Volume 18 — Oklahoma Reports

<p> Error from, the District Court of Garfield County; before C. F. Irwin, Trial Judge. </p>

<p>REPLEVIN—Demurrer to Evidence—Chattel Mortgages—Burden of Proof. In a replevin action between two mortgagees, where the plaintiff proves all of the facts necessary to entitle it to .recover, unless the defendant has a prior lien on the property under its mortgage, the defendant must not only establish that its mortgage is first in date of execution, but must also affirmatively establish, where isuch fact is denied by the plaintiff, that the property in controversy is the same property included in defendant’s mortgage.</p> <p>(Syllabus by the Court.)</p>

Error from the Probate Court of Oklahoma County; before Wm. P. Harper, Trial Judge. STATEMENT OF FACTS. The defendant in error T. A. Vaughn, commenced this action in the probate court of Oklahoma county against the plaintiffs in error, the Fidelity Funding Company and C. Romander, to recover the sum of $685.50.

Error from the Probate Court of Caddo County; before G. P. Phelps, Trial Judge. STATEMENT 03? FACTS. This was a proceeding in mandamus by Millia Kemp against W. H. Starkweather, a justice of the peace. From a judgment overruling a demurrer to the writ, defendant appeals.

<p>Error from the District Court of Logan County; before John H. Burford, Trial Judge.</p> <p>STATEMENT OE EACTS.</p> <p>This was an action commenced in the district court of Logan county, by Catherine Markwardt against the city of Guthrie, to recover damages alleged to have been sustained by her in consequence of the maintenance of a public sewer by said city. The petition in the ease, omitting the caption, is as follows:</p> <p>“'The plaintiff, above named, complains of tbe defendant, and alleges:</p> <p>“First: That the defendant is a municipal corporation of the Territory of Oklahoma, duly organized, and a city of the first class, having a population of twenty-five (25,000) thousand inhabitants, and through which flows a stream of water, to-wit: Cottonwood creek.</p> <p>“Second: That she is and prior to, and at the time of, the commission of the grievance hereinafter mentioned was, lawfully seized in fee simple in and to the real property described as follows, to-wit: Ten (10) acres in lot four, (4), of section five (5) township sixteen (16), north of range two (2) west in Logan county, Oklahoma Territory, included within the following boundary lines, viz: Commencing at the northwest corner of said lot four (4) thence running east along the north line of said lot four (4), thirty-two (32) rods, thence south fifty (50) rods, thence west thirty-two (32) rods, thence north along the west line of said lot four (4) fifty rods to the place of beginning, through which flows the said Cottonwood Creek which with its shores and banks are included within said boundary lines and owned by plaintiff.</p> <p>“Third: That the plaintiff with her family is and was during the time above mentioned in the possession of said property and in the occupation of the dwelling house erected thereon.</p> <p>“Fourth: That prior to the commission of the grievances aforesaid the plaintiff at great expense improved said real estate, especially for gardening purposes in raising vegetables for market. The said improvements consist of a water reservoir 240 feet long, 65 feet wide and 14 feet deep, located near the bank of said creek, near which was, and is also erected and in operation a large windmill and water pump connecting said stream and reservoir, drawing an 11 inch stream' of water from said creek to said reservoir, keeping the same .full of water, from which reservoir were also constructed to all parts of said land, ditches and drains used in irrigating said land from the waters of said creek through said reservoir, also a cold storage house and a warm storage house for the preservation of vegetables, both summer and winter; also hot house for the early propagation of esculent plants; also houses and barns for horses, cows, hogs, and poultry, necessary for the home and conduct of the gardening business; also the said reservoir was to its capacity stocked with a great supply of fish"; also was kept thereon horses, cattle, and hogs, which had free access to said creek and reservoir for water; from which said, land, improved and used as aforesaid through the sale of vegetables, milk, butter and fish, the 'daintiff realized and received large money profits and returns, and also supplies for family use.</p> <p>“Fifth: That the waters of said Cottonwood creek flow north through and from the defendant city about one and one-half (1 1-2) miles to and through the plaintiff’s land aforesaid, and that the plaintiff was entitled to have had, and ought still to have the use and benefit of the water of said stream for her horses, hogs and cattle, irrigation, and other purposes, yet, the said defendant, by its officers, agents ■and employes, well knowing the premises, did on the - day of -, 1902, wrongfully and unlawfully connect its sewer system with said Cottonwood creek at a point between said land and defendant city, so that all the excrement from the inhabitants of said city and their dwellings was and ever since has been wrongfully and unlawfully discharged into said creek. And the said defendant did then and thereby wrongfully and unlawfully pollute and disturb the water of said creek so that it became foul and impregnated with poisonous and noxious substances and emitted a noisome and poisonous stench, injurious to the health of plaintiff and her family and almost unbearable.</p> <p>“Whereby, the enjoyment by said plaintiff and her family of the said land as a home and dwelling place has been and is interfered with, and the same has been rendered uncomfortable, unwholesome, and unfit for habitation; and the water of said stream has become unfit for stock, and the plaintiff will be compelled to resort to artificial means for water for her horses, cattle and hogs, and the ground has become so impregnated with the water of said stream that water from wells thereon is injiirious to health and dangerous for domestic use; and the water of said stream has been rendered unfit for irrigation purposes by reason of the increased danger to health, and also rendering vegetables raised thereon, largely unmarketable through fear by consumers of contracting disease therefrom; and whereby the fish in said reservoir have died, and the said premises rendered useléss for the purpose for which they were purchased and improved as aforesaid; by reason of' which and all of which aforesaid the value of said land and premises was greatly depreciated to her damage in the sum of three thousand ($3,000.00) dollars.</p> <p>“Wherefore, plaintiff prays judgment against said defendant for the sum of three thousand (3,000.00) dollars and costs of suit.”</p> <p>To this petition the city interposed a demurrer, on the ground that the petition did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and the plaintiff declining to plead further the cause was dismissed at the plaintiff’s costs. From this ruling, order and judgment the plaintiff appeals.</p>

Error from the District Court of Lincoln County; before John H. Burford, Trial Judge. STATEMENT OE FACTS. This was an action brought in the district court of Lincoln county by the plaintiff in error against the defendant in error, to recover the sum of $5055.00 for injuries sustained in a runaway accident on the 3rd of April, 1905.

<p> Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. </p> <p>STATEMENT OE FACTS.</p> <p>This action was brought by Samuel Calhoun, an infant between two and three years old, by Anna Calhoun, his mother and next friend, to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant railway company. The material" averments in the petition were, substantially, that the plaintiff was a minor, of the age of three 3^ears. That on August 24, 1903, Anna Calhoun, the mother of Samuel Calhoun, purchased a ticket from the defendant railway company at Arkansas Chy, Kansas, for passage on a regular passenger train to Edmond, Oklahoma, paying the regular fare therefor. That after taking passage upon the train with her infant child, the conductor took up her ticket, and issued her the usual cheek that is given to passengers, indicating the station which was her destination. That the plaintiff had never been over this line of road prior thereto. The train was late, and did not reach Edmond until about 11.30 o’clock that night. That the servants of the railway company had failed to call the station of Edmond as the train approached. That the plaintiffs mother received no warning chat she had reached her destination. That the train stopped an unreasonably short time to permit passengers to disembark. That the platform was dark, so dark that it was impossible to distinguish objects within a very short distance. 'That no assistance was given the plaintiff to disembark from the train. That while lamps were attached to the sides of the depot for the purpose of lighting the platform, they were not burning. 'The plaintiff says further, that when said train arrived at said station, the night was very dark; that defendant had previously caused lamps to be placed at its depot, station and usual place of alighting at said station of Edmond; that said lights are necessary, usual and reasonable for the safety and accomodation of passengers alighting from trains in the night time; that the servants of defendant carelessly and negligently failed to light said lamps, and the same were not burning at the time said train arrived at said station; that because of such neglect, it was impossible for said passengers to see so as to know when said station was reached, or to see or distinguish persons or other objects at the place of alighting from said train; that the servants of defendant had placed and left a certain truck, belonging to the defendant and under its control, near to said train and the place of alighting therefrom at said station, in a careless and negligent position, and standing diagonal to said train, and which it was impossible to see, because of the darkness occasioned by the failure to light said lamps, and which was not in use or there for any lawful or necessary purpose, and which was there, and in such position at the time of the arrival of said train at said station. That after said train had arrived at said station of Edmond, and had stopped thereat, and with no information from the servants of the defendant, the said passengers learned the fact from other passengers thereon; that none of said servants came to offer or afford any assistance to said passengers in alighting from said train; that knowing of the duty of said servants to give such assistance and relying upon the performance of said duty, and expecting them or some of them to appear at the exit from said train, for the purpose of rendering such assistance, the said passengers undertook to alight from said train; that at the exit from said train, 'said Samuel Calhoun was taken from the train by one Carl Jones, and before said Anna Calhoun could alight from said train, the same was carelessly and negligently put in motion by the said servants of defendant; that said Jones was dressed in uniform and because of such darkness so occasioned, it was impossible to distinguish him from servants of defendant in charge of said train, who were likewise so dressed; that said Anna Calhoun believed said Jones to be one of said servants, and that he was taking sa.id Samuel Calhoun, in pursuance of his duties as said servant and that while said train was moving she believed the same to be temporarily moving for. a short distance, for some proper purpose in connection with the operation thereof and that the same would again soon stop to enable her to alight therefrom, because of which said facts she remained upon the platform or steps of one of the cars of said train while the same was in motion, and that said Jones for the civil purpose of avoiding the separation of her from her child carried said Samuel Calhoun along beside of said train, at and near the usual place of alighting therefrom; that while carrying said child and because of the darkness so occasioned by the carelessness and negligence of the defendant, in the failure of its servants to light said lamps and in leaving said truck so placed, which said Jones was unable to see by said darkness he came in ' contact therewith; that the violence occasioned by said contact compélled the said Jones to let go said child who because of his tender age and inability to protect himself was thereby thrown under said train, and the wheels of one of the cars thereof passed over his right foot and leg, severing the same, whereby the said foot and lower part of said leg was wholly lost and destroyed, rendering the said Samuel Calhoun a permanent cripple, disabling 'him from physical and manual efforts and labor, occasioning an outlay of a large sum of money for surgeon’s and doctor’s fees, to wit: Two hundred dollars ($.200.00), and permanently impairing his health and rendering him unable of earning a livelihood by the usual efforts of life, all to his damage in the sum of twenty-five thousand ($25,000.00) dollars, and all of which was directly due to the negligence and carelessness of the defendant in the failure of its servants to take up said check, to announce the approach or arrival of said train and to advise said passengers thereof, and to assist them in alighting therefrom, and negligently and carelessly failing to- light said lamps, and in carelessly and negligently placing said truck, and failing to assist said passengers to alight from said train and because of the dangerous condition of the said place of-alighting, occasioned by the darkness and the dangerous position of said truck, and the careless and negligent failure to stop said train at said station long enough to enable said passengers to alight therefrom in safety, and the careless and negligent starting of said train before said passengers had alighted.</p> <p>The railway company filed an answer consisting: First, of a general denial; and second, stating that the injuries which the plaintiff sustained, were due to the carelessness and negligence of the plaintiff's mother, and one Carl Jones, to whom the plaintiff had been entrusted, and which negligence contributed directly to the injury complained of, and on account of which the plaintiff is not entitled to recover.</p> <p>To this answer, the plaintiff filed a reply consisting of a general denial.</p> <p>Upon the issues thus joined, the cause was submitted to a jury, and a verdict was returned in favor of the plaintiff, assessing his recovery at $10,000.00. 'The railway company submitted a number of special interrogatories to the jury, which were returned with the general verdict, and a motion was made to render judgment upon the special findings of the jury, notwithstanding the general verdict, which motion was overruled, and exception saved. Thereupon the court approved the general verdict and entered judgment accordingly. Motion for new trial was duly filed, considered, and overruled, and exception noted, and the case is brought here for review, on petition in error and ease made.</p>

<p> Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. </p> <p>STATEMENT OE PACTS.</p> <p>This was an action brought by P. M. Holmes, defendant in error, against the Atchison, Topeka & Santa Fe Railway Company, to recover the sum of $44.30, claimed to be due for an alleged overcharge of freight on a car of potatoes from Jewell City, Kansas'to Edmond, Oklahoma. The cause was brought in the justice court, judgment was had for the plaintiff, and the defendant appealed. In the district court the case was tried upon the following agreed statement of facts:</p> <p>"agreed statement of facts.</p> <p>“It is agreed by the parties hereto that the court may consider the following statements as the facts in this case, and from them may make conclusions of law, and render judgment herein. Either party reserving the right to except to said conclusions of law, and judgment, and have the right to an appeal to the supreme court of this territory, the same as though this case was tried by a jury.</p> <p>“No. 1. On November 1st, 1899, Alonzo McKinley was station agent for defendant company at Edmond, Oklahoma.</p> <p>“No. 2 On said date said McKinley as such agent told plaintiff that the rate on a car of potatoes from Jewell City, Kansas, to Edmond, Oklahoma, of 30000 pounds weight, if shipped during the month of November, 1899, would be 29 cents per 100 pounds.</p> <p>“No. 3. That relying on said statement the plaintiff purchased a car of potatoes of 30000 pounds weight.at Jewell City, Kansas, and shipped them to Edmond.</p> <p>“No. 4. On arrival of said car at Edmond, the defendant demanded $131.00 freight on said car, which plaintiff was compelled to pay, to get the car, and did pay under protest.</p> <p>“No. 5. That at the original rate named by such agent, the freight would have been $87.00 on such car, plaintiff being compelled to pay $131.00 was $44.00 in excess of the amormt named and this suit is brought to recover the difference in the freight named, and the amount' collected.</p> <p>“'No. 6. That at the time said freight rate was named., by said agent the plaintiff explained'to such agent that his reason for inquiring the rate was that he wanted to buy potatoes in northen Kansas and ship them to Edmond, and expected to use the freight rate named to determine whether he could buy, ship and sell at a profit, and expected to rely on the rate named for that purpose, which said agent fully understood at the. time.</p> <p>"No. 7- That said car of potatoes was shipped on Noy. 2, 1899, from Jewell City, Kansas, on the line of the Mo. Pacific Railway to Concordia, Kansas, which was a junction point with defendant’s line. That its service for hauling said car from Jewell City to Concordia, the Mo. Pacific Railway Co. charged $32.00 which was paid to said company in cash by defendant on Nov. 6, 1899, when said ear was delivered to defendant by the Mo. Pacific Railway Co That on said date, nor during the month of Nov. 1901, the defendant and the Mo. Pacific Railway Co. had no joint tariff rate in force between Jewell City, Kansas and Edmond. Oída.</p> <p>"No. 8. That on said date the regular interstate tariff rate on defendant’s line covering freight on car of potatoes between Concordia, Kansas, and Edmond, O. T., was 33 cents per 100 pounds.</p> <p>"No. 9. That on arrival of said car at Edmond, O. T. on the 13th day of Nov. 1899, the defendant collected from plaintiff as freight on such car the $32.00 it had paid to the Mo. Pacific Railway Company and in addition 33 cents per 100 pounds on 30000 poimds weight, the same being its regular tariff rate covering said shipment.</p> <p>"No. 10. At the time said agreement was made by said agent, McKinley, as specified in paragraph No. 2, of this agreed statement of facts, the plaintiff did not know the tariff rate established and in force by defendant covering such shipment, but relied entirely on the statement of such agent, McKinley.</p> <p>“Eo. 11. These facts are agreed to, the plaintiff maintaing that the defendant was bound by the agreement to its agent to a lower rate, when he was advised of the circumstances under which it was made. The defendant insisting that such agreement was void.</p> <p>‘Either party reserving the right to object to the materiality of any fact herein agreed to.</p> <p>“In witness whereof we do hereunto set our hands this 29th day of Oct. 1903.</p> <p>“(Signed) “M. Fulton,</p> <p>“Attorney for Plaintiff.</p> <p>“J. E. COTTINGITAM,</p> <p>“Attorney for Defendant.”</p> <p>Upon this agreed statement of facts, the district court found the issues in favor of the plaintiff, and against the defendant, and entered judgment for the plaintiff. From this judgment the railway company appeals.</p>

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.

Error from the District Court of Woodward County; before Jno. H. Burford, Trial Judge. STATEMENT OF FACTS. The basis of this action was-a claim filed before the board of county commissioners of Woodward county, by the defendant in error, Smith, as a claim against said county in the sum of $691.95, for publishing the delinquent personal and real estate tax lists. The commissioners disallowed all of said claim, except $6.52.

<p>Error from the Probate Court of Comanche County; before W. H. Hussey, Trial Judge.</p>

<p> Error from the District Court of Kingfisher County, before C. F. Irwin, Trial Judge. </p>

<p>Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge. •</p>

<p> Error from the District Court of Custer County; before C. F. Irwin, Trial Judge. </p>

<p> Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge. </p>

<p> Error from the District Court of Pawnee County; before Bayard T. Hainer, Trial Judge. </p> <p>STATEMENT OF FACTS.</p> <p>On the 17th day of December, 190.0, J. C- Stribling commenced his action in the district court of Pawnee county against B. M. Snyder and George P. Olmstead, to recover judgment for the sum of $155,200.00 damages, and interest thereon for an alleged breach of contract. The contract sued upon was in writing and is as follows:</p> <p>"contract or sale.</p> <p>“This contract made and entered into this first day of Sept. 1900, by and between J. C. Stribling, party of the first part, and B. M. Snyder and George P. Olmstead, known herein as parties of the second part, bears witness that the party of the first part herein has this day sold and does hereby sell and deliver to the parties of the second part, 12700 head of steer cattle .situated and located in pastures near Gray Horse,- O. T., Of the cattle so sold and delivered 12500 are to be counted out to the second parties. It is agreed that of the cattle so sold not more than four hundred are long two year olds, 7000 are three year olds and 5000 are four year olds and upwards. The said first party also sells to the second party from 3200 to 3500 acres of corn grown this year and now in possession of the said first party near Gray Horse, O. T- Also 1400 acres of cane likewise grown near Gray Horse. Also about 5000 acres of hay grown near Gray Horse. Also from fifty to sixty head of horses and two mules and all wagons, harness and entire camp and ranch outfit of the said Stribling used and employed by him in and about said herd of cattle.</p> <p>“The price at which all of the foregoing property is sold by the first party to the second party is the sum and consideration of ($500,000.) five hundred thousand dollars.</p> <p>“It is agreed by the parties hereto that the parties of the second part shall and do hereby pay said considération to the first party in the manner and mode following: First, that the said second parties shall transfer, sell and convey to the said Stribling their certain ranch in Graham county, Arizona, 'known as the Coronado Eanch, together with all their cattle thereon known as the CA bar herd, together with all horses and all the ranch outfit thereon and said brand.</p> <p>“It is further agreed and understood that the first party takes said Coronado ranch and said cattle thereon and horses without counting the same. The said ranch and property thereon is transferred to the first party at the valuation of one hundred and fifty thousand dollars, ($150,000.).</p> <p>“In further payment of the above mentioned selling price the said second parties are to assume an encumbrance on 10500 head of cattle hereby sold to them by said Stribling of two hundred and forty thousand dollars ($240,000)- The balance of said consideration is to be paid by said second parties or accounted for satisfactorily to said Stribling within -days of the signing of this instrument.</p> <p>“It is agreed that each seller herein will pay the taxes on the property hereby sold by him or them for the ymar 1900, and prior thereto, but not afterwards.</p> <p>“It is hereby agreed that 10500 head of cattle hereby sold by Stribling are wholly free from encumbrance of any kind except as to the said amount of two hundred and forty thousand ($240,000) dollars.</p> <p>“If it should appear that there is an encumbrance of the remaining 2000 head of cattle hereby sold, such encumbrance shall be deducted from the balance of the purchase price before mentioned.</p> <p>“The said first party hereby agrees and guarantees that all pasturage on and for said cattle sold by him before mentioned in said pasture has been paid up to and including April 1st, 3901.</p> <p>“It is agreed that paragraph two herein shall be amended so that the corn, cane, hay and millet, therein embraced shall be described as follows: Wilson farm, 900 acres of corn,</p> <p>200 acres of cane; Herrige farm, 400 acres of corn, 125 .acres of cane; Simpkins farm, 600 acres of corn, 400 acres of cane; Moody farm, 900 acres of corn, 500 acres cane; Brooks farm, 300 acres corn, 200 acres cane. Also all hay and millett grown during the present year on said farms, the exact acreage of said farms not guaranteed-</p> <p>“It is also agreed that said second parties shall deduct ($2000) two thousand dollars from the amount to be paid by them to said Stribling on account of agent’s commission advanced by them growing out of said transactions.</p> <p>“The brands of the cattle hereby sold by said Stribling to the parties of the second part are as follows:</p> <p>UD Z z -H -H FE OV 90 KN 3 S Jo PC" PC</p> <p>Said cattle to be counted within fifteen days.</p> <p>“The said Coronado ranch hereby sold by the second parties to the first parties, includes all the lands owned by said second parties or either of them, in said Graham county, Arizona, and pertaining to said ranch. The said land to be conveyed by said second parties by warranty deed.</p> <p>“Witness the hands of said parties the day and year above mentioned.</p> <p>“J. C. Stribuing,</p> <p>“R. M. Snyder,</p> <p>“Geo. P. OdmsteadU</p> <p>The plaintiff, Stribling, alleged in his petition that he had fully complied on his part with the terms and requirements of the written agreement but that the defendants had failed and refused to convey to him the ranch' in Graham county, Arizona, and had failed to deliver to him the cattle on said ranch known as the GA bar herd, together with the horses and ranch outfit, and that said property was of the value of $150,000, and he prayed judgment for the value of said property and interest aggregating $155,200.</p> <p>Afterwards an amended petition was filed in which the plaintiff claimed an additional balance due upon the original contract of $5,200.</p> <p>To the amended petition the defendant Snyder filed his answer and cross-petition, which is as follows:</p> <p>“'First: Defendant Robert M. Snyder for amended answer to the amended petition of the plaintiff filed herein, denies each and every allegation therein contained, except such as are herein expressly admitted.</p> <p>“Defendant Snyder further s„ays that it is true that on the first day of September, 1900, the plaintiff and defendant Olmstead and himself entered into the written contract set forth in the petition, but he denies that the same was in all or any respect duly fulfilled or performed by the plaintiff. Defendant says that the plaintiff failed to deliver the number of cattle contracted for and that the cattle actually delivered were not of the ages or quality contracted for. .Defendant says that there was a shortage in the amount of feed delivered, and that the same instead of being clear was largely encumbered.. Defendant further says that the plaintiff failed to deliver the full number of horses contracted for, and that for all cattle, feed, horses and other property actually reeeivted from the plaintiff the defendants have made more than full payment.</p> <p>“Second: Defendant Snyder further answering and as a separate defense says that on the first day of October 1900, the plaintiff and himself entered into the following contract, supplemental to the contract of the first day of September., 1900, pleaded in plaintiff’s petition:</p> <p>“ ‘Chicago, Illinois, October, 1st, 1900.</p> <p>“ ‘To the Siegel-Sanders Live Stock Commission Co.,</p> <p>“ ‘Kansas City, Missouri.</p> <p>“ ‘Gentlemen:</p> <p>“ ‘The undersigned, R. M. Snyder and J. C. Stribling, parties to a certain contract entered into on the first day of September, 1900, have agreed between ourselves as follows, and we hereby instruct you with reference to the carrying out and final completion of the trade therein described as follows:</p> <p>“‘(1) Whereas 6094 head of the cattle described in said contract have been tallied, branded and separated from the rest of the cattle, it is now agreed that of the remaining herd about 5000 head more or less (the exact number to be determined by yourselves with reference to their fitness for market) shall be immediately shipped to market without counter-branding and said cattle shall be counted as and when they are taken out of the pastures and a record taken of the original brands.</p> <p>“ ‘(2) When the shipment of said cattle has been completed the remaining herd shall be immediately tallied and branded in the same manner as the first lot of 6094 have already been, and when all of said remaining cattle have been so branded then the total number branded, together 'with the number shipped as aforesaid in addition to the 6094, shall be the basis upon which said contract shall be finally settled, and the said Stribling is hereby given the right to deliver the full number of cattle mentioned in the contract, that is to’ say, 12500, up to the date when the last of said remaining herd is thus tallied and branded shall belong to Snjrier.</p> <p>“ ‘(3) Said Snyder agrees that he will immediately upon the execution of this contract and the delivery thereof to you, pay the indebtedness of $235,000 and the interest thereon to Rosenbaum Brothers and the Company, and that he will also pay to said Stribling or for his account to the parties entitled thereto, a sum not to exceed $110,000, in such sums and at such times as proper releases for the various mortgages and claims now existing against said cattle shall be furnished to him, and the balance of $5000 still remaining to be paid under said contract shall be held by said Snyder until said count has been completed, at which time said $5000 shall be paid over to said Stribling and contemporaneously with the payment of said sum of $235,000 and the interest to Rosenbaum Brothers and Company all of the bills of sale and other evidences of title to said cattle shall be turned over by you to said Snjrder.</p> <p>“ ‘Said Stribling agrees that upon the full payment of said sum of $110,000 hereinbefore mentioned, he will furnish to said Snyder receipts or proper evidences from all parties having any claim of any kind against any of the said cattle feed.</p> <p>“ ‘(4) In making the count above mentioned it is understood that the same shall be made under the direction and management of Mr. Sanders of your firm and some one appointed by said Stribling to look after his interests, and all further expense of counting and branding shall be borne by said Snyder, and no count shall be made unless said Stribling or some representative of his is present to verify and agree upon said count as it progresses. If after said count is completed, the full number of 12500 cattle shall have been turned over, then you are instructed to forthwith deliver to said Stribling all title papers in your possession to the Arizona ranch property. If the full number of 12500 cattle is not counted and turned over within (5) days from the date when said count is completed and said Stribling does not pay to said Snyder at the rate of $37.50 for each and every head of cattle less than the number of 12500 within said five days, then the title papers to said Arizona property shall be forthwith returned by you to said Snyder and said Stribling shall have no further claim against the same, it being the intention hereof that you shall hold said Arizona property as a margin for the protection of said Snyder until said count is completed.</p> <p>“ ‘R. M. Snyder.</p> <p>“ ‘J. C. Stribling/</p> <p>“Defendant says that in accordance with the terms of said contract of October 1, 1900, he paid to Rosenbaum Brothers and Company the indebtedness of $235,000 and interest thereon, being the mortgages outstanding upon the cattle described in the contract of September 1, 1900; that he also paid the sum of $110,000, the amount of the various mortgages and claims existing against the cattle of plaintiff described in the contract of September 1, 1900 and other cattle subsequently purchased by him in attempting to make full delivery of the number called for by said contract, including sundry claims against the feed. Defendant further says that notwithstanding such payments there was a large deficiency in the number of cattle delivered, and that the same were not of the ages and character called for by said contracts.</p> <p>“Defendant further says that after the count called for in paragraph 4 of the contract of October 1, 1900, was completed, plaintiff not only failed to deliver or turn over the full number of 12500 cattle within five days from the date when said count was completed, but also failed to pay for the deficiency in the number of said cattle at the rate of $37.50 per head within “five days.</p> <p>“Defendant further says that said full number of 12500 cattle has never been delivered or payment made for the deficiency at the rate of $37.50 per head, and that in accordance with paragraph 4- of said contract of October 1, 1900, the title papers to the Arizona property being the same ranch and property of the defendants named in the contract of September 1, 1900 were returned to this defendant and said plaintiff has no further claim against the same. Defendant says that for all cattle delivered under said supplemental contract of October 1, 1900, the plaintiff has been more than fully paid.</p> <p>'Third: Defendant Snyder further answering plaintiff's ainended petition herein, and by way of counterclaim against the plaintiff, states that as an' inducement to defendants entering into the contract of September 1, 1900, the plaintiff represented that he had 12700 cattle and the feed and other property therein.named, and that only 10500 head of said cattle were encumbered to the extent of $240,000; and that relying upon said representations this defendant took up the mortgage of $240,000 upon said catt'e and still holds the same. Defendant says that said representations were false and fraudulent; that said plaintiff did not have 12700 cattle and that the cattle which he delivered under said contract and part of which'he bought after its execution, amounted all told to only 10300 head of cattle, and that the same, including the feed covered by the contract of September 1st, 1900, were mortgaged to the extent of $110,000 in addition to the $240,000 named in said contract. which said sum of $.1.10,000 this defendant was compelled to and did pay. Defendant further states that he was induced to pay said sum of $110,000 by plaintiff’s having certain of said cattle rounded up and counted twice, so as to make it appear that he had ready for delivery the full number called for by said contract.</p> <p>“Defendant further states that there was unreasonable delay in the delivery of the 'cattle that were actually delivered, resulting in a loss of not less than $5.00 per head upon all cattle delivered and shipped to market. Defendant says that in the method employed by the plaintiff in rounding up and counting cattle delivered, there was a large shrinkage in their weight and increased expense incurred by defendant to his large loss and damage-</p> <p>“Defendant further states that in the contract of September 1, 1900, plaintiff undertook to deliver not more than four hundred two year old cattle, but defendant says of the cattle actually delivered by plaintiff 1200 were two year old cattle, and defendant was thereby damaged in the sum of $15,000.</p> <p>“Defendant further says that during the delivery of the cattle called for by the contract of September 1, 1900, certain cattle known as Honea & Ferguson cattle numbering 1255 head and bearing different brands from those called for in the contract of Sept. 1, 1900, were delivered to defendants, and discovery of that fact was not made until after the same had been received and branded by them; that said cattle were of inferior quality and that it was. agreed by the plaintiff that the same were to be accounted for only at the average price which they brought when marketed, that they only .realized the sum of $28.00 per head instead of the agreed price of $37.50 per head, which the plaintiff was to make good for any deficiency in the number of eattic under his contract of October 3, 1900; that defendant was thereby damaged in the sum of $12,000.</p> <p>“Defendant further says that there was a deficiency in the number of horses, mules and wagons included in the contract of September, 1, 1900, and covered by the Rosenbaum mortgages taken up by the defendant, to his loss and damage in the sum of $3,000.</p> <p>“Defendant further says that there was a large shortage in the amount of feed covered by the contract of September 1st, 1900, and that by reason thereof the defendant has been obliged to buy additional feed, to his damage in the sum of $15,000.</p> <p>“Defendant states that by reason of the deficiency in the number and quality and ages of the cattle delivered by the plaintiff under his said contract of September 1, 1900, the defendant has been obliged to carry the same over the winter in order to make them fit for market, to his damage in the sum of $6,000.</p> <p>“'Defendant further states that his co-defendant, George P. Olmstead, has duly assigned and transferred to him all his rights, claims, and demands against said Stribling, growing,out of the said contract of September 1, 1900, and all of his rights, claims and demands against the plaintiff' growing out of the breach of said contract and of his fraudulent representations and conduct as set forth in this counterclfiim.</p> <p>“This defendant further states that by reason of the premises he has been damaged in the sum of $300,000.</p> <p>“AVherefore defendant prays judgment against the plaintiff upon his counter-claim for the sum of two hundred thousand dollars and costs.</p> <p>“Fourth: This defendant, Robert M. Snyder further answering plaintiff’s amended petition herein and by way of counter-claim against plaintiff, states: That prior to the time he entered into and executed the contract set forth in plaintiff’s petition, the plaintiff with the intention to wilfully deceive and defraud this defendant and George P. Olmstead named, in the petition as co-defendant, falsely and fraudulently represented to them that he, the said plaintiff, was the owner and then held in his possession in the Osage reservation, Oklahoma Territory, 12,700 head of steer cattle; that 7000 head of the same were three years old; that not over 400 thereof were two years old, and that the remainder thereof were 4 years old, and upwards;,that all of said cattle three years old and upwards were then in suitable condition for market and were fat and would weigh on an average of 1026 pounds per steer and were of a grade and quality usually known and designated among cattlemen as Western Texas cattle.</p> <p>“That the said plaintiff further represented that he then owned and had in his possession 3500 acres of growing corn, 1400 acres of growing cane, and 5000 acres of hay, all of which was located in said Osage reservation, near the town of Gray Horse.</p> <p>“That believing said representation to be true, the said defendant George P- Olmstead went with said plaintiff to said Osage reservation and then and there the said plaintiff pretended to point out and show and designate to said George P. Olmstead and one George Hibler, as a repesentative of the defendant herein, portions'of said 12,700 head of cattlo and portions of said growing hay and grain; that the said Olmstead and Hibler and this defendant were not familiar with said cattle or with said grain, and were compelled to rely for their knowledge of the same upon the statements and representations made by the said plaintiff. That the said plaintiff represented to the said Olmstead and to the said Hibler, that the cattle shown to them were the cattle owned by him and mentioned in said contract of September 1, 1900, and consisted of 12,700 head and that such of the cattle as they had not seen were of the same ages, sizes and qualities as those actually shown, and that all the corn, cane and hay which they, the said Olmstead and Hibler, had not aetually seen and examined, was of the same kind and quality as that actually inspected by them; that thereafter relying upon the representations so made by said plaintiff to this defendant and to said Olmstead, and to their agent, the said Hibler, and believing the said representations to be true, this defendant and said Olmstead executed the contract, a copy of which is set forth in .plaintiff’s petition herein; that thereafter in accordance with the terms of'said contract, this defendant and said Olmstead sent said Hibler and one Frank D. Rogers, as their agents, to the said Osage Reservation for the purpose of counting and branding the said 12,100 head of cattle; and thereafter during the month of September, 1900, the said plaintiff and said Hibler and said Rogers attempted to count the said cattle, and did actually count 6094 head of cattle of various ages, qualities and grades; that the said plaintiff falsely and fraudulently represented to said Hibler and to said Rogers that the said cattle so counted and branded, were a portion of the 12,100 mentioned in said contract dated September 1st. 'That the said Hibler and said Rogers believing the statement of the said plaintiff to be true, and relying thereon as being true, branded and counted the same as and for a portion of said cattle; that thereafter, after branding and counting said 6094 head the said plaintiff, for. the purpose of cheating, deceiving and defrauding the defendants herein, represented and pretended to the said Hibler and said Rogers that he, the said plaintiff, desired to make a preliminary count of the remainder of the cattle in his possession for the purpose of informing him, the plaintiff, whether or not he, plaintiff, had a sufficient number of cattle in his possession to complete and comply with the terms of said contract, and for said purpose requested said Hibler and said Rogers to assist him in making said preliminary count; that complying with said, request of plaintiff, the said Hibler and said Rogers did assist in making the count or pretended count of a large number of the cattle which the plaintiff held or pretended to hold in his possession; that during said time the said plaintiff and his agents and employes, without the knowledge of said Hibler or said Rogers, so manipulated and drove said cattle being counted, from one pasture to another in the night time, as to deceive said Hibler and said Rogers and cause them to count or pretend to count certain of the said cattle more than once, and thereby to believe that said plaintiff then had in his possession ready for delivery- and ready to be counted under said contract, over and above said 6094 theretofore counted as aforesaid, the further number of 6297 head, making a total of 12,391 head; that thereafter for the said purpose of deceiving, cheating and defrauding this defendant and said Olmstead, the said plaintiff induced said Rogers to state in writing that his, the said Roger’s count of plaintiff’s cattle, intoto, was 12,391 head. That immediately thereafter, to wit: on or about the 29th day of September, 1900, the said plaintiff came to Kansas City, Mo., and then and there, for the purpose of cheating, defrauding and deceiving this defendant and said Olmstead, falsely and fraudulently stated and represented to this defendant that he, the said plaintiff, and said Hibler and said Rogers, had made an actual branding count of 6094 head of the cattle mentioned in said contract of September, 1st, and had made a preliminary count of the remainder thereof, and that he, the said plaintiff, then had in his possession ready for immediately delivery in said Osage Reservation, over -and above the said 6094 head of cattle theretofore counted and branded, the further sum of 6297 head, besides a large number of other cattle which he, the said plaintiff, had not been able to gather up and count, but which would be more than sufficient to complete the full number of cattle mentioned in said contract of September 1st, 1900; that then and there as .further evidence thereof, and for the said purpose of deceiving, cheating and defrauding this defendant and said Olmstead, the said plaintiff showed and exhibited to this defendant the statement in writing by the said Rogers that his, the said Rogers’ count was 12,391 head as aforesaid; that this defendant relied upon said statement and representations so made by the plaintiff and believing them to be true, and thereby induced to and did make and execute the supplemental contract set forth herein, dated Oct. 1st, 1900, and_was thereby induced to pay and did pay to Rosenbaum Bros., the full sum of $240,000, the amount of their mortgage on said cattle, and was induced to and did pay the further sum of $110,000 in accordance with the terms of said contract of October 1st.</p> <p>“And defendant Snyder says that each and every of said statements and representations so made as aforesaid by plaintiff to this defendant and said Olmstead, and to said Hibler and said Rogers, were false and were known by said plaintiff to be false at the time he made them; that in truth and in fact the said plaintiff did not have on or about September 1st, or at any time mentioned herein, 12,700 head of cattle as mentioned in said contract of Sept. 1, 1900, or any greater number than 10,396 head; that at the time said contract dated September 1st, 1900 was executed, he did not have more than 8000 head of cattle; that plaintiff for said purpose of deceiving, cheating and defrauding this defendant and said Olmstead, did not show to said Olmstead or to said Hibler, prior to said first day of September, 1900, any of the cattle owned by him except a cetrain number of the oldest and best cattle described in said contract, and that he did not show them the poorer grades of said cattle, and by reason thereof the said Olmstead and the said Hibler were prevented from knowing or learning what were the true age, weight, quality and grades of the cattle owned by said plaintiff and then being offered for sale to this defendant and said Olmstead. That plaintiff did not then own or have in his possession the corn, cane and hay mentioned in said contract, nor. any part thereof except 1,358 acres of growing corn, 659 acres of growing cane, and little or no hay. That this defendant and said Olmstead did not lmow and had no opportunity of knowing or learning the true condition, age, quality and grade of said cattle, nor the amount of said corn, cane and hay at the times that either of said contracts, to wit: said contract of September 1st, 1900, or said contract of October 1, 1900, was made and executed and did not know the true facts in regard thereto at the time this defendant agreed to pay the sum of $240,000 to said Eosenbaum Bros., or the said sum of $110,000 according to the terms of the .said contract of October 1st, That this defendant and said Olmstead did not learn the truth in reference to said facts until after the execution of said contract aforesaid, nor until after the payment of said moneys as aforesaid. That by reason and because of said deceitful, false and fraudulent statements and representations aforesaid this defendant and said Olmstead were compelled to and did receive from said plaintiff 10,396 head of cattle; that they were not of the ages, weight or quality or grades as represented by the plaintiff, but instead thereof large numbers thereof were of a very poor quality and grade known as Eastern Texas and Louisiana cattle and did not weigh more than 650 pounds per head; that about half thereof were poor and wholly unfit for market; that of said 10,396 head said plaintiff purchased more than 3,000 thereof after the execution of said contract dated September 1st, all of which were of an inferior and poor quality and grade of cattle. That because of the inferior quality, weight and grade of large numbers of said cattle, this defendant has been compelled to and has paid out large sums' of monejq to wit: more than the sum of ten thousand dollars for labor and expense in caring for and feeding, protecting and maintaining said cattle, and in putting the same in a condition which would allow them to be sold on the market; that because of said false, deceitful and fraudulent statements in regard to the amount of corn, cane and hay and of the shortage thereof from the amount as represented by plaintiff, this defendant has been compelled to pay out large sums of money, to wit: more than twenty-two thousand dollars for corn, cane and hay for the purpose of feeding, caring for and maintaining said cattle from said first day of September, 1900, until said cattle could be put in a condition which would allow them to be shipped to market; the exact amount paid out by this defendant under said last two items being $32,110.47. That in addition to said $32,110.47 paid out in labor and feed for said cattle as aforesaid, this defendant has paid out the sums of six thousand one hundred and ninety-five and 88-100 dollars for pasturage for said cattle, and fifteen thousand four hundred and sixty-three and 50-100 dollars for interest on sums of money necessary to carry said cattle, besides the sum of three hundred and fifty-six thousand, four hundred and eight and 13-lOd dollars to pay the notes given the Interstate National Bank, with interest, to take up the’ mortgage on said cattle of $240,000 to Rosenbaum Brothers, and to pay the $110,000 under the said contract of October 1st, 1900, making a total of four hundred and ten thousand, one hundred and seventy-eight and 89-100 dollars paid out on account of said cattle. That this defendant has received from the sale of said cattle a total of $291,436.39, which was their full value.</p> <p>“That by reason of said false and fraudulent and deceitful representations and statements as aforesaid, this defendant has been damaged by an actual loss of money as above set forth in the sum of $119,742.50. That if said cattle had been in numbers and quality as represented by plaintiff, and had been delivered as provided by contract, this defendant and George P. Olmstead would have realized a profit on the same of more than $80,000.</p> <p>“That said George Olmstead has duly assigned and transferred to this defendant all his rights, claims and demands against said Stribling growing-out of the said contract of September 1, 1900, and. all of his rights, claims and demands against the plaintiff growing out of his breach of said contract and of his fraudulent representations and conduct, as set forth in this counter-claim.</p> <p>“Wherefore this defendant, R. M. Snyder, prays judgment against plaintiff upon his counter-claim for the sum of two hundred thousand dollars and costs.”</p> <p>To this answer and counter-claim the plaintiff Stribling filed the following reply, omitting formal parts:</p> <p>“First: Plaintiff denies each and every allegation of new matter contained in each and every paragraph of said amended answer.</p> <p>“Second: Plaintiff denies each and every allegation' contained in defendant’s counter-claims.</p> <p>“Third: And for further reply the plaintiff alleges that there was no consideration given for the making of the pretended contract of October 1st, 1900, set out in the second _ paragraph of said amended answer.</p> <p>“Fourth: And for further reply plaintiff says that at the time of making the contract of September 1st, plaintiff was indebted to Claude E. Wilson, as the trustee of Rosenbaum Brothers & Co., in the sum of $235,000, $215,000 of which there was then due and payable, and which said Claude E. Wilson, as trustee was then demanding payment from plaintiff-</p> <p>“That on the 5th day of September, 1900, the plaintiff, in order to secure an estention of time for the payment of said indebtedness, which he intended to meet out of the purchase money to be derived under said contract of September 1st, 1900 from the said defendants, and the latter to better assure the said Claude E. Wilson of the payment of the mortgage indebtedness on said property to Rosenbaum Brothers & Co., in said contract of September 1st, 1900, provided, duly executed their written agreement to the said Claude E. Wilson, which agreement is as follows:</p> <p>“ ‘Chicago, Illinois,</p> <p>“ ‘September 5th, 1900.</p> <p>“ ‘Whereas, J. C. Stribling, Jr., of Llano, Llano County, Texas, on November 3rd, 1899, was lawfully indebted to Claude E. Wilson of Chicago, .Illinois, in the sum of two hundred and fifteen thousand ($215,000) dollars and to evidence said indebtedness the said J. C. Stribling Jr., .on said date executed and delivered to said Claude E. Wilson, his twenty-two (22) notes as follows: Pour (4) notes of twenty-five thousand dollars ($25,000) each: Five notes of ten thousand dollars each ($10,000) : Eleven (11) notes of five thousand five hundred dollars ($5,500) each; and one note of four thousand five hundred dollars ($4,500).</p> <p>“ ‘And Whereas, the said J. C. Stribling, Jr., to secure the payment of the aforesaid indebtedness duly executed and delivered a chattel mortgage conveying nine thousand one hundred (9100) head .of cattle, which said chattel mortgage was duly recorded in Pawned county, Oklahoma Territory on the sixth day of November, 1899.</p> <p>“ ‘And whereas, on April 3rd, 1900, no part of the aforesaid indebtedness having been paid, the said J- C. Stribling Jr., with one N. A. Thompson, duly executed and delivered to the said Claude E. Wilson their joint nineteen (19) promissory notes as follows: Five (5) notes of ten thousand dollars each ($10,000) due August 2nd, 1900; Five (5) notes of fifteen thousand dollars each, ($15,000) due September 1st, 1900; Three (3) notes of twenty-five thousand dollars each ($25,000.); Five (5) notes of seven thousand five hundred dollars each ($7,500) and one note of four thousand five hundred dollars ($4,500) all due October 1st, 1900. The last nineteen notes evidencing the same indebtedness as was evidenced by the twenty-two notes (22) first hereinbefore described, together with twenty-seven thousand dollars ($27,000) additional indebtedness dne to said Claude E. Wilson from J. 0. Stribling Jr., and N. A. Thompson.</p> <p>“‘And Whereas, Also on March 1st, 1900 the said J. C. Stribling Jr., duly executed and delivered another mortgage on his farm interests in the Osage reservation, the said last described mortgage having been executed as additional security for a portion of the aforesaid indebtedness.</p> <p>“ ‘And Whereas, No portion of .the aforesaid indebtedness has been paid or satisfied except to the extent of seven thousand dollars ($7.000) and there is now due to said Claude E. Wilson on the date hereof on account of the aforesaid indebtedness the sum of two hundred thirty-five thousand dollars ($235,000) exclusive of interest on the hereinbefore described notes now overdue as follows $43,000 on account of the $50,000 notes due August 2nd-, $75,000 notes due September 1st, and $117,000 notes due Oct. 1st, as hereinbefore recited.</p> <p>“ ‘And Whereas, The said J. C. Stribling Jr., has on September 1st, 1900, contracted to sell, together with other cattle covered by the mortgage first hereinbefore described to E. M. Snyder and Geo. P. Olmstead, both of Kansas City, Missouri.</p> <p>“‘And Whereas, Said. Snyder desires that the overdue paper herein mentioned, viz: said $50,000 due August 2nd 1900, (having a $7,000 credit thereon,) and said $75,000 due September 1st, 1900, shall be carried in its present shape for a term not to exceed four (4) weeks from date hereof.</p> <p>“ ‘Now Therefore, in consideration of the preuíises and for a valuable consideration this day in hand paid by asid Claude E. Wilson to the said J. C. Stribling Jr., and E. M. Snyder, the receipt of which is hereby acknowledged, it is mutually agreed that the time of payment of said overdue paper, viz: said $50,000 notes due August 2nd, 1900, and $75,000 notes due September 1st, 1900, shall be and is hereby extended for a term not exceeding four weeks from date hereof.</p> <p>‘c ‘ And the said R. M. Snyder hereby agrees within said four (4) weeks to market sufficient cattle with Siegel-Sanders Commission Company in Kahsas City, Missouri, or with any other reputable commission house first approved of in writing by said Claude E. Wilson, and to immediately apply the entire proceeds thereof, exclusively, first towards the payment of said overdue indebtedness of $118,000, together with interest thereon, and the surplus if any of such proceeds he shall at once apply towards the payment of said notes due October 1st, 1900. And the said R. M. Snyder hereby guarantees the payment of and agrees in any event to pay said past due notes of one hundred and eighteen thousand dollars ($118,000) together with the interest thereon, according to the terms thereof, not later than four weeks from the date hereof. And said Snyder further hereby guarantees the full and prompt payment of said nine (9) notes due October 1st, 1908, aggregating one hundred seventeen thousand dollars ($117,000) upon the maturity thereof, and the said Snyder hereby waives any and all notice of any default in the payment of any of the herein described notes and also waives all demand upon him.</p> <p>“ ‘Said Snyder futher agrees to furnish said Wilson from time to time immediately upon marketing any cattle as aforesaid, a duplicate account sale of all cattle so marketed, showing their respective brands and prices realized.</p> <p>“ Tt is further hereby mutually agreed that the herein-before described mortgages and each thereof now are, and they are hereby recognized to be in full force and effect, in accordance with each and every one of the terms, conditions and provisions therein severally contained, and the said chattel mortgages and each thereof shall be and remain in full force and effect, in accordance with the terms, conditions and provisions thereof, severally, until the said indebtedness of two hundred thirty-five thousand dollars ($235,000) together with all interest thereon shall be fully paid and satisfied.</p> <p>“ Tt is further hereby mutually agreed that when the said indebtedness, together with all interest thereon, shall be fully paid and satisfied and then, but not until then, the aforesaid chattel mortgages shall be released and canceled by the said Claude E. Wilson and all of the hereinbefore described notes shall be canceled.</p> <p>“ Tt is expressly hereby -further mutually agreed that nothing herein contained shall in any manner whatsoever directly or indirectly, alter, impair or affect the validity of either of said chattel mortgages or any of the notes herein described.</p> <p>“ ‘ Witness our hands and seals at Chicago, Illinois, this fifth day of September, 1900.</p> <p>“‘(seal.) R. M. Snyder,</p> <p>“‘(seal.) J. C. Stribling,</p> <p>“‘(seal.) Claude E. Wilson/</p> <p>“By the terms whereof the said defendants and said Stribling agreed to pay said indebtedness of $235,000 to said Claude E. Wilson, not later than four weeks from and after September 5, 1900. That on said first day of October, 1900, and immediately prior thereto, plaintiff had duly delivered and turned over to George P. Olmstead and R. M. Snyder all of the cattle and other property purchased by them from this plaintiff, and had then fulfilled and performed all of the terms and conditions of said contract of September 1st, 1900, set out in plaintiff’s petition, obligatory upon this plaintiff to fulfill and perform, and that notwithstanding the same, plaintiff avers that in Chicago, Illinois, on the 1st day of October, 1900, the said Snyder, while in possession of the plaintiff’s said cattle and property as aforesaid, told this plaintiff that unless the latter would sign the certain paper described as the ‘contract of October 1st,’ in the second paragraph of amended answer, that neither of the said defendants would pay for any of said cattle and property so sold and delivered aforesaid, nor the mortgage indebtedness due thereon so agreed to be paid by the defendants as aforesaid, nor return said cattle and property to the plaintiff. '</p> <p>“That said Claude E. Wilson was then demanding settlement of said mortgage debt; that the plaintiff and the defendant Snyder then well knew that the delay and failure of said defendants to pay said mortgage indebtedness would cause the immediate foreclosure of said mortgages and the financial ruin of this plaintiff; that .the said plaintiff was then under the power and control of defendant Snyder, by virtue of the premises, as the said Snyder and the plaintiff both of them well knew and recognized; that under such stress and duress, and not otherwise, and to induce the said S^der to carry out the obligations of said defendants to make the payments then due under the contract of September 1st, 1900, the plaintiff then signed the paper called the contract of October 1st, 1900, and not otherwise.</p> <p>“Plaintiff .further says that the last named instrument was not signed by him of his own free will and accord, that the said pretended agreement did not then and never has had his free assent but that he was forced and compelled to and did sign the same wholly and only because of the refusal of said Snyder to carry out the obligations resting upon him as aforesaid and to save this plaintiff from financial distress, and as this plaintiff then and now believes, financial ruin.</p> <p>“Fifth: For further reply, plaintiff alleges and says that the defendant carefully examined, inspected, counted, accepted and received all of the cattle and other property and the plaintiff delivered to the defendant such ca.ttle and other property mentioned in the contract of September 1st, 1900, and the defendants were then in possession of the same thereunder and in accordance with the terms thereof, long before the making of said purported contract of October 1st, 1900, the defendants then and theretofore being well acquainted with, the age, condition, quality, size, value and number of the same, the.y accepted each and all of the cattle as of the same age, as of the same size, as of the same quality, as of the same value, as in the same condition, and as of the same number as provided for in said contract; and further duly accepted each and all of said cattle as the same and identical cattle provided for and described in said contract and of all the other property therein described and delivered as aforesaid. That by reason of said premises, and the plaintiff relying upon the acts and conduct of the defendant in accepting of the said property as aforesaid, as above set forth, the said defendant and each of them are therefore and thereby estopped from averring, alleging, asserting, claiming or proving that the cattle so received by them are of different age, are in different condition, are of different value, are of different quality, are of different sizes, are of different grades, and are of different number or are of different cattle than those contracted for in said agreement of September 1st, 1900-</p> <p>“Wherefore, the said defendants are estopped to now set out the defense as to the dealings and actions relative thereto as attempted to be made as herein stated, and are further estopped to offer proof therein.”</p> <p>Owing to the complicated character and length of the pleadings, we have in the interest of accuracy adopted the' unusual course of setting them out in full, deeming this safer than to attempt to epitomize. ,</p> <p>Upon the issues made by these pleadings, the cause was tried to a jury and a general verdict returned in favor of the plaintiff. There were also submitted to the jury on the request of the parties, almost four' hundred special interrogatories to be answered in connection with their general verdict.</p> <p>The record contains all the evidence and proceedings, and is voluminous and cumbersome, comprising almost two thousand pages of typewritten matter. From the record it appears in a general yay, that in the summer and fall of 1900, the plaintiff, J. C. Stribling, was the owner of approximately fifteen thousand head of cattle which were kept in several pastures in the Osage reservation; that he had growing for feed and forage for his cattle and ranch stock several thousand acres of corn, cane and hay upon leased land; that he owned a'ranch outfit consisting of horses, mules wagons and other personal property.</p> <p>The defendants Snyder and Olmstead were the owners of a cattle ranch in Arizona known as the Coronado ranch, at which place they owned several thousand head of cattle and other ranch property. The grazing season of 1900 had up to September been extremely dry in Arizona, and cattle were not thriving and some were reported dying owing to the extreme drouth. The plaintiff Stribling was indebted to Rosenbaum Brothers and Company of Chicago in the sum of $215,000 for money borrowed from them, which was secured by a chattel moxtgage upon 9,100 head of his cattle. There was also other indebtedness against him or his property aggregating $110,000. A large amount of the indebtedness from Stribling to Rosenbaum Brothers and Company was due or would fall due about September 1, 1900, and he was anxious to make such disposition of his property as would protect the mortgagees and give him time to realize the money to pay them out of the cattle. Snyder and Olmstead were exercised about the unfavorable conditions in Arizona and apparently anxious to dispose of their interests there. It appears that both plaintiff and defendants were men of extensive business^ experience, were engaged in the business of buying, grazing, feeding and handling large herds of western cattle, and were used to handling large sums of money and carrying large credits. N one of them were novices in the cattle trade or in making deals of the character which is the subject of this controversy.</p> <p>After some negotiations through certain brokers, the plaintiff sent a representative to Arizona to inspect the Arizona ranch and property and the defendants sent their representatives to the Osage reservation and inspected the cattle and other property of the plaintiff. Upon the reports of these agents the contract of September 1, 1900 was entered into, and the defendants sent their agents, Hibler and Rogers, to the Osage reservation to assist in counting and to received for them the property described in the contract of September 1, 1900.</p> <p>On September 5, 1900, the defendant Snyder, in order to procure an extension of the overdue paper given by Stribling to Rosenbaum Brothers and Company and which was a lien upon the cattle sold by Stribling to Snyder and Olmstead, entered into the agreement bearing that date, and Stribling executed the agreement with him. By this agreement Snyder obligated himself to sell enough of the_ Stribling cattle within four weeks to pay $118,000 of the Rosenbaum indebtedness and guaranteed the payment of the remainder of their claim. The Rosenbaum company agreed to this extension. After the Stribling property had all been delivered, and Snyder or his agents had taken possession of the same, Stribling demanded a settlement and the transfer of the Arizona ranch property. Snyder refused and claimed that the entire number of cattle had not been delivered, and threatened Stribling, who was at that time unable to meet his financial obligations, with financial ruin unless he would agree to a re-count of the cattle and consent to certain other requirements, and upon this requirement the supplemental contract of October 1, 1900, was entered into. In the meantime it appears that the heavens had looked with compassion upon the parched plains of Arizona and the Coronado ranch had been the recipient of copious and cooling showers, while the “beef trust,” the supreme dictator and regulator of the market prices of beef cattle, had been using their remorseless cleaver and had materially reduced the value of the Stribling cattle before Snyder could get them to the market.</p> <p>Snyder, contending that he had not received all the cattle purchased by him under the contract of September 1, 1900, sold the cattle and other property received by him and paid the Rosenbaum notes amounting with interest to $240,000, and paid other liens and claims authorized by Stribling to the amount of $105,000, and refused to pay any other sums or to deliver the Arizona cattle and ranch property: And hence, this action.</p> <p>.Stribling claims that he delivered all the property he sold to. Snyder within a reasonable time and without delay on his part, and that he is entitled to recover the value of the Arizonia ranch property and cattle valued in the trade at $150,000, and the sum of $5,000 balance unpaid upon the cash consideration of $350,000. Snyder by way of defense alleges that the plaintiff and his agents falsely and fraudulently misrepresented the character, quality, age, number and condition of the cattle, and also the amount and quantity of the corn, cane, and hay, and other ranch property. He also contends that a fraud was perpetrated upon him by the plaintiff and his agents whereby he was cheated and defrauded in the count of the cattle that were delivered to him, and that he paid out more on account of the liens and demands against the property than he realized from the proceeds of the sales of all the property, and he asks that he recover damages against the plaintiff.</p>

<p> Error from the District Court of Grant County; before James K. Beauchamp, Trial Judge. </p>

<p>1. PUBLIC LANDS—<Patent—Trust Declared, When. Where the land department has, by reason of error of law, issued a patent for public land to one person when, if the law had been correctly stated and applied, such land would have been awarded to another person, a court of equity w.. on proper application and showing declare the patentee a trustee of said land for the benefit of the person lawfully entitled to the title, and will decree a conveyance.</p> <p>2. SAME—Finding of Land Department. Where a person purchases and obtains the relinquishment of a homestead entryman and while in possession of and controlling such relinquishment files a contest against the entr-'man, alleging that the entryman has relinqúished and abandoned the land, and before the filing ot sucn relinquishment a third person and junior contestant files a contest against the entryman and senior contestant alleging fraud and speculation, a court of equity will not disturb a finding of the land department that the senior contestant is not acting in good faith and is not entitled to a preference right in the cancellation of the first entry.</p> <p>3. SAME—Trespassers. 'One who settles upon public land covered by a valid homestead entry is a mere trespasser and acquires- no rights as a settler against a contestant who secur.es the cancellation of the first entry and is awarded the preference right to enter the land.</p> <p>4. SAME—Same—Homestead Entry. While one who settles upon segregated land embraced in a homestead entry, cannot acquire any rights as a settler thereby, yet upon -the relinquishment of the entryman, there being no intervening superior rights attached, the rights of the settler attached eo Instanti, and if qualified, he is entitled to the homestead entry if he applies within ninety days from the time his rights attach.</p> <p>5. SAME—Patent—Title to land. A receiver’s final certificate issued under the homestead law conveys the equitable title to the person named in the certificate, subject to be defeated by cancellation for fraud in procuring same. The legal title remains in the United States until patent issues and is conveyed by the patent to the patentee, and relates hack to the inception of the rights of the patentee. Such certificate does not convey a fee simple title.</p> <p>6. SAME—Same. One holding land by virtue of a receiver’s final certificate prior to issue of patent is not seized in fee simple of the land described in such certificate and is not, on account thereof, prohibited from entering public lands in Oklahoma under sec. 20 of the act of May 2, 1890, 26 Stat.'81.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Oklahoma County; before Bayard T. Hainer, Trial Judge. </p>

<p>Error from the District Court of Kiowa County; before Frank E. Gillette, Trial Judge.</p>

<p> Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge. </p>

Error from the District Court of Kingfisher County; before Jno. H. Burford, Trial Judge. STATEMENT OE FACTS. This was a proceeding commenced in the district court of Kingfisher' county by the Plymouth Cordage Company, and other petitioning creditors of James A. Smith, to have him adjudged a bankrupt. The petition was filed and the proceeding commenced on October 31, 1901.

<p> Error from the District Court of Kiowa County; before John L. Pancoast, Trial Judge. </p>

Error from the District Court of Oklahoma, County; before B. F. Burwell, Trial Judge. STATEMENT OE FACTS. On the 12th of August, 1901, the defendants, Scott and Company, entered into a contract with Lawrence and Cavette, contractors and builders, to construct for them a certain building in the city of Oldahoma City, at a cost of $8,991. The plans and specifications were attached to the contract.

<p>1. CONFLICT OF LAWS—Foreign Contracts. In an action brought to recover upon a contract which is plead and proven to be one governed by the laws of the Indian Territory, the rights of the parties will be determined by the laws in force in that territory when such laws are plead and proven, whether statutory or common law.</p> <p>2. TELEGRAPH COMPANIES—Negligence'. Where one seeks to recover damages from a telegraph company for a failure to correctly transmit a message delivered to it, only such damages may be recovered as may fairly and reasonably be considered as arising naturally, in the usual course of things from the breach itself, or such as may reasonably be supposed to have been in contemplation of the parties at the time they made the contract.</p> <p>A SAME—Same—Damages—Elements' oft A telegraph message from an agent to his principal as follows: “High water, expense heavy, send ten dollars funds low,” where no explanation at the time is made, will not support evidence showing the loss of a cherry-crop in Arkansas, which is said to have been lost or damaged because of a failure to cor. eetly transmit such message. Such item of damage could not have been in the reasonable contemplation of the parties when the contract for 'the transmission of the message was entered into.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma, County; before B. F. Burwell, Trial Judge. STATEMENT OF FACTS. This is an action of forcible entry and detainer, originally commenced before a justice of the peace, to recover possession of the southeast quarter of section twenty-seven, township twelve, range three west, in Oklahoma county. After the trial in the' justices court the case was appealed to the district court.

Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge. STATEMENT OP PACTS. This action was commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover the sum of $328.26, on an open account for merchandise sold and delivered by the plaintiff to the defendant. The first appearance of the defendant was by motion to quash summons.

<p> Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge. </p>

<p> Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge. </p>

<p>1. SCHOOL LANDS—Leasing. By the law and regulations for leasing school lands in the Territory of Oklahoma, a lessee has a preference right to renew or re-lease, and such right is a valuable one subject to sale and purchase.</p> <p>2. SAME—Same. Where the law and regulations in force prohibit any one person from leasing more than one quarter section of land, public policy forbids that another person shall lease and hold other such lands for a lessee, and one who has a valid lease upon school lands to the maximum amount permitted, is estopped from claiming that another lease is held for him.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. STATEMENT OF FACTS.

<p> Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge. </p>

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STATEMENT OF FACTS.

Error from the District Court of Day County; before John L. Pancoast, Trial Judge. STATEMENT OE FACTS. This was an action first begun in the probate court of Day county, Oklahoma. In that court a bill of particulars was filed, and an affidavit for attachment, bond for costs, and summons and attachment issued.

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. STATEMENT OP PACTS.

<p> Error from the District Court of Logan County; before John H. Burford, Trial Judge. </p>

Error from the District Court of Logan County; before John H. Burford, Trial Judge. STATEMENT OF FACTS. 'This was an action brought by Julia A. Thurston against Mary Jane Washington, heir of William Washington, deceased, and his unknown heirs and devisees. It involves the title to lots 21 and 22 in block 3 in that subdivision of the city of Guthrie known as West Guthrie.

<p> Error from the District Court of Caddo County; before F. E. Gillette, Trial Judge. </p>

<p> Error from the Probate Court of Comanche County;-before W. H. Hussey, Trial Judge. </p>

<p>1. INFORMATION—Insufficient, When. An information charging that the- defendant “Did then and there unlawfully conduct as owner certain games of faro, monte, poker, roulette and craps, the same being banking and percentage games played with dice, cards and other devices, for money, checks or other representatives of value,” is insufficient for failing to aülege that said games were then and there conducted for money, credit, or some other representative of value.</p> <p>2. GAMBLING GAMES—Unlawful, When. It is not criminal by the laws of this territory to play at or conduct any of the prohibited gambling games, unless the same are dealt, played, carried on, opened, caused to be open'ed, or conducted for money, checks, credit, or some thing representing value.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Pottawatomie Goutyj before B. F. Búrwell, Trial Judge.</p>

Error from the District Court of Kay County; before Bayard T. Rainer, Trial Judge. STATEMENT OF FACTS. This was a suit by J. M. Haynes, plaintiff, to recover of the defendant, Jennie Brown, $2,000, upon a written contract for the sale by him, to her, of 20 shares of stock, for that amount. The court sustained a demurrer to plaintiff’s evidence, and he appealed to this court.

<p> Error from the District Court of Comanche County; before F. E. Gillette, Trial Judge. </p>

<p>Error from, the District Court of Grant County; before James K. Beauchamp, Trial Judge</p>

<p> Error from the District Court of Cleveland County; before Clinton F. Irwin, Trial Judge. </p>

<p>Error from the District Court of Oklahoma County; before Frank E. Gillette, Trial Judge.</p>

Error from the District Qourt of Oklahoma Gountyj before B. F. Burwell, Trial Judge. STATEMENT OF FACTS.

<p>Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge.</p>

<p>Error from the District Gourt of Noble Gounty; beforei ■ Bayard T. Hairier, Trial Judge</p> <p>STATEMENT 01? PACTS.</p> <p>This action was brought by defendants in error in the district court of Noble county under the provisions of article one (1), chapter six (6) of the session laws of 1903, to enjoin the city of Perry from collecting a tax levied by the city to pay for the construction of a district sewer in sewer district number one (1). Mike Conway, as county treasurer, was made a party defendant to prevent the collection of the tax. Will T. Plummer was the contractor who constructed the sewer for which the tax was levied, and W. B. Wheeler is the owner of the warrants issued for the amount of the taxes levied for the construction of said sewer, and remaining unpaid. On January 23rd, 1905, a temporary restraining order was issued out of the district court of Noble county, and on January 30th a temporary injunction was’ granted restraining the collection of the tax. On February 3rd, the defendants, Conway and Plummer, filed a demurrer upon two grounds viz: First, that the petition failed to state facts sufficient to constitute a cause of action: Second, that said action was barred by the statute of limitations. On February 6th, the demurrer was overruled, and W. B. Wheeler was granted permission to intervene. On May 29th, 1905, upon the final hearing of the cause, the court found the issues in favor of the plaintiff and against the defendants, and issued an order making the temporary injunction, therefore granted, permanent, and perpetually enjoining defendants, the said mayor and- eouncilmen of the city of Perry, from maldng any assessment or levy of taxes against the property of plaintiffs for the payment of the special sewer tax warrants, and the said W. T. Plummer and W. B. Wheeler were perpetually enjoined and restrained from collecting such tax warrants, or in any manner attempting to collect the special tax levied bn property of plaintiffs for the construction of said sewer. On the same day a motion for a new trial was overruled, exceptions allowed, and case brought here by petition in error and case made for review.</p> <p>In the petition, plaintiffs alleged, substantially, that they were all property owners in sewer district number one (1.) in which the sewer was constructed in the city of Perry, giving a description of their individual property, located in said, sewer district, and the amount of the special sewer tax assessed against said properly; that the city of Perry was a municipal corporation duly organized under and by virtue of the laws of the Territory of Oklahoma; that the defendant, Mike R. Conway, was the duly elected and acting treasurer of Noble county, Oklahoma Territory; that Will T. Plummer was the contractor and the person who constructed the sewer; that on or about the 4th day of August, 1903, the defendant, the city of Perry, by ordinance number four hundred forty-two (442), established sewer district number one (1), including in said sewer district all the blocks numbered seven (7), eight (8) and nine (9) in the original townsite of the city of Perry; and that after establishing said sewer district the said city of Perry by its council caused to be located and constructed through said district a district sewer; that a contract for the construction thereof, was let to one Will T. Plummer, defendant herein; and that when said sewer was completed, the said city of Perry by its council proceeded to levy and assess a special tax by ordinance number four hundred fifty-seven (4.57) against the property abutting along and against said sewer in the amounts and against the property shown by the. schedule attached, all of said property so assessed being in said sewer district number one (1); and, thereafter, on the - day of December, 1903, the said city of Perry, by its mayor and council proceeded to issue tax warrants against said lots and pieces of ground in said district where the assessments had not been paid, and delivered said warrants to the contractor, Will T. Plummer, the said warrants so issued being payable in three (3) installments; and that the county clerk, without authority, spread upon the tax rolls of said county for the year 1904, a tax against the property in said district to cover the first installment, and that said tax rolls were turned over to the treasurer of Noble county, Oklahoma Territory; and that said treasurer was attempting to collect the said taxes so levied as aforesaid; that said taxes were illegal and void, and should not be collected, or attempted to be collected by said treasurer for the following reasons:</p> <p>First, that said sewer was established and located and .constructed without any petition being presented to the mayor and council by a majority of the property owners within said sewer district number one (1) praying for, or requesting the construction of said sewer, and any and all action taken by said city in causing the construction of said sewer was without authority and void.</p> <p>Second, that the statute under which said tax was levied and assessed is unconstitutional and void for the reason that it does not provide for any notice to the owners of the property so taxed or for any opportunity for them to be heard with reference to said tax, and no notice of any kind, in fact, was given:</p> <p>Third, said statute is further unconstitutional and void for the reason that it does not provide for the levying of the tax with reference to the benefit that might result to the owners of property taxed from the construction of adjacent improvements:</p> <p>Fourth, that the statute under which said sewer was established and constructed provides that the council shall cause a complete estimate to be made of the costs of said sewer before any action shall be taken thereon by the mayor and city council, and that no sufficient estimate as required by the statutes was submitted prior to thé construction of the said sewer, that the estimate submitted is too general in its terms and vague and indefinite, and for this reason is insufficient as an estimate of probable cost:</p> <p>Fifth, that the contract for the construction of said sewer was let for a greater sum than the estimated cost as submitted by the engineer who had the work of constructing said sewer in charge, and who was employed by the mayor and council to make and prepare profiles, maps and estimates of the costs of constructing said sewer, that by reason of the fact that said contract price was greater in amount than the estimates furnished by the engineer, all the work and labor performed und(k> said contract was illegal and void:</p> <p>Sixth, that no levy for the special sewer tax aforesaid was ever made by the mayor and council of the city of Perry, and certified to the county clerk of Noble county as required by law, and said county clerk had no authority to spread the said special sewer tax upon the tax rolls of said Noble county.-</p> <p>Further pleading, the plaintiffs alleged that they were willing to pay all the legal taxes assessed against their said properities for the year 1904, and had tendered an amount •sufficient to pay said legal taxes, less the tax levied to pay said sewer warrants, but that the county treasurer refused to accept said tender; that they were without a speedy and adequate remedy at law, and if said treasurer was allowed to continue to collect said illegal taxes the plaintiffs would be irreparably damaged and injured thereby; that the special •sewer tax assessed against their property was illegal and, not a proper and legitimate tax imposed upon the plaintiffs, and creates a cloud upon the title of their property, and each individual property owner, that the defendant, M. R. Conway, treasurer aforesaid, was proceeding to collect said illegal and void taxes by virtue of the same appearing on the tax rolls of the county, and would advertise and sell the property of plaintiffs herein, unless enjoined by the district court of Noble county.</p> <p>Wherefore, plaintiffs asked for a temporary restraining order restraining and enjoining the said defendant M. R. Conway, from collecting or attempting to collect the taxes aforesaid; and that a like order issue to the city of Perry restraining it from levying or attempting to levy a further' installment of taxes to pay said sewer warrants; and that the court issue an order restraining the said Plummer, his transferees or assigns from attempting to proceed in any way with the collection of the said special sewer tax warrants by virtue of the law relating to the special assessments; and that upon the further hearing of said cause a permanent injunction be adjudged, forever restraining and enjoining the collection of the special assessment.</p> <p>The defendants, the city of Perry, and Mike R. Conway, for their answer entered a general denial, excepting facts admitted, and, substantially, alleged that the city of Perry established sewer district number one (1) by an ordinance duly passed by the city council, and approved by the mayor of said city; and that said district comprised blocks seven (7), eight (8) and nine (9),- in the original townsite of Perry, and block sixty-seven (67) and sixty-eight (68) in north and west Perry, an addition to said city; that, thereafter, a sewer was constructed in said sewer district and the costs of the same wer.e levied and assessed against the property abutting on said sewer in manner and form as provided by law; that the mayor and city council of the city of Perry by ordinance duly passed and approved on the ■- day of December, 1903, levied and assessed a special tax against the lots abutting on -said sewer, the same being all the lots included in said sewer district number one (1); and that said ordinance was duty published in the official paper of said city, and of general circulation in said city of Perry, and which tax so levied and assessed was for paying the expenses for the construction of said sewer; and that the action brought by the plaintiffs for the purpose of setting aside and invalidating the levy and assessment was instituted in the district court of Noble county, Oklahoma Territory on the 19th day of January, 1905, and more than one jrear after said special tax was levied and assessed against the property of said plaintiffs and that said action was, therefore, barred under the provisions of section nine (9), chapter six (6) of the session laws of the Territory of Oklahoma, 1903, and asked for a dismissal of suit at costs of plaintiffs.</p> <p>The answer of defendant, Will T. Plummer, in addition to a general denial and the general allegations set forth in the answer of the city of Perry, material to his case, sub-' stantialty 'alleged that he was the contractor, and commenced the construction of the sewer in sewer district number one (1) in good faith, and on the assumption that all the proceedings were valid; and that the plaintiffs and each of them knew that he, the said Will T. Plummer, was acting in good faith, and on the assumption that all of the proceedings had and done in the matter of the construction of said sewer were regular and valid; and that the plaintiffs and each of them acquiesced in the transaction and stood by without objection while he expended his money on said sewer to the benefit of the plaintiffs; and that by reason of their laches they were estopped to deny the authority by which said improvements were made and to defeat the assessments against said property.</p> <p>The defendant, W. B. Wheeler, in his answer, in addition to a general denial and the general allegations set forth in the answer of the city of Perry and Will T. Plummer, substantially alleged that the mayor and city council of the city of Perry by ordinance duly and legally passed and approved on the--of December, 1903, levied and assessed a special tax against the lots abutting on said sewer the same being all of the lots included in sewer district number one (1) which ordinance was duly published in the official paper of said city, and which levy and assessment was for paying the expenses for the construction of said seAver; and, that, thereafter, in accordance with law, the mayor and city council of the city of Perry issued to one Will T. Plummer the contractor, and one of the defendants herein, in payment of the construction of the sewer mentioned in plaintiffs’ petition, certain special tax warrants • against the lots and parcels of ground in said sewer district number one (1); and, that thereafter, to wit, on the ■——day of-, 1904:, and before the filing of this suit the defendant, W. B. Wheeler, purchased in good faith without notice, and for a valuable consideration, the said tax warrants so issued as aforesaid in payment of the construction of the sewer mentioned in plaintiffs’ petition; and that he was at the time the owner and holder of said tax warrants.</p> <p>Upon the hearing it was admitted that the city of Perry contained a population of more than one thousand (1,000) ; that the sewer district number one (1) is the only sewer in the city of Perry constructed by the city; and that no jDetition was ever filed by the property holders residing in said sewer district.</p>

Error from the District Gourt of Oklahoma, County; before James E. Beauchamp, Trial Judge. statement of facts.

Error from the District Court of Kingfisher County; before C. F. Irwin¿ Trial Judge. STATEMENT OE EACTS. On the 27th day of June, 1900, plaintiff in error entered into a contract with the bankrupt, for the lease of the Kingfisher Hotel building, at a stipulated rental per month. 'This lease contained a chattel mortgage clause to secure the hotel owners against any loss for rent due.

Error from the •District Court of Garfield County; before James K. Beauchamp, Trial Judge. STATEMENT OF FACTS. This was an action begiin by the plaintiff in error in the district court of Garfield county, by petition in which it was set forth that the plaintiff was a trader, residing at Roosevelt, Kiowa county, Oklahoma. That the defendant was an Oklahoma banking corporation, situated at Waukomis, Garfield county, Oklahoma.

<p> Error from the District Court of Caddo County; before Frank E. Gillette, Trial Judge. </p>

<p> Error from the District Court of Garfield County; before• James K. Beauchamp, Trial Judge. </p>

<p>1. MURIDER—Indictment—Language. An indictment for murder need (not charge the offense in the language of the statute defining the crime; the use of words of equivalent meaning is sufficient. The averment that the homicidal act was done purposely; of one’s deliberate and premeditated malice and with the intent to kill, is equivalent to the averment that it was done with a premeditated design to effect death, and will support a conviction for murder</p> <p>2. APPEAL AND ERROR—Case Made—Requirements. In cases of conviction for murder, this court will disregard technical defects in the records and will afford the prisoner every right consistent with a due regard for the reasonable rules of practice and procedure, but the court cannot review alleged errors based upon a record -which is neither a case made nor transcript.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Logan County; before John L. Pancoast, Trial Judge. </p>

<p> Error from the District Court of Pawnee County; before Bayard T. Rainer, Trial Judge. </p>

Error from Live Dstrict Court of Woods County; before John Tj. Pancoasi, Trial Judge. STATEMENT OF FACTS. Held: That the plaintiff had the legal capacity, as a citizen and taxpayer, to maintain this action; that the constitutional convention had no powers conferred upon it, except such powers as are expressly conferred upon it by the enabling act, and such powers as are incidentally necessary to carry into effect the objects and purposes of…

<p>COURT OF EQUITY—Jurisdiction—Constitutional Convention. A court of equity has Yo power or jurisdiction to restrain or enjoin the constitutional convention, its officers or delegates, from exercising any of the rights, powers and obligations confided to it by congress or the people; nor can the powers of the court be invoked to restrain or enjoin the submission of the constitution or any proposition contained therein, to a vote of the people, in advance of its adoption and ratification by the people, and its approval by the President of the United States, on the ground that tile proposed constitution or any of its provisions is unconstitutional, or that the convention acted in excess of its powers.</p> <p>(Syllabus by the Court.)</p>

<p> Original in Supreme Court. </p>

<p> Error from the District Court of Logan County; before John H. Burford, Trial Judge. </p>

<p> Original in Supreme Court. </p>