party of the second part as liquidated damages for the failure of the said party of the first part to keep the agreements in this writing; and the said party of the second part, or his agent, may thereupon, with or without demand of possession in writing, enter upon said premises and dispossess all persons occupying the same, with or without force, and with or without process of law, or, at the option of said party of the second part, the said party of the first part, its officers or agents, and all persons found in occupation, may be proceeded against as guilty of unlawful detainer."

Provision that in case of forfeiture the first party shall have 15 days thereafter to remove improvements, etc., placed by it upon said land for the purpose of the lease.

Provision that in case the first party shall be unable to carry out said contract by reason of acts of God, accidents, strikes, fire or causes beyond the control of the first party, affecting the smelter plant at Golden operated by it, the times for the maturity and payment of said notes shall be extended for a period not exceeding 90 days in the aggregate, "provided, however, that said first party shall not remove or take away from said land any of said slag, slag dumps or other materials or smelter products hereby leased during the time in which the said notes shall be extended as aforesaid."

"And in consideration of the acceptance of the foregoing lease and the expenditures to be made hereunder, and the well and faithful keeping of the Covenants hereof, the said party of the first part shall have the right to purchase the said slag, slag dumps and other materials and smelter products by the payment, on or before the said 28th day of January, A. D. 1907, to the said party of the second part, in addition to the payment of all of the afore said one hundred (100) promissory notes, aggregating the payment of said sum of forty-nine thousand nine hundred and fifty ($49,950) dollars, part consideration, as aforesaid, of the within lease, of the further sum of fifty ($50) dollars.

"And the said party of the second part shall, at the time of the signing of the within lease and bond, make and execute unto the said party of the first part a good and sufficient bill of sale to all the hereinabove described slag. slag dumps and other materials and smelter products situated on the said above described land, which said bill of sale shall give said first party until the 28th day of March, 1910, to remove said slag, slag dumps and all materials and smelter products, and shall be deposited, together with a copy of this agreement, in the United States National Bank, in the city and county of Denver, state of Colorado, in escrow, to be delivered to the said party of the first part, or its assigns, on the payment in full of the aforesaid notes and said sum of fifty ($50) dollars, on or before the 28th day of January, 1907, as evidenced to the United States National Bank by the presentation of the said one hundred (100) notes cancelled."

Provision regarding the execution to the second party by the first party of said 100 notes; the first falling due on or before Monday, March 6, 1905, and the others each succeeding Monday thereafter, for 100 weeks, each of said Dotes to be for $500, except the note falling due on or before January 28, 1907, which shall be for $450, and each of said notes bearing no interest, except at 1 per cent. per month after maturity.

Memorandum of fact that the first party has, prior to the signing of the agreement, already used about 1,000 tons of slag from said slag dump, without payment; and that only in the event of forfeiture of all rights under the agreement shall the second party be entitled to compensation for said slag.

"It is further understood and agreed by and between the parties hereto that. the said party of the first part, while any one or more of the said one hundred (100) promissory notes shall remain unpaid, shall not take or use more than at the rate of five hundred (500) tons per week of and from the said slag, slag dumps and other materials and smelter products."

Provision that time is of the essence of the agreement, and the covenants to bind the heirs, executors, administrators, successors, and assigns of the parties.

After the execution of said contract, the said company took possession of said dump and proceeded to remove about 3,867 tons thereof, and paid to the said Jarmuth the sum of $4,500, represented by the first notes. The purchase

price of the dump being about $1 per ton, the company more than fully paid for the amount removed.

On May 12, 1905, Jarmuth notified the said company, in writing, that they had failed to pay, when due, the promissory note for the sum of $500 maturing on the 8th day of May, 1905; and that within three days after the service of the written notice, according to the provisions of the contract, he would declare all of the 100 promissory notes referred to in the agreement, given to pay for the lease, remaining unpaid, immediately due and payable. And thereafter, on the 17th day of May, 1905, he gave to the company written notice of the failure to pay the note as aforesaid, and of the giving of the notice of May 12, 1905, and declared each and every one of said promissory notes “given to pay for the said lease, and now remaining unpaid, immediately due and payable, and you are hereby further notified that I do hold you liable to and for all the obligations, forfeitures and liquidated damages mentioned in said agreement of lease, etc., of date March 23, 1905." Shortly thereafter the said Jarmuth re-entered and took possession of said property and appropriated the same to his use and benefit.

On August 18, 1905, the said company was adjudged a bankrupt in the United States District Court for the District of Colorado. On September 5, 1905, the appellant, William O. Manson, presented for allowance against the estate in bankruptcy a claim for the sum of $44,450, based on 89 of the unpaid promissory notes in the sum of $500 each, except one for $450; and the said Jarmuth presented for allowance against the estate one of said unpaid promissory notes for the sum of $500. The consideration recited in Manson's proof of claim for the execution of the notes was that he had sold to said Jarmuth certain real estate and personal property in Jefferson county, Colo., in return for said 89 promissory notes and others executed by the Independent Smelting & Refining Company under date of March 23, 1905, prior to the bankruptcy. which were delivered to said Jarmuth in return for an agreement of five years' lease and bond of the same date, for "all the slag, slag dumps, and all materials and smelter products." The consideration for Jarmuth's note was alleged to be cash paid for said note to said Manson; the facts being that said Manson was the real party in interest in the contract respecting the sale of said dump or slag to said company-Jarmuth having rather a representative interest than a real one.

The referee disallowed these claims, on the principal ground that the vendor or lessor, whatever he may be termed, after re-entry and reclaiming the slag, which was the consideration for the notes, was not entitled also to collect the full amount of the purchase money. This finding of the referee was, on review, affirmed by the District Court. To reverse these judgments the said claimants have prosecuted separate appeals. As the cases depend upon the same facts and principles of law, they will be disposed of in one opinion.

Edward P. Costigan (Horace N. Hawkins, on the brief), for appellants.

Daniel B. Ellis and Jesse H. Sherman (Henry T. Rogers, Lucius M. Cuthbert, Lewis B. Johnson, and Charles A. Stokes, on the briefs), for appellees.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge, after stating the case as above, delivered the opinion of the court.

On the hearing of the claims before the referee in bankruptcy, there was considerable testimony offered respecting the negotiations between the parties preceding the execution of the written agreement in question. The settled rule of law is that all bargainings, proposals, and counter proposals of the parties preceding and leading up to the execution of the written contract are conclusively presumed to be expressed

in the written instrument. Any and all matters discussed between them, or their understandings not contained in the writing, are presumed to have been abandoned or changed in the ultimate expression of the minds of the parties. Therefore the terms of the contract, in the absence of fraud or mistake, cannot be varied or controlled by any antecedent negotiations or declarations in pais. It is the concensus of the best considered cases that in the adjustment of private, reciprocal rights, where the parties have deliberately put to writing their mutual convention, such expression of their intention and understanding is final and exclusive. Tait's Evidence, 326, 327; 1 Greenleaf on Evidence, § 275; Bast v. Bank, 101 U. S. 96, 25 L. Ed. 794; Pearson v. Carson, 69 Mo. 550; State ex rel. Yeoman v. Hoshaw, 98 Mo. 358, 11 S. W. 759; Tracy v. Union Iron Works Company, 104 Mo. 193, 16 S. W. 203.

It, therefore, only remains to determine what is the true import of the terms employed by the parties in the written contract in question. The claimant, William O. Manson, was interested in a large quantity of slag, dumped from an ore smelter or mill, which he desired to sell, and which the Independent Smelting & Refining Company wished to buy. Adolph J. Jarmuth seems to have been but a dummy for Manson in the transaction. After much dallying in the negotiations, the sale or transfer took the final form of said written agreement.

Question is made as to whether this slag or dump was regarded by the parties as real or personal property. It may be conceded that material of this character, dug from the earth and deposited on the surface thereof, adheres to and becomes appurtenant to the land, and ordinarily belongs to the owner of the fee; but it is equally the law that the owner of material like slag, the refuse of mineral deposit dug from the earth, run through a mill, and then dumped on the surface of contiguous land, may be treated and dealt with as mere personalty, which the owner may sell and deliver as any other personal property susceptible of manual delivery.

"Though there is no actual physical severance, articles and structures which have become part of the realty by annexation may be made to resume their character of personalty by acts of the landowner alone, or in conjunction with others, which will be effective at least as between the parties to the transaction." A severance may be brought about by the treatment of articles annexed as personalty by the persons interested therein." 13 Am. & Eng. Enc. of L. (2d Ed.) p. 616.

There is no estate or right of any kind conveyed or conceded to the realty upon which the slag was deposited, except a right of way for the purpose only of loading, taking out, and carrying away the slag.

It is not essential, where the article is to be removed by the purchaser, that the sale should be evidenced by deed of conveyance, and so the parties to this transaction regarded and treated the slag. It was provided in the contract that simultaneously with the execution of the contract the party of the second part should "make and execute unto the said party of the first part a good and sufficient bill of sale to all the described slag, slag dumps, and materials and smelter products situated on said above-described land, which said bill of sale shall give

said first party until the 28th day of March, 1910, to remove said slag, slag dumps, and all materials and smelter products, and shall be deposited together with a copy of this agreement in the United States National Bank * * * in escrow, to be delivered to the said party of the first part, or its assigns, on the payment in full of the aforesaid notes," etc.

It matters little what name parties to such contracts may give the transaction. Mere names are often insignificant; sometimes they are not even descriptive. The words "bond and lease" have become so stereotyped in contracts in Colorado, touching mines and mining material, that they are at times employed where they have no relation to the proper legal significance of the terms. To call a simple unsealed contract a "bond" does not make it a bond. To call a contract a “lease,” which has for its underlying purpose the sale of property on specified conditions, intended to secure the payment of the purchase money and for the better protection of the vendor in case of reclamation of the property, does not create a lease. Nor does calling the installment payments therefor, "rent," create the relation of landlord and tenant between the parties. The amount of purchase money in this case was named in round numbers, and, if on the day of the execution of the contract the conditional purchaser had tendered the whole contract price, the property would have passed to it beyond the power of the vendor to revoke. The only remaining obligation of the purchaser, then, would have been to remove the slag within the specified time.

This transaction was not a lease, for the reasons: (1) The deferred payments did not cover the entire period of occupancy for the removal of the slag; (2) the contract gave the company the right not only to remove, but to absolutely consume, the slag, if only it paid its notes, without any provision for the return of the slag at the end of the socalled term; and (3) the time of occupancy of the premises was to end when all the slag should be removed.

In Hervey v. R. I. Locomotive Works, 93 U. S. 664, 672, 23 L. Ed. 1003, the court, in discussing a transaction respecting the transfer of personal property to be paid for in installments, retaining the title by the vendor until the payments were made, said:

"Nor is the transaction changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts will always look to its purpose, rather than to the name given to it by the parties."

Then referring to the case of the sale of a piano, reported in Murch v. Wright, 46 Ill. 488, 95 Am. Dec. 455, the court said:

"The court held that it was a mere subterfuge to call this transaction a lease,' and that it was a conditional sale, with the right of rescission on the part of the vendor, in case the purchaser should fail in payment of his installments. * It is true the instrument of conveyance purports to be a lease, and the sums stipulated to be paid are for rent; but this form was used to cover the real transaction."

* *

In Contracting & Building Co. of Kentucky v. Continental Trust Co. of New York, 108 Fed. 1, 47 C. Č. A. 143, locomotives were delivered to a railroad company on payment of a specific amount and the execution to the builders of 12 promissory obligations, called in the

contract "lease warrants," maturing at intervals of one month up to a specified date. The written instrument was in the form of a lease, in which the installment payments were called "rentals," with the legal title retained in the so-called lessor. The contract further provided that on the payment of the last lease warrant the lessee might, at its option, purchase the locomotives for $1, on the payment of which the lessor was to execute a bill of sale therefor to the lessee. Judge Lurton observed of that:

"It is too obvious for discussion that the arrangement under which the railroad company acquired the 10 locomotives in question was no ordinary letting of property for a fixed rental, and that no such thing was really contemplated, and that the retention of title was intended as a mere mode of securing the payment of the purchase price. The real character of such transactions has been often the subject of judicial construction, and their rank in relation to the claim of creditors considered with reference to the registry laws of the states within which the property is situated. [Citing authorities.] The real transaction was a bargain and sale; the title being retained as security for the purchase money. Being property susceptible of separate ownership and separate liens, it passed under the after-acquired property clause of the existing mortgage, subject to the lien of the vendor," etc.

In Unitype Company v. Long, 143 Fed. 315, 74 C. C. A. 453, the contract was in the form of a lease of a machine for the term of three years, for a total rental of $1,260, payable in monthly installments, for which notes were given, with an option to the lessee to extend two years more at the same rental and to buy the machine at any time during the three years for $1,700, less the amount paid in rental. It was held to be nothing more than a conditional sale of the machine. The court said:

"Although called a lease, the transaction was intended to be, and in effect was, a conditional sale; the vendor reserving the title until the final payment should be made, and the right of rescission, in case the purchaser should fail in the payment of any installments of the so-called rent, or an additional amount to make the total sum $1,700."

The same view of such transaction obtains in the state of Colorado. Gerow v. Costello, 11 Colo. 561, 19 Pac. 505, 7 Am. St. Rep. 260. It is the universally recognized rule of law, instinct with the spirit of justice, that where a right to reclaim property conditionally sold is reserved to the vendor in the event of the failure of the vendee to make payment of any installment due on the purchase price, he may not retake and appropriate the property and also recover the whole purchase price; and the retaking of the property by the seller defeats. his right to recover unpaid installments. "A vendor under a conditional sale cannot have both the property and the purchase price. Where he has elected to retake the property absolutely, the consideration for the obligations or security given for the purchase price fails, and he can neither collect upon the one nor enforce payment of the other." White v. A. W. Gray's Sons, 89 N. Y. Supp. 481.

In Seanor v. McLaughlin, 165 Pa. 150, 30 Atl. 717, 32 L. R. A. 467, the plaintiff delivered to the defendant certain machines, the price of which was $1,700, retaining the title. On payment of $750 the agreement was to pay the balance in three yearly payments. The contract provided that the plaintiff could resume possession of the machines