erty through the negligent operation of railroads during Federal control should be brought against the Director General, and not otherwise. This part of order No. 50 must be regarded as void because the President and Director General were without authority to abrogate the express provisions of the Federal Control Act with reference to the institution of suits of this character against carriers. Lavelle v. Northern Pacific Railroad Co. (Minn.), 172 N. W. 918. The two grounds aforesaid, urged as invalidating the judgment against the carrier corporation, were determined adversely to the contention of appellants in the case of Hines v. Mauldin, ante, p. 170.

It is also insisted by appellants that it was error to render a judgment against either the Director General or the carrier corporation for a penalty. The insistence is that act 61, Acts 1907, amending section 6774 of Kirby's Digest, under which judgment was obtained, did not provide for a penalty against the Director General, and that the carrier corporation was exempt from the penalty because it was not operating the train at the time the mules were killed. So far as suing and being sued is concerned, our construction of the Federal Control Act is that it did not change the status of the railroads. It was said in the case of Mo. Pac. Rd. Co. v. Ault, supra, that "insofar as suing and being sued is concerned, the railroad occupied exactly the same status after being taken over by the government as before." A careful examination of the Federal Control Act reveals that no exceptions were made therein exempting railroads during Federal control from the provisions of penalty statutes. On the contrary, section 10 of the Federal Control Act subjected carriers during Federal control to all laws and liabilities of common carriers existing before the passage of the act, unless such laws or liabilities are inconsistent with the Federal Control Act or some applicable act or some order of the President. There is no inconsistency between act 61, Acts 1907, amending section 6774 of Kirby's Digest, and the Federal Control Act, or any other applicable act or any valid order of the President.

Lastly, it is insisted that the allegations of the complaint are insufficient to support a judgment for double damages and an attorney's fee, because the complaint omitted to allege a failure by appellants to post the stock, and because the complaint omitted to specify the kind of notice appellee served on appellants. It is unnecessary to discuss whether material defects exist in the complaint, as such defects, if existing, may have been supplied in the course of the trial by the proof. If thus supplied, it was proper at the conclusion of the evidence to treat the complaint as amended to conform to the proof and to render judgment accordingly. Every reasonable presumption must be indulged in favor of the validity of the judgment as the case is before us on the recitals in the record, and not before us on a bill of exceptions and motion for a new trial.

No error appearing upon the recitals in the record, the judgment is affirmed.

Ο'ΚΑΝΕ V. MCCUEN.

Opinion delivered November 22, 1920.

LANDLORD AND TENANT CONSTRUCTION OF LEASE. - Where a lessor rented land for four years, the lease stipulating that the lessee agrees to pay the lessor $7 per acre "for each year," provided that after the first year the lessee shall have the option of rerenting and paying the customary cash price for the land, the option was for the lessee's benefit, and where it was not exercised by him, the rental of $7 per acre prevailed during the entire term.

Appeal from Logan Circuit Court, Northern District; James Cochran, Judge; affirmed.

J. D. Benson, for appellant.

1. The court erred in granting a new trial because it changed its views of the construction to be placed upon the contract, and its last construction was error. The only instruction given was erroneous. not skilfully drawn and has some seeming contradictions

The contract is

or ambiguities, but the intention of the parties is clear, and, in arriving at the intention of the parties, all parts of the contract must be considered, and its terms and

provisions must be read and considered in the light of

all other parts. 99 Ark. 112; 93 Id. 493; 96 Id. 320; 94

Id. 461; 13 С. J. 525.

2. The contract must so be construed, if possible, that all its terms may take effect. 101 Ark. 22; 149 S. W. 518; 18 Ark. 65; 13 C. J. 525. No word in a contract should be treated as surplusage and disregarded if any meaning which is reasonable and consistent with the other parts can be given it. The intention of the parties shall be effectuated. 94 Ark. 461; 28 Id. 282. It is clear from the testimony that both parties understood that after the year 1915 the lessee was to pay the customary rent on similar land whether it was higher or lower than $7. Where there is nothing to the contrary in the language of the contract the parties may by mutual consent interpret ambiguous provisions for themselves, and the court must enforce the contract according to that interpretation. 71 So. Rep. 443; 13 C. J. 542, 785. Where two clauses are inconsistent and conflicting, they must be so construed to give effect to the intention of the parties as collected from the whole instrument. 84 Ark. 431. See, also, 53 Id. 58; 23 Id. 582; 9 Сус. 579, 587.

3. There was no error in the trial of the case and it was error to grant a new trial. The proof shows that the customary rents for 1916 and 1917 was $7 per acre, and that was the rent paid for those years, but the proof abundantly shows that rents were $10 per acre for 1918, and the judgment should be reversed and judgment entered here on the verdict of the jury.

Robert J. White, for appellee.

The contract admits no other construction than that McCuen had the exclusive right to change the amount of rents under the contract and had the right to hold the land for the entire term of the lease or to refuse to do so as he saw fit. The acceptance of $7 rent for 1916 and 1917 estops O'Kane from claiming more for the year 1918. Appellee was certainly entitled to notice if the rent was to be increased to more than $7. The court's action in sustaining the motion for a new trial had the effect of a peremptory instruction for defendant. The contract admits of no other construction than that McCuen alone has the exclusive right to change the amount of rents, and he had the right to hold the land for the entire term of the lease or refuse as he saw fit, and the court below put the proper construction on the contract which was the one followed by the parties in their dealings during the entire life of the lease. 185 S. W. 825; 234 Fed. 448; C. C. A 196; 105 S. W. 972; 116 N. E. 971. See, also, 172 Mass. 23; 109 N. E. 730; 29 Id. 623; 61 Ark. 380. Putting the most favorable view for appellant possible, the contract was a lease from year to year. 61 Ark. 380. A notice to quit is necessary to determine a periodical tenancy. Gear on Landlord and Ten., p. 85, § 32; 2 Vroom 133; 70 Ark. 355; 65 Id. 471; 169 Pac. 896. No matter what ground the court sustained the motion for new trial upon appellant has sustained no injury because he could not recover under any phase of the case.

HUMPHREYS, J. This suit was instituted by appellant against appellee to recover an additional $3 per acre on 492 acres in McLean's Bottom in Logan County, under a rental contract entered into between appellant and appellee on the 4th day of November, 1914.

Appellee filed an answer, pleading payment in full of all rents due under the contract, and denying that he owed appellant an additional $3 per acre upon said land for the year 1918.

The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered in favor of appellant for $1,282.85.

A motion for a new trial was filed, and, upon hearing, sustained. The judgment was thereupon set aside and the complaint dismissed on the ground that appellant was not entitled to recover on the rental contract. From the judgment dismissing the complaint, an appeal has been duly prosecuted to this court.

The undisputed facts disclosed that appellee entered into possession of the land described in the rental contract and paid appellant $7 an acre therefor as rental for the years 1915, 1916 and 1917, and that for those years the appellant accepted that amount in full settlement of rents due thereon; that, during the year 1918, appellee occupied the premises and advanced appellant $2,600 on rents for that year; that, in August, 1918, he rented the lands for the year 1919 upon the basis of one-fourth of the cotton to be raised and twelve bushels of corn per acre on that portion of the land to be planted in corn; that, on the first Sunday in January, 1919, the parties met for a final settlement of the rentals due for 1918. At that time appellant contended under the provisions of the contract that he was entitled to $10 an acre for the year 1918, and appellee contended that he was responsible under the terms of the contract for only $7 per acre. No settlement was reached between them, and their disagreement resulted in a suit by appellant against appellee for the balance due on the basis of $10 per acre. Appellee tendered and deposited in court the amount of $7 per acre. The controversy therefore involves the question of whether appellee is indebted to appellant, under the terms of the contract, for any amount in excess of $7 per acre. The evidence tended strongly to show that the rental value of the lands in question for the year 1918 was $10 per acre. The circuit court construed the contract to mean that appellant had agreed to take, and appellee to pay, $7 per acre for the use of the land for the year 1918. Was this interpretation correct? In order to determine the question, it is only necessary to set out the following paragraphs of the contract: