were held by the committee at the same figures. These figures represented the price at which spot cotton could be bought, but above what purchasers would pay. Spot cotton was not moving.

It further appears that on the day of the call some 230 bales of "hedged" cotton were sold in New Orleans. One lot of 100 bales strict middling was sold for $31.15.

Under a rule of the Exchange then in force, sales of "hedged" cotton could not be considered nor taken into account in fixing spot quotations. Two reasons are given for this rule:

for future delivery as to the differential between grades above and below the basis grade. Spot quotations are made under the general supervision of the United States Department of Agriculture, and in the maintenance of a "bona fide spot market" under the provisions of the Cotton Futures Act. U. S. Stat. at Large, vol. 39, part 1, p, 476 et seq., §§ 5, 6, 7, 8 (U. S. Comp. St. §§ 6309e6309i). This act evinces a policy that the market value of spot cotton shall dominate the price of futures, rather then futures dominate the price of spot cotton.

The spot quotations of the New Orleans Cotton Exchange, printed and circulated daily through the public press become "prices current," an informing agency to all those interested in current prices of this staple product. "Prices current and 'com

(1) Cotton on hand, which is hedged by the sale of a future contract, may, on a decline in the future market, be sold at a price which the holder would not otherwise accept, and still realize a profit on the whole transaction. The status of such cot-mercial lists, printed at any commercial ton is considered fixed as of the date it is hedged, and the sale on a later date is but a liquidation of a previous transaction.

mart, are presumptive evidence of the value of any article of merchandise specified therein, at that place, at the date thereof." Code (2) To prevent price manipulation and of Alabama 1907, § 3977; 6 Words and fraud, as, for example, selling spot cotton | Phrases, First Series, "Price Current," p. at a low price to establish a spot quotation, 5548; 22 C. J. p. 188, § 152. enabling the seller to realize a larger profit on his transactions in futures.

[4] The contract between these parties must be construed according to the intent exAll parties agree this was a law of the pressed therein on August 23, 1917, when Exchange. The defendant insists that, in it was made, and cannot be influenced by the absence of other spot sales, the price unusual conditions in the market on the of hedged cotton is the best evidence of day of the call, April 19, 1918. The New the market price at which cotton can be sold | Orleans market was made the controlling on that day. On the other hand, it is not market by the contract of the parties. We seriously questioned that sales of "hedged" may assume one purpose was certainly therecotton may and do occur at a price below | in—a standard market reported daily, and that for which unhedged spot cotton can be easily ascertained. It appears the market bought on that day. price furnished by plaintiff to defendant, upon which the call was made, was the spot market published that day on the Exchange in regular course. It further appears the letter from defendant to plaintiff claiming 31 cents as the basis of settlement was posted on April 21st, after receiving a telegram from New York giving directions to that effect.

There is some evidence that the market price or value of spot cotton was figured at so many points on or off the price of future contracts for the hedge month, and that a trade custom existed to that effect in the New Orleans market.

The weight of the evidence, however, is to the effect that by a well-known trade custom or usage a sale of cotton, at a price to be fixed on a future date on the basis of the value of spot cotton in New Orleans on that day, is to be settled for on the official spot quotations of that date. This evidence was prop-erly admitted. Loval v. Wolf, 179 Ala. 505, 60 So. 298; Buyck & Cain v. Schwing, 100 Ala. 355, 14 So. 48; Haas & Bro. v. Hudmon Bros. & Co., 83 Ala. 174, 3 So. 302; Guesnard v. L. & N. R. R. Co., 76 Ala. 453; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374; 17 C. J. p. 462, § 20; Id. p. 464, 26; Id. p. 503, § 66, and notes.

We adopt the above as the law of the case before us, for the following additional reasons. The spot quotations on the New Orleans Exchange have an official or quasi official character. The United States Cotton Futures Act makes the values of spot

[5] The cause was heard by the trial judge, without a jury. Evidence was taken both orally and by deposition. The amount of the judgment rendered indicates the court accepted the price basis of neither party. It approximates more nearly the basis of value presented by plaintiff than by defendant. Both parties appeal.

We think under the evidence and principles of law applicable the legal rights of these parties, as well as a settled construction of such contracts, demand a finding of the basis of value in keeping with the contention of one side or the other. There seems to be no substantial ground for a third position in the matter. These parties and the public at large should know the legal meaning of contracts of sale on call of this class.

(102 So.)

him to maintain ejectment, whether consideration is for entire subject conveyed by title, and whether contract contains any words of grant or demise.

and delivery of cotton, the price to be fixed | grantee acquires estate in land empowering at a future day on the basis of the value of spot cotton, in the City of New Orleans on that day, is presumed to mean the market value ascertained, reported, and published as the official quotation on spot cotton on the New Orleans Cotton Exchange. The burden of proof is on him who asserts that a different standard of value was intended.

For error in the amount thereof, the judgment of the court below is reversed, and a judgment will be here rendered in favor of appellant, Maxwell Planting Company, for the amount now ascertained to be due, viz. the sum of $2,882.19, with interest thereon from April 19, 1918, to this date, being the aggregate sum of $4,383.48, together with the costs of suit in this court and the court below. On cross-appeal the cause is affirmed.

5. Licenses 44(2)-Contract for removal of gravel held to constitute a license coupled with an interest.

Where a contract between owner of gravel pit and city stated that owner sells to city gravel egress, city to pay for gravel in monthly inas it may need, granted right of ingress and stallments, contained no words of demise or grant, and was not witnessed held that it constituted license coupled with an interest, that is, right to remove gravel during life of contract, and not a lease.

6. Sales 384 (2)—Difference between contract price and market price at time of default measure of damages for buyer's refusal to complete contract.

Where contract for sale of gravel stipulated thereof, on buyer's refusal to complete contract. seller's measure of damages was the difference

Reversed and rendered, on direct appeal; minimum amount to be purchased and valuation affirmed on cross-appeal.

ANDERSON, C. J., and SOMERVILLE between contract price and market price at and THOMAS, JJ.,

concur.

HOLT V. CITY OF MONTGOMERY. (3 Div. 668.)

(Supreme Court of Alabama. Oct. 16, 1924. Rehearing Denied Nov. 27, 1924.)

1. Licenses 58(1)—Revocable unless coupled with an interest.

A mere license is generally revocable at pleasure unless coupled with an interest. 2. Licenses "lease."

44 (2)-Distinguished

from

A lease is a contract for possession and profit of land by lessee and recompense of rent to lessor, and is grant of an estate in land, while a license is authority to do some act on land of another for benefit of licensee without passing estate in land.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Lease, License.]

3. Licenses

44(2)-Exclusive possession against all world test in determining whether lease or license.

In determining whether contract is a lease or license, principal test is whether or not it gives exclusive possession of premises against all the world including owner, thus constituting a lease, or whether it merely confers a privilege to occupy under owner, thereby indicating a license.

4. Licenses 44 (2)—Mines and Minerals

55(3)-Tests in determining whether contract for removal of products or mineral rights is lease or license, stated.

In determining whether contract granting right to enter grantor's land and remove products or minerals therefrom, is a lease or license, consideration will be given to whether

place and time of default, and not contract price, on theory that valuation constituted liquidated damages; fact that buyer had right of ingress and egress not affecting nature of contract.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action for breach of contract by Dan S. Holt against the city of Montgomery. From a judgment granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

The contract, the basis of the suit, is as follows:

"State of Alabama, Montgomery County.

"This agreement, made and entered into this the 8th day of November, 1919, by and between the city of Montgomery, Ala., hereinafter called the city, Ray Rushton, as receiver of Montgomery Light & Traction Company, his successors and assigns, hereinafter called the Company, and Dan S. Holt, witnesseth:

gravel as it may during the life of this con"(1) Said Holt hereby sells to the city such tract desire to purchase, and shall remove from property owned by him at Pickett Springs near the city of Montgomery, Ala., and known as Holt's gravel pit, at and for the price of ten cents (10c) per cubic yard for such gravel as is actually removed from said pit, settlement therefor to be had monthly, in accordance with the records of the city engineer of said city; and for the purpose of removing said gravel hereby grants unto the city all rights of ingress and egress over any lands owned by him with right of way for roads and tracks, poles, wires, and switches.

"(2) The city agrees to remove and pay for a minimum of thirty thousand (30,000) cubie yards of said gravel within two years from the date of this agreement, but reserves the right to remove and pay for as much more than this amount as its needs may require; the city agrees at its own expense promptly to load such cars

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 SO.-4

as may be placed upon siding at said pit at its | trial was filed by the defendant, and upon request, and agrees to unload promptly at its consideration of this motion the trial court own expense upon delivery at such points in the granted the same and set aside the judgcity of Montgomery as it may designate all grav- ment theretofore entered, and from the judgel loaded by it upon cars of the company, and ment of the court granting the motion for a agrees to pay the company for hauling such new trial the plaintiff has prosecuted this gravel as the city may load and designate delivery for the sum of fifty-two cents (52¢) per appeal. cubic yard payable at the end of each calendar month, based upon the records of the city engineer of the city.

"(3) The city further agrees and binds itself to furnish to the company, loaded upon cars at the pit, such gravel as it may need to ballast its tracks at actual fuel and labor cost to the city, of excavating and loading said gravel plus roy

alty to said Holt and plus a profit to the city

of 12 per cent. of such cost.

"(4) The company agrees, at its own expense, to lay all necessary tracks into said pit, and the city agrees at its own expense to make such changes and extensions thereafter as it may desire. The company agrees promptly to transport such gravel as may be loaded by the city, and agrees to furnish at its own expense for the purpose of transporting said gravel not less than four cars of a minimum capacity of nine cubic yards each, and will, whenever requested by the city, cause at least two of said cars to be kept at said pit for purpose of loading. The company agrees promptly to transport and deliver at any point upon any of its lines within the city of Montgomery, as may be designated by the city, such gravel as may be loaded by the city, and agrees, free of charge, to trans

port to and from said pit and to and from points

of delivery working men and employees of said city, on work cars only, engaged in loading or unloading said gravel; the company agrees to receive, transport, and deliver, as loaded and upon the direction of the city, not less than 100 cubic yards of gravel per working day. The company further agrees that any lease now existing between it and said Holt is altered to permit the sale and removal of gravel under this agreement.

"(5) It is understood and agreed, however, that except as herein expressly mentioned, the lease now existing between said Holt and Montgomery Light & Traction Company, or Ray Rushton as receiver thereof, is in no wise altered. This agreement and contract to remain in force and effect until November 1, 1921.

"In witness whereof, the said parties have hereunto set their hands and seals in triplicate, the day and year first above written. City of Montgomery, by W. A. Gunter, Jr., President Board City Commissioners. Ray Rushton, as Receiver of Montgomery Light & Traction Company, Their Successors and Assigns. D. S.

Holt."

Hill, Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Counsel for appellant treat the case as if count 4 alone appeared in the complaint, and consider that the result of this appeal turns upon a proper construction of the contract made an exhibit to this count. This contract appears in full in the report of the

[1, 2] Licenses are often granted upon such terms and conditions and upon considerations which ally them so closely to leases, that it is frequently difficult to distinguish between them. A mere license, as that term is generally used, is revocable at pleasure (17 R. C. L. 576; Riddle v. Brown, 20 Ala. 412, interest, may lose the quality of revocability. 56 Am. Dec. 202), but when coupled with an 17 R. C. L. 581. In this latter authority, on page 582, it is said:

"That while a license coupled with an interest is irrevocable, this doctrine, although unquestionably correct in a qualified sense, can only be considered as applicable to the temporary occupation of the land, but confers no right or interest in the land itself.",

The distinction between a lease and a license appears to be very well stated in a quotation found in Stinson v. Hardy, 27 Or. 584, 41 P. 116, as follows:

"A lease is a contract for the possession and profit of land by the lessee, and a recompense of rent or increase to the lessor, and is a grant of an estate in the land. A license is

an authority to do some act or series of acts on the land of another, for the benefit of the licensee, without passing any estate in the land; and when the license is to mine upon the land of another, the right of property in the minerals, when they are severed from the soil, vests in the licensee."

The above authority, with that of Massot Ludlow Elmore and Arthur B. Chilton, v. Moses, 3 S. C. 168, 16 Am. Rep. 697, conboth of Montgomery, for appellee.

GARDNER, J. Appellant sued appellee for the breach of a certain written contract, recovering a judgment for the full amount sued for, the trial court having given at his request the affirmative charge with hypothesis in appellant's favor. A motion for a new

tains a very full discussion with a review of the authorities upon this subject and the distinction here involved.

[3] One of the principal tests in determining whether or not the contract is to be interpreted as a lease or a license is whether or not it gives exclusive possession of the premises against all the world, including the

(102 So.)

owner, in which case a lease is intended, or whether it merely confers a privilege to occupy under the owner, thereby indicating a license. 25 Cyc. 640. See, also, Williams v. Gibson, 84 Ala. 228, 4 So. 350, 5 Am. St. Rep. 368.

Upon the question of exclusive right, it was said in Massot v. Moses, supra, that:

"This is the result of the familiar maxim that when anything is granted, all the means of obtaining it and all the fruits and effects of it are also granted."

We find nothing in the language of the contract, either in express language or by necessary implication, which would exclude Holt, the owner, from possession of the "Grants of a right to enter the lands of the premises, nor, indeed, would the contract

grantor and sever therefrom and appropriate its products or mineral contents, are subject to a presumption not applicable to the case of a sale of personalty, that the grantor did not intend to exclude his own proprietary right to a concurrent enjoyment with the licensee of the power granted. ** The presumption, indeed, demands some positive evidence of an exclusive intent, but does not influence the force of the evidence of such intent."

seem to exclude Holt from the use and re-
moval of the gravel from his pit, so long as
it did not interfere with the express rights
One of the principal
granted to the city.
tests, nonexclusiveness of the the grant, in-
dicates a license rather than a lease, and
very clearly under this contract plaintiff
could not maintain ejectment against Holt,

the owner.

The consideration mentioned was not single, but the city was to pay for the gravel as it removed the same, so much per cubic yard, with monthly installments. The contract appears to have been carefully drawn; it not only contains no words of demise or the grant of an estate in land, but was not witnessed as would be necessary for the conveyance of such an estate.

Without further discussion, however, we are of the opinion that the contract here in question does not meet any of the tests of a lease or a demise of an estate in land, but that the privileges enumerated therein granted to the city, constitute a license coupled with an interest, that is, a right of removal of the gravel during the two years' life of the contract.

[4] Of course, the intent to exclude the grantor may appear by necessary implication of the language used, and the nature of the consideration. As to the latter, however, it has been held that the fact that the grantee is bound to pay for the substance appropriated by him, according to the quantity realized at an agreed rate, whether in kind or in money, does not of itself disclose an intent to exclude the grantor. In Stinson v. Hardy, supra, the court points out other considerations which have had material bearing upon the question of construction of contracts, as to whether or not they were intended as a lease or a license, among them that the consideration mentioned was single for the entire subject conveyed by the title, as in Caldwell v. Fulton, 31 Pa. 475, 72 Am. We have read with much interest and care Dec. 760. Another test is there stated to be, the authorities relied upon by counsel for "whether the grantee has acquired any es- appellant, among them Woodland Oil Co. v. tate in the land in respect to which he may Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 maintain ejectment." Still another impor- L. R. A. 62; U. S. v. Gratiot, 14 Pet. 526, 10 tant fact given consideration in that author- L. Ed. 573; Johnston v. Cowan, 59 Pa. 275; ity was the absence of words of grant or de- Bruce Coal Co v. Bibby, 201 Ala. 121, 77 So. mise from the agreement, which, it was 545. But we are not persuaded that these held, would indicate that it was the inten-authorities militate against the conclusica tion of the parties that the instrument which we have here reached. They each inshould not operate as a lease.

[5] The contract here in question does not purport upon its face to be a lease or a conveyance of an estate, but rather a sale by the plaintiff to the defendant of certain gravel with certain rights as to the removal thereof. Indeed, its first paragraph begins: "Said Holt hereby sells to the city such gravel as it may during the life of this contract desire to purchase, and shall remove from property owned by him at Pickett Springs."

The right of ingress and egress over the lands of the plaintiff, with a right of way for roads and tracks, expressly granted in the contract, were such rights as would seem to follow by necessary implication from a sale of the gravel in the pit, with the right of the city to remove it therefrom. As said in Williams v. Gibson, supra,

volve contracts materially different from that here under consideration, and we do not consider that a discussion of these authorities would serve any useful purpose.

[6] It is insisted in the second place, however, that whether the instrument here in question be considered a lease or a license, the plaintiff was entitled to recover for the minimum quantity of gravel agreed by the city to be purchased and removed, less the amount which the city had already paid. This upon the theory that the valuation of this minimum amount of gravel was fixed by the parties as liquidated damages. The authorities cited deal with leases where a minBruce Coal Co. v. imum royalty is fixed. Bibby, supra; Johnston v. Cowan, supra. In the case of Woodland Oil Co. v. Crawford, supra, the contract expressly granted, demised, and let all the petroleum and gas

in or under the land therein described, and 3. Election of remedies 14-Specific peralso the land itself, with the exclusive right formance leaves no breached contract. of drilling and operating upon said premis- Specific performance of a contract leaves es; and expressly provided that a yearly no breached contract. rental of $128 be paid for the premises in the event of default on the part of the parties of the second part.

BOULDIN, J. The action is for damages for the breach of an option contract to convey real estate. By the terms of the option, the vendor agreed to sell and convey a de

ANDERSON, C. J., and SAYRE and MIL- scribed tract of lands at a fixed price, to be