(dissenting). This is a bill in equity to declare and enforce a resulting trust in regard to a tract .of land purchased by appellee Brooks with money of appellant company, taking deed in his own name. Appellant contends that the money ($200) was delivered by it to Brooks to purchase the 160 acres of school land, and take deed, 'in its own name; and that it was further agreed that Brooks should be privileged to cut tie timber off of the land, and that when he should cut and deliver to the company enough to cover the $200 and other indebtedness of his to the company, then the company would convey the land to him.

Brooks contends that the agreement was that appellant should furnish the money, and he was to cut and deliver the ties from the land, and what the proceeds of same lacked in paying the $200 he would make up in other timber or money. At this time Brooks was indebted on past timber dealing to appellant in the. sum of $1,500, or thereabouts, but he had not made a return or statement of his transactions to it, and the appellant did not know anything concerning the same. Evidently, from the language used, the agreement to convey to Brooks when he had got out ties sufficient to cover the $200 and his indebtedness had reference to whatever would be owing by Brook's to the company on transactions other than that concerning said school lands. To sustain these conflicting theories, Bagnell, president of the company, testified on the part of the plaintiff, and Brooks on his own behalf. The chancellor, upon the pleading and evidence, decreed in favor of the defendants, and plaintiff appealed.

Casting aside all oral testimony as offsetting, itself, in consummation of the land purchased, plaintiff sent Brooks the following letter and inclosed check, towit:

“12-26-1899.

“Mr. W. W. Brooks, Mountain Vieiv, Ark.:

“Dear Sir — Your favor of the 25th inst. received. We inclose herewith our check No. 25480, on Miss. Valley Trust Co. for $200 to purchase the 160 acres school land. Have deed made to Bagnell Timber Company, and when paid out will make deed to you or to whom you direct. If you should not use the check, kindly return the same to us.

“[Signed] “C. E. Meyer, Sec.”

This direction in writing is plain and direct, and leaves no room for misunderstanding. If it was in conflict with their previous verbal agreement, according to his conception, Brooks should have returned the check, and waited to have some more definite understanding. Certainly, he had no right to appropriate the company’s money to his own use by having'the deed made in his own name, and then try to conform matters to what mere memory recalled of jthe understanding of the matter. His duty was to have appropriated the proceeds of the check as directed in the letter inclosing it, and, if he was unwilling to do this, then his only alternative was to return it for further direction.

After he had purchased the land, Brooks wrote to the company thus: “I have bought the school land today, and will send you deed as soon as I get it from Little Rock. It is made there.” This ought to be conclusive of his understanding, at the time he paid for the lands, whatever he may have done as to the deed afterwards. I ¡think the evidence is altogether in favor of the plaintiff’s contention, and the decree should have been reversed, and decree entered for plaintiff.

(after stating the facts). We have carefully considered all the testimony in the case, and find that in our opinion the evidence does not show that there was a clear preponderance against the finding of the chancellor, but that the preponderance of the evidence supports the finding. But the tender of $90 which was found by the court to have been made, to pay the balance of the purchase price of the lands in section 16 was not made till after suit had been brought by the appellant, and there was no tender of costs in the cause made by the appellee, and for this reason the decree is so modified as to require that the defendant be required to pay all the costs, and to pay interest on the $90 tendered from the date of the institution of the suit. With this modification the decree is affirmed.