Volume 207 — Oklahoma Reports

(Syllabus.) 1. TAXATION — <italic>Tax sale void because notice of sale described</italic> <italic>land as N 1/2 SW and no further description given.</italic> Where a county treasurer prepares a notice of sale for publication for the sale of land for delinquent ad valorem taxes wherein the land is described as the N 1/2 SW and no further or additional description is given as to the section, township or range, the sale of the land and the treasurer's deed are void under the provisions of 68 O.S. 1951 § 382[68-382]. 2. LIMITATION OF ACTIONS — <italic>One year statute of limitations not</italic> <italic>applicable in action to cancel void tax deed is void.</italic> The provisions of 68 O.S. 1951 § 455[68-455] limiting the time in which an action may be brought to recover land which has been sold and conveyed by deed for nonpayment of taxes, unless the action is brought within a year after the recording of the deed; held, that the statute of limitations is not applicable on suit to cancel resale tax deed, where the tax deed is void.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of conflicting evidence to</italic> <italic>support verdict.</italic> In an action of legal cognizance, the verdict of the jury as to questions of fact will not be disturbed upon appeal where the evidence is in conflict, and there is any evidence reasonably tending to support the verdict.

(Syllabus.) DIVORCE — APPEAL AND ERROR — <italic>Dismissal of appeal in divorce</italic> <italic>action for want of jurisdiction.</italic> Where plaintiff sues for a divorce and defendant files an answer and also a cross-petition praying for a divorce from plaintiff and for an adjudication and settlement of property rights, and where a decree for divorce is granted to defendant allowing her an attorney's fee, and purporting to render a decision as to prior disposition of property, and where the decree is challenged by plaintiff as not supported by the evidence and is contrary to law, and plaintiff fails to file a motion for a new trial as provided by 12 O.S. 1951 § 653[<cross_reference>12-653</cross_reference>], this court on appeal does not acquire jurisdiction of the case and the appeal on proper motion will be dismissed.

(Syllabus.) 1. TRIAL — <italic>Failure to give instructions upon issue not raised by</italic> <italic>pleadings and evidence not erroneous.</italic> While it is the duty of the trial court in a law action tried to a jury to instruct the jury upon material issues raised by the pleadings and evidence in the case, the failure of the trial court to give an instruction upon an issue not raised by the pleadings, and upon which no evidence is produced, is not erroneous. 2. SAME — <italic>Held, instruction contended for by plaintiff was not</italic> <italic>on any material issue raised by pleadings and evidence in</italic> <italic>cause.</italic> Record examined, and held: That the instruction which the plaintiff now contends should have been given to the jury by the trial court, and which was not requested by the plaintiff at the trial, is not upon any material issue raised by the pleadings and evidence in the cause.<page_number>Page 49</page_number>

(Syllabus.) 1. APPEAL AND ERROR — <italic>Issues on contested question of fact</italic> <italic>properly submitted to jury where evidence sufficient to</italic> <italic>authorize such submission.</italic> Where the issues are presented on a contested question of fact triable to a jury, it is not error for the court to submit these issues to the jury where there is competent evidence to authorize such submission. 2. SAME — <italic>Cause not reversed where instructions given fairly</italic> <italic>submit issues to jury.</italic> This court will not reverse a cause for instructions given in the trial court where said instructions in all substantial respects submit the issues to the jury. 3. SAME — <italic>Refusal of requested instructions where issues covered</italic> <italic>by instructions given.</italic> It is not error to refuse requested instructions even if technically correct where they are in substance covered by other proper instructions given by the court.

(Syllabus.) 1. REPLEVIN — <italic>Equitable rights not determined if dependent on</italic> <italic>rescission of contract under which property claimed.</italic> While the statutory action of replevin is sufficiently flexible to authorize both legal and equitable rights to be determined in such action, yet the equities to be settled must relate to the property or the rights arising out of the contract, and not to the rescission of the contract under which the property is claimed. 2. SAME — <italic>Cause properly submitted to jury only upon issue of</italic> <italic>damages for wrongful taking of replevined property and rights</italic> <italic>arising out of contract between parties.</italic> In a replevin action when plaintiff's evidence affirmatively shows that defendant, and not the plaintiff, is entitled to possession of the property involved, there is no issue of right of possession to be submitted to the jury, and the cause may be properly submitted to the jury only upon the issues of damages claimed by the parties growing out of the wrongful taking of the replevined property and rights arising out of the contract between them.

(Syllabus.) 1. WILLS — <italic>Presumption of testamentary capacity from due</italic> <italic>execution and attestation of will — Burden of proof on</italic> <italic>contestant.</italic> In a will contest case, where due execution and attestation are established, a presumption of testamentary capacity arises, and the burden of proving unsoundness of mind of the testator is upon the contestant. 2. SAME — <italic>Essentials of testamentary capacity — Mere showing of</italic> <italic>bad memory and physical weakness insufficient to establish</italic> <italic>testamentary incapacity.</italic> A testator has a sound mind for testamentary purposes when he can understand and carry in mind, in a general way, the nature and situation of his property and his relation to those who naturally have some claim to his remembrance, and to those in whom, and the things in which, he has been chiefly interested. Mere showing that at time of execution his memory was impaired, and that he was physically weak, unaided by other evidence, is insufficient to establish lack of testamentary capacity. 3. SAME — "<italic>Undue influence' invalidating will — In absence of</italic> <italic>affirmative activity as procurement, no burden of proof rests</italic> <italic>on beneficiary on issue of undue influence.</italic> Undue influence such as will invalidate a will is that which, in effect, destroys the free agency of the testator at the time the instrument is made and which, in effect, substitutes the will of another for that of the testator. To establish such undue influence it is not sufficient to show that the testator was influenced in ordinary affairs of life. The affirmative activity on the part of beneficiaries which gives rise to the inference of undue influence must go to the testator himself or to the substance of the testamentary act, and in the absence of any such activity as a procurement, no particular burden of proof rests upon beneficiary.<page_number>Page 159</page_number> 4. SAME — <italic>Judgment on issues of testamentary capacity and undue</italic> <italic>influence in will contest found not against clear weight of</italic> <italic>evidence.</italic> The judgment of the trial court on the issues of testamentary capacity and undue influence in proceedings to contest a will, will not be disturbed on appeal when it is not against the clear weight of the evidence.

(Syllabus.) 1. TRUSTS — <italic>Establishment of resulting trust by parol evidence.</italic> Resulting trusts are not within the statute of frauds, and may therefore be established by parol evidence, where not otherwise incompetent. 2. SAME — <italic>When trust presumed.</italic> When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made. 3. SAME — <italic>"Resulting trusts" defined.</italic> Resulting trusts are those which arise where the legal estate in property is disposed of, conveyed or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or be enjoyed with the legal title. 4. APPEAL AND ERROR — <italic>Sufficiency of evidence in equity case.</italic> In an action of equitable cognizance this court will examine and weigh the evidence, but will not disturb the judgment of the trial court unless it is clearly contrary to the weight of the evidence.<page_number>Page 178</page_number>

(Syllabus.) EMINENT DOMAIN — <italic>Property placed on land by public utility,</italic> <italic>having right of condemnation, without consent of landowner,</italic> <italic>remains property of utility — Landowner's remedy.</italic> Property attached to real estate by public utilities which have the right of condemnation, without the consent of the landowner, remains the property of the public utility and the landowner's rights are governed by Title 66 O.S. 1941 § 57[<cross_reference>66-57</cross_reference>].

(Syllabus.) SALES — <italic>Measure of damages caused by breach of warranty of</italic> <italic>quality of personal property.</italic> The measure of damages caused by the breach of the warranty of the quality of personal property is the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time.

(Syllabus.) ADVERSE POSSESSION — <italic>Title under tax deed void on face ripens</italic> <italic>into good title by adverse possession for 15 years.</italic> The title of a person in actual and peaceable possession of land whose predecessor in title went into possession under color of title of a tax deed void upon its face, will ripen into a good title, where continuous, exclusive, adverse and hostile possession is held thereunder for a period of 15 years.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Continuing jurisdiction of commission</italic> <italic>to enter an award for permanent disability.</italic> After a claim is filed the jurisdiction of the State Industrial Commission is fixed and there is no time limit set upon the right to enter an award for permanent disability, as the commission has a continuing jurisdiction to enter an award for permanent disability.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed where not filed within</italic> <italic>statutory time.</italic> Where an appeal is not lodged in this court within three months as provided by 12 O.S. 1951 § 972[<cross_reference>12-972</cross_reference>], or within the time given by the trial court extending such time, this court is without jurisdiction to review the appeal.

(Syllabus.) SCHOOLS AND SCHOOL DISTRICTS — <italic>Computation for tax levy — Cash</italic> <italic>surplus on hand from previous year or years — Board limited to</italic> <italic>surplus balance actually on hand with treasurer of school</italic> <italic>district at close of fiscal year.</italic> When the county excise board proceeds under the provisions of 68 O.S. 1951 §§ 297-298[68-297-298], to ascertain the cash surplus on hand from the previous year or years, the board is limited as to cash surplus to the surplus balance actually on hand with the treasurer of such school district at the close of the previous fiscal year.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Right of employee to refuse to submit</italic> <italic>to major operation involving risk of life.</italic> The State Industrial Commission is without jurisdiction to order an injured employee to submit to a major operation involving a risk of life, however slight, merely in order that the pecuniary obligations created by the law in his favor against his employer may be minimized.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Jury properly instructed plaintiff</italic> <italic>entitled to recover for rents for oats harvested or which</italic> <italic>could have been harvested.</italic> In an action on a contract for rents due it is proper for the court to instruct the jury that the plaintiff is entitled to recover for rents for oats which were planted and harvested or for oats which could have been harvested with due care by the tenant. 2. SAME — <italic>Court's instructions as to amount due in rentals for</italic> <italic>oats planted not error.</italic> Record reviewed, and held, that the court's instructions as to the amount due in rentals for oats planted was not error.

(Syllabus.) INSANE PERSONS — <italic>Demurrer to application to vacate final order</italic> <italic>declaring person incompetent and appointing guardian, properly</italic> <italic>sustained where final judgment rendered under exclusive</italic> <italic>jurisdiction of county court.</italic> Where jurisdiction of the county court has been invoked by filing a petition to have a person declared incompetent under the provisions of Title 58 O.S.A. § 851 [<cross_reference>58-851</cross_reference>], and<page_number>Page 322</page_number> after a full hearing and examination as provided for under Title 58 O.S.A. § 852 [<cross_reference>58-852</cross_reference>], it was determined that such person was incompetent, or incapable, of managing his business affairs and a guardian was appointed, and thereafter, after time for appeal had expired, application to vacate the court's final order on grounds that a competent person had been declared incompetent and a guardian appointed for him by the court through fraud practiced upon it for the purpose of preventing applicant, a foreign corporation, from transferring an action, brought by the guardian for personal damages to his ward, in a state court to the Federal court, demurrer thereto was properly sustained.

(Syllabus.) ABATEMENT AND REVIVAL — APPEAL AND ERROR — <italic>Revivor of Actions —</italic> <italic>Discretion of trial court on issue of "other unavoidable</italic> <italic>reasons" and "reasonable time" as those clauses employed in</italic> <italic>statute — Conclusion not disturbed on review.</italic> A trial court may exercise discretion in deciding issue on "other unavoidable reasons" and a "reasonable time," as those clauses are employed in 12 O.S. 1951 § 1072[<cross_reference>12-1072</cross_reference>], on revivor of actions, and unless conclusion reached is clearly against weight of evidence, indicating abuse of discretion, it will not be disturbed on review.

(Syllabus.) 1. FRAUDS, STATUTE OF — <italic>Written contract assigning to another</italic> <italic>oral contract for purchase of land held void for want of</italic> <italic>consideration.</italic> An oral agreement for the purchase of land is within the statute of frauds and is invalid and unenforceable and a written contract, assigning to another such oral contract of purchase, is void for want of consideration where no other consideration is shown. 2. SPECIFIC PERFORMANCE — <italic>Judgment for specific performance not</italic> <italic>supported where sole consideration for written contract was</italic> <italic>assignment of invalid oral agreement.</italic> A written contract, which has for its sole consideration the assignment of an invalid oral agreement for the purchase of land from a third party, will not support a judgment for specific performance of such contract. 3. FRAUDS, STATUTE OF — <italic>Requisites to validity of contract for</italic> <italic>sale of real property made by agent.</italic> A contract for the sale of real property, entered into by an alleged agent of the owner of such real property, and a third person, is invalid under the statute of frauds, unless the authority of such agent to sell such real property be in writing, subscribed by such owner, and such authority must be specific and certain as to the authority conferred, the terms, the description, and parties, so that the authority is disclosed by the writing itself and recourse to parol evidence to show the intention of the parties is unnecessary.

(Syllabus.) NEW TRIAL — <italic>Misconduct of jury in failing to view entire</italic> <italic>premises as directed requires setting aside of verdict on</italic> <italic>proper motion.</italic> When the court instructs the jury to view the premises as provided by Tit. 12 O.S. 1951 § 579[<cross_reference>12-579</cross_reference>], the misconduct of the jury in failing to view the entire premises as directed entitles a party to the action to have a verdict thereafter rendered set aside on proper motion, and it need not be shown that the rights of such litigant were prejudiced.

(Syllabus.) LICENSES — TAXATION — <italic>Oil produced from lands of restricted</italic> <italic>Kiowa and Apache Indians under departmental lease subject to</italic> <italic>supervision of Secretary of Interior not subject to state</italic> <italic>excise tax of one-eighth of one cent per barrel, nor state</italic> <italic>gross production tax of 5 per cent of value of oil produced.</italic> A lessee producing oil from lands of restricted Kiowa and Apache Indians under departmental lease approved by and subject to supervision of the Secretary of the Interior of the United States, is engaged in the operation of a governmental instrumentality or agency and in the absence of permissive legislation by Congress, or appropriate Federal consent or waiver or withdrawal of immunity, the oil production or the oil as produced is not subject to the state excise tax of one-eighth of one cent per barrel, nor the state gross production tax of five per cent of the value of the oil produced.

(Syllabus.) 1. COURTS — <italic>General rule decision of court of last resort</italic> <italic>overruling former decision retrospective in its operation.</italic> The general rule is that a decision of a court of last resort overruling a former decision is retrospective in its operation. The effect is not that the former decision is bad law but that it never was the law. 2. COURTS — <italic>Subsequent decision of U.S. Supreme Court overruling</italic> <italic>prior decision as to subjecting lessees to gross production</italic> <italic>and proration taxes — Such decision not given prospective</italic> <italic>effect only by this court.</italic> Where the Supreme Court of the United States in its former decisions held that the oil and gas lessees of certain lands in this state, held in trust by the United States for certain tribes of Indians, were Federal instrumentalities and were not subject to the state gross production and proration tax laws, and thereafter in a subsequent decision overruled its prior decisions and held that such lessees were subject to the gross production and proration taxes under the state law, this court will not in the exercise of discretion give such decision prospective effect only in the absence of a showing that vested or contract rights are impaired or that hardship amounting to an injustice will result.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Duty of town clerk to cause to be</italic> <italic>published in a newspaper of general circulation within town</italic> <italic>notice of date of filing of initiative petition.</italic> When a petition in purpose of initiating legislation for a town is timely filed in the office of the town clerk, it becomes the duty of the clerk to forthwith cause to be published in a newspaper of general circulation within the town, a notice setting forth the date of such filing, without regard to his views concerning the legal sufficiency of the subject matter of the petition. (34 O.S. 1951 §§ 51[<cross_reference>34-51</cross_reference>] and 8.) And thereafter it is the fixed duty of the clerk to promptly do and perform all other things required of him by law, to the end that the rights of the initiative shall be fully preserved in the people.<page_number>Page 369</page_number>

(Syllabus.) 1. APPEAL AND ERROR — <italic>Trial court not authorized to extend time</italic> <italic>for appeal, where no order made within three months from</italic> <italic>rendition of judgment extending time to file appeal.</italic> 12 O.S. 1951 § 972[<cross_reference>12-972</cross_reference>] provides that appeals must be taken within three months from the rendition of the judgment or final order complained of, but that the trial court in its discretion may extend the time for not to exceed six months. Under the provisions of this amendment, where no order is made by the trial court within three months from the rendition of the judgment or final order complained of, extending the time within which to file an appeal in this court, such judgment becomes final, and the trial court is thereafter without jurisdiction to extend the time within which to file such appeal. 2. SAME — <italic>Order of trial court extending time to make and serve</italic> <italic>case-made beyond statutory time for appeal does not extend</italic> <italic>time to appeal.</italic> An order made by the trial court, extending the time within which to make and serve case-made beyond the statutory time within which the appeal is required to be effected, does not extend the time to appeal.

(Syllabus.) 1. TRIAL — <italic>When verdict should be directed for defendant.</italic> A verdict should be directed for the defendant only when the evidence, with all inferences reasonably deducible therefrom, is insufficient to support a verdict for plaintiff. 2. APPEAL AND ERROR — <italic>Conflicting evidence not weighed on</italic> <italic>appeal.</italic> A judgment on a verdict supported by the testimony of a single witness will be sustained, notwithstanding that several other witnesses testify to the contrary on a material point, as this court will not in a law action weigh evidence against conflicting evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed where issues heretofore</italic> <italic>decided.</italic> Where, from an examination of the motion to dismiss, the record and the response to said motion to dismiss, it appears that there is no judicial controversy that has not heretofore been determined an appeal will be dismissed.

(Syllabus.) 1. REFORMATION OF INSTRUMENTS — <italic>Deed by mutual mistake conveying</italic> <italic>property not intended.</italic> Where, by mutual mistake of the parties a deed fails to convey property intended to be conveyed, a court of equity will reform the deed to make it express the true intent. 2. SAME — <italic>Degree of proof required to justify reformation of</italic> <italic>deed.</italic> In order to justify a reformation of a deed the evidence must be full, clear, unequivocal, and convincing as to the mistake and its mutuality. Mere preponderance of the evidence is not enough. The proof must establish the fact to a moral certainty and take the case out of the range of reasonable controversy. Where both the mistake and its mutuality are so established, a court of equity will reform the deed to conform to the intention and real agreement of the parties. 3. VENDOR AND PURCHASER — <italic>Purchaser of realty charged with</italic> <italic>notice of rights of persons in possession.</italic> A purchaser of realty is charged with notice of whatever rights persons in actual possession may have.

(Syllabus.) 1. INDIANS — <italic>Funds released by Secretary of Interior to guardian</italic> <italic>of unenrolled full-blood Mississippi Choctaw Indian minor and</italic> <italic>funds in hand of guardian derived from sale of oil and gas</italic> <italic>lease, etc., held unrestricted funds.</italic> Funds released by the Secretary of the Interior to the guardian of an unenrolled full-blood Mississippi Choctaw Indian minor and funds in the hands of the guardian derived from the sale of an oil and gas lease on, the execution of an agricultural lease upon, and the sale of minerals in and under the allotment of the deceased father of the minor, are unrestricted funds. 2. SAME — <italic>Lands purchased by guardian of unenrolled full-blood</italic> <italic>Indian minor with funds of minor in hands of guardian, held</italic> <italic>unrestricted and capable of being conveyed without approval.</italic> Lands purchased by the guardian of an unenrolled full-blood Mississippi Choctaw Indian minor with funds of the minor in the hands of the guardian are, upon the minor attaining his majority, unrestricted lands and may be conveyed by the owner without the approval of the Secretary of the Interior or the county court. 3. PLEADING — <italic>Original pleading superseded by amendment may not</italic> <italic>be considered in passing on demurrer to amended pleading.</italic> Where an amended pleading is filed for another pleading, or filed without expressly adopting the original pleading, the allegations of the prior pleading, except as repeated in the amended pleading, are wholly abandoned, and no reference whatever can be made to the original pleading in determining whether or not a demurrer should be sustained to the pleading in its amended form.

(Syllabus.) 1. BROKERS — <italic>Commission for sale of real estate earned by</italic> <italic>producing responsible purchaser.</italic> Where a landowner employs a real estate broker to sell his land and the broker furnishes a purchaser ready, willing, and able to buy upon the terms and conditions proposed by the landowner to the broker, such broker has earned his commission. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to withstand</italic> <italic>defendant's demurrer and support verdict and judgment for</italic> <italic>plaintiff.</italic> Record examined, held, plaintiff's evidence sufficient to withstand defendant's demurrer and to support verdict and judgment for plaintiff.<page_number>Page 412</page_number>

(Syllabus.) 1. PRINCIPAL AND AGENT — <italic>Implied authority of agents — Estoppel</italic> <italic>of principal.</italic> Where a corporation places employees in charge of a branch office with authority to sell goods and collect therefor, but without authority to endorse principal's name on checks received in payment and to cash same, and such checks are so endorsed and cashed over a period of many years without repudiation, notice, protest, complaint, or demand for a different method of payment of accounts, it will be inferred that such acquiesced-in method of payment has the sanction and approval of the principal, who will be estopped from denying such implied authority of its agents. 2. SAME — <italic>Acts of principal liberally construed in favor of</italic> <italic>adoption of acts of agents — Evidence of conduct of principal</italic> <italic>in apparent approval of acts of agent sufficient to raise such</italic> <italic>presumption.</italic> The acts of a principal are to be liberally construed in favor of an adoption of the acts of its agent, and when unauthorized acts of an agent are capable of ratification, evidence of conduct of principal apparently approving such acts is sufficient, when there is no evidence to the contrary, to warrant a presumption of approval and ratification where principal knew or should have known of unauthorized acts and where there is silence or acquiescence for a long period of time without any objection by the principal.

(Syllabus.) 1. TAXATION — <italic>Act of</italic> 1935 <italic>waiving tax penalties, etc., accrued</italic> <italic>prior to</italic> 1933 <italic>not effective to cancel original sale for</italic> 1931 <italic>taxes rendering premature a resale in</italic> 1936. Sec. 1, art. 15, Ch. 66, S.L. 1935, providing for the waiver and cancellation of all penalties, interest and costs that have accrued on unpaid ad valorem taxes levied and assessed for the year 1932 and prior years, does not have the effect of canceling an original sale for delinquent taxes<page_number>Page 434</page_number> in 1931 so as to render premature a resale therefor in 1936. 2. SAME — <italic>Presumption favoring validity of tax deed to land sold</italic> <italic>as one parcel for single consideration.</italic> Land described in a tax deed and shown therein to have been sold as one parcel for a single consideration is presumed to be one separate tract and properly subject to listing and valuation as such on the tax rolls, and to tax sale for a single consideration, unless the contrary affirmatively appears on the face of the deed. 2. SAME — <italic>Title conveyed by valid tax resale barring all prior</italic> <italic>titles and encumbrances.</italic> If the tax deed is valid, then, from the time of its delivery, it clothes the purchaser with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and encumbrances of private persons.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendant in error to file brief —</italic> <italic>Reversal.</italic> Where plaintiff in error has served and filed brief, but the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may reverse the same, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to support</italic> <italic>judgment in jury-waived case.</italic> A judgment rendered in a case heard without the intervention of a jury will not be reversed on account of admission of incompetent evidence unless the record discloses that there was no competent evidence to affirm it or in some way shows affirmatively that the improper evidence affected the result. 2. TRIAL — <italic>When defendant not entitled to directed verdict.</italic> The trial court commits no error in overruling defendant's motion for a directed verdict where there is competent evidence tending to support the material allegations of plaintiff's petition.

(Syllabus.) NEW TRIAL — <italic>Granting of new trial because of erroneous</italic> <italic>instructions.</italic> The trial court as a matter of law may grant a new trial where, in its opinion, instructions which are erroneous have caused prejudice to one of the parties.

(Syllabus.) 1. SET-OFF AND COUNTERCLAIM — <italic>Counterclaim must arise out of</italic> <italic>contract or transaction set forth in petition as foundation of</italic> <italic>plaintiff's claim.</italic> The defendant cannot make a counterclaim against a plaintiff in an action unless such counterclaim arises out of the contract or transaction set forth in the petition as the foundation of plaintiff's claim, and it must be connected with the subject of the action or must be for damages on account of wrongful attachment or garnishment issued and levied in the action after same has been dissolved or set aside. 2. PLEADING — <italic>Improper overruling of general demurrer — Same</italic> <italic>question may be raised again at later stage.</italic> When a general demurrer has been improperly overruled, the same question may be raised at a later stage in the proceedings by an objection to the introduction of evidence, by demurrer to the evidence, or by motion for a directed verdict.

(Syllabus.) 1. BASTARDS — <italic>Presumption of legitimacy of children.</italic> After a long lapse of time, where proof is given that certain persons are the children of a certain man and woman and were so recognized and treated by the parents and other members of the family, legitimacy will be presumed, even though there was no direct evidence of the marriage of the father and mother.<page_number>Page 510</page_number> 2. EXECUTORS AND ADMINISTRATORS — <italic>Judgment of trial court</italic> <italic>sustaining order of county court appointing an administrator</italic> <italic>not against weight of evidence.</italic> Record examined, and held: The judgment of the trial court is not clearly against the weight of the evidence.

(Syllabus.) SET-OFF AND COUNTERCLAIM — <italic>Action to recover state sales tax —</italic> <italic>Right by counterclaim to litigate issue as to breach of</italic> <italic>warranty of fitness of merchandise sold.</italic> Where a plaintiff sues for the unpaid balance on an account representing state sales tax on articles sold, the defendant may, by counterclaim, litigate any issue as to breach of warranty of fitness by reason of defects in such articles.

(Syllabus.) APPEAL AND ERROR — <italic>Review of equity case — Conclusiveness of</italic> <italic>findings.</italic> In an action of equitable cognizance, the findings and conclusions of the trial court will not be disturbed on appeal when not clearly against the weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Necessity for filing case-made in office of</italic> <italic>clerk of trial court — Dismissal.</italic> A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court in accordance with the provisions of 12 O.S. 1951 § 958[<cross_reference>12-958</cross_reference>], is a nullity, and where such case-made remains in this court after the expiration of the statutory time in which to perfect an appeal, on motion the appeal will be dismissed.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Proof of cause and extent of</italic> <italic>disability by experts' testimony — Conclusiveness of finding.</italic> Where, in a proceeding before the Industrial Commission, the disability alleged to exist is of such character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proved by the testimony of skilled professional persons, and a finding of fact based thereon when reasonably supported will not be disturbed. 2. SAME — <italic>Conclusiveness of finding on question whether injury</italic> <italic>arose out of and in course of employment.</italic> The question of whether an injury arose out of and in the course of employment is one of fact to be determined by the Industrial Commission under the circumstances of each particular case, and where there is any testimony reasonably tending to support its finding, it will not be disturbed on an application to vacate the award.

(Syllabus.) TRIAL — <italic>General finding in equity case is finding of each</italic> <italic>special thing necessary to sustain general finding.</italic> A general finding of the trial court in a suit of equitable cognizance is a finding of each special thing necessary to sustain the general finding.

(Syllabus.) SEWERS — <italic>Application for approval of sewer improvement district</italic> <italic>bonds — Bond approved where proceedings found to be in</italic> <italic>accordance with statutes.</italic> Where an application for the approval of sewer improvement district bonds is filed in this court, and the record of the proceedings culminating in the organization of the district, and the issuance of the bonds, filed with the application, show that the proceedings were in all respects regular and in accordance with governing statutes, the bonds will be approved by this court.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence in law action</italic> <italic>tried to jury to sustain verdict.</italic> In a law action triable to a jury a verdict for the plaintiff will not be disturbed on appeal where it is reasonably supported by the evidence. 2. TRIAL — <italic>Not error for trial court to direct jury sole</italic> <italic>question raised is element of damage for breach of contract.</italic> In an action for damages for breach of contract where the defense is an allegation of fraud, and the evidence wholly fails to sustain such allegation, it is not error for the trial court to direct the jury that the sole question raised is the element of damage for the breach of the contract.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review of equity case — Sufficiency of</italic> <italic>evidence.</italic> In an action of equitable cognizance this court will examine the record and weigh the evidence, but it will not disturb the judgment of the trial court unless it is found to be clearly contrary to the weight of the evidence. 2. SPECIFIC PERFORMANCE — <italic>Contracts enforceable.</italic> An agreement will not be specifically enforced unless certain, fair, and just in all its parts, though the contract, had it been executed, might have offered no sufficient ground for cancellation. 3. SAME — <italic>Specific performance not matter of right but question</italic> <italic>of equity, and application addressed to sound discretion of</italic> <italic>trial court.</italic> Specific performance is not a matter of right but a question of equity and application is addressed to sound legal discretion of trial court and controlled by the principles of equity in full consideration of circumstances.<page_number>Page 665</page_number> 4. CONTRACTS — <italic>Language interpreted most strongly against party</italic> <italic>causing uncertainty to exist.</italic> If there be any uncertainty in a contract, the language should be interpreted most strongly against the party who caused uncertainty to exist.

(Syllabus.) EXECUTORS AND ADMINISTRATORS — HOMESTEAD — <italic>Decree of</italic> <italic>distribution purporting to distribute homestead to heirs does</italic> <italic>not deprive surviving minor child of homestead right.</italic> A decree of distribution, made in the winding up of an estate, is conclusive as to matters properly before the county court and involved in such hearing; that is, the determination of who the legatees, devisees, and heirs to the estate are and their respective interests therein, but is not conclusive as to the right to the possession of real estate belonging to such estate, and does not preclude the surviving minor child of the decedent from asserting the right to possess and occupy the homestead.