Volume 24 — Oklahoma Reports

McMillan, Judge. Mandamus by J. B. Thompson and others against School Board District No. 18 Garvin County, and others. Judgment for plaintiffs, and defendants bring error. citing: Board of Education v. Purse, 101 Ga: 422; State exrel.,v\ School Dist., 31 Neb. 552; Morrow v. Wood, 35 Wis. 59; People ex rel. v. Trustees, 87 111. 303; Ralston v. Posij i9' 111. 567.

<p> Error from Disirid Court, Comanche County; F. E. Gillette, Judge. </p> <p>Action by the Van Burén, Heck & Marvin Company against J. E. Hale and others. Judgment for plaintiff, and defendants bring error.</p> <p>On .the 23 day of August, 1905, the defendant in error, as plaintiff, began its action in the district court of Comanche county, territory of Oklahoma, against the plaintiffs iii error, John E. Tlal'e and George W. Broe, as defendants, declaring in its petition on three certain promissory notes, each in the 'sum of $1,-583.60, dated November 19, 1904, and due, respective!}7, three, six, .and nine months after date, payable to the order of the defendant in error at the City National- Bank of Lawton, Oída. T.; it 'being averred that said notes were given as a part of the purchase price of one Buckeye ditcher. On the 20th day. of September, ISO5, the defendant John E. Hale filed his separate answer, admitting the execution and delivery of the notes declared on solely and only for the purchase by defendant ' of one certain Buckeye traction ditcher, 54 inch by 12 inch, equipped with a 28-inch wheel' and complete with the-usual extras; that at the time of. ".the execution and delivery of said notes a certain written contract of warranty, dated September 19, 1904, was made and delivered by the plaintiff to said defendant, by the terms of which it was agreed that plaintiff should and did warrant said machine in accordance with a letter of said plaintiff to one J. O: Severns, dated August 27, 1904, which is as follows:</p> <p>- “Findlay, Ohio, Aug. 27, 1904. Mr. J. O. Severns, Guthrie, O, T. Dear Sir: Eeplying to your valued favor of the 24th inst., we. think with Mr. Bryson that you should have a 12 .ft. machine. However, we can come under the time some-what in which Mr. Bryson -promises delivery. We could have this machine ready for shipment in six weeks after receipt of order. • This machine' would have 75" 'traction wheels with heavy steel gear rims riveted to the inside of the tires, tires to be %" thick, 24" wide, boiler to be the Scotch-Marine type 60"xl04", engines to be duplex slide valve 8%"x S" cylinders, crank shaft to be steel forging, differential pinion and gear to be steel, machine to be equipped with No. 124 chain throughout, excepting on the feed which will be either No. 88 or No. 103. Excavating wheel to be constructed with heavy steel bucket tops, each armed with rooters, made entirely from tool steel, machine to have coal bunker and water tank beneath the engine, elevator to be driven with steel b'evel gearing, gear segments and sprockets which drive excavating wheel to be steel castings, machine guaranteed to cut 60 lineal feet of trench per hour in ordinary earth at the depth of twelve feet, machine to have low' speed, nine inches per minute, high speed of eight feet per minute with engines running at their regular speed. Excavating frame to be constructed of steel, as will also the standards connecting the excavating frame with the machine. Machine to be heavily and thoroughly braced throughout and to be first-class in every respect. Ground wheels to be constructed with removal and cleats, also front lugs. Tiller wheel to be constructed with removable holding tire for the purpose of moving over asphalt pavement, machine to be a strong and powerful puller so that, it can be used as a road locomotive when required. Price of machine to be $5000.00 f. o. b. cars factory. Terms either cash on acceptance (which must be within six days after the machine starts) or bankable paper which the National Bank of Commerce of Guthrie will accept at face value, without our indorsement. We will stake our reputation on the performance of this machine and give you a machine which will run six days in the week, one which you can bankYn opening up a given amount of trench each day and thus obviate the necessity of having more men than will be necessary to keep your pipe gangs going. We are sending a copy of this letter to our Mr. Brj^son with whom you can take the matter up further. The machine will work in a 20 ft. alley and will cut to a width of 28 inches. We trust the above will meet with your approval and to be worded strongly enough so that if the machine is large enough for your work you will not hesitate in placing your order. We presume that a wheel 28 inches in width will be wide enough for your requirements. The actual width of cut will over-run this from an inch'to an inch and quarter. We will not construct a wheel lesser width to cut to a depth of 12 feet. Very truly yours, The Fan Burén, ITeck & Marvin Co., by C. J. Van Burén, Pres. Diet. CJV/(t."</p> <p>And also a letter to J. R. Hale, dated September 7, 1904, as follows:</p> <p>“Findlay, Ohio, Sept. 7, 1904. Mr. Jno. R. Hale, No. 302 C. Ave., Lawton, Okla. Ter. Dear Sir: Further in regard to your favor of the 30th ult., the writer was out of the city at the time your letter answered. On his return last evening the correspondence was gone over and we find that you were not given the information asked for. You want a 12' machine. We have one which has put in about a thousand feet of extremely hard material. In fact there was no earth at all. Tt was all shale, most of which could be picked, interspersed, however, with flinty ledges which were impossible to excavate except by blasting, that is, with the ordinary method. The machine went thru it. The machine was worn somewhat. Wé are replacing all worn parts and will have the' machine in readiness for shipment in about two weeks time. Equipment as follows: Boiler is horizontal Scotch-Marine type 66" in diameter 9' 7" in depth, furnace 34" in diameter, shell %," heads furnace 14," tubes 68-3," length 96," boiler is equipped with a dry pipe instead of dome to allow for the stack being topped backward and passing under trolley wires. Engine is duplex, 8%"xl0" cylinders, coupled to forged steel crank shafts 4" in diameter; tiller wheels 54" in diameter, 24" tire with removable center rings; traction wheels 75" in diameter, 24" in width, rear axle 6" in diameter. Excavation wheel is equipped with a heavy steel top and rooters similar to the 24" machine described. The wheel cuts to an actual width of 30" and to a depth a little in excess of 12 feet it being our 28" wheel. This machine is built to carry a larger wheel so that when necessary any size wheel up to 54" can be purchased for this machine. The machine, of course, is equipped with a more powerful traction than is out 24" of same tj?pe, it being a much heavier machine is capable of pulling a much heavier load, when used as a road locomotive. All worn parts having been replaced on this machine, it is guaranteed in every way same as a new machine. This machine is priced new at $6,500.00. We will make you a price of $5,000.00 f. o. b. cars factory. Machine in ordinary earth and at depth you describe should open up an average of 1,200 feet a day. If this machine will answer your requirements, we will advise that you wire us immediately upon receipt of this latter. We will not quote it to other parties within the next few days so as to give you time to secure it. The machine is built for hard and continuous service and is first-class in every particular, and from the fact that we can make extremely early delivery on this machine it would appear to us that it is an opportunity you should not miss. Trustr ing that you may see the matter in the same light as ourselves and awaiting your reply by wire or otherwise, we are very truly yours, The Yan Burén, Heck & Marvin Co., by C. J. Yan Burén, Pres. Diet. CJY/F.”</p> <p>Said contract is in part as follows:</p> <p>“Ditcher to be constructed and warranted to in compliance with letter of Aug. 27th to J. 0. Severns of Guthrie, O. T., and letter of Jno. R. Hale, of Lawton, O. T., of Sept. 7th, 1904. Final settlement to be made on acceptance of machine.</p> <p>“Warranty.</p> <p>“The machinery furnished under the above order shall be made of good material, well .constructed, and with proper use and management will do more and better work than any machine of its class. If inside of six days from the day of its first use it shall fail in any respect to fill this warranty, written notice shall be given immediately by the purchaser to the' Yan Burén, Heck & Marvin Co., at its home office, Findlay, Ohio, by registered letter,‘ and written notice also to the local or general agent through which the same was received, stating particularly what parts and wherein it fails to fill the warranty, and a reasonable time allowed the company to get to the machine with skilled workmen and remedy the, defects, if any there be (if it-be of such a nature that a remedy cannot be suggested by letter), the purchaser to render all necessary and friendly assistance and co-operation in making the machinery a particular success, and providing opportunity for a fair test or trial of the machine by the company’s experts. If a mechanical expert visits the machine for the company and does not leave it working properly, the purchaser shall give immediate notice in writing or by prepaid telegram to the company at its home office, and to the local or general agent, and state in writing specifically any failure or neglect complained of, and allow time for another expert to be sent and see the machine. If any part of the machinery cannot be made to fill the warranty, that part which fails shall be returned immediately by the undersigned to the place where it was received, with the option in the company whether to /furnish another machine or part, in place of the machine or part so returned, which shall perform- the work or return the money and notes which shall have been given for the same and thereby rescind the contract pro tanto or in whole as the ease may be, and be released from any further liability whatever herein. . :</p> <p>“If any metallic piece breaks during the first season by reason of a flaw therein, the company will furnish a new piece in its place, free on board the cars at its factory, upon such broken piece being returned to the company promptly if it appears thereby to the satisfaction of the company that the break was caused by the flaw.</p> <p>“Failure to pay for the machine in the manner above provided, or failure to give any of the notices in writing as provided herein, or failure to render friendly assistance and co-operation, or keeping the machinery after the six days allowed as above provided, or any abuse, misuse, unnecessary exposure or waste committed or suffered by the purchaser, shall be a waiver of the warranty and a full release of the warrantor without in any way affecting the liability of the purchaser for the price of the machinery or notes given therefor.</p> <p>“Notice: All agreements appertaining to this order (except the mere acceptance thereof at the home office) are included in the above.</p> <p>“The above warranty is the form furnished by the Van Burén, Heck & Marvin Co., and is the only form of warranty made or authorized by it to be given on any of the above named machinery. Local agents and salesmen have no general agency powers, and are authorized only to make sales in accordance with special in-.struetions and upon the forms furnished, by the company. Mechanical experts are not agents and have no authority to bind the company by any contract or statement whatever or to vary any terms or waive any conditions of any contract except they bear written order from the manager. This order is subject to the acceptance and approval of the said company at its home office, and ■when so approved and accepted is a binding contract which no person has authority to'modify or vary in any respect, or to waive any of its conditions except in writing approved by the management at the home office, and any attempt to otherwise change any of the terms or waive any of the conditions of the warranty will not be binding on the company; nor will any modification in the price, terms of payments or security in any way affect the warranty and its conditions. This form of contract is furnished in duplicate; see that you have a copy of it and keep it for reference. Formal notice of acceptance or rejection of this order is hereby-waived. This machine is to remain the property of the Van Bu-rén, ITeck & Marvin Co., until settled for. No verbal promise or agreement shall be valid as against or in addition to any- of the conditions herein specified.”</p> <p>The other defendant, G., AY. Broe, answered, denying each and every allegation in plaintiff’s petition, and further averred that in signing the notes declared on it was as surety for the principal, John R. Hale, and that, if he is liable at all on said notes, it is only as such surety. The proof offered on the part of the defendants showed that a party by the name of Schon, as an expert and agent and representative of the plaintiff, came to Law-ton and superintended the installing and operation of the machine for 14 days; that, before the agent left, discovery was made by the defendant Hale that there was something wrong with said machine, this being two or three days before the six days had expired and before Schon left, there being cracks in the digging rim or digging wheel, there appearing to be holes drilled in this rim, and it apparently having been used before; that the defendant Hale spoke to Schon about it, and said he would notify the home office in accordance with the contract, but that Schon said that it was not necessary, that he was agent of the company-, and that notice to him was sufficient.</p> <p>Counsel for defendants filed with the court a w-ritten tender of testimony, covering the answers to the questions objected to and other proof which they desire to offer; the body of said offer being as follows:</p> <p>“And now comes the defendant John R. Hale, and here makes the following offer and tender of proof by witnesses now personally present in the courtroom, and who have been duly sworn and are ready to testify — that is to say, John R. Hale, Geo. AY. Broe, T. AY. Montgomery, Bert Reed, Tom Wilson, Charles Turner, and T. L. Lowendusky — together with the deposition of the witness Schon now on file, the following state of facts, to wit: That defendant offers to show by the deposition of the witness Schon that he took the.notes in controversy, made allowance for the certain pieces of the ditcher in question, and that he made report of his doings in each particular to the plaintiff company, and his acts were approved and ratified by the plaintiff, and that in a territory where there was no salesman he had had the powers of a general agent of the company, and that within the particular territory in which the sale in this case and covered by the warranty herein was made there was no local or general agent, of plaintiff. 1</p> <p>“Said defendant offers to prove by the defendant John R. Hale, now on the stand as a witness, that the ditcher mentioned and described in the warranty herein was shipped from the factory and arrived at the city of Lawton about October 20, 1904. That said machine was unloaded and set up by the agent of the company, whose name was Schon, the proof of whose authority has heretofore been tendered. That Schon operated said machine for about eight working days, covering a period of about two weeks, and in said time cut a small amount of ditch for the waterworks system in the city of Lawton on F street therein, after which said machine was moved by said Schon to the place provided for sewer outlet on Cache creek, about one mile from the southeast corner of the city of Lawton. That after said ditching machine had been run by said Schon upon said waterworks trench, which was shallow digging not to exceed four feet in light dirt, and within six days after the first use of said machine, and while under the management and direction of said Schon, the said ditch-er was taken to the aforesaid sewer outlet on Cache creek, and there put to work in loose, sandy'soil, to its full cutting depth, practically 12 feet. That before said machine had been run by said Schon 100 feet, the same broke one of the principal sprocket wheels in two across the entire wheel, and through tlie hub thereof, and that said machine was prevented from being operated during a time when said sprocket wheel was being repaired, which consumed about 1% days’ time. That after the repair of said sprocket wheel, and before said machine had cut to exceed 400 feet in the dirt as described and of the character aforesaid, viz., light and sandy soil, there was a second breakage in said machinery, in this: that the travelers or trolley wheels, which held the digging wheel in place, became entangled and broken, and as a result thereof the buckets and bucket brackets were tore loose and the rivets therein broken, requiring a further delay of something like two days in which to repair the same, each of said breaks herein referred to being within six days after the first use of said machine. That, after said repair of said breaks occasioned by the displacement and breakage of the travelers as aforesaid, said ditcher was used to cut about 400 feet west of said sewer outlet to about the southeast corner of the said city of Lawton without further breakage, except that on every night the rivets in the cutting rim of the digging wheel, numbering something over 1,000, of various sizes, were tightened and riveted under the direction of the aforesaid Schon during the entire time that said machine was operated under his direction as aforesaid. That at about said time and after said machine had been used about eight working days, said Schon, as agent of said plaintiff company, came to the said John R. Hale, exhibiting to him a telegraphic message, and stated, in substance, that he was required to leave said machine, and desired to take the notes of the defendants herein for the same before leaving, and asked said John R. Hale if he was satisfied with said machine; that said Hale responded to said Schon by saying that he was not at that time familiar with that particular kind of machine, and asked said Schon if the same in his judgment as an expert was all right and in perfect condition, to which said Schon replied that said machine was then all right in every particular, and that same would fully comply with the warranty, and would do the work then before the said John R. Hale under this contract all right. That two or three days before the date of said Schon’s departure said John R. Hale called the attention of said Schon to several cracks in the cutting rim of said wheel, some six or eight in number, which were over the inner edge of said rim, about three-eighths of an inch, to holes which had been bored therein for rivets, and said Schon informed said Hale that said cracks were insignificant, and would not in any manner in his judgment as an expert affect the stability of the wheel. That each of said breaks, which the said Schon assured said John R. Hale would amount to nothing, continued across the entire place, forming the cutting rim of the digging wheel in each of said places where said cracks then were, and that said cracks became apparent and noticeable within two days after the departure of said Schon. That on the occasion and during all the time that s'aid Schon was in charge of said machine the same broke down as aforesaid, and in many particulars did not perform the work required of it by the terms of the warranty, which fact this defendant called to the attention of said Schon, but that said Schon assured said defendant by stating to him that the plaintiff would make said machine perform the entire work which was required of it under the terms of the warranty and the letter to this defendant and the letter to J. O. Sev-eras mentioned in said warranty, and but for said assurances neither the said John R. Hale nor said defendant George W. Broe would have signed the notes herein. Tirat said defendant offers to show by the said John R. Hale that said ditcher was at all times after the departure of said Schon operated by thoroughly competent engineers and machinists and the parties whom Schon stated to Hale were then fully competent to operate, care for, and manage said ditcher in its said work.</p> <p>“That said defendant further offers to prove by said John R. Hale that within six days after the first use of said machine, and after the same had been broken as heretofore set out, the said Hale, in the presence of said Schon, directed the said George W. Broe to give written notice to the company, under the warranty, that said machinery was defective and' broken down, and would not be accepted by him, and the said Schon, in the presence of this defendant said to this defendant and to said Geo W. Broe that it would be unnecessary to give any notice to said company under said warranty, for the reason that he was fully authorized to adjust all matters with reference to said machinery, and to care for the same, and that he himself stood in the place of the company, and that said Schon told both of said defendants that it was unnecessary for them to give any other or further notice under the terms of said warranty. That at the time the said Schon was requesting these defendants to execute the notes in controversy in the presence of each of them the said Schon accompanied said John R. Hale to the store of the said George W. Broe in the city of Lawton, and said Schon, in substance, there stated that he desired to take the notes of said Broe and Hale, and asked said Broe what about signing the same at that time. That said Broe on said occasion asked said Schon if said machine would comply with the requirements and promises made for the same in the Hale letter of September 7, 1904, and the Severns letter of August 27, 1904, and cut 1,200 feet of ditch as stated in said letters, and run continuously six days in the week, and that, if said machine would fulfill all these conditions, he would not be ’afraid to sign the notes, but that, if the machine was going to break down as it ha'd done on the run from. Cache creek to the city limits, he did not want to sign them at all. That said Schon then stated that said machine was in perféct repair, and with the help which said Hale had about said machine Hale would be able to operate the same without difficulty, and continuously as required by the warranty; that notwithstanding the careful and skillful operation of said ditcher by careful and skillful mechanics, to wit, T. W. Montgomery, Orville Smith, and others experienced in handling machinery, the said ditcher within two days after the departure of said Schon, on or about the 19th day of November, -1904, became broken in the rims of the digging wheel to such an extent that the same — said- rim — was absolutely worthless and beyond hope of repair, and that said breakage came because of the inferior quality of the material used in said cutting rim, and the improper, irpperfect, and faulty - construction of said machine. That for three or four days thereafter said Hale, tos-efher -with Montgomery, Orville Smith, and other mechanics, endeavored to. make repairs on said cutting rim, which efforts were without success, and that thereupon the said Hale notified the plaintiff herein of the breakage of -said rim, and-at the same time requested the replacement thereof, and the sending of some man expert with said machinery who could place the said machine in. first class shape. That said defendant has not said original letter, but has demanded the production thereof by said plaintiff herein, .and the same has not up to this time been produced on the trial hereof. That in response to. said letter said John R. Hale received .from said plaintiff in the usual course of Hnited ^States mail a letter under, date of December 5, 1904, as follows:</p> <p>“‘We have.-your letter of November 30th, and in answer will say that we are v.ery much surprised at this rim breaking in your wheel. This is something that we cannot understand, as- this same wheel cut 6,000 feet of shale rock 9 feet deep, and we are at a loss to know why it does not stand the strain of your work. However, as it is broken, we will make you a set of rims,out of. %" x'" and- send them to you at the earliest possible date. We have none of this material on hand and we will have to, order it from the mill, which we have already done. This will necessarily take some lit tie time and we would advise you to have your wheel patched the best you can, as it will probably do your work. In regard to sending you a man, will say that it will be impossible for us to send you one of our best men for a week or ten days, and we would not want to send a man who could not fix your machine in first class shape. Our Mr. Schon is now in Iowa and eánnot leave there until the above time, and if you still- think it necessary for a man to come at that time we will have him go back to you. ' The steel No. l’s made as per your order are on the road by express and we trust you may be able to get your wheel fixed so that you can go ahead with your work, as it will take at least 10 days, or probably two weeks, to get this rim material from the mill and then we will have to make it up and ship to you. In changing the wheel from %" to %" rims it will necessitate shortening the bucket backs 14" on each end and which we believe will be easier done than to stretch the bucket tops one-inch. However, if you think the latter is easier done it will work either way.5</p> <p>“That after the receipt of said letter of December 5th by said John R. Hale he telegraphed said plaintiff herein prior to the 13th day of December, 1904, asking in substance for the cause of delay in furnishing said rim, and that on the 13th day of December, 1904, the plaintiff wired the said defendant John-R. Hale: ‘Are expecting material in a few days. Will do our best.’ That, in further response to said telegram, said John R. Hale received from said plaintiff company a letter, which is as follows:</p> <p>“ ‘We have Amur telegram of last evening and answered it “Are expecting material in a few days; will do our best.” We are indeed sorry about the rims of your machine breaking. While, it is something hard for us to understand, we will not hesitate in the least to furnish you new rims for the wheel just as quick as we can get hold of the material to make them, but as we wrote you in our former letter it will take some few days to get this material from the mill, as it was heavier than anything we have ever used. We ordered the material upon the receipt of your first telegram and are now expecting it within a few days. We will lose no time in making you these rims and forwarding them to you. Regretting your trouble and promising you everything possible to help you out, we are/ etc.</p> <p>. “That thereafter, and between the 13th day of December, 1904, and the 22d day of December, 1904, the said John R. Hale again sent a telegram to said plaintiff with reference to said material for said cutting rim, and that in response thereto said Hale received from said plaintiff by due course of United States mail the following letter:</p> <p>“ Tn answer to your telegram will say that we have been trying in every way possible to get the material here to' malee your rims, and we expected sure to hear from it yesterday, but as yet it has not shown' up. We will keep after it every day until it arrives and will forward it to you without delay/</p> <p>“That affiant has not the original telegram nor the -copy thereof to said plaintiff, and said Hale is informed that it is the rale of the Western Union Telegraph Company, with whom the original message was deposited, to preserve the original of messages six months after their date, and then destroy the same, and that said John R. Hale has demanded in writing herein the production of the copy thereof by plaintiff herein, and up to this time the same has not been produced. That on the 29th dav of December, 1904, he received a further message from said plaintiff, dated at Eindlay, Ohio, on said date, as follows: 'Expect material tomorrow will work day and night for you/ That some time during the months of January, 1905, the exact date the said Hale cannot state, in response to the notice which the said John R. Hale had theretofore given, the said Van Burén, Heck & Marvin Company, in pursuance of their written promise so to do, again sent the said Schon to replace said cutting rim heretofore referred to and to make further repairs upon said ditcher, which had been broken, and that at said time the said defendant Hale did in every way render the agent of the said plaintiff all necessary friendly assistance to make said machine do the work which was required of it by the terms' of said warranty, and that at said time said Schon worked upon said machine for the period of three weeks or more the said Hale páid all the blacksmith and other bills and the cost of all help and labor in rendering the necessary assistance to said Schon in endeavoring to make said machine perform its work. That almost immediately after the said Schon left said machine the second time the sprocket shaft which propelled the digging wheel, and without which said machine could not be operated at all,, by reason of the defects in the material thereof also became broken, and as a matter of fact said shaft was at least one-half inch less in diameter than the sprocket wheel and the other connections thereon were made for; in other words, that said sprocket wheel and the other connections to have a shaft which would fit them would require a shaft at least one-half inch greater in diameter than the one that became broken, and that without said larger shaft the machine was in that regard defectively constructed. That the said plaintiff did in fact furnish a complete new rim for the said wheel upon which defendant was compelled to pay express to the amount of $120. That never at any' tipie during the time of the operation of said machinery was the dig; ging wheel of said ditcher steady or rigid as the same should have been had said machine been properly constructed, and that the same was not so steady and rigid as required by the terms of the warranty set out in the letters to Severns and Hale for the reason that the same was not heavily and thoroughly braced throughout as required by the terms of the letter of said plaintiff to said Severns dated August 27, 1904, and forming a part of the special warranty of said machinery, and that in consequence of said machine, and especially the cutting and digging wheel thereof, with which all the digging and cutting was done, not being thoroughly braced, that the plates composing the sides of the cutting rim would become loosened at different places, and it was almost impossible during any of the time that said machine was in operation to keep the same from cutting.the rivets which were provided to hold said rim in place, but that said rivets would become broken or loosened to such an extent as to require about three hours’ labor of all the mechanics who could conveniently work upon said wheel to replace and tighten said rivets to every hour which said machine would work in cutting ditch, the purpose for which the same was purchased.</p> <p>"That some time, and about one month or near that period of time, after the second visit of said Schon to said machine-, the said Schon again visited the same at Lawton, and had further conversation with reference thereto with the said defendant Hale, and that on said occasion the condition of said machine was further called to the attention of said Schon, and he at said time made suggestions with reference to the further repair thereof in attempting to make the same perform the conditions ¿of the warranty, which suggestions the said Hale endeavored to carry out. That said plaintiff was advised by letter, and its agent, Schon, was also advised by being taken in person over the ground where the defendant Hale was required to cut sewer ditch by his contract, and knew the character of the ground through which the machine would be required to cut in order to allow said Hale to perform his subcontract with the said J. 0. Severns, government contractor, for the sewer system of the city of Lawton. That at all times from the very first of the operations of said machine down to the time that its use was entirely dispensed with said machine was operated by thoroughly competent men, experienced in the operation and handling of such machinery, and during the last six months when it was attempted to operate the same its handling was entirely under the direction of one SchwaTtz, who was recommended to the said Hale by said Schon, and by the plaintiff herein, as a man coming from the factory of said plaintiff, and thoroughly familiar with the operation of such machines erected by them. That said Hale in the course of his attempts to operate the said ditcher expended in money and contracted debts for which he is liable for labor and materials in and about the repairing of said machine to more than the sum of $4,500, and that the greater portion thereof was for iron, steel, and transportation thereof to the city of Lawton, and the expenses of blacksmiths and other skilled mechanics .in making such repairs, and that this defendant, during the greater portion of said time that he was attempting to use said ditcher, did himself personally, and which he has not taken into account, work late into the night, nearly always as late as midnight, and often later, in attempting to. make said machine do its work and repair the same so that he could keep the same in operation during the working hours of the day. That in truth and in fact said machine never did and never would continuously run for the period of six days at any time, nor did the same ever run as much as six hours continuously without repair, with the most careful and skillful handling. That if said machine had been as represented and warranted in the printed warranty herein, and the special warranty contained in the letters of August 27, 1904, to J. 0. Severns, and the letter of September 7, 1904, to the said John E. Hale, said machine would have been well worth the sum of $5,000, which this defendant agreed to pay for the same, but that in truth and in fact said machine was wholly and entirely valueless for the purposes for which it was sold, and did not in any respect fulfill the warranty and special warranties with reference thereto, and that the same is not worth to exceed the sum of $500 for any purpose, and that only for the value which it may possess as scrap-iron and junk, and said defendant furthermore offers to prove that said machine did not fulfill either of the special warranties in letter of August 27, 1904, to J. O. Severns, and letter of September 7, 1904, to J. R. Hale, by the witnesses heretofore named and sworn in this cause.</p> <p>"To corroborate each and all of the foregoing facts as to the poor material used in the construction of the ditcher and the poor way in which the same was constructed and its unfitness to do the work as provided for under the warranty, and that it utterly failed to do the work, the following witnesses who worked on and about the machine, and are familiar with all the facts, are tendered: T. W. Montgomery, J. W. Good, Bert Réed, Chas. Turner, T. L. Lowendusky, - Vilmont, and --- Mitch. And to substantiate and corroborate each and all of the foregoing and above facts, in so far as they relate to the imparting of notices to the agent Sehon, both within the six days period and after that, the following witnesses are tendered for said purpose, to wit: George W. Broe and T. W. Montgomery. As to the value of said ditcher at the times mentioned the name of T. W. Montgomery is hereby tendered as a witness to corroborate and substantiate such' facts as hereinbefore, set out.”</p> <p>The court held that the proof tendered was not sufficient to discharge the conditions contained in the warranty, or to permit the plaintiffs in error to avail themselves of the benefits of the warranties; plaintiff objecting to all of the testimony offered on the ground that it was incompetent, irrelevant, and immaterial, and because under the pleadings the proof was inadmissible to show any fraud on the part of the company or its agents, which objection was sustained. The defendants duly excepted on the ground that the testimony offered showed that there was a breach of the two special warranties contained in the letter of August 27, 1904, to J. O. Severns, and in the letter of September 7, 1904, to the defendant Hale, and that the notices which the court held were necessary to be given, and for the want of which the court held that the terms of the warranty were not complied with, have no reference to. either of said special warranties. The defendants further objected and excepted to the ruling of the court generally. The court thereupon discharged the jury over the objection and exception of the defendants, and held that the tender of the testimony. was insufficient to overcome the requirements of the warranty in question, and the same was excluded on motion,*to which the defendants excepted.</p> <p>S. C. Schon testified as follows:</p> <p>“Q. When you were in that territory out there, you were the agent of the company? You were their representative out there, were you? A. Yes, sir. Q. Was there any other representative there, where you were? You acted as agent of the company, didn’t you ? A. When I was in territory where there was no agent, I did, in making settlement, but, if there, was an agent, he came and did the settling. Q. In this case we speak of there was no representative? A No; I had my instructions from the company to settle that. Q. When they notified you when you were at this experimental college to come down and fix the machine, did you notify the company (this was after he had first set up the ditch-er) ? A. No; I wrote back, and told these fellows I was working' for the Yan Burén, Ileck & Marvin Company, and I would receive my instructions from them. Q. After you had instructions from the company, then you went out ? A. Yes; they had to make these rims, and after they were made I went out (this was his second trip). Q. When you were fixing the machine, did you require any assistance? A. Yes, sir. Q. And did Mr. Hale or Mr. Sev-eras or Mr. Broe help you, or did their assistants help you? A. Yes, sir. Q. They rendered all friendly assistance necessary to help you, did they? ,A. Yes, sir. Q. Now, when you made this settlement at the hardware store that you speak of, I would like to have you tell exactly how that settlement was made, if it was a settlement? A. I told Hale in the afternoon I would have to insist on a settlement. Q. At that time, in' addition to being their representative, you were their mechanical expert? A. In places where I was sent where there was no representative I would make their settlements. Q. And also do the mechanical work? A. Yes, sir. Q. As such agent you made this settlement of the company? A. Yes, sir. Q. Just tell what took place at this meeting — at this hardware store ? A. After this conversation he wanted me to make allowance for the conveyor, and there was not two sets of rooters. I couldn’t deny that. Then he wanted me to stand the express on one wheel and a little blacksmith bill. Well, I told them providing they would give me a little cash expense money out of it so that I could get to the next place without waiting to hear from the company I would make the allowance, and they said they would do that, and take this reduction out of the written contract. They gave me a check and drew the notes, and Hale signed them, and then Broe signed them, and then the next morning Mr. Hale went with me to the bank to get the money. Q. How. much was that? A. I think it was $100. Out of that I had to pay some little bills there. Q. And the balance was divided into three notes as near as you could make them? A. Yes, sir. Q. Was that all the papers exchanged at that time? No bill of sale or anything of that kind? Did you receipt for the $100? A. I think that was receipted on the bill. Q. You gave them credit for this $100 on those three notes, and that was all there was of the transaction ? A. Yes, sir. Q. When w:as it you started the machine. A. Started to dig with it? Q. Yes, sir. A. I think it was along the fore part of November. Q. Now, Mr. Schon, you were not the agent of the Van Burén, Heck & Marvin Company for the territory of Oklahoma or around Lawton, were you? A. No; not for the territory. Q. You were not agent for any territory? A. No; only I did settlings sometimes. Q. Had you any authority to make any representations or any settlements outside of the written instructions you got from the office? A. No, sir; I had not. Q. Did you make any such representations? A. No, sir; I did not. Q. I will ask you, Mr. Schon, if you were authorized by the. company to receive any notices or any notice of defects or breakages in machines that you were experting for the company, if you were authorized to accent notice of defects or breaks? A. Yes; from customers. If they seen any defects, they always told me to make it right. Q. What I had reference to is after you had exported it and got away from there. Were you authorized to receive these notices? A. No, sir. Q. Did you'receive any notice by registered mail from Hale or Broe or Severns with reference to this Lawton machine. A. I got a letter, but I don’t know whether it was registered while I was up at Ames. ■ I don’t think it was registered or by special delivery. Q. How long after you1 left Lawton when you got.that letter ? A. Probably four or five days. Q. What did you do about it? A. I wrote back, and told them I was working for the Van Burén, Heck & Marvin Company, and was getting my instructions from them. Q. What was the nature of that letter? What were they after. A. Well, part of it was business, and part of it was a sociable letter. They said they were having trouble with the wheel, and I had better come down and fix it. Q. Did they state what the trouble was? A. No, sir; they did not. Q. Could you state what the trouble was? A. No; I could not, because it was not described so a man could tell. They said they were having trouble. There are many ways it could get out of order. Q. Did jyou know from that letter written to you at Ames, Iowa, by Mr. Hale, what the trouble was with the machine? A. No. Q. You said you had authority to make settlings similar to this? A. Yes: when they give me instructions. When there was no agent in the territory, they would ask me to make these settlements. Q. Was there any agent in this territory? A. Not .that I know of. Q. And you had authority to make right defects up to the time you left? A. Yes, sir. Q. And, when you received this letter from them at Ames — you say after you left you received a letter at Ames- — when you received that letter as I understand, you say they wrote they were having trouble with the wheel — is that the way you put it? A. Yes, sir. Q. This authority that they gave you to do this agent work when there were no agents in the territory, was that given to you verbally? A. Several places I had written authority to settle for the machine, telling them I was authorized to settle for the machine. It was to introduce me, and gave me authority to settle with them.”</p> <p>Witness testified that also in the latter part or middle of March he was back at Lawton, and was then still in the employ of the defendant in error.</p> <p>citing: Baker v.- Nichols Shepard Go. (Okla.) 65 Pac. 102; Aultman-Taylor Go. v. Frazier (Kan.) 47 Pac. 157; Harrison et al. v. Russell & Go. (Idaho) 87 Pac. 784; Avery Planter Go. v. Risg, 56 111. App. 599; Huber Mfg. Co. v. Busey, 16 Ind. App. 410; Briggs v. M. Rumely Go., 96 Iowa, 202; Lindsey v. Frische (Wis.) 109 N. W. 945.</p> <p>citing: Aultman-Taylor Co. v. Gunderson (S. Dak.) 55 Am. St. Kep. 837; Scott v. Geiser Mfg. Go., (Kan.) 80 Pae. 955; E. T. Burrows Go. v. Rapid Safety Filter Go., 97 N. Y. Supp. 1048; Main Go. v. Griffin Bynum Go. (N. C.) 53 S. E. 727; Northern, etc-., Go. v. Goal Go., 116 Wis. 130; Davis v. Case T. M. Go. (Ky.) 80 S. -W. 1145; Murphy v. Russell (Idaho) 67 Pac. 421; Baird Bros. v. Walter Pratt & Go. (Ind. i'.) 89 S. W. 648; Furneaux v. Esterly (Kan.) 13 Pac. 824; Gase T. M. Go. v. Ebbinjyhausen, 11 N. D. 466; Massillon E. & T. Go. v. ScMrmer (Tova) 93 N. W. 599; Pa. I. W. Go. v. Hy-gian, etc.. Go. (M.’ass.) 70 N. .E. 427; Shearer v. Garr, etc., Go. (Tex. Civ. App.) 90 S. W. 684; Acme Harvester Go. v.^Erne (Kan.) 66 Pae. 1004; International Harvester Go. v. Dillon (Ga.) 55 S. E. 1034.</p>

<p>1. INSURANCE — Notes Given for Premiums — Actions—Set-Off. E. executed to V. & O., general agents of an insurance company, his promissory note in payment of the premium advanced and paid by V. & O. to the insurance company on a policy of insurance, whereby the insurance company indemnified E. against loss from hail to a crop of wheat. The note contained a mortgage whereby E. mortgaged to V. & O. said crop of wheat to secure the payment of the note. The note recited that it was given in payment of the premium on the. policy of insurance and the mortgage provisions of the note contained the following clause: “In ease of loss under the. above named policy of insurance, the debt hereby secured shall at once become due and shall be deducted from said loss.” Held, that said clause created a lien oh any sum that might become due under the policy by the insurance company to the insured in favor of V. & O. to secure the payment of the note, but that V. & O. did not thereby contract to pay any loss, not exceeding the amount of the note, that might occur under the policy before the payment of the note, and that such clause did not confer upon the maker of the note in an action thereon by V. & O. the right to set off any claim against the insurance company he had under the policy by reason of damage by hail to the crop insured.</p> <p>2. SET-OFF AND COUNTERCLAIM — Privity of Parties. There must be privity of parties in order to enable a defendant to plead and prove a set-off, and defendant cannot plead and prove a set-off in favor of himself and against one who is not a party to the suit.</p> <p>(Syllabus by the Court.)</p>

<p>1. TRIAL — Directing Verdict — Procedure. The question presented to a trial court on a motion to direct a verdict or which presents itself in the consideration of such action on its own motion is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury And in accordance therewith. Where the evidence is conflicting and the court ,is asked or on its own motion considers the direction of a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such action is leveled.</p> <p>2. ESTOPPEL — Pleading. An estoppel must be pleaded in order to enable a party to avail himself of it on the trial, and must be pleaded with particularity in order to constitute either a cause of action or defense. No intendments are indulged in favor of such plea, <but it is incumbent upon the party pleading to aver all the facts essential to its existence.</p> <p>3. VENDOR AND PURCHASER — Notice—Records—Destruction. Where a deed has been once recorded, a subsequent burning or other destruction of the records will not render the same ineffectual as notice to subsequent purchasers.</p> <p>4. VENDOR AND PU RCHASER — “Actual Notice.” The words “actual notice” do not always mean in law what in metaphysical strictness they import. They more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.</p> <p>5. VENDOR AND PURCHASER — Bona Fide Purchaser — Notice. One who purchases land with knowledge of such facts as would put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith if he neglects to make such inquiry, and is chargeable with the “actual notice” he would have received.</p> <p>(Syllabus by the Court.)</p>

<p>1. LIMITATION OF ACTIONS — ¡-Statutes—Construction. In construing a statute of limitations, it must, so far as it affects rights of action in existence when the statute is passed, be held in the absence of a contrary provision, to begin when the cause of action is first subjected to its operation.</p> <p>2. ATTORNEY AND CLIENT — Disbarment—Authority to Disbar. Section 33 of the schedule to the Constitution which provides thai all attorneys at law, licensed to practice in any court of record of the territory of Oklahoma, or in any of the United States courts for the Indian Territory, or any court of record of any of the Five ’ Civilized Tribes, shall be eligible to practice in any court of the state without examination, does not preclude this court from inquiring into the moral qualifications, or to disbar those who fall within its terms, and who claim the rights conferred thereunder, when the contingency arises requiring the •exercise of such power.</p> <p>3. ATTORNEY AND CLIENT — Disbarment—Grounds—Fraud' Upon Court. An attorney at law who had been disbarred in a .sister state for fraud and deceit, and who within'a short time thereafter moved, to the Indian Territory and was admitted to practice in the courts of that territory, and on such admission had himself enrolled in this court without disclosing such previous disbarment, is thereby guilty of practicing such fraud and deceit as to require his disbarment, when the same is properly brought to the notice of this court.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Logan County; A. H. Huston, Judge. Action by G. D. Thompson and others against C. N. Haskell, Governor. Judgment for defendant, and plaintiffs bring error.

In an action between J. A. Bohart and others and Margaret Anderson a controversy arose between Thomas J. O’Neill, counsel for plaintiffs in error, and W. II. L. Campbell, the clerk of the Supreme Court, as to whether the clerk was entitled to demand his fees for filing papers when offered and on refusal to pay the same decline to render the service. Finding for the clerk.

<p>1. ASSIGNMENTS — Rights of Action — For Tort. A cause of action in favor of the owner of personalty, on account of the wrongful destruction of such property by fire, against the wrongdoer, is not assignable.</p> <p>2. ASSIGNMENTS — Rights of Action — Conversion of Personalty. A cause of action in favor of the owner of personalty, against a party wrongfully taking and converting the same to his use, is assignable.</p> <p>3. INSURANCE — Subrogation—Actions—Parties. Where an insurance company pays to the assured a loss occasioned by the wrong of a third party, and the value of the property destroyed by the fire exceeds the amount paid by the insurance company, the assured may bring an action in his own name against the wrongdoer, and recover the full amount of the loss.</p> <p>4. ACTION — Liability—Divisibility. An action for a tort, or based upon a wrongful act, is single and indivisible, and gives rise to but one liability.</p> <p>5. APPEAL AND ERROR — Presentation and Reservation of Grounds of Review — Questions Not Presented Below. The question of misjoinder of parties, or of causes of action, or of defect of parties, must be properly taken advantage of in apt time in the trial court, or the same will -be treated as waived in the Supreme Court.</p> <p>(Syllabus by the Court.)</p>

<p>1. RAILROADS — Injuries to Persons at Stations — Implied Invitation. One passing along a recognized way leading from a public street over the station grounds of a railroad company to its station platform, for the purpose of mailing a letter on one of defendant’s trains, is there by implied invitation of defendant.</p> <p>2. SAME — Persons Mailing Letters on Trains. It is the duty of a railroad company which carries mail under contract with the United States, and by whose regulation postal clérks on mail trains are required to receive mail matter on the mail car while stopping at stations along its route, to use reasonable care to keep in a reasonably safe condition a recognized way over its grounds to its station platform, and a failure so to do, resulting in personal injury to one passing along said way for the purpose of mailing a letter on one of defendant’s mail trains upon its arrival, is actionable negligence.</p> <p>(Syllabus by the Court.)</p>

Appeal from the United States, Court for the Western District of the Indian Territory; William R. Lawrence, Judge. Action by Eiley Brothers against the Muskogee Crystal Ice Company. Judgment for plaintiffs, and defendant brings error.

<p>BUILDING AND LOAN ASSOCIATIONS — Application—Withdrawal-Sufficiency. In a case where a written application for stock is made to a building and loan association, with the understanding and agreement that such stock is not to be issued or the money advanced to cover assessments and dues appropriated, unless a loan is granted in accordance with such application and correspondence conducted by such applicant direct with the association the verbal withdrawal or rescission of such application to the secretary of a local board of such association who is without authority in the premises, and which is not shown to have been pommunicated to his principal, is not sufficient to effect a rescis.sion and entitle applicant to a return of the funds advanced and earned after allowance in accordance with the terms of the application.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court. Washingion County; T. L. Brown, Judge. </p> <p>Action by Curtis E. Holderman against P. D. McConnell. Judgment for plaintiff, and defendant brings error.</p> <p>citing: Mechem on Agency, §§ 556, 558.</p> <p>citing: Reinhard on Agency, §§ 303, 304, 305; Mechem on Agency, §§ 557, 558; Thompson on Trial, §§ 2401-2406. .</p>

<p>1. FRAUDS, STATUTE OF — Lease Beginning in Future — Validity, ■Section 2305, Ind. T. Ann. St. 1899 (Mansf. Dig. Ark. sec. 3371) provides that: “No action shall be brought * * * Fifth. vTo charge any person upon any lease of lands * * * for a longer term than one year. Sixth. To charge any person upon any contract,-promise or agreement that is not to be performed within one year from the making thereof, unless * * * in writing," etc. Held, that subdivision 6 applies' to contracts other than those relating to land only, since otherwise subdivision 5 was unnecessary.</p> <p>2. SAME. Under section 2305, Ind. T. Ann. St. 1899 (Mansf. Dig. Ark. sec. 3371), subd. 5, providing that no action shall be brought on a parol lease of lands exceeding a year, a parol lease for one year to commence in the future is valid.</p> <p>3. CONTRACTS — What Law Governs — Effect of Statehood. A contract made in the Indian Territory prior to the admission of Oklahoma as a state, valid at the time and place where made, will not be affected by the change in the form of government] incident to Oklahoma becoming a state.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Craig County; T. L. Brown, Judge. Action by the First National Bank of Pryor Creek against the Farmers’- National Bank of Yinita. Judgment for plaintiff, and defendant brings error.

Okla. T. Error from District Court, Kingfisher County; C. F. Irwin, Judge. Action by tbe People’s National Bank and others against the Board of County Commissioners of Kingfisher County and others. A. J. Seay intervened. Judgment for intervener, and plaintiff bank brings error.

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. In each civil cause filed in this court it is the duty of counsel for plaintiff in error, unless otherwise ordered by the court, to prepare, serve, and file briefs in the office of the clerk within 40 days; after filing the petition in error; and where this i§ not done, and a motion is filed bj’ counsel for defendant in error to dismiss the petition in error for and on account of this, and no motion or stipulation for extension of time is filed, and the time is not extended, the motion to dismiss will be sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Original proceeding to investigate charges of unprofessional conduct against J. B. Champion, an attorney at law.</p>

<p>Original proceedings for the disbarment of H. H. Brown and E. F. Turner.</p>

<p>COURTS — Costs—Taxation—Review—Method—Specification of Exces-siveness. In order to have this court revise the action of the lower court in taxing costs, same must be brought up for review by means of a bill of exceptions or a case-made</p> <p>(a) On motion originally filed in this court to' retax costs for printing the record, incurred whilst the case was pending in the United States Court of Appeals for the Indian Territory, under the rules of which court records were required to be printed, the cost thereof to be taxed as a part of the costs of the case, the movants having failed to specify wherein the cost for the printing of the record is excessive,- the motion will be denied.</p> <p>(Syllabus' bv the Court )</p>

Error from District Court, Caddo County; F. E. Gillette, Judge. Action by Ab Zahn against M. .Obert. Judgment for defendant, and plaintiff brings error. On ^he 16th day of September, 1904, there was begun before W. -W. Starkweather, a justice of the peace for the city of Ana-darko, Caddo county, Okla.

.Error from the United States Court for the Southern District of the Indian Territory at Ada; J. T. DicJcerson, Judge. ■ \ Action by the City of Ada against Harry Parks. Judgment for plaintiff, and defendant brings error.

Error from the United States Court for the Western District of the Indian Territory, at Muslcogeej William R. Lawrence, Judge. Action by Louisa Edwards against M. S. Jewell and another. Judgment for defendants, and plaintiff brings error.

Error from District Court, Caddo County; F. E. Gillette, Judge. Action by Jacob Weisbender, Frank Noll, John Smith, and the Stephenson-Browne Lumber Company against School District No. 6 of Caddo County. There was a judgment for all the plaintiffs, and plaintiffs Weisbender, Noll, and Smith bring- error.

<p>1. ACTION — Appeal and Error — 'Prosecution for Violation of Ordinance — Nature of Proceeding — Record—Recital—Conclusiveness. A prosecution for the violation of an ordinance of an incorporated town, under the laws in force in the Indian Territory prior to statehood, is a civil, and not a criminal, proceeding.</p> <p>la. The recital of the record on review in this court will control, over the statement of a motion on the part of the plaintiff in error, which was supported in the district court only by her affidavit.</p> <p>2. COURTS — Mayor’s Court — Appeal — Dismissal—Grounds. The affidavit for appeal appearing in the record never to have been sworn to beford any officer, nor to have been filed in the mayor’s court within the time required by law, held, that the district court on either ground .would be justified in dismissing the appeal.</p> <p>3. COURTS — Mayor’s Court — Appeal—Failure to Prosecute — Effect. The plaintiff in error, as appellant from the mayor’s court to the district court, having failed to lodge the transcript in the district court by the first day of next term after the judgment was rendered in said majmr’s court, further, said cause having been set for trial, the plaintiff in error having notice thereof, and it having been reached on due call of the docket for trial, the plaintiff in error not being present either in person or by attorne}', held, that the district court was justifiable in reaching the conclusion that s.aid plaintiff in error had failed to prosecute her appeal.</p> <p>3a. The plaintiff in error having failed to prosecute her appeal, it was at the option of the defendant in error either to proceed to trial on the appeal, or have judgment rendered for the amount of the original judgment and costs in its favor.</p> <p>4. APPEAL AND ERROR — Discretion of Intermediate Court — Setting Aside Dismissal of Appeal. A motion to set aside an order of the district court, dismissing an appeal on account of laches of the appellant, involves the exercise of a discretion by such court; and, where the record fails to affirmatively show an abuse thereof, the judgment of the lower court should not be disturbed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Custer County; James B. Tolbert, Judge. Action by E. C. Ballew against P. K. Young and another, in which action plaintiff caused an attachment to issue. W. I. Bran-non filed a plea of intervention, and moved to dismiss the attachment, which motion was sustained, and the action dismissed, and plaintiff brings error. This is an action commenced in the district court of Custer county, Oída.

Error from, District Court, Nowata County; T. L. Brown, Judge. Action by J. T. Thompson and another against P. H. Shan-holtzer.

Original proceeding by an agreed statement oí facts under Wilson’s Bev. & Ann. St. 1903, § 4717, by The Homesteaders for a writ of mandamus against T. J. McCombs, Insurance Commissioner.

Error from District Gourt, Kiowa County; F. E. Gillette, Judge. Action by T. H. McMurrough against the Hobart National Bank. Judgment for plaintiff, and defendant brings error. citing: Moose v. Goddard, 147 Mass. 287; Bhal v. Somerville, 50 Fed. 647; Zane on Banks and Banking, p. 187, § 117, and authorities cited; St. L. & S. F. By. Go. v. Johnson, 133 U. 8. 566; Beale v. City of Somerville, 1 C. C. A. 598; In re Stale Bank (Mich.) 57 N. W. 336; 5 Cyc. 493; First Nat.

<p>1. INSURANCE — Life Insurance — “Serious Illness.” The term “serious illness,” as used in an application for a life insurance policy, means such an illness as permanently or materially impairs, or is likely permanently or materially to impair, the ■ health of .the applicant.</p> <p>2. INSURANCE — Life Insurance — Application—False Statements. An applicant for a life insurance policy warranted in her application that her answers to the medical examiner on the reverse side of her application were “true and accurate,” and that they should constitute the basis for the covenant. The policy recited that it was executed in consideration of the warranties made in the application, and that the application should be made a part of the covenant. Held, that the answers of the insured to the medical examiner were her warranties, and that-a false statement made therein by her rendered the policy void.</p> <p>3. INSURANCE — Life Insurance — “Spitting or Coughing of Blood.” The phrase “spitting or coughing of blood,” as used in a question propounded by a medical examiner to an applicant for a life insurance policy, as to whether she had ever had “spitting or coughing of blood,” means the disorder so called, whether the blood comes from the lungs or from the stomach.</p> <p>('Syllabus by the Court.)</p>

Error from the United, States Court for the Western District of the Indian Territory at Mushogee; W. B. Lawrence, Judge. Action between Aurilla Beckwith and others and Fred Forest, trading as East Side' Hardware Company. From the judgment, Aurilla Beckwith and such others appeal, and appellee moves to dismiss the appeal.

Error from Pmhmataha County Court; L. P. Davenport, Judge. Action by II. E. G. Yates in a justice’s court against W. J. Brown, H. A. Higgs, and W. C. Spencer. There was a judgment for plaintiff, and defendant Brown alone appealed' to the county court, where plaintiff again had judgment, and Brown brings error.

Error from Pushmataha County Court; L. P. Davenport, Judge. Action in a justice’s court by J. S. Morgan against W. J. Brown, H. A. Higgs, and W. C. Spencer. There was a judgment for plaintiff, and defendant Brown alone appealed to the county court, where plaintiff again had judgment, and Brown brings error.

Error from District Court, McClain County; B. McMillan, Judge. Action by School District No. '22, McClain County, against E. D. Glaseo. Judgment for plaintiff, and defendant brings error.

<p>CHATTEL MORTGAGES — Filing—Place of — “At Such Time.” Under Wilson’s Rev. & Ann. St. 1903, sec, 3578, providing for the filing of mortgages in the county where the property “is at such time situated,” a mortgage of mules which were taken by the mortgagor by consent of the mortgagee into Indian Territory is properly recordable in the county in which the mules were at the time the mortgage was executed, and not in Indian Territory, where they were subsequently taken, and, such mortgage not being there recorded, is void as to subsequent attaching creditors of the mortgagor.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garfield County;.P. .0. Simons, Judge Pro Tem. </p> <p>Action by D. M. Bradham against the Chicago, Bock Island & Pacific Eailway Company. Jtidgment for plaintiff, and defendant brings error.</p>

JErvor from District Court, Logan Countyj J. C. Strang, Special ' Judge. Action by the.State, on the relation of Chas. West, Attorney General, against the State Capital Company. Judgment for defendant, and relator brings error. On the 13th day of April, 1908, the plaintiff in error, on the relation of Chas.

Error from District Court, Kiowa County; Geo. L. Zink, Special Judge. Action by Elma McCann against Fred. McCann and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Woodward County; J. L. Pancoast, Judge. E. E. Casler and others filed a petition with the County Surveyor for a survey of their lands, and a survey was thereafter made and report filed in his office. T. J. Seward appealed from the survey to the District Court, where the survey was affirmed, and Seward brings error. On the 12th day of February, A. D. 1906, there, was filed in the office of the county surveyor, J. A. Innis of Woodward county, Oída.

<p>1. CONSTITUTIONAL LAW — Construction in Favor of Constitutionality — Two Interpretations. If a statute is susceptible of two interpretations, that should be adopted which gives the , statute the effect evidently intended by the Legislature, especially if the other construction would render the same invalid.</p> <p>2. COURTS — Place of Holding — Statutory Provisions. In the act of the Legislature of 1909, entitled "An act providing for holding county court at the town of Prague, in Lincoln county,” the words “term” and “session” are used interchangeably.</p> <p>3. STATUTES — Special Laws — Applicability of General Law. A local and special law authorized by section 13, art. 7 (Bunn’s Ed. sec. 185; Snyder’s Ed. p. 221), does not come within the inhibition of section 59, art. 5 (Bunn’s Ed. sec. 132; Snyder’s Ed. p. 181), of the Constitution, providing that “where a general' law can be made applicable no special law shall be enacted."</p> <p>4. STATUTES — Enactment—Notice of Introduction. Where a special or local ,law has been passed by the Legislature, after notice of the intended introduction of said bill has been published and verified proof thereof filed with the Secretary ol State, under the terms of section 32, art. 5 (Bunn’s Ed. sec. 105; Snyder’s Ed. p. 149), of the Constitution, and a certified copy thereof from the Secretary of State is filed with the record in this court, and the sufficiency of such notice is not questioned, it will be deemed here to have been sufficient.</p> <p>5. CONSTITUTIONAL LAW — Construction—Constitutionality Favored. A statute will not be declared invalid as being repugnant to the provisions of the Constitution, unless such repug-nancy is clear and appears beyond a reasonable doubt.</p> <p>(Syllabus by the Court.) °</p> <p>Original application for a writ of prohibition by Casper Rakowski against Fred A. Wagoner, County Judge. Writ denied.</p>

<p>.SALES — 'Latent Defect — Fraudulent Concealment — Knowledge and Intent. A vendor, who sells cattle at a sound price, knowing that they have Texas fever ticks on them, or any other infection affecting their value for the purpose for which they are bought, the infection not being easily detected by those having had no experience with it, and who does not disclose such knowledge to the vendee, is guilty of the fraudulent concealment of a latent defect, for which he must answer, and the rule of caveat emptor does not apply.</p> <p>(a) But the vendor is not answerable unless he has knowledge, prior to the time the sale is consummated, that the cattle had such ticks on them.</p> <p>(Syllabus by the Court:)</p>

<p>ATTACHMENT — Bond—Amendment. Where a bond in attachment is conditioned as provided by Wilson’s Rev. & Ann. St. Okla. 1903, sec. 4367, instead of as required by Act March 15, 1905 (Laws 1905, p. 325, c. 28), amendatory thereof, it was error for the court to' discharge the attachment on account of such defect without first granting opportunity to plaintiff, who asked leave to amend, to file a new bond such as said act requires.</p> <p>(Syl'abus by the Court.)</p>

<p> Error from District Court, McClain County; R. McMillian, Judge. </p> <p>J. H. Sprouls was convicted of violating an ordinance of the town of Byars, and, having appealed, judgment of affirmance for -want of prosecution was rendered, which was thereafter set aside on motion, from which order the town appeals.</p>

<p> Error from AtoJca County Court j J. H. Linebaugli, Judge. </p> <p>Action, by Charles Le Flore against B. B. Sanders. Judgment for defendant, and plaintiff brings error.</p> <p>This is a replevin action, originally brought by plaintiff in error in the county court of Atoka county for the possession of 23 head of hogs. The trial in the lower court was upon an agreed statement of facts, to the court, without a jury. Plaintiff and defendant are both residents of stock district No. 3 of Atoka county, and the hogs in question are the property of the plaintiff. On the 28th day of May, 1908, the board of county commissioners of Atoka county exempted said stock district No. 3 of that county from the provisions of section 1 and 2, art. 1, c. 1, pp. 39, 40, of the Session Laws of Oklahoma of 1903, and pérmitted all domestic animals to run at large in said district, except jacks and, stallions. This act of the county commissioners was taken under the act of the Legislature approved May 21, 1908, entitled “An act to regulate and ¡restrain the running at large of domestic animals/’ Sess. Laws 1907-08, p. 22, c. 4, art. 2. On the 8th day of June, 1908, the county commissioners, upon petition signed by one-fourth and more of the legal voters of stock district No. 3, called an election in said district for the 11th day of July, 1908, to determine whether or not domestic animals should be restrained or permitted to run at large. At that election 68 votes were cast in favor of the proposition submitted and 12 against. Thereafter plaintiff permitted the hogs in controversy to run at large. On the 12th day of August, 1908, they were trespassing on the premises of defendant, who restrained them, and within 48 hours thereafter notified the plaintiff of the trespass and of the damage he claimed by reason of such trespass, and that plaintiff could have possession of his hogs on the payment of damages sustained by defendant. Plaintiff refused to pay the damages, and brought this action for possession of the hogs. Prom the judgment of the trial court, which was against plaintiff, this proceeding in error was brought.</p>

Error from Pushmataha County Court; L. P. Davenport, Judge. Action by N. R. Williams against W. J. Brown and others. Judgment for plaintiff against defendant Brown, and he brings error. citing: 23 Cyc. pp. 400, 401/404, 425-428, 433; Citizens’ Bank v. Frazee, 8 Kan. App. 638.

<p>1. BILLS AND NOTES — Actions—Verified Denial. In an action on a promissory note by one as receiver of the indorsee thereof, where nothing appears by way of indorsement or otherwise to indicate the ownership of plaintiff therein, or that said note had passed under his receivership, but there is an allegation in the petition that “he is the owner and holder of said promissory note as receiver,” held, that such allegation may be put in issue by an answer not verified by affidavit.</p> <p>2. PLEADING — Want of Verification — Method of Objection — I Waiver. In an action on a promissory note by one as receiver of the indorsee thereof, advantage cannot be taken of a failure to verify an answer putting in issue the ownership of plaintiff to the note sued on by objecting to the introduction of any evidence under it. An objection to said answer for that reason should be taken by motion to strike, or the same will be considered waived.</p> <p>3. BILLS AND NOTES — Actions—Proof of Instrument. An action on a promissory note by one as receiver of the indorsee thereof cannot be maintained unless the original be introduced in evidence, where the same is in the custody or control of plaintiff. This rule of evidence is not dispensed with by Wilson’s Rev. and Ann. St. 1903, sec. 4312, which provides that: “In all actions, allegations of the execution of written instruments and indorsements thereon, * * * shall be taken as true unless the denial of the same he verified by the affidavit of the party. * * *” Said statute does not dispense with proof of the existence of the instrument or the right of the party to hold it by assignment.</p> <p>(Syllabus -by the Court.)</p>

<p> Error from the United States Court for the Western District of the Indian Territory, at Tulsa; William B. Lawrence, Judge. </p> <p>Action by the Riverside Oil & Gas Company against the Tulsa Water, Jjight, Heat & Power Company. Judgment for defendant, and plaintiff brings error.</p>

<p>LANDLORD AND TENANT — Right to Crops — Tenancy at Sufferance. Where, on appeal from an order dissolving a temporary injunction, the facts were that defendants were holding over under a lease establishing a tenancy at, will, and as such were tenants at sufferance, and. that while so holding, and after their crop had matured, they were dispossessed by the landlord with the aid of the Indian agent, held, that a parol reservation of said crop by agreement with the landlord prior to being thus dispossessed was good and operated as a constructive severance thereof and gave to said tenants the right of ingress and egress to cut and carry the same away, and that the trial court did no,t abuse its discretion in dissolving a temporary injunction sued out by a lessee put in possession by the landlord subsequent to said reservation and before said crop was removed by said tenants, restraining them from entering upon the premises for the purpose of removing said crop.</p> <p>(Syllabus by the Court.)</p>

<p>1. RAILROADS — Proceedings to Require Establishment of Depot— Review — Harmless Error. Admission of incompetent evidence in a proceeding before the State Corporation Commission to require a railway company to establish and maintain a depot and agent at one of its stations is not ground for reversal of an order requiring such facilities and service, where the action of the commission is supported by other sufficient competent evidence.</p> <p>2.- CORPORATION COMMISSION — Orders—Appeal—Presumptions and Burden of Proof. On appeal from an order of the Corporation Commission, the presumption obtains, by reason of section 22, art. 9 of the Constitution, that the order is reasonable, just, and correct, and he who complains on appeal of such order has . upon him the burden of establishing the unreasonableness, unjustness, or incorrectness 'of such order, which he may do by showing that the unreasonableness of the order appears affirmatively from the facts as certified by the commission, or that it is shown by evidence in the record, upon which the commission failed to make findings of fact, or upon which the commission erroneously found the facts.</p> <p>3. RAILROADS — ■Establishment of Depot — Reasonableness. P. is a prepay freight station on a line of railway, about 2 1-2 miles from a regular station on one side and about 3 miles from a regular station on the opposite side. It has a population of 750 people, and its corporate limits are surrounded by a settlement consisting of 250 people. The railway company also stopped its passenger trains at said station to permit passengers to depart from, and to receive passengers on, its trains. The earnings of the company from the business at such station we specifically accounted for at an amount exceeding $300 per month, and it was shown that other earnings were derived by the company from business at said station, the exact amount of which was not shown, and that the amount of business at said station would be increased by establishing and maintaining a depot and agent. Upon these facts the Corporation Commission made an order requiring the railway company to establish and maintain a depot and agent at P. In opposition thereto, the railway company introduced evidence showing that such an order would require an additional expense of $400 or $500 to build a suitable depot and would require the employment of an agent, hut failed to show the expense of such agent, and failed to introduce any other evidence to show that the maintenance of such depot and agent could be made by the company only at a loss. Held, that such evidence was insufficient to overcome the presumption of reasonableness and justness of the order of the commission.</p> <p>(Syllabus by the -Court.)</p>

<p>1. TRIAL — Motion to Direct Verdict. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may he reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith. Where the evidence is conflicting, and the court is moved to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to -be taken must be eliminated entirely from consideration, and totally disregarded, leaving solely the evidence for consideration which is favorable to the party against whom such action is leveled.</p> <p>2. NEGLIGENCE — Question for Jury. In cases Involving the question of negligence, the rule is now settled that, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the court.</p> <p>3. RAILROADS' — Injuries to Animals on Track — Duty of Trainmen. It is not enough for the engineer and fireman in charge of a railway locomotive and train to use diligence merely in driving animals away that are discovered upon the track; they should keep a vigilant lookout, and exercise ordinary diligence to frighten away animals that may be discovered approaching, or in dangerous proximity to the track, by sounding the whistle, ringing the bell, and using the means provided for that purpose.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Killing Stock — Actions—Questions for Jury. In an action against a railroad company for negligently killing plaintiff’s cow, it appeared: That she was struck by defendant’s engine with three passenger coaches attached, within the limits of a town, on a clear day, on a straight track unobstructed for 400 yards northward and about 250 yards southwards, with no obstructions on the right of way; that her tracks showed the cow ran 40 yards immediately ahead of the engine before she was struck; that the engineer testified that the first time he saw the cow she was on the track in front of his engine too close to stop his train in time to avoid the injury, and that the train was running about 10 miles an hour. Held, a proper case to go to the jury under the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. LANDLORD AND TENANT — Renting on Shares — Lien on Crops. One who raises a crop upon the land of another for a part of the crop is not a tenant, .but is a cropper or laborer.</p> <p>2. EVIDENCE — -Judicial Notice — Seasons and Growth of Crops. The courts take judicial notice of the seasons and the course of nature, which includes the course of agriculture and the growth of the staple crops of the country.</p> <p>3. EVIDENCE — Judicial Notice — Contract to Raise Crop — Time Required. The courts will take judicial cognizance that a contract to plant, cultivate to maturity, and gather a crop of cotton is a contract for services or labor for a longer period than a njonth.</p> <p>4. MASTER AND SERVANT — Lien for Services — Written Contract —Necessity. A contract for services or labor for a longer period than one month, that is not in writing, by virtue of the provisions of section 4442 of Mansfield’s Bigest of the -Statutes of Arkansas (Ind. T. Ann. St. 1899, sec. 2909), confers no lien in favor of the laborer upon the products of his labor thereunder.</p> <p>,5. CHATTEL MORTGAGES — Description—Sufficiency. A description in a chattel mortgage, which is sufficient - to put a third person upon inquiry which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good. ’ ■</p> <p>6. CHATTEL MORTGAGES — Description of Crop — Sufficiency. A' mortgage that states the residence and. describes the home place of the mortgagor, and states the residence of the mortgagee, and describes certain horses, cattle, and hogs as -being located upon the mortgagor’s home place, and further describes a crop of cotton not planted at the time of the execution of the . mortgage, but afterwards planted and cultivated, as ‘.‘the product and proceeds of all my 1907 cotton and all my future crops until the above nóte is paid,” where the mortgage was filed for record at the proper place in the recording district where the cotton was located, sufficiently describes the cotton to render the mortgage valid against third persons, although it does not describe the location where it was to be planted and cultivated.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Review—Discretion of Lower Court— Vacation of Judgment. An application to vacate a judgment under Wilson’s Rev. & Ann. St. Okla. 1903, sections 4760-4763, inclusive, is addressed to the sound legal discretion of the court,' and will not be disturbed on appeal, unless it clearly appears that the court has abused its discretion.</p> <p>2. JUDGMENT — Vacation—Application—Valid Defense. In an application to vacate a judgment under Wilson’s Rev. & Ann. St. Okla. 1903, sections 4760-4763, inclusive, where the petition fails to set forth a defense to t he action resulting in the judgment sought to be vacated, petitioner being defendant in said action, held that the court did not err in refusing to vacate said judgment.</p> <p>(Syllabus by the Court.)</p>

Proceeding's before the State Corporation Commission by the ■State of Oklahoma and others to compel thé Chicago, Eock Island & Pacific Eailway Company and the Western .Union Telegraph Company to install telegraph service, for commercial and other purposes for which commonly used, at the- town of Eerguson. • It was so ordered, and the railway company and telegraph codipany appeal. citing: W. U. Tel. Co. v. Railroad Com.

Error from District Court, Cleveland County; C. F. Irwin, Judge. ■ ■ Action for partition by John M. Miller, as guardian of Maude E. Miller, against Jennie Hassman and another. Judgment for defendants, and plaintiff brings error.

<p>1. COURTS — Countl Court — Jurisdiction—Title to Land. The title to land is not in dispute or drawn in question in an action by a grantee brought Solely for the purpose of recovering money paid for taxes against which his grantor had covenanted in his deed, and a probate court of the territory of Oklahoma and a county court of the state for a proper amount has jurisdiction thereof.</p> <p>2. SET-OFF AND COUNTERCLAIM — Existence Between ' All Parties — Necessity. Either party may plead and prove a set-off .or counterclaim of a. proper nature, in defense of the liability sought to be enforced by the other party, and it is not necessary that the same shall exist as between all parties plaintiff and defendant in such suit, but any party may enforce his set-off or counterclaim against the liability sought to be enforced against him.</p> <p>1. COURTS — County Court — Jurisdiction—Title to Land. The title In October, 1907, a civil action was begun in a probate court for a sum within .the jurisdiction of a justice of the peace. While it was pending, and before trial, statehood intervened, ■and the case was tried in the county court in November, 1907. At the conclusion of the evidence plaintiff 'requested the court to give to the jury special and general instructions, which request was refused. Held, not error.</p> <p>4. APPEAL AND ERROR — Review—Questions of Fact. Where the verdict returned by a jury is reasonably supported by the evidence, a judgment rendered thereon -will not be reversed on appeal.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Carter Countyj 8. H. Bussell, Judge. Action by Francis Hancock and Bertie Ebonowatubbee against the Mutual Trust Company and J. E. Hamilton. Judgment for defendants, and plaintiffs bring error. citing: Wallace v. Adams, 74 C. C. A. 540; Stevens v. Smith, 77 TJ, S. 321; Taylor v. Brown, 147 U. S. 641; Goodrum v. Buffalo, 162 Fed. 817. citing: Godfrey v. Iowa Land & Trust Go., 21 Olda. 293, 95 Pac. 792; McWilliams Inv.

Error from District Court, Pittsburg County; P. B. Cole, Judge. Action by C. A.' Steward and others against W. C! Threlkeld and others. Judgment for plaintiffs, and defendants bring error.

<p>1. EVIDENCE — Parol Evidence — Railroad Bonus Note — Consideration. An instrument reciting: “For value received and for ben-fits accruing to ' me from the construction of a railroad from some point on the St. L. & S. P. Railroad between S. and T., through the city of P., to connect with the B., E. & S. Railway, * * * I * * * agree to pay to the order of A. V. & W. Railway Company, at the Exchange Batik of P., the sum of two hundred and fifty and no-100 dollars, * * * to become due and payable when said railroad shall be constructed to and into P.” — is a contract between the parties.</p> <p>(a) .No contemporaneous parol condition or consideration may be. ingrafted into such contract, so as to add to, vary, '-or contradict the same, except upon proper allegations of fraud, accident, or mistake. .</p> <p>2. BILLS AND NOTES — Validity—False Representations. When, in the answer, the defense is averred that, prior to the execution of the note or contract, the representatives of the maltee, a corporation proposing to construct such railway line, represented, in soliciting or procuring such notes or contracts, which statements were unfounded, that unless the same were entered into the line would be diverted fri, m said city, to the great disad-vatage of the property owners of the city, the testimony of the maker of the contracts here in question showing that such representations were not the moving cause of his entering into the contract, held, that such testimony eliminated this queston from the case</p> <p>3 BILLS AND NOTES — Legality of Consideration — Railroad Bonus Note. A promissory note or obligation, payable to a railroad company in aid of the construction of its line between two given points through a certain point, is not void as against public policy — following Guss v Federal Trust Company, 19 Okla. 138, 91 Pac. 1046; Guthrie & W. Ry. Co. v. Rhodes, 19 Okla. 21, 91 IPac. 1119; Cooper v. Ft. S. & W Ry. Co. 23 Okla. 139, 99 Pac. 795; Cobb v. Wm. Kenefick ■ Construction Co., 23 Okla. 449, 100 Pac. 551.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Muskogee County; John H. King, Judge.</p> <p>Bill by Mattie Harrison and others against George A. Mur-phey. Judgment for defendant, and.complainants bring error.</p>

<p>1. BANKS AND BANKING — Deposits by Agent — Application by Bank — Rights of Principal. Where an agent deposits money belonging to his principal in a -bank to which he himself is indebted, and the bank, without his knowledge or authority, applies the same on a debt owing by him to the bank, the principal is not debarred from recovering from the bank, where the facts disclose that the indebtedness from such agent grew out of a private business contract between them, under the terms of which specific moneys only were to be used or applied, and the fund involved did not fall within this class.</p> <p>2. APPEAL AND ERROR — Review—Harmless Error — Instructions. Where a verdict and judgment are authorized by the evidence, and another would be unwarranted, the same will not be reversed on appeal on account of errors alleged to exist in the instructions given.</p> <p>(Syllabus by the Court.)</p>

Original application for a writ of prohibition by the State, on relation of 0. 0. Smith, to be directed to G. A. Brown, Judge of the Eighteenth District Court Judicial District. On the 1st day of April, A. D. 1909, 0. 0.

<p>Action by J. F. Smith against J. R. Hurford. Judgment for plaintiff. Defendant brings error.</p> <p>citing: Scott v. McMillan, 76 N. Y. 141; Orman v. Datf, 5 Ela. 385; Huch v. Flintye, 20 111. 258; McCord v. Hémele, 18 111. App. 423; Cole v. Hughes, 54 N. Y. 444; Bisquay v. Jennelot, 44 Am. Dec. 483; Preiss v. Parlcer, 67 Ala. 500; McEwan v. Nelson, 40 111. App. 272; Zein-inger v. Schmizler, 4u Kan. 63; Richardson v. Tobey, 121 Mass.. 457; Kingsland v. T.uclcer, 115 N. Y. 574.</p> <p>citing: Nolan v. Bull (Ore.) 33 Pae. 983; Nunez v. Dantel (U. S.) 19 Wall. 560; Smith v. Jenlcins, 41 Fed. 101; 7 Cyc., pp. 845-6-7, and notes; Sherley v.. Burns (Kv.) 58 S. W. 691; Natle v. Paqqi (Tex.) 16 S. W. 932.</p>

<p>1. QUAERE. Quaere: Is a marriage under the common law, without a celebration or solemnization in manner provided by our statute, permissible under the laws as now in force in this jurisdiction?</p> <p>2. MARRIAGE — Common-Law Marriage — Presumptions. A marriage contracted by two parties, one of whom had a living, un-divorced spouse, which was known by both parties to the alleged marriage contract, which was bigamous and criminal in its inception, the undivorced spouse dying shortly after such bigamous marriage, and said relations continuing thereafter without any apparent change until the death of one of the parties thereto, there is no presumption of change of relations, and without more such could not ripen into a common-law marriage.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Bryan County; Malcolm E. Rosser, Judge. Action by E. D. James against the American Jobbing Association, or Williard D. Main. Judgment for plaintiff, and defendant brings error. This proceeding in error is brought from a judgment of the district court of Bryan county in an action wherein defendant in error, hereafter called “plaintiff,” seeks to recover against plaintiff in error, hereafter called “defendant,” on an agency contract.

<p>1. BILLS AND NOTES — Assignment—Counterclaim... A subsequent holder and owner oí a non-negotiable promissory note is not liable to the maker thereof for damages sustained as the result of an independent and separate contract between the original payee and maker of such note, where such liability had in no way become attached to the note while the same was yet in the hands of the original payee.</p> <p>2. SET-OFF AND COUNTERCLAIM — Test of . Validity. The validity of a counterclaim is to be determined bv the inquiry whether or not the substance of the facts stated would constitute a cause of action on behalf of the defendant against the plaintiff, if the plaintiff had not sued the defendant.</p> <p>3. JUSTICES OF THE PEACE — Answer—Effect. Althoug'h in justice court practice the defendant is not required to file an answer, if he does so it will limit the issues as under the ordinary rules of pleading.</p> <p>(Syllabus by ‘the Court.)</p>

Error from, District Court, Comanche County; F. E. Gillette, Judge. Action by the Kingfisher Improvement Company against May B. Talley and others. Judgment for plaintiff, and defendants bring error. citing: Argu-ello v. Bours (Cal.) 8 Pac. 49; Tibeau v. Tibewa, 19 Mo. 78; Turpin v. Railroad Co., 105 Ill. 11; Gigler v. Baker (Neb.) 58 N. W. 1026; Morton v. Dickson (Ky.) 14 .S. W. 905; Holcomb v. Dowell, 15 Kan. 289; Coolbaugh v. Roemer (Minn.) 21 N. W. 472.

Error from Custer County Court; A. II. Latimer, County Judge. Action in a justice’s court by W. 0. Bray and others against the St. Louis & San Francisco Railroad Company. Judgment was rendered for plaintiffs, and defendant appealed to the county court, where the appeal was dismissed, and defendant brings error. citing: Bunn’s Ann. Const. Okla. §§ 28, 183, 186, 190.

Error from District Court, Wagoner County; Louis Sulzbacher, Judge. Action by William M. Gibson against Christopher E. Horn and wife. Held: and for the purpose' of settling the indebtedness due from the said Horn to the plaintiff, William M. Gibson, that the defendants, Christopher E. Horn and Annie S. Horn, executed the note and mortgage in controversy in this suit to one J. W. Mercer, with the understanding that the said Mercer was to pay to the plaintiff, William M.…

Okla.. T. Error from, District.¡Court, Comanche County. Action by the Citizens5 National Bank of Chickasha against E. F. Mitchell and others. Judgment for defendants, and plaintiff brought error to the Supreme Court of the Territory of Oklahoma, whence the cause was transferred to the I Supreme Court of the State of Oklahoma.

Error from District Court, Caddo County. Action by W. S. Kilgore against Thomas F. Yarnell and others. Judgment for defendants; and plaintiff brings error, and plaintiff moves to dismiss the petition in error. citing: 2 Ene. PI. & Pr. 200; Shartzer v. Love, 40 Cal. 93; Kuhneri v. Conde (Kan.) 18 Pac. 193; Bridge v. Hotel Co. (Kan.) 61 Pae. 754; Dolan v. Jennings, 139 U. S. 385; Wedd v. Gates (Okla.) 82 Pac. 808.

<p> Error from District Court, Kay Countyj W. M. Bowles, Judge. </p> <p>Action by the Blackwell Milling & Elevator Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p> <p>citing: Beatty Lumber Co. v. Telegraph Go. (W. Ya.) 44 S. E. 309; Richmond Hosiery Mills v. Telegraph Go. (Ga.) 51 S. E. 290; Telegraph Go. v. Ferguson (Ind.) 60 N E. 677; Smith v. Telegraph Go., '83 Ky. 104.</p> <p>citing: Postal Tel. Gable Go. v. Robertson, 74 N. Y. Supp. 876; Telegraph Go. v. Howell, 38 Kan.; Jones on Tel. & Tel., secs. 373, 544-546; Postal Tel. Go. v.- Lathrop, 131 111. 575; Mackey v. Telegraph Co., 16 Nev. 227; Telegraph Go. v. Grims, 82 Tex. 89; Telegraph Go. v. Nye Grain Go. (Neb.) 97 N. W. 305; Telegraph Gable Go. v. Nichols, 159 Eed. 644; Smith v. Telegraph Go. (Neb.) 114 N. W. 288; Express Go. v. Caldwell, 88 U. S. 264.</p>

Lawrence, Judge. Action by Cora Johnson against Frank P. Blakemore. Judgment for plaintiff, and defendant appeals. This action was brought by appellee in the United States Court for the Western District of the Indian Territory at Muskogee to have declared void and canceled a certain warranty deed executed by her to appellant.

Error from District Court, Woodward County; John L. Pancoast, Judge. Action by J. J. Gerlach against John E. Eussell and others. Judgment for plaintiff, and defendants bring error. This action was instituted in the district court of Woodward county, territory of Oklahoma, on June 14, 1905, by John J. Gerlach, the defendant in error, as plaintiff, against John E. Eussell and L. D. West, plaintiffs in error, and J. Eawdon, as defendants.

<p> Error from 'District Court, Sequoyah Comity; John H. ' Pitchford, Judge. </p> <p>Action by John C. Still against the Ozark Marble Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Tulsa County Court; N. J. Gubser, Judge. Action by .Taylor Shanks against Francis R. Brennan and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Choctaw County; D. A. Richardson, Judge. Action by J. H. Miller against Ed Combs and another. Judgment for .plaintiff, and defendants bring error. I. L. Strange, for plaintiff in error, citing: McLaughlin v. Ardmore Loan and Trust Go., 21 Okla. 173; Fish v. Arnold (Ind. T.) 104 S. W. 824.

<p>Error from District Court, Oklahoma County; George W. Clark, -, Judge.</p> <p>Action by E. L. Bowls against the city of Oklahoma City and others. Judgment for defendants, and plaintiff brings error.</p>

Original application by William B. Maben for a writ of prohibition to be directed to Malcolm E. Eosser, Acting Judge of the Tenth Judicial District, Charles West, Attorney General of the State, and Fred S. Caldwell, Counsel to the Governor.

Error from District Court, Greer County; C. F. Irwin, Judge. Action bjr G. F. Border and Maud Border against 0. Carra-bine. Judgment for defendant, and plaintiffs bring error. citing: Gheeseborough v. Parker, 25 Kan. 566. citing: Swartzel v.. Rogers, 3 Kan, 3¶4;- Northup-v: Romary, 6 Kan. 240'; Blackford v. Leveridge, 10 Kan. T01; A. &'E. Enc. Law, vol. 20, p. 611. , , ,

Error from District Court,: Custer County; James U. Tolbert, Judge. Action by C. H. Lamb and another against P. E. Young and another, in which action W. I. Brannon intervened. An attachment was issued and levied upon lots, and;, the same having been discharged, plaintiffs bring error.

<p>RAILROADS — Private Facilities — Switches—Difference in Location. Section 18, art. 9, oí the Constitution (Bunn’s Ed. sec 222), does not require transportation or transmission companies at their own expense to provide such equal facilities and conveniences between private persons or corporations as to overcome or equalize disadvantages caused bv dissimilarity of location.</p> <p>(Syllabus by the court.)</p>

<p>TAXATION — Compliance with Statutory Requirements. Where the statute requires a series of acts to be performed before the owners of property are properly chargeable with taxes, such acts are conditions precedent to the exercise of the power to levy taxes, and all the requirements of the statute must be complied with, or they cannot be collected.</p> <p>(Syllabus .by the court.)</p>

.Error from District Court, Pottawatomie Countyj W. N. Mdben, Judge. Mandamus by W. F. Sims against F. B. Stearns, as. mayor ■of the city of Shawnee. Judgment for plaintiff, and defendant -brings error. citing: Bayard v. U. S., 32 L. Ed. (IT.

Error from District Gourt, Bryan County; Malcolm E. Rosser, Judge. Action by Louis Paullin against the Choctaw-Chickasaw Investment Company and others, in which action Hagon John, guardian, intervened. Judgment for plaintiff as against inter-vener, and intervener brings error.

<p>1. CONTRACTS — Discharge—New Agreement. A contract may be discharged, at any time before the performance is due, by a new agreement with the effect of altering the terms of the original agreement or of rescinding it altogether; and a claim under the original contract may then be met by the new agreement, so far as the latter operates to alter or rescind the former.</p> <p>2. APPEAL AND ERROR — Harmless Error — Ruling on Demurrer. Although a demurrer may have been improperly overruled, vet, if the demurrant was not harmed by such ruling, judgment will not ■be reversed on account of the harmless error.</p> <p>3. APPEAL AND ERROR — Harmless Error — Rulings on Evidence. The improper admission or rejection of evidence, if not prejudicial to the party complaining, is not ground for reversal.</p> <p>4. PRINCIPAL AND AGENT — Apparent Authority — Question for Jury. The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jurv.</p> <p>5. APPEAL AND ERROR — Harmless Error — ‘Error Without Prejudice. The court, in everv stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no Judgment shall be reversed or affected 'by reason of such error or defect Williams and Hayes, JJ,. dissenting.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Kiowa County; F. E. Gillette, Judge. Action by E. A. Mittendorf and another against the St. Paul Eire & Marine Insurance Company. Judgment for plaintiffs, and defendant brings error. citing: 2 Wood on Eire Insurance, sec. 438; Ayers v. Ins. Co., 17 Iowa, 176-; A. & E. Enc. Law, vol. 13, p. 332; McGraw v. Ins. Co. (Mich.) 19 N. W. 927; Am. Cereal Co. v. Ins. Co., 148 Fed. 77; Deming Inv.'Co. v. Ins. Co. (Olda.) 83 Pac. 923; Ins.

<p>Original action in the nature of quo warranto by the State, on relation of Charles West, Attorney General, against T. S. Cobb, County Judge.</p> <p>citing: U. S. v. Railroad Co., 3 Olda. "404; In re Fpley, 10 Olda. 631; State ex rel. v. Railway Co. (Opinion of Justice Burford) 2 Olda. 112; Wheeler v. Caldwell (Kan.) 75 Pac. 1031; State ex. rel. v. Moores ( Neb.) 76 N. W. 530; State ex rel. v. Vail, 53 Mo. 97; Stale v. Allen, & Kan. 213; State v. Foster, 32 Kan. 14; Chumasera v. Pottsj 2 Mont. 242; Ex parte People, 1 Cal. 85; State ex rel. v. Chotead .Co., 13 Mont. 33; State ex rel. v. Tracy, 94 Mo. 217; Com. v. Barroux, 36 Pa. 262; People ex rel. v. Cleric, 22 Colo. 280;' 2 Bailey on Jurisdiction, secs. 490, 491; Cohen v. Virginia, 6 Wheat. 404; Brisco v. Com., 11 Pet. 312; Worcester v. Georgia, 6 Pet. 541; Kimball v. Neal, 44 Yt. 567, Dunphy v. Belden, 57 Cal. 427; State v. Brown, 5 R. I.'l; State ex rel. v. Kent, 1 L. R. A. (N. S.) 826 ; Wolff v. Mathews, 39 Mo. App. 376; Hulsonpiller v. Stover, 12 Grat. (Ya.) 579; Chicago, etc. v. Chase Co., 42 Kan. 223; Kenluclcy v. Denison, 24 How. 66; State ex rel. v. Superior Court (Wash.) 42 Pae. 123; State v. Sharp, -27 Minn. 39; Mayor, etc., v. Dragon, 45 Ala. 310; Minn v. Hitchcock, 185 IT. S. 384; Steamer St: Lawrence, 1 Black. 266; Fisher v. Cock-erell, 5 Pet. 259; Bradford v. Territory ex rel., 2 Olda. 228; State ex rel. v. Wilson, 30 Kan. 661; Goodacre v. Skinner, 47 Kan. 579; Douglass v. Rinehart, 5 Kan. 393; Matney v. King, 20 Olda. 22.</p> <p>citing: People v. Board of Trade, 193 Ill. 577; In re Burnette, 73 Kan. 609; State v. Breese, 15 Kan. 101; State v. Foster, 106 La. 425; State v. Tracey, 94 Mo. 217; Ex parte Mo Anally, 199 Mo. 512; Armstrong v. Mayer, 6 Neb. 355; In re Hemil, 9 S. D. 390; Everett v. Hughes Co., 1 S. D. 365; State v. McLean Gouniy, 11 N. D. 356; Ex parte Doyle (W. Ya.) 57 S. E. 824; Ex parte Boyall, 117 U. S. 241; Ex parte Huntington, 137 U. S. 63; Ex parte Ivey, 26 Fla. 542; State v. Stewart, 32 Mo. 379: Territory v. Railway Go., 2 Olda. 108.</p>

<p>INSURANCE — Life Policy — Signature of Agent. That a policy of life insurance shall 'be countersigned by the agent of the company ■before it shall become a valid obligation is a stipulation that the company has a right to make, and the completion of the contract with the signature of such agent during the lifetime of the insured is essential to the existence of an obligation which can be enforced against the company.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pontotoc County; A. T. West, Judge. Action by J. W. Davis against the Missouri, Kansas & Texas Railway Company. Judgment ior plaintiff, and defendant brings error. This action was originally instituted in the United States Court for the Southern District of the Indian Territory at Ada on July 2, 1907.

Error from District Court, Bryan Couniyj Malcolm E. Rosser, Judge. Action by Louis Paullin against Charles H. Williams and others. Hagon John, guardian, intervenes. Judgment for defendants, and intervener and plaintiff bring error.

<p>1, REPLEVIN — 'Issues, Proof and Variance. When tihe petition in a replevin suit alleges that the plaintiff is entitled to the possession of certain personal property by reason of a special interest therein, evidenced by certain notes and a chattel mortgage, and the proof shows that, if he is entitled to the possession thereof at all, it is by reason of a certain other agreement with the defendant, and timelv objection is made to such variance between the pleadings, and the proof, it is fatal to the recovery of the plaintiff.</p> <p>2. REPLEVIN — Damages to Defendant. Damages to a defendant in a replevin suit are to compensate him for the loss he has sustained by being wrongfully deprived of his property, and their award involves a prior finding that he is entitled to its possession, and he is never entitled to damages unless he shows himself entitled to the possession of the property at the time the suit was commenced.</p> <p>(Syllabus bv the Court.)</p>

<p>1. APPEAL AND ERROR — Decisions . Reviewable — Finality of Order. An order made vacating a judgment for the purpose of permitting a party against whom said judgment is rendered to prosecute or defend is interlocutory, and not a final, order, from which an appeal will lie at the Supreme Court.</p> <p>2. JUDGMENT — Powers at Chambers — Setting Aside Judgment. A judge at chambers possesses no jurisdiction to vacate judgments of the district court Nor can jurisdiction for such purpose be conferred by agreement.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garvin County; B. McMillan, Judge. </p> <p>Action by J. M. Maddle against E. C. Beavers. From an order vacating judgment against defendant, plaintiff brings error.</p>

Error from the United. States Court for the Southern 'District of the Indian Territory, at Ada; J. T. Dickerson, Judge. Action by Tailor & Leaverett against F. L. Conner. Judgment for plaintiffs, and defendant brings error.

<p>1. COUNTIES — County Seat Election — Petition—Sufficiency. The petition on which the county seat election, provided for in section 6, art. 17 (Snyder’s Const. Okla., p. 340), of the Constitution, is called need not contain the name of any town to which removal or change is sought. The statutory form (section 3, art. .4, c. 31, p. 379, Laws 1907-1908) substantially meets the requirement of the Constitution.</p> <p>2. COUNTIES — County Seat Election — Notice—Harmless Irregularity. The public notice of a special election cal.ed to vole upon the change, removal, or relocation of a county seat, pro'-vided for in section 6, art. 17, of the Constitution (Snyder’s Const. Okla., p. 340), should be given as prescribed in the proclamation of the Governor; but where, .in a controversy arising out of an election held, it is shown that the provisions in reference to notice were substantially complied with, and there is no averment or showing that the electors did not have actual notice or knowledge of the election, and fai.ed to participate therein by reason thereof, the same will not be held void or set aside. The vital and essential question in such eases is, Did the want of notice or knowledge result in depriving a sufficient number of the electors of the opportunity to exercise their franchise as to change the result of the election? if not, then the will of the electors, as expressed, should be sustained.</p> <p>3. ELECTIONS — 'Harmless Irregularity in Form of Ballots... The provisions of section 2, art. 3, c. 31, p. 329, Laws 1907-1908, prescribing the duties of the county election board in the preparation of ballots, are mandatory as to such board, and should be observed by a special election board, charged with the same duties; but, where such special election board ignores some of these provisions, and prepares ba lots different in form and detail from those prescribed, but distributes the same uniformly throughout the county, and they are received by the electors, and by them in good faith cast, they will not, in the absence of fraud, be disregarded and an election held therewith annulled.</p> <p>4. ELECTIONiS — Statutes—Duty to Uphold — Irregularities—Presumptions. Elections are the ultimate expression of the sovereign will. When fairlv expressed — that is, free from taint of fraud or .charge of improper conduct — it becomes the duty of courts to sustain them, where it can be done bv a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to technical statutory directions, which do not affect the substantial rights of the electors. All reasonable presumptions as to their regularity will be indulged, and the penalty of disfranchisement will not be visited upon a qualified voter where he is not at fault, except in response to a plain mandatory requirement of the statute.</p> <p>5. COUNTIES — County Seat Election — “Place.” A tract of land or locality which, prior to the date of a proclamation issued by the Governor calling a county seat election, had 'been by its owners surveyed and platted, and which was, after the issuance of the proclamation, and before the election, the scene of a public picnic, attended by a large number of the voters of the county, and at which a public auction of the lots of the place was held, and public notice given of its metes and 'bounds, and the location of which was well known to the voters of the county, is a “place,” as the word is used in Const, art. 17, sec. (I (Snyder’s Const. Okla., p. 340).</p> <p>6. COUNTIES — County Seat Election — Bribery. Under the provisions of section 7, art. 17 (Snyder’s Const. Okla., p. 341), the giving or offering of lots, land, or other things of value, either directly or indirectly, for the purpose of influencing voters for or against any competing town or place in a county seat election, is bribery, and votes secured as a result thereof are illegal and void, and should not be counted.</p> <p>(Syllabus by the Court.)</p>

<p>ELECTIONS — Ballots—Indication of Choice by Voter. Sec 4, art. 1, c. 17, p. 233, Sess. Laws 1905, under the title of “Elections.” provided that on receiving his ballot, “if the voter shall desire to vote for all the candidates of one political party or group of petitioners, he may stamp a cross in the circle which is under the device and in the column above the candidates of the party or group for whom he desires to vote, and such ballot when so marked shall be counted as a straight ticket for all the candidates in the column under said circle.” A voter stamped a cross in the circle under a party device, and then stamped a cross in the sauare immediatelv to the left of all the names in the same column except the name of plaintiff. Held, that by stamping in the circle under the party device the voter under the law voted for all the candidates in the column under said circle, and that the extra markings were without effect.</p> <p>Kane, C. J., and Wiliams, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>JUSTICES OF THE PEACE — Jurisdiction—Forcible Entry and De-tainer. Section 18, art. 7, Const., which provides in part that “the office of justice of the peace is hereby created, and until otherwise, provided by law, courts of justices of the peace shall have, coextensive with the county, jurisdiction as examining and committing magistrates in all felony cases, and shall have jurisdiction, concurrent with the county court, in civil cases where the amount involved does not exceed two hundred dollars, exc u-sive of interest and costs, and concurrent jurisdiction with the county court in all misdemeanor cases in which the punishment does not exceed a fine of two hundred dollars or imprisonment in the county jail for not exceeding thirty days, or both such fine and imprisonment,” is only a limitation upon the jurisdiction of justices of the peace “until otherwise provided by law,” and did not prohibit the constitutional convention from putting in force in the state by section 2 of the Schedule the laws of the territory of Oklahoma conferring jurisdiction on justices of the peace in forcible entry and detainer cases.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Probate Court, Greer County; Jarrett Todd, Judge. </p> <p>Action by John Arthur Coyle against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p> <p>citing: ' Butner v. Telegraph Co., 2 Okla. 247; W. Ü. Telegraph Co, v. Mossier. 95 Ind. 29; Langley v. Telegraph Co. (Ga.) 15 S. E. 291; Kester v. W. U. Tel. Co., 8 Ohio Cir. Ct. R. 236; W. U. Tel. Co. v. Kinney (Ind.) 7 N. E. 191; W. U. Tel. Co. v. Brown (Ind.) 8 N. E. 171; Hadley v. Telegraph Co. (Ind.) 15 N. E. 845.</p> <p>citing: Dodd v. Telegraph Go., 112 Ga. 685; Thurn v. Telegraph Go., 15 Cal. 473.</p>

<p>1. CARRIERS — Carriage of Live Stock — Notice of Loss. Hogs that died in the car, and are removed therefrom in transit by the employees of the railway company, are not within a clause of the contract of shipment requiring the shipper, as a condition precedent to his right to recover any damages for any loss or injury to said stock resulting from the carrier’s negligence, to give notice in writing to the conductor in charge of the train or to the nearest station or freight agent of the carrier on whose line the injuries occur before said car leaves that carrier’s line, or before the live stock are mingled with other live stock or removed from pens at destination.</p> <p>2. PLEADING — Appeal and Error — Issues, Proof and Variance— Waiver. If proof is offered of an issue or of a single fact different from that, stated in the pleadings, but not amounting to a failure of proof, and no objection is made by the adverse party, it is of no consequence. The objection is not available in the reviewing court. It is too late then.</p> <p>3. PLEADING — Variance—Materiality. No variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits.</p> <p>4. CARRIERS — Injury to Freight — Exemption from Liability — Burden of iP'roof. If the carrier seeks to escape liability on the ground that the loss of or injury to the goods is one excepted 'by a valid special contract, he has the burden of provirg, not only the making of such special contract, but also that the loss or injury for which the action is brought falls within a specified exception contained in such special contract.</p> <p>5. NEGLIGENCE — Questions for Jury — Contributory Negligence. Negligence and .contributory negligence are usually questions for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.</p> <p>6. CARRIERS — Carriage of Live Stock — Care of. If the shipper specially agrees, as a part' of the contract of transportation, that he or his agents will care for the animals and attend to feeding and watering them, the carrier is thereby relieved from liability so far as opportunity of caring for, feeding, and watering the animals is afforded him. And, if damages result from the failure of the shipper under such circumstances to have the animals cared for, he cannot hold the carrier responsible. Nevertheless, if the carrier is aware that no one is accompanying the animals to care for them, his duty to give them proper attention is the same as though no contract for care by the shipper has been made.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Muskogee County; J. II. King, Judge. Action by David Grunawalt against Eva-Grunawalt. From an order striking certain paragraphs from the petition, plaintiff brings error.

<p>Error from Murray County Court; Harry W. Fielding, Judge.</p> <p>Action by the Maxwell Trading Company against D. II. Carr and I. J. Whitsett. Judgment against defendant Carr, and he brings error.</p>

<p>1.' COURTS — Verdict—Assent of Required Number of Jurors. Under that part of section 19, art. 2, Snyder’s Ann. Const. Okla., which reads, “* * * In civil cases, and in criminal eases ’.ess than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case • ■ a verdict is rendered by less than 'the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein,” five jurors concurring may return a valid verdict in a ' civil action in the county court, provided the. verdict is in writing, and is signed by each juror concurring therein.</p> <p>2. CONSTITUTIONAL LAW — Equal Protection, of the Law — Attorney’s Fee — Actions for Personal Services. Section 1, e. 87 (section 6915), Wilson’s Rev. & Ann. St. Í903, providing for an 'attorney’s fee, where an action is brought by any laborer, clerk, servant, nurse, or other person for compensation for personal services, to be recovered as costs, is. in violation of the fourteenth amendment of the Constitution of the United States and void.</p> <p>(Syllabus- by the Court.)</p>

<p> Error from District Court, Comanche County; F. E. Gillette, Judge. </p> <p>Action by J ames H. Clark against the St. Louis & San Francisco Railroad Company. - A demurrer to the evidence was sustained, and plaintiff brings error.</p>

Error from District Court, Pittsburg Countyj P. B. Cole, Judge. Action by the Incorporated Town of Haileyville and others against the Incorporated Town of Hartshorne and others. Judgment for plaintiffs, and defendants bring error.

Mrror from District Court, Greer County; C. F. Irwin, Judge. Action by O. P. Melton against E. Snow. Judgment for defendant, and plaintiff brings error. On the 3d day of .November, 1905, the plaintiff in error, as plaintiff, commenced his action against the defendant in error, as defendant, in the probate court of Greer county, Okla., declaring in the sum of $410, being for the recovery of usurious interest paid by the plaintiff to the defendant.

Error from OTcldhoma County Court; Sam Hoolcer, Judge. Action submitted upon an agreed statement of facts by the State of Oklahoma against Eighteen Casks of Beer claimed by B. W. Tucker. Judgment for claimant, and the State brings error. This action was tried in the lower court by virtue of section 4717, Wilson’s Rev. & Ann.

From the action' of the State Corporation Commission requiring railroad and street railway companies, upon the happening of an accident, to send a report thereof, both by telegram and letter, to the Corporation Commission, the St. Louis & San Francisco Railway Company appeals.

From the action of the State Corporation Commission requiring railroad and street railway companies, upon the happening of an accident, to send a report thereof, both by telegram and letter, to the Corporation Commission, the Atchison, Topeka & Santa Ee Eailway Company appeals.

Error from Craig County Court; Thos. I). B. Frear, Judge. Action between Walter Crump and another and A. J. Pitch-ford. From the judgment Walter Crump and such other bring error.

<p>Motion that order transferring cause from Supreme Court to the Criminal Court of Appeals be set aside overruled.</p>

<p>CARRIERS — Corporation Commission — Fixing Freight Rates — Findings of Fact — Appeal. By section 22. ari. 9, -of the Constitution (Bunn’s Ed. Section 234), it becomes the duty of the -Corporation Commission, upon hearing an order proposed to fix the rates to be charged by a railway company for services for hauling intrastate shipments, to make finding of facts upon which the order of the commission is based, and on an appeal from such order, to certify the facts so found by it to this court.</p> <p>(a) When the Corporation Commission, in making an order fixing rates which a railway company may charge for hauling intrastate freight, fails to make a finding of facts, and to certify same to the Supreme Court on appeal from such order, such court may, under said section of the Constitution, remand the case to the commission, with directions to find the facts upon which the commission based its order, and to certify same to the court before the appeal is finally decided.</p> <p>(Syllabus by the Court.)</p>

Action by the State against the Kansas City, Mexico & Orient Railway Company and others. From an order fixing, the freight rates, the Kansas City, Mexico & Orient Railway Company and others appeal.

<p> Appeal from, Corporation Commission. </p> <p>Action by the State agaianst the Atchison, Topeka & Santa Ee Railway Company, and others. From an order fixing the freight rates, the Atchison, Topeka & Santa Fe Railway Company and others appeal.</p> <p>On the 23d day of May, A. D. 1908, the Corporation Commission commenced this proceeding against the Atchison, Topeka & Santa Fe Railway Company, the Midland Yalley Railroad Company, the Missouri, Kansas & Texas Railway Company, the Gulf, Colorado & Santa Ee Railway Company, the Chicago, Rock Island & Pacific Railway Company, the St. Louis & San Francisco Railroad Company, the St. Lonis, Iron Mountain & Southern Railway Company, the Kansas City Southern Railway - Company, the Et. Smith & Western Railroad Company, the St. Louis, El Reno & Western Railway Company, the Kansas City, Mexico & Orient Railway Compaq, the Oklahoma Central Railroad Company and Asa E. Ramsey as receiver thereof, and the Missouri, Oklahoma & Gulf Railway Company, the herein appellants, by causing to be published in the Guthrie, Leader, a daily paper published in Guthrie, Logan county, Okla., a notice of its proposed order No. 26, and thereafter, on, to-wit, the 22d day of June, A. JD. 1908, and pursuant to such notice, which was in due form and published as required by law, said cause was heard and continued from day to day until the 24-th day of June, A. D. 1908, when final order No. 58, fixing intrastate rates on coal and coke and such products, was made and entered. Thereafter, on the 15th day of March, A. D. 1909, proper application was made to the chairman of the commission for certification of all the evidence heard or considered in making such order, as well as the facts found and reasons upon which same.were based, which was denied; and thereafter, on, to wit, the 16th day of March, A. D. 1909, on application to this court, a writ of mandamus was issued, requiring such certification, which was complied with on the 7th day of April, A. D. 1909. On the llth day of September, A. II. 1909, counsel for appellee moved in this court for the dismissal of this appeal on •the grounds: (1) That neither the appeal nor application for such certification was made in due time. (2) That the record does not contain a finding of facts, although the certificate recited that a finding of fact by the commission was not made of record, and therefore could not be transmitted. (3) That it was the duty of the appellants to preserve such record, if they desired to appeal.</p>

<p>RAILROAD RATES — Regulation by Corporation Commisson. Syllabus same as in Midland Valley R. Co. et al. v. State, No. 736 decided at this term, ante, p. 817, 104 Pac. 1086.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROAD RATES — Regulation by Corporation Commission. Syllabus same as in Midland Valley Railroad Co. et al. v. State, No. 736, decided at this term, ante, p. 817, 104 Pac. 1086.</p> <p>(Syllabus by the Court.)</p>

Action by the State against the St. Louis, Iron Mountain & Southern Bailway Company and others. From an order fixing the freight rates, the St. Louis, Iron Mountain & Southern Bail-way Company and others appeal.

<p> Appeal from Corporation Commission. </p> <p>Action by the State against the Missouri, Kansas & Texas Railway Company and others. From an order fixing the freight rates, the Missouri, Kansas & Texas Railway Company and others appeal.</p> <p>This proceeding was begun against the Missouri, Kansas & Texas Railway Company, the Atchison, Topeka & Santa Fe Railway Company, the Gulf, Colorado & Santa Fe Railway Company, the Chicago, .Rock Island & Pacific Railway Company, the St. Louis & San Francisco Railroad Company, the St. Louis, Iron Mountain & Southern Railway Company, the Kansas City Southern Railway Company, the Fort Smith & Western Railroad Company, the St. Louis, El Reno & Western Railway Company, the Midland Talley Railroad Company, the Kansas City, Mexico & Orient Railway Company, the Oklahoma Central Railroad Company and Asa E. Ramsey as receiver thereof, and the Missouri, Oklahoma & Gulf Railway Company, the herein appellants, by the Corporation Commission, on the 18th day of December, 1907, by causing to be published in the Guthrie Leader, a daily paper published in Guthrie, Logan county, state of Oklahoma, a certain order, referred to as proposed order No. 4, and thereafter, on the 31st day of January, A. D. 1908, said cause was heard and final order No. 11, fixing intrastate rates on lumber, was made and entered, and- on Februarv 3, 1909, application in due form was made to the chairman of the commission for the certification of the evidence heard and considered by the commission in making said order, together with the facts found and the reasons upon which same was based, to this court, and, further, for a supersedeas as to the order. The request was granted by the commission as to certifying, but refused as to the super-sedeas, and the record was certified by the acting chairman of the commission to this court on the 3d day of February, A. D:'1909. On the 11th day of September, A. D. 1909, counsel for appellee moved this court to dismiss this appeal on the grounds: (1) That neither the appeal nor application for such certification was made in due time. (3) That no statement of facts was found certified on the record, although the certificate states that such facts were not made of record by the commission. (3) That it was the duty of the appellants to take such steps to preserve such record, if they desired to appeal.</p>

Corporation Commission. Action by the State against the Atchison, Topeka & Santa Fe Railway Company and others. From an order fixing the freight rates, the Atchison, Topeka & Santa Fe Railway Company and others appeal.

<p>RAILROAD RATES — Regulation by Corporation Commission. Syllabus same as in Midland Valley Railroad Co. et al. v. State, No. 736, decided at this term.ante, p. 817, 104 Pac. 1086.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Harmless Error — Admission and Rejection of Evidence. The improper admission or rejection of evidence, if not prejudicial to the party complaining, is not ground for’ reversal.</p> <p>2. TROVER AND CONVERSION — Measure of Damages — Electio i —Time for. Under section 2752, Wilson’s Rev. & Ann. St. 1903, , which provides, in part, “The detriment caused by the wrongful conversion of personal poperty is presumed to be: First: The value of the property at the time of the conversion with, the /interest from that time; or, Second. Where the action has been 'prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party. * * in an action for damages for the conversion of personal property, the injured party must elect which measure of damages he will claim, but, unless by his pleadings or otherwise he has made such election, he may at the time the cause is submitted to the jury elect the measure of damages he deems most advantageous to him.</p> <p>3. TROVER AND CONVERSION — Measure of Damages — Election —Allegation Constituting. An allegation of a petition in an action for damages for the conversion of personal property to the effect chat at the time said personal property was taken it was of a certain specific value does not constitute an election on the part of the ipjijred party to claim as the detriment caused by the conversion thV value of the property at the time of the conversion, with interest .from that date.</p> <p>4. TROVER AND CONVERSION — Measure of Damages — Election —Acts Constituting. Where there is nothing in the record showing that the injured party made a formal election, an instruction by the court below ofi the measure of damages based • upon the second sub-division of''section 2752, supra, Wilson's Rev. & Ann. St. 1903, which instruction was accepted by the plaintiff without objection, constituted, a sufficient and timely election.</p> <p>5. TROVER AND CONVERSION — Measure of1-Damages — Diligence. Whether on action for conversion has been p'rosecuted with reasonable diligence within the purview of the ^econd subdivision of section 2752, Wilson’s Rev. & Ann. St. 1903, supra, is a question of law for the court.</p> <p>(Syllabus by the Court.)</p>

<p>Original proceedings for the disbarment of Virgil B. Biggers.</p> <p>Citing: Gobb v. Wm. Kenefick (Oída.) 100 Pac. 545; Gosslink v. Gamp-bell, 4 Iowa, 300: TJ. S. v. Ghoutecm, 102 U. S. 611; 13 A. & E. Ene. L. (2d Ed.) 53 ; In re Brown, 2 Olda. 590; Ex parte Wall, 107 IT. S. 265; State of Maryland v. Railroad Go., 3 How. (IT. S.) 552; ITerriman v. Railroad Go., 57 Iowa, 191; U. S. v. Reisinger, 128 U. S. 402; Staite ex rSl. v. Roasnum (Wash.) 101 Pac. 357; In re Henderson, 88 Tenn. 531; Staite v. McClafugherty, 33 W. Va. 250; Expande Cole, 1 McCrary (U. S.) 405; Sefasfs Case, 116 Pa. St. 455; Delano’s Case (N. H.) 43 Am. Bep. 555.</p> <p>Citing: In re Payton, 12 Kan. 315; BecJcner v. Com. (Ky.) 103 S. W. 378; In re Gollins (Cal.) 81 Pac. 220; Starlde on Evidence, see. 4; People v. Forbes, 143 N. Y. 219; Brotan v. TJ. S., 168 U. S. 533; Cowiselman v. Hitchcock, 142 U. S. 547; Boyd v. TI. Si, 116 U. S. 631.</p>

<p>On motion to re-tax costs.</p>

<p>1. COLLEGES AND UNIVERSITIES — Regents—Agricultural Board — Constitutional Powers. Section 31 of article 6, page 203, Snyder’s Constitution of Oklahoma, providing that the board of agriculture therein created shall be the board of regents of the state agricultural and mechanical college, and “shall discharge, such other duties * * * as may be provided by law," vests the said board of agriculture with the same power, jurisdiction. and authority that was possessed by the board of regents of the agricultural and mechanical college at the time of the adoption of the Constitution.</p> <p>2. COLLEGES AND UNIVERSITIES — Officers—Duties—Constitutional Provisions — Conflict. That portion of article 1, c. 37. p. 563, Sess. Laws Okla. 1909, defining the duties of the state board of public affairs, so far as it attempts to confer upon the board of public affairs the powers and duties vested in the board of regents of the state agricultural and mechanical college as the same were conferred by the Constitution, is void.-</p> <p>3. CONSTITUTIONAL LAW — Statutes—Intent. A thing within the intent of a constitutional enactment is, for all purposes, to be regarded within the words and terms of the Constitution; and a legislative enactment, evading the terms and clearly .expressed or necessarily implied purposes of the Constitution, is as clearly void as if in express terms forbidden.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Carter County; Stihoell II. Bussell, Judge. Mandamus by the State, on relation of I. R. Best, against the City of Ardmore and others. Judgment for relator, and respondents bring error. The proceeding is from a judgment in the district court of Carter county awarding a peremptory writ of mandamus, ordering and directing plaintiffs in error, defendants below, to issue certain public utility bonds.

<p>1. ELECTIONS — Ballots—Deposit—Mandatory Statutes. That part of section 4 of chapter 17, p. 233, of the Session Laws of Oklahoma Territory of 1905. which provides that on leaving the booth the voter shall “deliver the ballots to the inspector or judge temporarily acting as inspector, and such inspector shall forthwith, in the presence of the voter and members of the election board and the watchers, deposit same in the respective ballot boxes,” is mandatory.</p> <p>2. ELECTIONS — Contest—Gross Irregularities — Rejection of Precinct. When it appears that practically not only every mandatory but also every directory provision of the laws governing the holding of the election, except that relating to time and place have been flagrantly and willfully violated in a precinct, and the integrity of the result of such election is left in grave doubt,</p> <p>and the trial court thereby rejects the ballots cast at such precinct, his action will not be disturbed on review in this court.</p> <p>(Syllabus by the Court.)</p>

<p>Original action to contest a county seat election by the Incorporated Town of Westville against the Incorporated Town of Stillwell and others.</p> <p>Citing: 6 A. & E. Ene. L. 325; Bowser v. Smith, 3 Mo. 45; Daly v. Pebroff, 10 Phila. 389; State Board of Freeholders, 35 N. J, Law, 269; Fowler v. State (Tex.) 3 S. W. 255; Tarbox v. Sughrue, 36 Kan. 225; Lowe v. Wheeler, 2 Ellsw. El: Cas. 61; Ciarle v. Robinson, 88 Ill. 504; Quinn v. Lattermore, 120 N. 0. 426; Pain on Elections, sec. 360.</p>