Volume 37 — Oklahoma Reports

Error from District Court, Major County; M. C. Garber, judge. Creditor’s bill by the Bank of Ames against Henry Lebr and others. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Review—Insufficient Record. Where none of the evidence appears in the record, and there is no statement of what it tended to prove, or that it raised the questions on which instructions are based, this court cannot, as a general rule, determine whether there was error in the rulings of the court as to the instructions or not.</p> <p>(Syllabus by Sharp, C.)</p>

<p>Error from Grady County Court; N. M. Williams, Judge.</p> <p>Action by the Bank of Carrollton, Mississippi, against R. G. Latting, Jr. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Carter County Court; I. N. Mason, Judge. </p> <p>Action by the Cook County Liquor Company against A. J. Carson and another. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. Where plaintiff in error fails to comply with the rules of this court, requiring him to serve a brief on counsel for defendant in error 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, C.)</p>

<p>Error from District Court, Hughes County; John Camthers, Judge.</p> <p>Action by James A. Chapman against L. C. Young and John Aclams. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from Oklahoma County Courtj Sam Jlooker, Judge. </p> <p>Action by the Gault Lumber Company against the Atchison, Topeka & Santa Ee Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Carter County; S. II. Bussell, Judge. </p> <p>Action by S. A. Newland against W. 'A. Gilliam. Judgment for plaintiff, and defendant brings error.</p>

<p>PRINCIPAL AND AGENT — Evidence of Agency. The fact that one purports to act as agent for another, stating at the time that he is the other’s agent, is not of itself sufficient evidence upon which to submit the question of agency to the jury.</p> <p>(Syllabus by Ames, C.)</p>

<p>INDIANS — Agricultural Lease — Right to Cr.ops. The fact that an agricultural sublease of Indian lands may be void, because not approved by the Secretary of the Interior, does not justify the landlord in unlawfully taking possession of the crops and appropriating them to his own use.</p> <p>(Syllabus by Ames, C.)</p>

<p>1. DEEDS — “Mistake of Law.” When the parties to a deed are uncertain as to what estate the vendor has taken under the statutes oí descent and distribution, and the land is conveyed to the vendee under the agreement that, when the courts have settled the law on the subject, the vendor shall be paid such a proportion oí the entire purchase price of the land as his interest bears to the entire title, this does not constitute a mistake of law such as would justify a rescission of the contract and a cancellation of the deed. Comp. Laws 1909, sec. 1058.</p> <p>2. APPEAL AND ERROR — Review—Findings of Trial Judge. The decision of the trial judge, the jury being waived, upon a question of fact, where the evidence is conflicting and where there is evidence reasonably tending to support the judgment, will not be disturbed in this court.</p> <p>(Syllabus by Ames, C.)</p>

Error from District Court, Blaine County; James B. Tolbert, Judge: Suit by H. A. Foote against W. B. Piper, and the town of Watonga, Blaine County, was made a party defendant, and filed an answer and cross-petition. From a judgment in favor of the town, the plaintiff and original defendant bring error.

<p>Error from the District Court, Nowata County; T. L. Drown, Judge.</p> <p>Action by Ed Baker against the Atchison, Topeka & Santa Fe Bail way Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Gourtj McClain County; R. McMillan, Judge. Action by Wirt Franklin against 0. S. Lynch and another to cancel a deed and quiet title. Judgment for plaintiff, and defendants bring error. This contraversy involves the title to 110 acres of land located in section 34, township 9 N., range 4 W., in McClain county, Olda.

L. Barnum, Judge. Action by Lucy Poloke against Sam Poloke. Judgment for plaintiff for divorce, and, from the portion of the judgment requiring her to pay alimony to him, she appeals.

Error from, the District Court, Osage County; B. TI. Hudson, Judge. Action by George C. Chrisman against Frank M. Anderson. From the judgment, Anderson brings error. Grinstead, Mason & Scott, for plaintiff in error. Hargis & Sams, for defendant in error.

<p> Error from McCurtain County Courtj T. J. Barnes, Judge. </p> <p>Action between the Miller Lumber Company and the Swink Mercantile Company. From the judgment, the lumber company brings error.</p>

<p>1. JUDGMENT — Res Judicata — “Dismissal on the Merits” — “Retraxit.” A dismissal of a suit, based upon an agreement between the parties by which a settlement and adjustment of the subject-matter in dispute is made, is a dismissal on the merits, and is equivalent to a retraxit at common law, and as such is a bar to further litigation on the same subject-matter between the parties.</p> <p>2. SAME — Evidence. Where the record fails to show the facts of the agreement upon which such dismissal is based, extrinsic evidence may be resorted to.</p> <p>3. ATTORNEY AND CLIENT — Authority of Attorney — Compromise of Claim. An attorney, by virtue of his retainer, can do anything fairly pertaining to the prosecution of his client’s cause and the protection of his client’s interests involved in the suit; but he cannot, under such general authority, surrender or compromise away his client’s substantial rights.</p> <p>4. SAME — Vacating-, Where an attorney makes a compromise or settlement of a cause, without any authority so to do, and causes an order of dismissal “as per stipulation,” based on such settlement to be entered, such order may be set aside and vacated, upon the application of his aggrieved client promptly presented.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from Pottawatomie Gounty Gourtj E. D. Beasor, Judge. </p> <p>Action by D. Cotteral against the City of Shawnee. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BILLS AND NOTES — Action on Note. Evidence examined, and held, that the court was fully justified thereunder in directing the jury to return a verdict for plaintiff.</p> <p>2. EVIDENCE — Declarations—Admissibility. In a suit on a promissory note, where one of the signers of the note sets up the defense that he was a surety, and''that he signed the note as such because of ane agreement between the payee, the maker, and himself that the proceeds of the note were to be paid the maker, in money to pay out property of the maker, which he was to mortgage to the surety to indemnify him as such, and that the payee had violated the agreement, by appropriating the proceeds of the note to the payment of an alleged overdraft due by the maker, held, that the court did not commit error in refusing to allow the surety to testify as to what the maker said to him about the matter, in the absence of the payee, and in the absence of proof that the alleged agreement had been assented to by the payee.</p> <p>(Syllabus by Brewer, C.)</p>

<p>Error from the District Court, Okmulgee County; W. L. Barnum, Judge.</p> <p>Action by L. S. Skelton against the Standard Investment Company and others. Judgment for defendant's, and plaintiff brings error.</p>

<p> Error from the District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action by S. E. Peck against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BILLS AND NOTES — Checks—Presentment for Payment. The law requires that one holding a check should use reasonable diligence in presenting same for payment; and, as a general rule, where the holder of a check is in the same place where the bank is located, he must present it for payment before the close of banking hours on the day following the date of its receipt.</p> <p>2. BILLS AND NOTES — Checks—Failure of Drawee Bank. Between eleven and twelve o’clock a. m. of November 6, 1907, a check was given in payment of a balance due on an account. On that day the bank on which it was drawn was open for business, and the party giving it had a credit balance therein. On the following morning it was presented by the payee at another bank in the same city, and payment refused, because the bank upon which it was drawn had failed, and was never reopened for business. Held, that it was presented within reasonable time, and not being paid the drawer of the check was liable for the amount thereof.</p> <p>(Syllabus by Harrison, C..)</p>

<p>INSURANCE — Actions—Proofs of Loss — Necessity. Where a fire insurance policy contains the provision that in case of loss hy fire, the insured shall give notice of such loss and shall within 60 days make verified proof of loss in writing, and where the policy makes a compliance with such provision a condition precedent to an action, held, the right of action does not mature until such provision has been complied with or waived; and, where under all the proof it appears that such provision has neither been complied with nor waived, the insured cannot recover.</p> <p>(Syllabus by Harrison, C.)</p>

<p> Error from ilia District Court, McClain County; R. McMillan, Judge. </p> <p>Action by L. E. Taylor against the Gulf, Colorado & Santa Fe Eailwajr Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Oklahoma County Court; John W. Uayson, Judge.</p> <p>Action by Lizzie Hodges against George W. Walters. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; Bussell G. Lowe, Special Judge. Action by John Hubatka against the City of Oklahoma City, 'Henry M. Scales, Mayor, Dan B. Lackey, acting mayor, and others. Judgment for plaintiff, and defendants bring error.

<p> Error from Washita County Court; L. B. Shean, Judge. </p> <p>Action by tlie Bant of Commerce of Albuquerque, N. M., against G-. A. Dillon. Judgment for defendant, and plaintiff appeals.</p>

Error from Superior Court, Garfi,eld Gouniy; Dan Tlueli, Judge. Action by Bailen & Friedman against the Bank of Kremlin. From a judgment sustaining a demurrer to the petition, ■ plaintiffs bring error.

<p>1. RELIGIOUS SOCIETIES — Actions by Trustees. The trustees of a church brought suit for specific performance, and afterwards two of them filed a motion .to dismiss the suit, contrary to the wishes of and interest of the members of the church, and without acting upon the matter as a board. Held, that the court did not err in overruling- the motion' and permitting the suit to proceed under the direction of the other trustees elected to take the place of the two who attempted to dismiss the suit.</p> <p>2. SPECIFIC PERFORMANCE — Contract to Convey Lands — Action for Damages. An action for damages is not an adequate remedy for a breach of contract to convey land and the vendee in such a contract is entitled to specific performance, although he could recover in an action for damages for the breach.</p> <p>3. SAME — Waiver of Forfeiture. A vendor may waive the provisions of a contract for the sale of real estate makin-g the time of payment of the consideration of the essence of the contract, and where he receives payments on the purchase price after the time when the contract was forfeited according to its terms, without objection and without claiming a forfeiture, he waives the forfeiture, and though he afterwards claims a forfeiture, specific performance should be decreed where the vendee promptly tenders the full consideration upon notice of his intention to claim the forfeiture.</p> <p>4. SAME — Payment Into Court — Necessity. It is not necessary in a suit to require a vendee to convey land to pay the purchase price into court. It is sufficient to pay it at the trial or when ordered by the court.</p> <p>5. SAME — ‘Claim for Damages — Waiver. Where the petition alleged ' all the facts with reference to a contract of sale of real estate and prayed for specific performance, and also for the amount named in the contract as a penalty for failure to convey, it was not error to permit the plaintiff at the close of the testimony to waive the claim for damages.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Canadian County; John J. Carney, Judge. Action by L. C. Van Ness and C. A. Yan Ness, partners under the name of L. C. Yan Ness & Có., against Emma L. Baker. Judgment for defendant. From an order granting a new trial, she appeals.

<p> Error from P otLawaiomie County Court; E. D. Beasor, Judge. </p> <p>Action by 'John Hewett against the City of Shawnee. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PLEADING — Amendment—Cross-Petition. Where a cross-petition alleged that by written contract plaintiff had engaged to pay for • certain party walls, it was not error to permit an améndment during the trial alleging that the parties entered into a contract by which plaintiff agreed to pay for certain party walls, but that by mutual mistake the written contract did not express the real agreement, and praying for reformation of the written contract, plaintiff not claiming surprise, and it appearing that all persons who knew anything about the transaction testified in the case, and it was not error to admit evidence in support of the amendment.</p> <p>2. SAME. Such an amendment did not change substantially the “claim or defense” which was, both before and after the amendment, that plaintiff had agreed to pay for the party walls.</p> <p>3. PARTY WALLS — Contracts—Evidence. When plaintiff took contracts to erect at the same time buildings on seven lots belonging to various persons, two of which lots belonged to defendant, and where the contract with defendant provided that “this contract will include all walls and party walls, which are to be paid for by the contractor,”, and the defendant testified that plaintiff agreed to pay for all party walls for which defendant was liable, and defendant is corroborated in some particulars by other witnesses, the evidence was sufficient to sustain a finding that plaintiff agreed to pay for a party wall on one of the buildings on the east side of the block not adjoining defendant’s building, but for the cost of which he was liable, though plaintiff’s manager denies there was such an agreement.</p> <p>4.. REFORMATION OF INSTRUMENTS — M¡stake. Where, by a mistake as to the effect of the language used, a writing does not truly express the contract, equity will relieve.</p> <p>(Syllabus by Kosser, C..)</p>

<p>Error from, Superior Court, Pottawatomie County; (?. C. Abernathy, Judge.</p> <p>Action by J. E. Brakebill against the Chicago, Bock Island & Pacific Bailway Company. Prom the overruling of a demurrer to defendant’s answer, plaintiff brings error.</p>

<p>APPEAL AND ERROR — Dismissal of Appeal — Briefs. Where plaintiff in error fails to file briefs, as required by rule 7 of this court (20 Olila. viii, 95 Pac. vi), the appeal will be dismissed for want of prosecution. •</p> <p>(Syllabus by Brewer, C.)</p>

JJlrror from District Court, Olcmulgee County; TF. L. Barnum, Judge. Action by John E. Harrison, Administrator, against J. G. Hoff and others, in which John W. Foster and others intervene. From the judgment, Foster and others bring error.

<p>1. TOWNS — Negligence—Liability of Township. A township in this state, in the absence of an express statute creating liability therefor, is not liable in a civil action for damages for the neglect of its officers in failing to perform, or in improperly and negligently performing an official duty.</p> <p>2. HIGHWAY'S — Injury from Defective Highway — Liability of Township. For the distinction between municipal corporations, such as cities and towns, and such as counties and townships, as regards liability for the negligent construction and maintenance of the public highways, etc., see opinion.</p> <p>3. APPEAL AND ERROR — Harmless Error — Instructions. Where, in a negligence case, the jury finds no breach of duty by defendant an erroneous instruction on the measure of damages is harmless.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. 'DAMAGES — Exemplary Damages — Theory—Grounds. Exemplary damages are imposed by the law on the theory of punishment to the offender, for the general benefit of society, and as a restraint to the transgressor, and are allowed only in cases where malice, fraud, oppression, or gross negligence enter into the cause of action.</p> <p>2. APPEAL AND ERROR — Decisions—Grossly Excessive Verdict. Where, from the evidence and circumstances in a case, it is clear to the court that the verdict of a jury awarding exemplary damages is the result of passion and prejudice, and where the amount is so grossly excessive as to be shocking to the court’s sense of justice, a remittitur should not be, ordered, but, on application therefor, a new trial should be granted, for the reason that in such case the vice of prejudice and passion has probably prevented a fair and impartial consideration of the evidence and defenses offered, and has therefore permeated and destroyed the value of the verdict.</p> <p>(Syllabus by Brewer, C.)</p>

Error from Pottawatomie County Court; Ross F. Loclcridge, Judge. Seizure by the state of Oklahoma of certain whisky, and Friedman & Co., petition to interplead. Petition denied,' and from a judgment of confiscation Friedman & Co. bring error.

Error from Roger Mills County Court; E. E. Tracey, Judge. Action by C. 0. Bobexts, Jx., against B. Y. Converse and another. From a judgment of the county couxt refusing plaintiff leave to file an appeal bond on appeal from justice court, and from dismissal of the appeal, plaintiff brings error.

Error from Stephens County Court; W. H. Admire, Judge. Action by John Rahl against the Marlow State Bank and O. R. McKinney, cashier. From an order vacating a default judgment against the defendants, plaintiff brings error.

Error from District Court, Woodward County; B. F. Loofbourrow, Judge. Action by Roy 0. Canaday against A. W. Anderson and another. From judgment for. plaintiff, the defendant named brings error.

Error from, District Court, Ottawa County; T. L. Brown, Judge. Action by Moody R. Tidwell and another against W. W. Dobson and Mary Moore. Demurrer to answer of Mary Moore sustained, but overruled as to answer of defendant Dobson, and from judgment rendered for such defendant, plaintiffs bring error.

<p>PLEADING — Petition—Sufficiency. Where a petition contains an allegation of facts which show that the plaintiff has been wronged, shows of what such wrong consists, and the damage plaintiff has sustained thereby, and shows that defendant perpetrated such wrongs and is liable therefor, and asks judgment for the amount of damage sustained by reason thereof, such petition states a cause of action.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Proceeding by the State, on the relation of Joe S. Eaton, County Attorney of Okmulgee County, against Eobert Heath. A. demurrer to relator’s petition was sustained, and he brings error.

<p> Error from Tulsa County Court; N. J. Gubser, Judge. </p> <p>Action by Carrie M. 'Peters against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.-</p>

Error from District Court, Wagoner County; B. C. Allen, Judge. Action by Ulysses M. Burcham against W. F. Edwards and. Nathaniel Peters. Judgment for plaintiff, and, from an order granting a new trial, plaintiff brings error.

Error from District Court, Sequoyah County: John II. Pitchford, Judge. ■ Action on a statutory bail bond by the State of Oklahoma against Frank Hines, John McEachin, and Paul Winsett. Judgment for plaintiff against defendant Hines, and for defendants McEachin and Winsett, and the State brings error.

<p> Error from Osage County Court; C. T. Bennett, Judge. </p> <p>Action by Charles Amos Bryant against the Midland Valley Railroad’ Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pottawatomie County; Roy Hoffman, Judge. Action by the Williamson-Halsell-Frasier Company against the Western National Life Insurance Company to recover on a fire insurance policy. Judgment for plaintiff, and defendant brings error.

Error from Pontotoc County Court; A. T. West, Judge. Action by Leon Kahn against A. A. McConnell and others to foreclose a mortgage. Judgment for plaintiff for his debt and for defendants on the foreclosure issue, and plaintiff brings error.

Error from District Court, Tulsa County; L. M. Foe, Judge. Action by Minnie A. Pease, plaintiff below, defendant in error, against W. II. Roeser, defendant below, plaintiff in error, to recover damages for personal injuries. Judgment for plaintiff, and defendant-brings error.-

Error from District Court; Seminole County; Robert M. Rainey, Judge. Action by Milton Bruner and Katie Bruner against T. S. Cobb and another to cancel a deed. From judgment for defendants, plaintiffs bring error.

Error from District Court', Logan Countyj A. H. Huston, Judge. Action by Le Roy Waugh against the Guthrie Gas, Light, Fuel & Improvement Company for damages for personal injury. From a judgment in favor of defendant, plaintiff appeals.

Error from District Court, Pawnee County; L. M. Poe, Judge. Action by H. D. C. Poos against the Shawnee Eire Insurance Company. Judgment dismissing plaintiff’s action for want of jurisdiction, and plaintiff brings error.

Error from, District Court, Chociatv County; D. A. Richardson,. Judge. Action by Carrie Herndon, widow and administratrix of Ben Herndon, deceased, against the St. Louis & San Francisco Railroad Company. Judgment for defendant, and plaintiff brings error.

<p>1. BILLS AND NOTES — Nonnegotiable Notes. A clause in a note reading, “The indorsers, guarantors, and assignors severally waive presentment for payment, protest, and notice of protest thereof, for nonpayment of this note, and consent that time of payment may be extended without notice,” does not render it nonnegotiable.</p> <p>2. SAME — Negotiable Note — “Fixed or Determinable Time.” Under the uniform Negotiable Instrument Act, an instrument, to be negotiable, must be payable on demand or at a fixed or determinable time, and a fixed or determinable time, within the meaning of that act, is when the instrument provides for a fixed period after date, on or before a fixed or determinable future time, specified therein, or on or at a fixed time after the occurrence of a specified event which is certain to happen, though the time of happening he uncertain.</p> <p>3. PLEADING — Judgment on Pleadings. Where a petition alleges defects in the execution of a note, occasioned by mutual mistake of the parties, and the answer admits the defects, it is not error to render judgment on the pleadings, reforming the same.</p> <p>(Syllabus by Robertson, C.)</p>

<p>1. EXECUTION — Issue of — Dormant Judgment. Under section 5969, 'Comp., Laws 1909, which provides that, "if execution shall not be sued out within five years after the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor,” a judgment will cease to operate as a lien five years after its rendition where no valid execution is issued within that time, and a judgment cannot be rendered foreclosing the lien after the expiration of five years, though the proceedings to foreclose it had been begun before the expiration of the five years.</p> <p>2. SAME — Authority to Issue — Clerk of Court. An execution issued by the clerk of the district court upon a judgment of the probate court, a transcript of -which has been filed in his office, is void.</p> <p>(Syllabus by Rosser, C.)</p>

<p>1. CORPORATIONS — Action—Return of Summons. Same as para graph 1 in syllabus to First National Bank of Tishomingo v. Lath-am, post, 132 Pac. 891.</p> <p>2. COURTS — -County Court — Jurisdiction—Amount Involved. Same as paragraph 1 in syllabus to State Bank of Paden v. Lanam, 34 Okla. 485, 126 Pac. 220.</p> <p>3. ACTION — Joinder. Same as paragraph 3 of syllabus to State Bank of Paden v. Lanam, 34 Okla. 485, 126 Pac. 220.,</p> <p>4. PLEADING — Petition—Several Causes of Action. Where it is sought to set out several causes of action in the same petition, each should constitute a separate paragraph and be separately stated and numbered. Each paragraph so stated and numbered should proceed upon a single definite theory, and of itself present a complete cause of action, as distinct from others as if it stood alone in the pleading.</p> <p>5. SAME — Objection—Motion—Demurrer. Where there is a commingling of several causes of action capable of union in one petition, and which are erroneously paragraphed or subdivided, the defect should be reached by motion to separately state and number, and not by demurrer.</p> <p>6. SAME — Determination. In considering a demurrer to improperly commingled paragraphs of a petition, in which different causes of action are stated, consideration- must be given, not alone to the matter alleged in such subdivision of the petition, but to the other paragraphs thereof, containing allegations alike applicable to the different causes of action.</p> <p>7. SAME — Motion—Objection To Petition — Waiver. The right to file a motion to have the different causes of action separately stated and numbered is waived by demurring, either to the petition as a whole, or to the separate causes of action thus defectively stated.</p> <p>8. USURY — Petition—Sufficiency. Petition considered, and held sufficient to state six different causes of action.</p> <p>9. TRIAL — Instruction — Construction — Sufficiency. Instructions should be construed together as a whole, including special charges given at the request of either party. When so construed, if they properly state the law, they will not be subject to exception, although some numbered instructions or' portion thereof, standing alone, may be misleading.</p> <p>10. APPEAL AND ERROR — Disposition of Cause — Affirmance on Condition. Same as that in paragraph 4 of syllabus in Mullen et al. v. Robinson, 30 Okla. 527, 120 Pac., 1099.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Errer from Johnston .County Court; Nick Wolfe, Judge. </p> <p>Action by C. D. Latham against the First National Bank of Tishomingo. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Case-Made—Time of Service. A purported case-made, which is not served within three days after the judgment or order appealed from is entered or within an extension of time duly allowed, is a nullity, and cannot he considered by this court.</p> <p>2. SAME — Void Case-made as Transcript — Certificate by Clerk. Where a case-made has been held void because not signed, settled, and allowed in time, and where the clerk of the trial court ha.s failed to attach any certificate thereto, but instead attests the signature of the trial judge to the judge’s certificate to the case-made, such record cannot be considered as a transcript of the record of the court below, and this court cannot consider the same.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from District Court, Alfalfa County; James W. Steen, Judge. </p> <p>Action by Robert Pailes against Andrew Prey. Judgment for plaintiff, and defendant brings error.</p>

. Error from District Court, Lincoln County; . Boy Hoffman, Judge. Action by the State of Oklahoma, on relation of John J. Davis, County Attorney, against' the Moss Brewing Company, to recover statutory penalty. Judgment for plaintiff in the sum of $2,000, and defendant appeals.

Error from Disti-ict Court, Grady County; Frank M. Bailey, Judge. Action by Boone D. Hite, administrator of the estate of' J. B. McCarthy, against the Standard Accident Insurance Company of Detroit, Midi. Judgment for plaintiff, and defendant brings error.

<p> Error from Goal County Court; B. H. Wells, Judge. </p> <p>Action by W. W. Bradshaw against the Missouri, Kansas Sc Texas Railway Company. Judgment for plaintiff, and defendant brings ■ error.</p>

<p>1. ABATEMENT AND REVIVAL — Another Action Pending. Where an action by a creditor against his debtor is brought in a court of this state, and jurisdiction of the defendant is acquired, and subsequently an action is commenced in a court of a sister state, in which the plaintiff here is there made defendant, and the defendant here is there served with garnishment process, the subject-matter being the same, said latter action can neither be pleaded in bar nor in abatement of the former, In such cases the maxim, “Qui prior est tempore, potior est jure,” controls.</p> <p>2. COURTS — Comity—Prior Jurisdiction. Where actions are properly instituted and are pending in courts of different- jurisdictions or sovereignties, the rule of comity is not allowed to influence the proceedings of the court whose jurisdiction first attaches.</p> <p>(Syllabus by Sharp, :C. )</p>

<p> Brror from Goal County Court; R. H. Walls, Judge. </p> <p>Action by M. A. Lawson against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Coal County Court; B. H. Wells, Judge. </p> <p>Action by A. N Adams against the Missouri, Kansas & Texas Railway Company.- Judgment for plaintiff, and defendant brings error.</p>

<p> Error from, Coal County Court; B. TL. Wells, Judge. </p> <p>Action by George E. Houseley against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Hughes County; John. GarutherSj Judge.</p> <p>Action by John Elsing against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Action by M. E. Davis against the St. Louis & San Eran-cisco Eailroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, McOurtain Countyj James B. Armstrong, Judge. </p> <p>Action by Mrs. Dora Deed against the St. Louis & San Francisco Eailroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. TRIAL — Advisory Verdict — Conolusiveness. In suits of purely equitable cognizance the functions of the jury are merely advisory to the court, and the court may make and return its own findings of fact based upon the evidence, independent of the verdict of the jury.</p> <p>2. APPEAL AND ERROR — Harmless Error — Instructions—Equitable Suits. Where findings of fact are made by the court, the court’s instructions to the jury are wholly immaterial, and error cannot be predicated thereon.</p> <p>3. TRIAL — Appeal and Error — Harmless Error — Equity Proceeding— Submission to Jury. In an equity proceeding, the trial judge may, in his discretion, impanel a jury and submit to it distinct questions of fact for its advice; but he should not in .such cases submit the pase to a jury for a general verdict for the plaintiff or the defendant. Such a submission is erroneous; but a case should not be reversed for such an error, where it affirmatively appears that, notwithstanding the verdict of the jury, the trial judge reviewed the evidence and reached the same conclusion as the jury.</p> <p>(Syllabus by Sharp, 'C..)</p>

<p>. 'Error from District Court, Harper County; R. H. Loofbourrow, Judge. .</p> <p>George H. Cook was convicted of assault with a dangerous weapon, and brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to Serve Case.-Made. A party desiring to appeal has three days, hy statute, in which to serve a case-made,' after the overruling of the motion for a new trial has been entered; and .unless such case-made is served within such time,- or within the extension properly allowed by the court, the appeal will be dismissed.</p> <p>(Syllabus by Robertson, iC.)</p>

<p>NEW TRIAL — Review—Grant of New Trial. Under the ruling that, before a hew 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 corlain' 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 Sharp, C..)</p>

<p>1. BROKERS — Real Estate Brokers — Right to Commission. A real estate agent in order to recover commission for the sale of real estate must produce a purchaser, who is ready, willing, and able to buy, upon the terms and conditions agreed upon.</p> <p>2. SAME — Sale of Realty. The only legal evidence of his intent to comply with those conditions is his written agreement’ to do so. Hence a real estate agent is not entitled to recover a commission for the sale of real estate, unless he has also (in addition to the foregoing requirements) procured and presented to the seller, from the purchaser, who is ready, willing, and able to buy, an enforceable contract in writing, binding him to take the land according to the terms and conditions agreed upon.</p> <p>(Syllabus by Robertson, C.)</p>

Error from District Court, Oklahoma, County; George W. Clark, Judge. Action by R. S. Card against the St. Louis & San Eran-cisco Railroad Company. Judgment for defendant, and from an order granting a new trial defendant brings error.

Error from, District Court, Kingfisher Countyj A. II. Huston, Judge. Action by John H. Johnson and others against W. C. and Etta Craig and others. Judgment for defendants, and plaintiffs bring error.

<p>INDIANS — Deed—Validity and Effect — Person in Adverse Possession. . By reason of section 2215, Comp. Laws 1909, a deed conveying real estate, executed by a grantor at the time not in possession of the conveyed premises, is void as between the grantee and a person who was at the time of the conveyance in adverse possession of the conveyed premises; and this rule applies where the grantor is an allottee of the 'Creek Tribe of Indians, upon whose power to alienate his allotment the restrictions have been removed prior to the time of the execution of the deed, and where the person in possession originally obtained possession and claims title to the conveyed premises by virtue of a void deed executed by the allottee before the removal of restrictions upon his power to allienate his allotted lands.</p> <p>(Syllabus by ¡Brewer, rC.)</p>

<p> Error from .District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by J. J. Buhler against S. E. Hysell. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Carter County; 8. II. Russell, Judge. Action by Byron Drew against the Choctaw, Oklahoma & Gulf Eailroad Company for damages on account of a private nuisance. From a judgment for plaintiff for $1,995, defendant brings error.

<p>Error from District Court, Washita County; James B. Tolbert, Judge.</p> <p>Action by J. A. Jester against the Aetna Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>FRAUDULENT CONVEYANCES — Pleading—Variance. In an action to set aside a deed, and to have a certain judgment declared a lien on the property described in such deed, the action being based upon a judgment alleged to have been rendered in a certain court, on a certain day, against certain parties, for a specific amount, and to prove such judgment the plaintiff introduces a judgment rendered in a different court for a different amount, and against different parties, held, such variance between the allegations and proof in the absence of amendment is fatal. And, in the absence of any evidence that the judgment introduced had been recorded or docketed so as to become a subsisting lien, it was not necessary for the trial court to decide whether the deed should be set aside or not.</p> <p>(Syllabus by Harrison, C.)</p>

<p>APPEAL AND ERROR — Service of Case-Made — Review. Where a case-made is not served within the three days allowed by statute (sections 6074 — 6075, Comp. Laws 1909), and no order is made within that time extending the time for service of the same, a purported case-made served out of time is a nullity, and presents as such, nothing for this court to review.</p> <p>(Syllabus by Brewer, C.)</p>

<p>Error from District 'Court, Logan County; A. H. Huston, Judge.</p> <p>Actipn by W. 0. Van Arsdale against S. S. Findley, and M. E. Findley and others intervene. From a judgment for interveners, plaintiff appeals.</p>

<p>1. APPEAL AND ERROR — Second Appeal — Law of Case. All questions of law determined in a former appeal become the law of the case, both for the trial court and this court on appeal, in a second hearing, providing the facts presented in the second hearing are substantially the same as presented at. the first hearing.</p> <p>2. SAME — Review. Where a beneficiary in an insurance certificate issued by a fraternal society sues to set aside a written settlement of her claim and for judgment on the certificate, on the grounds that such settlement was obtained through the fraudulent misrepresentations of the society’s adjuster, and the question is determined in plaintiff’s favor 'by the jury, the verdict will not he set aside, where there is substantial evidence showing that the beneficiary was misled and induced to act in making the settlement, under a misconception of her legal rights under the certificate, through the false and fraudulent representations and statements of the adjuster.</p> <p>(Syllabus by Brewer, C.)</p>

<p>MUNICIPAL CORPORATIONS — Sidewalk Assessments — Power to Levy. Section 7 of article 10 of the Constitution of Oklahoma, which provides that “the Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation,” is not repugnant either to section 847, Comp. Laws 1909 (Sess. Laws 1903, p. 107, c. 7, art., 1), which confers on the board of trustees of cities, towns, and villages the power to “lay out, open, grade and otherwise improve the streets, alleys, sewers, sidewalks and crossings and to keep them in repair and to vacate the same,” or to sections 860, 861, and 862, Comp. Laws 1909 (sections 671, 672, and 673, St. Okla. 1893), which provide that special taxes assessed for the purpose of improving the streets or for building or repairing sidewalks of the town shall .be a lien oh the lots or ' pieces of ground subject to the same, and specify what improvements shall be included in such special tax, or to section 977, Comp. Laws 1909 (Sess. Laws 1897, p. 89, c. 7, art. 3), and the six following sections which prescribe certain procedure for such special assessments; and these provisions were extended in force in the state by the terms of section 2 of the Schedule to the Constitution, and under their terms, and the provisions of section 10 of said Schedule an incorporated town has the power to levy assessments against abutting property for the purpose of laying sidewalks.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Qouri, Tulsa Gouniy; L. M. Poe, Judge. Submission by an agreed ease 'of a controversy between E. E. Shallenberger, doing business as the Shallenberger Construction Company, and R. ‘C. Brady. Judgment for defendant, and plaintiff brings error.

Error from' District Gourt, Pontotoc County; A. T. West, Judge. Action by W. W. 'Wooten against the St. Louis & San Francisco Railroad Company. From an order setting aside a verdict for defendant and granting a new trial, defendant brings error.

<p>1. TRIAL — Verdict—Number of Jurors Assenting. In a cause of action for negligence occurring prior to statehood, but where suit is brought since statehood, it is not error to instruct the jury that three-fourths of their number concurring may sign and return a verdict.</p> <p>2. DAMAGES — Measure—Growing 'Crops. The rule as to measure of damages to growing crops stated in C., R. I. & P. Ry. Co. v. Johnson, 25 Okla. 760, 107 Pac. 662, 27 L. R. iA. (N. IS.) .879, followed.</p> <p>3. WATERS AND WATER COU RSES — Obstruction of Surface Water — Liability of Railroad. If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course and by its embankment, ditches, or artificial channels' causes such water to be conveyed to a particular place, and thereby to overflow the land of another proprietor which, before the construction of such road, ditches, or channels, did not overflow, the company will be liable to. such proprietor for the injury. Following St. Louis & S F. R. Co. v. Dale, 36 Okla. 114, 128 Pac. 137.</p> <p>4. DAMAGES — Judgment—Limitation of Actions — Measure of Damages — Permanent Cause of Injury. For negligent injuries to realty which result from a cause susceptible of remedy or abatement, the owner is entitled to recover therefor only such damages as had accrued on account of the impaired or lost use of his property up to the time of the commencement of his action-Por injuries resulting, from permanent cause, the owner may recover in a single action his entire damages, to wit, that amount which represents -the permanent depreciation of the realty in value in consequence of the injury.</p> <p>(a) When a cause of an injury is abatable, either by an expenditure of labor or money, it will not be held permanent.</p> <p>(b) When not permanent, the statute of limitation does not begin to run until the injury is suffered.</p> <p>(Syllabus by Brewer, C.)</p>

<p>Error from■ County Court, Pontotoc County; J. P. McKeel, Special Judge.</p> <p>Action by William L. Swank ^ against George W. Hicks. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Ottawa County Court; W. Y. Quigley, Judge. </p> <p>Action by M. L. Pierce against J. B. Harper. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by E. W. Spencer against J. EC. Wellington and C. M. Arthur. Judgment for plaintiff, and defendant Wellington brings error.</p>

Error from District Court, Garfield County; Dan Duett, Judge Pro Tern. Action by Hugh A. Scott, as administrator, etc., against Albert Pittman and others. From judgment for defendants, plaintiff brings error.

Error from, District Court, Hughes County; John Caruthers, Judge. Action by Frederick W. Merideth against Yernon Y. Harris and others. Defendant Nancy Harjo filed her answer and ■cross-petition, and plaintiff dismissed his petition. Defendant Bessie Long moved leave to file her answer to the cross-petition. Motion denied, and Bessie Long brings error.

<p> Error from Craig County Court; S. F. Paries, Judge. </p> <p>Action between Eobert A. Wilson and J. E. Mann. From the judgment, Wilson brings error.</p>

<p>INDIANS — Indian Lands — Jurisdiction—State and Federal. The provisions of section 3 of article 1 of the state Constitution, that “the people inhabiting- the state do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands ; lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public lands shall have been extinguished by the^ United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United ’States,” do not prevent the state courts from exercising jurisdiction over controversies as to the possession and ownership of lands within the limits of Indian tribes, after the land has been allotted, although it may be necessary for- the state court to construe acts of Congress, treaties with the Indian tribe, and departmental leases and conveyances, and said courts have jurisdiction over a> ' controversy as to possession between the owner of said land and a sublessee of the land for oil and gas mining purposes, although the oil and gas did not pass by the allotment, and though the original lease required that royalties be paid to the tribe.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from District Court, Choctaw County; Jas. B. Armstrong, Judge. </p> <p>Action by Keys & Keys against the Mechanics’ & Traders’" Insurance Company of New Orleans, La. Judgment for defendant, and plaintiffs bring error.</p>

<p>INSURANCE — Policy—Contract Limitations-, — Validity. A clause in a contract of Are insurance, executed May 25, 1908, on merchandise destroyed by fire on November 9, 1908, that, “No suit or action on this policy * * * shall be sustainable in any court of law or equity * * * unless commenced within twelve months next after the fire,’’ was void at the date this contract was entered into, because in violation of law.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Grady County; Erante M. Bailey, Judge. </p> <p>Action by Newt H. Casey against 0. L. Bingham and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. CARRIERS — Delay in Transportation of Goods — Remedy of Consignee. As a general rule a consignee of freight has no right upon its arrival at its destination to refuse to accept the goods from the common carrier and recover for their full value merely because of delay in transportation, unless the delay has destroyed the value of the goods entirely or caused what is equivalent to a total loss.</p> <p>2. SAME. — Shipment of Goods — “Perishable Property.” A car load of potatoes on the tracks of a common carrier in Tulsa in the latter part of November, and which the consignee refused to accept, was perishable property within the meaning of section 455, Comp. Laws 1909, and the carrier had the right to dispose of same under the provisions of that, section of the statutes.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Carter County; I. R. Mason, Judge. Two actions consolidated, one by E. V. Strickland, the other by F. B. Stobaugh, both against Frank Berryhill. Judgments for plaintiffs, and defendant brings error.

Error from District Gouri, Muskogee County; John U. King, Judge. Action by H. B. Nelson, as guardian, etc., against the People’s Bank & Trust Company and others. Judgment for plaintiff, and the defendant named brings error.

Brror from District Court, Pottawatomie County; George C. Abernathy, Judge. Action by David Graves against Anna Callahan and others. From judgment for plaintiff, the defendant named brings error.

<p>EVIDENCE — Parol Evidence — Admissibility. Where a number of persons signed a promissory note in their, individual names, and nothing appears on the face of the instrument to suggest that they executed the same in a representative character, it was error, in a suit on the note, to admit parol evidence tending to show that they executed it as directors in a corporation.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Lincoln County; A. H. Huston, Judge. Action by Theresa Filtsch and others against PI. M. Johnson, Administrator of the estate of C. A. Filtsch, deceased. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court; Jackson Countyj J. F. Jackson, Special Judge. </p> <p>Action by P. L. Wilkes and Stella Wilkes against W. 11-Payne. Judgment- for plaintiffs, and defendant brings error..</p>

<p> Error from District Court, Choctaw Gounty; James R. Armstrong, Judge. </p> <p>Action by E. N. Keys and another against the Phoenix Insurance Company. Judgment for defendant, and plaintiffs bring error.-</p>

<p>1. 'COM M ERGE — Exclusive Powers of Congress — Interstate Shipment — Contract Limitation of Liability. The intent of Congress to take possession of the subject of the liability of a carrier under contracts for interstate shipment, and to supersede all state regulations with reference to that subject, so clearly appears from Carmack Amendment, June 29, 1906, c. 3591, sec., 7, 34 St. at L. 593 (U. S. .Comp. St. Supp. 1911, p. 1307), to Act Feb. 4, 1887, c. 104, sec. 20, 24 St. at L. 336 (U. S„ Comp. St. 1901, p. 3169),. as to invalidate, as applied to interstate shipments, the provisions of any state law nullifying contracts limiting the liability of a carrier for loss or damage to the agreed or declared value.</p> <p>2. ¡CARRIERS — Interstate Shipment — Contract Limitation of' Liability — Validity. A stipulation in a carrier’s receipt limiting its liability to an agreed or declared value made to adjust the rate is not forbidden by the provision of the Carmack Amendment, June 29, 1906 (Act- June 29, 1906, c. 3591, sec. '7, 34 St: at L. 593 [U. S. Comp. St. Supp. 1911, p. 1307]), to'Act Feb. 4, 1887, c. 104, sec. 20, 24 St. at CL. 386 (U. 'S. Comp. St. 1901, p. 3169), that “no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company, from the liability hereby imposed.’’</p> <p>3. CONTRACTS — Construction—Presumption—Statutes. In cases where the subject-matter of a contract is exclusively one of national cognizance, and Congress has enacted a law for its complete regulation, the parties must be presumed to have contracted with reference to the act of Congress and its effect on the subject-matter, and not with reference to the state law, for they could not, by agreement or otherwise, make any other law the applicatory law in the determination of the nature, validity, or interpretation of the contract.</p> <p>4. CARRIERS — Interstate Shipments — Contract Limitation of Liability — Effect. Where there is neither an agreed value, nor a representation of value made in writing by a shipper, and where the bill of lading, executed by the carrier, and signed by the shipper, contains a release valuation to $5 per hundredweight, and which bill of lading is accepted by the shipper, without fraud on the part of the carrier, and subsequently the shipper at point of destination pays the freight, based on the released valuation, no recovery can be had, ifa the event of loss, beyond that authorized under the bill of lading.</p> <p>5. SAME — Where two rates on a given article are. provided, the shipper may elect which of the rates he desires. If no election is made, and the goods are billed out by the carrier at the lower rate, and the bill of lading signed by the shipper so provides and accords with the published and approved tariffs, in the absence of fraud, the shipper is bound by the terms thereof, and, where loss occurs, he cannot insist on another and different liability from that fixed by the bill of lading.</p> <p>6. COURTS — Decisions as Authority — State and Federal Courts— Construction of Statutes. Where an act of Congress which governs a contract has been construed by the Supreme Court of the United States, the decision of that court is supreme, and state courts are bound by it.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from County Court, Noble County; H. E. St. Clair, Judge. </p> <p>Action by M. L. Wheelan and another, etc., against B. F. Hunt. Judgment for defendant, and plaintiffs bring error.</p>

<p> Error from Comanche County Court; James II. Wolverton, Judge. </p> <p>Action by the Citizens’ Savings Bank of Columbus, Ohio, against A. Landis and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. JUSTICES OF THE PEACE — Appeal—Pleading—Discretion. The right to file new pleadings in the county court, on appeal from a justice of the peace court, depends upon whether it is in furtherance of justice to permit such pleadings to he filed, which is to be determined by the county court in the exercise of a sound judicial discretion.</p> <p>2. RAILROADS — Failure to Fence — Injury to Animals — Defenses. In an action under the fence statute (sections 7499, 7500, Comp. Laws 1909), negligence of the plaintiff in the care of his stock, contributing to the injury, is no defense, unless such negligence be shown to be willful.</p> <p>3. SAME — Rights of Landowner. A.railroad company, by its failure or neglect to erect a fence, as required in the foregoing paragraph, cannot deprive the owner of adjoining land of the rightful use thereof.</p> <p>4. SAME — Duty to' Fence — “Penal Statutes.” The foregoing sections of the statute, providing that an owner or accupant of land abutting on a railroad, who is desirous of having a hog-proof - fence constructed along its right of way, shall give written notice to the agent of the company at the station nearest his land, are not penal statutes (quoting Words and Phrases, pp. 5269-5271).</p> <p>5. SAME — Herd Law. The herd law, requiring domestic animals to be restrained, does not alter the obligation imposed upon railroads to fence their right of ways.</p> <p>6. SAME — Notice to Fence — Sufficiency. Under section 7500, Comp. Laws 1909, a notice to the superintendent of the railroad company, instead of to the agent at the station nearest the land desired to be fenced, while not in strict compliance therewith, is sufficient to fix a liability upon the' railroad for all damages occurring by reason of its failure or neglect to erect a fence in accordance with said statute, where it appears that the railroad actually received the notice and had ,a full statutory opportunity to comply therewith.</p> <p>7. SAME — Failure to Fence — Liability, Where a railroad is required by statute to fence its right of way, and neglects so to do, it is liable for all injuries to stock respiting from such failure, though the statute does not in terms impose such liability.</p> <p>8. SAME — Negligence—Evidence. A prima facie case of negligence is established by showing that the hogs were in a field improperly fenced by the railroad company and strayed therefrom onto the tracks and were killed by defendant’s train.</p> <p>9. DAMAGES — Proximate Cause. Damages suffered on account of extra care and attention required in rearing sucking- pigs,- the increase of the sows killed, may be recovered; the killing of the sows being the proximate cause of such damages.</p> <p>(Syllabus by Sharp, -C.)</p>

<p> Error from District Court, McCurtain County; T. Q. Carr, Special Judge. </p> <p>Action by W. T. Lee against the St. Louis & San Francisco Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant'brings error.</p>

<p> Error from Gouniy Oourt, Oklahoma County; F. B. Owen, Special Judge. </p> <p>Action by A. J. Tidwell against P. W. Holden. Judgment for plaintiff, and defendant brings error.</p>

Frror from District Court, Le Flore County; Malcolm F. Rosser., Judge. In the matter of the guardianship of Luther Bohanan, a minor. From an order confirming sale and directing issuance of a guardian’s deed to Wade Enloe, F. E. Watkins brings error, and W. A. Welch, Jr., guardian, files cross-petition in error.

<p>1. EVIDENCE — Insurance—Application. Plaintiff sued to recover on an insurance policy; the insurance company admitted the execution of the policy, the death of the insured and the identity of the beneficiary, but alleged fraud in the procurement of the policy by the insured in that the warranties contained in the application were false and untrue, etc. At the trial the application was offered in evidence, but rejected, on the objection of the beneficiary, on the ground that the same was signed by mark and such signature had not been properly proved; it was shown by the examining physician that he had written the answers to the questions, and had signed his name to the bottom of the same over the word “witness,” but he testified that he did not sign the insured’s name, nor witness her mark, nor did he see the insured sign, nor any one else for her. It was shown also that the insured was an educated woman ahd could write, and that she always signed her name by writing it in full, and never signed by mark. Held, that the court did not err in refusing to allow said application to be introduced in evidence.</p> <p>2. INSURANCE — Direction of Verdict — Proof of Fraud. Fraud is , a fact to be proved as any other fact, by competent evidence; and, where there is no evidence in the record tending in any wise to establish that fact, which was the only defense relied upon in the case, it was not error for the court to direct a verdict - for the plaintiff.</p> <p>3. > TRIAL — Direction of Verdict — Evidence. Where there is enough competent evidence in the record to support a verdict, and there is no conflicting' evidence against plaintiff’s contentions, it is the duty of the trial court to direct a verdict accordingly, on request of plaintiff.</p> <p>(Syllabus by Robertson, C.)</p>

<p>Error from District Court, Coal County; A. T. West, Judge.</p> <p>Action by Jesse N. Mitchell against the Fulsoni-Morris Coal & Mining Company. Judgment fox' plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Review—Evidence. This court will consider the evidence adduced at the trial in order to ascertain whether or not the verdict of the jury is reasonably supported by the testimony, but in so doing the conclusion reached by the jury is weighed by that evidence only which supports it.. If all the evidence supporting a verdict, taken together and given all of the presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not go-behind it and determine what verdict the jury might have returned on the countervailing evidence offered, had it been accepted.</p> <p>2. TRIAL — Street Railroads — Instructions on Contributory Negligence — Duty to Request. Instructions examined and held not open to the criticism lodged against them.</p> <p>(Syllabus by Robertson, C.)</p>

Error from District Court, Ohfuskee County; John Caruthers, Judge. Action by Alice D. Hubbard against Marion B. Flesher and others to foreclose real estate mortgage. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Action by Charles J. Hubbard against John Jones and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Thomas J. Daw-son against the low,a Land & Trust Company and others, to quiet title to real estate. Judgment for plaintiff, and defendants -bring error.

Error from District Court, Haskell County; Malcolm E. Rosser, Judge. Action by Elias Darneal, an infant, etc., against L. C. Tirey and others to cancel a deed. Judgment for plaintiff, and defendants bring error.

Error from District Court, Haskell County; Malcolm E. Rosser, Judge. Action by' Elias Darneal, an infant, against William E. Tirey to cancel deed to real estate. Judgment for plaintiff, and defendant brings error.

Error from District Court, Muskogee County; Chas. Bagg, Special Judge. Action by Dora Lieber, a Creek Indian, against Connell Rogers, county treasurer and others, to restrain collection of taxes. Judgment for defendants, . and plaintiff appeals.

<p> Error from Garter County Court; M. F.. Winfrey, Judge. </p> <p>Action by the Swbfford Bros. Dry Goods Company against R. A. Owen and others. Judgment for defendants, and plaintiff brings error.</p>

<p>CARRIERS — Shipment Contract — Construction—Exemption from Liability — Validity. A special contract executed between a carrier and a shipper, in consideration of a reduced freight rate,' providing' that, in case of total loss of any of the live stock covered by the contract, the liability of the carrier shall not exceed a maximum valuation of the live stock stipulated in. the contract is not a contract attempting to exempt, the carrier from liability arising from its own negligence; and where the contract is reasonable and just, and has been fairly entered into by the shipper, the same will be upheld by the court as a proper and lawful manner of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. EVIDENCE — Parol Evidence — Contracts. When persons meet and negotiate concerning a contract and discuss its proposed terms and conditions, and finally end the matter by executing a written contract fully covering the subject, it represents the final agreement of the parties, and oral evidence tending to vary, contradict, enlarge, or narrow the terms of the writing is not admissible.</p> <p>2. TRIAL — Refusal of Instructions — Evidence. It is not error to refuse to 'give to the jury a requested instruction, although it may be applicable to some issue raised by the pleading, when there is no evidence in support of the issue upon which the instruction is based.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. CONTRACTS — Illegal Contract — Parties in Pari Delicto — Cancellation. Plaintiffs had about 10,000 acres inclosed in a pasture in which they were grazing between 3,000 and 4,000 cattle in violation, of the quarantine law. They also had a suit pending against defendant over title to a certain tract of land. Defendant threatened to petition the board of county commissioners to have the section lines opened and the quarantine board to have the cattle dipped unless plaintiffs would dismiss their suit and give him a quitclaim deed to the land. (Plaintiffs dismissed the suit and gave defendant the quitclaim deed in consideration of their being allowed to inclose the section lines and to graze their cattle above the quarantine line in violation of law. After they had had the benefit of the pasture, they brought this suit to cancel the quitclaim deed on the ground that it was given under duress. Held, the contract being in violation of law and the parties in pari delicto, a court of equity will not take cognizance of their rights arising thereunder.</p> <p>2. CONTRACTS — Illegality—Relief. Where the purpose of a contract is to violate the law and the parties thereto are equally cognizant of its nature and equal participants in carrying out its purpose, a court of equity will grant relief to neither party, but will leave them to their strict rights.,</p> <p>3- DEEDS — Execution—Duress—Menace—Fraud. Where the defendant obtained a quitclaim deed of certain land in controversy from complainants in consideration of permitting complainants to violate the law prohibiting the inclosure of several sections of land as a pasture, and also permitting complainants to violate the quarantine regulations which if complied with would have required complainants to dip a large band of cattle at a great expense, the deed was not subject to vacation as having been obtained by duress, menace, or fraud.</p> <p>(Syllabus by Harrison, C.)</p>

<p> Error from District Court, Wagoner Countyj Chas. Bagg, Judge. </p> <p>Action by L. A. Bell against Jacob A. Bearman and another. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court, Coal Countyj R. H. Wells, Judge. Action by S. G-. Payte against' Tom Churchman. From a judgment of the county court, dismissing an appeal from a justice of the peace, plaintiff brings error.

<p> Appeal from District Court, Lincoln County; •Chas. B. Wilson, Jr., Judge. </p> <p>Action by A. M. Penn against Ola J. Penn. Prom a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by J. G. Leeper, as executor of Thomas J. Bailey deceased, against Daniel W. Hogan and others. Judgment for plaintiff, and defendants bring error.

<p> Error from County Court, Grady County; N. M. Williams, Judge. </p> <p>Action by G. M. Null against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Error from, County Court, Oklahoma County; John W. Hay son, Judge. Action, by the Jones Leather Company against J. L. Woody on an account. Judgment sustaining defendant's motion to dissolve attachment, and plaintiff brings error.

<p> Error from County Court, Pawnee County; Fred 8. Liscon, Judge. </p> <p>Action bjr the Cleveland National Bank against James Amos. Judgment for defendant, and plaintiff brings error.</p>

<p>1. STIPULATIONS — Withdrawal—Discretion of Court. It is within the sound judicial discretion of the court as to whether a party will be permitted to withdraw from a stipulation concerning a case pending before the court.</p> <p>2. SAME — Where parties entered into a stipulation as to what question should be submitted to the court, it was not an abuse of discretion for the court to refuse to permit one of the parties to withdraw from the stipulation after the question had been argued to the court.</p> <p>3. PLEADING — Departure—Reply—Insurance. The petition in an action on a policy of fire insurance alleged that plaintiff had complied with all the conditions of the policy except as had been waived. The answer alleged a failure to comply with the conditions of the policy .with reference to taking an inventory and keeping books showing a complete record of the business, etc. The reply denied all the affirmative allegations of the answer and alleged further that the insured kept a set of books which at all times substantially disclosed the exact status of his business, and that from them could be ascertained to a substantial and reasonable certainty the exact condition of his business. Held, that the matters alleged in the reply could have been proven under the allegtions of the petition and general denial contained in the reply, and that the reply was not a departure from the petition.</p> <p>4. JUDGMENT — Right to Set Aside — Rendition. The court has the right, on its own motion, to set aside an erroneous judgment during the term at which it was rendered. And where the question submitted is one of law. upon which argument has been heard, to render the proper judgment without rehearing the case.</p> <p>(Syllabus by 'Rosser, C..)</p>

<p> Error from District Court, Muskogee County; John II. King, Judge. </p> <p>Action by Etta Mclntire against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error.</p>

Error from■ Superior Court, Pittsburg County; P. D. Brewer, Judge. Action for divorce by Beulah M. Perkins against Lee Perkins. From a decree for defendant on his cross-bill, plaintiff brings error.

<p>1. INJUNCTION — Temporary Restraining Order — Improvident Issuance — Correction in Final Decree. In an equitable proceeding brought by one claiming' to be in possession of lands, to enjoin the interference with said possession, where it appears at the trial that at the time of the filing of the petition and1 of the issuance and service of the temporary injunction the defendants, and not the plaintiff, were in the actual possession of said lands, and where the court dismissed plaintiff’s petition, it was proper for the court in its final decree to order the defendants restored to the possession of the lands of which they had been improvidently dispossessed by the temporary injunction.</p> <p>2. SAME. In such case the court should place the parties in statu quo, and it'was error for the court to overrule the defendants’ motion for a modification and correction of the judgment, asking such restoration.</p> <p>3. APPEAL AND ERROR — Review—Matters of Discretion — Award of Costs. In the equitable proceedings for an injunction to enjoin defendants from interfering with plaintiff’s possession of lands section 6117, Comp. Laws 1909, confers discretionary power upon the court in the matter of taxing costs as it may think right and equitable; and the same will not be disturbed on appeal, snless it be clearly shown that there has been an abuse in the exercise of such power.</p> <p>('Syllabus by Sharp, C.)</p>

<p> Error from District Court, McClain County; R. McMillan, Judge. </p> <p>Action by Wilson Miller and others against Jennie L. Williams and others to recover possession of certain real estate. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from County Court, Canadian County; H. L. Fogg, Judge. </p> <p>Action by the Fidelity & Deposit Company against W. A. Sheahan. Judgment for defendant, and plaintiff brings error.</p>

Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. Action by J. J. Allen against Ran Cowart. Judgment for plaintiff, and defendant brings error.

Error from District Court, Duster Countyj James B. Tolbert, Judge. Action by tbe Coquillard Wagon Works against the Brown Hardware 'Company and others, as garnishees. From judgment for plaintiff, the garnishees appeal. ' The Brown Hardware Company was a domestic corporation operating a retail hardware store at Clinton, Okla.

<p>JUSTICES OF THE PEACE — Res Judicata — Judgment Against In-tervener — Replevin. Where a claimant of property attached in an action for debt intervenes and asserts her claim under section 3918, St. Okla. 1893 (section 4701, Rev. Laws 1910), upon which a judgment is rendered against her, and holding the property subject to the attachment, from' which judgment she does not appeal, she cannot thereafter maintain an action of replevin against the officer in possession of the property under the attachment; and the former judgment bars her recovery in the re-plevin action</p> <p>(Syllabus by Thacker, C.)</p>

<p>JUDGMENT — Correction of Journal Entry — Order Nunc Pro Tuno. History of the case reviewed, and the entering of an order nunc pro tuno, correcting a judgment, held, to be- within the power of the court and not an abuse of its discretion.</p> <p>(Syllabus by Robtertson, C.)</p>

Error from District Court, Coal County; A. T. West, Judge. Action by J. W. Carrigar and another against A. J.. Bristow and others to recover on an injunction bond. Judgment for plaintiffs, and defendants bring error.

Error from District Qourt, Coal County; A. T. West, Judge. Action by J. W. Carrigar and another against A. J. Bris-tow and another to recover damages on replevin bond. Judgment for plaintiffs, and defendants bring error.

<p>1; CHATTEL MORTGAGES — Rights of Subsequent Incumbrancers— Priorities. A. took a mortgage on certain chattels in 1908, upon Which there was at the time a prior, valid, properly registered mortgage in favor of K. & M. At the time the controversy arose between these parties over the property, the lien of K„ & M. had expired as to “subsequent purchasers or incumbrancers of the property in good faith for value,” because of 'a' failure to file a renewal affidavit. Held, that. A., . having taken his mortgage with notice of the lien of K. & M., never became, as to K. & M., a “subsequent incumbrancer of the property in good faith for value.”</p> <p>2. SAME — Replevin—Parties Where the holder of a second mortgage takes chattels from a mortgagor by a writ of replevin, the holder of a prior and superior mortgage has the right to be made a party to the replevin suit by the court, under section 5574, Comp. Laws 1909; and the fact that such party styles his pleading an intervention, and is called an intervener, is immaterial.</p> <p>(Syllabus by Brewer, C.)</p>

A.ppeal from District Court, Bryan County; A. H. Ferguson, Judge. Action by Mrs. C. A. Fisher against the St. Louis & San Francisco Eailway Company. Judgment for defendant, and from an order granting plaintiff u new trial, defendant appeals.

<p> Error from Superior Court, Muslcogee County; Farrar L. McCain, Judge. </p> <p>Action by James A. Brady against A. T. Kreps, Jr., and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from, District Court, Ohlahoma County; George W. Ciarle, Judge. </p> <p>Action by Charles W. Brooks against Matthew Reynolds .•and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. WITNESSES — Competency—Husband and Wife. A woman called as a witness to testify against a defendant, who was formerly her husband, cannot give evidence concerning any communications made by one to the other while the marriage relation existed.</p> <p>2. SAME — Privileged Communications. The statutes of this state (section 5842, Comp. Laws 1909), as well as the common law, prevent one spouse from giving testimony, falling under the head of privileged communications, against the other either during or after the marital relation has ceased; but neither the statute nor the common law prevents one spouse, after the marriage relation has been terminated, from testifying against the other, regarding independent facts within the knowledge of the witness, and not coming within the privilege.</p> <p>3. ADVERSE POSSESSION — Lost Instruments — Establishment— Evidence of Possession — Probative Effect. The mere possess-pion of lands, without any adverse claim being made to them, for a period less than is provided by the statute of limitations, does not prove title; but direct proof of a written conveyance which has been lost or destroyed may be aided by the presumption flowing from long peaceable possession and repeated or continuous acts of ownership.</p> <p>4. EVIDENCE — Lost Instruments — Establishment. Where the execution and delivery of a written conveyance in a chain of title has been proved, together with the fact of its loss or destruction, relevant secondary evidence may be used in proof of the fact of its existence and contents.</p> <p>5. LOST INSTRUMENTS —Establishment—Evidence —Admissibility. Where there is a missing link in an otherwise perfect chain of title, and there is any competent proof of the execution, delivery, and subsequent loss of a deed which would supply the •missing link, such evidence, together with any evidence of long peaceable possession without adverse claim, the payment of taxes, the failure of the other claimant to assert his rights with knowledge of such possession, etc., should be submitted to the jury on the question of whether such alleged lost deed had in fact ever existed.</p> <p>(Syllabus by Brewer, C.)</p>

<p>PLEADING — Construction—Objections on Appeal. Where the sufficiency of the averments of a counterclaim is challenged for the first timft in this court, and where the evidence taken thereon at the trial is not brought into the record, the fact that the averments were subject to a motion to make more definite and certain, and are not as full and comprehensive as they should be, is not of itself enough to justify this court in holding them insufficient to support a judgment.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Carter County; S. E. Bussell, Judge. </p> <p>Action by Turner & Wiggins against Charles Cohee and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. CARRIERS — Contract to Furnish Cars — Estoppel. Where a shipper ordered cars from the agent of a railroad company to be used for shipping cattle on a day named by him, and the agent promised to order the cars and did not suggest to the shipper that the cars might not be obtained, the company is. estopped to deny that there was a contract to furnish the cars on the day named.</p> <p>2. SAME — Contract with Shipper — Release of Liability — Validity. Where a shipper made a written offer of shipment at the time a written contract of shipment was entered into, in which cattle offered for shipment were valued and which stated, among other things, the “valuation is named by me for the purpose of securing a reduced rate of freight on the shipment,” and which offer was accepted in writing as follows: ‘‘the * * * Company accepts this shipment and the above valuation as. a basis for fixing the rate of freight thereon” — a paragraph in the contract as follows: “For the consideration aforesaid the shipper agrees to waive and release, and does hereby release the company from any and all liability for or on account of delay' in shipping said stock after the delivery thereof to. its agent,, and from any delay in receiving the same after tender of delivery, and for breach of any alleged contract to furnish cars-, at any particular time, and the shipper hereby releases and. does waive and bar any and all causes of action for any damages whatsoever that have accrued to the shipper by any written or verbal contract prior to the execution hereof concerning-said stock or any of them” — and was without consideration and is invalid where there is no evidence that the shipper obtained a lower rate than he would have received on the same valuation had no damage accrued prior to the execution of tne written contract.</p> <p>3. SAME — Shipment of Live Stock — Claim for Damages — Evidence.. Where the evidence showed that plaintiff instructed a commission company to make claim for damages for injury to live stock occasioned by delay in shipment, and a letter from - the claim agent of the railroad company to the commission company,, written some weeks after the shipment was made, showing that the claim was made and that he - had investigated it, and said nothing about the claim having been filed too late, and no. proof was offered by the company showing or tending to show that it was not filed in time, the presumption that it was. filed within the time prescribed by the contract is a condition precedent to recovery.</p> <p>4. SAME — Liability for Delay. A common carrier is not responsible for delay in the shipment of live stock where the delay is occasioned by the act of God and there has been no negligence by the carrier.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Mushogee County; John II. King, Judge. Suit by Patsy Perryman and others against Peggy Woodward to quiet title. Judgment for defendant, and plaintiffs bring error.

<p>1. 'CONTRACTS — Contract for Benefit of Another — Enforcement by Beneficiary. A contract, made expressly for the benefit of a third person, may be enforced by such person at any time before the parties thereto rescind It., Comp. Laws 1909, sec. 1044.</p> <p>2. SAME — Transfer of Corporation — Benefit of Third Party. K., ■ the president and general manager of the Kirkbride) Drilling & Oil Company, entered into a verbal agreement with L„ a stockholder in said company, who was also the manager and assistant treasurer of the Sachem Oil Company, whereby the beneficial interest of said first-named company and of K., theretofore claiming to be the owner of said interest in his own right, was . transferred to the -Sachem Oil Company, in consideration of a sum certain, to be paid by said last-named company into the treasury of the first-named company, and which amount was so paid, but subsequently appropriated by D. and J., owners of one-half of the stock of the Kirkbride Drilling & Oil Company, claiming ownership thereof. 'Held, that the agreement so made and entered into constituted a valid contract, supported by a good consideration, and that an action would lie to recover the purchase price by the first-named . company.</p> <p>3. FRAUDS, STATUTE OF — Executed Contract. The defense of the statute of frauds cannot be interposed against an executed contract.</p> <p>4. SAME — Oil Leases — Transfer—Executed Contract. Where a parol contract for the sale of certain oil leases, unenforceable because within the statute of frauds, is executed, and the contract of sale fully performed by proper transfer of said leases, and nothing remains to.be done, except pay over the purchase price, the statute may not be invoked as a means of defeating a recovery., In such cases the rights of the parties are no longer affected by the statute.</p> <p>5. APPEAL AND ERROR — Review—Reversal—Variance. Though there be a variance between the allegations of a petition and the facts proved on the trial, yet, if it be a case where an amendment of the petition ought to be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance.</p> <p>6. SAME — Judgment—Evidence. A judgment will not be reversed by this court on account of the i insufficiency of the evidence, where the evidence reasonably tends to support the same.</p> <p>(Syllabus by Sharp, 'C.)</p>