would result in the sale of a chattel, the party cannot sue for work and labor; but, if the result of the contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered." The learned judge, by way of illustration, said: "If a sculptor were employed to execute a work of art, greatly as his skill and labor, supposing it to be of the highest description, might exceed the value of the marble on which he worked, the contract would, in my opin ion, nevertheless be a contract for the sale of a chattel."

In that case the suit was for the price of a set of artificial teeth which the plaintiff, a dentist, had especially prepared for defendant after measurement of his mouth, and the latter died before delivery or acceptance of the teeth. The court held that 276 the contract was one for sale of the completed chattel, and was within the statute of frauds.

The doctrine announced in Lee v. Griffin has not been generally adopted by the American courts, but a majority have followed the rule declared in substance by the supreme court of Massachusetts that "an agreement by one to construct an article especially for or according to the plans of another, whether at an agreed price or not, although the transaction is to result in a sale of the article, is a contract for work and labor, and not within the statute; but if the article to be made and delivered is of a kind which the producer usually has for sale in the course of his business, it is a contract for sale, and must be in writing": 20 Cyc. 241, 242; Browne on the Statute of Frauds, sec. 309a; Mixer v. Howarth, 21 Pick. 205, 32 Am. Dec. 256; Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; Lamb v. Crafts, 12 Met. (Mass.) 353; Cason v. Cheely, 6 Ga. 554; Hight v. Ripley, 19 Me. 137; Crockett v. Scribner, 64 Me. 447; Forsyth v. Mann. 68 Vt. 116, 34 Atl. 481, 32 L. R. A. 788; Bird v. Muhlinbrink, 1 Rich. (S. C.) 199, 44 Am. Dec. 247; Bagby v. Walker, 78 Md. 239, 27 Atl. 233; Pratt v. Miller, 109 Mo. 78, 32 Am. St. Rep. 656, 18 S. W. 965; Higgins v. Murray, 73 N. Y. 252; Parker v. Schenck, 28 Barb. 38; Mead v. Case, 33 Barb. 202; Meineke v. Falk, 55 Wis. 427, 42 Am. Rep. 722, 13 N. W. 545; Allen v. Jarvis, 20 Conn. 38.

There is some little apparent conflict in the decisions of the American courts in their application of the law to the facts of the various cases, but it is found that the principle

announced in nearly all of them may be harmonized upon the Massachusetts rule just stated,

Now, in the case at bar, the facts, as found by the jury upon conflicting testimony, were that the plaintiff operated a marble yard, and took orders for completed tombstones according to patterns and designs displayed in a catalogue. It is not shown by the evidence the precise condition the material out of which plaintiff constructed the tombstone was in when the order was given, but the plaintiff and another witness introduced by him testified in general terms that he made the tombstone after defendant gave the order for it according to the design selected, and cut the inscription upon it which the defendant selected. It was constructed in accordance with the design selected by defendant, and the names and dates were inscribed thereon as he directed. This brought the case within the rule announced, and the court 277 properly refused to instruct the jury that the contract was within the statute of frauds.

Affirmed.

A Contract to Manufacture ironwork upon a special order and according to a particular design, and not such as is manufactured for the general trade in the ordinary course of the manufacturer's business, is not within the statute of frauds: Hientz v. Burkhard, 29 Or. 55, 54 Am. St. Rep. 777. See, also, Warren etc. Mfg. Co. v. Halbrook, 118 N. Y. 586, 16 Am. St. Rep. 788; Pratt v. Miller, 109 Mo. 78, 32 Am. St. Rep. 656.

MITCHELL v. YOUNG.

[80 Ark. 441, 97 S. W. 454.]

LANDLORD AND TENANT—Subletting by Lessee.-If there is no covenant in a lease against subletting, the lessee has a right to sublease all or any part of the premises; and when he does so, he cannot, by a surrender to the lessor, defeat the rights of the undertenant. (p. 90.)

APPEAL Bringing Up the Evidence.-A bill of exceptions is not open to objection because it does not show affirmatively that it contains all the evidence; if it shows inferentially and by natural implication from the language used that it contains all, this is sufficient. (p. 91.)

APPEAL.-When It is Contended that the Appellant did not except to the overruling of a motion for a new trial, it is sufficient that the record shows the exception. (p. 91.)

James A. Comer, for the appellant,

Bradshaw, Rhoton & Helm, for the appellee.

443 HILL, C. J. Appellee Young, as lessee of the Metropolitan Hotel in the city of Little Rock, brought an action of unlawful detainer against Mitchell, the appellant, to obtain possession of a room in the lobby of said hotel occupied by Mitchell as a barber-shop. On the trial before a jury the court directed a verdict for the plaintiff in said action, and Mitchell appealed.

The evidence develops these facts: The Metropolitan Hotel was owned by one Young, and at his death passed to his heirs and was probably controlled by the administrator. Torrey had a lease upon it, and during his lease he subleased the barber-shop to Mitchell. This was in writing, and stipulated that, should Torrey get a renewal of his lease, it would carry a like renewal of Mitchell's lease of the barber-shop. Torrey did obtain a renewal, and recognized Mitchell's renewed lease. Mitchell held for about two years under the renewed lease, and Torrey died in possession of the leased premises. Thereafter Torrey's administrator and the Young heirs and the administrator of Young consented to an order of probate court canceling the Torrey lease, which still had some time to run. After this agreed cancellation of the Torrey lease the hotel was leased to Roger Young, the appellee, who had knowledge of Mitchell's occupancy of the barber-shop and his lease thereof under Torrey. Mitchell was not a party to the surrender to the Torrey lease, and was not notified of the proceedings in the probate court, and has not consented thereto.

Where there is no covenant against subletting, a lessee has a right to sublease all or any part of the leased premises; and when he does so, he cannot, by a surrender of the leased premises to the lessor, defeat the rights of his undertenant. The interests of the undertenant will continue as if there had been no surrender, the owner of the property becoming the direct landlord 444 of the undertenant. The lessee could only surrender what belonged to him, and, having sublet part of the property, it is not his to surrender. The owner takes back the premises subject to the existing rights growing out of the original lease. These principles are found stated and applied in the following authorities: Krider v. Ramsey,

79 N. C. 354; Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910; Adams v. Goddard, 48 Me. 212; Eten v. Luyster, 60 N. Y. 252; Jones on Landlord and Tenant, sec. 429.

It is urged that the bill of exceptions does not affirmatively show that it contains all of the evidence, but it does show inferentially and by natural implication from the language used that it contains all the evidence, and this is sufficient: Legett v. Grimmett, 36 Ark. 496; Overman v. State, 49 Ark. 364, 5 S. W. 588.

It is said appellant did not except to overruling the motion for new trial, but that objection is removed by correction of the record by nunc pro tunc entry. It is sufficient if the record shows the exception: Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89.

Reversed and remanded.

SUBLETTING OF LEASED PREMISES.

I. Right of Tenant to Sublet.

a. When Unrestrained by Terms of Lease, 91.
b. When Forbidden by Statute, 92.

II. Covenants Against Subletting.

a. In General, 92.

b. Construction of Covenant, 93.

c. Persons Entitled to Benefit of Covenant, 93.
d. Breach of the Covenant.

1. What Constitutes in General, 93.

2. Change in Partners of Lessee Firm, 94.

3. Involuntary Transfer of Leasehold, 94.

4. Assignment of Lease, 95.

e. Consent of Lessor to Subletting, 95.

f. Waiver of Consent or of Breach of Covenant, 96. III. What Constitutes a Subletting.

a. In General, 97.

b. As Distinguished from Assignment, 97.

IV. Rights, Liabilities, and Remedies of Parties.

a. As Between Subtenant and First Landlord, 99.

b. Right of First Lessee to Surrender Lease, 99.

c. Notice to Subtenant of Terms of First Lease, 100.

d. Remedies of First Lessor Against His Lessee, 100.

I. Right of Tenant to Sublet.

When Unrestrained by Terms of Lease. In the absence of any restriction in the lease or in the statutes, a tenant has the right, without the consent of his landlord, to sublet the leased premises, to be used for any purpose not inconsistent with the terms of the original lease: Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499; Martin v. Sexton, 112 Ill. App. 199; Goldsmith v. Wilson, 68 Iowa, 685, 28 N. W. 16; Weatherly v. Baker, 25 La. Ann. 229; Gould v. Eagle Creek School Dist., 8 Minn. 427; Simpson v. Moorhead, 65 N. J. Eq. 623, 56 Atl. 887; Phelps v. Erhardt,

53 Hun, 630, 5 N. Y. Supp. 540; Schenkel v. Lischinsky, 45 Misc. Rep. 423, 90 N. Y. Supp. 300. And it is not essential to the exercise of his right that he should be in possession: Beck v. Minnesota etc. Grain Co., 131 Iowa, 62, 107 N. W. 1032, 7 L. R. A., N. S., 930.

b. When Forbidden by Statute.-In some jurisdictions the common-law rule has been modified, so that a tenant has no right to sublet without the consent of his landlord: Dodd v. Ozburn (Ga.), 57 S. E. 701. The statutes of several states expressly forbid subletting without the lessor's consent: Gartrell v. State (Tex. Cr. Rep.), 61 S. W. 487; Brown v. Pope, 27 Tex. Civ. App. 225, 65 S. W. 42; Waggoner v. Snody, 36 Tex. Civ. App. 514, 82 S. W. 355, 85 S. W. 1134. Under this rule, a subletting without the consent of the lessor gives him the right to forfeit the lease: Markowitz v. Greenwall Theatrical Co. (Tex. Civ. App.), 75 S. W. 74. Since subletting leased premises and assigning the lease are very different transactions, a statute forbidding a lessee for a term not exceeding two years from assigning his lease without the lessor's consent does not forbid him from subletting: Moore v. Guardian Trust Co., 173 Mo. 218, 73 S. W. 143. And the consent to assign the lease is not included in the consent to sublet the premises: Morrow v. Camp (Tex. Civ. App.), 101 S. W. 819; although it has been thought that authority to sublet carries with it authority to assign the lease: Menger v. Ward (Tex. Civ. App.), 28 S. W. 821.

II. Covenants Against Subletting.

a. In General.-Independently of statute, however, it is of course competent for the parties to a lease to stipulate against subletting; and when the terms of a lease prohibit subleasing without the consent of the lessor, a valid sublease of the premises cannot be made unless such consent is obtained or waived: Meyer v. Rothchild, 46 La. Ann. 1174, 15 South. 383. If a lease gives the lessor the right to declare the term ended and to re-enter upon default of any of the covenants of the lessee, his covenant not to assign or sublet constitutes a condition upon which the leasehold is held: Kew v. Trainor, 150 l. 150, 37 N. E. 223.

In Pond v. Holbrook, 32 Minn. 291, 20 N. W. 232, the parties prepared a lease upon a printed form, in which form was a covenant not to sublet without the written consent of the lessor. Following the covenants were conditions, one of which reserved the right to re-enter in the event of a subletting without the lessor's consent. Before executing the instrument they erased the clause containing the covenants, but left unchanged the clause containing the condition. It was decided, on these facts, that such erasure did not raise an inference that they intended the condition to be of no effect.

In Walker v. Wadley, 124 Ga. 275, 52 S. E. 904, a covenant in a lease that the lessee should not sublet during the term without the