(after stating the facts.) This is an appeal by Howard Dunham from á judgment rendered by the circuit court of Hot Spring County against him and in favor of the H. D. Williams Cooperage Company for the possession of 53,690 pieces of white oak heading, and for damages for the detention thereof.
At the time this judgment was rendered the heading had already been sold by Dunham to another party, and there was an alternative judgment against him that if the heading was not delivered to plaintiff it should recover in lieu of those the sum of $1,758.54, that being the value of the heading as-assessed by the jury. But, as the plaintiff still owed the defendant a considerable sum for making this heading, the parties -agreed that this amount should be credited to defendant and deducted from the- value of the staves as assessed by the jury, so that plaintiff should have judgment .and execution only for the remainder. The plaintiff now contends that this agreement between the parties made the judgment a consent judgment, and that no appeal will lie from such a judgment. If the judgment appealed from had been entered by consent, this argument would be sound; but there was no consent to the judgment for the heading or -in default of a recovery thereof for its value. The agreement was simply that defendant should have a credit on the assessed valuation of the staves for the amount due him from the plaintiff for making the -staves. Defendant cannot question that part of the judgment, but he is not estopped by this agreement from appealing from the judgment against him for the recovery of the heading, for it was not an agreement that plaintiff should have judgment against him either for the heading or their value, but in effect only an agreement as to the value of the staves or the value of the interest therein that had been adjudged to plaintiffs.
Under the original contract the defendant undertook .to make heading and to sell and deliver it to plaintiff at a certain price. *401The contract, it is true, recites that Dunham had sold, and the Cooperage Company had bought from him,. 500,000 pieces of white oak heading, but the subsequent provisions of the contract show that this heading had not then been manufactured, for the contract stipulates that the Cooperage Company was to furnish the defendant mill and machinery for the purpose of making the heading. It further provided that the heading was to be shipped to Poplar Bluff, Missouri, and there inspected by the company, and that no piece would be accepted that did not conform to the measurements specified in the contract. When the whole of this contract is taken together, it is clear that it is only a contract on the part of Dunham to make .and deliver to the Cooperage Company a certain number of pieces of heading at prices named in the contract, and that under this contract the title to the heading did not pass until it had been inspected and accepted by the company. Deutsch v. Dunham, 72 Ark. 141.
But in this action counsel for the company bases it right ■to recover on the two bills of sale executed by Dunham in January and March, 1905, and .conveying to the company a certain number of heading bolts from which the company claims that the heading replevied by it was made. The defendant contends that these bills of sale were not intended as actual sales of the bolts described therein, but he says they were executed simply as security for the money advanced by the company to him at that time, and that subsequently this money was repaid by the shipment of heading to plaintiff. Pie also claims that after these hills of sale were executed the bolts covered by them were manufactured into heading and the heading shipped to the plaintiff. If either of -these theories was true, plaintiff can not recover. That is to say, if the bills of sale were intended, not as absolute sales, but only as security to cover advances made by the plaintiff to defendant, and if defendant subsequently delivered to plaintiff heading the contract value of which was sufficient to cover all of the advances made by plaintiff, then the title to the remaining heading revested in defendant, and plaintiff cannot recover. Nor can plaintiff recover if the bolts covered by the two bills of sale were subsequently manufactured into heading, and all the heading made therefrom was delivered to plaintiff, for that would show that the heading it replevied was not *402manufactured from the bolts transferred by the bills of sale.
There was some evidence to support these contentions of defendant, and counsel for defendant contends that the court erred in refusing to give instructions seven and eight asked by defendant. But the seventh instruction was properly refused because it submitted to the jury to say whether the inspection of the heading made by the company at Poplar Bluff was a fair and honest inspection or not, when the answer of the defendant' does not allege that there was any fraud or unfairness in that inspection. The contract provided that the heading would be inspected by the Cooperage Company, and that its inspection and count should be final for all purposes. This, of course, did not prevent the defendant from alleging and showing that there was fraud in the inspection or such gross mistakes as would raise the inference of fraud. Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 187. But there should have been some allegation of fraud in the pleading, so as to put the plaintiff on notice that its inspection would be attacked, on that ground. In this case the answer of the defendant simply denies that plaintiff is the owner of the heading or entitled to the possession of the same. We are therefore of the opinion that the court properly refused to submit to the jury the question of whether the inspection made by plaintiff was fair and honest, and that for the same reason it did not err in refusing to hear evidence tending to show that the inspection of the plaintiff was erroneous or fraudulent.
The 8th instruction asked by defendant, we think, was a proper instruction. The trial court refused to give this instruction, no doubt, for the reason that the court supposed that it was covered by the 2d instruction asked by defendant and the modification thereto made by the court. But the modification made by the court to the 2d instruction was, we think, misleading in that it submits to the jury whether the defendant by his receipt of Deb. 3d, 1905, intended to convey to the plaintiff the title to the bolts therein described. Now, this receipt does not purport to be a sale or transfer of the title to the bolts therein described. It is simply a receipt for money, stating that it is to be used to haul bolts which were to be sawed into heading for the Cooperage Company. The bolts at that time belonged to *403Dunham, and we see nothing in the evidence that would justify a finding that he sold and delivered the bolts described in that receipt to plaintiff. He contracted that he would sell and deliver the heading made from the bolts, but that did not pass the title either to the bolts or heading. Defendant was using the mill and the money of the plaintiff to manufacture heading from bolts which he owned under promise that he would sell and deliver the heading to plaintiff. If he failed to -carry out the contract, the remedy of plaintiff was by a suit for breach of the contract.
For the reasons stated, we think the court erred in refusing the 8th instruction asked by the defendant and in the modification to the 2d instruction which the court gave. The error of the court in this matter was probably due to oversight in not noticing the difference between the language of the receipt of Feb, 3 and those of Jan. and March, 1905. The first is simply a receipt, while the two last are not only receipts for money but bills of sale of bolts also.
But this error may have been very prejudicial to the defendant; for, if the jury had been told that the receipt of Feb. 3 did not transfer the title to the bolts described therein, it is at least doubtful whether the verdict would have been in favor of the plaintiff for the heading replevied by it.
Judgment reversed and cause remanded for a new trial.