nut Lake Company. Such a contract was finally agreed upon. It was dated October 16, 1907, and is as follows:

"This agreement, made and entered into on the 16th day of October, 1907, between the Walnut Lake Cypress Company, a corporation organized and doing business under the laws of the State of Arkansas, party of the first part, and the Alf Bennett Lumber Company, a corporation organized and doing business under the laws of the State of Missouri, party of the second part. Witnesseth:

"Whereas, the party of the first part is operating a saw mill for the manufacture of cypress, oak and gum lumber and lath at Walnut Lake, Arkansas; and,

"Whereas, it is deemed mutually advantageous for the party of the second part to be the exclusive sales agent for the party of the first part for its entire cypress, oak and gum manufactured products aforesaid, for the period of time hereinafter set out in this contract, and upon the terms and conditions set out;

"Now, therefore, to that end it is agreed between the parties hereto as follows:

"1. The party of the first part agrees that, during the life of this contract, the party of the second part shall be its exclusive sales agent for the sale and marketing of the entire cypress, oak and gum manufactured products of its saw mill and plant as aforesaid.

"2. As such sales agent, the party of the second part shall fix the selling price of said manufactured products, subject to the approval of the party of the first part, and shall pay the party of the first part the same price that they obtain for such products.

"3. In the event that the party of the first part receives orders for any of its cypress, gum and oak lumber products direct from proposed purchasers or through any sources other than the party of the second part, such orders shall be filled upon the direction and order of the party of the second part.

"4. All shipments shall be made and billed and invoiced to the persons and as directed by the parties of the second part.

"5. The party of the second part agrees to guarantee the payment of the net amount (after deducting commissions

of the party of the second part) upon all shipments sold and delivered through orders secured by the party of the second part within fifteen (15) days from the date of invoice or invoices for such shipments.

"6. In the event that, upon shipments paid for to the party of the second part, the purchaser shall make deductions on account of the grade of the lumber shipped, or because of damage in transit, the party of the second part shall be credited by the party of the first part with the amount of such deductions, and adjustments shall be made between the party making such deductions and the party of the first part.

"7. The party of the second part for its services shall be entitled to, and may retain, out of any settlement made with the party of the first part, a commission of 5 per cent. upon the net amount of invoices for all shipments, after deducting freight, in addition to the regular 2 per cent. discount for cash.

"8. In view of the fact that settlements between the parties hereto on account of shipments will often be made on estimated freight charges, it is agreed that monthly corrections and adjustments of the accounts of the parties hereto shall be made on or before the 10th day of each calendar month throughout the year.

"9. This contract shall be and remain in force and effect as long as the party of the first part is operating their plant at that point, and until all the timber they now own and shall in the future purchase shall have been cut into lumber.

"10. It is further agreed that the party of the first part shall have the right to inspect all orders on the books of the party of the second part whenever they may desire, and the party of the second part obligates itself at all times to secure the highest market price which it is their ability to obtain.

"11. It is understood that any local sales of lumber by the party of the first part in less than carload lots shall be exempt from the commission of the party of the second part."

After the contract had been entered into, the Bennett Company proceeded to lend the Walnut Lake Company the sum of fifteen thousand dollars, as had been verbally agreed upon. The loan was made during the winter of 1907 and 1908. As the notes became due, they were renewed from time to time,

and the accruing interest was by agreement between the parties entered on the books of the Bennett Company as an open account charged against the Walnut Lake Company. The Walnut Lake Company commenced cutting lumber in May, 1908, and the Bennett Company, as its agent, began to sell the output under the terms of the contract. The testimony shows that it requires from three to four months for lumber to become sufficiently dry to ship, and that none of the stock of the Walnut Lake Company was in condition to ship until about the middle of July. On October 26, 1908, Mr. Craft wrote to the Bennett Company and cancelled the contract between the two companies. The letter stated that the Bennett Company had failed to make sales according to the contract and to advise truthfully in regard thereto, and that for these and many other violations of the contract the Walnut Lake Company cancelled the contract and refused to permit the Bennett Company to make any further sales of lumber for it.

On October 28, 1908, a meeting of the stockholders of the Walnut Lake Company was held, and a resolution to dissolve the corporation was adopted. On October 30, 1908, a petition was filed in the chancery court praying for the appointment of a receiver to take charge of the assets of the company. This was done in pursuance of section 958, Kirby's Digest, which provides that when any corporation has surrendered its charter the chancery court shall have jurisdiction to pay its debts and to distribute its assets among the stockholders according to their several interests.

A receiver was duly appointed, and subsequently filed a report showing assets amounting to $229,388.55 and liabilities in the sum of $87,866.67. On December 5, 1908, the Alf Bennett Company filed an intervention in the nature of a claim for damages in the sum of $32,000, which it alleged it would have earned under the contract had it been permitted to have carried it out. In its intervention it alleged that it had complied with its part of the contract, and that the notification of the abrogation of the contract, the surrender of the charter and the appointment of a receiver were in pursuance of a conspiracy entered into by the stockholders of the Walnut Lake Company for the purpose of evading the obligations of the contract between that company and the Bennett Company.

On January 20, 1909, the court ordered the receiver to sell the assets of the Walnut Lake Company at public sale. This was done on February 28, following, and the entire property was bought in by Mr. Craft for $115,000. Craft gave bond to secure the deferred payments, with Mr. Bacon and Mr. Ladd as his sureties. Mr. Craft in purchasing the assets of the receiver acted for himself, for Mr. Ladd, Mr. Shultze and Mr. Guthrie. Mr. Bacon had already sold his interest to Mr. Ladd. Immediately after the sale the mill and all the assets were turned over to the new company, which had been organized with the same stockholders, except Mr. Bacon, who had sold his interest to Mr. Ladd, and Mr. Guthrie who had subscribed for five thousand dollars stock in the new company. The new company, called "The E. P. Ladd Cypress Company," took up the indebtedness of the Walnut Lake Company, and proceeded to operate the saw mill. It operated it for the next three years, and during the time cut about eighteen million feet of lumber.

The testimony in the case is very voluminous, and, that the opinion may not be too long, the remaining facts in the case will be stated and referred to under appropriate headings in the opinion.

The chancellor found in favor of appellee, Walnut Lake Cypress Company, and the case is here on appeal.

A. H. Rowell and Charles A. Houts, for appellant.

1. The contract was not induced by any misrepresentations on the part of Bennett, and the claim that he violated the contract is without merit, there being no substantial violation.

2. If there were any violations by appellant of the contract, or any misrepresentations in inducing the contract, they were waived by the Walnut Lake Company when Ladd, after charging Bennett with all the violations which appellees now claim authorized the cancellation, and with full knowledge of all the facts, offered Bennett one thousand dollars to cancel the contract, and, on being refused, asked for and obtained a loan to the Walnut Lake Company of five thousand dollars additional, and thereafter they proceeded under the contract to sell lumber just as before. 88 Ark. 491.

3. The contract was not terminable under its terms until all the timber owned by the Walnut Lake Cypress Company was cut into lumber. See paragraph 9 of the contract. 69 Fed. 773; 108 Ill. 656; 40 Minn. 497; 1 Wash. 579; 116 Wis. 549; 61 Mo. 534.

4. The assets in the hands of the receiver of the Walnut Lake Cypress Company are liable for any damages accrued to appellant by reason of the abrogation of the contract. 60 Minn. 284; 74 Minn. 98; 40 Atl. (N. J.) 591; 54 O. St. 157.

5. The damages claimed by appellant are the proximate and certain result of the breach of contract. 78 Ark. 336.

Bradshaw, Rhoton & Helm and Danaher & Danaher, for appellees.

1. The court was right in finding that the contract was obtained by misrepresentations. Bennett's statements that he possessed good ability in selling cypress lumber, had better facilities for making sales than appellee cypress company, and could handle its output to better advantage, induced the latter to enter into the agreement. It was not, as appellant claims, a mere expression of opinion, but was a statement of a material inducing fact.

2. There was no waiver. In order to constitute a waiver, there must exist either an agreement to waive, based on a valuable consideration, or an implied waiver based on the conduct of the party amounting to an estoppel. 130 Cal. 245, 253; 116 N. W. 132, 136; 140 Mass. 261, 264; 35 Minn. 451; 98 Mo. App. 53; 57 N. Y. 500; 1 Am. Rep. 548; 30 N. Y. 136; 86 Am. Dec. 362; 132 N. Y. App. Div. 250; 24 Id. 547; 63 O. St. 183; 79 Pa. St. 46; 95 Tenn. 38; 41 Am. Rep. 647; 31 Tex. 633; 40 Vt. 316. Conduct forced upon a party by circumstances can not be held to be voluntary, and waiver can not be predicated thereon. 12 Ill. App. 463; 19 Wis. 26; 69 N. C. 7; 34 La. Ann. 209; 17 N. Y. 173, 72 Am. Dec. 442; 33 O. St. 336.

3.

Appellant's contention as to the duration of the contract is untenable. There is nothing in paragraph 9 to indicate an intention to bind the appellee cypress company to operate the plant for any definite time, or to cut all the timber then owned into lumber. The manifest intent of the parties was