(after stating the facts). Appellee contends that the motion for a new trial has no place in the bill of exceptions and therefore that no motion for a new trial appears in the record and that for this reason the cause should be affirmed.
(1) Our court held in the case of Farquharson v. Johnson, 35 Ark. 536, that it was necessary for the motion for a new trial to appear in the bill of exceptions, and the court could not take notice of it unless it was there. In later cases, the court held that the proper place for a motion for a new trial was in the record and not in the bill of exceptions. Because the court ruled in 35 Arkansas that it could not take notice of a motion for a new trial unless it appeared in the bill of exceptions, it is now contended that since the court holds that the bill .of exceptions is not the proper place for a motion for a new trial, the same reasoning should apply and no notice should be taken of the motion for a new trial unless it appeared in the transcript separate and apart from the bill of exceptions. Should we adopt the reasoning of learned counsel, the court would suspend the consideration of this cause and direct a writ of certiorari to bring up the motion for a new trial. This would bring about an unnecessary delay of the case. While the bill of exceptions is not the proper place for the record entries and the pleadings, and while the motion for a new trial is a pleading, yet it is here and we will treat it as transferred to its proper place rather than delay the cause and issue the writ. No contention is made that the motion for new trial is incorrect in any respect. ■
(2) It is also contended that when a paragraph is once stricken from a pleading, that the only way to get it back into the record is by saving an exception and getting it back through the route of a bill of exceptions. The ease of Blackmore v. President, 4 Ark. 454, is cited in support of this contention. We do not overrule this case, but hold that when an unnecessary act is done by a trial court, that it is unnecessary to except to it. No motion was filed to strike these paragraphs. They were demurred to, the demurrer was sustained and appellant saved his exceptions. The order sustaining the demurrer was sufficient. The order striking the paragraphs was clearly surplusage.
Having disposed of these technical contentions, we now proceed to a consideration of the real issue in the case. It is conceded by appellee that if appellant was a factor or broker that he would have a right to retain the possession of the cotton seed until his commissions, advances and expenses were paid. Many authorities are cited in both briefs with reference to the law applicable to brokers and factors. It is unnecessary to discuss these authorities in this opinion. The rights of appellant depend upon the construction of the contract. The contract provides for a commission for purchasing this seed. It also allows 40 cents per ton to cover house rent and loading each ton bought for their account and makes appellant responsible for any loss in weight arising from errors in weighing, theft, drying, handling or for any other cause. It requires appellant to keep the seed under lock and key.
(3) In the case of Hill v. Robinson, 16 Ark. 93, our court said that( cotton could not be recovered in replevin until the party picking and hauling it had been paid for the picking and hauling. It is true in that case that Hill the picker was to pay himself out of the cotton for picking and divide the balance. In the- contract before us, it is not specifically agreed that appellant should have a portion of the cotton seed for his work, but it was agreed that he should have a commission for purchasing the seed and 40 cents a ton for loading and storage, and he was required to stand any loss in weights or loss from other causes. Under this provision of the contract if he had this seed in his own house for storage, he was clearly a warehouseman. These provisions in the contract certainly give him some right in the seed. It is conceded by appellee that it could not maintain replevin if appellant was a factor or broker under the terms of this contract. The terms of the contract may not make him technically a factor or broker, but we are convinced that the contract created an interest in or lien on the cotton seed purchased to the extent of the commission due for purchasing the seed and the charges for storing same. Both amounts should be paid by appellee before it could bring a suit in replevin for the seed. Making him responsible for any shortage in weight or loss, by theft, drying, handling or any other cause, together with his right to a commission for purchasing same and the pay for storing same, coupled with possession, takes him out of the category of naked purchasing agents.
This being our view, ■ we think the court erred in sustaining the demurrer to paragraphs two and three of the answer and cross-complaint. For this error the cause is reversed and remanded with instructions to overrule the demurrer and for further proceedings.