the county court, determining finally the amount he had failed to account for and pay over as treasurer, which also recited he was short in his accounts with the county in said That judgment, being final, could not be disputed or explained, and it was held error to permit its introduction upon the trial of the criminal charge against the treasurer for embezzlement of the county's fund. sum. [7] The evidence is amply sufficient to support the verdict, and, no prejudicial error having occurred in the trial, the judgment is affirmed. Evidence, in a suit by the grantee of tim- LOUIS WERNER SAWMILL CO. et al. v. Logging, Cent. Dig. §§ 6-12; Dec. Dig. (Supreme Court of Arkansas. July 12, 1915.) Under the provisions of deeds conveying. timber requiring the grantee to cut and remove as expeditiously as possible, and providing that unless the timber was removed within 15 years the grantee should pay the taxes assessed until the timber was removed and possession returned, the grantee did not have 15 years absolutely in which to remove the timber, but was required to remove it as expeditiously as possible. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. 3.] 2. REFORMATION OF INSTRUMENTS 19 GROUNDS-MISTAKE-IN GENERAL. To reform a deed and then enforce it calls for a much greater exercise of the powers of equity than to set aside a transaction, and to justify a decree for reformation on the ground of mistake it is necessary that the mistake should have been mutual. [Ed. Note.-For other cases, see Reformation 7. APPEAL AND ERROR 1009-FINDINGS The chancellor's finding of facts will not be disturbed on appeal unless against the clear preponderance of the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.] Appeal from Union Chancery Court; J. M. Barker, Chancellor. Suit by the Louis Werner Sawmill Company and others against A. B. Sessoms and others, with cross-bills by defendants. Decree for cross-complainants, and plaintiffs appeal. Affirmed. Gaughan & Sifford, of Camden, and Aylmer Flenniken and Neill C. Marsh, both of El Dorado, for appellants. H. S. Powell, of Camden, for appellees. HART, J. On the 20th of February, 1913, of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. appellants instituted 17 suits in the chancery mm 19.] Where plaintiff mill company in 1907 obtained option contracts allowing 15 years for the removal of timber, and, after accepting them, prepared deeds containing a provision that it should cut and remove the timber as expeditiously as possible, and that unless removed within 15 years it would thereafter pay the taxes, and represented to the grantors that it proposed to remove the timber as expeditiously as possible, and all within 5 years, and then had spur tracks constructed to the timber, and might have removed it within 5 years, and made no effort to correct the deed on the ground of mistake in the provision for removal, its suit to reform the deeds on such ground, not brought for six years, was barred by laches. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 119-121; Dec. Dig. 32.] 5. LOGS AND LOGGING 3-TIME FOR RE- court against certain landowners, in which they sought a reformation of timber deeds executed by appellees to the Louis Werner Sawmill Company between the 8th and 15th of July, 1907. The defendants answered and denied the material allegations of the complaints and filed cross-bills in which they asserted that appellants had forfeited their right to cut and remove any of the timber involved in the suits and asked that the timber deeds be canceled as a cloud upon their title. All of the suits were consolidated for the purpose of trial, and the court rendered judgment against appellants, denying the relief sought, and granted appellees the relief prayed for in their cross-complaints. The cases are here on appeal. The record in the cases is long, and to set out in substance the testimony of each witness would extend the limits of this opinion beyond what is practicable. We have read carefully and patiently the record in the case and have concluded that a statement of the facts pertinent to the issues raised by the appeal may be summarized as follows: For several years prior to the year 1907, A logging company required by its deeds and since that time, the Louis Werner Sawto remove timber as expeditiously as possible could grant to another company no greater mill Company, a corporation, had a plant at rights than it possessed, and the limitation "as Griffin in the northern part of Union county, "The party of the second part shall cut and remove said timber as expeditiously as possible, ed the same within a period of fifteen years and it is agreed that unless it shall have removfrom the date hereof, that it shall be responsible for and pay to the first party, the full amount of taxes assessed against said lands aftfrom this date until such time as said timber er the expiration of said period of fifteen years is removed and said possession returned to the said first party." on the St. Louis, Iron Mountain & Southern Railway Company's road, where it manufactured lumber. The Edgar Lumber Company, a corporation, had a sawmill plant at Wesson, in the southwest part of Union county. Prior to the year 1907, the Louis Werner Sawmill Company had purchased from the appellees the timber which is the subjectmatter of this action. There is a ridge which runs practically east and west through Union The timber deeds were prepared by an county, and near its crest runs the El Dorado agent of the sawmill company and on printand Marysville public road. The timber in ed blanks furnished him by the company question lies in irregular strips and segre- for that purpose. After the Louis Werner gated tracts covering a territory about five Sawmill Company secured these deeds from miles long and, approximately, a mile wide the defendants, it made an exchange of the at its widest point. The timber is south of timber with the Edgar Lumber Company the El Dorado and Marysville road and is and granted to that company the timber in about 15 miles from Griffin, where the mill controversy, with a time limit of 15 years plant of the Louis Werner Sawmill Company within which to remove the timber. Prior to is situated. The sawmill plant of the Edgar the execution of these deeds in 1907, the Lumber Company is about 12 miles south-Louis Werner Sawmill Company had extendeast from the timber in controversy. ed a spur to the immediate vicinity of the spur from its main line at a point five miles nearer Griffin, which also extended right up to the timber in question. This spur was known as the Ballard spur. The Louis Werner Sawmill Company cut a great deal of the timber it got from the Edgar Lumber Company and hauled it over this spur. A local railroad was incorporated and ex- timber in question and was cutting the timtended in a westerly and southwesterly di- ber there. This spur was known as the Wilrection from Griffin for the purpose of log-liams spur. Several months thereafter it ging the timber owned by the Louis Werner took up that spur and extended another Sawmill Company. It ran about 31⁄2 miles north of the timber in question. The Louis Werner Sawmill Company and the Edgar Lumber Company both owned timber in the same locality. On account of the topography of the country, it was impracticable and expensive for the Louis Werner Sawmill Company to get its timber on the south side of the Prior to June, 1907, the Louis Werner SawEl Dorado and Marysville public road; and mill Company had a mill with an average it was equally impracticable and expensive capacity of 40,000 feet. At that time it shut for the Edgar Lumber Company to get its down its mill to overhaul its plant and intimber on the north side of said public road. creased its daily capacity to 60,000 feet. It Therefore they entered into negotiations for has run at full capacity since that time. The the purpose of exchanging timber so that Edgar Lumber Company in 1907 operated a each company would have its timber more double-band sawmill with a daily capacity nearly in a body. The Edgar Lumber Com- of 100,000 feet. It has operated regularly pany was unwilling to make the exchange and to its full capacity since that time. At unless the Louis Werner Sawmill Company the time the two companies made the exwould execute a deed to it giving it 15 years change of timber, the Edgar Lumber Comwithin which to remove the timber. That pany was operating in Columbia county, Ark., company had deeds from the appellees to the about 15 miles from the timber in controtimber in question, but did not have that versy. After the exchange of the timber, the length of time within which to remove the Edgar Lumber Company moved its logging timber. They sent an agent to appellees and operations back to Union county and workto other persons to ascertain whether they ed from its mill out in the direction of the could secure new deeds with a time limit of timber in question. It had its main line of 15 years. They first made contracts with logging road within 6 miles of this timber, the appellees reciting a consideration of $5 average distance, and a spur within a mile cash and a certain other designated sum in of one of the tracts, when, in the early part case the option to purchase should be con- of 1912, it moved its logging operations to summated. These contracts gave the Louis Claiborne parish, La. It did this because Werner Sawmill Company the right of re- it had a large amount of timber there on moval of the timber for a period of 15 years which the time for removal was about to exfrom June, 1907. Pursuant to these con- pire. It was imperative that it cut that tracts, the additional consideration was paid timber at once or lose it. As soon as the and timber deeds were executed by the de- timber in Louisiana was cut, it returned to fendants to the Louis Werner Sawmill Com- Union county, Ark., prepared to cut timber pany. The deed granted to the sawmill com- in that county, including the timber in quespany timber of certain dimensions named tion. It learned that appellees claimed that therein, and, in regard to the time of the it had forfeited its right to the timber in removal of the timber, contained the follow-question, and, in order that its logging opera the outcome of the present suit, an agreement was entered into between the parties as to the value of the timber to be cut by the Edgar Lumber Company. Other facts will be referred to later in the discussion of the issues raised by the appeal. [1] In the case of Earl v. Harris, 99 Ark. 112, 137 S. W. 806, the contract for the sale of timber stipulated that the vendee should cut and remove said timber as expeditiously as possible, and that unless he should have removed all of the timber within five years he should pay the taxes thereafter assessed against the land until the timber should be removed. In construing that contract, the court held that it was not contemplated that the vendee should have five years absolutely in which to cut and remove the timber, but that he should remove the timber as expeditiously as possible, and that if it required more than five years to do so he should pay the taxes thereafter assessed against the land. To the same effect, see Yelvington v. Short, 111 Ark. 253, 163 S. W. 522; Newton v. Warren Vehicle Stock Co., 173 S. W. 819; and Burbridge v. Arkansas Lumber Co., 178 S. W. 304. The clause in the deeds in question providing for a time limit for the removal of the timber is in all essential respects similar to the clauses construed in the cases just cited, and the construction placed upon those clauses controls here. This is conceded by counsel for appellants, but the object of their suit is to reform the timber deeds executed, to them by appellees. [2, 3] To reform a contract or deed, and then enforce it in its new form, calls for a much greater exercise of the powers of equity than to set aside a transaction. There fore, to justify a decree for reformation on the ground of mistake, it is necessary that the mistake should have been mutual, and it is equally well settled that as a general rule equity does not reform contracts or deeds for a pure mistake of law. But counsel for appellants insist that, under the facts as they appear in the record before us, the alleged mistake sought to be corrected is in a measure a mistake of fact. It will be remembered that, when the Louis Werner Sawmill Company entered into negotiations with the Edgar Lumber Company for the exchange of timber, the latter company required the former to execute to it a deed giving it 15 years within which to remove the timber. The Werner Company already had deeds to the timber, but not for that length of time. It then went among the defendants with an option contract providing for 15 years from June, 1907, within which to remove the timber. Five dollars was paid to obtain this extension contract, as they term it, and, when it was ascertained that they could procure such extensions from all of appellees, new deeds, which became the The new deeds, instead of containing the clause giving appellants 15 years absolutely within which to remove the timber, contained a clause now commonly known as "the expeditious clause," which has been set out above. These deeds were prepared by an agent of the Louis Werner Sawmill Company and on printed blanks furnished by that company. The company, however, contends that it did not intend to insert the so-called expeditious clause in the deeds under consideration, and that the clause was inserted by its agent by mistake; that the mistake was mutual; that the deeds as executed failed to effectuate the intention of the parties; that both parties made an honest mistake of law as to the effect of the contract; that the construction placed upon the deeds by law produced results different from those the parties intended; that in such cases courts will interfere to prevent the enforcement of the contract and to relieve parties from the unexpected consequences of it; and that to refuse relief would be to permit one party to take an unconscionable advantage of another and to derive a benefit from the contract which neither of them intended. In support of their contention, they cite State v. Paup, 13 Ark. 129, 56 Am. Dec. 303; Knight v. Glasscock, 51 Ark. 390, 11 S. W. 580; and the case note to 28 L. R. A. (N. S.) 785. On the other hand, it is contended by counsel for appellees that the deed executed by the parties was the final embodiment in writing of their agreement, and that the clause in question was not inserted by mutual mistake. They insist that the deed should be construed in accordance with the rule laid down in the cases above cited construing similar clauses in timber deeds. [4] We do not deem it necessary to decide this question, for, if the contention of counsel for appellants be assumed to be correct, we think they are barred of relief under the facts in this record by laches. The doctrine of laches is applicable to suits of this kind. Pomeroy's Equity Jurisprudence, vol. 6, § 680; 24 Amer. & Eng. Enc. of Law, 656. The jurisdiction to relief in cases like this is purely equitable and must be exercised upon equitable principles. It is true that in the so-called extension contract an absolute time limit of 15 years was given. But all of appellees were witnesses in the case and testified that the agent of the Louis Werner Sawmill Company represented to them that, though a limit of 15 years was placed in the contract, the company purposed to remove the timber as expeditiously as possible, and that most of it would be removed in 2 or 3 years, and that all of it would be removed in 5 years. The agent pointed to the fact that the main line of the logging road of the Louis Werner Sawmill Company had already been constructed practically to the timber in question, and that one spur had already been it was well known by all parties interested, easily removed the timber within five years that the land could not be cultivated until the from the time the deeds were executed. Evitimber should be removed; and that the dence was adduced tending to show that, owlandowners were greatly concerned as to ing to the topography of the country, it would the time in which the timber could be re- be very expensive to log a part of the timber; moved. but it will be noted that the topography of the country would not be changed by time. Moreover, it is not shown but that the ridges referred to could not be cut down at a reasonable cost. The timber deeds were secured from appellees in the early part of July, 1907. Appellant Louis Werner Sawmill Company exchanged the timber secured from appellees to the Edgar Lumber Company for timber owned by it soon after this time. It then took up its spur, and no effort was made by it to correct the deed until just about the time the present suits were instituted. It suffered six years or more to elapse before anything was said or done by it in regard to the alleged mistake. During all this time the deeds were in the custody of the lumber company, and it had agents whose duty it was to examine the deeds and see that they were in proper form. The agents of the sawmill company knew that the so-called expeditious clause was written in the deeds, and no objection was ever raised thereto until after a similar clause had been construed by this court in the case of Earl v. Harris, supra. Therefore we are of the opinion that it would be inequitable now to grant appellants the relief prayed for by them. [5-7] This brings us to the question of whether the time granted in the deeds for cutting the timber had expired at the time of filing the present suit. It will be remembered that the timber deeds in question were executed in July, 1907; and that soon afterwards the Louis Werner Sawmill Company granted to the Edgar Lumber Company the timber in question. It is true the Werner Company by its deed gave the Edgar Lumber Company 15 years within which to cut and remove the timber, but the Werner Company could grant to the Edgar Company no greater rights than it possessed. Hearin v. Union Sawmill Co., 105 Ark. 455, 151 S. W. 1007. Appellees granted the timber to the Werner Company with a proviso that the timber should be removed as expeditiously as possible. This clause of the contract had reference to the means and ability of the Louis Werner Sawmill Company to remove the timber, and not to that of any subsequent grantee of that company. Appellees, when they made the deeds to the Werner Company, knew its capacity, knew that it had a main line of logging road within six miles of the timber, and that a spur had already been built to the immediate vicinity of the timber. After the Louis Werner Sawmill Company exchanged the timber with the Edgar Lumber Company for timber owned by it, it tore up the spur which had been constructed by it in the vicinity of the timber and constructed another spur which extended nearly to the timber, in order to cut other timber owned by it. It appears from the evidence that the Soon after the Edgar Lumber Company secured the timber in question, it extended its logging road to within a few miles of the timber, but in 1912 it tore up its road and proceeded to construct one from its mill to its timber in the state of Louisiana. It is obvious that the time limit within which to remove the timber must be tested by the language used in the deeds of appellees to the to the Louis Werner Sawmill Company. The deed provided that the sawmill company should cut and remove the timber as expeditiously as possible. The sawmill company had the right to convey the timber thus purchased by it to the Edgar Lumber Company, but the latter company, in regard to its right to remove the timber, must be governed by the limit in the deed to the Louis Werner Sawmill Company, and not by the time limit in the deed from that company to it. Then, too, in determining what would be an expeditious removal of the timber, we must be governed by the facilities of the Werner Company. To hold otherwise might have the effect of extending the time limit far beyond what was contemplated by the parties. To illustrate: If the Louis Werner Sawmill Company should sell the timber to a small concern, the latter might work ever so expeditiously and not be able to remove the timber within a period of more than 30 years; on the other hand, it might sell to a company with a much greater capacity than its own, and that company might be able to remove the timber within a very much shorter space of time if it proceeded to remove it as expeditiously as possible. In cases like this, the words "as expeditiously as possible" would not refer to the facilities and capacities of subsequent grantees, but would refer to the facilities and capacities of the original grantee. Tested by this rule, the question is: Within what time should the Louis Werner Sawmill Company have removed the timber so that it might be said to have removed it as expeditiously as possible? It will be remembered that this company had a logging road parallel with the timber in question and within an average distance of six miles of it. It extended at different times two spurs to the immediate vicinity of the timber. According to the testimony of appellees, the company could have removed the timber in any event within five years, and probably within half that time. The agent of the Louis Werner Sawmill Company represented that it could tled rule of this court that the finding of [ of fruits, the question of its negligence, held, fact made by a chancellor will not be dis- under the evidence, for the jury. turbed on appeal unless against the clear [Ed. Note.-For other cases, preponderance of the evidence, and, from Cent. Dig. §§ 478, 596-598; Dec. Dig. 136.] a careful consideration of the evidence pertaining to this branch of the case, we are not able to say that the finding of the chancellor is against the weight of the evidence. It follows that the decree will be affirmed. cases, see Carriers, CARRIAGE OF Goods 7. CARRIERS 39 DUTY OF. While a common carrier should furnish reasonable facilities to all shippers at each station, he is not required to prepare in advance for an unprecedented rush of business, and will be excused for delay in transporting goods in such case until the emergency can be removed. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 98; Dec. Dig. 39.] ST. LOUIS, I. M. & S. R. CO. v. LASER 8. APPEAL AND ERROR 667-REVIEW-ABGRAIN CO. (No. 119.) In an action for damages to shipments of peaches, where the carrier set up the shipper's noncompliance with the requirement of the bill of lading that complaint be made in specified time, the shipper has the burden of proving compliance. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 722-725; Dec. Dig. 163.] 3. CARRIERS 159-CARRIAGE OF GOODS DEFENSES-WAIVER. Where a shipper notified the carrier's general freight agent of damages to the goods, and negotiations were had between the parties without the carrier objecting that the shipper had lost its right because the claims were not made, as required by bill of lading, to the agents either at the point of embarkation or destination, the carrier waived its right to object to the manner of presentation. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 668-671, 699-7032, 711-714, 718, 7182; Dec. Dig. 159.] 4. EVIDENCE 323- OPINION EVIDENCE MARKET VALUE. Without producing the market reports, a witness may testify as to market value of fruits at a given time, and, though his information be based on such reports, that fact not rendering his testimony hearsay and going only to its weight. STRACT. Where appellee's own counsel found it impracticable to point out the deficiencies in the abstract, the court will not go into the matter. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2862, 2863; Dec. Dig. 667.] Appeal from Circuit Court, Johnson County; Hugh Basham, Judge. Action by the Laser Grain Company against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed. This suit was brought by the Laser Grain Company to recover damages alleged to have arisen from the negligence of the railway company in the shipment of 27 car loads of peaches from designated points in this state to various points in other states. Some of the peaches were loaded in cars used for shipment of meat; the railway company furnishing them for the use. It was alleged that the peaches were damaged, occasioning the loss on account of unreasonable delay in transportation, failure to furnish proper cars, and failure to properly ice the shipments in transit. Each of the 27 counts of the complaint specified the damage of the shipment of a particular car, designating the different amounts claimed therefor. The railway company answered, denying the allegations of the complaint, and pleaded specially two of the provisions of the contract of shipment, stipulating that the amount of any loss or damage for which it was liable "shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1214-1217; Dec. Dig. 323.] 5. CARRIERS 133-CARRIAGE OF GOODS-time of shipment under this bill of lading," DAMAGES. In an action for injury or destruction of a shipment of goods, evidence of the market value of the property at the place of destination is admissible; the rule for computation of damages being the difference between the market price of goods at the time and place when and where they should have been delivered and their value when and in the condition in which they were delivered. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. 133. 6. CARRIERS 136 CARRIAGE OF GOODS ACTIONS EVIDENCE. etc., and that claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin of the shipment, within four months after delivery of the property, etc., and, unless so made, the carriers shall not be liable. The cases were tried before the court without a jury, and judgment rendered upon each count of the complaint in appellee's favor, except No. 23. It appears from the testimony that the In an action for damages for carrier's fail- peaches were loaded into the cars in good ure to supply refrigerator cars for the shipment condition, some of them were delayed in ship{ |