bankruptcy proceeding about the time he was appointed receiver for this defendant company; that the pipe line company owned property at that time of the value of $480,000, and its total indebtedness would not exceed $285,000; that the pipe line company was not insolvent, and could not be properly adjudicated a bankrupt; that J. H. Meek, as receiver herein, failed to present the facts to the bankruptcy court, as it was his duty to do; and that, by his willful neglect to defend against the bankruptcy proceeding, he caused a loss to the defendant herein of its entire account against the Arkansas Pipe Line & Navigation Company in the sum of $75,000, except the sum of $3,476, which he claims to have received from the trustee in bankruptcy causing a loss to the defendant, with which the receiver should be charged.

Paragraph No. 10 alleges that the receiver took credit for $622.79 as an uncollectable account; that such account is not charged to him, and therefore he should have no credit for the same. The balance of this paragraph is a general exception to each item of the receiver's report as contained in Exhibit A with its schedules except the $50,000 advanced to the defendant.

Paragraph No. 11 alleges that the receiver willfully had well No. 9 on the McKenzie lease sealed off after it had encountered a valuable flow of natural gas which the receiver should have utilized for the benefit of the defendant instead of paying the sum of $2,000 per month for gas from other sources, and that by his neglect in this particular the defendant had suffered several thousand dollars loss.

Paragraph No. 12 charges the receiver with willfully conducting himself in a manner hostile to the rights of the defendant and with entering into a conspiracy with others to elect a board of directors favorable to the wrecking of the corporation and sacrificing its property at a forced sale. Among the items of misconduct charged against the receiver in this paragraph are the following:

"That J. T. Burney, to whom he claims to have paid $10,482.95, expended much of his time looking after the personal affairs of said J. H. Meek, and habitually neglected the affairs of the property and business in the hands of the receiver; and that said receiver should be charged with a large part of said $10,482.95, and a large part of the $124,753.80, mentioned in schedule 5 as operating expenses, and with the entire amount of $8,000 claimed by said J. H. Meek in schedule No. 7, for the reason that he has been so reckless, extravagant, and unfaithful to his trust that he has forfeited his right to any compensation."

Paragraph No. 13 contains the prayer of the defendant for a referee and the taking of testimony covering all acts of the receiver, and the report of the same, and that the receiver be required to pay the defendant all

hands, and that, upon a final hearing, he be required to pay such additional sums as the court shall find to be due from him upon a strict accounting, etc.

The receiver filed a demurrer specifically as to each paragraph of the complaint, but general in form, alleging that each of such paragraphs "does not contain statements sufficient to constitute a valid exception to the final report of J. H. Meek receiver." The cause was submitted on a demurrer, and the court found that the exceptions of the Oil Fields Corporation to the said reports of J. H. Meek, receiver, failed to state facts sufficient to constitute an exception to said report, and that said demurrer therefore should be sustained. The court thereupon entered a decree overruling the exceptions and confirming the report of the receiver, and ordered the receiver to pay over to the corporation the sum of $23,931.06. The corporation appealed from the decree overruling its exceptions, and the receiver appealed from the decree directing him to pay over the sum specified to the corporation.

[1] 1. The appellee, Meek, filed a motion to affirm the cause on appellant's appeal because of an alleged failure by the appellant to comply with rule No. 19 of the Supreme Court. Rule No. 19 requires, among other things, that in chancery cases "the whole of the evidence shall be embodied in the transcript, unless the parties shall agree upon an abbreviated statement thereof." Appellee sets up in his motion, containing eighteen paragraphs, that certain orders, specifying them, were made by the chancery court which show on their face that oral testimony was heard upon which the orders were based, and that none of this evidence is brought into the record. Counsel for appellee contend that it is impossible to predicate error on the part of the trial court in overruling the appellant's exceptions to the receiver's report, unless the testimony is brought into this record upon which the various orders were made by the trial court. A complete answer to this contention is that the cause was heard on demurrer to the appellant's exceptions. The final report of the receiver is not verified. The appellant did not move to have the same verified. It is therefore analogous to an unverified complaint of the receiver asking that his report be confirmed and his account allowed. The appellant's exceptions thereto were duly verified, and were tantamount to an answer denying and challenging the matters set forth in the report to which the exceptions were directed.

[2] In Johnson v. Central Trust Co., 159 Ind. 605, 65 N. E. 1028, it is said:

filed thereto, stand as the complaint and an"The report of a receiver, and an exception swer of the respective parties."

See cases there cited. See, also, 34 Cyc.

lant's exceptions admitted as true all the facts set forth in the several paragraphs of these exceptions that were well pleaded. Green v. Williams, 169 Ark. 1198, 278 S. W. 5; Hudson v. Simonson, 170 Ark. 243, 279 S. W. 780. On the hearing of the demurrer no testimony could, or should, have been introduced. The demurrer tested the sufficiency of the exceptions as a pleading only, and it was not necessary or proper to adduce testimony to establish facts well pleaded that were admitted by the demurrer. The case of Remmel v. Collier, 93 Ark. 394, 125 S. W. 422, 130 S. W. 167, upon which the appellee relies to sustain his motion to dismiss, has no application to this record. That was a case where, notwithstanding there was a demurrer to the complaint which the court passed upon, the whole case was nevertheless submitted to the court on the merits as well as the

sufficiency of the pleadings. To be sure, in that case it was the duty of the appellant to bring the whole record before this court in order to enable the court to determine whether the decree of the court below on the testimony adduced at the hearing on the merits was correct. If such were the case here, the contention of appellee's counsel would be sound, but such is not the case. Appellee's motion, therefore, to confirm the decree, or to dismiss the appeal, is not well taken and is overruled.

[3-5] 2. This brings us to a consideration of the question as to whether or not the court erred in sustaining the demurrer to the appellant's exceptions and in entering its decree overruling these exceptions, and approving and confirming the receiver's report. We have set out above the substance of the different paragraphs of the exceptions to the receiver's final report. It would unduly extend this opinion, and we deem it unnecessary to refer specifically again to each paragraph. Some of them unquestionably correctly plead ed facts which show that the court erred in confirming the report of the receiver. The court's ruling reached to each and every paragraph, and overruled the exceptions as a whole. This was manifestly erroneous. Some of the paragraphs are too general in their statements, and on remand of the cause the court should require the pleader to state facts and not mere conclusions. But other paragraphs, and most of them, do state facts, and not mere conclusions of the pleader. 299 S.W.-3

"The report of a receiver, and an exception filed thereto, stand as the complaint and answer of the respective parties; the mere pro forma ex parte settlement of an important receiver's account, where creditors are dissatisfied therewith, is held to be an indiscretion, and his account will not be confirmed by the court without a reference, and over objection, when the items of expenditures are not accompanied by voucher or supported by other proof. So on the proceedings before the master the burden is upon the accountants to justify and vouch the accounts which they had rendered so far at least as they were called in question by exceptions; the receiver has been held to great strictness in this respect, and, upon failure to produce vouchers for disbursements, required to give a satisfactory reason for such failure."

[6] We have examined all of the receiver's reports sufficiently to convince us that the chancellor erred on demurrer to the exceptions in sustaining the demurrer and in confirming the final report of the receiver. The chancellor instead should have granted the prayer of the appellant as set up in the thirteenth paragraph of the exceptions, and should have appointed a referee to take testimony concerning the facts alleged in the appellant's exceptions, and directed him to overhaul the final report of the receiver in connection with the various other reports, both those that had been previously approved and those that had not been approved, to the end that the receiver might prove, if he could, that the facts correctly pleaded in appellant's excep tions were untrue; or, if they were true in fact, that the final report might be corrected and confirmed in conformity with the established facts.

The decree of the trial court is therefore reversed, and the cause is remanded, with directions to overrule the appellee's demurrer and for further proceeding according to law and not inconsistent with this opinion.

Under conditional sales contract, where one retains title to property sold he may take possession of it at any time after condition broken, whether from original buyer or from any person to whom it has been transferred, unless seller has consented to transfer or sale.

2. Executors and administrators

55-Under contract providing that title should not pass until drafts were paid, title was in seller, who could, upon default, retake merchandise from buyer's administrators.

Under contract for sale of merchandise providing that title to merchandise shipped should not pass from seller to buyer until payment of drafts, title to merchandise was in seller, and he had right, upon default in payment of drafts, to retake it from deceased buyer's administrators, especially where seller had advised administrators by wire of claim of ownership, and where property was kept separate.

3. Sales 477(4)-Conditional seller treats sale as absolute, when he sues for debt and attaches property.

Seller, under conditional sales contract, may treat sale as absolute, which he does when, instead of bringing suit for possession of property he brings suit for debt and attaches property, or may sue for possession of property, since retaining title to property is for his benefit, and he may waive it if he wishes to do so. 4. Executors and administrators

156Where administrators of buyer under conditional sales contract sold goods after default, their acts amounted to conversion, and seller was entitled to proceeds.

Where seller sold merchandise under contract providing that title should remain in seller until payment of drafts, and buyer died before drafts were paid, and buyer's administrators sold merchandise after being advised by seller that it claimed goods, administrators' acts amounted to conversion of property, and seller was entitled to proceeds of sale in administrators' hands as representing property belonging to seller.

Appeal from Circuit Court, Jefferson County; T. G. Parham, Judge.

Suit by the Interstate Packing Company against the National Bank of Arkansas and another, individually and as administrators of the estate of C. A. Linaker, deceased. From the judgment, defendants appeal. Affirmed.

Rowell & Alexander, of Pine Bluff, for appellants.

Bridges & McGaughy, of Pine Bluff, for appellee.

MEHAFFY, J. The Interstate Packing Company is a corporation of Winona, Minn., and C. A. Linaker was a merchant of Pine Bluff, Ark. On the 21st day of February, 1925, they entered into the following agreement:

"Agreement made February 21, 1925, between Interstate Packing Company, a corporation, of Winona, Minn., party of the first part, herein

called the seller, and C. A. Linaker, of Pine Bluff, Ark., party of the second part, herein called the buyer.

"The seller agrees to and does hereby sell to the buyer and the buyer agrees to and does hereby buy from the seller packing house products made by the seller and consisting of smoked and dry salt meats, fresh meats, lard, pickled goods, and offal, in the amounts and upon terms and conditions and for prices as hereinafter set forth.

"The period of this contract is and shall be for one year from date hereof, and it is agreed that the buyer shall take and the seller shall furnish hereunder not less than two carloads of said packing house products during each month of said period.

"The buyer agrees that he will each week advise the seller, in due time for shipment, of the variety and amount of each of said products to be shipped by the seller to him.

"Delivery by the seller to the carrier at Winona, Minn., of products sold hereunder, consigned to the buyer, shall be delivered to the buyer, but the seller shall pay freight from Winona, Minn., to Pine Bluff, Ark.

"The price which the buyer is to pay and the seller is to receive for the merchandise aforesaid is to be the current price therefor, based on Chicago market, as fixed by the seller to its customers generally each week, with freight added (subject to discount as hereinafter provided), and the seller shall each week advise the buyer of such prices, which shall control and apply to all shipments hereunder until a change in price by the seller and advice thereof to the buyer, provided that the seller shall have the right to advance or reduce the price of such merchandise at any time by wire in accordance with any sudden or unusual fluctuation in the Chicago market. From the prices above specified, the buyer, shall be entitled, as to all goods shipped hereunder for which he pays the drafts at maturity, to discounts as follows, which shall be credited to the buyer by the seller as and when the drafts against such shipments are paid, and the seller will on or about the 1st day of each month send buyer a statement of discount credits for the foregoing month:

"Two per cent. on smoked and dry salt meats and lard.

"Five per cent. on pickled goods.

"Fifty cents per hundred pounds on fresh meats and offal.

"When and as merchandise is shipped hereunder the seller will make on the buyer one draft for one-half the price of each shipment, payable in 15 days from date, and one draft for one-half such price, payable in 30 days from date, to which drafts the seller will attach invoice and bill of lading, the same to be transmitted and presented to buyer through usual banking channels, and buyer agrees to accept

separate from any other goods in the warehouse of Linaker.

"That on the 24th day of August, 1925, one day after default in the payment of the draft for $2,605.23 which was due and payable August 23, 1925, C. A. Linaker died intestate in Jefferson county, Ark. That thereafter, on August 27, 1925, the National Bank of Arkansas and G. H. Linaker, defendants herein, were duly appointed joint administrators of the estate of the said C. A. Linaker, deceased, and qualified as such. That, at the time of their appointment and qualification, there was in the wareroom of the said C. A. Linaker merchandise included in the above shipments of the agreed value of $5,748.28. That the National Bank of Arkansas and G. H. Linaker, as administrators of the estate of C. A. Linaker, deceased, in good faith took possession of said merchandise immediately and procured an order from the probate court authorizing them to sell said property as perishable property belonging to the estate of C. A. Linaker, deceased, and proceeded forthwith to sell the same, for which they received the sum of $5.748.28.

"The court further finds: That on the 24th day of August, 1925, a few hours after the death of C. A. Linaker, one M. O. Moore, who had been in the employ of C. A. Linaker, immediately wired the Interstate Packing Company that C. A. Linaker was dead. That, within the next two or three days and prior to the actual sale of said merchandise, telegrams were interchanged between the Interstate Packing Company and the said M. O. Moore, which were exhibited to the administrators prior to the sale, from which it appeared that the Interstate Packing Company was asserting a claim of ownership to said merchandise. That, other than sending these telegrams to the said M. O. Moore, the Interstate Packing Company made no effort, prior to the sale, to assert its rights, instituted no legal proceedings to recover said property, and made no formal demand on the administrators for the possession thereof, ex

cept in so far as was contained in a telegram to M. O. Moore, marked 'Exhibit E' to his deposition, directing him to immediately sell said property for the account of the Interstate Packing Company and not confuse same with the Linaker estate. That, during the time said telegrams were interchanged, the said M. O. Moore was not in the employ of the Interstate Packing Company, nor was he in the employ of the administrators, but he subsequently assisted in making the inventory of the merchandise and assisted the administrator in selling and disposing of said merchandise. That the proceeds of said sale have at all times since then been in the possession of the administrators, who have held the same, claiming said funds as a part of the general assets of the estate of C. A. Linaker, deceased."

There were no exceptions filed to the finding of facts, but the defendants excepted to the conclusions of law. And their first contention is that the court erred in holding that, upon the default in the payment of the draft maturing August 23, 1925, and the draft maturing August 26, 1925, the Interstate Packing Company was the owner of and entitled to the immediate possession of the

The contract itself expressly provides: "Title to merchandise shipped shall not pass from seller to buyer until payments of draft as aforesaid."

[1] It therefore appears that the parties contracted that the seller should retain title, and the title was therefore in the seller according to the express agreement of the parties. Even under a sale without any condition, where the seller does not retain the title, he has a right, as long as the merchandise is in the possession of the buyer, to bring suit and create a lien, and, when this is done, this lien is superior to any lien or claim thereafter created. But, where one retains title to the property sold, he may take possession of it at any time after condition broken, whether from the original buyer or from any person to whom it has been transferred, unless the seller has consented to the transfer or sale.

This court has often held that, in conditional sales, although the seller has the right to retake the property whenever there is a failure to pay for it or when there is a violation of the contract which gives him a right to take possession, still the buyer has such an interest in the property, even though the sale is conditional, as that he may sell it or mortgage it. His sale or mortgage of the property, however, does not defeat the right of the seller to retake the property unless, as we have said, the seller has agreed to the sale or mortgage.

Counsel relies on the case of Roach v. Whitfield, 94 Ark. 448, 127 S. W. 722, 140 Am. St. Rep. 131. In that case there was a conflict in the testimony. That on behalf of the appellant tended to prove that the sale was absolute and not on consignment and was to be disposed of by the consignee as their agents. The testimony on behalf of the appellee tended to prove that she shipped the goods under a consignment, and she had a written consignment agreement that in such cases she retain title for the purpose of securing the purchase price only. The appellant asked the court to instruct the jury, among other things, that, even if they found from the evidence that the goods were shipped on consignment and the title thereto was retained and that such goods were, without fault of defendants, destroyed by fire, yet, if they further found from the evidence that such goods were delivered to the defendants at a fixed price, to be by them retailed in due course of trade as merchandise at any price fixed by them, and that title was retained by the plaintiffs solely as security for the purchase price, and that upon the payment of purchase price title was to vest in the defendants, then the loss must fall on the defendants. The court refused to give that instruction, and the court held that that was