(after stating the facts). Although there was no issue in the pleadings concerning the acceptance of a fence in lieu of stock guards, yet that question was submitted to the jury under the instructions and evidence, and we will treat it as an issue here. The court did not err in instructing the jury on this issue, but correctly submitted the question, in the first place, as to whether there was such an agreement, and, in the second place, as to whether the appellant, if there was such an agreement, had failed to comply with its terms.
If there was a contract between appellant and appellee whereby the latter agreed to accept a fence in lieu of stock guards, then, if appellant complied with that contract within a reasonable time, it would not be liable to the appellee, although he may have afterwards repudiated the contract and refused to accept the fence. But if, on the other hand, the appellant did not comply with the contract to build the fence in lieu of stock guards within a reasonable time, the appellee would have the right to treat the contract as rescinded, and to proceed as if no contract had been entered into; and if appellee gave appellant notice that it must build the stock guards in compliance with the statute, that was sufficient to advise it that appellee no longer considered the contract binding on his part, and that he would not thereafter accept the fence in lieu of the stock guards. If appellant failed to comply with its contract within a reasonable time, and if the appellee gave it notice to construct the stock guards after such failure, then appellant could not escape the liability for damages and penalty, under the statute, by promising thereafter to erect the fence, instead of the stock guards; and appellee would not waive his rights under the statute because the appellant elected to proceed with the erection of the fence.
The case would have been entirely different, of course, if the appellee had waited until the appellant had erected the fence, and then given notice that he would not accept same, but would insist on a compliance with the statute as to stock guards. In that case appellee would have waived his. right to insist on a compliance with the statute; but, since the jury may have found that appellant did not comply with its contract to build the fence within a reasonable time, and since appellee gave appellant notice to construct the stock guards under the statute before appellant erected the fence, or even placed the material on the ground, appellee can not be held to have waived his right to hold appellant liable for the damages and penalty denounced by the statute. Under such circumstances there is no waiver on the part of appellee by receiving the benefits of the fence constructed by appellant after he had given it notice of his intention to insist on his rights under the statute;
2. The objection that Morrison, the tenant of appellee, should have been made a party to the suit was not raised in the court below, and can not avail here. See Hadley v. Bryan, 70 Ark. 197; State Mutual Life Insurance Co. v. Latourette, 71 Ark. 242; Shorter University v. Franklin, 75 Ark. 571. The tenant was not a necessary party under the act of March 5, 1909.
Finding no errors, the judgment is affirmed.