was not due until the well was completed. Ferguson Lumber Co. v. Little Rock Well & Pump Co., 74 Ark. 24, 84 S. W. 794.

A building contract which contained a stipulation that the purchase money should be paid in installments according to the architect's estimates, which installments were to be 75 per cent of the value of the work done and materials furnished and incorporated in the building, and that the remaining 25 per cent should be paid after the building was completed and accepted, contemplated that 75 per cent of the value of the work done and materials furnished and incorporated in the building should be paid in installments, even though the amounts paid exceeded 75 per cent of the contract price. National Surety Co. v. Long, 85 Ark. 158, 107 S. W. 384. § 109. Alterations and extra work.

Where a building, contract stipulated that the contractor should excavate and remove 300 yards of slope, and build a wall of required dimensions for a specified sum, and provided further that if there should be any additional sloping, the same should be paid for at the rate of $1 extra per yard, its effect was to require the contractor to remove the necessary quantity of rock and earth to slope the bank properly, whether at the top or bottom of the wall, and to authorize him to charge for the excess over 300 cubic yards at the rate of $1 per yard. Dugan v. Kelly, 75 Ark. 55, 86 S. W. 831.

Defendants invited bids for an iron front to a store house. A bid was put in and accepted to supply the specific articles needed at stated prices. As the work progressed, iron work not specified in the bid but necessary to complete the front was ordered from the bidder. In an action to recover the value of these articles, held, that, although the plans submitted called for a complete iron front, yet the builders, by accepting without qualification a bid not responsive to their proposal, made that bid the basis of their contract, and were liable for all material furnished which was not named in the bid. Sneed & Co. Iron Works v. Douglass, 49 Ark. 355, 5 S. W. 585.

Where a contract provides that important changes shall be agreed on in writing beforehand and changes shall be on contract basis, allowance for extra items to the contractor cannot be made on a unit basis, notwithstanding his claim of an oral agreement therefor. Board of Improvement Com'rs. v. Galbreath, 185 S. W. 474.

When a contractor made a change in the construction of a building at the request

of the architect, which the latter agreed to pay, the same will not be charged against the owner. Hatfield Special School Dist. v. Knight, 112 Ark. 83, 164 S. W. 1137.

§ 109a. Reimbursement of expenditures.

Where a contract provided plaintiff should pay for clearing certain lands of tax titles together with back taxes, the defendant to conduct all litigation, etc., held, plaintiff was not entitled, in an accounting, to credit for expenditures, in examining the record title or in negotiating with parties claiming an interest in the property. Williams v. Thweatt, 126 Ark. 627, 190 S. W. 113.

§ 110. Deductions and offset.

See also SET-OFF AND COUNTERCLAIM.

On failure of a party to do work in a skillful manner, a deduction therefor may be made. Field v. Ringo, 7 Ark. 435.

Under a contract to drill a well and furnish a pump at a certain price to do a certain amount of work, where the pump in store was insufficient and defendant was forced to purchase a different pump, while he was liable for the contract price, he was entitled to a deduction of the amount paid for the second pump. Selig v. Botts, Ark.

--

193 S. W. 534.

§ 111. Mode of making compensation. Under a promise to pay for property "out of the proceeds of the first cotton ginned," the seller is not limited to the profits of that season alone. White v. Chaffin, 32 Ark. 59.

On the failure of the maker of a note payable in specific articles to make such payment, the payee can recover the value of the specific articles at maturity of the note. Cockrell v. Warner, 14 Ark. 345. III. MODIFICATION AND MERGER.

§ 112. Assent of parties.

Where one party has performed a valuable part of an agreement, and is in no default for not performing the residue of the agreement to be performed by him, a court of chancery will decree a specific execution of the other part of the contract, or may modify it where, from a change of circumstances, its terms are incapable of being strictly complied with. Wynn v. Garland, 19 Ark. 23.

A contract for cutting timber off the lands of appellant which reserved in the appellant the right to change any part of such contract did not authorize appellant

to abrogate the contract. Grayson-McLeod Lumber Co. v. Slack, 102 Ark. 79, 143 S. W. 580.

A valid contract cannot be modified unless both parties assent. Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, 125 S. W. 139. § 113. Consideration for modification.

A subsequent agreement which is not a part of the original contract and is not supported by the consideration thereof or by a new consideration is a mere nudum pactum. First Nat. Bank v. Nakdimen, 111 Ark. 223, 163 S. W. 785.

An agreement for extension, made by one not authorized to make same, is invalid. Key v. Fielding, 32 Ark. 56.

Payment of part of amount due is no consideration for a promise to extend time for payment of the residue. King v. State Bank, 9 Ark. 185; Thompson v. Robinson, 34 Ark. 44; Stone v. State Bank, 8 Ark. 141.

Ordinarily there must be a new consideration for the alteration of a contract, unless there are mutual undertakings which may form the consideration for the alteration. Capitol Food Co. v. Mode & Clayton, 112 Ark. 165, 165 S. W. 637.

There must be a new consideration for the alteration of a contract unless there are mutual undertakings which may form a consideration for the change. Capitol Food Co. v. Mode & Clayton, 112 Ark. 165, 165 S. W. 637.

Where the parties to a contract undertake to enter into an additional contract, if in the latter no benefit is received by the obligee except what he was entitled to under the original contract, and the other party parts with nothing except what he was already bound for, there is no consideration for the additional contract. Feldman v. Fox, 112 Ark. 223, 164 S. W. 766.

§ 114. Contracts under seal.

A subsequent parol contract cannot be admitted to control or defeat a deed or attach a condition or defeasance to it; nor can a sealed executory contract be released, or rescinded by a parol executory contract. Miller v. Hemphill, 9 Ark. 488.

§ 115. Modification as to parties.

Where defendant hired plaintiff to do certain work, and subsequently L. & B. made a bargain with defendant to do the whole of the work for a certain price, and plaintiff refused to work for L. & B. unless defendant would continue bound

for his pay, held, that defendant was liable to plaintiff for his wages. Burgen v. Dwinal, 11 Ark. 314.

§ 115a. Alteration or addition of terms.

A contract is an entire thing, and, when altered in any part, its entirety is destroyed. Bertrand v. Byrd, 5 Ark. 651.

If one of the parties to a contract attempts to vary or change its terms, the other is thereby released; and an unintentional part performance, which is withdrawn as soon as discovered, will not imply assent to the change. Turner v. Baker, 30 Ark. 186.

A contract for the sale of standing timber, the consideration of which was $3,000, provided that, at the expiration of the time limited for the removal of the timber, any tramway located on the land by the vendee should become the property of the vendor. The tramway originally placed on the land by the vendee rotted away. The vendee sold his interest to a subvendee, who, with the vendor's consent, built a railroad and put down iron rails, worth between $5,000 and $7,000. The vendor encouraged the subvendee to sell the rails, and treated them as his property. Held, that the subvendee had a right to remove the rails. Grider v. Three States Lumber Company, 72 Ark. 190, 79 S. W. 763.

The parties to a contract may, by new agreement, change the terms thereof, and the new undertakings will support the new contract. Feldman v. Fox, 112 Ark. 223, 164 S. W. 766.

§ 116. Extension of time.

While failure to complete a work within a certain time is not excused by sickness, if defendant permitted plaintiff to go on after that time and complete the work, he will be liable for the stipulated price. Cassady v. Clarke, 7 Ark. 123.

Where a builders' contract stipulates that if the builders be delayed in the prosecution or completion of the work by the act, neglect or default of the owner or architect, the time fixed for completion of the work shall be extended for a period equal to the time so lost, but that no such allowance should be made unless a claim therefor is presented in writing to the architect within forty-eight hours after the occurrence of such delay, the obligation to make claim for an extension of time is a condition precedent to the contractors' right thereto. Wait v. Stanton, 104 Ark. 9, 147 S. W. 446.

Failure to do work within stipulated time held not excused by a subsequent

agreement for extra work, further than to extend the time as much longer than the original contract provided as is necessary to complete the extra work. Lincoln v. Little Rock Granite Co., 56 Ark. 405, 19 S. W. 1056.

§ 117. Merger in subsequent contract.

Generally, a higher security taken from the debtor himself extinguishes the original contract. But it is merely a question of intention. Costar v. Davies, 8 Ark. 213; Carlton v. Buckner, 28 Ark. 66.

The execution of a bond by one of two parties to a parol contract extinguishes their joint liability. Howell v. Webb, 2 Ark. 360.

A bond for title is merged in a deed subsequently executed. Johnson v. Nunnerly, 30 Ark. 153.

Where a new contract covers the subjectmatter of earlier agreements, and is inconsistent with them, they will be held to be abrogated by it. Ozark & Cherokee Central Ry. Co. v. Ferguson, 92 Ark. 254, 122 S. W. 624.

a

Antecedent correspondence and prior writings, as well as oral statements and representations, are merged in subsequent written contract, when it is free from ambiguity and complete. Doniphan, K. & S. R. Co. v. Missouri & N. A. Rd. Co., 104 Ark. 475, 149 S. W. 60.

Where the parties to a contract for railroad construction work did not execute the written contract until a few days before the work was completed, the written contract governs and supplants any parol declarations concerning the nature of the work, and that plaintiff would make a profit, which declarations were not inserted in the written contract. Robertson v. C. H. Sharp Contracting Co., 183 S. W. 754.

A contract giving appellant the right to sell appellee's land until the authority was revoked, is superseded by a new contract giving appellant an exclusive agency for a limited period, since the second contract covered the same subject-matter and operated as a revocation of the former authority. Murray v. Miller, 112 Ark. 227, 166 S. W. 536.

A contract for the sale of timber for $3,000 provided that any tramway put on the lands by the purchaser should, at the expiration of the time limited for removal of the timber, become the property of the vendor. The tramway originally put down rotted, and a railroad was built in its place; and the seller knew of the placing of the iron used in making the change, encour

aged the change, and encouraged the pur chaser of the timber to sell the iron, which was worth between $5,000 and $7,000. Held, that the purchaser of the timber had a right to remove the iron. Grider v. Three States Lumber Co., 72 Ark. 190, 79 S. W. 763.

§ 118. Operation and effect.

Where a contract is merged in another, recovery must be had upon the new contract. Gracie v. Sandford, 9 Ark. 233. But see Burgen v. Dwinal, 11 Ark. 314.

Execution of note held to bar action on original debt. Costar v. Davies, 8 Ark. 213. Alteration of contract held to destroy its entirety. Bertrand v. Byrd, 5 Ark. 651.

$119. Evidence.

Where A. executes a note to B., it raises the presumption that an account held by B. against A., due prior to the execution of the note, has been paid, but the presump tion may be rebutted by other evidence. Camp v. Gullett, 7 Ark. 524; Costar v. Davies, 8 Ark. 213; Weaver v. Caldwell, 9 Ark. 339; R. E. Bank v. Rawdon, 5 Ark. 558; Carlton v. Buckner, 28 Ark. 66.

The execution of a note raises no presumption that a bill of exchange of prior date has been paid. Weaver v. Caldwell, 9 Ark. 339.

One asserting a subsequent modification of the contract by the parties must prove it by a preponderance of the evidence. Brown v. McKnight, 118 S. W. 409; Bagnell Tie & Timber Co. v. Goodrich, 82 Ark. 547, 102 S. W. 228.

IV. RESCISSION AND ABANDONMENT. $120. Agreement to rescind.

(1) In general.

Contract held to have been abandoned. Prince v. Thomas, 15 Ark. 378; Wynn v. Garland, 19 Ark. 23. When contract not abandoned, see Brooks v. Isbell, 22 Ark. 488.

Where parties to a contract for a sale of land mutually manifest an intention to repudiate and abandon it by a series of acts in hostility to it, neither can ask to have it specifically enforced. Walworth v. Miles, 23 Ark. 653.

An offer to rescind a contract on Sunday is void. Merritt v. Robinson, 35 Ark. 483.

A contract for the sawing of timber in consideration of the payment of a certain price per thousand feet with other provi

sions for advancement was not revoked by a later contract merely providing that, in consideration of the delivery of certain articles by one party, the other would satisfy a certain chattel mortgage, notes and store accounts. Trumbull v. Harris, 102 Ark. 669, 145 S. W. 547.

Contracts ordinarily can only be rescinded by mutual consent of the parties, and cannot in general be rescinded in toto by one. Gatlin v. Wilcox, 26 Ark. 309.

(2) Assent of parties.

Contracts ordinarily can be rescinded only by mutual consent of the parties. Gatlin v. Wilcox, 26 Ark. 309; Ingham Lbr. Co. v. Ingersoll, 93 Ark. 447, 125 S. W. 139, 20 Ann. Cas. 1002.

(3) Formal requisites.

A sealed contract cannot be released or rescinded by a parol contract. Miller v. Hemphill, 9 Ark. 488.

(4) Consideration.

Rescission of a contract is sustained by a reciprocal release from the mutual obligations. Kilgore Lumber Co. v. Thomas, 98 Ark. 219, 135 S. W. 858.

§ 121. Abandonment of rights.

A compromise held an abandonment of prior claim for rents. Cunningham v. Trapnall, 23 Ark. 557.

Parties held to have abandoned original contract. Prince v. Thomas, 15 Ark. 378; Wynn v. Garland, 19 Ark. 23.

$122. Grounds for rescission by party.

The infringement or partial failure of performance by one party to a contract, for which there may be compensation in damages, does not authorize a rescission. Gatlin v. Wilcox, 26 Ark. 309.

Where a contract is for mutual acts, the refusal of one to perform will justify the others in treating the contract as rescinded. Ward v. Kadel, 38 Ark. 174; Miller v. Thompson, 22 Ark. 258.

Where defendant contracted with plaintiff to keep cut a supply of logs sufficient to keep employed plaintiff's teams until defendant's timber was all hauled, his failure to do so was a violation of the contract, justifying the abandonment thereof by plaintiff. Fletcher v. Verser, 79 Ark. 271, 96 S. W. 384.

Where plaintiff agreed to build a hedge fence to be paid for in installments, and defendants failed to pay installments due,

plaintiff had a right to abandon the contract. Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886,

A partial failure of performance, which may be compensated in damages, does not operate as ground for rescission. Gatlin v. Wilcox, 26 Ark. 309; Desha v. Robinson, 17 Ark. 228.

A contract against public policy because one of the parties at the time of its execution acted in a fiduciary capacity, before it is performed may be avoided by the other party. Tallman v. Lewis, 186 S. W. 296.

Refusal or neglect by one party to perform his part of a contract justifies the other in treating it as rescinded. The same rule applies where an administrator refuses to carry out his intestate's contract. Miller v. Thompson, 22 Ark. 258. So held where there is a mutual contract for successive acts to be performed. Ward v. Kadel, 38 Ark. 174.

A party to a contract will not be allowed to rescind where the failure of performance by the opposite party was partial only, and without fraud, leaving in his hands a partial and executed part performance, and where it would be impossible to restore the parties to the condition they were in before the contract was made. Desha v. Robinson, 17 Ark. 228.

Breach of contract by one party failing to comply with its terms authorizes its termination by the other party. Grayling Lumber Co. v. Hemingway, Ark., 194 S. W. 508.

$123. Estoppel or waiver.

One who receives benefits under a contract cannot repudiate its obligations. Bloch Queensware Co. v. Metzger, 70 Ark. 232, 65 S. W. 929.

Where a party to a contract, on discovering a violation thereof by the adverse party, did not insist on a forfeiture, but permitted the adverse party to continue performance, he waived the forfeiture. Grayson McLeod Lbr. Co. v. Slack, 102 Ark. 79, 143 S. W. 581.

Any conduct on the part of the party having the right to declare a forfeiture which is calculated to induce the other party to believe that the forfeiture is not to be insisted on will be treated as a waiver. Kampman v. Kampman, 98 Ark. 328, 135 S. W. 905.

§ 124. Conditions precedent to rescission. Where it is adjudged that a heating apparatus installed by plaintiff in de

fendant's building did not substantially comply with plaintiff's contract, and therefore that plaintiff was not entitled to pay therefor, he will be entitled to remove the machinery from the premises, as far as that can be done without injury to the building. Campbell v. Kennerly, 102 Ark 51, 143 S. W. 97.

One who would rescind a contract must put or offer to put the other party in statu quo. Desha v. Robinson, 17 Ark. 228; Seaborn v. Sutherland, 17 Ark. 603; Bellows v. Cheek, 20 Ark. 424; Davis v. Tarwater, 15 Ark. 286.

One who asks to rescind a contract must put, or offer to put, the other party in statu quo, or sufficiently excuse himself from such duty. Johnson v. Walker, 25 Ark. 196.

§ 125. Time for rescission and laches.

An election to rescind a contract for fraud must be made within a reasonable time. Desha v. Robinson, 17 Ark. 228.

A party to a contract held to have waived a violation thereof by the adverse party. Grayson-McLeod Lumber Co. v. Slack-Kress Tie & Stave Co., 102 Ark. 79, 143 S. W. 581.

A party who would rescind a contract must do so within a reasonable time. Wilson v. Strayhorn, 26 Ark. 28.

One who donated land "for railway depot purposes only" was held not entitled to a forfeiture of the donation on removal of the depot after eleven years. Railway Co. v. Birnie, 59 Ark. 66, 26 S. W. 528.

A court of equity will not rescind a contract on the ground of fraud unless the fraud alleged is clearly established; and the right to rescind will be lost by laches. Fitzgerald v. Walker, 55 Ark. 148, 17 S. W. 702.

§ 126. Acts constituting rescission.

Merely expressing a doubt as to the validity of a contract, or a belief that he had no title under it, held not to constitute a rescission. Brooks v. Isbell, 22 Ark. 488.

§ 127. Operation and effect.

Rescission of a compromise by mutual consent throws the parties back upon their original rights. Perry v. Little Rock & Ft. S. Ry. Co., 44 Ark. 383.

V. TERMINATION; RENEWAL.

§ 127a. Renewal of contract in general. Where a written contract has been determined by the act of one party, or by its

own limitation, it cannot be resuscitated by parol. Bertrand v. Byrd, 5 Ark. 651.

An original contract cannot be renewed except by the same parties. Id.

Where, after abandonment of a contract, a subsequent agreement to finish the work under the old contract is made, it is a new contract. Byrd v. Bertrand, 7 Ark. 321.

Where parties intend the substitution of a new debt or obligation for an old one, their intention to that effect should be positively declared. Cockrill v. Johnson, 28 Ark. 193.

VI. PERFORMANCE OR BREACH. $128. What law governs.

See ante, § 68.

A bill of exchange delivered in New York will be given effect with reference to the laws of that State. Gracie v. Sandford, 9 Ark. 233.

§ 129. Demand of performance.

Where a contract is made for the payment of corn or other farm produce, no time or place of payment being fixed, a demand is necessary. Bradley v. Farrington, 4 Ark. 532.

One may sue on a contract to pay money on demand without having made a demand. Otherwise where promise is to do a collateral thing on demand. Pullen v. Chase, 4 Ark. 210.

One who undertakes absolutely to pay another's debt is not entitled to notice of nonpayment by such other person. Logan v. Lee, 10 Ark. 585.

Where a debt is payable in personal property, to be delivered at a particular time, and the debtor fails to deliver it at such time, the creditor may sue for the money due without demanding the property. Hughes v. Sloan, 8 Ark. 146; Cockrell v. Warner, 14 Ark. 345.

Where defendant's testator conveyed a tract of land to T., covenanting to execute a deed with warranty of title on demand, there was an instantaneous breach, since testator had no title, and no demand was necessary. Tarwater v. Davis, 7 Ark. 153.

$130. Performance of conditions.

A condition in a grant of land that it should be used for depot purposes held complied with by maintaining a depot thereon for eleven years. Railway Co. v. Birnie, 59 Ark. 66.

If a condition subsequent is impossible to be performed, or performance is pre