Volume 102 — Oklahoma Reports

<p>Error from District Court, Creek County; Mark L. Bozarth, Judge.</p> <p>Action by Della May Crabtree against Charles Bathj and others. Judgment for defendants, and plaintiff brings error. ■</p>

<p>Appeal from Corporation Commission.</p> <p>From order fixing gas rates, the Okla homa Gas & Electric Company brings error.</p>

<p>Corporation Commission — Dismissal of Appeal for Defective Record.</p> <p>The syllabus in this case is the same as that in No. 12918, Oklahoma Gas & Electric Company v. State of Oklahoma and the Corporation Commission of Oklahoma, (this day decided), 102 Okla. 3. 225 Pac. 710.</p>

<p>Error from District Court, Pushmataha County; G. M. Barrett, Judge.</p> <p>Action by First State Bank of Tuskahoma, a corporation, against S. L. Chowning. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>J. Attorney and Client — Power to Compromise Case — Vacation of Judgment.</p> <p>The general rule is that an attorney has no power or authority to compromise oi settle a case without express or implied authority, and where a judgment is based upon such compromise, said judgment may be get aside and vacated in the same manner as other judgments may be vacated by the aggrieved client when application is promptly presented.</p> <p>2. Judgment — Vacation for Unavoidable Casualty — Diligence.</p> <p>' In order to vacate a judgment on the grounds of unavoidable casualty or misfortune, it must appear that the complaining party was not guilty of negligence in allowing the judgment to be taken, and that no proper diligence on his part could have prevented said judgment.</p> <p>3. Same — Refusal to Vacate Judgment Sustained.</p> <p>Record examined, and held, that the judgment of the trial court in refusing to vacate said judgment, upon the ground that the plaintiff himself had not shown due diligence or exercised reasonable and ordinary care in the prosecuti.on of his case, is not clearly against the weight of the evidence and is therefore affirmed.</p>

<p>Error from District Court, Jackson County; A. S. Wells, Assigned Judge.</p> <p>Action by M. Johnson and another, against John B. Walker. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from County Court, Osage County; G. B. Sturgell, Judge.</p> <p>Action by E. E. Shepherd against R. A. Correll; the Deposit Guaranty State Bank of Ponca City, Okla., intervener. From a judgment in favor of plaintiff, defendant and intervener appeal. On motion to dismiss appeal.</p>

<p>Error from District Court, Harper County; Arthur G. Sutton, Judge.</p> <p>Action by H. C. Boren against J. G. Ar-buthnot. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Grant County. The Farmers’ State Bank of Nash, formerly the Farmers’ & Merchants’ Bank of Nash, appealed from action of county board of equalization to district court. Motion by the State to dismiss appeal overruled, and the State brings error.

Error from District Court, Kay County; H. S. Burke, Judge. Action by Herman Perlstein against Albert Markwood and J. R. Lawrence to recover on a certain note executed by Albert Markwood and J. R. Lawrence to Herman Perlstein. Judgment for plaintiff, and defendant J. R. Lawrence brings error.

Error from District Court, Tulsa County; Albert C. Hunt, Judge. Action by the Southwestern Mortgage Company against Mary V. Howard and others. Judgment for plaintiff, and defendant named brings error.

<p>Error from County Court, Cotton County; J. O. Norman Judge.</p> <p>Action- between the Belknap Hardware & Mfg. Company and J. A. Fowler. Fr.om the judgment, the former brings error.</p>

<p>(Syllabus.)</p> <p>1. Brokers — Right to Commission — Procuring Cause of Lease.</p> <p>A broker employed to procure a lease is entitled to his commission, if during the continuance of his agency he is the efficient or procuring cause of the execution of the lease, though the actual agreement for the lease is made by the principal with the owner of the land; and the broker will be regarded the procuring and efficient cause if his efforts are the foundation upon which the negotiations resulting in the execution of the lease are begun.</p> <p>2. Same — Reasonable Compensation in Absence of Contract.</p> <p>When a real estate broker sues to recover compensation for services rendered in procuring a purchase under a contract which fails to fix the rate of compensation, he is entitled to receive a fair and reasonable compensation for the services, rendered in compliance with his contract.</p> <p>3. Appeal and Error — Questions of Fact— Verdict — Broker’s Commission.</p> <p>The question as to whether or not an agent or broker has been employed to secure a lease on property and whether or not he is the procuring cause of the sale or purchase of the lease, are issues of fact, and since there is evidence reasonably supporting the verdict of the jury, such verdict will not be disturbed on appeal.</p> <p>4.. Trial — Conduct of Jury — Sending Exhibits to Jury Room.</p> <p>After the jury has retired for deliberation, by permission of the court and without notice to the attorneys for the defendant,-a written contract, a copy of which was attached to the answer of the defendant, and which had been introduced in evidence, was permitted to be sent to the jury room; held, this did not constitute prejudicial error.</p> <p>5. Appeal and Error — Insufficiency of Record — Misconduct of Attorney.</p> <p>Alleged misconduct of the attorney for the prevailing party in making his argument to the jury will not be reviewed by this court, where such statements are not incorporated in the case-made by bill of exceptions or otherwise, except by affidavits filed in connection with motion for. new trial.</p>

Error from District Court, Okfuskee County; John L. Norman, Judge. .Aetiiqn by David ¡Barnett: against O. H. Douglas and- another; the Tidal Oil1 Company and others, intervenersi Judgment for defendants, and plaintiff brings .error,

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by Lannis William Schrock against L. E. Plant and another. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>Pleading — Judgment on Pleadings — When Improper for Plaintiff.</p> <p>When the pleadings in a case consist solely of the petition of the plaintiff and the answer of the defendant, and the answer contains a general denial and no admission of certain facts alleged in the plaintiff’s petition and essential to the right of the plaintiff to recover, and which alleged facts are. lawfully put in issue by a general denial, the plaintiff is not entitled to recover judgment on the pleadings in the case.</p>

Error from District Court, Oklahoma County; James I. Phelps, Judge. Action by Carl O. Walker and others against the Metropolitan Electric Service Company and others. Judgment for plaintiffs, and defendants bring error.

<p>Error from Superior Court. Okmulgee County; H. R. Christopher, Judge.</p> <p>• Action by Mrs. George M, Davis and others against J. N. Reeder et al. Judgment for ■defendants, and plaintiffs bring- error.</p>

<p>Error from District Court, Creek County; John L. Norman, Judge.</p> <p>Action by H. M. Watchorn against Lou Watchorn. From the judgment defendant brings error.</p>

Error from District Court, Tulsa County : Valjean Biddison, Judge. Proceedings by E. H. Myers, Jr., to vacate a judgment in favor of W. A. Chamness. Prom an order finding that Myers had entered his general appearance in the cause and granting him time to plead, he has appealed.

<p>(Syllabus.)</p> <p>Indemnity — Recovery on Contract — Noncompliance with Conditions.</p> <p>In an action brought against one of the signers of an indemnifying agreement, under the terms of which the signers agreed to indemnify and hold harmless the ob-ligee against any demands and liabilities which the obligee might sustain by reason of executing bonds upon the" request of the obligors, the liability of the signers of the agreement for a loss sustained by the plaintiff on a bond executed by it as surety was dependent on the execution of such bond' at the request of one or more of the signer's of the indemnifying agreement, and where the plaintiff failed to prove the execution of such bond, at their request, it was not error to direct a verdict for the defendant.</p>

<p>Error from District Court, Kingfisher County; J. C. Robberts, Judge.</p> <p>Action by the Hennessey State Bank et al. against the Board of Equalization of Kingfisher County for exemption of taxes. Judgment for plaintiffs; defendant appeals.</p>

<p>Error from District Court, Nowata County: C. W. Mason, Judge.</p> <p>Action by E. C. Wright and Fred S. Huffman against Addie Nation, W. R. Nation, and the Atlas Petroleum Company for cancellation of an oil and gas lease and for damages amounting to $600 for failure to deliver valid lease to plaintiffs. Judgment for defendants; plaintiffs appeal.</p>

Error from District Court, Rogers County; C. H. Baskin, Judge. Action by Ed. Bohling against Byron McDonald, for the purpose of enjoining the defendant from foreclosing his lien on a certain drag line shovel and outfit. Judgment for plaintiff; defendant appeals.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Discretionary Rulings — Qualifications of Expert Witnesses.</p> <p>Whether or not the qualifications of a witness with respect to knowledge or special experience is sufficiently established is a matter resting largely in the discretion of the trial court, whose determination is usually final, and will not be disturbed by an appellate court except in extreme cases where it is manifest that the trial court has fallen into extreme error or has abused its discretion, and that prejudice to the complaining party has resulted, even though the appellate court might have decided differently if the question had been presented to it in the first instance.</p> <p>2. Insurance — Tornado Policy — Proof of Loss — Waiver.</p> <p>Where in a suit upon a policy of insurance against loss by windstorms, etc., it is shown that an adjusting agent was sent to investigate a loss and such adjuster made examination of the building, and within the time limited in said policy for making proof of loss denied liability under the policy on the ground that the damage was caused by means other than those specified in the policy, further proof of loss thereunder will be held to have been waived.</p>

Error from District Court, Muskogee County; O. H. Searcy, Judge. Final report of P. M. Ford as guardian of Isaac Mason, Jr. From allowance of certain items of compensation to- guardian and attorneys, Isaac Mason, Si-., as guardian, appeals.