Volume 30 — Oklahoma Reports

<p>1. APPEAL AND ERROR — Waiver of Errors. It is the rule and repeated holding of this court that alleged, errors, other than those affecting jurisdiction, not specifically pointed out and insisted upon in plaintiff in error’s brief, will be treated as waived.</p> <p>2. MORTGAGES • — Foreclosure — Terms — Happening of Contingency —Evidence. When a note and mortgage absolute in its terms has been executed, together with a contemporaneous collateral written agreement changing the absolute .liability expressed in the note' and mortgage to. a contingent liability only, held that, upon a suit on the note and mortgage, before a,recovery can be had, the happening of the contingency stipulated in the collateral agreement must be shown by some evidence.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. TRIAL — Direction of Verdict. The fact that each party moves the court for a peremptory instruction does not constitute a waiver of trial by jury upon the part of either.</p> <p>2. FRAUDULENT CONVEYANCES — Sale—Change of Possession. The provisions of section 2933, Comp, Laws 1909, "that every transfer of personal property other than a thing in action is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued . change of possession of the things transferred, to be fraudulent and therefore void, against those who are his creditors while he remains in possession," etc., do not apply to a mortgagee’s sale, and do not render such sale void as a matter of law, though the purchaser leaves the property in the possession of the mortgagor.</p> <p>(Syllabus by Rosser, C.)</p>

<p>Error from District Court„ Grant County; W. M..Bozvles, Judge.</p> <p>Action by the Port Huron Engine & Thresher. Company against Charles E. Ball. Judgment for defendant, and plaintiff brings error.</p>

Error from Johnston County Court; Nick Wolf, Judge. Action by W. A. Barnes,against F. L. Low. Judgment for plaintiff, and defendant brings error. Action begun in the justice, court of Harris township, at Tishomingo, to recover $65 damages for the death of a boar and injury to a sow, both belonging to defendant in error, by a boar owned by plaintiff in error.

<p> Error from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Action by C. W. Kerfoot against the Kerfoot-Bell Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Murray County Court; Harry W. Fielding, Judge. </p> <p>Action by J. E. McLaughlin against the Deming Investment Company. Death of J. E. McLaughlin having been suggested, the cause was revived and continued n the name of J. W. McLaughlin, as the sole and only heir at law of the said J. E. Mc'Laughlin, deceased. Judgment for plaintiff, and defendant brings error.</p> <p>On July 1, 1908, J. E. McLaughlin, plaintiff, filed'his petition against the Deming- Investment Company, defendant, in the county court of Murray county, alleging that during the months of June and July, 1906, he was the authorized and acting agent of plaintiff in error; that his duties were to represent the plaintiff in error in the making of loans in the city of Sulphur and vicinity, and as compensation therefor he was to receive a portion of the 'commission on each loan made, the same to be paid by thé said Deming Investment Company as soon as the loan was closed; that while acting as such agent he made a loan of $7,500 to Mr. J. W. Harper, the agent’s share of the. commission amounting to $187.50; that plaintiff in error has paid to defendant in error the sum of $93.75, one-half of said commission; that it has refused and neglected to pay the balance of $93.75, although often requested so to do, and there was due, owing, and unpaid to defendant .in error from plaintiff in error the said sum of $93.75, with interest from June 15, 1906. Answer was duly filed, in which the employment and services were admitted, but alleges that one Webster was entitled to one-half of said commission for service rendered in connection with the said McLaughlin, and in addition pleaded an accord and satisfaction, duly made and ratified by the parties. The cause was tried to a jury, and a verdict for $93.75 and interest was rendered in favor of plaintiff. A motion for new trial was duly made, overruled, and exceptions taken.</p>

Error from District Court, Grant County; W. M. Bowles, Judge. Action by the Northwest Thresher Company against G. T. MeCarroll and wife. Judgment for defendants. On motion by defendants to discharge certain property from an execution levied by the sheriff of Grant county, on the ground that the property levied on was exempt from execution because a homestead. Motion sustained, and plaintiff brings error.

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by Saida Barkett against the ^Oklahoma City Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by Rosa Diab against the Oklahoma City Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Okmulgee County Court; M. M. Alexander, Judge. Action by Ered Geese and others against J. C. McKallip and 'others. Judgment for plaintiffs, and defendants bring error’. Fred Geese, one of the defendants in error, as plaintiff below, brought an action in the county court of Okmulgee county against J. C. McKallip, L. G. Wiley, and others, alleged to be partners doing business under the firm name of McKallip Bros. & Wiley.

King, Judge. Suit in equity by Flattie Elliott, a Creek freedman, to recover certain lands conveyed while a minor to Perry R. Vaughn and by him to Williston J. Stevens. Robert F. Blair, a purchaser from plaintiff, after her majority, of a portion of the same tract, intervened. Decree for plaintiff.

<p>APPEAL AND ERROR — Review—Questions of Fact. This court cannot consider any question depending upon the facts for its determination, where the ease-made does not contain the averment by way of recital that it contains all the evidence submitted or introduced on the trial of the ease, and a certificate of the clerk of the trial court is not sufficient.</p> <p>(Syllabus by Ames, 0.)</p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by Perry Faller against J. O. Davis and wife. Judgment for defendants, and plaintiff brings error.</p>

<p>TELEGRAPHS AND TELEPHONES — Delay in Delivery — Mental Anguish. In the absence of statute, damages are not recoverable for mental distress alone, caused by negligent delay in deliverying a telegram.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>EXECUTION — Sale—Injunction—Dissolution. Where a temporary injunction was issued to restrain a constable from selling certain personal property under execution "pending the further order of • the court,” and the property was returned to the plaintiff in the injunction suit, who sold it and disposed of the proceeds before final hearing, held, that the temporary injunction was properly dissolved. ■</p> <p>(Syllabus by Bosser, C.)</p>

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by L. E. Lines against Jake Hoshaw. Judgment for plaintiff, and' defendant brings error.</p>

<p>Error from Delaware County Court; Wilson N. Smith, Judge.</p> <p>Action by the Bank of Grove against Peter Dennis and others. From a judgment for defendants, plaintiff brings error.</p> <p>This was an action begun in the county court of Delaware county on the 1st day of June, 1908, by the plaintiff in error, the Bank of Grove, as plaintiff, against the defendants in error, Peter Dennis, H. P. Wood, and W. H. Wood, as defendants, on a certain promissory note in the sum of $200, dated April 28, 1903, due 90 days after date, payable to the order of the Bank of Grove with interest at the rate of 10 per centum per annum after maturity until paid. The defense of usury, in connection with others, was interposed by defendants. ' The cause was tried to the court without the intervention of a jury, and a judgment in favor of the defendants was rendered, on the' ground that said contract was usurious and void.</p> <p>At the request of the plaintiff, the trial court made special findings of fact, which show:</p> <p>“First. Plaintiff is a corporation as alleged in the petition. Second. There are no credits against the note sued on, except the $11 set out, and the $8 on October 28, 1903. Third. The amount due on said note after crediting makers with all payments, there being no set-off or counterclaim proven, is $302.52. Fourth. Without counting any interest whatever there is due the plaintiff on said note $181 by the terms thereof. Fifth. Plaintiff knowingly took, reserved, and charged interest at the :rate of 10 per cent, per annum. Sixth. There was no contract for a greater rate of interest than the 10 per cent, per annum. Seventh. The note sued on was taken in payment and settlement of another note signed by different sureties.</p>

<p>BROKERS — Sale of Personalty — Commission. If an agent for the sale of personal property introduces a principal to a prospective purchaser and assists in procuring a sale, he is entitled to a compensation for his services, even though the principal makes the sale direct and at a lower price than the agent had been authorized to sell for, when the negotiations are continuous and it does not appear that the purchaser would not have bought at the agent’s price.</p> <p>(Syllabus by Ames, C.)</p>

Brror from Garfield County Court; James B. Cullison> Judge. Action by John Campbell -against Jacob Stauffer and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Noble County; W. M. Bowles, Judge. Action by Thomas H. Doyle and Parker W. Cress against School District No. 38, Noble County, and others. Judgment for defendants, and plaintiffs bring error. Action begun in the justice court of Noble county, on May 8, 1906, by Doyle & Cress, partners, as plaintiffs, to recover the sum of $75, as an attorney’s fee, alleged to be due them for certain professional services rendered said school district.

Error from District -Court, Canadian County; W. N. Maben, Judge. Action by C. C. Spurgeon against the El Reno Gas & Electric Company. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Failure to File Brief — Reversal. Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of the court, and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>2. REVIEW' OF EVIDENCE. Evidence examined, and held insufficient to sustain verdict.</p> <p>(Syllabus by Robertson, C.)</p>

Error from District Court, Okmulgee County; W. E. Barnujn, Judge. Action by Ben Adams against Frederick B. Stem to cancel a conveyance of real estate from the plaintiff to the defendant upon the ground that it was procured by false and fraudulent representations. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by the Chestnutt-Gibbons Grocer Company against William E. Linton. Judgment for plaintiff, and defendant brings error.</p> <p>■ On November 23, 1905, Wilson & White and William E. Linton, plaintiff in error, signed, “as principal, jointly and severally,” a thirty-day negotiable promissory note in the sum of $179.19, payable to the Chestnutt-Gibbons Grocer Company, 'defendant in error, at its office in Muskogee, upon which partial payments were made, reducing the amount outstanding to $60, for which amount this action is brought on appeal from the mayor’s court, upon a statement of facts involving the legal effect of giving such note for a debt' of Wilson & White, theft due, of partial payment by them thereupon, of the death of one of said firm after the note became due, the insolvency of such firm, and the want of notice of nonpayment, and the bankruptcy of said firm; such notice first being given to plaintiff in error July 21, 1906.</p>

<p>1. REPLEVIN — Bond—Objections—Waiver. Under the law in force in Indian Territory prior to statehood, in an action in replevin, where the replevin bond was signed by plaintiff only, without sureties, and the case is tried, and judgment rendered, no objection having been raised to the sufficiency of said undertaking, the defendant, having executed a redelivery bond, which was accepted, and the property returned to him, will not in a suit to recover on a breach of the redelivery bond be heard for the first time to object to the sufficiency of the original replevin bond, but will be deemed to have waived all defects therein.</p> <p>2. SAME — Redelivery Bond — Validity. In such a case, in the absence of other valid objection, the redelivery bond shall be deemed a valid undertaking, and the parties executing the same will be bound thereby.</p> <p>3. SAME — Validity as Common-Law Obligation. Such a redelivery bond, even though all the statutory requirements concerning its execution have not been complied with, constitutes a valid common-law obligation.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Brror from Ottawa County Court; D. W. Talbot, Judge. </p>

<p> Brror from Atoka County Court; J. H. Linebaugh, Judge. </p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by the Van Arsdale-Osborne Brokerage Company against T. N. Patterson. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action on a fidelity bond by the Tyler & Simpson. Company against the Southern Surety Company. Judgment for plaintiff, and defendant brings error.</p> <p>The Southern Surety Company, a corporation, organized under the laws of Oklahoma, and doing business in this state as a surety company, on January 1, 1908, executed to Tyler & Simpson Company, a Texas corporation, authorized to do business in this state, and engaged in the wholesale grocery business at Ardmore, a surety bond in the sum of $5,000, undertaking to indemnify said last-mentioned company against loss sustained on account of any fraud or dishonesty amounting to embezzlement or larceny committed by its bookkeeper, C. E. Carter, during a term of one year beginning January 1, 1908. The bond contained the following, among other stipulations:</p> <p>“Whereas, the employer has heretofore delivered to the company certain representations and promises relative to the duties and accounts of the employee, and other matters, it is hereby understood and agreed that those representations and such promises, and any subsequent representation or promise of the employer, hereafter required by or lodged with the company, are hereby expressly warranted to be true.”</p> <p>In the month of February following, Tyler & Simpson Company, on a blank prepared and sent to it by the surety company, known as “Employer's Statement,” filled in said blank, answers to eighteen certain questions therein propounded to it. The letter accompanying these questions contained the following:</p> <p>“The company desires to have answers to the following questions and answers will be taken as a part of the consideration for the bond, if issued.”</p> <p>This form, following the questions, contained the .further provision :</p> <p>“It is agreed that the above answers are to be taken as conditions precedent and as the basis of the said bond applied for, or any renewal or continuation of the same that may be issued by the Southern Surety Company of Denison, Tex.,'to the undersigned upon the person above named.”</p> <p>This was signed by the Tyler & Simpson Company on February 17, 1908, and returned to the surety company. Among the questions submitted to the Tyler & Simpson Company and by it answered were the following:</p> <p>“Q. 12a. What means will you use to áscertain whether his accounts are correct? A. Monthly balances and watching them. Q. 12b. How frequently will they be examined? A. -. Q. 13. When were his accounts last examined? A. Each account is examined monthly. * * * O. 15. Is there now, or has there been, any shortage due you by applicant? A. No; not that we know of. Q. 17. Have you ever sustained loss through the dishonesty of any one holding the position of the applicant? Á. Yes. Q. 18. If so, state what means you have adopted to prevent the recurrence of similar loss. A. By a more careful scrutiny of accounts.”</p> <p>In its answer, denying liability, plaintiff in error charged:</p> <p>“That the representations and promises contained in said employer’s statement relative to the duties and accounts of said employee, C. E. Carter, and other matters, were expressly warranted to be true; that the same were no* true; that said plaintiff never complied with its promissory warranty as to what means it would use to ascertain whether the employee’s accounts were true, said promise being to make monthly balances and watch them,, and, in the statement as to question as to how frequently such accounts would be examined, the answer was, ‘We look after them all the time.’ The answer to the question, ‘Is there now, or has there been, any shortage due you by the applicant?’ was, ‘No; none that we know of.’ Said answer was believed by the defendant to have been made after proper investigation, the fact showing that no investigation of any kind was made at the time or any subsequent month for more than a year, and that such investigation would easily have detected the shortage and defalcation of said Carter.”</p> <p>While said bond was in force, the principal, by means of false' entries in the books, embezzled funds of his employer amounting to $1,610. This defalcation was admitted by plaintiff in error. The case was tried to a jury, and, after both sides had rested, the court directed the jury to return a verdict for the plaintiff in the sum of $1,610, with $56.35 accrued interest. Prior "to such instruction defendant demurred to the testimony, and then asked the court to instruct the jury to return a verdict for the defendant. These requests were overruled and exceptions saved. Defendant then requested the giving of the following instruction, which request was refused, and exceptions saved:</p> <p>“You are instructed that the answers to the questions propounded in the. employer’s “statement are in law warranties, and, if you find from the evidence that any of them material to the issues in this case were untrue and were not truthfully complied with, you must find your verdict for the defendant.”</p> <p>Motion for new trial being overruled, the cause is brought here for review.</p>

<p>1. NEW TRIAL — Proceedings to Procure — Time for Motion — Effect of Delay. Section 5827, Oomp. Laws 1909, provides that motion for new trial must be made within three days after the verdict or decision was rendered, unless unavoidably prevented, except in the case of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Therefore, in the absence of any excuse, a motion for a new trial, filed more than three days after the decision in a case was made, will not be considered by the trial court, and no error will- be committed in overruling the same.</p> <p>2. APPEAL AND ERROR — Presentation of Questions in Lower Court — Motion for New Trial — Necessity. This court will not review the rulings of a lower court made in the course of the trial, unless a motion for a new trial, based upon such alleged errors, had been duly presented to the lower court, and an opportunity thereby to re-examine and correct them has been given to such court.</p> <p>3. NEW TRIAL — Motion—Time. The case-made shows that judgment was entered on March 19th, and a bare recital follows stating that a motion for a new trial was filed, presented, and overruled on March 23d. No. copy of the motion is to be found in the case-made. Held that, even though a motion for a new trial had been presented, it affirmatively- appears that it was not filed within the three days as required by statute, and in the absence of any excuse as to why it had not been so filed, error assigned on account of the overruling of the same by the trial court will not be considered by this court.</p> <p>4. PLEADING — Covenants—Form of Action — Sufficiency of Pleadings. Common-law forms of actions have been abolished by stat- < ute in this state; but common-law causes of action have not been abolished. Under the Code the plaintiff need only. state-the facts constituting his cause of action in ordinary and concise language without repetition. The petition in this ease examined, and held to be sufficient as against a general demurrer.</p> <p>(Syllabus by Robertson, C.)</p>

<p>1. CARRIERS — Use of Premises — Exclusion of Persons from Depots. A railway company has the right to exclude from its depots and warerooms persons who come there in an intoxicated condition, and who are turbulent and troublesome and disturb and interfere with the agents and employees of the company in the discharge of their work, and may also exclude therefrom those who are reported to be dishonest, and on account of whose past presence in and about its depots and warerooms freight had been removed without the company's consent, and for which it was compelled to pay consignee the value thereof.</p> <p>2. TORTS — Interference with Business — Exclusion of Persons from Depots — Actions for Damages — Defenses. In an action-for damages on account of the issuance of a letter, notifying local shippers that a railway company will refuse to allow plaintiff to haul or handle any more freight from its depot, and to secure another drayman, it is error to strike from the answer allegations charging that it was necessary, in the course of his business, for the plaintiff so excluded to go about its platform and premises unattended by its agents, and to handle and have access to goods other than those for which he had orders; that, while plaintiff was acting as drayman, merchandise had been taken from its depot without its knowledge or consent, and for which it had been compelled to pay consignee; that said plaintiff was frequently at its depot in an intoxicated condition, was contentious, turbulent, troublesome, and disagreeable, disturbed and interfered with its agents and employees in the discharge of their work; had been arrested and convicted of drunkenness a number of times; had been arrested on the charge of theft, and all of which facts were at the time known to defendant’s agents and employees at its local station, where plaintiff had been engaged in carrying on his drayage business — such allegations, if proved, being a justification of the company’s act, such as will bar a recovery.</p> <p>(Syllabus by Sharp, 0.)</p>

Error from District Court, Carter County; Stilwell H. Russell, Judge. Action by the Western Casket Company against Brown & Bridgeman to recover $58.85, alleged to be due on open account. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Bryan County; D. A. Richardson, Judge.</p> <p>Action by J. A. Moore, trustee in bankruptcy of Will Moon, against the Caddo National Bank. Judgment for plaintiff, and defendant brings error.</p>

Error from Delaware County Court; Wilson N. Smith, Judge. Action in replevin by James A. Cobble against James E. Hutchings. Judgment for plaintiff, and defendant brings error.

<p>1. DEPOSITIONS — Certificate of Officer — Relationship. A deposition should not be suppressed because the officer taking it does not certify that he is not related to either of the parties, unless there is some affirmative showing of such relationship; the presumption being that the officer is qualified.</p> <p>2. SAME — Objections—Failure to Raise. When a deposition has been read in evidence at one trial, without objection, it is too late thereafter to raise purely technical objections which were apparent on the face of the deposition prior to the first trial.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court', WctsJiita, County; James R. Tolbert, Judge. ■ </p> <p>Action by Georgia Crenshaw Merrell against Alexander W. Walters to recover possession of real estate. Judgment for defendant, and plaintiff brings • error.</p>

Brror from District Court, Sequoyah County; John H. Pitchford, Judge. Action by J. W. Higgins and others in mandamus against A. J. Jeremiah and others, County Commissioners. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action by Bert McCulley against the Chicago, Rock Island & Pacific Railway Company. Prom a judgment for plaintiff, defendant brings error.</p>

<p>APPEAL AND ERROR — Review—Record—Motion for New Trial. In an action instituted in March, 1907, in the Indian Territory, but tried after statehood, where no motion for a new trial was made or question of law reserved at the tial, there is nothing before this court for adjudication; the errors complained of occurring during the trial and not appearing from the judgment roll or record proper.</p> <p>(Syllabus by Sharp, G.)</p>

Error from District Court, Okmulgee' County; W. L. Barnum, Judge. Action by Pauline Bailey and Polly Brown against the Hughes Land Company and others. Judgment for plaintiffs, and defendants bring error.

Error from Le Plore County Court; James L. Hale, Judge. Action by M. L. Alexander against J. M. Summers. Judgment for plaintiff, and defendant brings error. Action on two promissory notes aggregating $182.95, given by plaintiff in error, defendant below, for the first premium on a life insurance policy in the sum of $5,000 taken out by him.

Error from District Court, Garfield County; H. G. McKeever, Special Judge. Action for slander by Nannie E. Roberts,. defendant in error, plaintiff below, against George F. Trower, plaintiff in error, defendant below. Judgment for plaintiff, and defendant brings error.

Error from Carter County Court; I. R. Mason, Judge. Action by Albert Alexander and others against the United States Fidelity & Guaranty Company. Judgment for plaintiffs, and defendant brings error.

<p>1. TELEGRAPHS AND TELEPHONES — Operation—Failure to Deliver Message — Liability. Allen directed Moore, as Ms agent, to see if he could purchase land for $1,600, and, if so, to wire him in Iowa, when he would send the money to pay, for it. Moore sent the wire by the telegraph company pursuant to Allen’s instruction. The telegraph company failed to deliver the message, and subsequently Moore bought the land himself. Held, that the telegraph company was liable for damages.</p> <p>2. SAME — Failure to Deliver Message — Liabilities. When a principal instructs his agent to communicate with him by wire and the agent does so, the telegraph company becomes the principal agent for the transmission of the message, and its neglect, as between the principal and the agent, is the neglect of the principal, and the agent is not bound to seek some other method of communication where he has no ■ knowledge of the non-delivery of the message.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Coal County; A. T. West, Judge. </p> <p>Action by William E. Osborne against the Western Coal & Mining Company and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Blaine County; James R. Tolbert, Judge. Petition for a new trial by I. H. Lookabaugh, plaintiff in error, defendant below, on the grounds of newly discovered evidence.

<p>1. APPEAL AND ERROR — Defect of Parties — Motion to Dismiss in Trial Court. A motion to dismiss the action at the conclusion of the evidence, on the ground of defect of parties, does not, as a general; rule, properly raise the question for review on appeal.</p> <p>2. PARTIES — Defect of — How Raised — Waiver. The question of a defect of parties plaintiff must be raised by demurrer, if the defect appears on the face of the petition; if it does not so appear, it should be raised by answer; and, if no objection be taken by either demurrer or answer, the defendant will as a general rule be deemed to have waived the same.</p> <p>3. BROKERS — Commissions—Action—Evidence—Question for Jury. In a suit for commission by a real estate broker for an alleged sale of certain town lots where the alleged contract of sale consists entirely of letters, telegrams, and telephone conversations, concerning which there is no conflict in the evidence, but whereiu the material question to be decided is as to whether or not there was a complete meeting of the minds of the parties on the terms of the proposed sale, and where it is shown by the evidence that, after the let-ters and telegrams had passed between the parties, the parties met, as proposed in the correspondence, to close the trade, and certain conversation occurred between them, which tended to throw light on the intention of the parties relative to the letters and telegrams, and concerning which conversations there is conflict in the evidence, held, 'that the question was a proper one to submit to the jury.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. CARRIERS — Shipment of Stock — Right of Shipper — Failure to-Feed and Water. Rev. Stat. U. S., sec. 4386 (U. S. Comp. Stat. 1901, p. 2995), requiring railroad companies, under a penalty imposed, payable to the United States, to unload animals shipped, at. stated periods, for rest, food, and water, gives to a shipper whose animals are injured by failure of the company to do so a cause of action enforceable in a state court.</p> <p>2. SAME — Shipment of Stock — Facilities for Feed and Water. Under U. S. Rev. Stat., sec. 4386 (U. S. Comp. Stat. 1901, p. 2995),. it is the duty of a railroad company in carrying on interstate shipment of animals, not only to unload the same within the periods mentioned in the statutes, but to provide facilities reasonably sufficient and suitable for watering and feeding the animals and! for allowing them an opportunity for rest.</p> <p>3. SAME — Live Stock Shipment — Failure to Feed and Water — Damages. In a suit for damages to an interstate shipment of sheep, against a railroad company, based on its negligence in failing to unload the animals for water, food, and rest as required by U. S. Rev. Stat., see 4386 (U. S. Comp. Stat. 1901, p. 2995),, the measure of damages is the difference, if any, in the fair market value of the sheep at the point of destination in the condition-in which they were delivered and what it would have been at such point of destination if they had been properly unloaded and provided with food, water, and rest as required by statute.</p> <p>4. SAME — Interstate Shipment — Failure to Feed and Water — Evidence. In a suit based on failure of a railroad company, in transporting an interstate shipment of animals, to comply with the duties imposed on it by U. S. Rev. Stat., see. 4386 (U. S. Comp.. St. 1901, p. 2995), where the proof shows that the railroad was in possession of the animals about 40 hours, and actually unloaded the animals within the period named in the statute, but unloaded them in pens so small that the animals were crowded and jammed' in the pens as close together as in the ears, and could not lie down or move about, and where no troughs or other facilities were-provided for watering or feeding them, and no water was provided, held, that the proof justified a finding that the railroad had not performed the duty required of it by the statute.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Carter County; Stillwell H. Russell, Judge. </p> <p>Action by J. George Hobbs against J. F. Young. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Okfuskee County; John B. Pattersron, Special Judge.</p> <p>Action by William H. Dill against L. S. Skelton and W. E. Whitman. Judgment for plaintiff, and defendant Skelton brings error.</p>

<p> Error from District Court, Cherokee County; James I. Coursey, Special Judge. </p> <p>Action by Daisy McClelland against R. A. Witherall. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Brief. Where plaintiff in error .files no brief, as required by rule 7 of this court (20 OHa. viii, 95 Pac. vi), the appeal will be dismissed for want of . prosecution.</p> <p>(Syllabus by,Brewer, 0.)</p>

Error from District Court, Muskogee County; John H. King, Judge. Action by J. C. Fast and FI. H. Bell against Connell Rogers, County Treasurer, and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Cherokee County; John H. Pitchford,. Judge. Action by J. D. Cox against Augustus E. Rogers and others. Judgment for plaintiff as to Augustus L. Rogers and in favor of the other defendants, and plaintiff brings error.

Error from Comanche County Court; Jas. H. Wolverton, Judge. Action by A. C. Cooper against D. C. Austin. Judgment for plaintiff. From an order setting it aside and dismissing the case, plaintiff brings error.

<p> Error from Pittsburg County Court; R. W: Higgins, Judge. </p> <p>Action by the Chicago Crayon Company against Henderson G. Rogers and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Comanche County Court; James IT. Wolverton, Judge. </p> <p>Action by W. E. Wilson against E. G. Grimes. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Dismissal-—-Failure to File Brief. Where plaintiff in error files no brief, as required by rule 7 (20 Okla. viii,, 95 Pac. vi) of this court, the appeal "will be dismissed for want of' prosecution.</p> <p>(Syllabus by Rosser, G.)</p>

<p> Error from District Court, McClain County; R. McMillan, Judge. </p> <p>Action by L. C. Adams against John C. Adams. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tillman County; J. T. Johnson, Judge. Action by J. S. Hurley against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. On November, 1906, J. S. Hurley, plaintiff below, hauled a wagon load of cotton seed for the purpose of shipment over defendant company’s road, to the town of Manitou, Okla., to be loaded into a car preparatory to shipment.

<p>1. ANIMALS — Injuries by Dogs — Evidence—Instructions. Plaintiff was injured by the falling of his horse. He alleged the falling was caused by two dogs belonging to defendant barking and jumping at the horse. Plaintiff testified that he saw only one dog, a water spaniel. A witness for plaintiff testified that he saw three dogs, and that the one that jumped at the .horse was a cur dog. The third dog was a bird dog. There was no proof that the cur dog belonged to the defendant, and no proof that the bird dog had any thing to do with the injury. The court instructed the jury that there was no proof that the bird dog had anything to do with the injury. Held, that it was error for the court to refuse an instruction requested by the defendant to the effect that, if the cur dog caused the injury, the plaintiff could not recover.</p> <p>2. TRIAL — Instructions—Conflicting Evidence. In a ease where the evidence is sharply conflicting, the issues should be carefully defined by the instructions, and, if requested, the court should eliminate all questions upon which there is a failure of evidence.</p> <p>(Syllabus by Rosser, C.)</p>

Brror from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by the Western Roofing Tile Company against George PI. Deibler. Judgment for defendant, and plaintiff brings error.

<p> Error from.District Court, Garfield County; M. C. Garber, Judge. </p> <p>Action by Hattress H.. Shick and Margaret Shick against Hamlin W. Sawyer. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by R. T. Payne against R. B. Ramsey, Sheriff. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Haskell County Court; A. L. Beckett, Judge. </p> <p>Action by E. P. Sullivan against J. C. Standifer and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by Paul Yount against the St. Louis &. San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>This action was begun in the district court of Comanche county on September 28, 1907, by Paul Yount against the St. Louis & San Francisco Railroad Company for damages in the sum of $1,041.98, by reason of being ejected from a passenger train on said railroad; and thereafter, on September 25, 1908, in a jury trial, plaintiff recovered judgment in'the sum of $500, from which judgment the defendant company appeals.</p> <p>The petition in error contains the following assignments: First. The verdict of the jury is not sustained by sufficient evidence, and is contrary to law. Second. The court erred in his instructions given to the jury. Third. The court erred in refusing to give instructions numbered 1 to. 4, and each of them, requested by plaintiff in error. Fourth. Error in the assessment of the amount of recovery; the same being too large. Fifth. Errors of law occurring at the trial, and duly excepted to by plaintiff in error at the time. Sixth. The court erred in overruling the motion of plaintiff in error for a new trial.</p> <p>The evidence discloses that on July 2, 1907, Paul Yount and his brother Isom (Pete) Yount each purchased round trip tickets from Lawton, Okla., to St. Louis, Mo., from the defendant company’s agent at Lawton; the tickets costing $27.85, each, to be good until October 28, 1907. The plaintiff below, in company with his brother Pete, took the train at Lawton on the day the tickets were purchased, and from there went to St. Louis. On their going trip, plaintiff’s ticket was punched by the conductors on the different divisions' along the road. The plaintiff had been instructed by the agent at Lawton to go to the agent at St. Louis and have his ticket validated before he took the train for the return trip; the plaintiff having, after he reached St. Louis on the going trip, visited his relatives in Indiana, traveling over a different road, and not using the same ticket. On his return from Indiana to St. Louis, he went to the agent at St. Louis, and had his ticket validated, as per instructions and according to the company’s rules, preparatory for his return from St. Louis to Lawton. This was about July 17. After the train pulled out of St. Louis, and before reaching the next station’, the conductor came around to take up the tickets. He took plaintiff’s ticket first — that is, before looking at his brother’s ticket — and informed plaintiff that it was “no good,” and remarked, “On the bum”; whereupon Pete Yount, his brother, told the conductor that his was just like his brother’s, and that they got them the same time. The conductor then tool? Pete’s ticket, accepted it as good, and punched it. Pete called the conductor’s attention to some figures on the back, which figures had been made by the agent at Lawton, and asked the conductor to wire to the agent at Lawton and ask him if he and his brother had not bought tickets there. This the conductor refused to do. Pie told the plaintiff that he would have to get off at the next station or pay his fare, giving no further explanation, nor making any furthei remark than, “On the bum.” It is not shown clearly whethei this reinarle was meant for the ticket or passenger.</p> <p>The next station was the town of Pacific, Mo., and just'before reaching the station the conductor came through, put his hand on plaintiff’s shoulder, and informed him that he would have to get off at this station, or pay his fare. The conductor gave no explanation to plaintiff of his conduct, or why he refused the ticket, or wherein the ticket showed to be not good, but simply informed him that he would have to get off the train, or pay his fare. The plaintiff did not have money enough to pay for another ticket from there to Lawton; nor did he and his brother both have sufficient money to buy another ticket.</p> <p>The conductor remained with him, or close to him, until the train stopped at the depot in the town of Pacific. It being suggested to plaintiff by his brother that he had better get off than have a fight, plaintiff got off on the platform; the conductor and his brother following out on the platform; his brother telling plaintiff to remain there at Pacific until he reached Lawton, and he would have the agent wire transportation back. Plaintiff remained at this place about three days before he received transportation from his brother at Lawton. In the meantime he had done some little work shoveling coal at a mill. While he remained at Pacific, he was out in cash something like $4, and the ticket from Pacific to Lawton cost him $17.98. In- addition to this outlay, he claimed, in his petition and in his testimony, to have been damaged in the sum of $7 to $10 per day while detained at Pacific in loss of time, and to have been damaged in the sum of $1,000 for humiliation, mental suffering, and disgrace from being ejected from the train in the presence of other passengers. The fact also appears that the conductor did not assault him, or make any threats of assault, used no violence, nor showed any malice, but simply informed him that he would have to get off the train, or pay his fare. It further appeared that there were some marks or punches on the ticket which appeared to the conductor in question to have been made by some other conductor over the same division; this being the reason assigned by the conductor in his testimony for not accepting the ticket. These are the material facts, and about all the material facts in the-case.</p>

Error from District Court, Canadian County; J. J. Carney, Judge. Action by Charles E. McCoy against John E. McCoy and others. Judgment for plaintiff, and defendant John E. McCoy brings error. This is an action begun in the district court of Canadian county, March 4, 1907. Charles E. McCoy sued John L. McCoy, James N. Bleigh, and Fred.

<p>1. PLEDGES — Eights of Parties — Eights as to Third Persons. One who purchases property from the general owner, with full knowledge same is in the possession of another who is holding it under a claim that it is a pledge, takes the title to the property, subject to whatever rights the pledgee m possession may have in the goods.</p> <p>2. SAME — Eequisites—Lien. F., a corporation at Houston, Tex., shipped to Frederick, Okla., to its own order, certain goods; wrote to M., a banker at Frederick, a stranger to the transaction, and who had no interest or concern in it, of the shipment, and asked him to pay the freight and charges on the goods and take delivery of same and hold them in his possession, and to draw on it (F.) for the amount advanced. M. did as requested and paid $500 or $600 for freight and for the purchase price of a ear of brick shipped collect. The goods were delivered to him, and he took them into his possession and stored them, and drew a draft on F. for the advancements, which was never paid. Held, that the letter and the conduct of the parties with reference to the letter and goods were sufficient to support the verdict of the jury finding that the goods were held by M. as a pledge for the advancements made.</p> <p>3. EVIDENCE — Parol Evidence Affecting Writings — Admissibility. Upon the question whether an ambiguous transaction constitutes a pledge, the writing, if any, accompanying the transaction, the oral statements of the parties made at the time, or afterwards, and any collateral circumstances tending to show the intention of the parties may be considered.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. MORTGAGES — Foreclosure—Waiver of Appraisement. In a foreclosure suit on a note and mortgage, wherein appear the words “appraisement waived,” it is error to order the sale of the property before the expiration of six months from the date of the judgment.</p> <p>2. SAME — Foreclosure — Sale—Waiver of Appraisement. The fact that property, to be sold under execution based on judgment of foreclosure, was appraised, does not render valid a sale made of such property, before the expiration of six months from the date of judgment, where appraisement was waived in the note and mortgage upon which the judgment was based.</p> <p>3. PROCESS — Service by Publication — Affidavit—Knowledge of Defendant’s Residence. An affidavit for service by publication, which alleges the defendant to be a nonresident of this state, and that due diligence has been used, and summons cannot be served on defendant, in this state, together with other allegations required by law, is sufficient, without stating specifically the facts as regards the diligence used. But in such case where it is shown by-defendant in a motion to quash service, and is not contradicted, that the plaintiff when the affidavit was made, and publication had, knew that defendant was not a nonresident of this state, and that she actually resided in Oklahoma county in this state, although the affidavit was sufficient in form, yet it was, on such showing of uncontroverted facts, voidable, and ought to have been quashed.</p> <p>4. SAME — Publication—Affidavit by Attorney. An attorney in a ease may make the affidavit required for service by publication, although not specifically authorized to do so in the statute authorizing such affidavit. And to make same he does not have to bring himself within the limitations of sec. 5613, Comp. Laws 1909 (St. Okla. 1893, see. 3951).</p> <p>(Syllabus by Brewer, C.)</p>

Error from Haskell County Court; A. L. Beckett, Judge. Action by Joseph Garrett Garland, a minor, by.his legal guardian, W. G. Garland, against G. G. Beller. Judgment for defendant, and plaintiff brings error.

<p>1. COURTS — Jurisdiction—Statutory Provisions — Retroactive Operation. The jurisdiction of the district court of a civil action involving $500 pending ill the district court of Pawnee county, Okla. T., and, on the advent of statehood, properly transferred to the district court of Osage county, is unaffected by an act approved June 4, 1908 (Sess. Laws 1907-8, c. 27, art. 1), passed pursuant to sec. 10, art. 7, of the Constitution, giving the county court exclusive jurisdiction coextensive with the county in all civil cases involving in excess of $200, and not exceeding $500.</p> <p>2. SAME — Jurisdiction — Amount in Controversy — Statutes. The above-mentioned and dated act is prospective and not retrospective in its operation, and does not divest the district court of jurisdiction of civil causes then pending therein involving in excess of $200, and not exceeding $500.</p> <p>3. TRIAL — Appeal and Error — View of Premises — Discretion of. Court —Review. See. 5796, Comp. Laws 1909, authorizing a view by the trial jury of the property, the subject of the action, or the place where a material fact occurred, is discretionary with the trial court, and its ruling thereon will not be reversed on appeal, in the absence of a showing of an abuse of discretion, (a) This discretion extends to the time during the trial at which the jury is directed to make the view; (b) also whether the order shall be made where there has been a change in the condition of the locus.</p> <p>4. SAME — Instructions'—Duty of Judge. It is the duty of the court to submit to the, jury and give instructions thereon, any issue, theory, or defense which the evidence tends to support. This right is not affected by the fact that there is countervailing testimony.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. EVIDENCE — Best and Secondary Evidence. It is error for a trial court, over objections of a party, to permit a witness to read to the jury a long list of deposits, made at a bank, also a long list of checks, showing the amount of money drawn from the bank, which purported copy of account was not made by the witness, nor was it certified as being a true copy of the original account, and no excuse is offered for the failure to produce the original books of entry, or to show that the same were lost or destroyed, or that the person making the original entiles was dead, or absent from the county, or why the books containing the original account were not subpoenaed, or the deposition of the party in whose possession they were was not taken.</p> <p>2. SAME — Documentary. It is error for a trial court, over the objections of defendants, to permit plaintiff’s witness to testify that certain purported copies of lost agreements were true and correct copies of the originals, when the copies were not certified, nor supported by the oath of the party purporting to have made them, and it was not shown that they were made by the witness.</p> <p>3. SAME — Best and Secondary. It is error for a trial court, over objections of defendant, to permit plaintiff’s witness to identify an account, which includes many transactions, extending over several months’ time, and then to permit the introduction of said copy of account as evidence, when it is shov>rn that the witness was plaintiff’s bookkeeper and had made the original entries in the books; and that the said books of original entry were then in the immediate possession of witness, but which were not offered in evidence; such attempt to prove the correctness of a book account is contrary to the provisions of sec. 5907, Oomp. Laws 1909.</p> <p>(Syllabus by Robertson, 0.)</p>

Error from Tulsa County Court; N. J. Gubser, Judge. Action by Peter Deichmann against John H. Leavitt for attorney’s fees. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by A. D. Prescott and another against Jennie Brown. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. APPEAL AND ERROR — Review—Questions of Fact. It is a well-settled rule of this court that, where the evidence on a material fact is conflicting, this court will not review the same to ascertain where the weight lies, and where there is evidence tending reasonably to support the verdict, the same will not be disturbed on appeal.</p> <p>2. BILLS AND NOTES — Action on Note — Answer. Allegations of answer examined and held, to state a good defense in fraud and deceit.</p> <p>3. SAME — Defenses—Fraud—Evidence. Evidence in this case examined, and held amply sufficient to take the case to the jury on the question whether, or not, the execution of the note sued on was secured by fraud.</p> <p>(Syllabus by Robertson, 0.)</p>

Error from Superior Court, Pittsburg County; P. D. Brewer) Judge. Action by Ellis Sutton and another against the Midland Savings & Loan Company for the cancellation of a real estate mortgage and the recovery of a statutory penalty for failure to release. Judgment for plaintiffs, and defendant brings error.

<p>1. INJUNCTION — Bonds—Necessity. . Sec. 5760, Comp. Laws- 1909, requires the giving of a bond, before an injunction shall be operative, in all cases, unless otherwise provided by special statute.</p> <p>2. PLEADING — -Appeal and Error — Amendment of Pleading — Burden of Showing Prejudice from Error. The allowance of amendments to pleadings before or after judgment, when the same do not change substantially the claim or defense, rests in the sound discretion of the court, and the allowance of the same will not be disturbed on appeal unless it is made to affirmatively appear that its exercise has operated to the prejudice of the complaining party. (City of Shawnee v. Slankard, 29 Olda. 133, 116 Pac. 803.)</p> <p>>; APPEAL AND ERROR — Record—Questions Presented for Review —Exclusion of Evidence. The court cannot review alleged errors of the trial court in refusing admission of certain proffered evidence, unless such evidence, or the substance thereof, be in some proper manner incorporated in the case-made, thereby enabling this court to determine whether or not there was error in its exclusion.</p> <p>4. TRIAL — Direction of Verdict — Sufficiency of Evidence. Where, under the pleadings, the plaintiff is entitled to recover unless a certain affirmative defense therein pleaded is sustained, no evidence being produced tending- to support such a defense, a verdict should be directed in favor of the plaintiff. (Harrah & Co. v. First Nat. Bank of Tonkawa, 26 Okla. 620, 110 Pac. 725.)</p> <p>5. INJUNCTION — Liability on Injunction Bond — Admissibility of Evidence. In an action on a bond given in a suit to enjoin the sale of property, the exclusion of evidence that the property had materially increased in value to such an extent as to materially reduce the damage of the obligees of the bond was not error.</p> <p>6. TRIAL — Direction of Verdict — Determination of Motion. It is the duty of the court in directing a verdict to disregard incompetent testimony received over objection.</p> <p>(Syllabus by Robertson, C.)</p>

<p>Error from District Court„ Kay County; W. M. Bowles, Judge.</p> <p>' Action by J. H. Nations and others against J. A. Fitzpatrick. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. INSURANCE — Promissory Warranties — Validity. A stipulation in a fire insurance policy that the insured shall make and keep inventories and a set of books and keep them in a fireproof safe at night and at all times when the building mentioned in the policy is not open for business, or, failing in this, to keep such inventories and books at night and at all such times in some place not exposed to fire which would ignite or destroy said building, and in case of loss to produce such books and inventories for the inspection of the insurer, and in the event of failure on the part of the insured to produce such books and inventories, for the inspection of the insurer, that the entire policy shall be null and void, is a reasonable and competent provision to insert and attach to the policy.</p> <p>2. SAME — Promissory Warranties — Performance—“Inventory.” An inventory which bunches merchandise together without itemizing same, such as, “Xmas Goods, $784.39. Clothing, $1,500.00; Racket Goods, $900.00; Stone, J., $145.00;'Glass, J. and Silver, $190.00; Enamel Ware, $674.00; Tinware, and Glass, $187.00; Semi Porcelain Ware, $387.00; Chinaware and Silver, $847.75, etc.,” is not such an inventory as was required by the terms of the insurance policy sued on in this ease.</p> <p>3. SAME — Promissory Warranties — “Inventory.” An inventory, in the sense used in the insurance policy sued on, means an itemized list or enumeration of property, article by article, and is not intended merely to show the gross value of the property insured-, but is for the purpose of enabling the parties to ascertain the different articles which go to make up the entire stock in order that the insurance company may test the correctness of the claim for damages in two respects: First, whether the articles composing the stock belong to the class of property covered by the policy; sec-, ond, whether the valuation attached to the different items is reasonable.</p> <p>4. SAME — Construction—General Rules. The “three-fourths value” and “iron-safe” clauses attached to and forming a part of the contract of insurance should bo interpreted according to the same rules by which other contracts are cortstrued, and a substantial compliance therewith is sufficient. The evidence in the case examined, and held not to show a substantial compliance with said provisions.</p> <p>5. SAME — Promissory Warranties — Inventories — Sufficiency. The provision of a fire insurance contract which requires that the insured will keep such books and inventory securely locked in a fire- . proof safe at night, etc., is a promissory warranty, and is not substantially complied with by producing an inventory made one month prior to the fire, where it is shown that the inventory made within twelve calendar months prior to the issuance of the policy had been negligently allowed to remain out of the fire-proof safe, and,' together with the books, be destroyed, especially when the last inventory was not made in compliance with the terms of the policy, the goods not being itemized, but mere summaries of the amounts and values being given.</p> <p>6. SAME — Promissory Warranties — Keeping of Books. Books showing “all purchases and sales, both for cash and credit” within the meaning of a warranty in a policy of insurance, requiring the . insured to keep a set of books showing a complete record of business transactions including all such purchases or sales, need only be such as will show these matters to a man of ordinary intelligence, but plaintiff's Exhibit D, which was a small private pocket ledger, showing the amount of cash deposited in the bank, after deducting all expenses of the business, and covering a period of three weeks preceding the fire, is not a substantial compliance with said warranty, especially in view of the fact that the insured negligently permitted his books, including the cashbook, to remain without the fireproof safe and be destroyed by fire.</p> <p>7. . TRIAL — Taking Case from Jury — Demurrer to Evidence. When the evidence, with all the inferences that can be properly drawn from it, is insufficient to support a verdict, it is error to overrule a demurrer thereto.</p> <p>(Syllabus by Robertson, C.)</p>

Error from District Court, Washington County; John J. Shea, Judge. Action by William D. Robinson, a minor, by his father and next friend, W. H. Robinson, against Charles Owen, individually and as administrator of the estate of Oscar Parsons, deceased, and others. Judgment for defendants, and plaintiff brings error.

Error from Marshall County Court; J. W. Falkner, Judge. Action by J. M. Collins against the First National Bank of Madill to recover usurious interest. Judgment for plaintiff, and defendant brings error.

<p>PLEADINGS BEFORE JUSTICE. The syllabus is the same as in First National Bank of Madill v. J. M. Collins, infra, 120 Pae. 24'5.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action by Robert and Mary A. Mason, plaintiffs below, defendants in error, against J. A. Chapman, defendant below, .plaintiff in error. From an order granting a new trial, plaintiff in error brings error.</p>

<p>1. CONTRACTS — Construction—Divisibility. The contract sued on in this ease was divisible, and contained two separate propositions of employment; the virtue of that embraced in the second and third items being dependent upon certain conditions precedent provided for in the first item.</p> <p>2. MUNICIPAL CORPORATIONS — Contracts — Construction. The proposition of employment embraced in items 2 and 3 of the contract sued on, being dependent upon the voting of bonds, or the raising of funds in some other manner, for .the construction of the waterworks system, and the said system of waterworks provided for t>y the preliminary survey pnder item 1 not having been approved and ordered constructed by the city council, the said items 2 and 3 thereby failed to become effective; and this was the intent and understanding of the parties at the time the contract was executed.</p> <p>3. CONTRACTS — Construction—Intent of Partiés. In arriving at the intention of the parties to a contract, the whole instrument must ' be read together, and, if possible, every part thereof should be made effective, giving to the words and terms thereof their ordinary and generally accepted use and understanding.</p> <p>(Syllabus by Robertson, C.)</p>

Prror from District Court, Murray County; R. McMillan, Judge. Action by T. D. Barnes, plaintiff below, plaintiff in error, against Sam Davis, Sam McClusky, the Merchants’ & Planters’ National Bank of Davis, E. J. Henderson, and A. R. Pickens, defendants below, defendants in error, to recover damages, actual and exemplary, for trespassing and false arrest. Judgment for defendants, and plaintiff brings error.

<p>1. MARRIAGE — Common-Law Marriage — Evidence—Reputation. On the trial of an issue involving the existence of a common-law marriage, cohabitation is important evidence tending to show the marriage; and, as it is impossible for chaste people to cohabit without the protection of the marriage relation, it is error for 'the court to exclude evidence tending to show that during the time of this cohabitation the woman was a common prostitute, as such evidence would greatly weaken the probative force of the cohabitation.</p> <p>2. SAME — Common-Law Marriage — Evidence. In trying such an issue, however, evidence tending to show that the woman was generally reputed to be a prostitute was properly excluded, as it is common knowledge that such a reputation, once established, might easily follow the woman far beyond the time of her reform.</p> <p>3. ' SAME — Common-Law Marriage — Evidence. On the trial of this issue, it was not error to. admit in evidence a certified copy of the application for enrollment of the child of tho marriage, as filed with the Commission to the Five Civilized Tribes.</p> <p>(Syllabus by Ames, C.)</p>

Error from Pawnee County Court; H. T. Conley, Judge. Action by Frank Hudson against A. F. Steele, H. C. Hanna, Arkansas Valley & Western Railway Company, and Arkansas Valley Town-Site Company to recover on a non-negotiable note executed by the plaintiff in error to the Arkansas Valley & Western Railway Company. Judgment for plaintiff, and defendant Steele brings error.

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. Where plaintiff in error fails to comply with the rules of this court, requiring him to serve a brief on counsel for defendant in error within forty days after filing his petition in error, and at the same time to file fifteen copies of his brief with the clerk of the court, his case, on being reached for submission, will be dismissed. Follawing Davis v. Elliott, 25 Okla. 433, 106 Pac. 838.</p> <p>(Syllabus by Ames, C.)</p>

<p>1. TRIAL — Direction of Verdict — Grounds—Variance. Plaintiff, in his petition, designated certain property as •“ merchandise. ” In his opening statement to the jury, he referred to it as “ household goods,” whereupon defendant moved for a directed verdict on the grounds of variance, which was refused by the court. Held not error. »</p> <p>2. PLEADING — Demurrer to Evidence — Grounds—Variance. The petition alleged that defendant was negligent in permitting the roof of his warehouse to become leaky, and that water came in and fell upon plaintiff’s goods stored therein, and that defendant negligently permitted them to remain wet, and they thus became damaged. The proof seemed to show that the water came into the room from the street, and not through the roof. The defendant deinurred to the evidence, on the grounds that there was a variance between the allegations of the petition and the proof. Held not such a variance as would warrant the court in sustaining the demurrer.</p> <p>3. APPEAL AND ERROR — Briefs—Supreme Court Rules. Buie 25 (20 Okla. xii, 95 Pac. viii) of the Supreme Court requires a party complaining of the giving or refusal of an instruction to set out in his brief, totidem verbis, separately those parts complained of. And a general exception, without complying with this rule, will not be sufficient, and the alleged error will not be considered by this court.</p> <p>4. WAREHOUSEMEN — Injuries to Oroods Stored — Sufficiency of Evidence. Evidence examined, and held to reasonably sustain the verdict, and held, also, that the verdiet is not contrary to law.</p> <p>5. PLEADING — “Variance.” “Variance” means “difference,” and it is no variance that the proof does not establish all the allegations of the petition.</p> <p>(Syllabus by Eobertson, C.)</p>

Error from District Court, Carter County; S. H. Russell, Judge. Action by Joe F. Robison, guardian of Oscar Sampson, a minor, against J. S. Mullen and others. Judgment for plaintiff, and defendants bring error.

<p>COURTS — Jurisdiction — Ind. Ter. Courts. The United States courts of the Indian Territory had jurisdiction of actions to determine the right of possession of town lots in the Choctaw Nation, prior to the passage of the Curtis act and the Atoka Agreement therein contained (Act of June 28, 1898, 30 Stat. at L. 495), and the passage of that act did not divest the courts of jurisdiction over an action then pending.</p> <p>(Syllabus by Ames, C.)</p>

<p>1. APPEAL AND ERROR — Review—Verdict—Sufficiency of Evidence. Where a question of fact is submitted to a jury upon issues joined by the pleadings, and there is evidence reasonably tending to support the verdict, it will not be disturbed on appeal.</p> <p>2. PRINCIPAL AND AGENT — Authority—Question of Fact. 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 jury.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Error from Garvin County Court; W. B. M. Mitchell, Judge. </p>

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action in replevin by James M. Mayo and John R. Mayfield, of the firm of Mayo & Mayfield, against Thomas Mills and Lucy Mills. Judgment for defendants, and plaintiffs bring error.

Brror from Custer County Cou-rt; Walter S. Mills, Judge pro tern. Action by W. M. Wicker against J. H. Dennis and others. Judgment for defendants, and plaintiff brings error.

<p>1. CONSTITUTIONAL LAW — Operation — Self-Executing Provisions. That portion of sec. 9, art. 7, of the state Constitution providing for the election of district judges pro tempore is not self-executing.</p> <p>2. JUDGES — Special Judges — Election — Validity of Proceedings. Prior to the passage of the act approved March 22, 1909 (article 6, eh. 24, Comp. Laws 1909) no provision having been made by law whereby a judge pro tempore could be selected in the event of the disqualification of the regular judge, a special judge elected by the members of the bar present, and which election was opposed by one of the parties to the action, was not a judge either de jure or de facto, and a trial had before him was a nullity.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Carter County; Stilwell H. Russell, Judge. </p> <p>Action by the International Bank of Coalgate against Mullen & Mullen and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court,, Ottawa County; T. L. Brown, Judge. </p> <p>Action by the Long-Bell Lumber Company against the Eastman Land & Investment Company and J. G. Marcum. Judgment for plaintiff,, and defendant Eastman. Land & Investment Company brings error.</p>

Error from District Court, Carter County; J. C. Little, Special Judge. Action by J. J. ITillis against R. E. Simpson. Sam Noble intervened, and R. A. Howard was made defendant by the court. Judgment for plaintiff and intervenor, and defendants Simpson and Howard bring error.

Error from District Court, Carter County; Stüwell H. Russell, Judge. Action by I. R. Mason against the Ardmore State Bank to compel the transfer on the books of the corporation of certain shares of stock purchased at pledgee’s sale, and for damages. From a judgment for plaintiff, defendant brings error. Affirmed.

Error from District Co%irt, Oklahoma County; Geo. W. Clark, Judge. Action by Lawson W. Beaver and wife against the Oklahoma State Loarr Company and others. Judgment for defendants, and plaintiffs bring error.

Error from Kiowa County Court; J. W. Mansell, Judge. Action by T. H. Young against the St. Louis & San Francisco Railroad Company, to recover damages on account of negligence in shipping cattle. Judgment for the plaintiff, and defendant brings error.

<p> Error from District Court, Kay County; W. M. Bozales, Judge. </p> <p>Action by C. McFarland, G. McFarland, and H. Stauffacher, partners doing business under the name of McFarland & -Stauffacher Grain Company, plaintiffs below, defendants in error, against the Atchison, Topeka & Santa Fe Railway Company, defendant below, plaintiff in error, for damages for delay in the shipment of corn. Judgment for plaintiffs, and defendant brings error.</p>

Error from Grady County Court; N. M. Williams, Judge. Action by R. A. Lyle, defendant in error, plaintiff below, against Willis S. Kilgore, plaintiff in error, defendant below, to recover damages for injuries to the land of plaintiff. Judgment for plaintiff, and defendant brings error.

<p> Error from Comanche County Court; Jas. H. Wolverton, Judge. </p> <p>Action by W. I. Tanner against C. W. Heath. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Washington County; John J. Shea, Judge. Action by the White Sewing Machine Company, a corporation, against R. Peterson, James Gray, O. B. Clevenger, and J. B. Hackney, to recover the sum of $1,041.64) alleged to be due on a bond. Judgment for the defendants. Plaintiff brings error.

<p>1. APPEAL AND ERROR — Failure of Defendant in Error to File Brief. When the defendant in error chooses not tovaid this court with a brief, and the brief of the plaintiff in error appears reasonably to support the assignments of error, it is not the duty of this court to search the record with a view 'of ascertaining some possible theory on which the judgment may be affirmed.</p> <p>2. PARTNERSHIP — Action Against Firm — Parties. In an action on a contract made by a partnership, it is necessary to join as defendants all of the members of the firm.</p> <p>3. JURY — Right to Jury Trial — Reference. In an action at law pending prior to the admission of the state, and in which the parties were entitled to a jury trial, it is error for the trial court, of its own motion and over the objection of one of the parties, after a jury has been impaneled, to withdraw the case from the jury and refer it to a referee for trial.</p> <p>(Syllabus’ by Ames, 0.)</p>

<p>1. MORTGAGES — Wliat Law Governs. B. and his wife on October 16, 1906, for borrowed money, executed to T., as trustee, their deed of trust to certain real estate in the then Indian Territory. Default was made in payments, and the trustee by virtue of the power of sale in said trust deed advertised and sold the premises on January 31, 1908, to M., who, in turn, conveyed them to P., the plaintiff in error. M. was never in possession, and his transfer to P. was also subsequent to statehood. The deed of trust contained a provision that, in ease of the sale of the premises by the trustee under the power contained on said trust deed, the relation of landlord and tenant should thereafter exist between the trustee’s grantee and his grantors. P. brings ejectment against B. and wife. The trial court held that, inasmuch as M. had never been in possession and the conveyance by him to P. occurring subsequent to statehood, see. 2215, Comp. Laws 1909, rendered such conveyance null and void. Held: The trust deed having been executed by'B. and wife prior to statehood, the rights of the parties thereto were fixe’d and determined by the laws of Arkansas in force in the Indian Territory prior to statehood.</p> <p>2. SAME — Requisites and Validity — Relation of Parties. The provision in said deed of trust that in ease of default, and after sale, the relation of landlord and tenant should exist between trustee’s grantees and his grantors, is valid and binding on the parties.</p> <p>3. CHAMPERTY AND MAINTENANCE — Grants of Land Held Adversely- — Offense. Sec. 2215, Comp. Laws 1909, does not apply under the facts in this case.</p> <p>4. MORTGAGES — -Rights of Parties — Hostile—Adverse Possession by Grantors in Trust Deed. Before B. and wife could deny M.’s title by adverse possession, they must have delivered up to him the possession they had given him under and by virtue of their contract and re-established anew their possession.</p> <p>5. LANDLORD AND TENANT — Adverse Possession of Tenant. The general rule is that the posséssion of a tenant, no matter how long continued, is not adverse, but is in subordination to the title of the landowner, and will not operate to confer a title upon the tenant, unless something has occurred to convert the. holding from a friendly to a hostile possession.</p> <p>(Syllabus by Robertson, C.)</p>

.Error from District Court, Comanche County; J. T. Johnson, Judge. Action by the City National Bank of Lawton against the New York Life Insurance'Company and Sarah C. Haynes, impleaded as defendant. From the judgment, defendant Sarah C. Haynes, administratrix, brings error.

<p>1. BILLS AND NOTES — Presentation and Notice. In an action by the indorsee of a bill of exchange against the drawee and acceptor thereof, brought in the courts of the Indian Territory, it was not necessary to allege notice of presentation and dishonor, and a complaint which did not contain such allegations was not thereby subject to demurrer.</p> <p>2. TRIAL — Taking Case From Jury — Direction of Verdict. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that 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 therefrom, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith.</p> <p>3. SAME — Taking Case From Jury — Direction of Verdict. The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court, in the exercise of'-a sound judicial discretion, would be compelled to set aside a verdict in opposition to it.</p> <p>,i. SAME — Questions of Law or Fact — Credibility of Witnesses. Where the only testimony upon a material issue is that of an interested party and such testimony is inconsistent or contradiétory and the replies to questions are evasive and unreasonable, and where the jury may draw inferences therefrom unfavorable to plaintiff -or defendant, as the case may be, the court should never direct a verdict but should submit to the jury all controverted questions of fact under proper instructions.</p> <p>5. SAME — Question of Law or Fact — Credibility of Witnesses. The credibility of a witness and the effect and weight to be given to inconsistent or contradictory testimony are questions of fact to be determined by the triers of fact, whether court or jury, and not a question of law for the court. It is peculiarly within their province to weigh the testimony of the witnesses, as well as all the facts and circumstances tending to corroborate or discredit them, and determine the case according to the preponderance of the evidence.</p> <p>(Syllabus by Sharp, C.)</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Frank M. Rodolf, trustee in bankruptcy of A. Psihos and another, doing business as Psihos Bros., against the First National Bank of Tulsa and another, to recover an alleged voidable preference under Bankr. Act July 1, 1898, and amendment thereto approved February 5, 1903. From a judgment for defendants on demurrer to the second amended petition, plaintiff brings error.

Error from District Court, Coal County; A. T. West, Judge. Action by T. A. Worley, receiver of the Citizens’ Bank of Owl, against'Mrs. R. E. Carter and others. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Creek County; W. L. Barnum, Judge_</p> <p>Action of ejectment by Lemuel D. Groom against James-Wright. Judgment for defendant, and plaintiff brings error.</p>

Error .from Osage County Court; C. T. Bennett, Judge. Action by John P. Lynn against J. S. Holden, to recover the value of certain corn and fodder belonging to the plaintiff and destroyed by the cattle of the defendant. Judgment for plaintiff, and defendant brings error.

Brror from Pottawatomie County Court; B. D. Reasor, Judge. Action by Albert Ziehme et al., doing business as Ravens-wood Exchange Bank of Chicago, 111., against O. G. Young, Artis Kennedy and Virgil Kennedy, partners, under the firm name of Earlboro Hardware Company, and Pleasant Fox, to recover on certain promissory notes. Judgment for plaintiffs. Pleasant Fox brings error.

Error from District Court, Le Elo.re County; Malcolm E. Rosser, Judge. Action by James E. Holliday against the Chicago, Rock Island & Pacific Railway Company for damages from an unreasonable search, instituted maliciously and without probable cause by the defendant. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Review-—Findings of Referee. Where the evidence is both direct and circumstantial, and in conflict, the findings of a referee, examined and approved by the court, will not be disturbed, or an examination be made, as to where the preponderance lies, by this court.</p> <p>2. SAME — Review—Harmless Error — Evidence. It is improper to permit a witness, on cross-examination, to be asked if he has not been charged by indictment with a certain criminal offense. But in a case tried by the court, on the report of a referee, without the intervention of a jury, where there is abundant competent evidence to sustain the findings and judgment, and it clearly appears that justice has been done, and that with the incompetent evidence eliminated the same 'result would be reached, the cause will not necessarily be reversed on this ground alone.</p> <p>(Syllabus by Brewer, C.)</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. Where plaintiffs in error file no brief, as required by rule 7 of this court (20 Oída, viii, 95 Pac. vi), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from Tulsa County Court; N. J. Gubser, Judge. </p> <p>Replevin by Lindsay Kinkaid against the Atchison, Topeka & Santa Ee Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. Where plaintiff in error flies no brief, as required by rule 7 of this court (20 Okla viii, 95 Pac. vi), the petition in error will be dismissed for want of prosecution.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by James PI. Wheeler and Matilda Foss against John Dolak and Marie Dolak. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from Pontotoc County Court; Joe Terrell, Judge. </p> <p>Action by John Lillard against J. E. Hyatt. From the judgment, Lillard brings error.</p>

<p>Error from District Court, Washita County; James R. Tolbert, Judge.</p> <p>Action by Oakdale Township against Union Township. Judgment for plaintiff, and defendant brings error.</p>

<p>1. EVIDENCE — Parol Evidence — Admissibility. It is competent to prove a verbal contract by a local agent to deliver a car of freight to a connecting carrier, although the bill of lading, in which the named destination was the connecting point, stated that all prior understandings concerning the furnishing of cars, or facilities for shipment, etc., were merged and contained in the written agreement.</p> <p>2.' SAME — Parol Evidence — Additional Agreement. In such a case, the evidence did not vary the written contract of shipment, but was an additional agreement as to what disposition should be made of the car when it ljad reached its destination..</p> <p>(Syllabus by Eosser, 0.)</p>

<p>1. INDIANS — Allotted Lands — Alienation. The restrictions on the alienation or other disposition of allotted lands imposed by the Congress of the United States and by treaty stipulation with the various Indian Tribes were not removed or impaired by the adoption of the Constitution and the erection of the state of Oklahoma. And such restrictions remain in force since statehood, and will so remain until they expire by their own limitation, or are removed by Congress.</p> <p>2. SAME — Allotted Lands — Lease—Validity. An agricultural lease of restricted lands made since statehood by a Choctaw Indian in violation of the provisions of the Atoka Agreement ratified 'and approved by act of Congress June 28, 1898 (Act June 28, 1898, e. 517,-30 Stat. 495), as .modified by act of Congress approved April 26, 1906 (Act April 26, 1906, c. 1876, 34 Stat. 137), is void, and the validity of such lease may be questioned in an action by the grantee of the allottee, who holds under a deed from such allottee, made after her restrictions have been removed.</p> <p>. (Syllabus by Brewer, C.)</p>

<p> Error from Wagoner County Court; W. T. Drake, Judge. </p> <p>Action by M. M. Mattison against W. R. Redus. Judgment for plaintiff, and defendant brings error.</p>

Error from Marshall County Court; J. W. Ealkner, Judge. Action by J. P. Williams against the St. Louis & San Francisco Railroad Company, a corporation, and the Ft. Smith & Western Railroad Company, a corporation. Judgment for plaintiff, and defendant Ft. Smith & Western Railroad Company brings error. This action was filed in the county court of Marshall county December 7, 1908, by J. P. Williams against the St. Louis & San Francisco Railroad Company and the Ft.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by W. F. Schuermeyer against T. H. Martin, the City of Muskogee, a city of the first class of Oklahoma, Edward C. Alley, L. E. Prall, W. F. Shewey, Henry Vogel, and J. PI. Klick. Judgment for plaintiff against the'defendants T. H. Martin, Edward C. Alley, L. E. Prall, W. F. Shewey, Henry Vogel, and J. H. Klick, and in favor of the defendant the City of Muskogee, and defendants bring error.

<p> Mrror from District Court, Greer County; G. A. Brown, Judge. </p> <p>Action by O. Carrabine against G. F. Border. Judgment for plaintiff, and defendant brings error.</p>

<p>1. EVIDENCE — Parol Evidence — Conditions Precedent to Obligation. Where a person gave an order for the purchase of certain books, in which all the terms of the purchase were set out, and which in terms directed that' the books be shipped, parol evidence is not admissible to show that a contemporaneous oral agreement was-made with the agent of the book company that the order was not to become effective until the person giving the order wrote the publisher specific instructions to ship the books, and that if the person ordering the books at no time desired to accept them the order should have no force and effect.</p> <p>2.' SAME — Parol Evidence — Ambiguous Contract. The fact that the word “future” was written in ink across the face of the order was not such latent ambiguity as would permit the introduction of parol testimony inconsistent with the terms of the order.</p> <p>■3. APPEAL AND ERROR — Theory of Case — Change on. Appeal. Where a defendant relies upon a certain defense in the trial court, he will not be permitted to shift his ground of defense on appeal, so as to present another defense, not presented nor relied upon in the trial court.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from District Court, Osage County; John J. Shea, Judge. </p> <p>Action by the Citizens’ Trading Company against William G. Bass. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Pottawatomie County; J. B. A. Robertson, Judge. </p> <p>Action by the Missouri, Kansas & Texas Railway Company against B. O. Johnson and Charles A. Mantz. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Carter County; Stilkvell H. Russell, Judge. .</p> <p>Action by Allen P. Clay against Chas. W. Robertson, Sr., and Chas. W. Robertson, Jr. Judgment for defendants, and plaintiff brings error.</p>

<p>1. EVIDENCE — Transcript of Stenographer’s Notes — Admissibility. The requirement of sec. 4548 of Wilson’s Bev. & Ann. St. (see. 5881, Comp. Laws 1909) that every deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial, does not'apply to the transcript of a stenographer’s notes referred to in sec. 7 of article 1 of chapter 23, Wilson’s Bev. & Ann. St. (sec. 1942, Comp. Laws 1909), which provides for the filing of stenographer’s notes with the clerk of the court, and that the same shall be a part of the record, and that "any longhand transcript of notes so filed and duly certified by the reporter * * * shall be admissible as evidence in all cases of like force and effect, as testimony taken in the cause by deposition, and subject to the same objection.”</p> <p>2. SAME — Documentary—Stenographer’s Notes. Sec. 7, art. 1, c. 23, of Wilson’s Bev. & Ann. St. (sec. 1942, Comp. Laws 1909), making the transcript of the notes of a court stenographer evidence in a case in the same way as a deposition, does not, by implication, prevent such stenographer from testifying as to what was the evidence of a witness at a former trial, as shown by his notes.</p> <p>3. CARRIERS — Injury to Passengers — Contributory Negligence. It is not contributory negligence per se for a person to alight from a moving street car, and the question of whether the person so alighting is guilty of contributory negligence depends upon the rate of speed, the place, and other circumstances.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Washington County; T. L. Brown, Judge. Action by Joseph Meyer against the Cherokee Development Company, a corporation organized and doing business under the laws of Colorado, and others. Judgment for defendants, and plaintiff brings error.

<p> Error from Stephens County Court; W. H. Admire, Judge. </p> <p>Action by H. A. Hall & Co. against G. W. McKay. Judgment for plaintiff, and defendant brings error.</p>

<p>Original petition in habeas corpus by Kenner Whitaker Allison.</p>

<p>Error from District Court, Garfield County; M. C. Garber, Judge.</p> <p>Action by E. N. Winslow against D. M. Carey and J. A. Jamison. Judgment for plaintiff, and defendants bring error.</p>

Error from District Courts Noble County; W. M. Bowles, Judge. Action by R. E. Wade against Roy Sumner and A. C. Nice-wander to recover $550 damages for conversion of a piano. Judgment for defendants, and plaintiff brings error.

Error from Oklahoma County Court; Sam Hooker, Judge. Action by J. C. Washburn against Ed. J. Delaney to review a judgment dismissing an appeal from a justice. Judgment for defendant, and plaintiff brings error.

<p> Error from Custer County Court; A. H. Latimer, Judge. </p> <p>Action by Elizabeth Peters against James Bland. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Garfield Coimty; James B. Cullison, Judge. </p> <p>Action by Ira L. Beeson and others against Consolidated School District No. 2 of Garfield County and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Mushogee County; John H. Pitchford, Judge. ' Action by Ollie Divine, nee Harmon, against Ben T. Harmon and others for partition of land. Judgment for defendants, and plaintiff brings error.

Error from District Court, Washington County; John J. Shea, Judge. Action by J. I. Hill against the Bartlesville Oil & Improvement Company. Judgment for plaintiff, and defendant brings error.