Volume 39 — Oklahoma Reports

<p>CARRIERS — Negligent Billing of Freight — Question for Jury. In an action against a railroad company for negligently billing a shipment to a wrong destination, where the decisive issue is whether the agent of the company was negligent in billing the shipment contrary to instructions from the shipper, or whether the shipper was negligent in failing to examine the bill of lading after it was handed to him by the agent, and such issue is properly submitted to the jury, the finding of the jury will not be disturbed, if it is reasonably supported by the evidence.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>1. CHATTEL MORTGAGES — Conditions Against Sale — Validity. A mortgage on a stock of merchandise, which provides that the mortgagor shall not. sell or dispose of any of the property covered thereby without the written consent of the mortgagee, is valid. And, where such mortgage is duly filed for record, then, in the absence of fraud, it constitutes a prior lien to that of subsequent attaching creditors.</p> <p>2. SAME — Description of Mortgaged Goods — Sufficiency. Where a chattel mortgage on a stock of merchandise describes it as “one stock of goods consisting of dry goods, groceries, canned goods, racket goods, flour, and feed,” and gives the number of the lot and block and name of the town, county, and state in which it is located, such description, the mortgage being filed for record, is a sufficient identification to put subsequent creditors on inquiry as to what articles are covered by the mortgage.</p> <p>3. SUBROGATION — Attachment of Mortgaged Personalty — Payment of Mortgage Debt. Where property is covered by a valid chattel mortgage, subsequent creditors of the mortgagor cannot proceed by attachment against such mortgaged property until the mortgage is paid or the mortgagee satisfied. And where a creditor is confronted in his attachment proceedings by a mortgagee in possession of the property, under a prior mortgage, and pays the mortgagee the amount due thereunder, such attaching creditor is subrogated to the rights of the mortgagee.</p> <p>4. CHATTEL MORTGAGES — Mortgagee in Possession — Attachment —Burden of Proof. Where a mortgagee is in full possession of the mortgaged property by consent of the mortgagor, and a creditor of the mortgagor seeks possession of the mortgaged property, under a junior attachment lien, on the ground that part of the property in the mortgagee’s possession is not covered by the mortgage, the burden is not on the mortgagee to prove that all the property in his possession is included in the mortgage, but is irpon the attaching creditor to show such fact. But the rule is otherwise where the attaching creditor is in possession under an attachment lien, and a mortgagee seeks possession of the property on the ground that the property is covered by his mortgage, which is prior to the attachment lien. .In such case the burden is on the mortgagee to identify and prove what property is covered by the mortgage. This rule is based upon the fundamental principle that one who alleges a cause of action must prove it.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by the Chickasha Building & Loan Association against J. D. Lindsay and wife to foreclose a mortgage and lien on stock. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action by Richard Green against Harry C. Fitch. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; A. N. Munden, Judge. Action by Walter H. Pigg, by his next friend, against the Curtis & Gartside Company. Judgment for plaintiff, and defendant brings error.

<p>1. INDIANS — Allotment Records — Conclusiveness. The act of Congress of May 27, 1908 (35 St. at L. 312, e. 199), making “the enrollment records” conclusive evidence as to the age of an allot-tee, does not retroaet so as to control in eases where the deed was passed and the transaction fully executed prior to its passage.</p> <p>2. INFANTS — Disaffirmance of Deed — Burden of Proof. Where a grantor of land seeks to disaffirm her deed and recover the land on the ground that she was a minor when it was executed, she has the burden of proving minority as alleged.</p> <p>3. APPEAL AND ERROR — Review—Sufficiency of Evidence. On the question of whether plaintiff was a minor at the -date she executed a deed to the land in suit, the jury decided against her; and, there being some evidence reasonably tending to show that she was of full age when the deed was executed, the verdict of the jury will not be disturbed.-</p> <p>(Syllabus by Brewer, C.).</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action -by Bert Baughman against William J. Anieker and others. Judgment for defendant, William J. Anieker, quieting title as against the other parties to the action, and plaintiff brings error.

Error from District Court, Grant County; Wm. M. Bowles, Judge. Action by Sam C. Davis and others against the Oklahoma State Baptist College and others. Judgment for defendants, and plaintiffs bring error.

<p>Brror from Superior Court, Tulsa County; M. A. Breckenridge, Judge.</p> <p>Action by Merritt J. Glass against L. J. Martin, Mayor, and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. DAMAGES — Exemplary Damages. Exemplary damages can "be awarded only in cases wliere the defendant is actuated by fraud or malice, or is guilty of such gross negligence as indicates a reckless disregard for the rights of others.</p> <p>2. CARRIERS — Action by Passenger — Exemplary Damages. Plaintiff started to Tulsa over defendant’s road, intending to change ears at Claremore. "When the train reached Reeks, a junction point where changes were made for Muskogee, the auditor told plaintiff that was the proper place for her to alight, and took her hand baggage and carried it off the train, thus causing her to alight. This occurred in the daytime, and there was. no evidence that the auditor was actuated by malice. All the evidence tended to show that his action in causing her to alight was the result of an honest mistake. Held, that there was no evidence upon which to base an instruction upon exemplary damages, and that it should not have been given.</p> <p>3. SAME — Separate Coach Law — Passenger in Caboose. The separate coach law does not apply to such freight trains as carry passengers in cabooses, and it was error to instruct the jury that if the railroad company required or permitted both white and negro races to occupy a car, it was a violation of its duty to plaintiff, where the evidence showed that plaintiff was riding in a caboose of a freight train which also carried negro passengers.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Lizzie Mueller against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. EXECUTORS AND ADMINISTRATORS — Foreclosure of Mortgage — Death of Mortgagor — -Presentation of Debt. In order to foreclose a mortgage upon real estate of a decedent, it is not necessary that the indebtedness thereby secured be presented in the administration proceedings; but on such a foreclosure the balance remaining unpaid shall not be a claim against the estate, unless the indebtedness was presented in the usual form. Section 5277, Comp. Laws 1909 (Rev. Laws 1910, sec. 6338).</p> <p>2. MORTGAGES — Absolute Deed as. Mortgage. When a deed is intended as a mortgage, it is to be treated as a mortgage, under section 1196, Comp. Laws 1909 (Rev. Laws 1910, see. 1156); and if it secures the indebtedness of a decedent it may be foreclosed, without presenting a claim in tho administration proceedings, where no judgment is sought against the estate.</p> <p>(Syllabus by Ames, G.)</p>

<p> Error from District Court, Latimer County; John Caruthers, Judge. </p> <p>Action by Angelo Valturo against the Hailey-Ola Coal Company. From a judgment for plaintiff, defendant brings error.</p>

Error from- District Court, Pittsburg County; John Caruthers, Judge. Action by W. M. Morgan against the Hailey-Ola Coal Company, to recover damages for personal injury. Judgment for plaintiff, and defendant brings error.

<p> Error from County Court, Hughes County; P. W. Gardner, Judge. </p> <p>Action by Isaac Bloom against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie County; Roy Hoffman, Judge. </p> <p>Action by Charles G. Wright against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Pontotoc County; Conway O. Barton, Judge. </p> <p>Action by the First State Bank of Oklahoma City against R. S. Tobin. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Lincoln County; Roy Hoffman, Judge. Action by Eugenia Davis against the St. Louis & San Francisco Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant brings'error.

<p> Error from County Court, Bryan County; J. L. Raff olee, Judge. </p> <p>Action by W. A. Horton against M. M. Early. Judgment for 'defendánt, and plaintiff brings error.</p>

<p>1. WITNESSES — Confidential Communications — Attorney and Client. An attorney is incompetent to testify as a witness of and concerning confidential communications had with his client.</p> <p>2. SAME — Attorneys—Production of Client’s Books. An attorney may be compelled to produce papers belonging to his client, where the knowledge of their existence or contents is accessible to others or to the public.</p> <p>3. SAME — Production of Papers. An attorney may be compelled to produce in evidence any paper or record in his possession belonging to his client, which the client himself could be compelled to produce.</p> <p>4. APPEAL AND ERROR — Harmless Error — Abstract Instructions. The giving of an instruction which states a correct proposition of law, but which has no application to the issues involved, or the proof, will not warrant a reversal of judgment, unless it is apparent that such instruction misled the jury.</p> <p>(Syllabus by Eobertson, 0.)</p>

<p>1. TRIAL — Demurrer to Evidence — Trial to Court. A demurrer to evidence is not expressly authorized "by section 4165, St. Okla. 1893 (section 5002, Rev. Laws 1910), in cases tried to the court without a jury, and in such eases the court in the exercise of sound discretion may decline to pass upon such demurrer; but, if such demurrer is passed upon and sustained or overruled, such action by the court must be tested by the same rules that obtain in jury cases, unless, in the event the demurrer is sustained, it affirmatively appears that the court afterwards weighed all the evidence as upon final submission, and so gave judgment upon the evidence.</p> <p>2. . SAME — Effect. A demurrer to evidence not only admits all faets the evidence tends to prove and every reasonable deduction therefrom in favor of the demurree, but it withdraws and requires the court to ignore unfavorable evidence adduced by the demurrant; and, if the evidence is sufficient to sustain a judgment for the demurree, the demurrer should be overruled.</p> <p>3. SAME — Divorce. A demurrer to the evidence, in an action for • divorce, withdraws and requires the court to ignore a proposition of reconciliation made by the demurrant during the progress of the trial.</p> <p>4. DIVORCE — Grounds—Interest of State. Public policy favors marriage and the continuity of the marriage relation; the state is a deeply interested silent third party in every action for divorce, and the court, notwithstanding proof of statutory grounds upon which divorce may be granted, may, in the exercise of sound discretion, deny a prayer for divorce where the petitioner, under all the faets and circumstances, appears to be not free from blame for the cause upon which the prayer is predicated.</p> <p>5. SAME — Discretion of Court. A spouse, sensibly alive to duty in respect to the marriage relation and to the valúe of the confidence and esteem of the other spouse, will never persist in an avoidable course of conduct which he or she knows or suspects may excite or keep alive in the other spouse jealous suspicion of infidelity and unchastity, and, to the contrary, such spouse will and should do his or her utmost to remove all cause for such suspicion; and a prayer for divorce on the ground of sueh suspicion and false accusations based thereon may, in the sound discretion of the court, be denied a spouse who does less.</p> <p>6. SAME. It is within the sound discretion of the trial court to deny a petition for divorce, notwithstanding proof of extreme cruelty in repeated false accusations of infidelity and unchastity, where the evidence tends to show that the falsely accused spouse is not without blame for the original excitation or subsequent perpetuation or increase of the suspicions of the accusing spouse which culminates in such accusation.</p> <p>7. TRIAL — Motion for Nonsuit. A motion for a nonsuit is a proper practice, and available in eases' tried to the court without a jury; but such motion, in effect, is but a demurrer to the evidence.</p> <p>8. DIVORCE' — Grounds—Extreme Cruelty. The - doctrine is now established that, without physical violence, acts or conduct which, operating upon the mind, and, through the mind, upon the physical system, produce bodily hurt or a reasonable apprehension thereof may constitute extreme cruelty, and therefore cause for divorce; but the ascertainment of the effect, and not the character, of such acts and conduct is the ultimate purpose of inquiry.</p> <p>9. SAME — Demurrer to Evidence. Where the evidence, upon demurrer thereto, shows that, without cause, the husband, on a number of occasions falsely accused his wife of improper relations with other men, and of infidelity and unchastity, and on two such occasions committed a light assault and battery upon her, and where such acts and conduct, operating upon the mind, and through the mind, upon the physical system, produces bodily hurt, or where such effect might reasonably be apprehended as the result of such acts and conduct, it was error to sustain a demurrer to the evidence.</p> <p>10. SAME — Exclusion of Evidence — Rebuttal. Where a husband charges improper conduct, including infidelity and unchastity, against his wife, during a certain period of time and while she is at a certain place, and where such accusations, together with other prior ones of a similar character, constitute the principal ground upon which she seeks a divorce, it is error for the court to exclude the competent testimony of her aunt, who was with her during all said period of time at said place, to the effect that she was not guilty of such conduct, and that her conduct was that of a chaste, modest, and faithful wife and mother.</p> <p>(Syllabus by Thacker, 0.)</p>

<p>1. FORCIBLE ENTRY AND DETAINER — Jurisdiction. Under the laws extended in force in the state upon its admission by section 2 of the Schedule of the Constitution, justices of the peace have jurisdiction of forcible entry and unlawful detainer actions.</p> <p>2. SAME — Notice to Vacate — Service. Notice to vacate and service thereof examined and held to be a complete compliance with the requirements of the statute.</p> <p>3. SAME — Who May Maintain — Right of Posession. The action of forcible entry and detainer is possessory in its nature, and has for its purpose the restitution of possession of lands and tenements to one who has been deprived of such possession by force. The right to maintain the action is not determined by plaintiff's right of possession, but by whether he has been in possession, and such possession has been taken from him by force, and, unless otherwise-provided by statute, a person who has’ never been in possession of lands cannot maintain the action.</p> <p>4. SAME. A person out of possession, but who has the right of possession, may maintain an unlawful detainer action against one in possession, who holds without color of title. (a) But in such case the right of possession alone is essential to his right to maintain the action.</p> <p>5. SAME — Title to Lands. A justice court, in an unlawful detainer action, cannot determine which of the parties has the right of possession by determining who, in fact, at the time of the trial has the leasehold estate in the lands in controversy.</p> <p>6. SAME — Question at Issue. The question to be determined in an unlawful detainer action is whether or not defendant has unlawfully and by force withheld possession from the plaintiff.</p> <p>7. APPEAL AND ERROR — Dismissal—Case-Made—Evidence. A motion to dismiss an appeal on the ground that the case-made contains no averment by way of recital, that it embodies all the evidence introduced at the trial, will be denied, where the case-made contains a stipulation, signed by both parties, that “the foregoing case-made contains a full, true, correct, and complete copy and transcript of all the proceedings had in said cause, including all pleadings filed, all the evidence offered and introduced,” etc.</p> <p>(Syllabus by Robertson, 0.)</p>

<p> Error from District Court, McIntosh County; Preslie B. Cole, Judge. </p> <p>Action by Lynne S. Freeman against Joseph H. Newcomer and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Courts Payne County; A. H. Huston, Judge. </p> <p>Action by Lue Cooper against Gerd Flesner. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Custer County; James R. Tolbert, Judge. Action by the White Lumber & Coal Company against the Clinton & Oklahoma Western Railway Company and the Washita Valley Construction 'Company. Judgment for plaintiff against defendant Railway Company, and it brings error.

<p>APPEAL AND ERROR — Abandonment of Appeal — Failure to File Brief. Where plaintiff in error does not file brief within time allowed by rule 7 of this court (20 Okla. viii, 95 Pac. vi), nor before ease is due to be taken on submission, the appeal will be treated as abandoned and dismissed.</p> <p>(Syllabus by Thacker, C.)</p>

<p> Error from County Court, Noble County; L. B. Robinson, Judge. </p> <p>Action by the Baldwin Lumber Company against G. W. Sanders. Judgment for defendant, and plaintiff brings error.</p>

Frror from District Court, Jefferson County; . Frank M. Bailey, Judge. Petition of Mrs.. B. A. Carter against C. J. Pickett, administrator of P. D. 'Carter, to set aside the homestead. Judgment for defendant, and plaintiff brings error.

Error from Superior Court, Garfield County; Dan Huett, Judge. Action by George Putnam and A. D. Putnam, doing busi.ness as Putnam Bros., against G. E. White. Judgment for plaintiffs, and defendant brings error.

<p>1. CARRIERS — Injury to Licensees — Assisting Passengers. Where a person, with the knowledge and consent of the servant of a common carrier, has entered its train for the purpose of assisting a passenger, the carrier is under obligation to permit him, in the exercise of due diligence, to accomplish his purpose and alight from the train before it is set in motion.</p> <p>2. SAME — Proximate Cause. Where plaintiff, not a passenger, with the assurance of .defendant’s conductor that he will have time to do so, in the nighttime, without having had miich experience in getting on and off trains, goes onto its train in the act and for the purpose of assisting his wife and four small children, all passengers, with a hand grip, to a seat thereon; where the train is not held a minute, nor near as long as usual, but starts before he has time to accomplish said purpose; where, when he has found a seat for such passengers, he, without taking time to say good-bye, hurriedly goes to the vestibule door at which he entered for the purpose of alighting, but is prevented by the act of defendant’s brakeman in closing the door at the time he approaches it; where he then asks the brakeman if the train is “going,’’ and, upon being informed it is, asks that it be stopped to permit him to alight; where the brakeman thereupon, without heeding his request, directs him to go to the next vestibule door and get off; where, in accord with such direction, he alights about 200 yards from the station from which the train started; where he sustains bodily injuries in so alighting; where there are no lights in the darkness outside the train; and where he has exercised díte diligence in point of time in accomplishing his purpose on the train and in alighting therefrom — it cannot be said as a matter of law that the negligence of defendant was not the proximate cause of his injuries.</p> <p>3. APPEAL AND ERROR — Verdict—Conclusiveness. Under section 6, article 23 (section 355, Williams’ Ann. Ed.), Constitution, the verdict of the jury for plaintiff, where the facts are as stated in the second paragraph of the syllabus, is conclusive as against the defense of contributory negligence.</p> <p>4. TRIAL — Instructions—Repetition. It is not error to refuse requested instructions substantially embodied in others given the jury by the court.</p> <p>(Syllabus by Thacker, C.)</p>

<p> Error from District Court, Tillman County; J.-T. Johnson, Judge. </p> <p>Action by the Farmers’ Gin Company against the Fire Association of Philadelphia. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Rogers County; Preston S. Davis, Judge. Action for injunction by W. J. Perdue and wife against the United States Fidelity & Guaranty Company and W. E. Sanders, sheriff. Judgment for defendants on motion to dissolve temporary injunction, and plaintiffs bring error.

<p> Error from District Court, Atoka County; Robert M. Rainey, Judge. </p> <p>Action by Tom Hope and others against W. D. Roberts and others. From an order sustaining a motion to strike from the files a petition to vacate and set aside a default judgment, and to grant a new trial, defendants bring error.</p>

<p>CABBIEBS — Destruction of Property on Side Track — Liability. A special car in which a theatrical troupe was traveling, eatihg, and sleeping was hauled to Teeumseh by a railway company, and left on a siding at the request of the owner. The owner and the railway company intended for it to remain at Teeumseh two days, and for it to be used by the owner and the troupe as a boarding place while they gave performances, after whieh it was intended for the railway company to haul it to the next stopping place. It was destroyed by fire a few hours after it had reached Tecumseh. After the ear was set at a point designated by the owner, it was removed without his permission to a point where it was destroyed by fire. Held: (1) That the railway company was not responsible for the car as a common carrier after it was set out. (2) That the company did not, by moving the car, become responsible as a carrier.</p> <p>(Syllabus by Bosser, C,),</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Pearl Woods against O. W. Connally, G. W. Scales, and another. Judgment for plaintiff, and the defendants named bring error.

<p>LIMITATION OF ACTIONS — Computation of Time — Nonresidence— Corporations. The general policy of the state to require nonresident corporations to become resident persons, by a compliance with section 43, art. 9, of the Constitution, sec. 260, Williams' Ann. Ed., in order that the state may regulate and control same, in intrastate matters, and in order that all intrastate controversies between such corporations and citizens of the state, whatever the amount involved may be, shall be determined under the laws of the state and adjudicated-by the courts of the state, is paramount to a contingent statute authorizing service of process on local agents, where the corporations have refused to comply with the law. And when such corporations refuse to submit themselves to the law, and persist in doing business within the state in violation of such state policy, they cannot avail themselves of the benefits of a statute of limitations, enacted for the exclusive ' benefit of resident citizens.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. INSURANCE — Avoidance for Misrepresentations — Statements in Application. Statements in an application for life insurance are representations only, and not warranties, where the application is not incorporated in the policy nor made a part of it by reference or otherwise, although in the application the insured warrants that his answers and statements therein are true.</p> <p>2. SAME — -Materiality. Representations and statements in an application for life insurance, not strictly true, will not avoid the policy issued upon the application, unless they are material and substantially untrue, where they do not amount to warranties.</p> <p>3. SAME — Health of Insured. The fact that an applicant for life insurance is temporarily indisposed at the time of making the application will not avoid the policy, if the illness is not of a character to permanently affect his health, or render him more susceptible to the attack of disease, although he represents in the application that he is in good health at the time.</p> <p>4. SAME. A temporary indisposition at the time a policy of life insurance is delivered, not likely to iDermanently impair the health or render the person more susceptible to the attack of disease, will not avoid a policy of life insurance, though it is agreed in the application, not a part of the policy, that the policy shall not take effect unless delivered while the applicant is in good health.</p> <p>5. SAME — Medical Attendance. In the Indian Territory prior to statehood, the fact that the insured had consulted several physicians within five years before the policy was written would not avoid the policy, provided the consultation was with reference to slight and temporary ailments, although the application contained a statement that the insured had only consulted one physician in the preceding five years.</p> <p>On Rehearing.</p> <p>6. INSURANCE- — -Construction of Policy — Application as Part of Policy. References in a life insurance policy to the application therefor in terms as follows: “Occupation: This policy is free from any restrictions as to military or naval service, and, as to other occupations of the insured, it is free from any restriction after one year from its date, as set forth in the provisions of the application indorsed hereon or attached hereto. Suicide: The company shall not be liable hereunder in the event of the insured’s death by his own act, whether sane or insane, during the period of one year after the issuance of this policy, as set forth in the provisions of the application indorsed hereon or attached hereto”- — do not make the application a part of the policy, so as to render the statements in the application warranties rather than mere representations.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from District Court, Washington County; T. L. Brown, Judge. </p> <p>Action by Howard Weber against Theodore N. Barnsdall and the Coon Creek Oil & Gas Company, and cross-action by the Coon Creek Oil & Gas 'Company against Theodore N. Barnsdall. Judgment for defendant, Theodore N. Barnsdall, and plaintiff, Howard Weber, and the defendant, the Coon Creek Oil & Gas Company, bring error.</p>

<p>Action by the First National Bank of Anadarko against Joe Conley and the National Bank of Anadarko. Judgment for plaintiff, and the defendant bank brings error.</p>

<p>1. TEMPORARY JUDGES — Fees. It is not necessary in this ease to consider the constitutionality of -section 3 of the legislative act approved March 19, 1910 (section 1832, Rev. Laws 1910).</p> <p>2. JUDGES — Compensation — Liability of County — Pro Tempore County Judge. The clause in section 3 of the legislative act approved March 19, 1910 (section 1832, Rev. Laws 1910), which says: “And in no event shall the county be liable for more than one-half such costs” — does not impose upon a county the affirmative liability to pay costs to a pro tempore county judge.</p> <p>3. SAME — “County Officer’ ’ — Pro Tempore County Judge. A person agreed upon, or elected as a pro tempore judge of the county court in a given .case, in compliance with law, is, for the time being and for the purposes of that ease, a-“county officer.”</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Jefferson County; Prank M. Bailey, Judge. </p> <p>Action by J. S. Mullen against Frank Campbell and A. A. Spring. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from County Court, Coal County; R. H. Wells, Judge. </p> <p>Action by J. A. Jackson and another against W. N. Moore. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. TRIAL — Demurrer to Evidence — Effect. A demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn from the evidence, and upon a demurrer to the evidence the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him, reasonably tends to prove.</p> <p>2. NEGLIGENCE — Trial—Evidence—Demurrer — Sufficiency of Evidence. In an action for injuries caused by negligence, the court should not take the case from the jury, except where the facts are such that all reasonable men must draw the same conclusion from them.</p> <p>3. SAME — Contributory Negligence — Question for Jury. In an action for injury caused by negligence, where the defense of contributory negligence is interposed, it is error for the court to take the ease from the jury, where there is any competent testimony, considered in the light most favorable to plaintiff, which reasonably tends to show a primary negligence.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>1. NEGLIGENCE • — ■ Definition — Instructions. An instruction that “negligence may be described in a general way as the absence of ordinary care according to circumstances, or, in other words, a failure to exercise such care as the circumstances demand, by doing what there is a duty to leave undone, or failing to do what there is a duty to do,” and which fails to define ordinary care, is defective in that it leaves it to the jury to say what the circumstances demand and does not inform them that the measure of defendant's duty is what a reasonable person of ordinary prudence would have considered necessary under the eircumstancés.</p> <p>2. TRIAL — Instructions. Where the evidence is sharply conflicting, instructions should be accurate.</p> <p>3. NEGLIGENCE — -“Contributory Negligence.” Contributory negligence is the want of ordinary care upon the part of the person injured by the negligence of another which, combining and concurring with the negligence of the defendant, proximately contributes to the injury.</p> <p>(Syllabus by Bosser, C.)</p>

<p>1. PLEADING — Construction—Demurrer — Answer. Under sections 5625 and 5626, Comp. Laws 1909 (Rev. Laws 1910, sees. 4735, 4736), the only pleadings allowed are: The plaintiff’s petition, the defendant’s answer or demurrer thereto, plaintiff’s reply or demurrer to the answer, and defendant’s demurrer to plaintiff’s reply; and, where a defendant attacks the plaintiff’s petition by a pleading indorsed, “Defendant’s plea in the nature of a plea in abatement,” such pleading, if sustained at all, must be treated either as a demurrer or as an answer.</p> <p>2. SAME — Demurrer—When Proper. Under section 5629, Comp. Laws 1909 (Rev. Laws 1910, see. 4740), the question of plaintiff’s legal capacity to sue, or question of defective parties, or any of the questions enumerated in said section, can be raised by demurrer only when the defects appear on the face of the petition.</p> <p>3. SAME — Judgment on Pleadings. Where plaintiff’s petition states a cause of action, it is error to render judgment on the pleadings in favor of defendant, unless the answer constitutes a complete defense to plaintiff’s cause of action.</p> <p>4. PARENT AND CHILD — Right to Earnings — Relinquishment. Under article 1, c. 78, Comp. Laws 1909, sec. 4899 (Rev. Laws 1910, sec. 4368), the father of a legitimate unmarried child is entitled to its custody, services, and earnings, but may relinquish same to the child; and, under section 4903, Id. (Rev. Laws 1910, sec. 4372), for abuse of parental authority, the minor may be freed from the parent’s dominion by a civil action in the district court.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. CHATTEL MORTGAGES — Description of Property — Sufficiency. M. had a contract to purchase 100 head of cattle from K., to be taken out of a larger herd belonging to K., all of the same description. On the 5th of September he mortgaged plaintiff 50 head described by the same brand as all of K.'s herd, and the next day, which was as soon as it could be done under the circumstances, received from K. 100 head. Immediately, and as part of the same transaction, he delivered, to O. 50 of the 100 so received and kept 50 in his possession. Héld:</p> <p>(1) That the mortgage was good as a mortgage of the 50 received and kept by him, and was not void for uncertainty.</p> <p>(2) That it was not a mortgage of an undistinguished portion of a larger herd, but of 50 head which he was in the act of separating from the remainder of the cattle.</p> <p>(3) That .it was a mortgage of property of which he was in the act of taking possession, and not of property to be afterward acquired.</p> <p>2. SAME. A description of property in a chattel mortgage sufficient to put a person upon inquiry, which pursued will enable him to ascertain the property to be included, is good.</p> <p>3. SAME. A mortgage which describes cattle by brand, and states that they are in possession of the mortgagor on a certain quarter section of land, and after the mortgagor has no other property of said description in his possession, is sufficient ■ to put a subsequent mortgagee on notice, though the cattle are not kept on the quarter section mentioned, but on another section not more than a mile and half distant.</p> <p>4. SAME — Detention of Mortgaged Property — Measure of Damages. The measure of damages for the detention of cattle of which the plaintiff is entitled to the possession by virtue of a chattel mortgage to secure a debt is interest on the value of the cattle during the period of their detention, where they do not exceed in value the amount of the debt.</p> <p>5. APPEAL AND ERROR — Harmless Error — Assessment of Damages. Where the jury assess the value of the property claimed by virtue of a chattel mortgage, but the question of damages is not submitted to them, and they do not assess interest thereon by way of damages, and the date from which interest should be assessed clearly appears from uneontradieted evidence, it is not reversible error for the court to compute interest from said date and add it to the value as found and render judgment for the whole amount.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Kay County; W. M. Boivles, Judge. Action by E. P. Blake and another against Maude Willett, George R. Willett, and another. Judgment for plaintiffs, and the defendants named bring error.

<p>INSURANCE — Beneficiary Certificate — Construction. Where a beneficiary certificate of a fraternal insurance order was conditioned that if the member holding it should be convicted of a felony, or should be expelled from, the order, “or become so far intemperate from the use of intoxicating liquors as to produce delirium tremens, or habitually use opiates, cocaine, chloral, or other narcotic or poison, or should die in consequence of a duel, or from the direct result of the drinking of intoxicating liquors, * * * this certificate shall be null and void and of no effect, and all money which shall have been paid, and all rights and benefits which may have accrued on account of this certificate, shall be absolutely forfeited without notice or service”; and where there was evidence tending to show that the deceased had had delirium tremens after he was insured, but prior to the illness from which he died, it was error to instruct the jury, in an action on said certificate, that before they could find for the defendant they must find that the death of the insured directly resulted from the use of intoxicating liquor.</p> <p>(Syllabus by Rosser, C.)</p>

<p>• ]frror from District Court, Logan County; A. H. Huston, Judge.</p> <p>Action by Awbrey & Semple against the Ft. Smith & Western Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by Birtanna Rice (nee Tolliver) against J..A. Anderson. Judgment for defendant, and plaintiff brings error. .</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Charles Kimsey against J. E. Ledbetter to contest an election. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Craig County; John J. Shea., Assigned Judge. </p> <p>Action by Etta Lenahan against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Oklahoma County; A. N. Munden, Judge. </p> <p>Action by J. L. McKean against Oklahoma City. From a judgment for plaintiff, defendant brings error.</p>

<p>1. PLEADING- — Conclusiveness of Allegations on Pleader. In an action by a skipper to recover damages of a railroad company, arising out of the injury and loss to an interstate shipment of live stock, where plaintiff asks and obtains leave of court to amend kis petition by charging that the defendant executed and issued bills of lading to the shipper for such shipments and that plaintiff is the lawful holder thereof, it cannot afterwards be said that the shipment was made under an oral contract, notwithstanding a subsequent equivocal allegation in the reply filed, charging that the bill of lading was executed after the shipments had been loaded and that said shipping contracts were executed as a receipt and memorandum and to entitle plaintiff to return transportation.</p> <p>2. CARRIERS — Liability for Loss of Goods — Interstate Shipment— Connecting Carriers. A liability for some default in its common-law duty as a common carrier and not a liability as an insurer is what is imposed by the Carmack Amendment of June 29, 1906, e. 3591, see. 7, 34 St. at L. 593 (U. S. Comp. Stat. Supp. 1911, p. 1307), to Act Feb. 4, 1887, c. 104, sec. 20, 24 St. at L. 386, under which a carrier, receiving property for interstate transportation, is required to issue a bill of lading therefor and is made liable to the holder for "any loss, damage, or injury to such property, caused by it” or by any connecting carrier to whom the property may be delivered.</p> <p>3. SAME — Carmack Amendment — Demurrer to Answer. A stipulation in a shipping contract that the carrier does not undertake to transport live stoek within any specific time nor deliver at any particular hour nor in season for any particular market, or that the carrier shall not be responsible for any delay caused by storm, failure of machinery or ears, or from obstructions of track from any canse, or any injury caused by fire from any cause whatever, where set up as a defense in an action by the shipper against the carrier for damages on account of delay, loss, or injury to shipment, not being forbidden by the provisions of the Carmack Amendment of June 29, 1906, c. 3591, sec. 7, 34 St. at L. 593 (IJ. S. Comp. Stat. Supp. 1911, p. 1307), to Act Feb. 4, 1887, e. 104, see. 20, 24 St. at L. 386, prohibiting exemptions from liability imposed by that act, does not on its face attempt to cover losses caused by negligence or misconduct of the carrier; hence such defense is not subject to demurrer.</p> <p>4. SAME — Limitation of Liability — Negligence — Evidence on the Trial. If, however, on the trial it should appear that, notwithstanding said stipulation, the failure to reach a particular market or to deliver at a particular time was occasioned by the negligence or acts of omission on the part of the carrier, such carrier would be liable regardless of the provisions of the contract.</p> <p>5. SAME — Operation and Effect. A carrier, though not bound, under the terms of a shipping contract, to transport live stock within any specified time nor deliver the same at destination at any particular hour or for any particular market, must transport the stock with all convenient dispatch and with such suitable and sufficient means as it is 'its duty to provide for its business; that is to say, in a reasonable time.</p> <p>6. COMMERCE — Acte of Congress as Superseding State Statute. On account of the passage of Act Oong. June 29, 1906, c. 3591, '34 St. at L. 584 (IT. S. Comp. Stat. Supp. 1911, p. 1284), the state under its police power has ceased to have the authority to pass acts relative to contracts made by carriers pertaining to interstate shipments, and section 9 of article 23 (section 358, Williams' Ann. Ed.) of the Constitution of this state applies only to intrastate shipment (following Adams Express Co. v. Croninger, 226 IJ. S. 491, 33 Sup. Ct. 148, 57 L. Ed. -).</p> <p>7. CAEEIEES — Interstate Shipments — Limitation of Liability. As to interstate shipments, the common-law liability of the carrier for the safe carriage of property may be limited by a special contract with the shipper, where such contract, being supported by a . consideration, is reasonable and fairly entered into by the shipper and does not attempt to cover losses caused by the negligence or misconduct of the carrier.</p> <p>8. SAME — Carriage of Live Stock. Under the federal law, which is controlling upon the court in determining questions of liability properly arising out of interstate shipments, a provision in a livestock contract or bill of lading to the effect that, as a condition precedent to a recovery for any damages for delay, loss, or injury to live stoek covered by the contract, the shipper will give notice in writing of the claim therefor to some general officer, or the nearest station agent, or to the agent at destination, or some general officer of the delivering line, before said stock is removed from the point of shipment or the place of destination, and before such stock is mingled with other stock, such notice to be served within one day after the delivery of such stock at destination, was valid. St. Louis & S. F. E. Co. v. Ladd, 33 Okla. 160, 124 Pac. 461.</p> <p>9. SAME. The foregoing provisions, covering damages for delay, includes a loss sustained by a decline in the market.</p> <p>10. EVIDENCE — -Entries in Books of Account- — Preliminary Proof. Entries in books of account may be admitted in evidence, ■where it is made to appear by the oath of the person who made the entries that such entries are correct and were made at or near the time of .the transaction to which they relate or upon proof of the handwriting of the person who made the entries, in ease of his death or absence from the county.</p> <p>(Syllabus by Sharp, C.)</p>

<p>Error from District Court, Osage County; R. H. Hudson, Judge.</p> <p>Action by Martha Leahy against the Indian Territory Illuminating Oil Company to recover oil and gas royalties. Judgment for defendant, and plaintiff brings error.</p>

<p>1. PARTNERSHIP — Partnership Debts — Liability of Retiring Partner. Where one partner sells his interest in the partnership property to the other, with the agreement that the continuing partner shall assume and pay all the partnership debts, and the sale is made with full knowledge, agreement, and consent of the creditors of said partnership, the retiring partner, as a matter of law, ipso facto, becomes surety only for such debts, and if the creditors, having such knowledge of such agreement, consent thereto and . permit the continuing partner to dissipate, or negligently lose, or dispose of, the partnership property, upon which they have a lien, the surety is discharged to the extent that he may be prejudiced thereby.</p> <p>2. PRINCIPAL AND SURETY — Release of Surety. Where a creditor of a partnership, having in his hands any securities or means of satisfying his debt, relinquishes or loses it by his willful acts or' through his negligence, the surety will be discharged; the surety being released by any act of the creditor which deprives him of his right of subrogation.</p> <p>3. INSTRUCTIONS APPROVED. Various instructions examined and held, to correctly state the law under the faets of this case.</p> <p>4. REQUESTED INSTRUCTIONS DISAPPROVED. Instructions examined and held to be erroneous under the prevailing theory of the ease.</p> <p>5. APPEAL AND ERROR — Reference—Statutory Provisions — Discretion. The granting of an order directing the reference of a case is within the sound, discretion of the trial court, and will not be inquired into here, unless it affirmatively appears that there was a gross abuse of discretion.</p> <p>6. APPEAL AND ERROR — Review—Verdict. A general verdict on conflicting evidence presumptively includes a finding of all the faets neeessary to establish the prevailing party’s claim.</p> <p>7. PARTNERSHIP — Actions — Attachment — Grounds — Nonresident Partner. Rev. Laws 1910, sec. 4812, authorizing an attachment where one of several defendants is a nonresident, does not authorize an attachment on the individual property of a nonresident partner for a partnership debt.</p> <p>8. CHATTEL MORTGAGES — Release—Attachment. An attachment of mortgaged chattels by the holder of the mortgage thereon destroys the mortgage lien.</p> <p>(Syllabus by Robertson, C.)</p>

<p>Error from District Court,, Muskogee County; Chas. Bagg, Judge.</p> <p>Action by Marie Kimpel against the Oklahoma Fire Insuf’ance Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; John J. Carney, Judge. Action by Charles Zeimann against D. A. Bennett, worthy president, and others. Judgment for defendants, and plaintiff brings error.

<p>1. PARENT AND CHILD — Custody of Child — Transfer. One parent cannot give away or exclusively intrust the custody of a legitimate minor child to another against the wishes or without the consent of the other parent.</p> <p>2. SAME — Custody and Earnings of Child — Transfer of Right. The father of a legitimate unmarried minor child is entitled to its custody, service, and earnings; but he cannot transfer such custody or service to any other person, except the mother, without her. written consent, unless she has deserted him, or is living separate from him by agreement, or is dead.</p> <p>3. SAME — Discretion of Court. The mere fact that a child is happy and contented where he has been placed, and even shows a greater present affection for his great-aunt than for his own father, does not warrant a judge in refusing to recognize the rights of the father to the care and custody of the child. No reason has been adduced in this case for ignoring the father's rights other than the supposed happiness of the child, arising out of the situation. A judge has some discretion over the subject of the care and custody of the children; but it has to be exercised on more solid and substantial grounds than those which were advanced in this case.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Error from County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action in justice of the peace court by Alice P. Sloniker against James Cullen and others. Judgment was rendered for plaintiff, and from an order of the county court dismissing the petition in error filed therein by defendants, defendants bring error.</p>

<p>Error from County Court„ Haskell County; A. L. Beckett, Judge.</p> <p>Action by B. F. Bridges against the First State Bank of Keota. From a judgment for plaintiff, defendant brings error.</p>

<p> Error from County Court, Stephens County; W. H. Admire, Judge. </p> <p>Action by L. P. Gamble against Chilion Riley and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. RAILROADS— Fires — Presumption of Negligence. Proof that property has been destroyed by sparks emitted by a passing locomotive creates a presumption of negligence on the part of the railroad company or its employees either in the construction or handling of the locomotive or in failing to keep it in proper repair.</p> <p>2. SAME — Question for Jury. Where it clearly appears that a fire was started on the right of way of a railroad by a passing locomotive, which extended to and destroyed adjoining property, and the company, on the trial of an action against it, produced testimony, which was not directly contradicted, tending to show that the locomotive was properly constructed, equipped, inspected, and operated, held, that it was the province of the jury to determine whether the presumption of negligence, created by the starting of the fire, was overcome, since the jury had the right to weigh the testimony and to determine whether the witnesses for the company were credible (following St. L., I. M. & S. By. Co. v. Mpxlin, 33 Okla. 510, 128 Pae. 108, MeCullen v. Chicago & N. W. By. Co., 101 Fed. 66, 41 C. C. A. 365, 49 L. E. A. 642, and Great Northern By. Co. v. Coats, 115 Fed. 452, 53 C. C. A. 382).</p> <p>3. EVIDENCE — Opinions—Question Calling for Conclusion. Objection to testimony examined, and held properly sustained.</p> <p>4. EVIDENCE — Value. Testimony of witness relative to value of property destroyed examined, and held competent.</p> <p>(Syllabus by Eobertson,- 0.)</p>

<p> Error from County Court, Rogers County; H. Tom Right, Judge. </p> <p>Action by Gus Winsley against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings terror.</p>

Error from District Court, Major County; John E. Curran, Special Judge. Action by Ed. Ahsmuhs against E. J. Bowyer, as principal, and others, as sureties on the official bond of E. J. Bowyer, formerly clerk of the district court of Major county. From a judgment sustaining separate demurrers to plaintiff’s petition, he brings error.

<p>1. PUBLIC LANDS — Exemption. The exemption from liability for debts, provided for by section 2296, Bev. St. U. S. (U. S. Oomp. St. 1901, p. 1398), no longer applies to lands after final proof has been made, and receiver's final receipt issued therefor.</p> <p>2. SAME. The provision of said section 2296, Bev. St. IT. S. (IT. S. Oomp. St. 1901, p. 1398), which refers to the issuance of patent, has reference to that period of time when the patent ought to be issued, and not to the mere clerical act of issuing it.</p> <p>(Syllabus by Bobertson, 0.)</p>

<p> Error from County Court, Coal County; R. H. Wells, Judge. </p> <p>Action in replevin by Louis Gray against A. P. Davis. Judgment for plaintiff, and defendant brings error.</p>

Brror from District Court, Washington County; R. H. Hudson, Judge. Action by McCall Brothers, copartners, against Farley & Skinner, copartners, and another. From a judgment sustaining a demurrer to plaintiff’s evidence, plaintiff brings error.

<p>Error from County Court, Okfuskee County; W. A. Huser, Judge.</p> <p>Action by the Citizens’ State Bank against Berry Jones. From a judgment for plaintiff, defendant brings error.</p>

<p>1. SALES — Delivery—Carriers. Ordinarily, a delivery of merchandise to a carrier is a delivery to the consignee, unless there be an agreement to the contrary, or circumstances showing the intention of the 'parties to be otherwise.</p> <p>2. INTOXICATING LIQUORS — Sales—Recovery of Price. Where plaintiff sells defendant intoxicating liquors, with the evident knowledge that such liquors would be resold contrary to law, the contract is against public policy, and no recovery can be hacl thereon.</p> <p>3. SAME. If the seller of liquor in another state actively aids in the evasion of the prohibition laws of this state, into which liquor is shipped, the courts will not sustain an action for the recovery of the price thereof.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. DIVORCE — Appeal. That part of section 4971, Rev. Laws 1910, requiring that a party desiring to appeal from a judgment of the district court granting a divorce must, within ten days after such judgment is rendered, file a written notice in the office of the clerk of such court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment, and requiring, further, that the proceedings in error be commenced within four months from the date of the decree appealed from, and not thereafter, applies only where it is sought to appeal from a judgment granting a divorce, and not where the appeal is prosecuted from an order awarding alimony or making a division of property in divorce proceedings.</p> <p>2. HUSBAND AND WIFE — Permanent Alimony — Defense — Prior Adjudication. Where, in a suit for alimony, brought by the wife under authority of section 4975, Eev. Laws 1910, the court awards to her the right to occupy and cultivate a certain one-half of the husband’s homestead, and where, thereafter, the wife brought suit for divorce and alimony or division of property, the former decree cannot be pleaded in bar of plaintiff’s rights to recover permanent alimony, or to have the homestead divided.</p> <p>3. SAME — Separate Maintenance. Section 4975, Eev. Laws 1910, provides a remedy to the wife whereby the husband may be compelled to discharge his marital duty to support and make provision for her needs. It contemplates the continuance, rather than the dissolution, of the marriage ties, and makes provision for the enforcement of the attendant obligation of support during the period of liability and delinquency.</p> <p>4. SAME. Ordinarily a decree for alimony, where no divorce is sought, contemplates the present needs of the wife alone, while, where a divorce is sought, the annulment of the marriage relation is brought about, and the future support of the wife considered and determined.</p> <p>(Syllabus by Sharp, 0.)</p>

Brror form County Court, Grant County; J. W. Bird, Judge. Action by James McComb and another, partners as McComb Bros., against E. A. Watt. Judgment for defendant on motion to discharge attachment, and plaintiffs bring error.

<p>1. TELEGRAPHS AND TELEPHONES — Incorrect Transmission of Message — Damages Recoverable. L. Brothers, real estate agents, wired W., the owner of real estate, for his best sale terms on same; W. replied as follows: "$10,000.00, net, one-half down, balance 8 per cent, annually,” etc. The telegraph company in the transmission of the message omitted the word "net” therefrom. L. Brothers on receipt of the telegram sold the property to E., and endeavored to collect their commission from W. During the negotiations, but prior to the consummation of the sale, the omission was discovered. Having made a price to the purchaser, L. Brothers could not refuse to complete the deal, while W., having named a "net” price, was not liable. Held, under the facts the telegraph company was liable in damages to the sendees for the actual value of their services up to" the time they discovered the omission of the word from the telegram.</p> <p>2. SAME — Notice. In order to render the telegraph company liable for damages in such ease, it is not necessary that it have notice of the details of the transaction mentioned in the telegram, or of the particular damage likely to follow from an improper transmission or delivery of a message. It is sufficient if the damages claimed are such as might reasonably be expected to result from the circumstances.</p> <p>3. SAME — Action for Damages — Evidence. When a telegraph company fails to properly and correctly transmit a message, the proof of that fact is prima facie evidence of its negligence.</p> <p>4. SAME — Nature, Such an action, by the sendee against the telegraph company, is one sounding in tort, and is not one for breach of contract.</p> <p>5. SAME — Measure of Damages. The measure of damages in such case is the actual damage which the sendee-suffers up to the time of notice of the omission of the word from the telegram.</p> <p>6. TRIAL — Instructions—Pleading and Proof. Instructions examined, and held erroneous.</p> <p>(Syllabus by Roberts on, O.)</p>

<p>1. MINES AND MINERALS — Oil Wells — Drilling Contract — Construction. A written contract for drilling oil -wells provided that the driller should drill to a depth of 850 feet, unless sooner stopped by the owner, and that, should it be necessary and possible to drill said wells 'deeper than 850 feet, the driller so undertook, the owner to pay therefor at a fixed price per foot, to such a depth as was deemed satisfactory to it, or to water. A further - provision of said contract, under the heading ‘ ‘ Payment, ’ ’ provided that all money should be due and payable on said drilling contract when each well was turned over to and accepted by the owner, less such sums as might have been advanced under another clause of the contract. One well was drilled to a depth of 863 feet, when a controversy over the payment arose. Neither oil nor gas had been struck, and the owner insisted upon the driller going down a greater depth, which was necessary if the prospect was to be continued. It does not appear that it was impossible to do further drilling. Payment being refused, the driller removed its rig, and brought suit to recover for the drilling done and other items claimed to be due. The court charged the jury that if they found the plaintiff had drilled a well to the depth of 850 feet, said well, under the terms of the contract, was completed, and plaintiff was entitled to recover both for drilling and reaming. Held, an erroneous construction of the contract.</p> <p>2. CONTRACTS — Construed as a Whole. The intention of the parties must be deducted from the entire agreement, and not from any part or parts of it, because, where a contract has several stipulations, it is plain that the parties agreed that their intention was not expressed by any single part or stipulation of it, but by every part and provision in it, considered together, and so construed as to be consistent with every other part.</p> <p>3. MINES AND MINERALS — Oil Wells — Breach of Drilling Contract. An instruction which concluded by telling the jury that defendant would not be entitled to recover damages on its counterclaim, unless the jury found that certain charges, presented by the driller to the owner for reaming a well, were fraudulent, wicked, wrongful, and not made in good faith, is erroneous and constitutes reversible error.</p> <p>4. APPEAL AND ERROR — Assignment of Error — Exclusion of Evidence. In order that this court may consider assignments of error relating to the exclusion of evidence, there must be a showing in the record as to what the excluded evidence would have been, before the court can say that there was reversible error in the ruling.</p> <p>(Syllabus by Sharp, G.)</p>

<p> ■ Error from District Court, Wagoner County; Robert M. Rainey, Assigned Judge. </p> <p>Action by Charles C. Hulquist against C. D. Scherer. Judgment for plaintiff, and defendant brings error.</p>

Brror from District Court, Murray County; R. McMillan, Judge. Action by the St. Louis & San Francisco Railroad Company against J. C. Lindsey, as County Treasurer, and- another to enjoin the collection of certain school district taxes. From an order denying the injunction, plaintiff brings error.

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by J. C. Rumbaugh against Annie M. Rumbaugh. Judgment for plaintiff, and defendant brings error.</p>

<p>1. FORCIBLE ENTRY AND DETAINER — Nature of Aetion — Title and Boundaries. The action of forcible entry and detainer is ■ purely a possessory action, and the question of title or boundaries cannot properly arise or be tried in such a proceeding.</p> <p>2. JUSTICES OF THE PEACE — Appeal—Jurisdiction—Transfer of Cause — Dismissal. Where an action of forcible entry and detainer is properly before a county court on appeal from a justice court, it is error for the county court to permit an intervener, over the objection of the parties to the action of forcible entry and detainer, to file a plea which puts in issue the title to real estate.</p> <p>And where, in sixeh case, an intervener 'is permitted to file such plea, and the county court, for lack of jurisdiction to try such issue, transfers the whole case to the district court, it is not error for the district court to dismiss sueh cause.</p> <p>3. JUDGMENT — Enforcement—Injunction. A court of chancery in proper cases has power to enjoin the enforcement of a void judgment, but the rule is that in no case will a court of equity afford relief when there is a plain adequate remedy at law. And where the enforcement of an alleged void judgment of a county court is sought to be enjoined by the district court, and it appears that the plaintiff had an adequate and specific remedy under the statute by motion to vacate sucb order or by appeal to the Supreme Court, and that he had not availed himself if such remedy at law, and had not been unavoidably deprived of such remedy, it 'it not error for a court of equity to deny the injunction.</p> <p>(Syllabus by Harrison, C.)</p>

<p> Error from County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action in Justice’s Court by W. L. Childers against Isaac Fleetwood. From an order of the County Court dismissing plaintiff’s appeal and an order refusing to reinstate the cause, plaintiff brings error.</p>

Error from Superior Court, Custer County; I. W. Lawter, Judge. Action by Anna Oland and another against George M. Malson and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Murray County; R. McMillan, J%idge. Action by R. W. Stubblefield against J. M. Vale. A demurrer to the answer was sustained, and defendant brings error.

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by L. Eppstein- and another, copartners, against P. H. Bigsby and others. Judgment for plaintiffs, and defendants petition for a new trial. Petition denied, and defendants bring error.

<p>Error from County Court, Jefferson County; G. M. Bond, Judge.</p> <p>Action by S. P. Goodman against H. Kennedy. Judgment for plaintiff, and defendant brings error.</p>

<p> Brror from District Court, McClain County; R. McMillan, Judge. </p> <p>Action between Lee Harris and George W. White. From a judgment in the court below Lee Harris brings error.</p>

<p> Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Action by J. F. Legg against T. J. Engle and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. BILLS AND NOTES — Indorsement—Presumption. In the absence of proof to the contrary, tbe presumption is that an undated indorsement, transferring a negotiable instrument, was made prior to tbe maturity of tbe instrument.</p> <p>2. APPEAL AND ERROR — Verdict—Evidence. Inferences of fact are to be deduced by tbe jury whenever there is evidence from which an existence of facts sufficient to support a verdict may be inferred. But a verdict which is altogether unsupported by evidence, or against the uneontradieted evidence and every legitimate inference deducible therefrom, will not be upheld.</p> <p>3. BILLS AND NOTES — Negotiable Instruments — Defenses. The general rule may be said to be that, when a person executes a negotiable instrument fair on its face with nothing to indicate ' defects, possible defenses or equities in his favor, he does so with the knowledge that it will pass current in the market, and may fall into the hands of an innoeent purchaser. The maker takes this risk; and if it does so pass in the regular course of business, before maturity for value, into the hands of a person who takes it in good faith without knowledge of defects, imperfections, or defenses that may be urged against its payment, the maker is liable to such innocent holder, no matter what defenses he might have as between himself and the original payee.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Two actions, one by Morris Loewenstein against B. H. Powell, and the other by Isaac Loewenstein against William F. Bernell and another, in which Morris Loewenstein intervenes. From the judgments, the Loewensteins bring error.

<p> Error from County Court, Pawnee County; Fred S. Lis cum, Judge. </p> <p>Action by C. Friedman against the First National Bank of Cleveland. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Technical Error — Verdict. Plaintiff in error has no right to complain of an error of the trial court which is in no wise prejudicial to his interests. Nor does the fact that the error would have required a reversal, had it been urged by his antagonist, change the rule.</p> <p>2. BROKERS — Actions for Commissions — Sufficiency of Evidence. Evidence considered in the opinion and held sufficient.</p> <p>3. INSTRUCTIONS APPROVED. The instructions were substantially correct and fairly presented the issues.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>1. BROKERS — Liability to Purchaser — Return of Money — Liability to Principal. H. & J., claiming to act as agents for S., made a written contract with N. to sell him certain lands, alleged to belong to S., and received from N. $100 of the purchase price. It developed that S. was not the owner of all the lands embraced in the contract and had given H. & J. no authority to claim that he was such owner, nor to sell the lands agreed to be sold. These facts were at once communicated by S. to both N. and H. & J. Held that, under the situation presented, II. & J. were liable to N. for a return of the money, notwithstanding their claim of having acted as agents, and N.’s knowledge thereof, because their action was without valid authority, and they were not answerable to their alleged principal for the money.</p> <p>2. VENDOR AND PURCHASER — Contract of Sale — Right to Rescind — Deficiency in Quantity. When a person enters into a writ'ten contract to buy certain definitely described lands for a definite price for the entire area, he is under no legal obligation to accept a materially less quantity of land than that agreed to be sold him.</p> <p>3. BROKERS — Acts of Agent — Liability of Principal to Purchaser. Where brokers, without authority from their principal, contracted to sell more land than the principal owned and the principal promptly repudiated the contract and received no part of such money, he was not liable to the purchaser for purchase money received by the brokers.</p> <p>4. SET-OFF AND COUNTERCLAIM — Right of Action of Defendant —Money Paid. In a purchaser’s action against real estate brokers for purchase money paid for land which proved deficient in quantity, the brokers were not entitled to offset a sum paid by them to an occupant of the premises in order to place themselves in position to deliver possession to plaintiff, where such payment was made, not for plaintiff’s benefit, but to secure the profit they expected to make on the transaction.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Hughes County; Malcolm B. Rosser, Assigned Judge. Action by Nellie Porter, by Johnson E. Tiger, as her guardian and next friend, against Ollie A. Wilson and others. Judgment for defendants, and plaintiff brings error.

<p>1. CORPORATIONS — Issuance of Stock — Limitation. A corporation whose capital is limited by its charter, either in a'mount or number of shares, cannot issue valid certificates in excess of the limit thus prescribed. Section 1238, Rev. Laws 1910.</p> <p>2. SAME — Overissue of Stock — Validity.- Certificates of stock issued in violation of the statute are wholly valueless and void, without regard to the intent of the parties to the overissue.</p> <p>3. SAME — Contracts—Ratification. Ratification in its correct sense is impossible equally of an illegal and a void contract; henee the acceptance of advancements on dividends on spurious stock cannot be considered as a ratification of a contract for the purchase of such stock, since the contract is illegal and void in its inception and incapable of ratification.</p> <p>4. SAME — Validity. A contract of a corporation to issue stock in excess of the amount authorized by its charter is not voidable only but wholly void; it cannot be ratified by either party; no performance on either side can givfe the unlawful contract any validity or be the foundation of any right of action based upon it.</p> <p>5.’ CANCELLATION OE INSTRUMENTS —Complaint—“Offer to Restore” — Sufficiency. In an action for rescission and cancellation of a deed obtained by fraud and without consideration, an allegation in the petition that the plaintiff be charged with so-called dividends received by him and credited with the value of the reasonable use and occupation of the lands conveyed, where the deed was executed in pursuance of a void contract, is a sufficient “offer to restore” within the meaning of section 986, Rev. Laws 1910.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. STATUTES — Repeal. A statute revising the whole subject-matter of former acts, containing in the main the provisions of the former acts, and evidently intended as a substitute for them, although it contains no express words to that effect, operates to repeal the former acts.</p> <p>2. JUDGMENT — Liens—Repeal of Statutes. The act entitled "An act regulating liens of judgments rendered in probate courts,” passed March 7, 1893, found in the addenda to the Statutes of Oklahoma, 1893, p. 1191, was repealed by substitution by section 432 of the Civil Procedure .Act (St. Okla. 1893, sec. 4310), adopted by the same legislative assembly, and by the amendment to said section (section 5941, Comp. Laws 1909 [Rev. Laws 1910, sec. 5148]).</p> <p>3. EXECUTION — Right to Issue — Transcript of Judgment. Where a transcript of a judgment of a probate (county) court has been filed in the district court of the same county, the clerk of the latter court, prior to the adoption of the Revised Laws of 1910, was without authority to issue an execution thereon.</p> <p>4. SAME. A statute, requiring that execution shall only issue from the court in which the judgment was rendered, does not authorize the clerk of a district court to issue execution on a judgment of the county court, an attested copy of the journal entry of which latter judgment is filed with the district court, as provided by section 5941, Comp. Laws 1909 (Bev. Laws 1910, sec. 5148.)</p> <p>5. SAME — Sheriff’s Sale — Validity—Effect. Prior to the adoption of the Bevised Laws of 1910, a sheriff’s sale, made under authority of an execution issued out of the district court to the sheriff of another county, on a transcript of a judgment of a county court, is a nullity, and conveys no title, but instead casts a cloud upon the title to the lands attempted to be sold.</p> <p>6. SAME — Eight to Issue. Unless otherwise provided by statute, an execution can issue only from the court in which the judgment was rendered.</p> <p>(Syllabus by Sharp, C.)</p>

<p>Error from District Court, Oklahoma County; John J. Carney, Judge.</p> <p>Action by Gilbert »A. Nichols against the St. Louis & San Erancisco Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Woods County; R. H. Loofbourrotv, Judge. Application of T. E. Wattenbarger and others for the probate of the will of W. PI. Wattenbarger. From a judgment of the County Court admitting the will to probate, affirmed by the District Court, J. F. Wattenbarger and others bring error.

Error from District Court, Bryan County; Jas. R. Armstrong, Judge. Action by N. B. McClure and another, against the Shawnee Mutual Fire Insurance Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Rogers County; T. L. Brown, Judge. </p> <p>Action by Franklin P. Mitchell against James E. Bell. Judgment for plaintiff, and defendant brings error.</p>

<p> Frror from District Cowrt, Rogers County; T. L. Brown-, Judge. </p> <p>Action by Reece B. Mitchell, by his next friend, Franklin R. Mitchell, against Foster 'Baltz (nee Stone). ' Judgment for plaintiff, and defendant brings error.</p>

<p>ATTORNEY AND CLIENT — Duties—Purchase at Foreclosure. No person who occupies a position of trust or confidence in relation to a proposed sale can, by talcing advantage of his situation, acquire the property at the sale on his own account, to the injury of the person confiding in him. This .rule proceeds on the principle that no person'will be permitted to purchase an interest where he has a duty to perform inconsistent with the character of the purchase. But where an attorney buys land from the vendee of same at a foreclosure sale, the mere fact that at some previous date he had been attorney for the original owner of the land does not preclude the attorney from purchasing the land and holding same in his own right after the relation of attorney and client has terminated, and in the absence of any fraud’, or the use or abuse of information derived while the relation existed, and where the attorney had no duty to perform inconsistent with the purchase.</p> <p>(Syllabus by Brewer, C.)</p>

Error from Superior Court, Muskogee County; Parrar L. McCain, Judge. Action by Abe Bloch and another, doing business as the Ohio Pottery & Glass Company, against I. O. Stuart. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Coal County; Robt. 'M. Rainey, Judge. </p> <p>Action by L. E. Baken, guardian of Edna and Robert Jacobs,, against Carl Y. Semple. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Subsequent Appeal — Law of the Case. Where, on a former appeal, the rights of the parties under a contract sued upon, and under the issues made by the pleadings and facts disclosed by the record, have been determined in a former opinion, such determination becomes the law of the ease, and on second appeal involving the same questions this court will be controlled by the conclusions reached in the former opinion.</p> <p>2. REFORMATION OF INSTRUMENTS — Pleading — Subsequent. Parol Agreement — Admission of Evidence. Where an action isi brought for reformation and specific performance of a written contract, and also for compensation for improvements made under a. subsequent and distinct parol agreement which formed no part of' the consideration in the written agreement, then; in order for plaintiff to recover upon the parol agreement, the terms and conditions of same should be alleged in such language as to enable-the court to form some conclusions as to what the agreement was,, in order to justify the admission of testimony in reference thereto.</p> <p>3. SAME. Where recovery is sought upon a verbal agreement and. the petition fails to state what the agreement was in sufficient language to enable the court to determine what the rights or obligations of the parties were under such agreement, it is error to admit any testimony as to what the agreement was.</p> <p>(Syllabus by Harrison, 0.)</p>

<p> Error from District Court, Oklahoma County; </p> <p> Ge'o. W. Clark, Judge. </p> <p>Action by Mattie Inez Strain against J. B. Rolater. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Grady County; Frank M. Bailey, Judge. </p> <p>Action by Sampson Cobb against C. M. Joiner and others. Judgment for plaintiff, and defendants .bring error.</p>

<p>COURTS — County Court — Jurisdiction—Title to Real Estate — Pleading Conclusion. In an action in a county court on a plain promissory note, where the petition clearly states a cause of action, and the defendant answers that such note is for the balance of the purchase price of real estate, title to which is defective, the court will not be ousted of jurisdiction on the ground that title to real' estate is involved, by the mere' statement of a conclusion, without any definite statement of facts or offering of evidence which would make the title to real estate a material issue in the case.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. APPEAL AND ERROR — Briefs—Disposition of Cause. Where no briefs are filed by defendant in error and the errors presented in plaintiff in error's brief are reasonably borne out by the record, the contention as to such errors will be sustained.</p> <p>2. PLEADING — Judgment on Pleadings. Where an answer contains a statement of facts constituting a defense to plaintiff's cause of action and plaintiff files a verified reply alleging facts which put in issue the existence of the facts constituting the answer, it is error to render judgment on the pleadings.</p> <p>(Syllabus by Harrison, 0.)</p>

<p> Error from Superior Court, Oklahoma County; Charles H. Garrett, Special Judge. </p> <p>Action by Bessie Johnson against A. H. Moore. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by W. R. Robison against the Homeland Realty Company. There was a directed verdict for plaintiff, and defendant brings 'error.

<p>APPEAL AND ERROR — Review—Questions of Pact. Where a ease is tried by the court without the intervention of a jury, upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. INDIANS — Lands—Powers of Natural Guardian. The father of an Indian minor allottee has no right, merely because he is its . natural guardian, to make any contract concerning his minor child’s land.</p> <p>2. LANDLORD AND TENANT — Holding Over — Notice to Quit. Where defendant occupied and paid rent for a minor’s land one year, under a contract made with such minor’s father, but remained on the land another year, without consent, or the payment of rent to the father, such defendant was merely holding over -wrongfully, and was only entitled to the statutory notice to vacate required in such eases.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>1. BAIL — Action on Forfeited Bond — Negativing Defense. In order to state a cause of action on a forfeited bail bond, it is not necessary to allege in the petition that the sum written in the bond has not been paid.</p> <p>2. EVIDENCE — Best Evidence — Forfeiture of Bail Bond — Surrender of Principal. In such an action parol evidence to prove a surrender of the principal to the sheriff is inadmissible in support of the claim of discharge by the surety.</p> <p>3. BAIL — Belease of Sureties on Bond. Section 6109 of the Criminal Code (Rev. Laws 1910) prescribes the manner in which a surety may be released from liability on a bail bond, and a strict compliance with the terms of this statute is necessary to effectuate a release.</p> <p>4. BAIL — -Forfeiture — Judgment — Variance From Bond. Section 6110 of the Criminal Code (Rev. Laws 1910) prescribes the steps necessary to be taken declaring a forfeiture on a bail bond, and it is not necessary that the amount of the bond should be found or recited in the order declaring a forfeiture, and if the amount of the bond is recited in the order and it is different from the amount written in the bond, such recital is surplusage, and an objection to the admission of the bond, when offered in evidence in an action on the bond, on the ground of variance, is not well taken, since the variance is immaterial.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. TROVER AND CONVERSION — Evidence—Sufficiency. The evidence sufficiently supports the verdict.</p> <p>2. JUSTICES OP THE PEACE — Attachment—Service by Publication — Sale of Property Attached. A sale of chattels taken under a writ of attachment, where there has been no personal service of summons on the defendant, and no appearance by him in the suit, and the ease is not one allowing service by publication, is void.</p> <p>3. EXECUTION — Wrongful Attachment — Liability of Purchaser at Sale. Corn belonging to plaintiff having been taken and sold under a void judgment and writ of attachment, the purchaser at such sale 'is liable in conversion for the value of the corn, and especially where such purchaser was the plaintiff and moving cause in the void proceedings in which the sale was made.</p> <p>4. TROVER AND CONVERSION — Definition— “Conversion.” “Conversion” is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.</p> <p>5. SAME — -Necessity of Demand. In a suit for the conversion of personal property, where the possession was taken and at the time of suit maintained wrongfully, no demand is necessary before bringing suit. The wrongful taking and conversion is an assertion of ownership.</p> <p>(Syllabus by Brewer, C.)</p>

<p>Error from County Court, Pontotoc County; Conway O. Bart on„ Judge.</p> <p>Action by the First National Bank of Stratford against R. L. Walker. Judgment for defendant, and plaintiff brings error.</p>

<p>1. SEARCHES AND SEIZURES — Liability for Wrongful Search-Probable Cause. The determination of the existence of 1 ‘ probable cause" for the issuance of a search warrant under Rev. Laws 1910, sec. 3615, and the issuance of a warrant under section 3616 of the statutes, are questions for the determination of the judge or magistrate before whom complaint is filed.</p> <p>2. SHERIFFS AND CONSTABLES — Wrongful Search — Writ as Protection to Officer. It is the duty of a ministerial officer to whom a search warrant is directed to execute the "writ as therein commanded, provided the same is issued by an officer having authority to issue it, and it is regular upon its face. Such a writ is a protection to the officer, and he is not liable as a trespasser for executing- the same in an orderly manner.</p> <p>3. SAME — Liability for Executing Search Warrant — Burden of Proof —Instructions. In an action against a deputy sherifE for trespass in executing a search warrant, directed to him, and regular upon its face, and issued by a justice of the peace upon a sworn complaint, it is error to instruct the jury that the burden is upon the defendant to prove that the facts set out in the complaint upon which the warrant was issued are true, even though such officer swore to the complaint.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>1. APPEAL AND ERROR — Continuance—Review—Discretion. The granting or refusing of a motion for a continuance rests largely within the sound judicial discretion of the trial court, and its action in reference thereto will not be disturbed on appeal, except where this discretion has been abused.</p> <p>2. APPEARANCE — What Constitutes — Effect. Where a defendant comes into a ease, even though he has not been properly summoned therein, and alleges and submits to the court for decision non-jurisdictional questions, it is a recognition of the general jurisdiction of the court and operates as a waiver of all irregularities that may have intervened in bringing him into court.</p> <p>(Syllabus by Brewer, C.)</p>

<p>APPEAL AND ERROR, — Dismissal—Pailure to File Brief. Where plaintiff in error fails and neglects to file brief, as required by rule 7 of this court (38 Oída, vi, 95 Pac. vi), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Error from County Court, Comanche County; Jas. H. Wolverton, Judge.</p> <p>Action by the German Stock Eood Company against J. E. Miller. Judgment for the defendant, and plaintiff brings error.</p>

Brror from County Court, Sequoyah County; W. N. Littlejohn, Judge. Action on a statutory bail bond by the State against Frank Hines and others. Judgment for plaintiff, and defendants bring error.

<p>1. MUNICIPAL CORPORATIONS — Liability for Negligence of Contractor. Where a municipal corporation is vested by law with authority to construct a public improvement, and lets the building of such improvement to a contractor, to be by Mm constructed in such manner as is prescribed by the corporation, such contractor becomes, by virtue of such contract, the agent of the corporation, and it will be liable for an injury resulting from the negligence of such contractor in the manner of the construction of such improvements.</p> <p>2. SAME — Defect in Streets — Liability of City. A municipal corporation is charged by law with the duty of at all times keeping its streets and sidewalks in a reasonably safe condition for travel by the public.</p> <p>3. SAME — Delegation of Duty. No municipal corporation by any act of its own can devolve this duty on another so as to relieve itself from liability for an injury resulting from its failure to perform this duty.</p> <p>4. SAME — Liability for Negligence of Contractor. A municipal corporation, by contracting with another to construct an improvement for it, does not and cannot thereby abdicate its control over the streets or public grounds of such corporation, nor thereby exonerate itself from liability for an injury resulting from the negligence of such contractor in the manner of the performance of his contract.</p> <p>5. SAME — Acts of Independent Contractor — Notice to City, If a municipal corporation rightfully causes an improvement to be constructed or other work to be done, whether by an independent contractor or otherwise, it is bound to take notice of the character of the work, and its condition, whether safe or dangerous, and is bound to take notice of the condition, whether safe or dangerous, of its streets and grounds as affected by the prosecution or performance of such improvement or work.</p> <p>6. SAME — Claim for Damages — Waiver of Informality. Mrs. N., having a claim against the city of H., caused it to be presented to, and fled with the city clerk by her husband, acting as her agent. The claim, on the day the same was filed, was not supported by affidavit as required by statute. On the next day, and before the claim had been acted upon by the city council, Mr. 1ST., the husband and agent, presented to the city clerk of said city an affidavit in support thereof as required by statute. The claim was disallowed by the city council and suit brought thereon in the district court. No objection was made by the city to the form of the claim on account of the absence of the affidavit until the trial in the district court, wherein the city objected to the introduction of the same in evidence, and moved for judgment for costs, on the ground that no claim had ever been presented as required by statute. Held, under the facts and circumstances of the case, the failure to attach the affidavit to the claim was an informality which was waived by the city, and no objection to the form of the affidavit having been made by the city prior to the filing of the suit, the same will be deemed substantial compliance with the requirements of the statute and no error was committed by the court in refusing to tax the costs against the plaintiff.</p> <p>7. NEGLIGENCE — Contributory Negligence — Instructions. The defense of contributory negligence, when well pleaded, if the same is supported by any evidence, entitles the pleader to an instruction 'thereon by the court, defining the term and submitting the issues properly to the jury for its determination, and a failure to do so constitutes reversible error.</p> <p>(Syllabus by Eobertson, C.)</p>

<p>1. MASTER AND SERVANT — Refusal to Orive Service Letter — Damages Recoverable. AVhere plaintiff, a freight train conductor, at the time he was discharged from such service of defendant for failure to prevent, by watching, the burglary of a car in his charge, has passed the age limit at and after which employment is not obtainable with most railroad companies; where, within three weeks thereafter, in response to plaintiff’s request to be reinstated with pay for all time lost, defendant offers to reinstate him without such pay, and renews such offer nearly three months after such discharge; where plaintiff declines such offer, and makes no proof of effort to find employment which his age would not prevent, or where there is a vacancy, and only made one application for employment before demanding, more than eight months after his discharge, a service letter showing cause of said discharge (under section 4056, Comp. Laws 1909 [Rev. Laws 1910, see. 3775]), and another application a few days before he commenced this action, which was about a month after demanding such letter; where a service letter, in conformity with contract antedating enactment of said section 4056, supra, and omitting statement of cause of his discharge, is by defendant issued to plaintiff immediately after such discharge, which letter plaintiff retains, and, until said demand under said section 4056, supra, without objection thereto; where defendant, without oppression, fraud, or malice, refuses to give such second letter; and where there is no evidence that such second letter would have been of actual value or benefit to plaintiff — not more than nominal damages, if any, could be recovered by plaintiff against defendant because of such refusal.</p> <p>2. SAME — Right to Service Letter. Where a discharged employee of a railroad company immediately after discharge receives, and, without objection thereto, retains for more than eight months a service letter, in conformity with his contract with the company, whereupon he demands another service letter, conforming to the provisions of the statute cited in the preceding paragraph, and the company offers to comply with his demand upon condition that he first surrender the contract letter, which he refuses to do, but offers to surrender it upon condition that the statutory letter be first given him, defendant may rightfully refuse to issue . such statutory letter.</p> <p>3. SAME — Contract—Statute. Neither the contract nor the statute, to which reference is made in the foregoing paragraph, eontem- ' plates that a discharged conductor shall, at the same time, be entitled to have more than one service letter on account of a single discharge.</p> <p>(Syllabus by Thacker, C.)</p>

<p>1. SALES — Warranties—Rights Acquired — Assignment. A right of action in original purchaser and debtor against original seller, who is the creditor, does not run with chattels purchased in contracting the debt in the first instance to a second purchaser in succession, who assumes payment of the debt upon release of original debtor, in absence of such intent of the parties to such novation and of any assignment of such right by original to substituted debtor.</p> <p>2. SAME — Assignment of Warranty to Second Purchaser — 'Questions for Jury. Where, in respect to failure of consideration, it cannot be said, as matter of law, that the parties to a novation (by which plaintiff releases N. from liability upon notes in consideration of defendant’s assumption to pay the same, the defendant having acquired by purchase from N. the chattel for which N., as original purchaser, executed such notes to plaintiff and having assumed to pay said notes in consideration, as between himself and N. only, of his said acquisition) so intended nor that N. assigned his right to the defendant, it was error for the court to instruct the jury, as matter of law, that defendant was subrogated to all the rights of N. as against plaintiff in respect to the latter’s implied warranty, if any, of the quality of the chattel to N.</p> <p>(Syllabus by Thacker, 0.)</p>

<p> Error from District Court, Dewey County; G. A. Brown, Judge. </p> <p>Action by Sam Gault against I. C. Thurmond. Judgment for defendant, and plaintiff brings error.</p>

<p>1. NEW TRIAL — Grounds—Statute. The causes for which a new trial shall be granted are specified in section 4196, St. Olda. 1893 (section 5033, Bev. Laws 1910); and these causes are exclusive.</p> <p>2. . SAME — Waiver. A cause for a new trial is waived unless it be stated in a motion therefor.</p> <p>3. SAME — Excessive Damages — Sufficiency of Motion. Excessive damages, appearing to have been given under the influence of passion or prejudice, is a cause for new trial, but not unless so great as per se to indicate such influence of passion or prejudice; and a motion for a new trial on the ground of excessive damages, which does not charge that same appears to have been given under the influence of passion or prejudice, does not comply with the requirements of sections 4196, 4199, St. Olda. 1893 (sections 5033, 5036, Bev. Laws 1910), and is insufficient.</p> <p>4. CARRIERS — Passenger—Cold Waiting Room — Liability. A railway company, failing to provide its eight by twelve feet, in floor space, separate waiting room for negroes with the comfort of proper heat on a cold day, or with any heat or means thereof whatever other than the inadequate heat of a red hot stove in a remote part of its agent’s office room, which is ten by twelve feet in floor space and separated by lattice work from such wait- ■ ing room, is liable to a negro woman for damages because of pain and suffering from cold endured by her during her wait therein for fifteen or twenty minutes before and more than an hour after its train, upon which she was to become a passenger, was due to arrive.</p> <p>5. SAME — Injury to Passenger — Proximate Cause — Contributory Negligence. The declination of a negro woman, upon invitation given by defendant railway company’s station agent at some undisclosed point of time during her wait, to leave its separate waiting room for negroes, which was not properly heated, nor otherwise than by the stove mentioned in paragraph 4 of this syllabus, and, x^assing through its waiting room for white persons, to sit by a fire in his office on a cold day, cannot, as a matter of law, be said to be the sole pDroximate cause of her pain or suffering from cold during her wait in such waiting room for negroes.</p> <p>6. APPEAL AND ERROR — Contributory Negligence — Question for Jury. Under section 6, art 2.3 (section 355, Williams' Ann. Ed.), Constitution of Oklahoma, the defense of contributory negligence or of assumption of risk is, in all cases whatsoever, a question of fact, and must, at all times, be left to the jury; and the verdict of the jury is conclusive upon such question.</p> <p>7. SAME — Presentation for Review — Cross-Petition in Error. This court w-ill not consider whether, on the trial of a cause, there was error in a ruling against defendant in error, not involved in any error assigned by plaintiff in error, in the absence of a cross-petition in error.</p> <p>(a)’ Necessity of motion for new trial by cross-petitioner to entitle him to assign such error is suggested, but not decided.</p> <p>(Syllabus by Thacker, C.)</p>

<p>1. ESCROWS — Vendor and Purchaser — Wrongful Delivery of Deed —Effect. Where the grantor retains the actual possession oí the land, although such possession is not notice of his adverse claim of ownership, his escrow deed is invalid to transfer any right, in absence of performance of condition; and the wrongful yielding of possession of such deed to grantee by depositary transfers no title, even though .the claimant thereunder be an innocent purchaser for value.</p> <p>2. VENDOR AND PURCHASER — Innocent Purchaser — Notice1 of Defect — Inadequacy of Price. Where the grantor in an escrow deed retains the actual possession of the land, and his grantee, after wrongfully obtaining possession of such deed, without performance of the escrow condition, sells the land at a very inadequate price to an otherwise innocent purchaser for value, such inadequacy of price is evidence of notice of adverse claim of ownership by the grantor in such escrow deed.</p> <p>3. CONTINUANCE — Application—Sufficiency. Application for continuance because of absence of witness, without showing that applicant believes to be true the material facts he believes the witness would prove, is insufficient under section 4207, St. Okla. 1893 (section 5045, Rev. Laws 1910).</p> <p>4. SAME — Grounds—Diligence. In showing diligence to procure evidence, failure to take deposition of witness not amenable to nor served with subpoena is not excused by the promise of such witness to appear and' give evidence at the trial, neither the reliance upon such promise nor the breach thereof being blamable to the adverse party; and it is not an abuse of judicial discretion to deny application for continuance based upon absence of such witness.</p> <p>(Syllabus by Thacker, 0.)</p>

<p>1. EVIDENCE — Opinions—Safe Place to Work. It frequently happens that a witness is qualified to testify as an expert because of his experience and observation with reference to the matter under investigation. (a) Evidence of witnesses examined, and held competent under the foregoing 'rule.</p> <p>2. TRIAL — Repetition of Instructions. It is not error to refuse a requested instruction, where it has already been given in substance by the court in another instruction.</p> <p>3. MASTER AND SERVANT — Safe Place to Work — Delegation of Duty. It is the duty of the master to furnish his servant with a. reasonably safe place to work and with reasonably safe tools, and appliances with which to work, taking into consideration the nature and character of the work to be performed, and the dangers therefrom., and this duty cannot be delegated by him so as to relieve him of liability for injuries resulting from its violation.</p> <p>4. SAME — Injuries to Mine Employee — Instructions. Various instructions examined, and held not erroneous under the facts of this case.</p> <p>(Syllabus by Robertson, 0.)</p>

<p>1. APPEAL AND ERROR — Verdict—Evidence. Where there is any evidence in the record reasonably tending to support the verdict of the jury, the same will not be disturbed on appeal.</p> <p>2. SAME. In order to determine whether there is any evidence in the record reasonably tending to support the verdict, it is the duty of the court to treat all the evidence offered by plaintiff as true and treat all the evidence offered by the defendant in conflict as having been rejected, and when all the evidence supporting the verdict, taken together and given all the presumptions and deductions of which it is reasonably susceptible, is sufficient, the verdict will be allowed to stand, notwithstanding the countervailing evidence in the record would have been sufficient to sustain a verdict ■ for the other party.</p> <p>3. PRINCIPAL AND AGENT — Agency—Ratification—Liability of Principal. One who voluntarily accepts the proceeds of an act done by one assuming, though without authority, to be his agent, ratifies the act, and takes it as his own with all its burdens, as well as all its benefits.</p> <p>4. TRIAL — Instruction—Cure of Error. Where an instruction given may misstate the law, yet if, when taken with the other instructions, it is apparent that the jury were not misled, it will not constitute reversible error.</p> <p>5. APPEAL AND ERROR — Harmless Error. The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.</p> <p>6. SAME — Instruction. Instructions examined, and held open to criticism, but not sufficient to warrant reversad of judgment.</p> <p>(Syllabus by Robertson, C.)</p>

Error from County Courts Atoka County; Baxter Taylor, Judge. Action between R. E. L. Buckholts and J. W. Farrell, brought before a Justice of the Peace. The County Court dismissed an appeal from an order of the Justice overruling a motion to quash a writ of execution, and Buckholts brings error.

Error from Superior Court, 'Pottazvatomie County; George C. Abernathy, Judge. Action by the Western Terra Cotta Company against the Board of Education of the City of Shawnee, the Warren-Smith Hardware Company and others. Erom a judgment in favor of defendant Board of Education, both plaintiff and defendant, the Warren-Smith Hardware Company, bring error.

Error from District Court, Washington County; John J. Shea, Judge. Action by Edward Coody against D. R. Coody and Chas. O’Keifie. From a judgment sustaining a demurrer to plaintiff’s amended petition, plaintiff brings error.

<p> 'Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by the City of Shawnee against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Brror from County Court, Seminole County; T. S. Cobb, Judge. Action of forcible entry and unlawful detainer by Thomas J. Bruner, guardian of Douglas Bruner, against C. M. Avants. Judgment for plaintiff, and defendant brings error.

<p> Error from District Cowt, Seminole County; Tom D. McKeown, Judge. </p> <p>Action by Nathaniel E. Work against Martin T. Earrow. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pontotoc County; Robt. M. Rainey, Judge. Action by J. M. Dickinson and others, partners, etc., against the Little Crater Company, Charles B. Sipes, and others. Judgment for plaintiffs. From an order refusing to vacate, defendants bring error.

Error from Superior Court, Muskogee County; Parrar L. McCain, Judge. Action by Walton Trust Company against the J. I. Case Threshing Machine Company and others. Judgment for plaintiff, and the threshing machine company and another bring error.

Error from Superior Court, Muskogee County; Parrar L. McCain, Judge. Action by P. H. Stein and Felix Winkler against the Oklahoma Trust Company and others. Judgment for plaintiffs, and defendant Trust Company brings error.

<p>1. DIVORCE — Grounds—Extreme Cruelty — Evidence. In an action for divorce on ground of extreme cruelty by means of unkind and harsh treatment, the intent and ability of the accused spouse to inflict such cruelty and the susceptibility of the other spouse to such cruelty, as well as whether such other spouse is of a provocative disposition, are material points of inquiry; and in such case the "trial court may take into consideration the demeanor and appearance of the parties at the trial.</p> <p>2. SAME — Appeal—Scope of Review — Evidence of Cruelty. . Where the state of the evidence adduced is such that the demeanor and appearance of the parties at the trial might be in effect determinative of the question of the sufficiency of such evidence to prove extreme cruelty, the decree of the trial court will not be disturbed.</p> <p>(Syllabus by Thacker, C.)</p>

<p>APPEAL AND ERROR — Failure to Serve and. File Briefs — Dismissal. Where plaintiff in error failed 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, C.)</p>

Error from Superior Court, Garfield, County; Dan Huett, Judge. Action by J. H. Fellows against Ollie L. Worrell and Squire Worrell, to recover damages for breach of contract. Judgment for plaintiff, and defendants bring error.

Error from District Court, Jackson County; Frank Mathews, Judge. Action of Sanford Gay and others against Reid Wallace and others for injunction. From an order of reinstatement after dismissal, defendants bring error.

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by the State National Bank against Robert Mee and others to recover money judgment. Judgment for defendants on demurrer to petition, and plaintiff brings error.

<p> Error from County Court, Kingfisher County; John M. Graham, Judge. </p> <p>Action by the City of Kingfisher against R. G. Hill. Judgment for plaintiff, and defendant brings error.</p>

Brror from County Court, Bilis County; A. L. Squires, Judge. Action by J. M. Yount against E. PI. Thompson, to recover a money judgment on a promissory note. Judgment for plaintiff, and defendant brings error.

<p> Error from County Court, Creek County; Josiah G. Davis, Judge. </p> <p>Action by Robert Jones against the First State Bank of Bristow. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Harmon County; C. W. King, Judge. </p> <p>Action by the E. G. Rail Grain Company against the First State Bank of McQueen, formerly the First State Bank of Eooney. Judgment for defendant on demurrer, and plaintiff brings error.</p>

<p>1. MTJNIjCIPAIi CORPORATIONS —. Streets — Defective Electric Wiring — Liability for Personal Injuries. A municipal corporation is liable for an injury, caused by a dangerous obstruction in the street which results from a disarranged or defective system of electrical wiring, maintained'lawfully in the streets by others than the municipal corporation itself, only where it had, or by the exercise of reasonable care would have obtained, notice of the particular defective and dangerous condition which produced the injury, with reasonable opportunity to remedy the dangerous condition before the injury occurred.</p> <p>2. SAME — Duty to Inspect — Personal Injuries. A municipal corporation is not required to inspect the wiring, insulation, apparatus, and appliances of an electric light plant, operating in the city under a franchise, to discover defects therein. If, however, a municipality permits a third party to maintain in the streets a system of electrical wiring, a portion of which extends into a sidewalk, constituting an obstruction thereof, and which creates a condition so inherently dangerous as to amount to a nuisance— one that constitutes a peril and menace to persons using the streets — and it has knowledge of such condition, and of the danger, or the- circumstances are such that knowledge will be implied, then it may be liable to a person injured because of such dangerous obstruction.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from County Court„ Canadian County; W. A. Mauer, Judge. </p> <p>Action by the Fifth Avenue Library Society against D. B. Phillips. Judgment for defendant, and plaintiff brings error.</p>