(after stating the facts). It is insisted, first, that the court erred in refusing to transfer the case to the chancery-court ; and, second, in instructing the verdict.
The suit was not brought upon the contract, and no relief was asked under its terms. The complaint stated a cause of action cognizable at law, and the court committed no error in overruling the demurrer. Neither was there error committed in overruling the motion to transfer made upon the filing of the answer, which asked for no equitable relief.
No motion to transfer was made upon the filing of the amended answer and cross complaint, and from the views hereinafter expressed it will be seen that no error was committed by the cause not being transferred upon the court’s own motion.
It is contended further that the contract was severable or apportionable, and that appellants had the right to a specific performance of'that part óf same relating to the conveyance of the three lots about the title of which there was no dispute, since the price on them had been fixed in the contract separately at $675; and this without regard to their refusal and inability to perform the contract and convey the other two lots agreed to be conveyed. The work done for which the suit was 'brought, the consideration to be paid, was single and entire, and reached to the whole contract, as expressed by its terms, “to pay the prices hereinafter mentioned, from which prices the work hereinbefore mentioned shall be deducted, the remainder to be paid in four equal installments annually.” By its terms it must be considered an entire contract. 2 Parsons on Contract, page 676; Ex parte Hodges, 24 Ark. 201; 3 Page on Contracts, 2295.
The complaint alleged the breach of the contract by appellant’s refusal, not being able to perform all of it and convey the two lots purchased, the title thereto being held adversely to them by one A. Clinton, and the answer admitted these allegations and their inability to perform the contract. The first substantial breach of it having been committed by appellants, appellees were authorized to regard it at an end and bring-suit for the balance due for the construction of the building, which was admitted by the answer to be $388, the amount claimed in the complaint. Haney v. Caldwell, 43 Ark. 193; National Surety Co. v. Long, 79 Ark. 528; Eastern Ark. Hedge Fence Co. v. Tanner, 67 Ark. 156.
*166It is true, the receipt in evidence shows that there were no liens against the house for work done by others, and the payment of the amounts shown that were by the contract to be applied to certain items, with a balance due appellees of $37-°5> and the receipt for this $37.05 does state that “the house stands free of any claim whatsoever for labor done, etc., by Winchester Bros, or any one under them,” but this could not be held a waiver by them of the lien given by law for the work done in building the house, there being no consideration for such statement and the labor not having been paid for. “If the labor has been performed or material furnished, no matter in what the owner agreed to pay, if he has not paid in any way, .the laborer or mechanic has the right to resort to the security furnished by law, unless the rights of a third person intervene,” etc. McMurray v. Brown, 91 U. S. 257.
It is also true, no denial of the allegations of the answer were made by reply, but the complaint alleged that there was a balance due of $388 for the construction of the building, and that defendants had refused and failed to pay for the same by the conveyance of the lots in accordance with the terms of the contract, and could not do so, being without title, and these allegations were admitted by the answer.
The admitted facts showing plaintiffs entitled to the relief sought, there was no question for the jury, and the verdict was properly. directed.
The judgment is affirmed.