Volume 34 — Oklahoma Reports

Error from Superior Court, Muskogee County; Farrar E. McCain, Judge. Action by John J. Moore against Fred E. Turner and the Old Homestead Company to recover the possession of a certain lot in city of Muskogee, and damages for the unlawful detention thereof. Judgment for plaintiff, and defendants bring error.

Error from Pontotoc County Court; Arden L. Bullock, Special Judge. Action by Gertrude Case against Duke Stone for loss of a piano.

<p>1. MECHANICS’ LIENS — Property Subject — Public Buildings. In the absence of a statute in express terms authorizing it, there can be no mechanic’s lien on the public buildings of a state, or the subdivision thereof, since such lien would be contrary to public policy and incapable of enforcement.</p> <p>2. STATUTES — Construction—General Rules. While it is the general rule that the Legislature of one state, in adopting a statute of another state, is presumed to have adopted the construction placed on such statute by the highest court of such other state prior to its adoption, yet this rule has its exceptions, first, where the construction is contrary to the Constitution or the well-defined legislative policy of the adopting state; seeond, where the adopted statute exists in many other states and such construction is contrary to the decided weight of authority in such other states having substantially the same statute.</p> <p>3. MECHANICS’ LIENS — Construction — Subject-Matter. Where the condition of a bond is “to pay all claims for labor and material contracted in the erection of said county jail building to each and all persons entitled thereto, and which claims might be the basis of liens on said lots and buildings,” etc., held, that the obligation of the bond extended only to such claims as “might become liens,” and that the sureties were not liable on account of claims that are not and could not become liens.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, McClain County; R. 'McMillan, .Judge. Action by the Purcell Wholesale Grocery Company, a corporation, against the Shawnee National Bank, a corporation, M. B. Ryan, and B. E. Hamilton, trustee. Judgment for plaintiff, and defendant Shawnee National Bajik brings error.

Error from District Court, Oklahoma County; R. H. Loofbourrow, Assigned Judge. Action by W. C. Stiller against the Atchison, Topeka & Santa Fe Railway Company and C. T. Warden. Judgment for defendants, and plaintiff brings error.

Error from District Court, Kingfisher County; A. H. Huston, Judge. Action by George W. Brooks and Emma Brooks, his wife, against T. L. Evans and Susan Evans, his wife. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Marshall County; D. A. Richardson, Judge. Action by Claude Booher, by his next friend, I. W. Booher, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

<p>1. JUDGMENT — Setting Aside — “Direct Attack.” A “direct attack” on a judicial proceeding is an attempt to avoid or correct it in some manner provided by law.</p> <p>2. SAME — “Collateral Attack.” A “collateral attack” on a judicial proceeding is an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.</p> <p>3. CHATTEL MORTGAGES — Foreclosure—Sale—Collateral Attack. Under the law in force in the Indian Territory prior to statehood, a foreclosure sale made pursuant to an order of court is not completed until confirmed by the court; and until such confirmation such a sale may be attacked in a collateral proceeding.</p> <p>4. JUDGMENT — Trial by Court — Findings—Collateral Attack. When, in a judicial proceeding, the court expressly finds that the defendant is present, such finding is not subject to attack in a collateral proceeding.</p> <p>5. APPEAL AND ERROR — Review—Prejudicial Effect of Error. It is reversible error to admit incompetent evidence, the probable effect of which is to arouse the sympathy of the jury in favor of the winning party, or to prejudice the jury against the losing party.</p> <p>6. CHATTEL MORTGAGES — Rights of Parties — Wrongful Conversion. A mortgagee of personal property, who takes possession under an invalid sale, is a mortgagee in possession; and, if he disposes of the property without complying with the requirements of law or. the terms of the mortgage, he is guilty of a conversion.</p> <p>7. TROVER AND CONVERSION — Elements of Conversion — Possession of Property. While it is generally true that one, in order to be guilty of a conversion of personal property, must be in possession of it, yet, if he exercises acts of dominion over the property and participates in the wrongful act of him who is in actual possession by aiding and abetting in the wrongful disposition and sharing in the proceeds thereof, he would then be guilty of a conversion.</p> <p>8. SAME — Right of Action — Conditions Precedent — Demand. Demand is not a necessary condition precedent to maintaining an action of wrongful conversion after the conversion has been completed, and the property has passed out of the possession of the defendant.</p> <p>9. CHATTEL MORTGAGES — Damages — Measure. A mortgagor’s measure of damages for wrongful conversion by the mortgagee is the difference between the market value of the property at the time of the conversion and the debts then existing, which were liens upon and satisfied by a sale of the property.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from Dewey County Court; S. M. Byers, Judge. ■ </p> <p>Action by J. B. Leake and E. Leake against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. REMOVAL OF CAUSES — Cases Under Laws of United States— Allegations in Pleadings. When a cause is sought to be removed from a state to a federal court, on the sole ground that it is one arising under the Constitution, laws, or treaties of the United States, the fact that it does so arise, thus making it removable, must be ascertained from the necessary allegations of plaintiff’s statement of his own cause of action. And in determining the question, resort may not be made to the allegations in the petition for removal or in later pleadings.</p> <p>2. SAME — Nature of Controversy. A cause cannot be removed from a state to a federal court simply because, in the progress of the litigation, it may become necessary to give a construction to the Constitution or laws of the United States. In such cases the state courts are competent to determine the matter in the first instance.</p> <p>3. EJECTMENT' — Proceedings—Pleading Title. Under section 6122, Comp. Laws 1909, the plaintiff, in an action for the recovery of real estate, is not required to deraign his title with particularity.</p> <p>4. INDIANS — Lands—Inheritance. The law of descent, in force at the date the selection of a Creek allotment takes effect, governs as to the classification of the heirs; and this law relates back to the death of the Indian entitled to take the allotment, and identifies such heirs as of that date.</p> <p>5. SAME. Under the Creek law of descent and distribution, put in force by the Original Creek Agreement, e. 676, 31 St. at L. 870, an intermarried noncitizen husband receives out of his deceased citizen wife’s allotment an heir’s part. Following de G-raffenreid v. Iowa L. & T. Co., 20 Okla. 711, 95 Pac. 624.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by Frank L. Warren against Lewis C. Lawson, Receiver, and others. Judgment for plaintiff, and Lawson brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by Eva Noble against the New York Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. INDIANS — Death of Enrolled Indian Woman — Rights of Surviving Husband. An enrolled Creek woman died in October, 1899, leaving surviving her husband, a white man not enrolled, and a daughter, and a sister. In 1899, after the mother’s death, the daughter died unmarried and without issue. An allotment in the name of the woman’s heirs was made in December, 1901. Held:</p> <p>(1) That the entire estate in the allotment vested in the husband.</p> <p>(2) That the fact he was of white blood did not prevent him from inheriting, under the Creek law, as heir to his wife and daughter.</p> <p>2. EJECTMENT — Improvements — Liability of Prevailing Party. Section 2644 of Mansf. Dig. of Ark. (Ind. T. Ann. St. 1899, see. 1928), which provides that, “if any person believing himself to be the owner either in law or equity, under color of title, has peaceably improved, or shall pieaceably improve, any land which, upon judicial investigation, shall be decided to belong to another, the value of the improvements made,’’ is to be paid by the successful party before he can obtain possession, does not entitle a defendant to compensation for improvements made after suit brought against him for the land.</p> <p>(Syllabus by Rosser, C.)</p>

<p>APPEAL AND ERROR — Dismissal—Parties. All persons who are parties to the proceedings in the trial court, and whose interests will be adversely affected by a reversal of the judgment, must be brought into the appellate proceedings. If the interests of those who are brought into the appellate proceedings as parties will be injuriously affected by a reversal or modification of the judgment complained of, without a reopening of the case as to the other parties as to whose interests the judgment has become final by the failure to appeal, the appeal will be dismissed.</p> <p>(Syllabus by Robertson, C.)</p>

Error from District Court, Le Elore County; M. E. Rosser, Judge. In the matter of the guardianship of Ephriam Billy and others. Proceedings by Charles Billy, guardian, for the sale of land. From an order refusing to confirm the sale, U. S. Joines, purchaser, brings error.

Error from District Court} Seminole County; Robt. M. Rainey, Judge. Action by J. R. Simpson against T. A. Stout. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR, — Review—Questions of Fact. Where, in a trial before the court, special findings of fact are made which are reasonably supported by the testimony, such findings will not be disturbed on the weight of evidence. (a) This rule applies with particular force where the evidence of the successful party is all presented by the witnesses in open court, testifying through an interpreter, while the material testimony of the unsuccessful party is all given in the form of depositions.</p> <p>2. TRIAL — Exclusion of Competent Evidence. It is not error to exclude incompetent and irrelevant testimony.</p> <p>3. APPEAL AND ERROR — Review—Presumptions. Where, in the trial of a ease before the court without the intervention of a jury, incompetent testimony is admitted together with other testimony that is .competent to the material issues, this court will not reverse the findings or judgment of the trial cmn-t, unless it appears that the court in reaching its decision relied on such incompetent evidence.</p> <p>4. QUIETING TITLE — Evidence — Sufficiency. Testimony examined, and held sufficient to support the findings of the trial court.</p> <p>5. WITNESSES — Impeachment—Character of Witness — Competency of Evidence. Testimony as to the general reputation for virtue and chastity of a witness is incompetent and improper.</p> <p>(Syllabus by Sharp, 0.)</p>

<p>Brror from Superior Court, Muskogee County; Farrar L. McCain, Judge.</p> <p>Action by the Barber Asphalt Paving Company against the Oklahoma Eire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. SPECIFIC PERFORMANCE — Contracts Enforceable — Employment of Real Estate Agent. A contract appointing an agent to sell real estate, and agreeing to deliver deeds therefor as sold, and providing that the real estate agent retain all the proceeds in excess of the amount specified, is not one which can be enforced by a deere of specific performance. Such a contract is a contract of employment, and conveys no interest in the real estate.</p> <p>2. PRINCIPAL AND AGENT — Construction of Contract — Power Coupled. With Interest. An interest in the property upon whieh the power is to operate, and not merely an interest in the exercise of the power, is essential to make a power of attorney one coupled with an interest.</p> <p>3. PLEADING — Allegations in General — Presumptions. After a party has amended his petition three times, and a demurrer is again sustained to it, no presumption will be indulged in favor of the pleading.</p> <p>4. SAME — Demurrer—Grounds. While an action which is improperly brought for specific performance may be retained by the court' for the purpose of rendering damages for breach of the contract, yet, if the petition, after repeated amendments, neither states a cause of action for specific performance, nor for damages for the breach of the contract, a general demurrer thereto should be sustained.</p> <p>(Syllabus by Ames, C.)</p>

Error from District Court', Muskogee County; John H. King, Judge. Action by F. L. Martin against Harry G. Gwinnup and James L. Allen for a new trial. Judgment,for defendants, and plaintiff brings error.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Millie Staggs against the Muskogee Electric Traction Company for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Review—Case-Made. Where the ease-made does not contain a recital to the effect that the record contains all the evidence introduced at the trial of the cause, this court will not review any question whieh requires an examination of all the evidence in order to correctly determine the same.</p> <p>2. SAME — Record—Dismissal. A record whieh fails to contain a copy of the final order or judgment sought to be reviewed, and k in which it is not made to appear that the same is of record in the trial court, presents no question to this court for its determination, and the appeal will be dismissed.</p> <p>(Syllabus by Robertson, G.)</p>

Brror from District Court, Hughes County; John Caruthers, Judge. Petition by David A. Barnett, James A. Ostrum, and John E. Turner for probate of the will of Bunnie Hawkins, deceased, and Ralph Welch, guardian of Addie Hickory, objects on the ground of undue influence, duress, and fraud. From a judgment in favor of the beneficiaries David A. Barnett, James A. Ostrum, and John E. Turner, Welch brings error.

Error from District Court, Hughes County; John Caruthers, Judge. Petition by B. IT. Harrison and Lizzie Eatt for the probate of the will of Taylor Foley, and Malinda Proctor objects. From a judgment of the district court in favor of the proponents, the contestant brings error. This proceeding was commenced in the county court of Hughes county by the filing of a petition by B. H. Harrison and Lizzie Fatt for the probate of the will of one Taylor Foley.

Error from Tulsa County Court; N. J. 'Gubser, Judge. Action by Oscar K. Eysenbach against H. C. Calhoun to recover a commission for the sale of real estate. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Rogers County; J. I. Howard, Special Judge. </p> <p>Action by William Taylor against the Insurance Cdmpany of North America. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CARRIEES — Injury to Passengers — Care Required. The plaintiff entered the defendant’s train for the purpose of assisting a sick passenger. The conductor and other employees were not notified that it was her intention to alight from the train after seating the sick person, nor were there any facts or circumstances charging them with notice of her intention. After making the usual stop, the station being clear, the conductor started his train, and the plaintiff alighted from it while it was in motion. Held, that she was not entitled to recover.</p> <p>2. TRIAL — Instructions—Submission of Law Questions. It was error to give the following instruction: “The question of negligence is a question for the jury alone. You alone are the sole judges of that question. The laws of this state take that out of the province of the court, and it is for you to say what does or does not constitute negligence. ’ ’</p> <p>3. NEGLIGENCE — Trial — Nature and Elements — Instructions — Functions of Jury. Negligence is a breach of duty. In order for it to exist, there must be both a duty and a breach of it. It is the duty of the court in its instructions to advise the jury of the duties' which the law imposes upon the parties, and, where there is conflict in the evidence, it is the function of the jury to determine whether these duties imposed by the law have been violated. The jury is the judge of the fact, and not of the law.</p> <p>(Syllabus by Ames, C.)</p>

Error from Coal County Court; R. H. Wells, Judge. Actions by C. Q. Moore, D. Vaulto, and N. T. Tiner, respectively, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and on appeal to the county court the several appeals were dismissed, and defendant brings error.

<p>1. PELEASE — Effect—Action on Original Cause. When a personal injury ease has been compromised, and the employee with full knowledge of the compromise, for a period of three months, has continuously accepted the fruits of the settlement, and thereafter, eight months after the injuries, still makes a claim under the contract of settlement, which is refused, it is too late for him to sue on the original cause of action.</p> <p>2. SAME — Validity—Fraud. Under the circumstances stated in the previous paragraph, where the plaintiff has been given eight days within which to decide whether he would accept the offer of settlement made, and where, after accepting it for several months, he continues to receive its benefits, and where the only evidence offered as tending to show fraud is that the plaintiff was told that he would be. stricken from the pay roll and left to pay his own doctor’s bill unless he signed the settlement, sucli evidence is insufficient to justify the submission of the cause to the jury upon the issue of fraud in the procurement of the compromise.</p> <p>(Syllabus by Ames, 0.)</p>

<p>1. APPEAL AND ERROR — “Brief”—Nature and Requisites. A “brief” is a written presentation of the questions involved in a forensic controversy and of the matters of fact and of law which demand investigation. The primary object is to convey information to the court, and this cannot be done without clearly stating the manner in which the controverted points arise, the facts which constitute the groundwork of the legal dispute, and the governing propositions of law.</p> <p>2. SAME. This court will not examine the record in search of prejudicial errors whieh are not clearly pointed out and insisted on in the brief of the complaining party, and it is not enough to assert in general terms that the ruling of the trial court is wrong, for on this the point will not be considered as having been made, but counsel should support the same with argument and citation of authority where possible.</p> <p>(Syllabus by Sharp, 0.)</p>

Error from District Court, Mayes County; T. L. Brown,, Judge. Action by G. A. Wadleigh, administrator of the estate of Geo. A. Wadleigh, against D. C. Parker and Nannie E. Parker, his wife. Judgment for defendants, and plaintiff brings error.

<p>1. INJUNCTION — Grounds—Insolvency of Defendant. In an action brought to enjoin the breach of a contract by which the plaintiff is granted a right of way over the lands of the defendant, it is not necessary to allege and prove that the defendant is insolvent and unable to respond in damages for breach of the contract.</p> <p>2. HOMESTEAD — Conveyance—-Bight of Way. The conveyance of a right of way over real estate for a period of ten years conveys an interest in the land. Comp. Laws 1909, secs. 7238, 7239, 7241, and 7243.</p> <p>3. SAME. Under the act of 1901 (Sess. Laws 1901, p. 78,'c. 10; Comp. Laws 1909, sec. 1187), which provides that no deed, mortgage, or contract relating to the homstead shall be valid unless in writing and subscribed by both husband and wife, an instrument executed by the husband alone, conveying a right of way for a period of ten years over a part of the homestead, is not valid as against the wife.</p> <p>4. SAME. Such a contract being invalid in 1906, at the time of its execution, was not validated by the subsequent adoption of article 12, sec. 1, of the Constitution, limiting the value of the homestead to $5,000.</p> <p>(Syllabus by Ames, C.)</p>

Error from Texas County Court; R. S. Alexander, Special Judge. Action by Walter Hilton against the Stonebraker-Zea Cattle Company, a corporation, in a Justice of the Peace Court. From a judgment of the County Court dismissing the appeal of the Stonebraker-Zea Cattle Company, it brings error.

<p> Error from Texas County Court; • H. L. Howsley, Special Judge: </p> <p>Action by C. W. Jones against the Stonebraker-Zea Cattle Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CORPORATIONS — Foreign Corporations — “Doing Business.” The institution and prosecution of suits in the courts of this state by a foreign corporation is not doing business therein within the meaning of section 43, art. 9, of the Constitution, or of article 23, c. 18 (sections 1225-1227) Wilson’s Rev. & Ann. St. 1903,</p> <p>2. COMMERCE — Foreign Corporations — Regulation. Section 43, art. 9, Constitution (Williams’ Ann. Const. Okla. [260]), prohibiting both foreign and domestic corporations from doing business in the state, without first filing in the office of the Corporation Commission a list of its stockholders, officers, and directors, with the residence and post-office address of, and the amount of stock held by, each; and requiring that every foreign corporation shall, before being licensed to do business in the state, designate an agent in the state, and that service of summons may be had on such designated agent, etc., was not intended to interfere with interstate commerce, and does not prevent a foreign corporation from selling a merchant of this state goods to be shipped into the state from without its borders.'</p> <p>(Syllabus by Sharp, C.)</p>

Error from District Court, Creek County; W. L. Barnum, Judge. Action by Agnes P. Cochran against J. W. Hocker and Plar-ry G. Stein to restrain enforcement of a writ of possession against plaintiff for certain town lots in the city of Sapulpa and to quiet title thereto. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Haskett County; Malcolm E. Rosser,, Judge. </p> <p>Action by J. C. Rogers against Chaney Noel and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Hughes County; John Caruthers, Judge. Action by J. M. Raspberry against G. Sturm & Sons, in which J. A. Forrester & Son and C. E. Walker were summoned as garnishees, and the Market National Bank of Cincinnati, Ohio, and Elsas & Pritz intervened. Judgment for defendant against the garnishees, and interveners bring error.

Error from Coal County Court; R. H. Wells, Judge. Action by Fooshee & Brunson, Assignee of the People’s Furniture Company, against E. S. Smith before a Justice of the Peace. Upon trial, the action was dismissed at defendant’s costs, and plaintiff appealed. Appeal dismissed, and plaintiff brings error.

<p>1. BROKERS — Existence of Relation — Agency for Adverse Parties.' Scott E. Winne was the manager of the partnership of Winne & Winne and manager of 'the Winne Mortgage Company, a corporation. Wold made application to the Winne Mortgage Company for a loan, and the application contained the statement that Winne & Winne were appointed her agent to obtain the loan. Held, that'the instrument was'ineffective to create an agency in Winne & Winne to obtain a loan from _ the Winne Mortgage Company, and that no agency was conferred on either Winne & Winne or the Winne Mortgage Company.</p> <p>2. SAME — Authority—Loan—Payment to Agent. The application for a loan stated that the applicant made “application to the Winne Mortgage Company for a loan,” and further stated, “I offer as security for the loan a first lien upon real estate situated,” etc. It also contained a provision purporting to appoint Winne & Winne agents for the applicant, and also the following: “I hereby authorize them to procure the loan herein applied for from the company to which this application is made, or from any other source from which they can get the sum herein applied for, on the terms contained in the application.” Held that, if the agency attempted to be conferred had been otherwise valid, its ■ terms conferred no authority on Winne & Winne, or the Winne Mortgage Company, to procure the money by transferring the note and mortgage, and that the application contemplated that the applicant would get the money from the person to whom she executed the note and mortgage.</p> <p>3. FORMER DECISIONS FOLLOWED. For third paragraph of syllabus, see second paragraph of syllabus in Bell v. Riggs, post, 127 Pac. 427.</p> <p>4. SAME. For fourth paragraph of syllabus, see third paragraph of syllabus in Bell v. Riggs, post, 127 Pae. 427.</p> <p>5. BILLS AND NOTES — Negotiability—Frpvision Destroying Negotiability. Á provision in a promissory note secured by mortgage executed in 1907, that “in event of bona fide sale the company (payee) will release the mortgage upon payment in full of principal and interest accrued, plus an additional twelve months interest, providing the purchaser will not assume the mortgage and the company cannot agree with him in a reconstruction of the terms, ’ ’ rendered it nonnegotiable.</p> <p>(Syllabus by Rosser, C.)</p>

<p>INDIANS — Lands — Allotments — Descent and Distribution. George Washington, a full-blood Seminole Indian, married Cissie, a full-blood Creek Indian, in 1893, to whom were born four children; two of whom died in infancy, before allotment, the third in 1901, while the fourth, Waitie Washington, died November 3, 1907, an unmarried minor, without children or descendants of children. Prior to Waitie’s death, his mother separated from his father, George Washington, and took up with Mack Cosar, by whom she had one child, Lillie Cosar. After the separation George Washington remarried, and by the latter marriage had three children, who, with Lillie Cosar, are half-brothers and sisters of Waitie Washington. In July, 1909, Cissie Cosar sold the allotment of her said son, Waitie Washington, to Prank L. Warren by warranty deed, said sale being duly approved by the county court of Hughes county. Warren’s grantee brought suit to quiet title against George Washington. Held:</p> <p>First. Under these facts George Washington did not inherit any estate in and to his son’s allotment.</p> <p>Second. Section 6 of the Supplemental Creek Agreement, approved June 30, 1902 (Act June 30, 1902, c. 1323, 32 St. at L. 500), was in force and effect at the time the descent was cast in this case, to wit, November 3, 1907, and the terms thereof controlled in the devolution of said estate.</p> <p>Third. Section 2 of the act of Congress entitled, "An act to provide for additional United States judges in the Indian Territory, and for other purposes,” approved April 28, 1904 (c. 1824, 33 St. at L. 573), did not repeal, by implication or otherwise, section 6 of the said Supplemental Creek Agreement.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Error from District Court, Noble County; W. M. Bowles, Judge. </p> <p>Action by W. E. Caldwell and D. McKinstry, partners under the name of Perry Milling Company, against the Board of County Commissioners, Treasurer, and Sheriff of Noble County. Judgment for defendants, and plaintiffs bring error.</p>

Error from Pawnee County Court; H. T. Conley, Judge. Action by the Farmers’ Union Gin Company against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.

Error from Pawnee County Court; N. E. McNeil, Judge. Petition by Clayton Lucas, Stella Riddle, and Flora B. Morris, contesting the will of Rus Lucas and asking that its probate be annulled. From a judgment sustaining the demurrer of W. R. Lucas to the petition, the petitioners bring error.

<p> Error from District Court,-Cleveland, County; R. McMillan, Judge. </p> <p>Action by Joseph T. Turner against Charles E. Turner. Judgment establishing a trust in favor of defendant, and plaintiff appeals.</p>

<p>1. CHATTEL MORTGAGES — Construction—Lien. In Oklahoma a chattel mortgage creates a lien on the mortgaged property in favor of the mortgagee, and does not convey the title to the property.</p> <p>2. SAME — Tender of Payment — Sufficiency. An unconditional tender of the amount of the debt secured by the mortgage, though after the date it fell due, discharges the mortgage lien, whether the tender is kept good and the money paid into the court or not.</p> <p>3. SAME. Where the mortgagor offered the money in payment of the mortgage, without requiring the mortgagee to do anything except take it, the tender was not rendered conditional by the statement of the mortgagor that when he paid it he intended to sue the mortgagee for damages.</p> <p>4. TRIAL — Instructions—Applicability to Evidence. It is not error to refuse a requested instruction to the effect that, if the mortgagor demanded a receipt, the tender was not unconditional, where the evidence shows that the mortgagor asked for his note and mortgage, but did not make their delivery to him a condition of the payment, and the undisputed evidence is that the mortgagee refused the tender, because the mortgagor threatened to sue for damages as soon as he had paid the debt.</p> <p>(Syllabus by Rosser, 0.)</p>

<p>RAILROADS — Operation—Injuries to Animals. Where the law prohibits domestic animals from running at large, and a mare, being at large, strays upon the tracks of a railroad company at a place it is not required to fence its tracks, and is killed by the train, it is error to instruct the jury that the employees of the com pany are required, at such place, to keep “a constant and careful lookout for stock which might be on the track.” The duty of the company, under such circumstances, is to exercise ordinary care not to injure such animal after its presence on the track and its danger have been discovered.</p> <p>(Syllabus by Brewer, 0.)</p>

Error from Murray County Court; Harry W. Fielding, Judge. Upon the seizure of a quantity of intoxicating liquors under a search warrant, the O. E. ITaley Company interpleads, claiming the liquor. From a judgment overruling the interplea, the O. F. Haley Company brings error.

<p> Error from Murray County Court; Harry W. Fielding, Judge. </p> <p>Proceedings by the State to forfeit intoxicating liquors, and the Cooke County Liquor Company intervenes. From a judgment against the intervener, it brings error.</p>

<p> Error from District Court, Dewey County; G. A. Brown, Judge. </p> <p>Action by Rebecca J. Estee against William G. Estee. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Review—Questions of Fact. This court will not disturb the findings of the trial court on the facts, where there is any material evidence reasonably tending to support such finding.</p> <p>(Syllabus by Brewer, C.)</p>

Error from Coal County Court; R. H. Wells, Judge. Action by the Spaulding Manufacturing Company against A. V. Roff, R. E. Calloway, and J. F. Floyd. From a judgment of the county court dismissing an appeal from a justice of the peace, plaintiff brings error.

Error from Coal County Court; R. H. Wells, Judge. Action by the Spaulding Manufacturing Company against C. M. Witter, D. A. Wooly, and J. C. Thomas. From a judgment refusing to permit plaintiff to amend his petition, and refusing to permit him to amend an appeal bond and dismissing appeal, plaintiff brings error.

<p>APPEAL AND ERROR- — Parties—Defendants in Error. The rule of this court, requiring all parties who will -be affected by a reversal or modification of the judgment appealed from to be made parties to the appeal, does not require persons over whom the lower court had not acquired jurisdiction by appearance or service of process to be served with copy of case-made or summons in error, although such persons may have been named as defendants in the petition below.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>APPEAL AND ERROR — Record—Scope and Extent. Motions presented in tlie trial court, the rulings thereon, and exceptions are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same into a bill of exceptions or case-made. The record proper in a civil action consists of the petition, answer, reply, demurrers, process, rulings, orders, and judgment; and incorporating motions, affidavits, or other 'papers into a transcript will not constitute them a part of the record, unless made so by a bill of exceptions. Motions and proceedings which are not part of the record proper can only be presented for review by incorporating them into a case-made, or by preserving them by bill of exceptions and embracing them in the transcript.</p> <p>(Syllabus by Brewer, C.)</p>

<p>APPEAL AND ERROR — Case-Made—Piling—Requisites—Motion to Dismiss. When a ease is brought to this court by case-made, and the case-made was not served within the three days prescribed by statute (Oomp. Laws 1909, see. 6074), and no order was secured extending the time, and when the ease-made does not contain an averment, by way of recital, that it contains all the evidence, and when no motion for new trial was filed or presented to the trial court, a motion to dismiss will be sustained.</p> <p>(Syllabus by Ames, C.) ■</p>

Error from Caddo County Court; B. E. Holding, Judge. Action by W. W. Beatty against the Chicago, Rock Island & Pacific Railway Company to recover the penalty óf $1 per day per car for not supplying cars for the movement of freight from Verden, Olda., to Chickasha, Ind. T., in November and December, 1906. Judgment for plaintiff, and defendant brings error.

Error from District Court, Cherokee County; John H. Pitchford, Judge. Action by the State of Oklahoma, on the relation of John Collins and others, against J. T. Parks, Judge. Judgment for defendant, and plaintiff brings error. Error from Cherokee County Court; J. T. Pqrks, Judge. Action by the Lawrence-Wyly Mercantile Company against Riley Holcomb; John Collins and the First State Bank of Tahle-quah, interpleaders.

<p> Error from District Court, Okmulgee County; W. L. Barnum, Judge. </p> <p>Action by Mintie Henry against the Texas Company. Judgment' for plaintiff, and defendant brings error.</p>

Error from District Court, Noble County; W. M. Bozvles, Judge. Action by Mike R. Conway against the Chicago, Rock Island & Pacific Railway Company to recover damages sustained from delay in the shipment of live stock from Billings, Okla., to° Kansas City, Mo., prior to statehood. Judgment for plaintiff, and defendant brings error.

Error from District Court, Noble County; William M. Bowles, Judge. Action by Jesse Stone, by his next friend, James H. Stone, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

<p> Error from Stephens County Court; W. H. Admire, Judge. </p> <p>Action by S. P. Warford against A. S. Cox, Fred Phillips, and C. H. Bailey. From a judgment of the county court dismissing an appeal from a justice of the peace, defendants bring error.</p>

<p>1. INDIANS — Enrollment—Conclusiveness of Records. The enroll-' ment records of the Commissioner to the Pive Civilized Tribes of Indians, as provided for in Act June 10, 1896, e. 398, 29 St. at L. 321, are conclusive evidence as to the age of citizens and freedmen allottees of said tribes.</p> <p>2. SAME — Lands—Validity of Conveyance. In a controversy as to which of two instruments of conveyance executed by an allottee is valid, where it appears from the enrollment records that such allottee was enrolled as fifteen years of age on September 1, 1902, and would therefore become 21 years of age September 1, 1908, and one of such instruments is executed prior and the other subsequent to such date, the latter instrument is held to convey the valid title.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by Walter Halsey against the Springfield Fire & Marine Insurance Company for recovery of $1,200 on a policy. Judgment for plaintiff, and defendant brings error.

<p>1. BILLS AND NOTES — Action by Transferee Against Maker — Defenses — Fraud. It is no' defense to an action by the transferee of a negotiable promissory note against the maker that the payee ' was induced by fraud to transfer the note to plaintiff.</p> <p>2. APPEAL AND ERROR — Disposition of Causes — Reversal. While ordinarily on reversal, where the facts are undisputed, it is the duty of the Supreme Court to render judgment, yet, where it appears that material evidence on defendant’s behalf was excluded, because not in proper form, the case will be remanded.</p> <p>(Syllabus by Rosser, C.)</p>

Brror from District Court, Garfield County; M. C. Garber, Judge. Action by Edyth A. Butler against Silas A. Butler to set aside decree of divorce. Judgment for defendant, and plaintiff brings error.

Error from District Court, Kingfisher County; A. H. Huston, Judge. Action by the National Life Insurance Company against Howard Hall, Medora A. Hall, his wife, and others. Judgment for plaintiff for less than the relief demanded, and it brings error.

<p>1. SHERIFFS AND CONSTABLES — Official Bond — Surety’s Liability. Sureties on the official bond of a sheriff are only answerable for the acts of their principal while engaged in the performance of some duty imposed upon him by law, or for an omission to perform such duty.</p> <p>2. SAME — Color of Office. To constitute color of office, such as will render an officer’s sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity. If he is armed with no writ, or if the writ under which he acts is utterly void, and if there is at the time no statute which authorized the act to be done without process, then there is no such color of office as will enable him to impose a liability upon the sureties on his official bond.</p> <p>3. SAME — Misconduct of Deputies — Sheriff’s Liability. Where plaintiff’s husband was shot and killed by deputy sheriffs, and the shooting was not justifiable under the circumstances, but constituted a trespass for which the deputies would be answerable in damages, the sheriff would also be liable as an individual participant in the affair, if he was present, aiding, assisting, abetting, or encouraging.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Courts Garfield County; M. C. Garber, Judge. Action by Addie Reynolds against the Enid City Railway Company. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Okmulgee County; W.-L. Barnum, Judge. </p> <p>Action by Henry A. Marsh against the Western National Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MASTER AND SERVANT — Injuries to Servant — Relation of Parties — Independent Contractor. The Bokoshe Smokeless Coal Company subleased to Henderson a coal mine. Henderson agreed to operate the mine in accordance with the acts of Congress and the rules of the Interior Department relating to the leasing of Indian coal lands, and in such manner as to insure the largest production of coal; to maintain in good working order all entrances, gangways, air courses, slopes, shafts, and planes; to maintain pillars when necessary; to keep within certain boundaries; to preserve the buildings and machinery in good condition; to assume all liability for personal injuries, or otherwise; to p;ay a royalty upon each ton of coal mined; to permit the coal company to collect the proceeds of all sales, out of which it should reserve its royalty and pay over the balance to I-Ienderson. The coal company reserved the right to inspect, examine, and survey* the premises at any time, and it was agreed that all the ‘' workings” on the premises should “be done under the general supervision of the superintendent of the” company. Held, that Henderson was an independent contractor.</p> <p>2. SAME. The retention by the owner of the right of general supervision of the work of a contractor does not prevent the contractor from being an independent contractor.</p> <p>3. SAME. A contract which, upon its face, creates the relation of owner and independent contractor, will' not protect the owner from liability for negligence of the contractor, if it is designed as a mere subterfuge to shield the owner from liability for his negligence.</p> <p>4. SAME — Actions—Sufficiency of Evidence. The evidence examined, and held insufficient to show that the contract was' a subterfuge, or that the owner was operating the mine.</p> <p>5. SAME — Injuries to Servant — Relation of Parties — Independent Contractor. If the lessee of Indian coal lands sublets the mine without the approval of the Secretary of the Interior, and if an employee of such sublessee sustains injuries by reason of the negligence of the sublessee, the invalidity of the sublease does not . strike down the relation of master and servant existing between the sublessee and his employee, nor create the relation of master and servant between the original lessee and the employee of his sublessee, and such employee cannot recover damages from such lessee.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Oklahoma County; R. H. Loofbourrow, Assigned Judge. </p> <p>Action by Golda F. Smith against the Acme Milling Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by David Trotter against W. C. Brissey and James Trotter. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from Jefferson County Court; G. M. Bondj Judge. </p> <p>Action by S. R. Little against the Insurance Company of North America. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PLEADING — Departure—Remedy. An objection to a pleading on the ground of a departure must, in this jurisdiction, be raised by a motion to strike. It cannot be raised by demurrer, or by an objection to the introduction of evidence.</p> <p>2. INSURANCE — Agents — Conditions—Power to Waive. A local agent of an insurance company, who has authority from the company to solicit, execute, and deliver contracts of insurance, has power to waive the conditions of the policy, such as the ‘ ‘ additional insurance clause” and the “incumbrance clause,” at the time of the execution and delivery of the policy.</p> <p>3. SAME. A local 'agent of an insurance company, whose only power is to solicit applications for insurance, and forward them to the company for approval, when, if approved, the company issues the policy and causes it to be delivered to the insured, has no power to waive any of the provisions of the policy so delivered, and notice to such agent of “additional insurance” taken out by the insured after the delivery of the policy is not notice to the company.</p> <p>4. PLEADING — Reply—New Matter — Departure. Comp. Laws. 1909, see. 5642, provides that, when an answer contains new matter, plaintiff may reply, denying generally or specifically each allegation controverted by him, and may allege any new matter not inconsistent with the petition and constituting a defense to the new matter in the answer. Held, that where, in an action on a fire policy, plaintiff alleged compliance with all the terms and conditions thereof, and defendant answered, alleging a breach of the additional insurance clause without the insurer’s consent indorsed on the policy, a reply, admitting the taking out of additional insurance without consent of insurer indorsed on the policy, but alleging that, because of the knowledge thereof and acts of defendant’s agent, the clause was waived, constituted a departure.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Custer County; James R. Tolbert, Judge- </p> <p>Action by A. P. Sights and W. Jorgenson against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. TELEGRAPHS AND TELEPHONES — Messages — Contract — Breach — Exemplary Damages. Exemplary or punitive damages are not recoverable from a telegraph company for breach of contract to promptly deliver messages.</p> <p>2. DAMAGES — Exemplary Damages — Right to Recover. To authorize a judgment for exemplary damages, in an action sounding in tort, the proof must show some element of fraud, malice, or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence — such disregard of another’s right — as is deemed equivalent to such intent.</p> <p>Where there is a want of any of these elements, the damages recoverable are confined to the loss sustained, and nothing more.</p> <p>3. TELEGRAPHS AND TELEPHONES — Messages—Failure to Deliver — Exemplary Damages. While by statute telegraph companies are made common carriers, and required to use the utmost diligence in the delivery of messages transmitted by them, the failure so to do does not alone render such carrier liable for exemplary or punitive damages, as distinguished from compensatory damages.</p> <p>4. SAME. Failure to exercise the degree of care enjoined by statute will subject the carrier in default to liability for the loss sustained, but not for exemplary damages, unless there also exist the additional elements -necessary to constitute such latter character of damages.</p> <p>5. NEGLIGENCE — “Gross Negligence” — Definition. “Gross negligence” is the want of slight care and diligence. Oomp. Laws 1909, see. 2941.</p> <p>6. TELEGBAPHS AND TELEPHONES — Messages—Failure to Deliver — Exemplary Damages. Where there is uneontradieted evidence of a bona fide attempt to deliver a telegram, exemplary damages for willfulness and wantonness cannot be recovered.</p> <p>(Syllabus by Sharp, C.)</p>

Error from District Court, Okfuskee County; John Ca/ruthers, Judge. Action by Plannah Barnett against W. R. Blake and Fred E. Hilsmeyer. The action having been dismissed by plaintiff, the cause proceeded to trial between defendants Blake and Hils-meyer; each claiming title to the land in controversy through separate conveyances from the original plaintiff. From a judgment in favor of Blake, Hilsmeyer brings error.

Error from District Court, Woodward County; R. H. Loofbourrow, Judge. Action by Herman A. Broekhaus against Guy R. Baysinger, as County Treasurer, and William T. Cooley, as Sheriff of Woodward County, to enjoin them from executing a tax warrant. Judgment for defendants, and plaintiff brings error.

<p> Error from Okfuskee County Court; T. T. Doyle, J%idge. </p> <p>Action by Thomas S. Lanam against the State Bank of Paden. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Noble County Court; H. B. St. Clair, Judge. </p> <p>Action by A. L. Streeter against Ray McCoy. Judgment for defendant, and plaintiff brings error.</p>

<p>■ APPEAL AND EKEtOR — Failure ■ to File Brief ’ — Dismissal. 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 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.</p> <p>(Syllabus by Sharp, 0.)</p>

<p>JUDGMENT — Conclusiveness—Bar. Dugger brought an action of ejectment against Markham and recovered the real estate involved. This judgment became final without appeal. Thereafter Markham brought an action of ejectment against Dugger to recover the same land, and raising the same issues, which might have been adjudicated in the previous ease. Held, that the judgment in the previous ease was a bar to this proceeding.</p> <p>(Syllabus by Ames, 0.)</p>

<p> Error from District Court, Osage County; L. M. Poe, Judge. </p> <p>Action by J. B. Clawson against C. B. Cottingham and Ida Cottingham. Judgment for defendants, and plaintiff brings error.</p>

<p>1. REFORMATION OF INSTRUMENTS — Deeds—Proof. To justify the reformation of a deed, failing to conform to the agreement of the parties thereto through mutual mistake, the proof should be clear, unequivocal, and decisive.</p> <p>2. SAME — Mutual Mistake — Evidence. Evidence examined, and held sufficient to show that a deed given by G. to S. did not conform to the agreement of the parties through mutual mistake, justifying its reformation.</p> <p>(Syllabus by Sharp, C.)</p>

<p>GARNISHMENT — Property Subject — Mortgaged Personalty — Waiver of Mortgage — Consent to Sale. When the mortgagee of certain cotton gave the mortgagor authority to sell the cotton and deposit the proceeds in a bank in the name of the mortgagor’s bondsmen in a suit, and the same was done, the lien of the mortgage was discharged, and the funds, prior to reaching the mortgagee, were subject to garnishment at the instance of a creditor of the mortgagor.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Wagoner County; John H. King, Judge. Action by the Cumberland Presbyterian Church, at Wagoner, Okla., and John T. Beard, W. H. Smith, D. Gibson, and E. S. Conrad, trustees óf said church, for themselves, and for all the members of the church, against the First Presbyterian Church in the United States of America, at Wagoner, Okla., Sam.

Error from District Court, Garvin County; R. McMillan, Judge. Action by W. W. Murray, as guardian for Ayleene and Winnie Irene Carr, against J.'B. Thompson, as trustee for the Roberts-Johnson Rand Shoe Company, and others. From a judgment for plaintiff, defendants bring error.

<p> Error from District .Court, Blaine County; Prank M. Bailey, Assigned Judge. </p> <p>Action by W. L. Moody & Co. against Smoot & Abbott, on account. Judgment for plaintiffs, and defendants bring error. Affirmed.</p>

<p>Original action for writ of mandamus by the State of Oklahoma, on the relation of V. S. Decker, County Attorney, against Wade S. Stanfield, District Judge.</p>

Error from District Court, Logan County; A. H. Huston, Judge. Action by E. O. Barker, C. O. Fish, E. G. Sharp, A. A. Beyers, and J. S. Melvin, as members of the Board of Education of the City of Guthrie, against C. F. Cotteral and R. C. Burnsdale to compel delivery to the plaintiffs of the books,' records, seal, and office of said board. From a final order granting a peremptory writ of mandamus, the defendants bring error.

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by James G. Harkins against the City of Lawton and John Lantznester. From a judgment for plaintiff for $500, defendants bring error. Dismissed as to the City of Lawton.</p>

Error from District Court, Bryan County; D. A. Richardson, Judge. Action by Clara May -Burney, a minor suing in the name of her legal guardian, A. L. Burney, against J. L. Ellington and the Southern Surety Company.' Judgment for plaintiff, and the Surety Company brings error.

Error from Washita County Court; L. R. Shean, Judge. Action by the Foss Improvement Company against the Midland Savings & Loan Company. Judgment for plaintiff, and defendant brings error. On January 18, 1909, the Foss Improvement Company of Foss, Okla., made application in writing to the Midland Savings & Loan Company of Denver, Colo., for a loan of $4,000.

<p> Error from District Court, Creek County; W. E. Barnum, Judge. </p> <p>Action by the Capital Townsite Company against L. K. and R. E. Brown. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Latimer County; Malcolm E. Rosser, Judge. Action by Forbes Mackey against Betsie Atoka and Simon Atoka to set aside the probate of a will. Judgment for defendants, and plaintiff brings error. On May 6, 1907, Sillín Harkins, a fuil-blood Choctaw Indian, executed a will, bequeathing all her property, real and personal, to Betsie Atoka and Simon Atoka.

<p>Error from he. Flore County Court; James h. Hale, Judge.</p> <p>Action by A. J. Ford against the Ft. Smith & Western Railroad .Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Action by B. O. Johnson and Charles A. Mantz against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

Brror from McClain County Court; B. B. Glaseo, Judge. •Action by Eura Noel against the Sovereign Camp of Woodmen of the World; and J. S. Davis, Bill Davis, Amos Davis, and Telitha Davis, intervene. From the judgment, the defendant brings error. This action was begun in the county court of McClain county December, 1908, by plaintiff, Eura Noel, to recover the sum of $500 claimed to be due her on a beneficiary certificate issued by defendant camp for $1,000.

<p> Error from Oklahoma County Court; Sam Hooker, Judge. </p> <p>This was an action by the Planters’ & Mechanics’ Bank against J. S. Jenkins on a promissory note of $100 executed by J. S. Jenkins and made payable to the Post Publishing Company and transferred to plaintiff by Wm. P. Harper, president of said Post Publishing Company, as collateral security on an individual debt. Defendant interposed the defense of fraud and misrepresentation in procuring the note, also failure of consideration and nondelivery o'f the note, and alleged that same was unlawfully taken from his possession without his knowledge or consent, and asked that Harper be made a party defendant. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Payne County; A. H. Huston, Judge. Action by J. H. Brocker, administrator of the estate of Lydia M. Brocker, deceased, against F. M. Stallard. Judgment for defendant, and plaintiff brings error.

<p>NEGLIGENCE — Proximate Cause of Injury. It is a well-established rule that in a suit for damages for personal injuries, although the defendant may-be shown to have been negligent in some manner, yet, unless the negligence so shown was the proximate cause of the injury complained of, no recovery can be had on account of such negligence.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by W. Floyd Napier against the Muskogee Vitrified • Brick Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court,, Oklahoma County; George W. Clark, Judge.</p> <p>Action by Theodore F. Dixon against the State Mutual Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Osage Gounty Court; C. T. Bennett, Judge. </p> <p>Action by Henry Schaeffer against C. H. Beach and W. C. Heaton, as partners. Judgment against W. C. Pleaton individually, and he brings error.</p>

<p>1. PRINCIPAL AND AGENT — Existence of Agency — Sufficiency of Evidence. At a meeting of the citizens of Guthrie a proposition was made on behalf of a railroad company that it would build its road to Guthrie for 'a certain bonus. A motion was put and carried that the proposition be accepted, that a committee be appointed to obtain subscriptions to the bonus, and that the matter of handling the contract be turned over to the Guthrie Club. The bonus was subscribed in the form of notes, which were delivered to the Guthrie Club by the makers. A contract was then made between the Guthrie Club and the railroad company showing the acceptance of the proposition, the making of the bonus notes, and providing that the road should be built within eighteen months. The notes were then delivered by the Guthrie Club to the railroad company. Held, that there was sufficient evidence to support a finding that the Guthrie Club was the agent for the makers of the notes in making the contract and delivering the notes to the company.</p> <p>2. SAME — Liabilities to Third Person — Authority of Agent. The Guthrie Club, more than a year after the contract referred to in the first paragraph of this syllabus was made, and.long after the bonus notes were delivered, and without any action of the note makers subsequent to the meeting referred to in said paragraph, entered into another contract with the company extending the time within which they were required to build the road. Held, that the Guthrie Club was without authority to enter into the new, contract, and that it was not' binding on the makers of the bonus notes.</p> <p>3. SAME — Undisclosed Principal — Evidence. The making of the contract by the club was authorized at a meeting of the citizens of Guthrie after notice given. The evidence was conflicting as to whether the general manager of the road was present at the meeting. It was conceded that the chief engineer of the road was in the city at the time. The Guthrie Club had the bonus notes at the time the contract was made, and delivered them after the contract was made. Held, that the railroad company had notice that the club was acting as the agent of the note makers.</p> <p>4. , BILLS AND NOTES — Validity—Legality of Consideration — Effect of Partial Invalidity. The contract between the Guthrie Club and the railroad company provided that the Guthrie Club would cause the mayor and council of the city to enact such ordinances as were necessary for the construction and operation of the road. The evidence does not show that any ordinances were necessary, or that the club refused to obtain the passage of ordinances required. Hel’d, that this provision was unenforceable, but that, notwithstanding it was not enforceable, the execution and delivery of the notes was a sufficient consideration to require the railroad company to comply with the terms of the contract.</p> <p>5. CONTRACTS — Construction—Time as Essence of Contract. The bonus notes, which were nonnegotiable, were payable when the road was built and in operation to the city of Guthrie. The contract entered into by the Guthrie Club, on behalf of the note makers before the notes were delivered, provided that the road should be in operation to Guthrie within eighteen months. Held, that time was of the essence of the contract, and that, the company having failed to complete the road within the stipulated time, the notes were not collectible.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from Stiperior Court, Logan County; J. M. Sandlin, Judge. </p> <p>Action by the Federal Trust Company against W. M. Spur-lock. Judgment for defendant, and plaintiff brings error.</p>

<p>JURY — Verdict—Cases Pending Before Statehood. In civil actions pending in the district courts at the advent of statehood, although tried in the courts of this state since statehood, the parties were entitled to the unanimous verdict of a jury of twelve men.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>Original proceedings by the State, on the relation of Charles West, Attorney General, for quo warranto to M. A. Breckinridge.</p>

Error from Le Flore County Court; James F. Hall, Judge. Action by the Ft. Smith Wholesale Grocery Company against George W. Noble. Judgment for plaintiff, and defendant brings error. The Ft.

<p> Error from District Court, McClain County; R. McMillan, Judge. </p> <p>Action by J. W. Hocker against E. E. Sheets. Judgment for plaintiff, and defendant brings error.</p>

Frror from District Court, Wagoner County; John H. King, Judge. Action by John R. Thomas and Grant Foreman against the Oklahoma Land Company and Pig Walker to recover possession of certain land and for damages for rents and profits arising therefrom. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Kay County; W. M. Bowles, Judge. Action by Emily F. Fearnow and others against Luttie B. Jones and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by J. O. Morehead against J. E. Landon,’ W. J. Howey, and J. E. Dunn, partners. Judgment for plaintiff against defendant J. E. Landon, and against J. E. Lándon, W. J. Howey, and J. E. Dunn, as partners, for $30,460, from which defendant J. E. Landon appeals.</p>

<p>1. SCHOOLS AND SCHOOL DISTRICTS — Bonds — Statutory Provisions. Bonds issued for the purpose of refunding outstanding legal warrant indebtedness under the act of 1895 were required to be issued under article 1, c. 7, Sess. Laws 1895, as amended by article 1, c. 5, Sess. Laws 1897, and not under article 2, c. 7, of Sess. Laws of 1895.</p> <p>2. STATUTES — Implied Repeal — General and Special Statutes. A statute which is enacted for the primary purpose of permitting refunding bonds to be issued, and which prescribes the terms and conditions upon which they may be issued and the form and manner of their execution, supersedes a general statute which does not refer to refunding bonds, but which does contain language which might be broad enough to cover them if the special statute was not in existence.</p> <p>3. SAME — Construction—Conflicting Provisions — General and Special Provisions. Where there are two provisions of the statutes, one of which is special and particular and clearly includes the matter in controversy, and where the special statute covering the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute applies to the subject-matter, and that the general statute does not apply.</p> <p>4. MUNICIPAL CORPORATIONS — Bonds — Validity. When negotiable bonds are issued by officers who have no authority under the law to issue them, they are not the valid obligation .of a municipality for which the officers' purport to act.</p> <p>5. SAME. It is within the power of a state to prescribe the form in which municipal bonds shall be executed and the officers who shall execute them, and, if they are not executed in the manner prescribed, they impose no liability upion a municipality.</p> <p>6. SAME — Bona Fide Purchasers. When negotiable bonds have been unlawfully issued by unauthorized officers of a municipality, and have passed into the hands of innocent purchasers, the municipality is not estopped from asserting their invalidity when the bonds disclose upon their face the purpose for which they were issued and the absence of the signature of the officer who is required by law to execute them.</p> <p>7. SAME. Those dealing with a municipality do so with notice of its powers; and purchasers of municipal bonds are charged with notice of the laws of the state granting power to make the bonds they find on the market.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Le Elore County; Malcolm E. Rosser, Judge. </p> <p>Application of William Hamlin, a minor, by his guardian, Israel Eolsom, for the sale of certain real estate. From an order refusing to confirm the sale to J. W. Hocker, the latter brings error.</p>

<p>1. APPEAL AND ERROR — Briefs—Objections to Evidence. TJnder rule 25 of tbis court (20 Oída xii, 95 Pac. viii), where a party complains of the admission or rejection of testimony, he should set out in his brief the full substance of the testimony admitted or rejected. A general complaint that the court errej in admitting or rejecting testimony, without specifying the testimony to which the complaint is directed and his objections thereto, will not be considered.</p> <p>2. SAME — Objections to Instructions. Where a party complains of instructions given or refused, and fails to set out in his brief such as he excepts to, as required by rule 25 of this court, the same may not be considered.</p> <p>(Syllabus by Robertson, 0.)</p>

Error from Superior Court, Pittsburg County; P. D. Brezver, Judge. Action by Ellen M. Sharp against the Choctaw Railway & Lighting Company. Judgment for plaintiff. From an order granting a new trial, the plaintiff brings error.

Error from District Court, Jefferson County; Erank M. Bailey, Judge. Action by Frank Williams and another against U. S. Joins and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Actions by the' Iowa Land & Trust Company against Beulah Brown and another and by John S. Bilby against Ada Brown and the Iowa Land & Trust Company for partition. The actions were consolidated for trial. From the judgment, Bilby brings error.

<p>1. APPEAL AND ERROR — Findings of Referee — Conclusiveness. When a referee has reported to the court his findings of fact, together with all the evidence submitted to him, under a decree providing that the court, after receiving the report, shall hear the ease upon the whole record, the cause will not be reversed because the court overrules a motion to recommit to the referee for the purpose of allowing one of the parties to file exceptions before the referee, where the court subsequently hears the ease on the whole record, and where the desired exceptions are not in the record, and it cannot be ascertained whether the party-complaining has suffered material injury by the ruling.</p> <p>2. SAME. A finding of fact, which has been determined on conflicting evidence by the referee, and subsequently by the court, will not be disturbed in this court, where there is evidence reasonably supporting the finding.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Okmulgee County; W. L. Barnum, Judge. </p>

<p>Error from District Court, Okmulgee County; W. L. Barnum, Judge. ,</p> <p>Action by Daniel Geter, guardian of Dollie Corbray, against Nathan Boyd. Judgment for defendant, and plaintiff brings error.</p>

<p>1. INSURANCE — Tornado Policy — Right of Action. A tornado policy provided that the insurer should indemnify the insured against loss in a certain amount, not exceeding the cost of repairing or replacing the injured property, reserving to the insurer the option to repair, rebuild, or replace the property lost or damaged. After a loss the insurer notified the insured of its election to rebuild, but did nothing toward rebuilding. The insured sued upon the policy. Held that, while the election of the insurer was binding upon it, it did not discharge its liability under the policy; and that the action was properly brought.</p> <p>2. SAME — Failure to Protect Property. Failure to protect the property after loss, caused bj^a cyclone, does not defeat the insured's right of action, but merely affects the amount of his recovery.</p> <p>3. INSURANCE — Appraisement of Loss — Waiver. When the insurer elects to rebuild, then refuses to rebuild, then demands an appraisement, which the insured declines to accept, and the insured then reconsiders and offers to. enter into an appraisement, which the insurer declines to accept, the right to an appraisement is waived.</p> <p>4. PLEADING — Reply—Departure. When the plaintiff, in a suit upon a contract, alleges the performance by him of all conditions of the contract, the defendant, answering, charges the plaintiff with various breaches of the contract, and the plaintiff, for reply, admits failure to perform the contract as written, but pleads estoppel and waiver by the conduct of the defendant, the reply constitutes a departure; and the allegations at variance with the original petition should be stricken on motion.</p> <p>(Syllabus by Ames, C.)</p>

Error from District Court, Coal County; A. T. West, Judge. Action by W. J. Conley against the Northwestern Fire & Marine Insurance Company. From a judgment sustaining a demurrer to the petition and dismissing plaintiff’s cause of action, he brings error.

<p> Error from District Court, Alfalfa County; M. C. Garber, Judge. </p> <p>Action in ejectment by the Fanners’ State Bank of Ingersoll against C. L. Wilson and Ella D. Wilson. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Kiowa County Co%irt; J. W. Mansell, Judge. </p> <p>Action by W. H. Newcomber against the Reliable Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Hughes County; John Caruthers, Judge. Action by the Missouri, Oklahoma & Gulf Railway Company against H. -R. Riley, P. P. Dunford, James K. King, and C. P. Chapman, to enjoin the service of an execution, and for other relief. Judgment on demurrer for defendants, and plaintiff brings error.

Error from District Court, Seminole County; Robert M. Rainey, Judge. Action in ejectment and for rent, with attachment proceedings, by C. M. Rodman and Sam Horton against Bob Davis and Harriett Davis. Judgment for defendants on motion to dissolve attachment, and plaintiffs bring error.

<p> Error from District Court, Craig County; T. L. Brown, Judge. </p> <p>Action by W. FI. Thatch against R. D. Hagerman. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; E. M. Poe, Judge. Action by the Gulf Pipe Line Company, a corporation, and the Gulf Pipe Line Company of Oklahoma, a corporation, plaintiffs below, plaintiffs in error, against the Pawnee-Tulsa Petroleum Company, a corporation, .Colonel E. Mays, Frank Mays, and G. F. Bartlett, defendants below, defendants in error, to restrain the boring of an oil and gas well in dangerous proximity to plaintiffs’ property.

Error from Oklahoma County Court; Sam Hooker, Judge. Action in replevin by Fair Craig, plaintiff below, defendant in error, against David Eesser, defendant below, plaintiff in error, to recover two mules. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Woods County; R. H. Loufbourrow, Judge. </p> <p>Action by plaintiff- in error, plaintiff below, against defendant in error, defendant below. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by the State against the Southern Surety Company on a forfeited appearance bond. Judgment for the State, and defendant brings error.

<p> Error from Creek County Court; Josiah G. Davis; Judge. </p> <p>Action in replevin by the American National Bank against ■ A. H. Stone. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Review—Discretion of Trial Court. Matters clearly within the sound judicial discretion of the trial court will not be inquired into, unless it appears of record that such discretion has been abused.</p> <p>2. SALES — Warranties—Breach—Damages. The detriment caused by the breach of a warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had, at the time to which the warranty referred, if it had been complied with, over its actual value at that time.</p> <p>3. SAME — Evidence. Evidence examined, and held that there was a total failure to prove any damages under the foregoing rule.</p> <p>4. APPEAL AND ERROR — Review — Evidence—Sufficiency. Matters capable of proof should not be left to conjecture. Verdicts and decisions of courts should be based upon evidence, not upon guesswork.</p> <p>(Syllabus by Robertson, C.)</p>

<p>1. EVIDENCE — Relevancy—Similar Facts — Value of Services. In an action to recover the reasonable value of personal services, evidence of what others received for the same services in the same locality is competent as tending to show such reasonable value.</p> <p>2. APPEAL AND ERROR — Review—Harmless Error — Argument of Counsel. A cause will not be reversed on account of improper and reprehensible argument of counsel to the jury, where it is apparent that the losing party has not been materially prejudiced thereby.</p> <p>(Syllabus by Ames, C.)</p>

Error from Creek County Court; Josiah G. Davis, Judge. Action by Dennis E. Scanlan against R. S. House, as garnishee. Judgment for plaintiff, and the garnishee brings error. On May 11, 1909, a judgment was rendered in the county court of Creek county in favor of Dennis F. Scanlan and against Henry Jackson and R. B. Broyles in the sum of $242.67.

Error from Creek County Court; Josiah G. Davis, Judge. Action by Dennis F. Scanlan to amerce Harry G. Stein, as sheriff, for failure to serve and return an execution. Judgment for plaintiff, and defendant brings error. On May 11, 1909, Dennis F. Scanlan recovered a judgment in the county court of Creek county against Henry Jackson and R. E. Broyles in the sum of $242.67.

<p>Error from District Court, Ottawa County; T. L. Brown, Judge.</p> <p>Action by Mary Buck against C. M. Branson, George E. Bowling, and Miami Investment Company, for possession of real estate. Judgment for defendants, and plaintiff brings error.</p> <p>This case was begun in 1902 in the United States Court in the Indian Territory. On November 11, 1907, a second amended complaint was filed. With the advent of statehood, the cause was transferred to the district' court of Ottawa county, where it was tried in 1909. The plaintiff in error claims title to the land in controversy asUhe wife of Pe-te-lon-o-zah, or William Wea, a Peoria Indian, a member of the United Peoria, Kaskaskia, and Piankashaw Tribe of Indians, through a deceased child that was born to the plaintiff while she and the said William Wea were living together as wife and husband. The patent from the United States to William Wea was issued April 8, 1890. Special findings of fact were made b}^ the court as follows: That William Wea and Mary Buck were married, according to Indian custom, some time prior to 1884, and that some time during said year a child was born which lived but two days; that shortly thereafter William and Mary separated, or, in other words, quit living together, and Mary in a few months went with Frank Buck to the Indian Agent at the Quapaw Agency, and they were there married; that she lived with Frank Buck continuously up to the time of his death, and that there were children born to them as a result of said marriage; that the living together, or marriage, of William Wea and Mary Buck occurred prior to May 2, 1890; that the only evidence in the case as to- the marriage of William and Mary was one of custom of said tribe, wherein the parties went to living together, and the only manner of 'divorce was one of custom, where they simply quit living together; that William Wea died in 1894, seised and possessed of the land described in plaintiff’s complaint, leaving no father or mother, grandfather or grandmother, brothers or sisters, and no children surviving him.</p>

Error from Roger Mills County Court; E. E. Tracy, Judge. Action by J. A. Butler against James C. Gill for damages to property destroyed by fire. Judgment for defendant, and plaintiff appeals.

<p>APPEAL AND ERROR — Failure to Fils Briefs — Dismissal. Where plaintiff in error fails to comply with the rules of this court, requiring it to serve a brief on counsel for defendant in error and at the same time to file fifteen copies of its brief with the clerk of the court, its ease, on being reached for submission, will be dismissed.</p> <p>(Syllabus by Sharp, 0.)</p>

Error from District Court, Grady County; P. M. Bailey, Judge. Action by the Yukon Mills & Grain Company against the Imperial Roller Mills Company. Judgment on counterclaim for defendant, and plaintiff brings error. This action was begun in the United States commissioners’ court for the Third commissioners’ district of Indian Territory on May 1, 1907.

<p>APPEAL AND ERROR — Reversal—Failure to File Brief. 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 this 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>(Syllabus by Robertson, 0.)</p>

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

<p> Error from District Court, Sequoyah County; *John H. Pitchford, Judge. </p> <p>Action by Ruth Snow and Daniel Snow against Charles C. Frye and others. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Bryan County; Summers Hardy, Judge. Action by the Oklahoma Presbyterian College for Girls, .of Durant, and another against the Steger Lumber Company and others. From the judgment, defendant brings error.

Error from District Court, Kiowa County; James R. Tolbert, Judge. Action by Daniel A. Riggs and Jennie Riggs against the Winne Mortgage Company, M. Pauline Bell, and James B. Bell. Judgment for plaintiffs, and defendants, M. Pauline Bell and James B. Bell, bring error.