material allegations of the complaint, and alleged that he was in possession of the lands under a contract with the Darnall Company, the original owners, which contract was placed on record on the 5th of April, 1913. He averred that he had a right under his contract to continue mining coal on this land until same had been removed; that he had been operating under the terms of the contract (which he designated as a lease) from the date of its execution until he had been temporarily enjoined; that he had not been made a party to any foreclosure proceedings; that by reason of his lease from the Darnall Company, he had an estate in the land described and the coal therein, and was therefore entitled to right of redemption. He offered to pay what might be necessary to redeem the lands, and asked that the court order a new foreclosure in order that he might be made a party and be allowed to redeem. He alleged that he had been damaged in the sum of $50 per day since the injunction, and if the temporary injunction were continued in force, he would be prevented from extracting 30,000 tons of coal which he had opened up and to accomplish which he had expended large sums of money; that he had a market for the coal, which he could mine under existing contracts, and consequently would suffer great and irreparable injury if the injunction were made perpetual. He asked that the temporary injunction be dissolved, and that he be awarded costs and damages.

On the 11th of April, 1917, James and Paxton, the purchasers of the land at the foreclosure sale, entered into an agreement to lease the coal lands in controversy to the Central Coal & Coke Company. On the 14th of June, 1917, that company instituted this suit against Harbottle in the chancery court of Sebastian county, alleging in its complaint that it had leased the lands in controversy (describing them) from Paxton and James, who were the owners thereof, and who were also made plaintiffs. It was alleged in the complaint that the Darnall Company while operating a coal mine upon the property had left mine pillars of coal standing to prop the roof of the mine; that Thomas Harbottle, without any right or authority, was removing these coal pillars, and had been requested to desist therefrom, and had refused to do so, and that unless he was restrained from removing the pillars and coal, the roof would fall in and prevent plaintiff from removing its coal from the mine, or from going through the mine, which Harbottle was operating under his contract, to remove coal from plain- Tellier & Biggs and Fred L. Satterfield, tiff's mine adjacent; that the acts of Har- all of Little Rock, for appellant. Rose, bottle in thus removing the pillars and coal Hemingway, Cantrell, Loughborough & Miles, was daily and continuous; and that plaintiff of Little Rock, for appellees.

Much testimony was taken which it becomes unnecessary for us to set forth and discuss in view of the conclusion we have reached concerning the proper construction to be given the contract under which HarThe trial court found that bottle claims. Harbottle was not entitled to mine or remove any coal from the lands in controversy, and that all his rights under his contract with the Darnall Company had ceased; that he was not entitled to redeem from the mortgage foreclosure, and entered a decree granting plaintiff a perpetual injunction. appeal seeks to reverse that decree.

This

WOOD, J. (after stating the facts as above). I text and with all the other words of the in[1] 1. The appellant is not in an attitude strument do not have any effect in fixing its to object to the jurisdiction of the court, legal character. When the instrument is even if the complaint had failed to state construed as a whole it contains all the elea cause of action, because the appellant ments of a license, but none of the characdid not call for a ruling of the court on his teristics of a lease. "A license is a personal demurrer, but, on the contrary, waived all revocable and nonassignable privilege conobjections to the jurisdiction by filing a cross-ferred either by writing or parol to do one or bill asking for affirmative relief, and upon the issues thus joined proceeded to final adjudication. See Kiernan v. Blackwell, 27 Ark. 235; Greer v. Vaughan, 96 Ark. 524, 132 S. W. 456; Polack v. Steinke, 100 Ark. 283, 139 S. W. 538; Pratt v. Frazer, 95 Ark. 405, 129 S. W. 1088; Plunkett v. State Nat. Bank, 90 Ark. 86, 117 S. W. 1079.

[2] 2. While the allegations of the appellees' complaint as to ownership are sufficiently denied in the appellant's answer to raise that issue, yet the undisputed evidence in the, record shows that the appellees James and Paxton were the owners, and had contracted to lease the lands in controversy to the appellee Central Coal & Coke Company, and that the latter was entitled to the possession thereof, unless the appellant's contract with the Darnall Company gave him some interest or estate in the land which would constitute him a junior incumbrancer, with the right to redeem.

more acts on land without possessing any interest therein." Words and Phrases, “License," p. 116 et seq.

In Joplin Supply Co. v. West, 149 Mo. App. 78-93, 130 S. W: 156, 161, it is said: "There is a marked difference between a

license and a lease. Under the lease, the right of possession against the world is given to the tenant, while a license creates no interest in the land, but is simply an authority or power to use in some specific way."

Judge Burnett, speaking for the court of the Third appellate district of California, gives a very accurate definition of "license," and a very clear test for determining the difference between a license and a lease, as follows:

"A license in respect to real estate is an authority to do a particular thing upon the land of another without possessing an estate therein. The test to determine whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession as against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license." "This," he adds, "is a question of law arising out of the construction of the instrument under which a lease or a license may be created.”

In Wheeler et al. v. West et al., 71 Cal. 126, 11 Pac. 871, it is said:

"There is a broad distinction between a lease of a mine, under which the lessee enters into possession and takes an estate in the property, and a license to work the same mine. In the latter case the licensee has no permanent interest, property, or estate in the land itself, but only in the proceeds, and in such proceeds not as realty, but as personal property, and his possession * * is the possession of the owner."

Appellant's right, if he has any, to defend, or to affirmative relief, is predicated entirely upon the written contract which he designates in his brief as a lease. We are unable to discover after a most critical analysis of the language of this instrument that it bears any indicia of a lease. "An estate for years," says Mr. Washburn, "is one that is created by a contract technically called a lease, whereby one man, called a lessor, lets to another, called the lessee, the possession of lands or tenements for a term of time fixed or agreed upon by the parties to the same." 1 Washburn on Real Property, § 608. "Lease is a conveyance of lands or tenements to a person for life, or years, or at will, in Now, when the instrument under considconsideration of a return of rent or recom-eration is subjected to the above definitions pense." 1 Devlin on Real Estate, § 13. "A lease is a contract by which one person divests himself, and another takes possession of lands or chattels for a term, whether long or short." Wood, Landlord and Tenant, § 203. See, also, Cruise, Digest, tit. "Lease"; Words and Phrases, "Lease," p. 56 et seq.

*

The

and test, it will be observed that it does not vest any interest whatever in the freehold for any length of time in the appellant. It does not confer upon appellant the exclusive right to the possession of the lands in controversy; it only gives him the right to enter upon the land at a certain designated While the term "lease" is one of technical place, and to remove coal from certain desigimport, yet no specific words are necessary nated places which were shown on a map to create or describe the relation of lessor that was made a part of the contract. and lessee, but words must be used which places thus designated were separated by have the effect to divest the owner or lessor areas which appellant had no license to mine, of the possession and right to the possession, but which he had only the right to pass over and which invests the lessee with the subject-in order to reach the places that were emmatter of the lease, for the term contemplat- braced in his license. There is not one word ed by the contract, whether long or short. True, the words "his lease" occur once in the contract under review, but these words when

in the contract to indicate that the appellant was to have an estate or interest in the land or in the coal until he had mined the

render to appellant the exclusive right of 14. SALES 418(7)-BREACH BY SELLER-REMpossession.

EDIES OF BUYER-DAMAGES.

[3] The writing under consideration cer- sand refused to deliver except for $27, the buyWhere the seller of lumber at $26.50 a thoutainly did not create the relation of land- er was under no duty to take the lumber at lord and tenant, and the duties and obliga- $27, and his damages were not limited to $.50 tions growing out of it were entirely per- between the contract and the market price of a thousand, but he could recover the difference sonal to the parties to the contract. The the lumber which the seller refused to deliver, appellant had no right that he could transfer since one is not required to abandon the asto another. Since no estate or interest in sertion of a legal right in order that the party the land was vested in appellant by the con-making an illegal and unauthorized exaction may not be required to pay an increased sum tract, the mortgagee in the foreclosure pro- as damages. ceedings was not bound to take notice of his possession, and to make him a party. Whatever may have been his rights or remedies as against the Darnall Company, the mortgagor, they were acquired subsequent to the mortgage, and the character of these rights was not such as to constitute him in any respect a junior incumbrancer, with an equity of redemption.

[4] Counsel for appellant assumes that the writing is a lease, and therefore an incumbrance upon the land. They cite and rely upon the cases which hold to the general doctrine that one who has an interest in land and would be a loser by a foreclosure proceeding has a right to redeem. Having decided that the instrument does not vest appellant with any interest in the land, of course these authorities are not applicable, and we know of no authority for holding that the mere licensee of a mortgagor has any right of redemption.

5. EVIDENCE 113(2)-VALUE OF PROPERTYPLACE OF VALUATION.

of lumber for failure to deliver, where there In an action by the buyer against the seller was no market for the lumber at the seller's mill, the place specified for delivery, except for the purpose of shipping to some one of the markets to which such lumber was ordinarily shipped, it was proper for witnesses, including plaintiff, to testify what prices in Chicago one of such markets for the lumber were.

Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge.

Suit by S. J. McInturff against the Arkan. sas Short Leaf Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Danaher & Danaher, of Pine Bluff, for appellant. Coleman & Gantt, of Pine Bluff, for appellee.

SMITH, J. Appellee brought this suit to recover damages on account of the breach of an alleged contract for the sale of lumber.

It follows that the decree of the court is He alleged in his complaint that he and the correct, and it is therefore affirmed.

Where lumber was ordered by plaintiff, if eight cars shipped to him by defendant were shipped in part performance of the whole contract in its entirety, the contract was taken out of statute of frauds. 2. TRIAL OF VERDICT.

234(4)-INSTRUCTION-DIRECTION

appellant lumber company, hereinafter referred to as the company, entered into a contract on December 28, 1916, whereby he purchased two cars of green white oak lumber, with the further agreement that if the two cars should prove satisfactory the company would sell and deliver him 500,000 feet in all of such lumber at the prices shown in the following list, to be delivered on cars at the company's mill at the rate of 100,000 feet per month, to wit:

"32-inch and 4-inch No. 1 common at $31.00 per M feet. 32-inch and 4-inch No. 2 common at $19.50 per M feet. 3-inch No. 1 common at $29.00 per M feet. 3-inch No. 2 common at $17.50 per M feet. common at $26.50 per M feet. common at $16.50 per M feet."

2-inch No. 1 2-inch No. 2

In an action by the buyer for refusal to deliver lumber ordered, where it was undisputThe complaint alleged that it was further ed that the contract was not in writing, and that the controversy arose over the price of the re- agreed that appellee should have 30 days mainder of the lumber undelivered, an instruc- after the delivery of said first two cars of tion that, if when six cars were ordered some lumber in which to notify the company of time after the contract was made, if one was entered into at all, a controversy arose over his acceptance of the remainder of said 500,the price of the remainder, the shipment of the 000 feet of lumber, and that appellee within six cars about which there was no controversy the time and as agreed upon notified the did not take the case out of the statute of frauds, was properly refused, since it in effect directed verdict for defendant.

3. SALES 391(2)-REMEDIES OF BUYER-RECOVERY OF VOLUNTARY PAYMENT.

Where the seller of lumber for $26.50 per thousand refused to deliver at the price, but offered to deliver at $27, if the buyer had taken the lumber and paid the $27 he could not have recovered the excess exacted from him.

company that he would accept and purchase the remainder of said 500,000 feet of lumber, and an order for 102,000 feet, to be delivered within two weeks, was given and accepted, and that order was filled before the company failed and refused to furnish and deliver the remainder, although specific directions in accordance with the terms of the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

contract were given, and that on or about June 18, 1917, the manager of the company notified appellee that the remainder of the notified appellee that the remainder of the order would not be filled, and this suit was brought to recover the difference between the contract price and the market price on the portion of the lumber which the company refused to ship.

"9. If you find from the evidence that at the time the six cars were ordered the defendant and plaintiff got into a controversy as to the price of the remainder of the lumber wanted, plaintiff contending for a price of $26.50, and defendant for a price of $27 per thousand offered to fill the order at $27, but plaintiff for No. 1 common, and that the defendant refused to accept same at $27, and at that the six cars about which there was no controversy were delivered, then the six cars cannot be held to have been delivered as and for a part of the whole 500,000 feet, and the delivery thereof does not take the case out of the statute of frauds, and was not sufficient to bind the bargain."

[1] We discuss these instructions together. The case was not tried upon the theory that the shipment of the two cars took the transaction out of the statute of frauds, although it is argued that such would be the effect of their shipment if they were shipped in ful

the case is that of the entirety of the contract, and the instructions upon which appellee predicated his right of recovery required a finding that the parties "entered into the contract mentioned in the complaint" and that the company "in pursuance and in part performance thereof delivered a portion of the lumber sold." If this predicate was true, then the contract was taken out of the statute of frauds by the part performance resulting from the shipment of the eight cars of lumber. It is undisputed that eight cars were shipped, and the instruction submitted to the jury the question whether they were shipped in part performance of the contract. If they were, the contract was taken out of the statute of frauds. Walnut Ridge Mercantile Co. V. Cohn, 79 Ark. 338, 96 S. W. 413.

The suit was brought by appellee upon the theory that the company refused to comply with the contract because lumber had advanced rapidly in price after the acceptance of the order, and in support of the allegations of the complaint appellee testified substantially as follows: That he received the last of the sample cars on February 3, 1917, and on February 17, 1917, gave notice that he would take the remainder of the 500,000 feet, and at the same time gave an order for 34,000 feet of 3-inch, 34,000 feet of 32-fillment of the contract. The question in inch, and 34,000 feet of 4-inch stock, and this order is referred to as the six-car shipment. This order was accepted, and it was then agreed that as soon as it could be filled specifications for the remainder would be given. The last car of the lumber ordered on February 17th was not delivered until June 18, 1917, and after that time the company refused to make further deliveries. It is insisted on behalf of the company that the minds of the parties never met, and that the order for the lumber was not given within the time limited by the contract; that the contract was void under the statute of frauds; and that the company had, in fact, filled all that part of the order upon the price of which the parties had agreed. A Mr. Murphy represented the company in the transaction, and he testified that a controversy arose over the price of the remainder of the lumber and that appellee demanded the shipment of this remainder in 2-inch No. 1 common at $26.50 per thousand, whereas the company insisted that the contract price was $27 per thousand. The court instructed the jury that there could be no recovery of any damages unless they found that the contract price was $26.50 per thousand, and not $27, so that this issue is concluded by the verdict of the jury. There was also an issue of fact as to whether the orders were placed within the time limited by the contract, but an instruction was given which told the jury that there could be no recovery unless the contract in that respect was complied with, so that that question, too, passes out of the case under the verdict of the jury.

The court refused to give instructions numbered 6, 7, and 9, requested by appellant,

which are as follows:

"6. The delivery of the first two sample cars was not sufficient to take the contract out of the statute of frauds.

"7. If you find from the evidence that the two cars of lumber first purchased by plaintiff were sample cars, the receipt of same by plaintiff was not sufficient to take the contract out

[2] Instruction numbered 9 was properly refused, because it, too, leaves out of account the entirety of the contract. There was either a contract for the 500,000 feet of lumber or there was none, and the jury had already been told that there could be no recovery unless appellee was correct in his contention the jury that, if at the time the six cars were about the price. Yet this instruction told the jury that, if at the time the six cars were ordered, which was some time after the contract was made (if one was entered into at all), a controversy arose over the price of the remainder of the order, the shipment of the six cars, about which there was no controver sy, did not take the case out of the statute of frauds. This instruction, in effect, directs a verdict, as it is undisputed that the contract was not in writing, and it is also undisputed that the controversy arose over the price of the remainder; yet to meet the requirements of other instructions the jury must have found that the company was wrong in its contention and that it had contracted to sell this lumber at $26.50 per thousand and that the contract had been partly performed when the company interposed an objection to its further performance which contravened the terms of the contract. The