vances, and for a division of any surplus in proportion of one-third to Bonner and twothirds to the Cross County Rice Company. From the decree an appeal has been prosecuted to this court. The trial court treated the bond set up in the amended cross-bill of Bonner as a supersedeas bond, executed as a protection to Bonner, for liens on account of sales of lands made prior to the execution thereof and that might be made before a determination of the suit. This construction of the bond is challenged by the appeal. It is contended by appellant that the execution and acceptance of the bond effected the release of Bonner's interest in the land and substituted for his protection the personal liability of the bondsmen in lieu of the land. The bond recites, in substance, the contention between the parties as to whether Bonner had any interest in the lands, and that the issue between them was then pending in the Supreme Court for adjudication. The bond then contains the following clause: "*** For and in consideration of the sum of $1 to us cash in hand paid and the other consideration above mentioned to release any and all claim of the said A. W. Bonner to the with expenses and expenditures pertaining to the land after the date of the bond. It is unnecessary for us to discuss the rate of interest charged by appellees for expenses and advances, for it is conceded by appellees that only 6 per cent. can be charged under the contract. The parties have agreed by stipulation on the amount advanced by Johnston on account of the lands to April 23, 1910, as well as on the amounts still owed by him on the lands for purchase money. In order to ascertain the correct charge against Bonner on account of the purchase price of and expenses incident to holding the lands, it will be necessary to ascertain the advances and interest thereon made by Johnston between that date and the date of the bond. Interest should also be allowed Johnston on his advances, as shown by the stipulation, from the date of the stipulation to the date of the bond. Under the construction placed by the chancellor upon the bond, it was unnecessary for him to ascertain the market value of the lands yet unsold, and he did not do so. In keeping with his construction, he ordered a sale of the lands for the purpose of liquidat title to any of the lands above mentioned, doing the liens and advances made in the purhereby bond ourselves in the sum of $23,000, the same being the value of the interest in said lands as valued by the said A. W. Bonner, to perform the judgment of the court in this case by paying to the said A. W. Bonner any sum or sums which may be decreed to him and which shall be decreed to be a lien upon the above lands." chase of the land and for the purpose of dividing the surplus between the parties. Under the construction placed upon the bond by this court, it will be necessary to ascertain the market value of the lands from the evidence in the record already made, and to deduct therefrom the total amount of the ad vances and indebtedness against the lands at the date of the bond, in order to ascertain the value of Bonner's interest in the lands at that time. For the errors indicated, the decree is reversed and remanded for further proceedings in accordance with this opinion. (134 Ark. 142) CHICAGO, R. I. & P. RY. CO. et al. v. BALL & PHILPOT. (No. 335.) [1] We think the proper interpretation of this clause, when read in connection with the issue involved in the case, as set forth in the bond, is that Bonner released all claim to title in the lands which might be adjudged to him by the court in consideration of the personal liability of the bondsmen to pay him the value thereof, not to exceed $23,000. We think the purpose and effect of the bond was to enable the Cross County Rice Company to sell and convey the land free from any claim by bond. The Cross County Rice Company had obtained a favorable construction of the original contract from the trial court, and had no occasion whatever to execute a bond for the purpose of superseding the judg-per ment. The only purpose for executing the bond was to eliminate Bonner's interest in the land, if it should ultimately be decided that he had any interest in the land itself. There is no uncertainty or ambiguity in the language of the bond. It clearly and exIt clearly and explicitly expresses the intent of the parties. [2] It follows from this construction of the bond that the court also erred in taxing Bonner with outlays in connection with the land after the date of the bond. On that date, Bonner's equitable interest in the land passed by contract to the Cross County Rice Company, and it was improper to charge him (Supreme Court of Arkansas. April 29, 1918.) CARRIERS 100(1)-DEMURRAGE-RIGHT TO COLLECT. Acts 1907, p. 458, § 6, providing that a shipon whose order cars are placed for loading shall have a certain time therefor, and thereafter a demurrage charge may be assessed and collected on such cars not tendered to the railroad company with shipping instructions within such time, is operative only between the company from which the cars are ordered, the hauling collection of the charge to a carrier merely company, and the shipper and gives no right of switching the cars to and from the shipper's private track, as agent for the hauling company, to the hauling company for the cars when first for a specified price; and this though it receipts placed on their interchange track, and under a private agreement, the consideration of which is the payment of the switching charge, pays the hauling company a certain amount per day per car till the cars are returned to the interchange track from the shipper's private track. Appeal from Pulaski Chancery Court; Jno. | interchange track. For the switching service E. Martineau, Chancellor. Suit by the Chicago, Rock Island & Pacific Railway Company and another against Ball & Philpot. From an adverse decree, plaintiffs appeal. Affirmed. Thos. S. Buzbee and Geo. B. Pugh, both of Little Rock, for appellants. Taylor, Jones & Taylor, of Pine Bluff, for appellees. the Chicago, Rock Island & Pacific Railway Company received $3 per car from the St. Louis, Iron Mountain & Southern Railway Company, which latter company collected the $3 switching charges per car from appellees. When the loaded cars were return ed to the interchange track, the freight and switching charges were paid, and a bill of lading was issued to the appellees by the St. Louis, Iron Mountain & Southern Railway Company. The cars were billed out by the Southern Railway Company to points on its line. While there was some dispute as to the amount of the demurrage charged, the correct amount established by the evidence is. $262. HUMPHREYS, J. This is a suit by appellants against appellees to recover demur-agent of the St. Louis, Iron Mountain & rage charges on account of the detention of cars overtime by appellees. The total amount claimed was $273. Appellees disclaimed the indebtedness and denied that they ordered any cars from, or that any cars were furnished by, appellants to appellees. They asserted that all the cars ordered by them were ordered from and furnished by the St. Louis, Iron Mountain & Southern Railway Company; that appellant switched the cars thus ordered from an interchange track connecting the tracks of the two companies to appellee's private industrial spur line, which was connected with appellant's main line or track, but, in which appellants had no interest, and over which they had no control; that for the switching service appellants were paid $3 per car by the St. Louis, Iron Mountain & Southern Railway Company, which amount was collected by the last-named company from appellees. The court heard the case upon the pleadings and evidence and disallowed the demurrage items, from which judgment of disallowance an appeal has been prosecuted to this court. The facts are as follows: The Chicago, Rock Island & Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company are connected in the town of Benton by an interchange track owned by them jointly. About one mile from where the interchange track intersects the main line of the Chicago, Rock Island & Pacific Railway Company, a private industrial spur track owned and controlled by appellees also intersects the main line of the Chicago, Rock Island & Pacific Railway Company. The cars upon which a demurrage charge is claimed were ordered by appellees from the St. Louis, Iron Mountain & Southern Railway Company. That company placed them upon the interchange track and took a receipt for them from the Chicago, Rock Island & Pacific Railway Company. By private agreement between the companies, the Chicago, Rock Island & Pacific Railway Company paid the St. Louis, Iron Mountain & Southern Railway Company 55 cents per day for the cars through its Chicago office. The Chicago, Rock Island & Pacific Railway Company switched the cars from the interchange track to the private track of appellees to be loaded with gravel out of appellees' gravel pit situated near the private industrial line, and when they were loaded switched them back to the It is insisted by appellants that demurrage ed cars placed on private tracks and detained may be charged on company or publicly ownthere beyond free time allowed for loading or unloading. This proposition of law is not gainsaid by appellees, but it is contended by them that the demurrage statute is operative only as between the railroad from which the cars are ordered and the shipper. The demurrage statute authorizing the rule contained in Arkansas Standard Distance Tariff No. 5, under which this suit was brought, is section 6, Act 193, Acts 1907, and is as follows: been placed for loading, shall be allowed forty"A shipper, on whose order a car or cars have eight hours for the loading of such car or cars, computing time from 7 o'clock a. m., the day after such car or cars have been placed subject to the order of the shipper, and thereafter a demurrage charge of not more than five dollars per car per day, or fraction of a day, may be assessed and collected on all such cars as have not been tendered to the railroad company with shipping instructions within said forty-eight hours: provided, however, that should the shipper fail to begin loading within forty-eight hours after the expiration of free time, the railroad company shall consider the car or cars released, and may assess and collect ten dollars on each car, covering the demurrage then due: Provided, that such delay be not caused by unavoidable accident or strike, and said cars be at once re leased. "Railroad companies shall not be compelled to furnish cars for future shipments to parties in default as to the payment of demurrage charges, ing the car or cars required by this act the railherein last provided for, * *** if, after placroad company shall, during or after free time, temporarily, remove all or any of them, or in any way prevent, obstruct or delay the loading of same, the shipper shall not be chargeable with the delay caused thereby. "When by reason of delay or irregularity on ・ the part of the railroad company in filling orders, cars are bunched, in excess of the ability of tion, the shipper shall be allowed separate and the shipper to load, as indicated in his applicadistinct periods of free time within which to load the car or cars specified in each separate application.' We are inclined to the view that appellees' construction of the statute is correct. The wording of the first part of the section indicates that the statute is dealing with the initial carrier from which the shipper ordered the cars for shipping purposes. This conclu- | 2. CANCELLATION OF INSTRUMENTS 37(4)— sion is confirmed in the progress of reading OFFER TO RESTORE BENEFITS. the section because later on the railroad company to which the cars should have been delivered with shipping instructions within 48 hours is authorized to assess and collect demurrage charges for detention of them beyond the time allowed for loading. The statute applies to carriers participating in the haul, as distinguished from carriers switching the cars preparatory to the haul. Under the facts in this case, the removal of the cars from the interchange track to the spur, and back to the interchange track from the spur, was strictly a switching operation and not a part of the haul. The payment for the work was paid as a switching charge, and not as freight upon the cars. The Chicago, Rock Island & Pacific Railroad Company did not issue bills of lading for the cars as they stood on the spur track. The bills of lading were issued by the St. Louis, Iron Mountain & Southern Railway Company after they reached the interchange track, loaded and ready for the haul. The cars were ordered from the St. Louis, Iron Mountain & Southern Railway Company by appellees and shipped out over its line under contract with that company. The Chicago, Rock Island & Pacific Railway Company did not participate in the shipping contract or the haul. The only part taken in the transaction by the Chicago, Rock Island & Pacific Railway Company was to switch the cars, for a specified price, as agent for the St. Louis, Iron Mountain & Southern Railway Company. It is true that the Chicago, Rock Island & Pacific Railway Company receipted to the St. Louis, Iron Mountain & Southern Railway Company for the cars when first placed on the interchange track, and paid that company 55 cents a day for the cars until returned to the interchange track, but the consideration for the private contract between the two companies was the payment of $3 per car as a switching charge, and there is nothing in the record from which it can be inferred that the demurrage charges were a part of the consideration to that contract. There is nothing in the statute authorizing the transfer of the right to collect demurrage charges. This right under the statute was personal to the shipping carrier. We think the chancellor correctly construed the statute, and therefore the decree is affirmed. Where allegations of plaintiff's complaint showed that as a result of the conveyance defendant received personal property of the value of $1,700, rents and profits $2,800, and that the labor of plaintiff performed for defendant over and above what she had received was worth $700, plaintiff was not, in suit to cancel conveyance and contract to support given in consideration thereof, required to allege tender or offer to restore benefits. 3. CANCELLATION OF INSTRUMENTS TOPPEL. 18-Es Where a grantor conveys land in considera- form the contract to support, where that is the FRAUD. 10 deed is in a class by itself, and where the granA contract to support in consideration of a tee intentionally fails to perform, the remedy by cancellation, as for fraud, may be resorted to regardless of any remedy that the grantor may have at law. Appeal from Sharp Chancery Court; Geo. T. Humphries, Chancellor. Suit by Elizabeth P. Locke against Ira T. Edwards and another. From decree rendered, defendant named appeals. Affirmed. John H. Locke was the owner of certain lands in Sharp county, which he occupied as his homestead. In March, 1904, for an express consideration of $1,000 he executed a warranty deed conveying the lands to his daughter, Elizabeth Locke. Sarah Locke, his wife, and the mother of Elizabeth, joined in EDWARDS et al. v. LOCKE. (No. 323.) the conveyance releasing and relinquishing (Supreme Court of Arkansas. April 29, 1918.) her rights of dower and homestead. The 1. CANCELLATION OF INSTRUMENTS 37(4)-daughter lived with her mother and father. OFFER TO RESTORE BENEFITS. (134 Ark. 80) The general rule is that a plaintiff, in a suit for rescission or cancellation of a written instrument, must allege in his bill that prior to institution of suit he made formal tender to restore benefits, or that he offered to restore such benefits; such rule grows out of the maxim that "he who seeks equity must do equity." Her father died in July, 1908, and her mother in January, 1914. At the time of the death of John Locke, Ira Edwards, a grandson, lived with him and continued thereafter to reside with his grandmother and September 20, 1909, Elizabeth Locke executed aunt. her warranty deed to Ira Edwards for the fraudulent and same be canceled and that lands, which had been conveyed to her by she have a decree for the personal property. her father, containing in all 300 acres, more Appellant Edwards filed a general demuror less. The consideration named in the deed rer to the complaint, and also answered adwas $10 cash in hand, and the further con- mitting that appellee's father had conveyed sideration that Edwards had supported and to her the lands in controversy, and the excared for Elizabeth Locke and her mother for ecution of the deed from the appellee to him the past six years, and had entered into an and to his contract with her. He admitted obligation to continue such support for the that he sold a 40-acre tract of the land and remaining years of their lives and for the the execution of the deed of trust to Sloan, love and affection that she had for her neph- and denied all the other material allegations ew. On the same day Edwards entered into of the complaint, and set up that in 1904 he a written contract with Elizabeth Locke, entered into a verbal contract with his grandduly acknowledged and signed by both, in father, by the terms of which the grandfather which Edwards agreed, for and in considera- gave appellant all his personal property in tion of the conveyance to him of the lands order to induce appellant to take charge of of Elizabeth Locke, described in the deeds his grandfather's farm and other business on the same date, to obligate himself to care and to take care of him and his wife and for, maintain, and support his aunt Elizabeth the appellee, and alleged that he performed Locke and his grandmother Sarah Locke his contract by supporting his grandparents for and during their natural lives, and she until their death, and that since the execuobligated herself to execute the deed, which tion of the deed made by the appellee to apshe did as above stated. pellant the latter had complied with his part of the contract; that he was still willing and able to continue to carry out his part of the contract; that the deed by appellee $10 therein named; and that he take care of appellee and her mother. Appellant further alleged that he and appellee lived together until 1915, at which time appellee took a notion to marry one Murphy, and from that time until she left home she became disagreeable and wanted the land back. He denied categorically all charges of fraud in the procuring of the deed and all charges of personal misconduct towards and abuse of the appellee, and also pleaded ratification, laches, and estoppel. He alleged in detail the character of the improvements made by him and their value. Appellant prayed to be discharged with his costs, and that if the lands should be adjudged to belong to the appellee that' he have a decree for the improvements and have the expenses incurred by him in taking mother and father, and that the same be care of and supporting the appellee and her declared a lien upon the lands in controversy. mother and father, and that the same be declared a lien upon the lands in controversy. On the 12th of October, 1912, Edwards and Elizabeth Locke executed a deed of trust on the lands mentioned to W. A. Edwards, trustee, for the purpose of securing Clay to him was made upon the consideration of Sloan for a loan of $700. On the 19th of November the appellee filed this suit in the Sharp chancery court against Edwards and Sloan, in which she alleged that she was the owner of the lands described in her complaint, and also that she was the owner of certain personal property which her father had sold and devised to her, which she also described. She set up and exhibited a deed from her father as her source of title to the lands. She alleged that she was illiterate; that she did not understand the contents of the deed she had executed to appellant, copy of which was exhibited; that appellant had taken charge of the lands and the personal property belonging to her and had had the entire control and management of the same since the death of her father, using the rents and profits therefrom as his own; that apand profits therefrom as his own; that appellant had sold 40 acres of the land against her will and had mortgaged the land to Clay Sloan for $700; that she did not sign or acknowledge the deed of trust to Clay Sloan. ing the execution by the appellant and the Appellee also set up that soon after appellant appellee of the deed of trust mentioned in took charge of the property he began to the complaint to secure a loan made by him squander the same in a reckless manner, and to them for $700. He alleged that the apthat he neglected appellee and her mother pellee signed and acknowledged the mortand by his dissipation and abuse subjected them to great indignities and humiliations, and that after the death of her mother his conduct towards appellee continued and became intolerable, compelling her at last to leave her home and seek protection among relatives. Appellee alleged that the deed to appellant was executed through fraud, misrepresentation, false pretense, intimidation, and duress; that the consideration for the deed and contract which she entered into with appellant had wholly failed. She prayed for a cancellation of the deed and contract and that the mortgage to Sloan be declared Clay Sloan filed a separate answer alleg gage with the full understanding of the terms and conditions therein; that he made the loan and took the mortgage in all good faith without knowledge of any possibility of litigation between the appellant and the appellee as to the title of the property. He prayed that the mortgage be declared a valid lien upon the lands described therein, regardless of the result of the suit between the appellant and the appellee, and that he recover all his costs. The cause was heard upon the pleas, exhibits, certain documentary evidence, and the depositions of witnesses. The court found profits from the farm the sum of $2,800, and that the labor of the plaintiff over and above what she had received was worth $700. Therefore it is a complete answer to appellant's contention to say that the allegations of the complaint show that the appellee had received no benefits, and therefore there was nothing for her to tender or offer to return as a prerequisite to maintaining her suit for cancellation. [3, 4] 2. Appellant contends that the appellee is barred by laches, and is estopped by her conduct from maintaining this suit. His counsel say that: that the contract and the deed of conveyance | and that he had received from the rents and between the appellant and the appellee mentioned in the pleadings were executed on the same day, and should be taken together and construed as one instrument and contract. The court also found that the deed of trust was executed and was security for a loan from Sloan to appellant; that as between the appellee and the appellant the debt was that of appellant, but that as to Sloan it was the debt of both of them and constituted a valid lien on the property described therein; that the personal property involved was the property of the appellant. The court further found that Edwards had failed to carry out his contract to support and maintain the appellee, and by his conduct towards her he had rendered her condition intolerable and that the consideration for the deed and contract had failed; that appellant had practiced fraud and deceit upon the appellee in the procuring of the deed and contract; that the rents and profits which the appellant had received from the lands in controversy and it has been abstracted in such manner The testimony is exceedingly voluminous, were sufficient to pay him for the improve-as to necessitate our examining the record ments which he had placed upon the land; and that therefore he was not entitled to any betterments. The court entered a decree in "He had had possession and management of the farm at least from the date of his deed in September, 1909, until the bringing of this suit in November, 1915, a period of a little over six years, and that according to the contention of the appellee he had not been contributing anything to the support of herself or mother during the latter's lifetime, nor to the support of appellee since the death of her mother." and reading the testimony of the witnesses in detail. To set out and discuss this evidence would extend the opinion to great length, and could not serve any wise or useful purpose. In fact the nature of the evi dence is such that it is far better that much accordance with its findings, canceling the contract and deed, and quieting the title in the appellee to the lands, and entered decree in favor of Sloan dismissing appellee's complaint as to him for want of equity. The of it be not preserved in the permanent rec' court also dismissed appellant's cross-com-ords of our reports. It will suffice to state plaint for improvements, and entered a de- in a general way our conclusions. cree in favor of the appellee against the appellant for the costs. WOOD, J. (after stating the facts as above). [1] 1. Appellant contends that the demurrer to the complaint should have been sustained for the reason that the appellee did not tender therein compensation for the betterments nor offer to restore the benefits she received from the appellant. The general rule is that a plaintiff in a suit for the rescission or cancellation of a written instrument should allege in his bill that prior to the institution of his suit he had made a formal tender to restore to the defendant whatever benefits he had received as the result of the transaction, or that he had offered to return such benefits. This principle grows out of the equitable maxim that "he who seeks equity must do equity." 4 R. C. L. pp. 511 If the appellee had predicated her right to a rescission and cancellation of the contract between herself and the appellant and a canSullivan & Chesnut, of Hardy, for appel-cellation of her deed upon a mere failure of lant. David L. King, of Hardy, for appellee. consideration, in that appellant had refused to provide food and clothing and had failed to comply with his contract to support ap-. pellee and her mother by refusing or neglecting to furnish creature comforts that were necessary for their physical existence, then we would hesitate to say that the proof was sufficient to warrant the finding and decree of the court. For while the appellee testified in a general way that appellant had never supported her or her mother, had never furnished them anything, and that the home place took care of them and supported them, and that they sold chickens and eggs to help buy their supplies, yet her testimony further shows that it was understood that she was to keep house for herself, her mother, and appellant, and they were all to live together. It further shows that he managed [2] The rule is not applicable here for the the farm and had control of everything on reason that the allegations of the appellee's the place. Her testimony shows that it was complaint show that the appellee received no contemplated that she was to do work on benefits whatever by way of consideration the place. In fact she testified that she for the deed which she executed to appel-picked cotton, not because she had to, but lant. But, on the contrary, the allegations of because she wished to do so. While her tesher complaint show that as a result of the timony shows that the appellant neglected conveyance the appellant had received per- her and did not furnish her food and clothsonal property belonging to the plaintiffing and protect her from hard labor as she 513. |