forfeiture thereby created is necessary to protect them against unnecessary and injurious delays, and to protect them against an unprofitable lease being perpetuated by laches and kept hanging over their property like clouds upon titles, and to relieve their land of a burden.

"The findings of the court in favor of the plaintiffs for the value of the machinery is based on the theory that it was a fixture, became and was a part of the realty, and, defendant having removed the same, plaintiff could recover its value." This is error. Whether it was a fixture is determined by the intention of the parties expressed in clear and unambiguous language: Choate v. Kimball, 56 Ark. 55, 19 S. W. 108; Ozark v. Adams, 73 Ark. 227, 83 S. W. 920.

The lease clearly shows that the machinery was to remain the property of the lessees. After stipulating that the lessees should have the right to make certain improvements, it then provides: "It is further agreed and understood that the party of the second part is to pay all taxes on improvements placed on the said premises by said party of the second part, and the taxes on the realty are to be paid by the party of the first part."

After stipulating that royalty shall be paid, and that the lease shall be forfeited if it is not paid in ninety days after it is due, it then provides: "And in no case shall any machinery or other improvement be removed from the premises or disposed of by the party of the second part, his successors or assigns, until said royalty is fully paid. And it is expressly understood and agreed that said parties of the first part, or their legal representatives, shall have a first lien upon all of said improvements and machinery that are now upon said leased premises or may hereafter be put thereon by the party of the second part, his successors or assigns, until royalties herein provided for are fully paid."

504

And then this stipulation follows: "It is further understood and agreed that the party of the second part, his successors or assigns, may at such times as he or they may deem best move or cause to be moved any buildings, machinery, railroad tracks or materials which he or they have put upon said premises without force or process of law, provided, however, that the royalty has been paid as aforesaid and work commenced within ninety days as aforesaid. It is understood and agreed by the parties hereto that the party of the second part, his successors or assigns, shall have the right to sublet said premises for the purpose of mining coal as aforesaid, subject to all the conditions of the lease."

The only interest the lessors were to have in the machinery was a lien for unpaid royalty.

The decree as to the cancellation of the lease is affirmed; and the judgment for three thousand one hundred and sixtyseven dollars is reversed.

Forfeitures will be Enforced, either by a court of law or of equity, when it is clear that the parties have agreed to one: Equitable Loan etc. Co. v. Waring, 117 Ga. 599, 97 Am. St. Rep. 177.

Relief in Equity from Forfeitures is the subject of a note to South Penn. Oil Co. v. Edgeli, 86 Am. St. Rep. 48.

The Forfeitures of Leases is the subject of a note to Guffy v. Hukill, 26 Am. St. Rep. 910; and the waiver of such forfeitures is the subject of a note to Moses v. Loomis, 47 Am. St. Rep. 197.

When and Against Whom Fixtures may, by agreement, retain the character of personal property, is the subject of a note to Fuller-Warren Co. v. Harter, 84 Am. St. Rep. 877.

HARRIS v. GRAHAM.

[86 Ark. 570, 111 S. W. 984.]

APPEAL AND ERROR.-The Court will not Review Instructions not Set Out in the Abstract. (p. 1113.)

MECHANIC'S LIEN Against the Property of a Married Woman-Estoppel.-A wife by silently acquiescing in a contract made and signed by her husband only may estop herself from deny ing his authority or his ownership of the property. (p. 1113.)

MECHANIC'S LIEN-Estoppel Against Married Woman.-If a husband contracts for improvements on his wife's property with one who believes him to be the owner, and she, knowing this fact. permits the work to be done without disclosing her title, she is estopped from setting up such title in defense of an action brought to enforce a mechanic's lien. (p. 1113.)

MECHANIC'S LIEN.-Where There has been a Lack of Substantial Performance of the Contract by Contractor, he cannot establish a lien on the property. (p. 1114.)

MECHANIC'S LIEN-Building, When does not Become the Property of the Land Owner.-Where a contractor agrees to build and deliver a house on the land of another, such house does not become the property of the land owner until it is finished in substantial conformity with the contract, or is accepted by him. (p. 1115.)

JURY TRIAL-Condition of Verdict-When Should be Entered. If, in an action to enforce a mechanic's lien, the jury returns a verdict for the defendant in a suit to enforce a mechanie's lien, but states to the court that it is intended that the plaintiff should be permitted to remove the building, and the defendant asks for a judgment on the verdict, and to have the records show that the plaintiff be permitted to remove such building, the court errs in refusing to enter judgment on the verdict. (p. 1115.)

Manning & Emerson, for the appellants.

Thomas & Lee, for the appellees.

571 HILL, C. J. This was a suit by Graham & Bordley, as contractors, to obtain judgment and enforce a lien for erecting a dwelling-house for H. C. Harris and his wife, Lillie R. Harris. The contract price of the house was two thousand seven hundred and fifty-five dollars, and was to have been built by Sample & Hoaglan, whose performance of the contract was guaranteed by Graham & Bordley; and, Sample & Hoaglan failing to proceed with the work, it was assumed by Graham & Bordley.

The contractors claimed a balance of two thousand six hundred and five dollars due them for the work of each of the said contractors, Sample & Hoaglan, and themselves. They filed a lien in substantial conformity with the statute, and brought suit for the said amount and to enforce said lien.

The defendants denied that the house had been built pursuant to the plans and specifications, setting forth with much detail various and divers defects, which they alleged occurred, justifying them in rejecting the house as one built pursuant to their contract. The defendants further alleged that Mrs. Harris owned the property upon which the building was to be erected 572 in her own right, and denied that she had entered into any contract with the plaintiffs or with Sample & Hoaglan, or either of them, and denied that she was indebted to them, or that the property was subject to lien.

The contract was signed by H. C. Harris, and not by Mrs. Harris. The title to the lot stood in the name of Mrs. Harris. There was evidence adduced tending to prove that the contract was substantially complied with, and evidence tending to prove that it was not substantially complied with. There was also evidence that Harris notified the contractors before the completion of the work that it was not satisfactory, and he would not accept it, and for them to remove their material from his ground. There was sufficient evidence to have sustained a verdict either way on the issue of substantial compliance.

The record discloses the following facts: After the case was submitted to the jury, and the argument of counsel closed, the jury returned into court and announced the following verdict: "We, the jury, find for the defendant," and, upon being asked if that was their verdict, one of the jurors stated that it was, but it was intended by the jury that the plaintiffs should be permitted to remove the building from the lot

of the defendant, whereupon the court, of its own motion, and over the objections of the defendants, announced to the jury that it would not receive that verdict, and over the objections of the defendants ordered the jury dispersed for the night, but to return to the courtroom the following morning for further consideration of their verdict. Thereupon the defendants announced to the court that the defendants desired a judgment on the verdict of the jury, and to have the records show that the plaintiff should be permitted to remove the building from said lot of the defendants, but the court overruled the motion of the defendants, and refused to receive the verdict of the jury in behalf of the defendants, to which ruling of the court defendants saved their exceptions. Upon the following morning, the twelfth day of December, 1906, the defendants renewed their motion for a judgment upon the verdict of the jury, and to have the judgment recite that the plaintiffs should have permission to remove buildings from the lot of the defendants, but the court overruled the motion of the defendants and refused to receive a verdict of the jury in behalf of the defendants, to which they saved their exceptions.

573 The record of the proceedings of the next day reads as follows: "Instruction No. 3, given by the court of its own motion, over the objections of the defendants, and given after argument of counsel had been made to the jury, and after the jury had received instructions on part of the plaintiff and the defendant, and the cause had closed, and after the jury had returned into court and announced a conditional verdict in favor of the defendants, which verdict was not received by the court, and which instruction was given by the court of its own motion over the objections of the defendant, to which the defendants at the time excepted, and asked that their exceptions be noted of record, which was done; said instruction being as follows: 'If you believe from the evidence that the house had been completed substantially according to contract, but has slight defects in its construction, either in material or workmanship, and you further find that said house is on the land of defendants, and said building inures necessarily to the benefit of the said defendants, then you should find for the plaintiffs for the contract price, less whatever amount the evidence shows the defendants are damaged on account of said defects.'

Thereafter the jury returned the following verdict: "We the jury, find for the plaintiffs fifteen hundred and thirty

seven dollars and fifty cents." Judgment was entered thereon, and Harris and his wife appealed therefrom.

575 Appellants criticise the instructions, and allege various errors therein; but they have not set out the instructions in their abstract. They argue the instructions as if there were five transcripts here, and each judge had a transcript before him when he was reading their criticisms of the instructions. The rule that the abstract is to acquaint the judges with the material parts of the record seems to be overlooked. The court has so often said that it will not review instructions thus presented that it is unnecessary to cite the cases.

The property stood in the name of Mrs. Harris, and the contract was made by Mr. Harris, and it is insisted that there can be no recovery against her upon the terms thereof, and that a lien cannot be enforced upon her property without the contract having been signed by her or her agent.

In Hoffman v. McFadden, 56 Ark. 217, 35 Am. St. Rep. 101, 19 S. W. 753, the court said: "A married woman may, by silently acquiescing in the contract of one who to her knowledge assumes to act as her agent, be estopped to deny the agency. And where the husband contracts for the improvement of his wife's property with one who believes him to be the owner, and the wife, knowing this fact, permits the work to be done without disclosing her right, it has been held that she will be estopped to set up her title in defense of an action to enforce the contractor's lien."

The evidence here is sufficient to justify the jury in finding against Mrs. Harris upon either of these propositions.

The principal question in the case is as to the verdict rendered by the jury in favor of the defendants and the refusal of the court to accept it when one of the jurors announced that the jury intended by that verdict for the plaintiffs to have the building, and that they be permitted to remove it. Under sections 6203, 6204 of Kirby's Digest, if any juror dissents from the verdict as delivered by the foreman, the jury must be sent out for further deliberation. But this is not a case falling within the statute. The juror's announcement was not a dissent, but an explanation of the intended effect of the verdict for the defendants. 576 As shown in

the statement of facts, there was a sharp conflict as to whether there were material variations from the contract, or whether there had been a substantial performance of it. The verdict of the jury for the defendants necessarily found that there were substantial and material deviations from the contract which justified the defendant in not accepting the building,