contentions of learned counsel is sound. It is correct to say that the two instruments being executed contemporaneously and covering the same subject matter should be construed together as one contract. Dicken v. Simpson, 117 Ark. 304. When thus construed, it is evident that the writing does not constitute an unconditional sale and delivery of the timber so as to require the purchaser to remove the timber within a reasonable time. To so construe the contract would be to ignore entirely the provisions of the second instrument whereby Glass undertook for the consideration named to cut the timber into stave bolts and to haul it to the railroad and load it on cars, a part of the price to be credited on the sum advanced. On the other hand, the two instruments construed together do not constitute a legal mortgage, for the second instrument does not contain an unconditional defeasance. The grantee was, under the contract, to have the timber in any event, and the right to take the timber was not to be cut off by a payment of the debt.

(1) We think that the instruments constituted in effect an executory contract for the sale and delivery of the timber, and an equitable mortgage on the timber for the repayment of the advanced purchase price. The deed was not intended as a completed sale and delivery of the timber, for it is evident that the delivery was to be postponed to some future date, and the failure of the grantor to complete the sale created a lien in the nature of an equitable mortgage to secure the repayment of the advanced purchase price. 3 Pomeroy's Equity Jurisprudence, §1263.

(2) No time was specified in the contract for the delivery of the timber or the repayment of the purchase price, so the running of the statute of limitation must necessarily have begun upon a demand and refusal to perform the contract. According to the evidence in the case there never was an unqualified demand or refusal. Performance was postponed by mutual agreement from year to year, and it was agreed that the matter should be settled by Glass procuring a purchaser of the land and timber, and repaying the purchase money out of the sum received. The last communication between the parties was the letter of February 7, 1912, written by the H. D. Williams Cooperage Company to Glass and the latter's reply some time later. It is doubtful if that incident can be treated as a demand and refusal so as to put the statute of limitation in motion, but, at any rate, it can be definitely said that the statute did not begin to run at an earlier date.

(3-4) There was an express undertaking on the part of Glass in the contract to repay the price by a delivery of the timber. Therefore, the promise to pay being in writing, five years is the statute of limitation applicable to the case. Coleman v. Fisher, 67 Ark. 27. This litigation was begun and concluded in the court below within that period, so it follows that the rights under the timber deed are not barred. The court was correct, we think, in reaching the conclusion that the instruments of writing constituted an equitable mortgage; that the same was not barred by limitation, and in decreeing a foreclosure. The timber deed was duly recorded and constituted constructive notice to subsequent purchasers not only as to existence of the conveyance but also as to extension of time for removing the timber (Mullins v. Wilcox, 124 Ark. 17), therefore appellants can not be treated as innocent purchasers and the facts related concerning the agreements between the parties for postponement of the removal of the timber permits the application of the doctrine of laches, which appellants invoke.

Decree affirmed.

BELLVILLE LAND & LUMBER COMPANY v. BRADSHAW.

Opinion delivered April 23, 1917.

1. MASTER AND SERVANT-INJURY TO SERVANT-LATENT DEFECT.Where an employee was injured by a latent defect in a machine at which he was set to work, and the defect was known to the employer but not to the employee, the question of negligence and assumed risk are questions for the jury.

2. MASTER AND SERVANT-INJURY TO SERVANT-LINE OF DUTY.-De ceased was employed by defendant saw mill company. Defendant gave him no regular work, but being a "handy man" about the mill, he was assigned to various sorts of work. Defendant's superintendent directed him to a certain spot to "tail bolts"; deceased went on the other side of the machine and "shoved bolts" instead, and was fatally injured due to a defect in the machine at which he was working. Held, since his employment was general about the mill, deceased, at the time of his injury was not disobeying any rule of the company, or acting contrary to his employer's directions, and that a verdict against the defendant would be sustained.

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

J. A. Watkins and S. M. Wassell, for appellant.
1.

The deceased assumed the risks that were incident to the operation of the machine. 95 Ark. 560; 122 Ark. 125; 77 Ark. 367; 53 Id. 117; 77 Id. 458; Labatt on Master & S., §§ 388, 404; 161 Mass. 153; 16 L. R. A. (Ν. S.) 614. He was familiar with the machine.

2. The company used due care and provided a safe place to work in. He left his usual place and went to another. 104 Ark. 6; 90 Id. 149. He was working contrary to instructions and assumed the risk. There was no negligence on the part of appellant. Cases supra. 96 Ark. 461, 464; 84 Id. 377; 77 Id. 405; 115 Id. 350, 358; 12 L. R. A. (N. S.) 861; 123 Ark. 125.

G. G. McKay and Brundidge & Neelly, for appellee. 1. The machinery was defective and there was no assumption of risk. 124 Ark. 596; 123 Id. 125. Plaintiff did not know of the defects, nor were they observable from inspection. Acts 1913, § 3, No. 175, p. 734; 53 Ark. Law Rep. 223.

2. He had no regular place of work-he worked anywhere he was directed. 84 Ark. 388. The case was submitted upon proper instructions and the evidence sustains the verdict.

WOOD, J. This suit was instituted by the appellee as administratrix of the estate of Joseph C. Bradshaw against the appellant to recover damages as administratrix and in her own right for the death of her son, alleged to have been caused through the negligence of appellant.

The complaint duly alleged that the appellant was a corporation, and that Joseph C. Bradshaw was, at the time of the alleged injury, in its employ as a feeder to a certain rip-saw connected with the machinery of the company; that the company was negligent in the following particulars: That it had assigned Bradshaw to the duty of feeding the rip-saw, which required him to place timber and lumber in the rip-saw to be resawed; that the dial or mandrel that operated the said saw was entirely too short between the saw and the belt, which caused said saw to heat and kink; that this construction was negligent and the defect was known to the appellant; that the appellant failed to warn Bradshaw of the dangers incident to his employment; that the saw was entirely too small, being 15 inches in diameter when it should have been two feet or more; that sufficient boxing was not provided between the belt that operated the saw and the saw, which caused the saw to get hot and kink, and this caused the timber to fly back and inflict the injury upon Bradshaw; that the appellant failed to take the piece of timber which Bradshaw was running through the saw from the other side thereof, which contributed to cause his death; that there was no protection over the saw, and between the saw and where Bradshaw was required to stand; that the saws in use by the appellant were old, worn out and second-hand; that the boxing on the mandrel was old, second-hand and had been burned, which caused the saw to heat and kink; that the place in which Bradshaw was required to perform his duties was unsafe; that all the above defects and the acts of negligence alleged on the part of the corporation were unknown to Bradshaw, but were known to the company, or by the exercise of ordinary care could have been discovered; that the negligent acts thus alleged caused the injury to Bradshaw, from which he suffered great mental and physical pain and anguish and from which injuries he died. The appellee asked for judgment in the sum of $1,000 for the pain and suffering, and in the sum of $20,000 for the benefit of the next of kin.

The answer denied specifically all the allegations of negligence and set up the defenses of assumed risk and contributory negligence.

The testimony showed that the machine at which Bradshaw was working consisted of a saw, extending through a table, and that the saw was driven by a belt attached to a pulley or mandrel. The boxings on the mandrel were too narrow, that is, too short, and the bolt on the pulley was too tight, which caused a friction, and that caused the mandrel to get hot, and the heating of the mandrel would heat the saw. When the saw got hot, it would not run straight and would throw the timber out, that is, it would have the effect to kick back the timber. The superintendent of the mill had knowledge of this defective condition.

Several witnesses testified that the saw did not run properly; that when it got hot it would turn first one way and then the other; that when it got hot, it would kink and would not run through the timber right. One witness testified "that he worked at this saw for two or three months. His idea was that the boxing on the shaft was not big enough for the mandrel. It was a three-inch boxing and it ought to have been six inches. The saw would run hot and kink and would not go through the timber right. It would wabble and not cut through. Witness got kicked back as a result of this several times. It knocked witness down twice. This witness saw the piece of timber that hit Bradshaw and the marks on it where the saw had