2. LANDLORD AND TENANT ( 291*)-UN- lot had leased it to the defendants; that LAWFUL DETAINER-SUFFICIENCY OF COM

PLAINT.

The complaint alleged that plaintiff owned and was entitled to possession of a lot, having purchased it at a sale under a trust deed; that before the execution of the trust deed the then owner leased it to defendants, who are now in possession holding over after the expiration of their term, paying rent to the former owner; that plaintiff became entitled to possession under the trustee's deed. Held, that the complaint sufficiently alleged a cause of action in unlawful detainer.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1238-1240; Dec. Dig. § 291.*]

3. FORCIBLE ENTRY AND DETAINER (§ 6*)NATURE OF REMEDY.

Unlawful detainer is to determine the right to immediate possession of lands, and not to try title.

they are now in possession of same, holding over under said lease long after its expiration, and were holding these lands at the time of the institution of this suit, paying said former owner rent from month to month; that he became entitled to possession of the lot under said trustee's deed; and that appellees were holding over after the expiration of their original lease from the former owner and mortgagor of plaintiff; also, that a written notice, as required by law, was given defendants to vacate said premises, and prayer for judgment for the possession. On the next day, the defendants filed a motion to strike the amended complaint from the files, alleging: "That the cause of action attempted to be set up herein was fully

[Ed. Note.-For other cases, see Forcible Entry and Detainer, Cent. Dig. §§ 29-33; Dec. presented to and passed upon by this court Dig. § 6.*]

4. PLEADING SIONS.

(§ 214*)-DEMURRER-ADMIS

A demurrer admits the allegations of the complaint.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 5. LANDLORD AND TENANT (§ 65*)-DENIAL OF LANDLORD'S TITLE.

Lessees could not dispute the title of a purchaser from their lessor any more than they could dispute their lessor's title.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 182; Dec. Dig. 8

65.*]

Appeal from Circuit Court, Izard County; John W. Meeks, Judge.

at the last term hereof, and that the same was by the court dismissed in its sustaining of a demurrer to the original complaint herein." The court rendered judgment, reciting that the amended complaint was filed by leave of the court, and the filing of said motion, and sustained same, and struck from the files of the courts said amended complaint, and, the plaintiff declining to plead further, it dismissed the cause of action and rendered judgment against him for costs. To this action of the court, appellant saved his exceptions, and from the judgment pray

ed an appeal.

Samuel M. Casey, for appellant. J. B. Baker, for appellees.

KIRBY, J. (after stating the facts as above). [1] If the first complaint filed by appellant was insufficient, the court properly sustained a demurrer thereto. Having sustained the demurrer and noted appellant's exceptions to its action in so doing, without any further order made or judgment rendered by the court, its action was not final, and the judgment could not be appealed from. Moody v. Railway Co., 83 Ark. 371, 103 S. W. 1134. After the demurrer was sustained, the appellant had the right to amend his complaint, and was properly given leave to do so by the court. Section 6095, Kirby's Digest.

Action by D. D. Adams against W. F. Primmer and others. From an order striking the amended complaint, plaintiff appeals. Reversed and remanded, with directions to overrule motion and for further proceedings. Appellant, on March 15, 1911, brought this suit for unlawful detainer against appellees, alleging that he was the owner and entitled to possession of a certain lot situated in the town of Calico Rock, Ark., unlawfully detained by them. At the March term of the Izard circuit court a demurrer was interposed to the complaint and sustained by the court; exceptions to the court's ruling being saved. At the next September term of the court appellant filed an amended complaint, alleging that he was the owner and entitled to the possession of the same lot of land, as described in the original complaint; that the former owner had executed a deed of trusting that the matter had already been adon same to secure an indebtedness; that de fault was made in the payment of such indebtedness and the property sold by the trustee to satisfy it; that the plaintiff became the purchaser thereof at the trustee's sale on September 27, 1910; and that a deed was duly made to him by the trustee, in proper form, conveying same. A copy of the deed was attached to the amended complaint. It was then alleged that prior to the execution of the deed of trust the then owner of the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[2, 3] The court struck the amended complaint from the files upon said motion, hold

judicated, by the sustaining of the demurrer at the former term, but erred in doing so. The amended complaint sufficiently alleges a cause of action in unlawful detainer, which is to determine the right to the immediate possession of lands and tenements, and not the title thereto. Dunlap v. Moose, 135 S. W. 826. The motion to strike will be treated as a demurrer, and, the complaint being sufficient, the court erred in sustaining it and dismissing plaintiff's cause of action upon his

declining to plead further. It seems from | for an actual change of possession, a construcappellees' brief that a writ of possession was issued upon the filing of the first complaint and the possession of the premises delivered thereunder to appellant; but appellees did not set up as a defense any disclaimer of possession or claim of right thereto, but only objected to plaintiff's right to proceed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

lumber [22,000 feet] that was inspected by the Kimball Lumber Company, they having refused to pay my order in favor of Dr. McDermott;" and it is under this bill of sale that plaintiff claims title to the lumber.

Cox accepted this proposition and proceeded | fused to honor or pay. Thereupon, and on to move the mill to a point near Cypress. On June 1, 1910, in consideration of $424 due by March 5, 1910, when the mill plant was about him to the plaintiff, said Cox executed a bill half completed, Cox obtained from the Kim- of sale to the plaintiff, in which it was statball Lumber Company $400, and gave a re-ed that he did sell and deliver to him "the ceipt therefor, in which it was stated that he agreed to deliver lumber therefor in accordance with the terms of the above letter during the months of March and April, 1910. or for a period of 60 days thereafter, in event that that time was needed to make such delivery. Of this sum, Cox paid to plaintiff $175 on the indebtedness due by him, and informed him of the correspondence and agreement he had made with the Kimball Lumber Company for the sale of his lumber. On April 1, 1910, Cox began sawing lumber, and in the latter part of that month notified the Kimball Lumber Company to send its agent to estimate the amount of lumber then stacked at the mill.

The case was tried by a jury, which returned a verdict in favor of the Kimball Lumber Company for the lumber, and placed its value at $400. From the judgment entered upon this verdict, both parties have appealed. Plaintiff has appealed, for the purpose of reversing the judgment, chiefly upon the ground that there was no delivery of the lumber to the Kimball Lumber Company, so as to complete the alleged sale thereof to it. The Kimball Lumber CompaIn pursuance of this request, the Kimball ny has appealed on the ground that the unLumber Company sent its agent, who on controverted.testimony shows that the value April 29, 1910, estimated the lumber then on of the lumber was largely in excess of $400. the yard. At that time, the lumber was stacked in piles at the mill, and this agent estimated the amount in each pile, and then placed upon each pile the amount so estimated by him, and also tagged or marked each pile with the name of the Kimball Lumber Company. This agent and said J. M. Cox, and his son and manager, W. H. Cox, testified that said J. M. Cox then sold and delivered the lumber to the Kimball Lumber Company, and that it was understood by the parties that the lumber was then the property of the Kimball Lumber Company. They testified that they estimated the lumber at 22,000 feet; that according to the contract Mr. Cox was to receive $10 per thousand on such estimate, but had already received $400 thereon, which was more than the estimate entitled him to; that the remainder of the purchase money for said lumber was to be paid after it had been hauled to the railroad station, and there graded and measured and placed on board the cars. The testimony on the part of the defendant tended further to prove that the Kimball Lumber Company directed and employed said Cox to move this lumber to the railroad station, which he did in the early part of June. Thereafter the plaintiff instituted this action and replevined the lumber.

It appears from the testimony in behalf of plaintiff that on May 2, 1910, said J. M. Cox was indebted to him in the sum of $860.80, and that they then entered into a written contract, whereby, amongst other things, it was provided that said Cox did release and sell to said plaintiff "all the lumber stacked in the yards of the mill at Cypress or near that place, with the exception of the lumber taken up and sold to the Kimball Lumber Company." On May 28, 1910, Cox gave to plaintiff an order upon the Kimball Lumber Company for $424, which said company re

[1] The court gave a number of instructions, both at the request of the plaintiff and of the defendant, relative to the question as to whether or not the alleged sale of the lumber to the Kimball Lumber Company was completed, and the title passed to it. We do not think that it would serve any useful purpose to set these instructions out or to note them in detail. We are of the opinion that the court committed no prejudicial error in its rulings relative to the instructions given or refused, and that those given sufficiently presented to the jury the law applicable to this case. The question then to determine is whether or not there is sufficient evidence to sustain the finding of the jury that the alleged sale of the lumber to the Kimball Lumber Company was consummated by sufficient delivery thereof.

[2] It is urged by counsel for plaintiff that a sale is not complete as long as anything remains to be done between the buyer and seller in relation to the goods, and that for this reason the alleged sale to the defendant under the evidence was not complete. If there was a sufficient delivery of the lumber to the defendant, then, under the testimony, the only thing that remained to be done between him and the seller, J. M. Cox, was for defendant to pay the remainder of the purchase money for the lumber, after grading and measuring it. In the case of Beller v. Block, 19 Ark. 573, it was said: "The purchase money may remain to be paid, and yet the purchase be complete, if the goods are delivered." It has been uniformly held by this court that the title to personal property will pass, and the sale be complete, if it is the intention of the parties to transfer the title, on the one part, and to accept the property, on the other, and in pursuance thereof a delivery is made, even though something remains to be done, as, for example, the fix

ing of the quantity or amount of the prop- | by whether or not it was the intention of the erty or the payment of the purchase money. parties to fully consummate the sale and Chamblee v. McKenzie, 31 Ark. 155; Gans v. pass the title, and as to whether or not such Holland, 37 Ark. 483; Shaul v. Harrington, a delivery thereof was made as the nature 54 Ark. 305, 15 S. W. 835; Priest v. Hodges, 90 Ark. 131, 118 S. W. 253; Guion Merc. Co. v. Campbell, 91 Ark. 240, 121 S. W. 164.

of the property would admit of, and such outward indicia or marks of a change of ownership had been made, so as to advise third parties dealing therewith of such change of the ownership. Lee Wilson & Co. v. Crittenden County Bank, 135 S. W. 885.

[4] In the case at bar, the testimony on the part of the defendant shows that its agent was sent to the mill to estimate the lumber then stacked upon the yards, and to take it up for the defendant. The lumber was stacked in piles, and this agent then estimated it in the presence of the seller, and after doing so marked upon each pile the number of feet it contained, and also the name of the Kimball Lumber Company, to whom the owner then sold it, and by these outward indicia of possession both the seller and the buyer intended to show that the lumber was actually delivered to the Kimball Lumber Company. Both the seller and the agent of the buyer testified that it was the intention then to make

Thus, in the case of Lynch v. Daggett, 62 Ark. 592, 37 S. W. 227, it was held that a contract of sale was complete, although the property was thereafter to be moved by the seller to the place named. In the case of Anderson-Tully Co. v. Rozelle, 68 Ark. 307, 57 S. W. 1102, it was held that a sale was complete, and the title to lumber passed to the buyer, although it was thereafter to be hauled to another place and there measured, and the balance of the purchase price determined by such measurement was then to be paid. [3] The question then recurs, Was there a sufficient delivery of the lumber to the Kimball Lumber Company to make the sale complete as against the rights of the subsequent purchaser? In the sale of personal property, the delivery of the thing sold is essential as against the rights of third parties asserting a title, right, or interest therein subsequently a complete sale of the lumber and pass the tiacquired from the seller. A delivery may be either actual or constructive, and in either event it will be effective to pass title. Where property is of such a nature and so situated that actual delivery thereof can be made, then that is necessary. Where the property is too ponderous and bulky for an actual change of its possession, a symbolical or constructive delivery thereof will be equivalent to and effective as an actual delivery. The delivery of such property may be made by doing everything necessary to identify it, and by placing on it outward indicia to show a change of the possession and ownership.

tle thereto to the defendant. Of this the plaintiff was notified, because thereafter, on May 2d, he entered into the above-written contract with said Cox, by which said Cox sold to him the other lumber, and in this contract it is expressly stated that the lumber in controversy had been taken up and sold to the Kimball Lumber Company and was excepted from said contract of sale to the plaintiff. In addition to this, at the time the lumber was estimated and marked in the name of the Kimball Lumber Company, an agreement was made between the defendant's agent and said Cox, the seller, that Cox would haul the lumber to the railroad station for the defendant, which was done; and this suit was not instituted until after such removal had been made.

We are of the opinion that there was suffcient evidence adduced upon the trial of this case to show a delivery of the lumber by said Cox to the Kimball Lumber Company on April 29th, and that such delivery was made

In the case of L. R. & Ft. S. R. Co. v. Page, 35 Ark. 304, it was held (quoting syllabus): "What constitutes delivery depends upon the situation and character of the property. Removal from the premises is not necessary. It is sufficient if the contract of sale has been definite and unconditional, and everything has been done in pursuance of it by the vendor which is necessary to identify the prop-in pursuance of a sale which, according to erty and separate it from the other, so that it may be known what, specifically, has been sold."

In the case of Smith v. Jones, 63 Ark. 232, 37 S. W. 1052, it was held (quoting syllabus): "Proof that the vendors of a large quantity of lumber directed the vendees to mark it in their name, which was accordingly done, is sufficient to support a finding that there was a delivery of the lumber in pursuance of sale." See, also, King & Clopton v. Jarman, 35 Ark. 190, 37 Am. Rep. 11.

It will thus be seen from these cases that the question as to whether or not a contract of sale is complete, so as to pass title as against those subsequently obtaining an interest or claim to the property, is determined

the intention of both buyer and seller, was then complete, and that the title then passed to the Kimball Lumber Company, although it was understoood that the balance of the purchase money was thereafter to be paid after the lumber had been graded and exact measurement made thereof. The title to the lumber having passed to the defendant on April 29, 1910, the plaintiff could not obtain title thereto from Cox by the bill of sale executed to him on June 1, 1910.

[5] It is urged by counsel for defendant that the uncontroverted evidence shows that the value of the lumber was far in excess of $400, and that it amounted at the lowest sum to $680, the price at which it was subsequently sold by the plaintiff. The defend

ant asks that the judgment be affirmed, in so far as it adjudges a recovery of the property to it, and it only seeks to have this judgment modified in regard to the value of the property. The verdict upon which this judgment is based is entire, and, even if it should be held that the judgment could be in part affirmed and in part modified, we do not think that such modification is warranted by the testimony relative to the value of this lumber. The lumber never had been graded, and there is no testimony as to its exact grades, or as to the amount that there was in the different grades. It appears from the letter of defendant introduced in evidence that the lumber of this character runs from common No. 1 to firsts and seconds, and that the value thereof ranges from $10 per M to $28 per M. There were 22,000 feet of lumber replevined, and we cannot say from this testimony whether it was of the value of $10 per M or more. We cannot say, therefore, from the testimony adduced that the jury were not warranted in finding the value of this lumber to be $400.

refusal of defendant to perform his contract for the sale of land. The complaint alleges, in substance, that plaintiff and defendant entered into an oral contract, whereby the defendant agreed to sell to the plaintiff certain tracts of land in Sevier county, Ark., for the sum of $8,000; "that it was understood and agreed by and between the parties at the time of said transaction that said lands were bought by plaintiff for the purpose of speculation, and defendant agreed at the time to make a deed conveying same to any party to whom plaintiff should sell said lands, and that plaintiff should be entitled to all sums for which he should sell same in excess of $8,000;" that plaintiff negotiated a sale of the lands with one Charles Hammond for the sum and price of $11,500; that, pursuant to said contract, the defendant executed a warranty deed conveying said lands to Hammond, which deed, together with a draft for the amount of the purchase price, was delivered to the cashier of a bank in De Queen, to be held by said bank until such time as the abstract of title to said lands might be perfected; that plaintiff was required to, and did, pay to said bank the sum of $100 as a forfeit in case plaintiff failed to comply with his contract by causing $8,000 (Supreme Court of Arkansas. Feb. 19, 1912.) to be paid to defendant when the abstract of 1. FRAUDS, STATUTE OF (§ 103*)-SUFFICIEN-title was perfected and the deed ready for

The judgment is accordingly affirmed.

BARR v. JOHNSON.

CY OF WRITING-DELIVERY OF DEed.

Defendant agreed orally to sell land to plaintiff and make the deed to whomever plaintiff might sell it, and plaintiff negotiated a sale to H., and defendant executed a deed to H. and delivered it to a bank, but afterwards sold the land to another. Held, that the delivery of the deed to the bank did not take plaintiffs contract with defendant out of the statute of frauds, so as to entitle him to sue for breach thereof.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 208; Dec. Dig. § 103.*]

CY OF WRITING-ESCROW DEED.

delivery. It is further alleged that the defendant subsequently sold the land in violation of his contract to another person, and refused to perform his contract with plaintiff. The prayer of the complaint was for the recovery of $3,500, the difference between the price to be paid by Hammond and the price defendant agreed to accept from plaintiff. The defendant answered, denying all the allegations of the complaint as to the contract, and pleading the statute of frauds.

2. FRAUDS, STATUTE OF (§ 103*)—SUFFICIENThe testimony in the case tended to establish the allegations of the complaint as to the oral agreement and as to the delivery of the deed to the bank and the posting by

The delivery of a deed in escrow takes an oral agreement to sell land out of the statute of frauds.

[Ed. Note.-For other cases, see Frauds,

Statute of, Cent. Dig. § 208; Dec. Dig. § 103.*1 plaintiff of the forfeit; but it further shows

3. BROKERS (§ 43*)-SALE OF LAND-CONTRACT FOR COMMISSIONS.

A contract to sell land on commission is not within the statute of frauds.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 44: Dec. Dig. § 43;* Frauds, Statute of, Cent. Dig. § 131.]

Appeal from Circuit Court, Sevier County; Jeff T. Cowling, Judge.

Action by J. K. Barr against Bert Johnson. From a judgment for defendant, plaintiff appeals. Affirmed.

Collins & Collins, for appellant. Otis T. Wingo, J. S. Lake, J. S. Steel, Jas. D. Head. and Jas. D. Head, Jr., for appellee.

McCULLOCH, C. J. This is an action to recover damages on account of an alleged

that Hammond declined to accept the deed on account of alleged defects in the title. Plaintiff testified that he did not refuse to accept a conveyance himself, and that he could have bought it, and would have gotten the money to pay for it notwithstanding Hammond's refusal to accept the deed.

The court gave a peremptory instruction in, favor of defendant, and this appeal challenges the correctness of that ruling.

[1] The oral contract between plaintiff and defendant was, of course, within the statute of frauds and void. Counsel for plaintiff insist, however, that the delivery of the Hammond deed to the bank in escrow takes the case out of the operation of the statute. It is said that the trial judge based his ruling on the decision of this court in Henderson

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes