BATTLE, J.
J. E. Stevenson and Ebinezer Rodgers, as executors of H. P. Rodgers, deceased, instituted a suit in the Lee chancery court, against the Soudan Planting Company, and alleged in their complaint that their testator, H. P. Rodgers, on the 1st day of November, 1902, entered into a contract with Lem Banks, and one Henry Banks, since deceased, to sell to them certain lands in Lee county, known as the Soudan and Westwood plantations, and that they, in consideration thereof, agreed to deliver to H. P. Rodgers 3,500 bales of cotton, of an average weight of 500 pounds, in installments as follows: 116 bales on the 15th day of October, 116 bales on the 15th day of November, and 118 bales on the 15th day of December, of each year, beginning with the year 1903, and continuing until the 3,500 bales have been delivered, or if the purchasers could not prepare the cotton for delivery by such dates because of the scarcity of pickers or from other unavoidable circumstances, then as soon thereafter as possible.
They further alleged that the 3,500 bales of cotton were to be grown on the land sold, and delivered in the town of Marianna, in Lee county, in this state; that Lem and Henry Banks, being nonresidents of the state of Arkansas, after the contract of sale was entered into, organized the defendant corporation
the Soudan Planting Company, with a capital stock of $10,000, for the purpose of holding the title to the lands and operating the plantation and the store connected therewith; that on the 30th day of January, 1903, their testator, H. P. Rodgers, executed a deed to the defendant, Soudan Planting Company, conveying to it the lands sold, and put it in possession of the same.
Plaintiffs admitted that the deliveries were made for the first two years, 1903 and 1904, "But on the 15th day of October, 1905, it (appellant) offered to deliver to the plaintiffs 116 bales of the commonest and lowest grade of cotton it could purchase in the market at Marianna, Ark., and, as a condition of such delivery, required the plaintiffs to accept the same as an absolute compliance with their obligation to deliver the cotton mentioned in the contract; and, although the plaintiffs offered and agreed to take such proffered cotton at what it might amount to as a part performance of the contract of defendant, it refused to so surrender it, and so made no delivery at all.
"They further alleged that on the 15th day of November, 1905, the defendant again tendered a lot of the cheapest and lowest grade of cotton it could purchase in the market at Marianna, which plaintiffs refused to accept, except for what it might amount to, and that the defendant permitted them to take it on such terms.
"And that on the 15th day of December, 1905, the defendant again offered to deliver to the plaintiffs a lot of the commonest and cheapest cotton it could purchase in the market at Marianna, and that plaintiffs accepted the same upon condition that it was only to be a valid payment to the extent that it would comply with the defendant's contract.
"Plaintiffs allege that such cotton was worth one cent less per pound than the average cotton on the market at the time, and was not in full compliance with the contract of the defendant, and that the difference between the value of the two deliveries of November 15th and December 15th, 1905, and the value of average cotton, would amount to the sum of eleven hundred and seventy ($1,170) dollars.
"Plaintiffs further state that for the year 1906 the defendant failed and refused to deliver the cotton provided for in the contracts, and refused to pay the money value thereof; that the market value of the average grade of cotton in the Marianna market on the 15th day of October, 1906, was 1015/16 cents, and that the market price for average cotton on the 15th day of November, 1906, was 109/16 cents, and that the average grade of cotton in said market on the 15th day of December, 1906, was worth 103/16 cents per pound. That the value of said deliveries not made in 1906 amounted in all to the sum of twenty-four thousand five hundred and fifteen and 56/100 ($24,515.56) dollars; that plaintiffs should have interest on said sum, and on the difference between the value of the cotton delivered November 15th and December 15th, 1905, and that which should have been delivered."
Plaintiffs asked for judgment against the defendant for the $25,685.56, with interest on the various items thereof from the time the same were due respectively; and that the judgment be declared a lien on the lands.
The defendant answered and denied the allegations of the complaint as to the cotton tendered by it, and alleged that the same was average cotton of the Marianna market at the time tendered; and denied the allegations as to value of average cotton of the Marianna market on October 15, 1906, on November 15, 1906, and on December 15, 1906.
"As matter of cross-complaint, the defendant says that, at the time of this purchase of the Soudan and Westwood plantations, the seller, H. P. Rodgers, represented that an outstanding timber contract, granting G. A. Goerke the right to cut and remove timber from said land, contained a clause by which the said Goerke, upon notice, could be required, within 12 months thereafter, to take the timber from as much as 320 acres of land in any given year, and, failing, that his right to take timber from land as to which he had had notice should cease. The said seller further represented that this clause in his said contract with G. A. Goerke would be available to the Soudan Planting Company, and, by giving the notice, it could carry out its plans for adding to the quantity of cleared land each year without being hampered by Goerke's rights in the timber.
"That it was the purpose of this defendant to largely increase the area of cleared land on the plantations, and that this clause was material. Thereafter, it was found that said clause had, by mistake, been omitted from the contract with G. A. Goerke, and thereupon the seller of the plantations, H. P. Rodgers, and H. and L. Banks for the Soudan Planting Company, entered into the following agreement:
"`This agreement, between H. P. Rodgers and H. and L. Banks, acting for the Soudan Planting Company, and for themselves as prospective stockholders in said company:
"`Witnesseth, that whereas heretofore H. P. Rodgers executed a contract of sale of his Soudan and Westwood places, in Lee county, Arkansas, containing about 6,000 acres, and at that time stated that the timber contract between him and G. A. Goerke contained a clause that allowed said Rodgers and his assigns to give notice and take land from said Goerke for the purpose of clearing it for cultivation, and upon inspection the said contract as written did not contain this clause.
"`Now, then, in order that the purchasers may take said property in the same condition that it was represented to them to be by H. P. Rodgers, said Rodgers hereby agrees and obligates himself, his heirs and personal representatives, to at once take such necessary
steps as are required to reform said contract with G. A. Goerke, so that said contract with Goerke, dated April 5, 1902, shall contain the following clause:
"`It is expressly understood and agreed that, by giving twelve months' notice to G. A. Goerke, or his assigns, H. P. Rodgers, or his assigns, may enter upon any lands embraced in this contract, not exceeding 320 acres during any one year, and cut out and deaden the timber preparatory to cultivation. G. A. Goerke agrees for himself and his assigns that he will take the timber from the land above mentioned within the time of said twelve months, and, after the expiration of said twelve months, then H. P. Rodgers, or his assigns, may cut and deaden timber, and the right of G. A. Goerke and his assigns to the timber on that part of the land terminates.
"`H. P. Rodgers obligates himself to have said contract reformed so as to show the change above named within two years from this date. And, in case he should not have said contract reformed within that time, then said H. P. Rodgers agrees to pay to the Soudan Planting Company the amount of damage that said company may subsequently sustain by reason of not getting to clear said land on Westwood and Soudan places at the rate of 200 acres per year. If the president of the Soudan Planting Company and H. P. Rodgers cannot agree on the amount of said damages, then they shall each select a man who is disinterested to act as arbitrator, and the decision of these two men shall be final; but if these two men cannot agree, they shall select a third disinterested party, and a decision of a majority of these arbitrators, to wit, any two of them, shall be final, and H. P. Rodgers agrees to at once pay the amount of said damages assessed against him to the Soudan Planting Company.
"`H. P. Rodgers
"`H. & L. Banks
"`Per Lem Banks
"`Soudan Planting Company
"`Per Lem Banks
"`This January 1, 1903.'
"The cross-bill further alleges that H. P. Rodgers was not successful in his efforts to have said contract reformed (Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 837), and hence became liable to defendant for such damages as it has sustained by being prevented from clearing as much as 200 acres every year for the years 1904, 1905, 1906, 1907, and 1908.
"That this defendant was desirous of taking in as much as 200 acres for each of said years, and had the labor on the plantations...
