Volume 32 — Oklahoma Reports

<p> Error from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action by the Farmers’ & Merchants’ Bank against W. S. Welborn and others to secure a new trial in an action wherein W. S. Welborn, one of the defendants, had recovered judgment against the plaintiff. Judgment for the defendants, and plaintiff brings error.</p>

<p>1. • APPEAL AND ERROR — Review — Record — Exceptions Below. TMs court will not consider an alleged error of tlie trial court unless sueli alleged error appears on the record of the ease, and exception was taken thereto in the trial court.</p> <p>(a) This court will not consider as error an order overruling a motion for a new trial where no exception to such order is saved by the losing party.</p> <p>2. CONTINUANCE — Conditions — Refusal — Discretion of Court. Counsel for defendant agreed in open' court that a case should be tried at a certain term, but it afterwards developed that such attorney could not be present at the trial on account of other professional engagements which could not be postponed, and thereupon the trial court offered to continue the case until the defendant’s attorney could be present, upon condition that defendant pay the costs necessary to secure the attendance of plaintiff’s witnesses at such postponed trial. Held, not an abuse of discretion, on the part of the trial court to refuse a continuance without imposing terms, it not appearing that defendant requested an opportunity to procure another attorney, or make any further effort to be represented by an attorney, but instead proceeded to conduct his own ease.</p> <p>S. SUFFICIENCY OF EVIDENCE. Testimony examined, and held to support the verdict of the jury for the full amount thereof.</p> <p>(Syllabus by Sharp, C.)</p>

Error from Oklahoma County Court; Sam Hooker, Judge. Action by Paul H. Jones, trustee of the estate of Stebbins. & Kirkes, bankrupts, against the Missouri, Kansas & Texas Railway Company, for the value of two mules, killed by the trains of defendant. Judgment for plaintiff, and defendant brings error. .

Error from District Court, Oklahoma County; John J. Carney, Judge. Action by Paul H. Jones, trustee in bankruptcy of the estate of Stebbins & Kirkes, against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Wagoner County; ■ John H. King, Judge. </p> <p>Action by W. M. Gibson, A. E. Snyder, and J. P. Calhoun against the City of Wagoner and J. E. Hildt. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from Superior Court, Logan County; J. M. Sandlin, Judge. </p> <p>Action by T. H. Ray against R. B. Harrison and another. Judgment for defendants, and plaintiff brings error.</p>

Brror from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by D. C. Satterlee against the Kirkbride Drilling & Oil Company to foreclose a chattel mortgage. Judgment for plaintiff, and defendant brings error.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by D. H. Williams against F. D. Davis for damages and other relief. Judgment for plaintiff, and defendant brings error.

<p> Error from Garvin County Court;, W. B. M. Mitchell, Judge. </p> <p>Action by the Kansas City Bridge Company against the Lindsay Bridge Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Brror from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by J. F. Gaskill against A. A. Davidson. From a judgment for plaintiff, defendant brings error.</p>

<p>1. LIMITATION OF ACTIONS — Action for Killing Animals. An action for damages for the wrongful killing of domestic animals, even though it is charged that the killing was ‘Í willful or by gross negligence, in disregard of humanity,” comes within the provisions of the third subdivision of section 5550, Comp. Laws 1909, as "an action for taking, detaining, or injuring personal property,” and 1 ‘ an action for injury to the rights of another, not arising on contract,” and must be brought within two years after the cause of action arose.</p> <p>2. SAME — Pleading—Demurrer—Bar of Limitation. Where a petition shows on its face that the cause of action set out therein is barred by the statute of limitations, or there are no allegations in the petition showing that the cause of action is not barred, a demurrer to such petition should be sustained and it is error to overrule the same.</p> <p>(Syllabus by Robertson, 0.)</p>

<p>1. LANDLORD AND TENANT — Possession of Premises — Holding Over. Where landlord and tenant are negotiating for a new lease for farm land at the time of the expiration of the original lease, and the tenant remains in possession pending The negotiations, with the express or tacit consent of the landlord, the landlord is estopped from treating the tenant as holding over for another term under the condition prescribed in the original lease, but the tenant becomes a tenant from year to year.</p> <p>2. SAME — Rent—Attachment. Under section 4101, Comp. Laws 1909, a landlord is entitled to an attachment on the crops grown by his tenant whether the rent be payable in money or other things, in case the tenant has within thirty days removed, or is removing, or intends to remove, his property, or crops, or any part thereof, from the leaded premises, and neither the intent of the tenant in removing, nor the distance, nor the place to which the crops or portions thereof, or other property is removed, is material. It is the removal, or the intent to remove, which is the justification for the attachment.</p> <p>3. SAME. In a ease where the undisputed evidence and admitted facts show that the tenant'' had paid the landlord no rent for a farm, but had removed a large portion of the crop grown thereon and deposited the same in an elevator in a town, it was error for the court to refuse to sustain an attachment brought under section 4101, Comp. Laws 1909.</p> <p>(Syllabus'by Robertson, C.)</p>

Error from District Court, McClain County; R. McMillan, Judge. Action by E. D. Mayberry against Nathan Turk. From an order confirming a sale under execution in favor of the plaintiff, defendant brings error.

Error from Bryan County Court, Caddo Division; Charles A. Phillips, Judge. Action by Carlisle Pitchlynn, by his guardian, Grace Pitch-lynn, against Jesse Cherry, to recover rent. Judgment for the defendant for damages in the sum of $75 by reason of attachment wrongfully issued. Plaintiff brings error.

Error from Tulsa County Court; N. I. Gubser, Judge. Action by the American Soda Fountain Company against W. I. Barnes for money due on promissory notes. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Briefs—Failure of Defendant in Error to File • — -Reversal. Where counsel for plaintiff in error, in conformity with the rules of this court, has prepared, served, and filed a brief, in which, with other contentions, it is insisted that the judgment and verdict appealed from are not reasonably supported by the evidence, and are contrary to law, and there is no brief filed, and no reason given for its absence, on the part of defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, 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. Butler v. McSpad-den, 25 OHa. 465, 107 Pac. 170.</p> <p>(Syllabus by Robertson, C.)</p>

Error from Choctaw County Court; W. T. Glenn, Judge. Action by the New .State Grocery Company against O. Welsh, in which was issued a writ of attachment. Maggie Wiles filed an interplea in the case, claiming the property attached as belonging to. her. Judgment was rendered for the plaintiff against the defendant on the debt, and for the interpleader for the property, and the plaintiff brings error.

Error from Creek County Court; Josiah C. Davis, Judge. Action by H. M. Stonebraker against W. O. Baker, in re-plevin, to recover possession of specific personal property. Judgment for plaintiff. From an order denying motion to vacate, defendant brings error.

Error from District Court, Okfuskee County; John Caruthers, Judge. Action by David F. Maloy against Dock Johnson, C. T. Huddleston, and Lena W. Huddleston to cancel deeds and to recover damages for the unlawful detention of real estate. Judgment for defendants, and plaintiff brings error.

Error from District Court, Texas County; R. H. Loofbourrozv, Judge. Action by G. L. Ellis against J. A. Akers, W. H. Castle- ■ berry, and William Edens to enjoin an execution. Judgment for the defendants, and plaintiff brings error.

Error from District Court, Atoka County; .A. T. West, Judge. Action by S. B. Coley against R. PI. Johnson to cancel a conveyance of real estate by the defendant to the plaintiff and to recover the purchase price. Judgment' for defendant, and plaintiff brings error.

<p>X. APPEAL AND ERROR — Review—Questions of Fact. Whether or not Kelley was the agent of the other defendants in this case was a question of fact to be determined, as other facts, from the evidence.</p> <p>2. SAME — Principal and Agent — Authority of Agent — Question of Fact. The apparent authority of an agent is to be gathered from the facts and circumstances in evidence, and is a question of fact to be determined, as other facts, by the jury, or by the court, when the cause was 'tried without a jury.</p> <p>Ü. SAME — Continuance—Discretion of Court. The granting or refusing of a continuance is within the sound judicial discretion of the trial court; and unless it appears that there was an abuse of such discretion the order of the trial court in such matters will not be disturbed by the Supreme Court 'on appeal.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Error from District Courts Jefferson County; Frank M. Bailey, Judge. </p> <p>Action by Henry Rogers against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Error from Carter County Court; I. R. Mason, Judge. Action by Charles Von Weise against Ballinger & Lee, to recover damages on account of breach of contract. Judgment for plaintiff, and defendants bring error.

Error from Pottawatomie County Court; E. D. Reason, Judge. Action by the First National Bank of Tecumseh against Alsie Thomas and J. S. White. After dismissal by plaintiff, motion by defendants for judgment overruled, and defendants bring error.

Error from District Court, Rogers County; John H. Pitchford, Judge. Proceeding by the Apache State Bank against Florence Daniels, administratrix of the estate of James Daniels, deceased. Judgment for defendant, and plaintiff brings error.

<p> Error from District Court, Creek County; John Caruthers, Judge. </p> <p>Action by Daisye Wallace against • Robert S. Waddell. Judgment for plaintiff, and defendant brings error.</p>

Error from Greer County Court; Jarrett Todd, Judge. Action by the Territory of Oklahoma, on the relation of the County Attorney, against Jim Sellers and others. Judgment for plaintiff, and defendants bring error.

Error from Pottawatomie County Court; B. D. Reason, Judge. Action by the E. M. Brash Cigar Company against W. H. Wilson and others. J. H. Barlow intervened. Judgment for in-tervener, and plaintiff brings error.

Brror from Kiowa, County Court; J. W. Mansell, Judge. Action by Floyd O. Hibbard and others against R. Cray-craft and wife. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Hughes County; John Camt hers, Judge. Action by Henry C. Arnold and others against Martha Adkins and others. Judgment for plaintiffs, and defendant Adkins brings error.

<p>1. MASTER AND SERVANT — Injuries to Servant — Questions for Jury — Negligence of Master — Contributory Negligence. A person employed as inspector of a street railway company performed a number of miscellaneous duties, and when at the barn saw to the placing of cars when they were brought in. A side track on which some of the cars were placed had a considerable grade inclining toward the main track. The inspector did not have general supervision of the matter of securing cars placed on the side track. About midnight two cars, one a flat and the other a trailer, were driven out on the main line by a storm not of unprecedented force and collided with a ear on which the inspector was acting as motorman, inflicting injuries. Neither flat nor trailer was equipped with brakes. The evidence was not clear as to who last used the flat; but the inspector said he probably used it the day before, but had no recollection of having done so. The testimony was conflicting as to whether the inspector had been instructed to block the flat when putting it on the siding. Two blocks were , found on the track next morning with appearance of having been run over by cars.</p> <p>■ Held: (1) That the question of whether 'the company was guilty of negligence was properly submitted to the jury.</p> <p>(2) That the question of whether the accident was caused by the negligence of the inspector was for the jury.</p> <p>2. NEGLIGENCE — Pleading—Reply—Necessity! An answer to a petition charging negligence, which, after a general denial, further alleges, "even if it be true that plaintiff received injuries as alleged, that such injuries did not result from the negligence of the defendant, but were the result of the negligence of the plaintiff,” pleads no new matter and does not require a reply.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from District Court, Woodward County; R. H. Loofbourrow, fudge. </p> <p>Action by J. R. Ward against the Atchison, Topeka & Santa Ee Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Clarence W. Turner against Nancy F. Mills and others. From an order dissolving a temporary injunction, plaintiff brings error.</p>

<p> Error from District Court, Stephens County; Frank M. Bailey, Judge. </p> <p>Action by L. E. Toney and Dan Vorhees against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

:Brror from District Court, Osage County; John J. Shea, Judge. Action by John Farrell, against the Board of Education of the City of Pawhuska to declare a resulting trust, etc. From a judgment on demurrer for the defendant, plaintiff brings error.

<p>1. EVIDENCE — Expert Testimony — Necessity for Special Knowledge. It is not error for a trial court to refuse admission of expert, or opinion, evidence, in a case where the facts and circumstances can be fully and adequately described to the jury, and are such that their bearing on the issues can be estimated by all men without special knowledge, experience, or training.</p> <p>2. NEGLIGENCE — Actions—Admissibility of Evidence. It is not error to refuse to permit a witness to testify as to the conditions at the scene of an accident several hours after the accident occurred, where the alleged defect in the instrumentality complained of was of such nature that its correction could have been effected in a few minutes, and when no attempt is made to show that no changes had been made in the instrumentality complained of since the accident occurred.</p> <p>3. TRIAL — Instructions—Bequests—Instructions Already Given. It is not error to refuse requested instructions that correctly state the law, where the same, or their equivalent, have been embodied in others given by the court.</p> <p>(Syllabus by Eobertson, C.)</p>

Mrror from District Court, Murray County; R. McMillan, Judge. Action by H. C. Redmond against the Town of Sulphur for possession of certain lands and damages to the land of the plaintiff on account of the erection of a townhall and jail in proximity to his property. Judgment for defendant, and plaintiff brings error.

<p> Error from Comanche County Court; James H. Wolverton, Judge. </p> <p>Action by J. A. Chenowetli against Henry Oschner. Judgment for plaintiff, and defendant brings error.</p>

<p>1. JUSTICES OF THE PEACE — Procedure—Pleading—Verification. To avoid the necessity of proving an account sued on in the justice court, it is not sufficient to verify the bill of particulars generally. The statute contemplates an account stated duly verified by affidavit and attached to the bill of particulars, and an allegation of the bill of particulars of the correctness of the account.</p> <p>2. SAME. When there is no sufficient verification of the account,- and no sufficient allegation of its correctness, lit is error to sustain a motion for judgment on the pleadings.</p> <p>(Syllabus by Ames, C.)</p>

Brror from District Court, Carter County; S. H. Russell, Judge. In the matter of the estate of Belton Davis, deceased; L. J. Akers, administrator. From an order directing the administrator to sell allotted lands for the payment of debts of decedent, Z. T. Harmon, the purchaser of the lands from the heirs of de- cedent, appeals. Belton Davis, a Choctaw freedman, had allotted to him 40 acres of land in Carter county.

<p>1. TORTS — Interference with Contract Eights. Legitimate competition, by fair means, is always lawful, and no cause of action accrues to one who is unable to compete with his stronger competitor, notwithstanding his business be injured by the competitive strife. But unfair competition is, and always has-been, frowned upon by the law, and the trend of the decisions sustains the proposition that it is a violation of a legal right to interfere with contractual relations recognized by law, if there be no sufficient justification for the interference.</p> <p>2. SAME. It is impossible to formulate any general rule or definition whereby one may determine with accuracy what is fair competition, and what is not. Each ease must depend, for its correct solution, upon its own peculiar facts and circumstances.</p> <p>S. SAME — Malicious Interference with Contract. It is an actionable tort for one to maliciously interfere with a contract between two parties, and induce one of them to break that contract, to the injury of the other.</p> <p>é. SAME — Unlawful Interference with Contract. It is not unlawful for one, by fair means and lawful argument or persuasion, to interfere with £he contractual relations of another, and without doubt one person has the legal right to persuade another to leave his employer’s service, or to quit trading with another, provided always such persuasion and argument is fair, and not unlawful, and is made with the honest intent and purpose of fairly bettering one’s own business, trade, or employment, and not for the primary object of wrongfully destroying honest competition, or wrongfully injuring one’s competitor.</p> <p>5. SAME — “Malice.” “Malice,” in the sense used herein, means a wrongful act done intentionally, without just cause or excuse.</p> <p>(Syllabus by Eobertson, G.)</p>

<p> Error from District Court, Woodward County; R. H. Loofbourrow, Judge. </p> <p>Action by W. S. AVoods against C. C. Coleman and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Grady County; Frank M. Bailey, Fudge. </p> <p>Action by Ben F. Johnson against Eli P. Williams and others. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Pottawatomie County; George Abernathy, Judge. Action by Lorena B. Fleming against P. B. Roe and wife and others. Judgment for plaintiff, and defendants J. B. Roe and wife bring error.

<p>JUDGMENT — Conclusiveness—Matters Concluded. A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action, and persons in privity with them, and cannot be again litiga,ted in any future action between such parties or privies, in the same court, or in any other court of concurrent jurisdiction upon the same or a different cause of action.</p> <p>(Syllabus by Bobertson, 0.)</p>

<p>1. BILLS AND NOTES — “Negotiable Instrument” — What Constitutes. As defined by sections 4626 and 4627, Comp. Laws 1909, a “negotiable instrument” is a written promise or request for the payment of a certain sum of money to order or bearer, and must be made payable in money only, and without any condition not certain of fulfillment.</p> <p>2. SAME. A note given December 16, 1908, payable in installments three months apart, which contains a stipulation that, if it is paid within fifteen days from date, a discount of 5 per cent, will be allowed, being uncertain as to the amount necessary to satisfy it at the time of its execution, is nonnegotiable.</p> <p>(Syllabus by Sharp, C.)</p>

<p>APPEAL AND ERROR — Review—Ruling on Demurrer — “Decision Occurring at Trial.” The ruling on a demurrer to the evidence is a “decision occurring on the trial”; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion, for a new trial be filed within the time prescribed by law.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. ADVERSE POSSESSION — Elements—Hostile Character of Possession — Vendor and Purchaser. By the execution and delivery of a deed in general terms, the entire legal interest in the premises vests in the grantee; and, if the grantor continues in possession afterward, his possession will be that either of tenant or trustee of the grantee. He will be regarded as holding the premises in subserviency to the grantee; and nothing short of an explicit disclaimer of sueh a relation and a notorious assertion of right in himself will be sufficient to change the character' of his possession.</p> <p>(a) In sueh ease, the grantor is not deemed, in law, to have adverse possession against his grantee, or those deriving title front him.</p> <p>2. ADVERSE POSSESSION — Evidence—Sufficiency. The doctrine of adverse possession is to be taken strictly. Such a possession is not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner.</p> <p>3. SAME — Elements in .General. A possession, to be adverse, must be open, visible, continuous, and exclusive, with a claim of ownership, sueh as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others, but against all titles and claimants.</p> <p>4. CHAMPERTY AND MAINTENANCE — Conveyance of Land Held Adversely. Where land conveyed, though not in the possession of the grantor, is not held adversely by the occupant, the deed iá valid.</p> <p>5. PLEADING — Verification — Necessity. Comp. Laws 1909, sec. 5648, providing that allegations of the execution of written instruments and indorsements thereon shall be taken as true, unless the denial thereof be verified by affidavit, requires the verification of denial of the execution of the instrument only, and not of the authority of the person by whom it was executed.</p> <p>6. SAME — Demurrer to Evidence — Effect. A demurrer by defendant to the evidence admits the iruth of all the evidence offered on the part of plaintiff, together with sueh inferences and conclusions as may reasonably be drawn therefrom.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from Carter County Court; I: R. Mason, Judge. </p> <p>Action by the Bankers’ National Bank against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Frror from Texas County Court; R. L. Howsley, Judge. </p> <p>Action by R. R. Davis against Frances Belle Healy. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PLEADING — Judgment on Pleadings — Time of Motion. When a mortgagor brings suit against the mortgagee for conversion of the mortgaged property, admitting the original indebtedness, alleging that the value of the chattels converted exceeded that indebtedness, and praying judgment for the difference between the debt and the value of the chattels, and the mortgagee answers, denying the conversion, but admitting the sale of the chattels, pleading a credit on the indebtedness of the proceeds of the sale, and praying judgment for the balance remaining after making this credit, where no reply is filed, and a motion for judgment on the pleadings is filed by the defendant after all the evidence has been offered, it is not error to overrule the motion. •</p> <p>2. CHATTEL MORTGAGES — Irregular Foreclosure — Action for Damages. If a chattel mortgage is irregularly foreclosed and the property sold to another than the mortgagee, the mortgagor may treat the action as a conversion of the property by the mortgagee, and recover his damages therefor; the measure of his damages in such ease being the excess in value of the property at the time of sale, over the mortgage debt.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Dewey County,' G. A. Brown, Judge. </p> <p>Action by O. B. Kee against Clarence A. Park and Mary Park. Judgment for defendants, and plaintiff brings error.</p>

Error from Ellis County Court; A. E. Williams, Judge. Action by the Peru Van Zandt Implement Company against William F. Burnett and Ed. C. Henderson. Judgment for defendants, and plaintiff brings error. This suit was filed August 18, 1908, for the recovery of the sum of $285.27 and interest thereon at the rate of 8 per cent, per annum from the date of the notes pleaded in plaintiff’s petition.

Error from District Court, Bilis County; G. A. Brown, Judge. Action by W. P. Couch against I. W. Spencer for damages and to recover possession under a lease. Judgment for defendant, and plaintiff brings error.

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by W. N. Redwine and others against William Ansley and others. Judgment sustaining defendants’ demurrer, and plaintiffs bring error.

<p>Error from District Court, Tillman County; J. T. Johnson, Judge.</p> <p>Action by the First State Bank of Davidson against C. J. Clingan and others on a promissory note. Judgment for plaintiff against C. J. Clingan, and for defendants S. F. Cannon and another, and plaintiff brings error.</p> <p>This suit was filed in the district court of Tillman county March 12, 1908, by the First State Bank of Davidson, Okla., against C. H. Clingan, S. F. Cannon, and J. C. Whelchel for recovery on a promissory note for $686.96, interest and costs. Plaintiff alleges the execution and delivery of the note by defendants, setting out a copy of the note sued on as an exhibit to and part of its petition, and asks for judgment for the face of the note, and for interest and attorney’s fees provided for therein, and for costs of suit. The note sued on is as follows:</p> <p>“$686.96. Exhibit A, Frederick, Okla. Oct. 5, 1906. February 25, 1907, after date, for value received, we promise to pay to First State Bank of Davidson, or order, six hundred eighty six & 96-100 dollars, at First National Bank, Frederick, Okla. To bear interest at the rate of 12 per cent, per annum from date. And further agree that if this note is not paid when due to pay all cost necessary for collection, including ten per cent, for attorney fees. Due February 25, 1907. [Signed.] C. J. Clingan, S. F. Cannon. J. C. Whelchel.”</p> <p>Defendant S. F. Cannon answered by general denial, and for further defense alleged that the note sued on was not the note which he had signed; that it had been materially altered and changed since he had signed it; and set up the further defense that he was not liable on said note because of a promised release from liability on same by plaintiff through its cashier and agent.</p> <p>The defendant J. C. Whelchel answered by way of general denial, and for further defense alleged fraud on the part of plaintiff in procuring his signature to said note and that his signature to same was procured by fraud, circumvention, and misrepresentation, setting out in his answer in what such fraud and misrepresentation consisted. The material features in which as alleged are that, when the note was presented to him for signature, it contained the name of S. F. Cannon as a surety, whereas in fact the said S. F. Cannon had been released from liability on said note by the plaintiff bank; the further misrepresentation that the money for which the note was executed was to he advanced to C. J. Clingan, the principal on the note, to buy feed for cattle, when in fact said note was not executed for such purpose, but was executed to secure overdrafts of said C. J. Clingan on plaintiff bank; and the further defense that at the time of the execution of said note the plaintiff, through its agent, promised and agreed to defendant Whelchel that it would procure a mortgage from Clingan on the cattle owned b}^ Clingan to secure the payment of said note, and that said mortgage was never obtained against Clingan’s cattle.</p> <p>The defendant Clingan made no appearance or defense in the case. The case was tried at the November term, 1908. A default judgment was rendered against defendant Clingan, and the issues joined bfetween the plaintiff and defendants Cannon and Whelchel were tried to a jury, resulting in a verdict in favor of the two defendants. Upon which verdict judgment was rendered by the court, and from which judgment and order overruling plaintiff’s motion for new trial the cause is appealed here.</p> <p>The plaintiff’s petition in error contains eighteen separate assignments, the most material of which relate to the instructions given by the court and to the refusal of the court to give certain instructions offered by plaintiff.</p>

<p>1. INSURANCE — Forfeiture—What Law Governs. Where an application for life insurance provided that the contract contained m the policy and the application “shall be construed according to the law of the state of New York, the place of said contraer being agreed to be the home office of said company in the city of New York," the provisions of the New York law, requiring a notice to be given as a condition precedent to forfeiting or lapsing the policy, apply to and govern the policy issued; and the policy remains in force until notice is given, or until it is cancelled by agreement of the parties, notwithstanding a premium is not paid when due, and notwithstanding a provision in the policy to the effect that, if any premium is not paid when due, the policy shall become void, and all payments previously made shall remain the property of the company.</p> <p>2. SAME. Where, by stipulation contained in the application, tlio law of the state of New York applies to and governs a life insurance policy, and where the policy provides that the company will make loans on it, and that interest shall be paid on the loan, and where the loan agreement provides that all the conditions, limitations, and requirements of the policy, except as expressly modified in the loan contract, remain in force, the policy cannot be forfeited for nonpayment of the interest on the loan, or non-payment of a premium, or both, without notice, as required by the New York lawq although the loan contract also provides “that in the event of default in payment of said interest, or of any premium on said policy, for one month after they shall respectively become due said party of the first part [company], which is hereby irrevocably appointed attorney for that purpose, is hereby authorized at its option to cancel said policy and its accumulations for the customary cash surrender value,” and, retaining the loan and other indebtedness, to pay the balance of the cash surrender value to the insured.</p> <p>3. SAME — Actions on Policies — Burden of Proof. The burden is upon the company, in a suit upon a life insurance policy, to show that it has given notice of forfeiture in accordance with the law of New York.</p> <p>4. SAME — Question for Jury. Evidence in this ease held sufficient to require the submission to the jury of the question whether or not the insured was in such a mental condition as to be incapable of agreeing to a cancellation of a life insurance policy.</p> <p>SAME — Conditions Precedent — Tender. . It is not necessary to tender money received from a life insurance company in settlement of the excess of the cash surrender value over a loan on the policy before bringing suit on the policy, where it is certain the tender will be refused.</p> <p>(Syllabus by Bosser, C.)</p>

<p>1. PLEADING — Allegations in General — Construction—Demurrer. In the construction of a pleading, challenged by demurrer before trial, nothing will be assumed in favor of the pleader which has not been averred, as the law does not presume that a party’s pleadings are less strong than the facts of the case warrant.</p> <p>2. FRAUDS, STATUTE OF — Sufficiency of Memorandum— Correspondence. A complete contract, binding under the statute of frauds, may be made through the medium of letters, writings, and telegrams, signed by and passing between the parties, when such writings are so related to the subject-matter, and are so connected with each other, that it may be fairly said they constitute one paper relating to the contract.</p> <p>3. CONTRACTS — Principal and Agent — Validity—Authority of Agent —Question of Law. Where a transaction between parties, and the authority of an alleged agent in relation thereto, consists entirely of writings, letters, and telegrams, it is for the court to say, as a matter of law, whether such writings, construed together, constitute a contract or show an authority in the agent.</p> <p>4. PLEADING — Motions—Making More Definite and Certain. Where a petition alleges a contract for the sale of lands, made between plaintiff and an agent of defendants, and that the authority of the agent is in a writing subscribed by defendants, held, not error to require the plaintiff, on motion of defendants, to set out a copy of the writing alleged to constitute such authority.</p> <p>5. SPECIFIC PERFORMANCE — Contracts Enforceable — Authority to Make. In a suit for specific performance of an alleged contract for the sale of land, where it is alleged that the contract was made by an agent, authorized in writing to make same by the two joint owners of the land, and that such authority of the agent consisted of various letters and telegrams, it is essential, to sustain such authority, that the writings relied upon show that the agent, at the moment of the attempted sale, was clothed with authority from both of the joint owners to malee the sale to the purchaser, upon identical terms, and that it was so made.</p> <p>6. CONTRACTS — Validity—Mutuality. No contract Is complete without the mutual assent of all the necessary parties to all its terms.</p> <p>7. VENDOR AND PURCHASER — Requisites of Contract — Offer and Acceptance. An offer to sell imposes no obligations till it is accepted according to its terms.</p> <p>8. SAME. A proposal to accept or an acceptance of an offer of sale on terms varying from those offered is a rejection of the offer.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge.</p> <p>Action by William O. Hunt against the Shawnee Gas & Electric Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Brror from Atoka County Court; J. H. Linebaugh, Judge. </p> <p>Action by R. C. Savage against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; A. N. Munden, Judge. Proceedings b)'' C. E. Eerrell against Drainage District No. 5, Oklahoma county, before the board of county commissioners. From a judgment of the superior court on appeal from the order of the board of county commissioners, the drainage district brings error.

<p> Error from Caddo County Court; B. F. Holding, Judge. </p> <p>Action by H. T. Mills and another, partners, under the firm name of Mills & Orme, against G. C. Miller and another, partners, under the firm name of Miller Grain Company, and others. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from Tulsa County Court; N. J. Gubser, Judge. </p> <p>Action by the Deming Investment Company against Melville R. Baird. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Tulsa County; John H. Pitchford, Judge. Action by Marion Kelley and others against Thomas E. Scroggy and others. Judgment for plaintiffs, and defendants bring error.

Brror from District Court, Okmulgee County; W. L. Barnum, Judge. Action by Solomon Haggerty, as next friend of Thomas Haggerty, a minor, against E. W. Gill and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Carter County; S. H. Russell, Judge. Action by. L. N. Glenn against the city of Ardmore. Judgment for defendant, and plaintiff brings error. This action was begun April 26, 1908, in the district court of Carter county.

Error from District Court, Oklahoma County; Geo, W. Clark, Judge. Action by Jesse W. Johnson, administrator of the estate of E. H. Johnson, against Kate Myers and another. Judgment for defendants, and plaintiff brings error.

<p> Brror from Wagoner County Court; W. T. Drake, Judge. </p> <p>Action by John M. Barnard against Benjamin F. Wertz. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MUNICIPAL CORPORATIONS — Negligence—Delivery of Duplicate Certificates. The allegation that by gross negligence of city officers duplicate certificates were issued and placed on the market is not sustained by proof that they were never delivered by any one having authority to deliver them, but that they were taken without right by one having no authority to deliver them.</p> <p>2. SAME — Stolen Tax Certificates — Rights of Purchaser — Liability of City. A mayor and city clerk, by an oversight, signed duplicate paving tax certificates in favor of the contractor. An employee in one of the city offices stole the duplicates, and he, or some one in collusion, forged the indorsement of the contractor and delivered them to plaintiff as collateral for a loan. Plaintiff made no investigation as to whether the certificates had been delivered, or as to the genuineness of the indorsement. The loan was not paid. In a suit by plaintiff against the city for negligence of its officers in signing the duplicates, held:</p> <p>(1) That plaintiff was negligent in accepting the certificates without making investigation as to whether they had been regularly issued.</p> <p>(2) That the fact that duplicate certificates were signed was not the proximate cause of the bank’s loss. The proximate cause was the tortious acts of the city employee.</p> <p>(Syllabus by Kosser, C.)</p>

<p> Error from District Court, McIntosh County; Preslie B. Cole; Judge. </p> <p>Action by T. L. Smith and others against Robert Sexton and others, Highway Commissioners of Simpson Township, McIntosh County. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from Washita County Court; L. R. Shewn, Judge. </p> <p>Action by the White Sewing Machine Company against A. D. Berry and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Tulsa County; John H. Pitchford, Judge. Suit by Raisa F. Morley and another against W. M. Fewel. Judgment and decree for defendant, and plaintiffs bring error.

<p> Error from Pontotoc County Court; Joel Terrell, Judge. </p> <p>Action by the Hessig-Ellis Drug Company against G. M. Ramsey. Judgment for plaintiff, and defendant brings error.</p>

<p>Brror from Dewey County Court; S. M. Byers„ Judge.</p> <p>Action by B. F. Fullerton & Son against H. F. Kirkham. Judgment for plaintiff, and defendant brings erro.r.</p>

<p>Error from District Court, McIntosh County; Preslie B. Cole, Judge.</p> <p>Action by J. C. Crabtree against the Eufaula Cotton Seed Oil Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Brror from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by James M. Parnell against A. J. Goff and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Comanche County; ■ W.'M. Bowles, Judge.. </p> <p>Action by the City of Lawton against John'T. Stevens and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. JUEY — Impaneling—Special Jury. Chapter 48, art. 3, see. 6, ,of the Sess. Laws 1907-08, p. 473, which provides for impaneling a special jury in the county court of twelve qualified jurors, and then having six of them stricken by the parties, leaving six remaining in the box, only applies to impaneling a special jury “after the regular panel has been discharged.”</p> <p>2. SAME — Challenges—Time for Making. While the jurors of the regular panel of the county court are available, it is not necessary to qualify more than six jurors before the challenges are exercised.</p> <p>3. JUSTICES OP THE PEACE — Procedure—Variance. Where, in a justice court, the plaintiff sues for money paid out at the special instance and request and on behalf of the defendant, and the evidence tends to prove a loan by plaintiff to the defendant, this is not such a variance as will prevent a recovery, as the pleadings, under the justice practice, are construed very liberally, and the same exactness is not required as in pleadings in the district court.</p> <p>4. SALES — Performance of Contract — Waiver. When cattle of a certain kind are sold, the purchaser has paid a part of the purchase price, the seller tenders to the purchaser some cattle of the kind contracted for and others of an inferior kind, and refuses to deliver those of the kind contracted for, unless those of the inferior kind are likewise accepted, and the purchaser receives them all under protest, he'does not thereby abandon his right of action for damages on account of the inferior grade of the cattle received by him.</p> <p>5. TEIAL — Instructions—Applicability to Evidence. It is error to give an instruction, presenting to the jury a theory of the ease, when there is no evidence to support the theory.</p> <p>(Syllabus by Ames, C. )</p>

<p> Error from Marshall County Court; </p> <p> J. W. Palkner, Jtidge. </p> <p>Action by M. E. Brown against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>3. INFANTS — Action for Services — Defenses—Evidence. Where for two seasons defendant had contracted with an infant, paying him the proceeds of his labor, and during the third season likewise contracted, with the knowledge, consent, and assistance of the infant's widowed mother, to pay the infant for labor to be performed during the summer of 1907, and throughout that season paid to such infant cheeks in various amounts, the defendant will not be permitted, in an action by the infant to recover the balance due him, to deny the emancipation of the infant by the parent.</p> <p>2. SAME — Contracts—Disaffirmance. In this state, with certain statutory exceptions, an infant has the power to contract in the same manner as an adult, subject to his personal privilege of disaffirmance.</p> <p>.3. SAME — Review—Action by Attorney. In an action prosecuted by an infant plaintiff by next friend, during the pendency of which action plaintiff attains his majority, the plaintiff, if he desires, may then continue the action in his own name. The prosecution of an action by next friend is a protective shield thrown round the infant; and an objection in a motion for new trial, and in the assignments of error against such change in style, will not be considered on appeal to this court.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from Jefferson County Court; G. M. Bond, Judge. </p> <p>Action by W. S. Folsom, guardian, against B. A. Rice and others. Judgment for plaintiff before a justice and on appeal to the county court, and defendants bring error.</p>

<p>1. JUSTICES OF THE PEACE — Review of Decisions — Appeal—Constitutional Provisions. Article 7, see. 14, of the Constitution, until otherwise provided by law, authorizes but one method of appeal from judgments of justice of the peaee courts to the county courts, upon the hearing of which a trial de novo shall be had upon questions both of law and of fact.</p> <p>2. SAME. Sections 5034-5036, Wilson’s Kev. & Ann. St. 1903, being sections 6376-6378, Comp. Laws 1909, providing for a proceeding in error by bill of exception from judgments of justices of the peaee on questions of law, being repugnant to section 14 of article 7 of the Constitution of this state, were not extended over and put in force by section 2 of the Schedule to the Constitution.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. INSURANCE — Forfeiture of Policy — Default in Premium Note. A provision in a contract of insurance that provides that where a note given for a premium is not paid when due the failure to pay shall work a forfeiture of the contract is a valid one, and will he enforced.</p> <p>2. SAME. Where an application for insurance contains a clause providing that, in ease a note is given for premium and is not paid! when due, it shall work a forfeiture of the policy, hut the policy of insurance later issued contains a provision, in effect, that, when any premium has not been paid in cash, the contract of insurance ' may he terminated on notiee to the insured, held, that the provision in the policy modifies the forfeiture clause in the application, to the. extent that notiee to the insured is necessary before a forfeiture can he declared.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. BAIL — Jurisdiction—Committing Magistrate. A magistrate, be- 1 fore whom the preliminary examination of a person charged with a felony is held, has jurisdiction to require the person to enter into a bond conditioned for his appearance before the district court to answer the charge, and to abide the order and judgment of the court, and to make like appearance from day to day at said term of court, and at each successive term until the cause is finally disposed of.</p> <p>2. SAME — Return of Indictment — Arresting Principal. It is in the discretion of the district court whether it shall order a defendant on bail to be taken into custody after indictment is returned, and the sureties on a bail bond are not discharged by reason of the fact that the court does not require the principal to be taken into custody when an indictment is returned or information filed.</p> <p>3. SAME — Conditions of Bond — Performance. The condition in a bond that the principal will appear before the district court to answer a charge is not fulfilled by appearing for arraignment, and moving to set aside the indictment, demurring, or pleading thereto. He must stay until the case is disposed of, and he is discharged by the court.</p> <p>4. SAME — Action on Bond — Defenses. It is not a defense in favor of the sureties on a. forfeited bond in an action on the bond that they had not justified as to their qualifications, as provided in section 7108, Comp. Laws 1909.</p> <p>5. SAME — Pleading. It is not necessary, in a suit on a bail bond, to set out a copy of the charge to answer which the bond was given, nor to set out a copy of the order forfeiting the bond.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Carter County; S. H. Russell, Judge. Action by H. A. Ledbetter and others against Delia Bowen and others. Judgment for plaintiffs, and defendants bring error.

<p>1. INSURANCE — Total Loss — Liability of Company. Where a fire insurance policy was written and the loss occurred while section 3199, Wilson’s Rev. & Ann. St. 1903 (which provided that “all insurance companies isuing policies in this territory shall be required to pay in case of total loss the full amount, and in ease of partial loss shall be required to pay the amount of loss so sustained for which the property is insured; provided, however, that no policy shall be issued which shall contain a sum greater 'than seventy-five per cent, of the value of the property so insured”), and section 3204, Wilson’s Rev. & Ann. St. 1903 (which provided that, “if there is no valuation in the policy the measure of indemnity in an insurance against fire is the full amount stated in the policy; but the effect of a valuation in a policy of fire insurance is the same as in a policy of marine insurance”), were in force, the company was liable, in ease of total loss, for the full amount of the policy.</p> <p>2. SAME — Destruction by Fire. When all combustible material in a railroad car is destroyed by fire, leaving only the trucks and steel used in its construction, and that is so injured by the fire as not to be of use in rebuilding the car, there is a total loss, within the meaning of the_ fire insurance policy, although the trucks and steel may be worth a small per cent, of the original value of the car as old iron or scraps.</p> <p>3. SAME — Appraisement. Where there was a total loss of property covered by a fire insurance policy, governed by the provisions of sections 3199 and 3204, Wilson’s Rev. & Ann. St. 1903, no appraisement was necessary, though the policy provided for appraisement as a condition precedent to bringing suit thereon.</p> <p>(Syllabus by Rosser, C.)</p>

<p>1. TENANCY IN COMMON — Constructive Trusts — Persons in Confidential Relations. Two persons each owned an undivided one-half interest in the improvements on, and the right of possession to, a town lot, and were, as such cotenants, entitled to have it scheduled to them jointly, and to purchase it under the town-site law. One of the cotenants, without the knowledge or consent of the other, had the lot scheduled to and acquired the legal title in himself individually. Held, that he took the legal title of the interest of his cotenant as trustee, and that equity will decree a conveyance of such legal title.</p> <p>2. SAME — Mutual Relations of Cotenants — Acquisition of Adverse Interest. Cotenant owners of an estate in lands stand in a relation to each other of mutual trust and confidence, and neither will be permitted to act in hostility to the other in reference to the joint estate; and a distinct title acquired by one will ordinarily inure to the benefit of all.</p> <p>3. APPEAL AND ERROR — Review—Abandonment of Error. Under the rules and well-settled practice of this court, all assignments of error, not argued in plaintiff in error’s brief, will be treated a« abandoned.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by J. E. Hurst against W. B. Hill. Judgment for defendant in the district court on appeal from a justice court, and plaintiff brings error.

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by Augustus Baroni, by his next friend, Catón Baroni, against the Chicago, Rock Island & Pacific Railway Company to recover damages on account of personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Rogers County; T. L. Brown, Judge. Action by Laura Kelley and another against Julia Scruggs, and against Julia Scruggs, as guardian of Lewis H. Scruggs, Jr., and others. Judgment for plaintiffs, and defendants bring error.

Error from Comanche County Court; James H. Wolverton, Judge. Replevin by Mary A. Dodson, plaintiff below, defendant in error, against J. T. Windrow, a constable, to recover possession of -certain personal property, taken by him under execution issued on a judgment rendered in favor of the McCord-Collins Mercantile Company, defendant below, plaintiff in error', against Frank Dodson, the husband of the plaintiff.

<p> Error from Comanche County Court; James H. Wolverton, Judge. </p> <p>Replevin by Mary A. Dodson against J. T. Windrow', a constable, for personalty taken by him under execution on a judgment in favor of T. D. Turner & Co. against Frank Dodson, the husband of plaintiff. T. D. Turner & Co. were substituted for Windrow as defendants below. From a judgment for plaintiff, defendants bring error.</p>

<p>1. APPEAL AND ERROR — Abstracts—Counter Abstracts — Affirmance. Rule 25 (20 Okla. xii, 95 Pac. viii) of this court provides that: "Where a party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony to the admission or rejection of which he objects, stating specifically his objections thereto. * * * Abstracts shall be indexed and shall refer to the pages of the record,” etc. And where said rule is not complied with by plaintiff in error, but the defendant in error makes a counter abstract which is not replied to by plaintiff in error, and under such abstract as made by defendant in error, no error is shown, the presumption being in favor of the trial court, the judgment will be affirmed.</p> <p>2. SAME — Objections to Instructions — Sufficiency. Rule 25 (20 Okla. xii, 95 Pac. viii) of this court requires a party complaining of the giving or refusal of an instruction to set out in his brief, in 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 bo considered by this court.</p> <p>(Syllabus by Robertson, 0.)</p>

<p>Brror from District Court, Stephens County; F. M. Bailey, Judge.</p> <p>Action by Dan Vorhees against L. E. Toney. Judgment for defendant, and plaintiff brings error.</p>

<p>1. MASTER AND SERVANT — Injury to Servant — Negligence of Master. While under section 6, of article 23, of the Constitution, contributory negligence and assumption of risk are questions of fact to be submitted to the jury, this section does not apply to the primary negligence because of which a recovery i's sought, and where there is no evidence reasonably tending to show thaE a defendant is guilty of negligence, it is error for the trial court to submit the issue to the jury.</p> <p>2. SAME — Presumption of Negligence. In an action by an employee against his employer, the fact of accident carries with it no presumption of negligence on the part of the employer, but such neg-ligenee is an affirmative fact for the injured employee to establish by the evidence.</p> <p>S. SAME — Use of Machinery — Presumptions. A master has some discretion concerning the kind of machinery which he will use. He may use new or old machinery as he likas. He may use an old pattern or a new one as he pleases, provided the machinery, which he uses is sound and performs the work which it was designed to do, and mere proof that he is using machinery of a certain kind, and that an accident happens in the use of it, does not tend to show negligence, unless it is coupled with some evidence— not mere speculation — that it is not properly performing its function.</p> <p>4. SAME — Evidence. The evidence examined, and held insufficient to justify the submission o£ the ease to the jury.</p> <p>(Syllabus by Ames, C.)</p>

Error from Osage County Court; C. T. Bennett, Judge. Action by Chas. S. Macdonald, as executor of the will of James Bigheart, against William McLaughlin and wife. From the judgment, plaintiff brings error.

Brror from District Court, Craig County; T. L. Brown, Judge. Action by Kate Martin and others, trustees of the estate of Edward Martin, deceased, against S. S. Cobb. Judgment for plaintiffs, and defendant brings error.

<p>1. APPEAL AND ERROR — Harmless Error. Where the sufficiency of a petition is not challenged by demurrer, but only by an objection to the introduction of evidence thereunder, and where it is perfectly apparent from the proceedings that no substantial right of the defendant was materially affected by the overruling of the objection, and where the objection raises a purely technical question, error, if any there be in the ruling, is not reversible.</p> <p>2. JUDGMENT — Foreign Judgment — Enforcement. Where the appearance of a defendant is entered by an attorney in fact or at law, duly authorized to enter the appearance, and where judgment is thus confessed under a proper power of attorney, that judgment will be enforced in this state, although it was rendered in another state, and the defendant was not a resident either of the state in which it was rendered or of this state.</p> <p>3. SAME. Where a lawful judgment is rendered in another state, and the plaintiff and the defendant in that ease are both nonresidents of this state, and suit is brought on that judgment in this state, and property of the defendant is taken under attachment, there is nothing in the policy of this state which will prevent its courts from enforcing that judgment.</p> <p>4. STIPULATIONS — Presumptions — Agreed Statement of Pacts. When a case is tried on an agreed statement of facts, which contains a statement that it shall be considered as all of the facts in the case, and where that statement recites as a fact a certain statute of another state, this court will not presume that there are other statutes of that state identical with ours, as this presumption would be contrary both to the letter and the spirit of the agreed statement.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Osage County; L. M. Poe, Judge. </p> <p>Action by the State, on the relation of L. F. Roberts, County Attorney of Osage County, against the Indian Territory Illuminating Oil Company. Judgment for defendant, and plaintiff brings error.</p>

Error from Kay County Court; Claude Duval, Judge. Action by George S. Fenton against the Atchison, Topeka & Santa Fe Railway Company for the wrongful killing of live stock. Judgment for plaintiff, and defendant brings error.

Error from Superior Court, Oklahoma County; A. N. Munden, Judge. Action in replevin by D. M. Blunk against B. J. Waugh and another. From an order sustaining a motion to quash the writ of replevin, plaintiff brings error.

<p> Error from Jackson County Court; M. L. Hankins, Special Judge. </p> <p>Action by the Altus State Bank against William Mitchell and R, L. James. Judgment for plaintiff, and defendant Mitchell appeals.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by the Commercial Electrical Supply Company against 5. E. Dunbar. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Jackson County Court; TV. T. McConnell, Judge. </p> <p>Action by E. M. Wood against E. J. Jones and the Duke State Bank. Judgment for defendants, and plaintiff brings error.</p>

<p>1. MASTER AMD SERVANT — Injuries to Servant — Dangerous Appliances. The mere purchase of an instrumentality, such as oil, from a reputable dealer, is not alone sufficient to excuse the employer, in case of injury received in its use, but, in addition to this requirement, is coupled the duty of such reasonable examination and inspection as is practicable by a prudent man under similar circumstances.</p> <p>2. SAME — Negligence of Master — Question for Jury. Whether or not the company was negligent in the purchase and furnishing of a safe instrumentality, such as lubricating oil, for the use of miners in a coal mine, is primarily one of fact, to be determined under proper instructions by the jury from all the facts and circumstances of the whole case, and where the issue has been properly submitted, and th'e verdict regularly returned, the finding of the jury will not be disturbed in this court on appeal.</p> <p>(Syllabus by Bobertson, C.)</p>

<p> Error from District Court, McIntosh County; Preside B. Cole, Judge. </p> <p>Action by H. D. Lambert against the Atchison, Topeka & Santa Ee Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Mrror from Haskdl County Court; Ulys. Pyle, Special Judge. Action by the Western States Lumber Company against A. B. Calloway and others. Judgment on demurrer for plaintiff, and defendants bring error.

Error from District Court, Kingfisher County; A. H. Huston, Judge. Action by Martha Hedges against David Sims, administrator of the estate of John Sims, deceased, and others. Judgment for plaintiff, and defendants bring error.

<p> Brror from Washington County Court; A. T. Dumenil, Judge. </p> <p>Action by the American Surety Company against A. D. Morton. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Pawnee County; L. M. Poe, Judge. Action by Thompson & Rowell and E. A. Bullock against the Springfield Fire & Marine Insurance Company on three insurance policies. Judgment for plaintiffs on one, and for defendant on the others, and both parties bring error. '

<p>1. SCHOOLS AND SCHOOL DISTRICTS — Discrimination Between Races — Evidence. When the question involved is whether a person is a negro or a white person, evidence is properly admitted tending to show the relation of such person to the white and negro races, and the nature and extent of his association with others of such races.</p> <p>2. SAME. On the trial of such an issue, evidence is competent which tends to show that the person involved is generally regarded as a negro or white person by his neighbors and in the community in which he lives.</p> <p>3. EVIDENCE — Opinion Evidence — Admissibility. On the trial of such an issue, witnesses who have long known the person involved should be permitted, to state that he is a negro or a white person, ' as the ease may be.</p> <p>4. SCHOOLS AND SCHOOL DISTRICTS — Discrimination Between Races — Evidence. On the trial of such an issue, evidence should be admitted tending to show that the person involved attended the white school in the state from which he came, if the law of that state prohibits negroes from attending white schools.</p> <p>5. EVIDENCE — Statutes—Admissibility. Under Comp. Laws 1909, see. 5890 (Statutes of 1893, see. 4260), the best evidence of the statutes, codes, or other written law of any other state or foreign government is the statute itself; while the unwritten or cominou law may be proved as facts by parol evidence.</p> <p>(Syllabus by Ames, C.)</p>

<p>APPEAL AND ERROR — Review—Findings of Referee. The record in this case contains the petition, the findings of fact of the referee, and his conclusions of law. There was no motion for a new trial. The evidence is not included in the case-made. It is held that, in the light of the allegations of the petition and the findings of fact thereunder, the conclusion of law reached by the referee is fully sustained by the law.</p> <p>(Syllabus by Robertson, 0.)</p>

Brror from District Court, Garfield County; M. C. Garber, Judge. Action by F. N. Winslow and others against the Cherokee Trust Company and others, and the defendant Farmers’ & Merchants’ Bank' of Kiel files an answer and cross-petition. From the judgment, the Farmers’ & Merchants’ Bank of Kiel brings error.

<p>1. JUSTICES OP THE PEACE — Procedure—Change of Venue. It is the duty of a justice of the peace to grant a change of venue when a motion, supported by affidavit, as provided by statute, has been presented asking for such change; and a refusal to grant the same is error.</p> <p>2. SAME. The refusal of a justice to grant a change of venue does not oust the jurisdiction of the court; but any judgment rendered thereafter in the case is voidable only, and subject to correction on appeal.</p> <p>3. SAME — Review of Decisions — Jurisdiction of Appellate Court. It is not error for the county court to refuse to sustain a motion to dismiss a cause on appeal for want of jurisdiction, simply because the justice before whom the cause was tried below refused to grant a change of venue.</p> <p>4. PRINCIPAL AND AGENT — Existence of Relation — Evidence. Agency is a fact to be proved, as any other fact.</p> <p>5. SAME — Authority of Agent — Evidence. The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence, and is a question for the jury.</p> <p>6. APPEAL AND ERROR — Review — Questions of Pact. WRere there is any evidence reasonably tending to support the finding of a court, sitting without a jury, this court will not weigh the evidence to determine where the preponderance lies, nor disturb the finding so made.</p> <p>7. TRIAL — Trial by Court — Findings—Effect. A general finding by a court or jury includes, also, a finding on all issues in the ease necessary to sustain the general finding.</p> <p>(Syllabus by Robertson, C.)</p>

Error from Craig County Court; Theo. D. B. Frear, Judge. Action by the Staver Carriage Company against Theodore Jones and C. W. Kilgore. Judgment for plaintiff by confession against Kilgore, and judgment for Jones, and plaintiff brings error.

<p>1. SALES — “Warranty”—What Constitutes. In order to" constitute an express warranty, no particular language is necessary. It is not required that it shall he in writing, or he made in specific terms; and it is not at all necessary that the word “warrant” or “warranty” shall he used. Any direct and positive affirmation of a matter of fact, as distinguished from the mere matter of opinion or judgment, made hy the seller during the sale negotiations and as a part of the contract, designed hy Mm to induce the action of the purchaser, and actually relied upon hy the latter in making the purchase, will he deemed to he a warranty.</p> <p>2. SAME — Construction. A warranty arising from representations made hy the seller at the time of sale that a cow is a first-class No. 1 milch cow implies the absence of any defect or disease which impairs or in its progress will impair the animal's natural usefulness for the purpose for which it is purchased, and is-breached by any defects which render it permanently less serviceable, although the defect may not be fully developed at the' time of the sale.</p> <p>3. NEW TRIAL — Overruling Motion — Discretion of Court. Where-during a trial it was discovered that certain depositions theretofore on file were missing, no charge of misconduct being made,, and where after search said depositions could not be found, and the trial was proceeded with, no objection at the time being-made, held not error to overrule a motion for a new trial supported by said depositions, afterwards found, on the ground of abuse of discretion in the trial court, and on account of accident or surprise, which ordinary prudence could not have guarded: against.</p> <p>4. NEW TRIAL — Review—Setting Aside Verdict. It is only where the verdict of a jury cannot be justified upon any hypothesis-presented by the evidence that it should be set aside on the ground that it is a compromise verdict.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from District Court, Logan County; A. EI. Huston, Judge. </p> <p>Action by T. M. Ballard against the Home Insurance Company of New York. Judgment for plaintiff, and defendant brings error.</p>

<p>1. NEGLIGENCE — Civil Liability. In an action for damages for setting out fire, where the evidence clearly shows such fire was not set for the purpose of burning off any prairie, marsh, woodlands, or stubble lands, but was merely for the purpose of burning brush heaps, or trash piles ahead of the plowing, the defendant is not liable in a civil action for damages resulting therefrom, under sections 1-6, inclusive, of chapter 37 of the Statutes of 1890, but, if at all, is.liable under section 6 of such act.</p> <p>And, where there is no dispute or issue as to whether the fire was extinguished on the day on which it was set, as provided in such section, and the evidence shows that such fire got beyond control in the daytime, while such brush heaps were being burned, the material issue fixing defendant’s liability is whether such fire spread beyond control through the willfulness, carelessness, or negligence of defendant.</p> <p>2. TRIAL — Instructions — Evidence. In an action for damages, where an issue of contributory negligence is raised by the pleadings, and there are circumstances justifying a determination of such issue by the jury, it is error to refuse an instruction on such issue.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Brief. Where plaintiff in error flies 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, 0.)</p>

<p>BUILDING AND LOAN ASSOCIATIONS — Premiums—Recovery. Where a building and loan association lends money without requiring bids for the preference in obtaining the loan as provided in section 1490, Comp. Laws 1909 (Wilson’s Rev. & Ann. St. 1903, see. 1196), it has no right to charge premiums, and premiums and dues paid under a loan agreement made without bids will be applied to discharge the loan.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Jefferson, County; Prank M. Bailey, Judge. Action by the O’Neil Engineering Company against the Incorporated Town of Ryan and others. Judgment for defendants, and plaintiff brings error.

<p>Error from Okmulgee County Court; M. M. Alexander, Judge.</p> <p>Action by George W. Wilson against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>This action was commenced by Geo. W. Wilson against the defendant railroad company in the county court of Okmulgee county September 16, 1908; the plaintiff alleging that on June 8th he delivered to defendant at Morris, Okla., for shipment to Kansas City, Mo., 106 head of beef cattle. The said cattle were loaded into the cars of defendant company on the afternoon of June 8th and were started on the road at about 6 o’clock p. m. of said day. That they arrived in Kansas City about 10:30 a. m., June 10th, having been about 40 hours on the road, when with reasonable diligence on the part of defendant they should have arrived in Kansas City within about sixteen hours from the time they were started from Morris, Okla. That at the time they landed in Kansas City there was no market for cattle owing to the stockyards being overflowed with high water and the business of the stockyards suspended. That plaintiff was thereby compelled to ship his cattle from Kansas City to St. Louis, Mo., for market at an additional expense. That the market had declined between the dates on which the cattle should have reached Kansas City and the date they were sold, which decline in market resulted in loss to plaintiff of 60 cents per 100 pounds. That plaintiff was damaged by reason of such decline in market in the sum of $605.52; that he was damaged by reason of the depreciation or shrinkage in weight of the cattle in the sum of $278.25; and in the extra expense incurred in freight from Kansas City to St. Louis in the sum of $140.26; plaintiff alleging that all of such loss and damage was caused by the negligence of defendant company in the delay of shipment. Wherefore judgment was asked for the sum of $1,024.03.</p> <p>Defendant answered denying the allegations in the petition, and as further defense alleged that such shipment was made under two written contracts entered into and signed by plaintiff and defendant before such shipment was received by defendant. That such contracts provided, among other things, that the live stock in question was not to be transported within any specified time, nor delivered at any particular hour, nor in season for any particular market. That neither the defendant company nor any connecting carrier should be held responsible for any delay caused by storm, failure of machinery or cars, or from obstruction of track from any cause, or any injury caused by fire from any cause whatever. That such contracts further provided that no agent of the defendant company had authority to waive, modify, or amend any of the provisions of said contract, or to agree to ship said cars by any particular train, or to reach any particular market, or to furnish any particular kind of cars, or to furnish cars on any particular day, which the carrier expressly declined to do.</p> <p>The defendant for further defense alleged that while said shipment was in transit there occurred a very severe and unusual flood at Kansas City which rendered it impossible for defendant to move its cars up to the stockyards at Kansas City on June 10th. That defendant endeavored by diligence and care to deliver said cattle at their destination within reasonable time, but was prevented from so doing by, reason of the floods and high water aforesaid.</p> <p>Th'e case was tried May, 1909, resulting in a verdict in favor of plaintiff in the sum of $500.’ On May 25th motion for new trial was overruled and judgment rendered upon said verdict, from which defendant, plaintiff in error here, appeals, urging the following assignments of error: First, error of the court</p> <p>in giving to the jury instruction No. 5; second, that the verdict is not sustained by sufficient evidence and is contrary to law; third, error of the court in overruling defendant’s motion for a new trial.</p>

Error from District Court, Muskogee County; John H. King, Judge. Action by Henry M. Stillwell and Ered E. Coss against Daniel L. Colbert and others. Emma Hicks intervened. From an order setting aside the verdict and granting a new trial, defendan* Leland L. Davis brings error.

Error from Marshall County Court; J. W. Ealkner, Judge. Action by Henry Bourland against the Madill State Bank and others. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Review—Questions of Pact. In 1902, defendant, having a seven-year lease on a 320-aere tract of land in the Indian Territory, assigned it and seven $100 promissory notes to plaintiff in consideration of $400 in cash and plaintiff’s note for $300. The land subsequently was allotted to a third patty, and plaintiff, failing to get possession under his lease, brought suit to recover the $400 and for cancellation of the note, charging that the lease was void, and that defendant had fraudulently induced him to purchase same. Defendant answered, denying fraud, and charging plaintiff with sole responsibility for bringing about the trade, and further charged that plaintiff had turned back to the maker the seven $100 notes assigned; that he had received only $400 for same, and asked judgment on plaintiff’s $300 note. The court held that the burden was on the plaintiff to prove his right to recover the $400 and order of cancellation, and that, as defendant had asked for affirmative relief, the burden was upon him to prove his right to recover on the $300 note. The testimony being in direct conflict, the court held that plaintiff had failed to prove his right to recovery by a preponderance of the testimony, and denied him. judgment. Also defendant had failed to prove his right to the affirmative relief prayed for, and ordered the cancellation of the note. The judgment, being based upon conflicting testimony and being reasonably supported by the record, will not be disturbed in this court.</p> <p>(Syllabus by Harrison, O.)</p>

<p>Error from District Court, Woods County; R. EL Eoofbourrow, Judge.</p> <p>Action by Ered Van Wagner against T. S. Chambers. Judgment for plaintiff, and defendant brings error.</p>

<p>INDIANS — Contracts—Statutory Provisions. Under the section of the act of Congress of March 3, 1901, e. 832, 31 Stat. 1065, regulating licensed traders, and their intercourse with the Osage Indians, the licensed traders could extend credit to an individual Osage, or the head of a family, to the extent only of 60 per cent, of his next quarterly annuity payment; and credit extended by such licensed traders to such Osage Indians, in March and August, 1905, in excess thereof, was unlawful and does not create a legal indebtedness against such Indians that can be enforced in the courts.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Erom a judgment of the district court affirming an order of the County Commissioners of Garvin County in the matter of certain bridges of the Lindsay Bridge Company, the county brings error.</p>

<p> Error from Harper County Court; J. L. Griffitt, Judge. </p> <p>Action by M. T. Day against D. H. Kendall. Judgment for plaintiff, and defendant brings error. •</p>

<p>STATES — Verdict—Assent of Required Number of Jurors. In a suit for damages on account of alleged negligence occurring prior to statehood, but where the suit was instituted subsequent to statehood, it is not error to instruct the jury that three-fourths of their number, having agreed upon a verdict, may return it into court, when it is signed by each of such members concurring therein.</p> <p>(Syllabus by Brewer, G.)</p>

<p> Error from Johnston County Court; Nick Wolfe, Judge. </p> <p>■ Action by W. R. Langston against the First National Bank ■of Mill Creek. Judgment for plaintiff, and defendant brings •error.</p>

<p> Error from District Court, Atoka County; Robt. M. Rainey, Judge. </p> <p>Action by Piden M. Foy against the Western Union Telegraph Company for damages on account of failure to promptly deliver a telegram advising plaintiff of her brother’s death. Judg-. ment for plaintiff, and defendant brings error.</p>

Error from District Court, Garvin County; R. McMillan, Judge. Action by T. H. Vaughn and others against Sillis Hoteyabi and others to quiet title to real estate. Judgment for plaintiffs, and defendants bring error.

<p>INDIANS — Lease by Allottee — Enforcement — Evidence. C., a full-blood Cherokee allottee, executed an oil and gas lease in favor of A., a corporation. Later the allottee executed a lease of the same lands to S. & B. The Secretary of the Interior approved the lease to S. & B., and disapproved the one to A. S. & B. went into possession of the land under their approved lease, prospected it, and developed oil in paying' quantities. A. then brought suit in the district court to have S. & B. declared trustees of and as holding the approved lease in trust for the benefit of A. Held, that the evidence in the case fully sustained the finding of the-trial court that A. ’s petition was without- equity, and that, under the law and evidence, it was not entitled to the relief sought.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. PLEADING — Motion to Make More Definite. Under Comp. Laws 1909, see. 5659, providing that, when “ r' * * the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment,” it is not error to overrule a motion to make a pleading more definite and certain when it is sufficient to inform the opposing party of the precise nature of the charge or defense.</p> <p>2. TRIAL — Instructions—Reservation of Exceptions. When the instructions are given in writing, and following them the case-made recites, “To the giving of the said instructions and each and all of them the defendant then and there excepted and excepts, and his exceptions were by the court allowed,” this is not a sufficient reservation of an exception to any particular instruction contained in the charge under section 5795 of Comp. Laws 1909.</p> <p>S. SAME — Repetition. When the instructions as given fairly contain the substance of an instruction refused, the refusal of such instruction is not reversible error.</p> <p>4. APPEAL AND ERROR — Review—Refusal of New Trial. Under the ruling that, before a new trial will be granted because of/ newly discovered evidence, it must be made to affirmatively appear that the new evidence would be sufficient to probably produce a different result, a certain amount of discretion is vested in the trial court, and his ruling will not be reversed here unless we are able to see that such evidence would probably produce a different result.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from Stephens County Court; W. H. Admire, Judge. </p> <p>Action by the Spaulding Manufacturing Company against S. N. Holiday. Judgment for defendant, 'and plaintiff brings error.</p>

<p>1. INDIANS — Contracts—Validity. A deed and mortgages, executed by a member of tbe absentee Shawnee Tribe or Band of Indians, of lands allotted to such Indian and held in trust for him by the United States, under Act of Congress Feb. 8, 1887, c. 119, 24 Stat. 388, as amended by Act of March 3, 1891, e. 543, 26 Stat. 1018, are void.</p> <p>2. SAME — Lands—Conveyance. P., a member of the absentee Shawnee Tribe or Band of Indians, while his allotment was held in trust for him by the United States, executed on it certain mortgages and a deed to B. & C. After obtaining fee-simple, unrestricted title, P. conveyed the lands to W. Afterwards P. executed an instrument, attempting to ratify the deed and mortgages of R. & C. Later W. conveyed the lands to Perkins. Held, that Perkins took title unincumbered by the mortgages and deed, executed while the land was held in trust, and by the instrument attempting to ratify such mortgages and deed.</p> <p>3. VENDOR AND PURCHASER — Bona Fide Purchasers — Notice-Record. A purchaser of the legal title to lands is not bound to take notice of a registered lien created by any person other than those through whom he is compelled to deraign his title.</p> <p>4. HOMESTEAD — Abandonment—Removal—Conveyance. Where all the proof shows that a person owning lands removes therefrom and continuously lives on other lands in the county for five years, and then executes a deed to the lands, held, that such facts make a prima facie case of abandonment of the lands as a homestead.</p> <p>(Syllabus by Brewer, C.)</p>

<p>JUDGMENT — Action on Judgment — Answer—Demurrer. Where the defendant in a.suit on a judgment answered that he had not been served with summons, and attached a copy of the judgment showing that he had not been summoned and had not appeared .in the action, it was error to sustain a demurrer to the answer.</p> <p>(Syllabus by Eosser, 0.)</p>

<p>1. PLEADING — Petition—Statement of Cause of Action. The allegations in a petition should be sufficiently clear, definite, and certain as to enable the court to clearly understand, not only the specific wrongs complained of, and what particular acts constitute same, but also the correct measure of redress afforded in law.</p> <p>2. TEIAL — Instructions—Invasion of Province of Jury. The plaintiff sued for $2,000. The testimony was conflicting as to just what amount, if any, was due the plaintiff. The court instructed the jury as follows: “If you find for the plaintiff in this case, he is entitled to recover the sum of $1,565.96. ’ ’ This instruction was erroneous in that it was an invasion of the jury’s province to determine what amount, if any, was due to plaintiff.</p> <p>(Syllabus by Harrison, C.)</p>

<p>■TRIAL — -Verdict—Validity. In a ease pending before statehood, the verdict of the jury must be unanimous; and it is error to instruct the jury, over the objection of one of the parties, that less than the whole number can return a verdict; and'it is error to receive a verdict by less than the whole number.</p> <p>(Syllabus by Rosser, 0.)</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Carrie A. Moore, administratrix of the estate of John J. Moore, against John B. George. Judgment for plaintiff, and defendant brings error.</p>

Error from Love County Court; R. A. Keller, Judge. Action by Walker Bond & Co. against Henry Purifier and Charlotte Purifier. Verdict for plaintiff for a portion of the property claimed, and from an order denying a new trial plaintiff brings error.

<p>1. REFORMATION OF INSTRUMENTS — Grounds—Mistake. The owner of lot 35 conveyed by deed to the owner of lot 36 all of lot 35 south of the center of a brick wall on the south line of lot 35, as established by a survey in 1890, together with the south half of the brick wall, “said strip of land being six and one-half inches in width, more or less.” A later survey showed the strip of land in lot 35 south of the center of the brick wall to be about one foot wide. Held, that the maker of the deed is not entitled to have it reformed so as to convey only six and one-half inches off the south side of lot 35.</p> <p>2. SAME. A contract cannot be reformed so as to make a different contract from one the parties intended to make, though made in ignorance of facts, which, if known, might have prevented them from making the one they actually made.</p> <p>(Syllabus by Rosser, 0.)</p>

Error-from District Court, Washita County; James R. Tolbert, Judge. R. Brett presented a claim to the Board of County Commissioners of Washita County, and, on refusal to allow the bill, judgment was rendered against the county on appeal by the district court, and the Board of County Commissioners brings error..

<p> Error from Payne County Court; P. D. Mitchell, Judge. </p> <p>Action by William Rath against the Atchison, Topeka & Santa Ee Railway Company. Judgment lor plaintiff, and defendant brings error.</p>