Volume 46 — Oklahoma Reports

<p>1. PLEADING — Allegations of Appointment — Verified Denial. Where a bill of particulars alleges that the plaintiff was duly and legally employed in the services of the city of Oklahoma City in the capacity of “secretary to the mayor,” and such appointment . and authority is not denied by affidavit, the allegations of such appointment and authority will be taken as true.</p> <p>2. MUNiIGIPiAL CORPORATIONS — Appointee—Right to Continue in Office — Where it is shown that, at the time of the adoption of the charter for the city of Oklahoma City, the plaintiff was an officer, appointee, or employee of such city, other than mayor or member of the city council, such officer, appointee, or employee is by section 9, art. 1, of the charter of said city, authorized to continue in office until his successor is chosen and qualified, or until his services are dispensed with by an order of the commissioners.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> JUrror from District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>Action by Lucy Riegal against T. P. Pool, and others. Judgment for plaintiff, and defendants Pool bring error.</p>

<p>APPEAL AND ERROR — Verdict—Evidence—instructions. Where there is competent evidence reasonably tending to support the verdict, and the court in its instructions fairly states the law arising upon the issues joined, the judgment appealed from will be affirmed.</p> <p>(Syllabus by Galbraith, C.)</p>

JSn'or from District Court, Coal County; Robt. M. Rainey, Judge. Action by Frank Baker against the Oklahoma Central Railway Company, a. corporation, and others.- Judgment for plaintiff and defendant Asa E. Ramsey, as receiver of the Oklahoma Central Railway Companj', a corporation, brings error.

<p>1. FRAUDS, STATUTE OF — -Contract to -Convey Land — Validity. A contract for conveyance of land, valid under the statute of frauds, may be made by means of letters and telegrams signed by the parties to be charged.</p> <p>2. SPECIFIC PERFORMANCE — Land Sale Contract. In an action for specific performance of an alleged contract for the sale of realty, it is not the function of a court of equity to enlarge upon negotiations between, or complete a contract for, parties who have not themselves agreed fully upon its terms, but only to enforce rights arising out of a valid, existing agreement.</p> <p>3. SPECIAL PERFORMANCE — Contract to Sell Realty — Petition— Sufficiency. Petition examined and held not to, state a cause of action.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from District Court, Okfuskee Countyj John Garuthers, Judge. Action by Washington Perry, by his next friend, against W. W. Diamond and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Tillman County; Frank Matthews, Judge. </p> <p>Action ’by the George O. Richardson. Machinery Company, a -corporation, against J. T. Duncan and others. Judgment for defendants, and plaintiff -brings error.</p>

Error from County Court, Pontotoc County; Conway O. Bar lion, Judge. Action by R. F. King against the Roff Oil & Cotton Company. Judgment for plaintiff, and defendant tarings error. DEVEREAUX; C. This was an action brought originally in the county court of Pontotoc county by the defendant in error to recover for services rendered in attending as a physician one of the employees of the Roff Oil & Cotton Company, who was injured while in its' services.

<p>1. F.INcES — Payment of Fine — Stay Bond — Right to Give. The bond provided for in section 6180, Rev. Laws 1910, by which the payment of a fine imposed in a misdemeanor case may be stayed for a period of 30 days, may be given in a misdemeanor case tried in the county court. The operation of the statute is not confined to cases in justice of the peace courts.</p> <p>2. COUNTIES — District and Prosecuting Attorneys — Judgment for County — Power to Compromise — County Attorney. The county attorney, without special authority of the board of county commissioners -of the county, is not authorized to accept from a part of the joint debtors, in a judgment in which the county is the beneficiary, part payment of such judgment, with the agreement that such payment so paid is to discharge the joint debtors so paying from liability on account of said entire judgment; and if such payment and agreement be made, such payment of a part of such joint judgment and such agreement cannot be placed by other joint judgment debtors in said judgment as payment and discharge of the entire joint judgment.</p> <p>(Syllabus by Collier, C.</p>

<p>INDEMNITY — Bond—Assignment—Right of Action. A, consigned a car of cattle to B., who received and sold same for A and paid him a part on account thereof and agreed to pay the balance, but did not. Later B, paid balance to C, and others, who claimed an interest therein on the execution of an indemnifying bond against liability to A. therefor. A assigned his claim to D., who recovered judgment against B. for the amount thereof. D. assigned said judgment to E. The judgment became final, and E. released same, on consideration of transfer of said bond to D„ who brought suit thereon against C. and others, and recovered judgment for balance of the purchase price of said cattle, with interest. Held, that C. and others were liable for the amount thereof under said bond.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from 1County Court, Grant County; </p> <p> J. W. Bird, Judge. </p> <p>Proceedings by the State, on the complaint of Nelia Thompson, against Lester Cummins. Judgment against defendant, and he brings error.</p>

Error from County Court, Woockoai-d County; Clyde II. Wyarud, Judge. Action by the State, on the relation of O. C. Wybrant, County Attorney of Woodward (County, against Julia C. Sells and another. Judgment for relator, and defendants bring error.

<p>1. CONTRACTS — Exclusive Contract — Validity. An agreement of a retailer to buy a particular line of goods exclusively from a certain manufacturer thereof, for a limited period of time, and confined to a particular locality, in consideration of other covenants therein of' mutual advantage to the parties, and when otherwise unobjectionable under the law, is not invalid.</p> <p>2 CONTRACTS — Restraint of Trade — Validity. A contract between individuals, ‘ the main purpose and effect of which to promote, advance, and increase the business of those making it,, will not be held to be in restraint of trade and commerce merely because its operation might possibly, in some slight or theoretical way, incidentally and indirectly restrict such trade and commerce.</p> <p>3. DAMAGES — Provision for Liquidated Damages — Validity. A contract providing for the recovery of a fixed sum as liquidated damages upon a breach thereof is void to that extent, where,.the ascertainment of the actual damages incurred because of the breach is neither impracticable nor extremely difficult. Section 975, 976, Rev. Laws 1910.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. JUDGMENT — Res Judicata — Rent. In an action for rent, where there is a controversy as to the nature of the tenancy, and in which the contention of the defendant is sustained, a judgment for the plaintiff for the amount due at the time the suit was brought, according to the theory of the defendant and in his favor as to the balance agreed to be paid, because not due, Is not a bar to a subsequent action by the plaintiff against the defendant ,to recover the balance due, after the cause of action accrued therefor.</p> <p>2. JUDGMENT — Res Judicata — Determination. In ascertaining what was determined by a judgment on the question of former adjudication, the inquiry is not limited to the mere formal judgment, but extends to the pleadings, verdict, or findings.</p> <p>3. APPEAL AND 'ERROR — Trial on Agreed Statement — Decision on Appeal. Where a case is tried on an agreed -statement of facts, and is reversed on appeal, by the appellate court, it may direct the trial court to set aside the former judgment and enter the judgment that should have been entered in the first place.</p> <p>(Syllabus by Dudley, C.)</p>

<p>1. PLEADING — Amendment—Effect. The effect of the original pleading is destroyed by the filing- of an amended pleading, which is complete in itself, and does not refer to or adopt the original as a part of it.</p> <p>2. APPEAL AND- ERROR — Assignments of Error — Sufficiency— Rulings on Evidence. Assignment of error should point out the particular testimony admitted or rejected, to which objection is made. Specifications of error will not be considered unless they comply with rule 25 of this court (38 Pac. xi), which is as follows: Where the party complains on account of the admission or rejection of testimony, he shall set out in his brief the full substance of the testimony, to the admission or rejection of which he objects, stating specifically his objection thereto.”</p> <p>2. PRINCIPAL AND' AGENT — Agency—Pleading—Presumption. A general allegation of an authorized agency, not denied under oath, will be presumed to be an agency with such power and authority as is charged in the pleading, and no further proof of the agent’s authority will be required.</p> <p>4. PRINCIPAL AND AGiENT — Delegation of. Authority — iRight. The general rule of law is that an agent has no implied authority to delegate his powers to a clerk or subagent; and persons employed by him as clerk or subagent do not become the agent of the principal, without the principal’s consent; and only upon extreme and unusual exigencies can an agent delegate his authority to a clerk or subagent to transact business for his princpal, which requires special judgment, discretion, and experience, without the consent of the principal.</p> <p>5. NOVATION — What Constitutes. Novation is the substitution, by mutual agreement, of one debtor or of one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished.</p> <p>6. NOVATION — Agreement to Substitution — Necessity—Proof. In order to establish the fact of novation by the substitution of a new debtor, it must be shown by a clear preponderance of the evidence that the three parties agreed to such substitution; that the new debtor assumed and promised to pay the debt of the original debtor; and that the creditor accepted the new debtor and released and discharged the original one.</p> <p>7 PRINCIPAL AND AGENT — Unauthorized Acts of Agent — Ratification — Knowledge. Ratification must be with full knowledge of all facts. In order that a ratification of an unauthorized act, or transaction of any agent 'may be valid and binding, it is essential that the principal have full knowledge, at the time of the ratification, of all the material facts relative to the unauthorized transaction.</p> <p>8. APPEAL AND ERROR — Verdict—.Evidence. Verdict should be set aside when there is no legal evidence to support it. “Where there is any evidence reasonably tending to support the verdict of the jury, it should not be disturbed by the Supreme Court; but, on the other hand, where, after a careful consideration of all the evidence in the case, it is found that there is no legal evidence to sustain the verdict, it is the imperative duty of the court to set it aside.</p> <p>(Syllabus by Robberts, C.)</p>

Error from District Court, Harper County; B. H. Loofbourrow, Judge. Condemnation proceedings by the Board of County Commissioners of the County of Harper against M. T. Day. A demurrer to the petition was sustained, and plaintiff brings error.

<p>APPEAL AND ERROR — Preservation for Review — Dismissal—Evidence. The appeal is dismissed because the errors assigned require an examination of the testimony, and this has not been incorporated in and made a part of the record on appeal.</p> <p>(Syllabus by Galbraith, C.</p>

Error from District Court, Hughes County; John Caruihers, Judge. Suit for divorce 'by Phoebie Wells against Carl Richard Wells. From an order adjudging defendant to be in contempt for refusal to comply with a judgment and order of the court, he brings error.

<p>1- BILLS ^ND NOTES — Accommodation Maker — Liability to Holder In Due Course — Minority of Principal. An accommodation maker of a negotiable promissory note is liable to the “holder in due course,” although the principal may be discharged on account of minority.</p> <p>2. BILLS AND NOTES — ‘Defenses—Holder in Due Course. The defenses that are available between the original parties to a negotiable promissory note cannot be maintained to defeat recovery by the “holder in due course.”</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Emr from District Court, Major County; Jas. B. Cullison, Judge.</p> <p>. Action by W. J. Annear, an infant under the age of 21 years, by Esther E. Annear, his next friend, against D. L. R. Swartz. Judgment for defendant, and plaintiff brings error.</p> <p>The joetition alleges, in substance, that on the 3d day of March, 1911, the defendant carelessly, negligently, and recklessly pointed toward the plaintiff a- loaded shotgun, and so carelessly, negligently, and recklessly handled the gun that he caused the same to be discharged at the plaintiff, by which the plaintiff was wounded in the ankle so severely that it was necessary to amputate the leg. The answer was a general denial. The evidence tends to show that the plaintiff was an employee of the defendant, and on the day of the accident, the two went duck hunting, that there was only one gun, which belonged to the defendant, and this gun had a small hammer, and that the thumb grip was worn, to use the language of the witness, “pretty slick.” After arriving at the point where they expected to find the ducks, the plaintiff and defendant laid down together, about two' or three feet apart, in thin grass about 18 inches high. After remaining for some time ducks flew over them, but too high to shoot, although the defendant cocked the gun and made ready to fire at them. The ducks lighted in a pond some little distance from where the parties were, and the plaintiff suggested to the defendant that they go to this pond, and got up from the ground and started toward the other pond; that in getting up the plaintiff not only stated to the defendant that they had better go to the other pond, but made sufficient noise to have attracted the attention of the defendant, and that when plaintiff got up from the ground and started toward the other pond the defendant was looking at him. After going about five or six feet, and while the defendant was still lying on the ground, plaintiff turned to see why he was not coming, as he had not heard him get up, and just as he turned the gun fired, and the plaintiff was wounded in the ankle so severely as to make an amputation of the foot necessary. This took place in the daytime, and the defendant was looking at the plaintiff when he got up, and that the defendant was looking in his direction at the time the gun exploded. There was also evidence tending to show that the defendant stated that he started to let down the hammer of the gun," and it slipped through his fingers, thus causing the gun to fixe. There was a demurrer to this evidence, which was sustained by the court, and judgment thereon for the defendant, and the plaintiff has brought the case on error to this court.</p>

Error from Superior Court, Pittsburg County; Harry T. Kyle3 Special Judge. Action bjr the American Powder Mills against the Crowder State Bank. Judgment for plaintiff, and defendant brings error. Affirmed.

<p>APPEAL AND ERROR — Finding of Fact — Evidence. Where tne evidence reasonably supports the finding oí the trial court, such finding will not be disturbed on appeal.</p> <p>(Syllabus by Collier, C.)</p>

E fir or from District Court, Noivata County ; T. L. Brown, Judge. Action by Sam F. AYilkinson and another against Jesse B. Thompson and others. Judgment for plaintiffs, and defendants bring error. This was an action to quiet title to a certain tract of land in Nowata county.

Error from Superior Court, Oklahoma County; Edward Dewes OldfieW, Judge. Action by Eva Stutsman and others, against E. E. Lovejoy and others. Judgment for defendants. New trial granted, and defendants bring error.

<p>PROCESS — Service of Summons — Return—Sufficiency. A return, reciting that summons was served on one defendant by delivering to him a true copy thereof, and on another by leaving such a copy at his usual place of residence with a member of his family over 16 years of age, and which is signed, “Barney Davis, Sheriff, by Ben Monroe, Deputy,” meets the requirements of the statute, and is sufficient.</p> <p>(Syllabus 'by Bleakmore, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiff in error has filed no brief, as required by rule 7 of this • court (38 Okla. vi, 137 Pac. ix), the judgment of the trial court will be affirmed.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from Superior Court, Tulsa ‘County. M. A. Breckenridge, Judge. </p> <p>Action by William Epler against W. R. Bolton and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Mayes County; Preston S. Davis, Judge.</p> <p>Action by Patsy Jenkins against Clay Brown and others. Judgment for the defendant named, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Presentation Below — Motion for New Trial. To review errors at the trial, a motion for new trial must have been filed and passed upon by the trial court.</p> <p>2. JUDGMENT — Construction—Obscure Entry — Parties. If the entry of a judgment is so obscure as not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to the entire record. If, with the light thrown upon it by them, its obscurity is dispelled, and its intended signification made apparent, it will be upheld and carried into effect. In case of doubt regarding the signification of a judgment, or any part thereof, the whole record may be examined for the purpose of removing the doubt. One part of the judgment may be modified or explained toy another part; and uncertainties in the judgment may become certain under the light east upon them by the pleadings or other parts of the record. Though the judgment purports to be against the defendants, without naming them, only one of them will be bound, if it appears from the context that only he was meant, or from the return of the service of process that only he was brought within the jurisdiction of the court. On the other hand, though the word “defendant” is written in the body of the judgment, it will be construéd as referring to and including all the defendants named in the caption.</p> <p>3. APPEAL AND ERROR — Parties—Joint Judgment — Defendants— Dismissal. The rule that all persons against whom a joint judgment has been rendered must be made parties to a proceeding in error to reverse such judgment is jurisdictional, and a failure to join any of them either as plaintiffs or defendants will necessitate a dismissal of the case for want of jurisdiction.</p> <p>(Syllabus by Robberts, 'C.)</p>

Error from D'istrict Court, Muskogee County; B. P. De Graff enriad, Judge. In the matter of the guardianship of Lewis Chambers, a minor. Manual Monday was removed as guardian, and Grant Pauley' appointed as his successor, and Manual Monday bring? error.

<p> Error from District Court, Seminole County; Tom D■ McKeown, Judge. </p> <p>Action- by Bessie Phillips against Ií. B. Gooch and others. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Pittsburg, County; W. C. Liedthe, Judge. Injunction .by John Silva against the City Council of the City of McAlester and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, McIntosh County; Preslie B. Cole, Judge. </p> <p>Action by Charles S. Vaughn against J. H. Osborne and others. Judgment for plaintiff, and defendants Charles E. Davis and- others bring error.</p>

<p>BILLS AND NOTES — Pleadings—Judgment on Pleadings — Unverified Answer. In an action upon a promissory note by the payee against the maker thereof, an unverified answer admitting the execution and delivery of the note, but alleging that the payee is not the owner and holder thereof, states no defense, and the payee is entitled to judgment on the pleadings for the amount due on said note.</p> <p>(Syllabus by Dudley, C.)</p>

<p>APPEAL AND ERROR — Affirmance—Failure to File Briefs. Where plaintiff in error has filed no brief, as required 'by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the judgment of the trial court will be affffirmed.</p> <p>(Syllabus by Dudley, C.)</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Brief. Where plaintiff in error has filed no briefs, as required by rule No. 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from District Court, Love County; S. H. Bussell, Jv,dge. </p> <p>Action by W. S. Crews against Bob Johnson and others, composing the School Board of School District No. 2, Love County, and another. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiff in error has filed no brief, as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the judgment of the trial court will be affirmed.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Error from the County Court, Gcwfielct County; Winfield Scott, Judge.</p> <p>Action by Pat Mclnteer against J.-W. Broyles and another. Judgment for defendants, and plaintiff brings error.</p>

Error from >Superior Court, Pittsburg County; W. C. Leidtke, Judge. Action by G. W. Martin against the Chicago, Rock Island & Pacific Railway Company. Verdict for plaintiff, new trial .granted, and plaintiff brings error.

<p>1. APPEAL AND ERRO.R — Brief—Affirmance. Where the brief of plaintiff in error does not contain an abstract or abridgment of the pleadings, proceedings, and facts upon which he relies, and the specifications of error are not separately set forth and numbered, the judgment may be affirmed.</p> <p>2. APPEAL AND ERROR — Presentation for Review — Evidence— Recital in Case-Made. Where consideration of the errors assigned involves an examination of the evidence, and the case-made does not include a proper recital that it contains all the evidence produced at the trial, the question so presented will not be reviewed in the Supreme Court.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. APPEAL AND ERROR — Trial—Discretionary Ruling — Reopening of Case. As a general rule, it is no abuse of discretion for a trial court, after the announcement of rest, to permit the case to be reopened for additional testimony, even though a demurrer to the evidence has been interposed, before the request is made. That is a matter within the sound discretion of the trial court, and will not be interfered with unless there has been an abuse of that discretion.</p> <p>2. TRIAL — Submission of Issues — Evidence. Where the evidence raises an issue of fact, whether clear or obscure, it is the duty of the trial court to submit such issue of fact to the jury for their consideration.</p> <p>3. APPEAL AND ERROR — Judgment—Evidence. Where the instructions fairly state the law and there is any evidence to support the verdict of the jury, on appeal, the judgment will not be disturbed.</p> <p>(Syllabus by Brett, C.)</p>

<p>1. BILLS AND NOTES — Delivery on Condition — Validity. A promissory note may be delivered by tbe maker to the payee upon condition.</p> <p>2. BILLS AND NOTES — Action by Assignee — Defenses Available. Where a promissory note is delivered to a firm of attorneys at law, in compliance with an agreement for the payment of contingent fees for the prosecution of certain lawsuits, and the payees dissolves partnership before, the suits are tried, and one of the payees, without the knowledge or consent of the other, attempts to assign the note to another client, whom the trial court found was not a “holder in due course,” and this finding is supported by the evidence; held that such note is subject to the same defenses in an action by the assignee that would have been available in an action by the original payees.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Eriror. from District Court, Alfalfa County; James W. Steen, Judge. </p> <p>Action by the Bank of Cherokee against S. J. Sneary. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Murray County;■ B. UcMiUan, Judge. Action by N. J. Brooks against John H. Casteel, as administrator of the estate of H. L. Nelson, deceased. Judgment for plaintiff,1 and defendant brings' error.

Error from County Court, Grant County; J. W. B'i/rd, Judge. Action by the Yan Arsdale-Osborne Brokerage Company, a corporation, against J. E. Wilson and another. Judgment for defendants, and plaintiff brings error.

<p>1. BILLS AND NOTES — Actions—-Parties—Holder of Legal Title. An action by a party holding the legal title to a promissory note, notwithstanding there may be parties beneficially interested in said note, is properly brought in the name of the party holding the legal title to such note.</p> <p>2. APPEAL AND ERROR — ‘Findings of Court — Evidence. Where a case 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 Collier, C.)</p>

Error from District Court, ■Seminole County; Tom D. McKeown, Judge. Action by O. P. McConnell against W. A. Davis. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions to dismiss.

Error from District Court, Oklahoma County; W. B. Taylor, Judge. Action by L. E. Patterson and others against J. W. Riley, County Clerk, and another. Judgment for defendants, and plain-' tiffs bring error.

<p> Error from District Court, Mkishogee County; R. P. De Graffenreid, -Judge. </p> <p>Ejectment by Clarence MeGilbray, for the use of Fannie B. Bradley, against E. A. Jackson and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. ABATEMENT AND REVIVAL — Pendency of Another Case— Foreign Garnishment Proceedings. The mere pendency of a garnishment proceeding in another state, where the garnishee has not paid or been condemned to pay anything, is not available as a defense in bar in a suit brought in this state 'by a creditor against his debtor (the garnishee to recover judgment for the indebtedness involved in such foreign garnishment proceeding.</p> <p>2. ACTION — Stay—Pendency of Another Action — Protection Against Double Payment — Garnishment. In such a case, the courts in this state, upon a proper showing by the defendant that the debt in suit has been garnisheed under valid process out of a court of competent jurisdiction in another state, will protect such defendant from the possibility of a double payment, by continuing the proceedings here ex comitate for a sufficient time for the determination of the proceedings in the other state. Or, if the court has allowed the suit to go to judgment, notwithstanding a disclosure of such a situation by the debtor, then it must protect the defendant by suspending execution until defendant has had sufficient time to dispose of the question of his liability in the foreign suit.</p> <p>3. COSTS — Offer to Confess Judgment — Effect. On June 19, 1911, H. sued M., a railway company, in a justice of the peace court of Coal county, for wages past due. M. answered, showing that on May 19, 1911, it had been garnisheed by process out of a Kansas court, in a suit brought there against H., but had not answered, paid anything, or been condemned to pay anything in that court. On appeal to the county court, on November 4, 1911, M. filed an amended answer, setting up the proceedings in the Kansas court, and showing that the suit had been dismissed by the Kansas court on August 26, 1911, and offered to confess judgment for the full amount of the claim of H., provided it be absolved from all costs. The court gave judgment for costs, as well as the debt. IH'eld that, as M. was at least liable for the costs up to the time it answered in the justice court, its demand to go free of all costs was properly denied.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Marshall County; . O. P. Jones, Special Judge. Action by Ida Anoatubby, a minor, by her legal guardian, J. K Warren, against A. C. Pennington. Judgment for defendant, and plaintiff brings error.

<p>APPEAL AND ERROR — Affirmance—Failure to Cite Authorities. Where plaintiff in error appeals from a judgment of $135, based on damages for the value of one mule alleged to have been killed by coming in contact with a live wire belonging to plaintiff in error, and assigns and argues eight assignments of error, most of them relating to the question of negligence in the maintenance of said wire, without the citation of an authority, this court will not brief the case, but will affirm the same for failure to cite authorities, under rule 25 of this court (38 Okla. x. 137 Pac. xi.)</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>LIBEL AND SÍ.ANDER — Punitive Damages — 'Right to Recover — Operation of Statute. The primary intent of section 4961, Rev. Laws 1910, is to fix the minimum amo.unt of the verdict and judgment in an action for libel or slander, and not to authorize a recovery, for exemplary or punitive damages, in the absence of evidence of express malice actuating the publication.</p> <p>(‘Syllabus by Bleakmore, C.)</p>

<p> Error from -Superior Court, Custer County; J. W. Ldwter, Judge. </p> <p>Action 'between the- National Fire Insurance Company, á corporation, and the Hammon Trading Company. -From tbe judgment the Insurance Company brings error.</p>

<p>WITNESSES — Impeachment—Prior Conflicting Statements. Where, in an action for damages in which the testimony is conflicting, plaintiff, soon after the injury complained of, has made a written statement relative to the occurrences, which is inconsistent and in direct conflict with material parts of her testimony at the trial, held, that the proper preliminary questions have been asked, such statement is competent evidence, and its rejection constituted prejudicial error.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Error from District Court, Muskogee County; R. P. De Graff enreid, Judge.</p> <p>Action by Cornelia Watldns and another against William J. Anicker. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Garvin Countyj R. McMillan, Judge. </p> <p>Action by Tamsey A. Clayton and another against J. F. Trimmer, as County Treasurer, and another. Judgment for defendants, and plaintiffs bring error.</p>

Error from Superior Gouirt, Oklahoma County'; Edward Dewes OldfieldJudge. Action by John Eiedler and others against Wm. G. Botts and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Alfalfa County; J. W. Steen, Judge. Action for divorce by John Y. De Yry against Lillian De Yry. Judgment for defendant on her cross-petition, and plaintiff brings error. The plaintiff, in his petition, alleges, as grounds for divorce, abandonment by the defendant, and in her answer the defendant denies the allegations of the petition and files a cross-petition asking for a divorce for herself on the ground of abandonment also.

Error from District Court, Noble County; W. M. Bowles, Judge. Action by A. M. De Bolt aginst the Farmers’ Exchange Bank and others. Judgment for defendants, and plaintiff brings error, and defendants move to dismiss.

Error from District Court, Adair County; John Ii. Pitchford, Judge. Action by the Midland Savings & Loan Company against J. L. Cox and others. Judgment for plaintiff for part of the sum claimed, and plaintiff brings error.

Error from District Court, Ottawa County; Preston 8. Dmis, Judge. Injunction by W. A. Martin against Charles D. Carlisle and others. Judgment for defendants, and plaintiff brings error. This action was begun in the court below by plaintiff in error filing his petition praying for an injunction to prevent the sheriff of Ottawa county from selling under execution a certain tract of land levied upon by him.

TSrror from Superior Court, Grady County; Will 'Linn, Judge. Action by Dorothy Jessie Campbell, a minor, by J. D. Saunders, her legal guardian, against F. P. Henry and others. Judgment for plaintiff and defendants bring error. Case revived in the name of Adrian'Melton, as the administrator of the estate of Dorothy Jessie- Campbell, deceased, and in the name of Sarah Meder, executrix of the estate of Louis Meder, deceased.

Error from County Court, Carter County; M. F. Winfrey, Judge. Action by M. L. Alexander against the American Investment Company, for breach of contract. Judgment for the plaintiff, and defendant brings error.

Error from County Court, Coal Countyj Hon. B. II. Wells, Judge. Action by Joplin Eogers and wife against the O. K. Bus & Baggage Company and others. Judgment for defendants, and plaintiffs bring., error.

<p> Error from District Court, Otta/wa County; Preston 8. Davis, Judge. </p> <p>Action by E. W. Ashton against Charles F. Noble and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Choctaw County; Summers Hardy, Judge. </p> <p>Action 'by Mrs. Mary B. Pratt against Y. Bronangb. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to Make Deposit. Where plaintiff in error fails to make a deposit for costs in compliance with an order of this court, the appeal will be dismissed.</p> <p>(Syllabus by Collier, C.)</p>

Error from Superior Court, OTdahoma County; Echuwrcl Deives Oldfield, Judge. Action between M. E. Owens and another and William Edmonds. From tlie judgment, the parties first- mentioned, bring error.

Error from District Court, Qrady County; J. T. Johnson, Judge. Action between F. P. Henry and others and E. Dowden. From the judgment, the parties first mentioned bring error.

<p>MUNICIPAL CORPORATIONS — Pavement Contractor's Bond — Implied Guaranty — Liability of Obligor. A bond, taken as authorized by Session Laws 1907-08, p. 170 (section 725, Comp. L. 1909), for the maintenance in good condition of a pavement, to be constructed by the principal therein, for the period of five years from the time of its completion, implies an unconditional guaranty of the adequacy of the work and material, done and furnished according to the municipality’s plans and specifications, to endure for such period without need of repairs; and the obligors in such bond are not relieved from liability by the fact that the principal therein, as contractor, fully complied with such plans and specifications in respect to both work and material, and that repairs within that period were necessitated by the inadequacy of such plans and specifications.</p> <p>(Syllabus by Thacker, C.)</p>

Error from District Court, Gicurvin County; B. McMillan, Judge. Suit by Eric C. Beard against the P. B. Collins Investment Company, of Clinton, Okla., a corporation, and others. Judgment for plaintiff, and defendants 'brings error.

<p>Error from District Court, Okmulgee County; Wade S. Stanfield, Judge.</p> <p>Action by Ered W. Tupeker and another against John J. Deaner. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Bryan Countyj A. U. Ferguson, Judge. Action by Earl Allen against A. C. Beshiers. Judgment for plaintiff, and defendant brings error. This was an action for slander, tried in the district court of Bryan county, before Hon. A. H. Ferguson, judge. There was a verdict and judgment in favor of the defendant in error (plaintiff below), and the case is brought to this court by proper proceedings in error.

Error from ■ County Court, MoCurtmn County; E. E. Cochran, Judge. Action by the Bogers’ Milling Company against the Goff, Gamble & Wright Company, a corporation, and others. Judgment for defendants, and plaintiffs brings error.

<p> Error from District Court, Pittsburg County; Preslie> B. Cole, Judge. </p> <p>Action -by R. Sarlls against S. A. Hawk and others. Judgment for defendants, and plaintiff brings error.</p>

<p> En-or from District Court, Muskogee County; B. P. De Craffenried, Judge. </p> <p>Action between Charles W. Reid and John Lorraine De Groot. From the judgment, Reid brings error.</p>

Error from- Superior Court, Músico gee County; Farrar L. McCain, Juáge. Action by Elizabeth Roe against Marshall Roe and another. Judgment for plaintiff, and defendant Charles H. Chandler brings error.

Error from District Court, Canadian Countyj John J. Cwrney, Judge. Actions by the Standard Marine Insurance Company, Limited, of Liverpool, a corporation, against the Traders’ Compress Company, a corporation. Judgment for defendant, and plaintiff brings error.

<p>Error from County Court, Jefferson Countyj B. T. Price, Judge.</p> <p>Action by the Durant National Bank against B. Y. Cummins. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Murray County; R. McMillan, Judge. Action by J. Q. Adams against W. D. Shenners, revived after his death in the name of Margaret Shenners, administratrix of his estate. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Cherokee County; John H. Pitchford, Judge.</p> <p>Action by the Arrow Publishing Company, a corporation, against Cherokee County. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Stephens County; J. T. Johnson, Judge. </p> <p>Action by M. N. Clark against the Chicago, Rock Island & Pacific Railway Company, a corporation. Judgment for plaintiff and defendant brings error.</p>

<p>Error from County Court, Canadian County; W. A. Mourn; Judge.</p> <p>Action by the C. W. Raymond Company against the El Reno Vitrified Brick & Tile Company. Judgment for plaintiff, and defendant brings- error.</p>

<p> Error from District •Court, Muskogee County; R. >C. Allen, Judge. </p> <p>Action by Andrew Hilliard against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Superior Court, Pittsburg County; W. C. IAedike, Judge.</p> <p>Action by W. A. Polk against John C. Beugler and others. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Where plaintiff in error has filed no briefs as required by rule No. 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from District Court, Ellis County; G. A. Brown, Judge. </p> <p>Action by Elmer Miller against Henry Kunert. Judgment (for plaintiff, and defendant brings error.</p>

Error from District Court, Músico gee -County; R. P. De Graffmreid, Judge. Action by Charley Hairel and another against the Muskogee Electric Traction Company, a corporation, and another. Judgment for plaintiffs against the defendant named, and it brings error.

<p>1. Commerce — ’Corporations—Foreign Corporations — "Transacting Business.” Under sections 1335-1338, Rev. Stat. 1910, Ann., prescribing conditions under -which foreign corporations may transact business in this state, by the phrase, “transacting business” is meant the doing or performing of a series of acts which occupies the time, attention, and labor of men for the purpose of livelihood, profit, or pleasure; but the doing of a single act pertaining to a particular business would not .be considered carrying on, transacting, or doing business as contemplated in said sections.</p> <p>2. CORPORATIONS — Foreign Corporations — Sale Contract — “Interstate Commerce” — Transacting Business. A contract, entered into between a resident of this state and a foreign corporation, with its place of business and only office in the city of St. Louis; Mo., in which it is agreed that said corporation for a fixed consideration will sell to a resident of this state 30 machines, to be used or sold in this state by said purchaser, .and if any more such machines are desired by said resident, said company will furnish them delivered f. o. b. St. Louis, Mo., at $12 apiece, is interstate commerce, and not the transaction of such business as would require said corporation to file a copy of its charter and articles of incorporation with the secretary of this state, and otherwise comply with the laws of the state as provided in said statutes; and, in an action between the resident and his assignee involving the validity or value of said contract, it would be immaterial whether the corporation had complied with said sections or not.</p> <p>(Syllabus by Robberts, C.)</p>

Error from District Court, Washington County; B. H. Hudson, Judge. Action ’by. the' City of Bartlesville against R. S. Gilfillan and another, partners as R. S. Gilfillan & Son. Judgment for plaintiff, and defendants bring error.

<p>1. FORCIBLE ENTRY AND DETAINER — Bond—Validity—Adoption of Statute. Section 6396, Comp. Laws 1909, providing' that, in appeals in forcible entry and detainer actions, a bond should be given by the defendant to pay double the value of the use and occupation of the property from the date of the bond until the delivery of the property, was never enrolled and never became the law of Oklahoma until- the adoption of the Revised Laws of 1910, which became effective May 1913 (Rev. Laws 1910, Sec. 5475) ; and a bond given under that section prior to May 1913, was without statutory authority, and cannot be enforced as a statutory obligation.</p> <p>2.- BONDS — Right to Enforce — Separable Conditions. When a bond is given without statutory authority, and contains conditions, some1 of which are legal, and ■ some illegal, some of which are supported by valuable consideration, and some of which are not, and they are separable, the illegal conditions should be disregarded and the legal conditions enforced.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from District Court, McIntosh Countyj Preslie B. Cole, Judge. </p> <p>Action by Grace R. McCrory against Walter Anderson and •another. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Dismissal—Deposit for Costs — Noncompliance With Order. Under the rules of this court, when the deposit for costs is exhausted, and the plaintiff in error neglects to comply with an order of the court requiring an additional deposit within the time fixed by the court, and a reasonable time thereafter, the appeal will be dismissed.</p> <p>('Syllabus by Roberts, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Where plaintiff in error fails and neglects to file brief, as reguired hy rule 7 of this court (38 Oída, vi, 137 ac. ix), the appeal will be dismissed for want of prosecution.</p>

<p>FAILURE TO FILE BRIEF. Syllabus the same as in No. 4314, W. H. S. Brown v. J. P. Thompson, ante.</p>

<p>FAILURE TO FILE BRIEF. 'Syllabus the same as in No. 4314, W. H. S. Brown v. J. P. Thompson, ante.</p>

<p> Error from District Court, CheroTcee Countyj John H. Pitchford, Judge. </p> <p>Action between the Rounds & Porter Lumber Company and J. P. Thompson, Treasurer. Prom the judgment, the Lumber Company brings error.</p>

<p> Error from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>Action between Sharp Bros, and J. P. Thompson, Treasurer. From the judgment, Sharp Bros, brings error:</p>

<p> En-or from- .District 'Court, Cherokee County; John E. Pitchford, Judge. </p> <p>Action between Lorena S. Fleming and J. P. Thompson, Treasurer. From the judgment, Fleming brings error..</p>

<p> Error from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>[ Action between E. H. Fleming and J. P. Thompson, Treasurer. From the judgment, Fleming brings error.</p>

Error from District Court, Courier County; S. H. Bussell, Judge. Action by R. A. Hefner against Moses Marx and others. Judgment for plaintiff, and defendants bring error. This is an action, brought by defendant in error, hereinafter called “plaintiff,” against plaintiffs in error, hereinafter called “defendants,” to recover for legal services rendered in securing the enrollment of defendants as minor Mississippi Choctaw Indians.

<p>1. INDIANS — Making of Allotment Selections — 'Conflicting Claims— Decision of Interior Department — Review by Courts. The laws regulations, and rules of practice of the 'Interior Department prescribe with particularity the manner in which Indian allotment selections may be made, and the officers of that department are required to receive, consider, and pass upon the proofs necessary to establish the respective claims, selections, and filings, and in case of conflicting claims to the same tract, to hear and pass . upon the testimony of the contesting parties. The proofs offered in compliance with the law and rules of practice are to be presented, in the first instance, to the local officers of the district where the land is situated, and from their decision an appeal lies to the Commissioner of Indian Affairs, and from him to the honorable Secretary of the Interior. Por mere errors of judgment as . to the weight- of evidence on these subjects, by any of the subordinate officers, the only remedy is by an .appeal to his immediate superior of 'that Department.' The courts cannot exercise any di- - rect appellate jurisdiction over the rulings of those officers, or of their superior in the Department, in such matters, nor can they reverse or correct them in a collateral proceeding between private parties. It is only when those officers have misconstrued the law applicable to the case, as established by the evidence before the Department, and have thus denied to parties, rights which, upon a. correct construction, would have been conceded to them, or where misrepresentations and fraud have been practiced, necessarily affecting their judgment, that courts can, in proper proceeding, interfere and refuse to give effect to their action.</p> <p>2. INDIANS — Indian Allotment — Agreement to Sell — Presumptions— Speculation. The act of an applicant, for an Indian allotment selection, in executing and delivering a contract for the sale of the land sought to be filed upon, in case he succeeds in getting said tract, raises a presumption that he is not intending to file on said allotment in good faith, but for speculation, and with the intention to abandon and forfeit his rights to said land.</p> <p>(Syllabus by Robberts, C.)</p>

<p>1. INDIANS — Contracts Affecting Allotments — Restrictions—Contract to Pay Attorney’s Fees. The restrictions against the right of fuil-hlood Indians to contract are limited to contracts affecting their allotments. An adult, full-blood Mississippi Choctaw Indian, otherwise qualified, may make a ' lawful contract to pay attorney’s fees for proper professional services.</p> <p>2. APPEAL AND ERROR — Judgment—Evidence. Where the only error assigned on appeal in a law case, tried to the court, is that the evidence is insufficient to support the judgment, the 'Supreme Court will not weigh the evidence, but, if it he found that there is any evidence reasonably tending to support the judgment, will affirm the same.'</p> <p>(Syllabus by Galbraith, C.)</p>

<p>CONTRACT WITH ATTORNEY — Indians. Syllabus the same as in No. 3999, Jack Postoak v. Albert J. Lee, ante, 149 Pac. 155.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Carter County j S. II. Russell, Judge. </p> <p>Action by Albert J. Lee against Thompson Peter. Judgment for plaintiff, and defendant appeals.</p>

<p> Error from District Court, Carter County; 8. H. Russell, Judge. </p> <p>Action by Albert J. Lee against Zeno Huff. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Ottawa County; Preston 8. Davis, Judge.</p> <p>Action by the State against J. H. Melton. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Sequoyah, County; J. H. Pitchford, Judge. Action by James A. Smith and others against A. J. Kennedy. Judgment for defendant, and plaintiffs bring error.

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

Error from District Court, Woodward County; James B. Cullison, Judge. Action by William O. Bowder against the City of Woodward, a municipal corporation, for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from Superior Court, Oklahoma, County; Edward Dewes Oldfield, Judge. Action by William J. Eussell against Louis Eichoff, admin istrator of tlie estate of Maggie E. Fay, deceased. Judgment'for plaintiff, and defendant brings error.

<p>1. SCHOOLS AND SCHOOL DISTRICTS — Joint District — Dissolution. A joint school district, composed of a portion of two or more counties, cannot be legally dissolved, by the county superintendent of one of the counties by meeting in the district with a number of the male inhabitants thereof, and by vote or consent declare such district dissolved.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS — Teacher’s Contract-Validity — Estoppel. Where the members of a joint school district meet outside of the district and informally discuss the employment of a teacher, but substantially agree upon such employment and pursuant thereto, two of the board, the director and the secretary, sign a contract of employment, the third member, the treasurer, thereafter refusing- to sign such contract, for undisclosed reason, and where the teacher enters upon her duties and teaches for a term and is recognized by the execution, delivery, and payment of a monthly warrant for the -time taught, the treasurer of such board, under such facts, is estopped from contesting the validity of the contract.</p> <p>(Syllabus by Watts, C.)</p>

<p>1. CARRIERS — Passenger Alighting at Wrong Station — Negligence of Brakeman — Liability of Carrier. Where a brakeman on approaching a stop asks a passenger where she wants to get off, and she tells him, and he says “this is the place,” ,and upon such direction she alights from the train but discovers it is a mistake, and informs the brakeman that he had made a mistake, that that is not her destination, it is his duty to permit her to return to the car and complete her journey; and if he does not do- so the company will be held liable.</p> <p>2. CARRIERS — Passengers—Personal Injuries — Excessive Recovery. Where a woman is put off the train, through the negligence and misdirection of the employees operating the train, at a flag switch, which is not her destination, nor the point her ticket calls for, and is not permitted to re-enter the car and complete her journey, though the mistake is known to the train employees before the train leaves the switch, and she is left in the dark alone, with no depot, no house, no habitation in sight, no protection, and is compelled to carry her baggage a half mile in the dark before reaching a house, she is entitled to damages for the physical pain and distress suffered, and a verdict of $300 is not excessive.</p> <p>3. PLEADING — General Allegation — Evidence. When a petition pleads,. in general terms, facts sufficient to constitute a cause of -action, and no motion is made to make it more definite and certain, testimony which tends to directly support the allegation will not be excluded because not specifically pleaded.</p> <p>4. TRIAL — Inapplicable Instruction — Refusal. It is not error to refuse to give an instruction, which is sound as an abstract proposition of law, but which is not applicable to the facts in the case being tried.</p> <p>(Syllabus by Brett, C.)</p>

Error from County Court, Leflore County; P. C. Bolg&r, Judge. Action by Bobert Horton against the Midland Valley Eailway Company. Judgment for plaintiff, and defendant brings error.

Error from County Cpurt, Qcurvin County; W. B. M. Mitchellj Judge. Action by J. W. Shelton against the Gulf, Colorado & Santa Fe Bailway Company. Judgment for plaintiff, and defendant brings error. The plaintiff, in his petition, claims that on the 24th day of February, 1910, be delivered to the defendant, at Wynnewood for transportation to Dallas, a shipment of household goods, and when they arrived they were damaged in the sum of $121.

Error from County Court, OMahoma County; John W. Hayson, Judge. Proceeding by the- State against certain paraphernalia and appurtenances used in the sale of intoxicating liquors, wherein O. S. Steele intervenes. Prom an adverse order, the State brings error.

<p>Error from Superior Courts Oklahoma County; Eiwarct Dewm 'Oldfield!, Judge.</p> <p>Action by Dan McCarty against Joe Hoteling and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Kay County.; W. M. Bowles, Judge. </p> <p>Action by G. A. Chappell against the City' of Newkirk, a municipal corporation. Judgment for defendant, and plaintiff brings error.</p>

<p>1. INDIANS — Guardian’s Sale of Allotted Inherited Lands — Validity. A contract of sale, made by a guardian of a Cherokee Indian minor, prior to statehood, but after the approval of the act of Congress of April 26, 1906 (34 Stat. 137, c. 1876), and prior to that of .May 27, 1908 (35 Stat. 312, c. 199), of inherited lands allotted to his father, there being adult heirs, and without an order of court “made upon petition filed by [the] guardian,” is void.</p> <p>2. INDIANS — Guardian’s Sale of Allotted Inherited Lands — Validity. Section 22 of an act of Congress approved April 26, 1906 (34 Stat. 145, c. 1876), provides its own special procedure, when it is desired that a minor join with the adult heirs in the sale of an inherited allotment; and prior to statehood, such purpose could only be accomplished through the action of “a guardian, duly appointed by the proper United States court for the Indian Territory, ■* •! -s upon order of such court made upon petition filed by guardian.”</p> <p>(Syllabus by Brewer, C.)</p>

<p>Error from District Court, Washington County; R. H. Hudson, Judge.</p> <p>Two actions consolidated, one by A. D. Price and another-against W. H. Eyus, the other by E. Y. Myers against A1 Price and others. Prom the judgment, Eyus brings error.</p>

<p>Error from County Court, Jefferson County; B. T. Price, Judge.</p> <p>Action by W. P. Carden against the Chicago, Bock Island & Pacific Bailway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Craig County; S. F. Paries, Judge. Action by the Yinita Electric Light, Ice & Power Company a corporation, against E. M. Carpenter and another. Judgment lor delendants, and plaintiff brings error.

<p>1. REPLEVIN — Petition—Affidavit—Commencement'of .Action. In an action in replevin, wherein an affidavit in replevin was filed, but no separate petition, and the affidavit contains all the essential allegations of a petition, the affidavit should be treated as both an affidavit in replevin and petition, and the filing of the same and the issuance of a summons therein constitutes the commencement of an action.</p> <p>2. REPLEVIN — Action Against Officer — Variance. Where property belonging to one party is seized by the sheriff under a writ running against another party, the claimant of the property may maintain a replevin action against the officer in his individual name or against him in his official capacity, and there is' no fatal variance if, when he is proceeded against in his individual name, the evidence proves that he acted in His official capacity, under process from a court, in making the seizure.</p> <p>(Syllabus by Mathews,1 C.)</p>

<p>Error from Superior Court, Muskogee County; Farrar L. McCañn, Judge. ■</p> <p>Action by Ella M. Huber against Archie W. Culp. Judgment for plaintiff and defendant brings error. _</p>

<p> Error from County Court, Bryan County; J. L. Rappelee, Judge. </p> <p>Action by J. T. Eoote against tbe Missouri, Kansas & Texas Railway Company and another. Judgment for plaintiff, and defendants bring error.</p>

Error'from County Courtj Dewey County; J. II. Antrobus, Judge pro tempore. Action by J. Ii. Gossom against Jerome J. Deninger and wife. Judgment for plaintiff, and defendants brings error.

<p>APPEAL AND ERROR — Failure to File Brief — Reversal. When a defendant in error fails to file a brief, and assigns no reason for thia • failure, if upon an examination of the record and brief of the plaintiff in error it appears that the grounds for reversal urged by the plaintiff in error are reasonably sustained by his brief, the cause will be reversed.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from District Court, Alfalfa County; James W. Stem, Juclge. </p> <p>Action by George T. Jamison against the Atchison, - Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>†. SIGNATURES — Witnesses—Name Signed by Notary. In a case where the grantor is unable to write and the notary, or other officer taking the acknowledgment, signs the grantor’s name to the deed, but does sign his name as a witness to the signature of the grantor, two other persons signing as witnesses to the signature, the certificate by the notary or other officer of the grantor’s acknowledgment is a sufficient compliance with the statute, as such an acknowledgment by the grantor is an adoption of the signature.</p> <p>2. SIGNATURES — “Subscription”—Mark to Unacknowledged Instrument — Witnesses. The mark to an unacknowledged instrument of one who cannot write, under the statutes of this state, is not a “signature” or “subscription,” unless the person writing his name writes his own as a witness near it.</p> <p>3. CHAMPERTY AND MAINTENANCE — Conveyance of Land-Person Out of Possession. A deed to land, where the grantor has been out of possession, or has not received any of the rents or profits from the land for the space of one year before the date of the conveyance, is void, as it violates the champerty statute.</p> <p>(Syllabus by Mathews, C.)</p>

<p>Error from Gouniy Court, Oklahoma, County; John W. IIayson, Judge.</p> <p>Action by George W. Lutee against Julius M. Stumpf. Judg--mcnt for defendant, and plaintiff brings error.</p>

Error from District Court, Wagoner County; B. C. Allen, Judge. Action by E. S. Warner and others against Rose Grayson and others. Judgment for defendant Rose Grayson, and plaintiffs bring error.

Error from District Court, Oklahoma County; W. 11. Taylor, Judge. Action by Sam Levy and another, doing business as Levy Bros., against F. A. Gross. ■ Judgment for defendant, and plaintiffs bring error.

Error from District Court. Cleveland County; B. McMillan, Judge,. Action by J. W. Williams against Austin R. Gourley and others. Judgment for plaintiff, and defendant named brings error.

Error from District Court, Kiowa County; Frank Mathews, Judge pro tern. Action by David F. Haile, an imbecile and incompetent person, by G. W. HLile, guardian, against the Farmers’ & Merchants’ Bank of Mountain Yiew, Okla., a corporation. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Carter County; 3. H. Bussell, Judge.</p> <p>Action by W. II. Wimberly, as trustee in bankruptcy of the Baltimore Mercantile Company, against R. M. Winstock and another. Judgment for. defendants, and plaintiff brings - error.</p>

Error from District Court, Osage County; B. H. Hudson, Judge. Action by Ollie Berry by his next friend and mother, Mrs. Minnie Beri-jq against the Midland Talley Railway Company. Judgment for plaintiff, and defendant brings error, and plaintiff applies for permission to withdraw case-made for correction.

Original application for writ of prohibition by the State, on the relation of John Mose and others, against the District Court of Marshall County and Jesse M. Hatchett, Judge of the Sixth Judicial District and of the said District Court.

<p> Error from- -Superior Court, Custer County; A. J. Welch, Special Judge. </p> <p>Action by L. D. Satterfield against O. B. Kee. Judgment for plaintiff and defendant brings error.</p> <p>The amended petition in this action, upon which the case was tried, alleges, in substance, that on the 24th of March, 1902, the plaintiff, Satterfield, was the owner of certain land described ■in the petition, and that on this date one A. E. Kee,- through O. B. Kee, his brother, .offered to purchase this land, and agreed to pay the sum of'$5,000 and to plat the land in lots and blacks and when so platted to convey to the plaintiff $1,000 worth.:of said lots, based upon the market price, within 30 days after 'the location of the Southwestern Normal -School had been decided v by the Supreme Court of the territory of Oklahoma. The contract is set out in full in the petition, but is not. set out here, as, it will be found in the findings of fact by the judge, hereinafter set out iii full. The petition further alleges that in pursuance of this contract, and for the purpose of enabling Kee to plat the land in lots and blocks, and to avoid clouding the title, and as a part of the transaction, Satterfield and wife executed a warranty deed to said Kee for the land in question. The petition further alleges .that while this contract and deed ran to A. F'. Kee, they were taken for the sole benefit of O. B. Kee, the plaintiff in error. The petition further alleges that O. B. Kee was present at the time the contract and deed were made, and had full knowledge thereof, and that on or about November 1, 1902, the litigation relative to the location of the Southwestern Normal School came ■to an end, and it was established' at Weatherford upon a part of the quarter section in controversy, which had been omitted from the deed from Satterfield to Kee for this purpose; that about the 7th day of August, 1903, and after the location was determined, 'O. B. Kee, the plaintiff in error, caused this land to be surveyed into lots and blocks, and made a dedication thereof, the certificates ■of which are set out in the petition, but are not necessary to be set out here, and that the plaintiff in error has sold and disposed ■of all of said land except certain portions set out in the petition, and not necessary to be designated. The prayer of this petition is that the market value of the lots retained by Kee be established as of August 7, 1903, and partition be had and decreed thereof as-between the plaintiff and defendant, and there be set aside to the plaintiff' such lots as in the aggregate will equal $1,000 on September 27, 1903, and that said O. B. Kee be required to execute to-'plaintiff a deed therefor, or that the decree be taken as-áuchj -or that the sheriff make a deed to plaintiff as provided by statute, ■ ahd, further, that commissioners be appointed to set aside 'to' pláintiff same, and that partition be had, and that the plat of land be corrected and decreed regular, and that plaintiff have his costs, etc.-, and that the plaintiff’s title be quieted, and for'other further relief. The second cause of action in the petition is-á''cause of action in ejectment pure and simple. After-wards; ’ á'ñ'fi when- the case was called for trial, Satterfield, the plaintiff below, was allowed to amend the prayer for judgment as follows:</p> <p>“That in the event the court cannot decree the plaintiff to be entitled to an interest and estate in said real estate as herein-before prayed for, then, in that event, plaintiff have judgment for $1,000, wilh interest according to law, and for such other, and further relief as may be just.”</p> <p>To this amended petition there was a demurrer on the ground of misjoinder of causes of action, and because the amended petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled, and exceptions duly saved. The defendant then answered, denying all of the allegations of the petition, and pleading the two-year statute of limitations, the five-year statute of limitations, and the three-year statute of limitations. By consent a jury was waived, and this cause was submitted to the court, who made the following findings of fact and law:</p> <p>“First. A. F. Nee and L. D. Satterfield entered into ' a' written contract on March 24, 1902, in words as follows: '</p> <p>“ ‘This contract, made and entered into this the 24th day of' March, 1902, by and between I. D. Satterfield, party of the first part, and A. F. Kee, party of the second part, all of the county of Custer and territory of Oklahoma, witnesseth: That the party' of the first part has this day sold to the party of the second part the N W. quarter of section eight (8), in township twelve (12) N of range fourteen (14) W. I. M., situated in Custer county, O. T., for the consideration of $5,000.00, five thousand dollars,' to be paid in cash as soon as the party of the first part' shall make or cause to be made to the party of the second part a good and sufficient deed of general warranty to 'the same, and the further consideration of $1,000.00 worth of lots to be platted and laid out in lots and blocks, a portion of the above-described' lands to be so laid out and platted as above stated within thirty, days after the matter of the location of the Southwest Normal College shall have been finally passed upon and settled by the courts of the territory of Oklahoma, which is now in litigation in the courts and situated upon said land above described.</p> <p>"" "Said party of the first part hereby agrees to pay the market price for said lots aforesaid at the time the same are set apart and conveyed to him by proper deed of general warranty; and it is hereby agreed by the parties hereto that the parfy of the first part here now makes to the party .of the second part his check for $500.00 as a forfeit if he shall fail to carry out the agreements binding upon him in the above contract, and the party of the ■second part makes his check to the party of the first part for the sum of $500.00 upon the terms and. conditions as stated for the first party, said checks to' be deposited with this contract in the National Exchange Bank and taken out of the same by the mutual consent of both parties hereto-.</p> <p>"" "[Signed] A. E. Kee,</p> <p>"" "L. D. Satterfield.5</p> <p>""Second. On the same day, and as -a part of the same transaction, L. D. Satterfield and wife executed and delivered their deed of said land to A. F. Kee, and received from him $5,000 in the form of a cheek, which was afterwards paid in due course.</p> <p>""Third. On March 24, 1902, in the evening after the transaction between A. F.. Kee and L. B. Satterfield, A. F. Kee conveyed the land to O. B. Kee for a consideration of $5,000.</p> <p>""Fourth. O. B. Kee had at the time actual notice of the written contract above set out between A. F. Kee and L. D. Satterfield.</p> <p>""Fifth. On the 4th day of October, 1902 (after the litigation involving the location of the Southwest Normal had been finally decided by the Supreme Court of Oklahoma), O. B. Kee caused said land to be surveyed into lots, blocks, streets, and alleys, and filed said plat with the register of deeds of Custer county, ■ but the certificates on the' plat do- not conform to the requirements of the statute.</p> <p>“Sixth. The plaintiff, through H. P. Bailey, his attorney, about four years after this transaction, demanded of O. B. Kee $1,000 worth of lots under said contract, and O. B. Kee refused to convey the same.</p> <p>“Seventh. That O. B. Kee, at the time of the commencement of this action, was and now is the owner of the E. y2 of .blo.ck 4; the W % of block 5; lots 7 to 12 in block 7; lots l.to 9 in block 8; lots 7 to 12 in block 11; lots 1 to 6 in block 23; lots 1 to 12 in block 22; and a plot of land south of what is known as • the Simpson tract, and west of the waterworks tract, the same being a part of the land described in said contract, and conveyed by L. D. Satterfield to A. E. Kec, and by A. E. Kee to ,0. B. Kee, which land was platted as aforesaid.</p> <p>“Eighth. That lots 1 to 15 inclusive, in block 4, the same being the E. y2 of block 4, were worth, on or about August 7, 1903, and during the balance of the year, the sum of $35 per lot; that lots 1 to 15, in block 5, being the W. y2 of block 5, were of the market value of $35 per lot; that lots 1 to 9.in block 6 were of the market value of $40 per lot; lots 7 to 12 in block 7 were of the market value of the $40 per lot; lots 1 to 9 in block 8 were of the market value of $50 per lot; lots 7 to 12 in block 11 were of the market value of $50 per lot; lots 1 to 12 in block 22 were of the market value of $40 per lot; that lots 1 to 6 in block 23 were of the market value of $40 per lot; that the plot of ground south of the Simpson tract and west of the waterworks tract, consisting of two' acres, was of the market value of $150 per acre.</p> <p>“Ninth. That of the total value of said lots and tract of land on or about August 7, 1903, and during the balance of said year, ■ was $3,420.</p> <p>“Tenth. That by said agreement it became O. B. Kee’s duty to convey to L. D. Satterfield such of the lote as to him seemed proper at said market price, to the aggregate amount of $1,000, and he now has the right to select and convey such of said lots at said prices as to him may seem best.</p> <p>“Eleventh. That said lots, based upon said market price, are capable of division, and it is not necessary to sell same to make division thereof.</p> <p>“Conclusions of Law.</p> <p>“First. That L. D. Satterfield has an interest in said lots, equal in ampunt to $1,000, and interest from August 1, 1903.</p> <p>“Second. That the record title to said lots is in O. B. Kee, but that he holds L. D. Satterfield’s interest aforesaid in trust under the express trust found in said written contract and deed.</p> <p>“Third. That the said contract and deed from L. D. Satter-field to A. F. Kee is one contract, and must be read and construed together.</p> <p>“Fourth. That it became the duty of O. B. Kee, as assignee of A. F. Kee, to plat said land into lots and blocks, streets and alleys, within 30 days' after the matter of the location of the Southwest Normal College shall have been finally decided in the courts, and to deed to Satterfield $1,000 worth of the lots upon his demand, at the market value at. the time platted.</p> <p>“Fifth. That, owing to the contract and intention of the parties and the peculiar interest plaintiff had in the property, and owing to the fact that under the contract A. F. Kee or O. B. Kee, his assignee, with notice, was required to- do and perform certain duties on behalf of and for the benefit of the plaintiff, to properly and legally lay off, survey, and plat said property into lots and blocks, and properly file a plat thereof, as required by law, and dedicating the streets and alleys to the public, all of which he has failed to do, the defendant cannot invoke the technical defense of the statute of limitations.</p> <p>“Sixth. The plaintiff did not make demand upon the defendant to perform the conditions of the contract until four years after the date on which it was agreed that the defendant would plat-said property and convey the $1,000 worth-of lots, and for this reason the plaintiff will not he entitled to recover interest prior to the date he made demand.</p> <p>“Seventh. The plaintiff is entitled to recover $1,000, and interest from the day be made demand, for the performance of the contract, and he is entitled to a lien upon the property des-, eribed in the petition, from which said amount shall be satisfied.”</p> <p>There was a judgment for the plaintiff for $1,000, with interest at ? per cent, from the 4th day of October, 1906, being the date when the demand was made, up to the 16th day of November, 190?, being the date when the Constitution of Oklahoma was adopted, and 6 per cent, from the 16th day of November, 190?, up to December 31, 1911. There was a motion for new trial, which was overruled and exception properly saved, and the plaintiff in error brings the ease to this' court by petition in error and case-made.</p>

Frror from County Court, Pottaiuatomie County; Ross F. Lochidge, Judge. Proceedings by the State, on the relation of one Holt, against Jerry Miller and others. Judgment for plaintiff, and defendants brings error.

<p> Error from District Court, Washita County,James B. Tolbert, Judge'. </p> <p>Action by L. C. Smith, against C. W. Maddox. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, 'Grady County; Wm. Linn, Judge. </p> <p>Action by W. D. Oliver against Julius Sboat and others. Judgment for plaintiff, and defendants bring error.</p> <p>■ This was an action to quiet title to the surplus allotment of Lucy Shoat, a full-blood Choctaw Indian. Judgment for plaintiff, and the defendant brings error.</p> <p>It appears that Lucy Shoat died on or about the 6th day of April, 1905, leaving' surviving her her husband, Julius Shoat, Louie Shoat, and Agnes Shoat, her .two minor children, her sole heirs at law. The tribal deed for the surplus allotment, being the land in controversy, was issued September 27, 1905, after the death of Lucy Shoat, and was issued in her name; said deed being issued in pursuance of Act Cong. July 1, 1902, c. 1362, sec. 22, 32 Stat. 643, which provides that, if any person whose name appears upon the rolls shall have died subsequent to the ratification; of the agreement, and before receiving his allotment, the lands to which such person shall have been entitled, if living, shall be allotted in his name, and shall descend to his heirs according to the laws of descent and distribution, as provided in chapter 49 of Mansfield’s Digest of the Statutes of Arkansas.'</p> <p>On October 7, 1905, Julius Shoat, the husband of' the deceased Indian, executed a deed for this land to one A. M. Eunkhouser, but this deed was not approved by any officer of the government. Thereafter, on February 9, 1906, Julius Shoat executed another deed to L. W. Cruce and C. M. Joiner, but notice need not be taken of this instrument, as these defendants disclaimed all interest in the land, and this deed was ordered canceled by the decree. On July 31, 1908, Julius Shoat executed and delivered a warranty deed to C. D. Campbell for the lands in controversy, which deed was" "duly approved by the county court of Pushmataha count}1, being -the county in which Lucy Shoat died, and the court having ’jurisdiction of the settlement of her estate. Afterwards Julius Shoat, as the guardian of his two minor children, plaintiffs in error herein, applied to the county court of Pushmataha county for''leave to sell the interest of said minors, which was duly granted, and an order made directing the said guardian to make a deed to said Campbell for this land, which was done on the 5th day of July, 1909.</p> <p>Prior to this, on the 18th day of July, 1907, the defendants in error, Eli P. Williams, Elmer Williams, and Charles Williams, obtained from Julius Shoat a power of attorney, which provided, in substance, that the said Eli P. Williams, Elmer Williams, and Charles Williams, or their survivors, should any. of them die, should have power to attach to said power of attorney a description of all or any part of the land belonging to said Julius Shoat, as heir at law of Lucy Shoat, which description should become a part of the power of attorney; second, Julius Shoat assigned and transferred all of his rights to the possession of said land and improvements thereon, and agreed within one year to put his agents in actual and absolute possession, and, when so put in possession, they were to pay him, on demand, $50, and, should Julius Shoat fail to put his agents in possession, they were authorized to acquire possession of the land and improvements at any time during the life of the power of attorney (which expired December 31, 1939), and to do all acts necessary, in their opinion, to be done to acquire possession of said' land, and when in possession to run, manage, and look after the land and improvements; third, he gives these agents full, sole, and absolute authority to collect and receive all moneys, rents, and income of any kind now due or hereafter to become due on these lands, the agents agreeing during the life of Julius Shoat to account to him, and, after his death, to his heirs and executors, for all moneys and income received by them on account of his interest in said land, except 8 per cent, of the amount actually received by them, which 8 per cent, was in payment for their services. Shonr also agreed not to assign or transfer any part of the rents from this land. Shoat further agreed to sell to his agents an absolute interest in fee simple to any of the rents due from said lands then due, or thereafter to become due, before the expiration ol: this power of attorney. He further sells, conveys, and transfers to his agents an absolute interest in fee simple in all or any part of said lands that he may lawfully sell or alienate. The power of attorney further gives the agents power to sell this land at any time, in whole or in part, on such terms and conditions as they may see fit, for cash or on time, and to convey and transfer the same by deed, and to receive the consideration and do all other acts necessary to make such sale. The power of attorney further stipulated that it should continue in full force until the 31st day of December, 1939, but that it should not terminate on the death of Shoat, but should continue in full force and effect until the 31st day of December, 1939, and, in case of the death of Shoat, his agents are given full power to do any and all acts in their own names authorized by the power of attorney. The power of attorney further provides that the agents are authorized and have full, sole, and absolute power, to bring or defend, in their own name, or in Shoat’s name, and to dismiss at their option, any suit relative to this land and improvements., The consideration for this power of attorney was $1, and other valuable andl sufficient consideration.</p> <p>It.does not appear in the record what steps, if any, have ever been taken under this power of attorney, or whether Eli P. Williams, Elmer Williams, and Charles Williams ever got possession of the land. There was a judgment for the plaintiff in the superior court quieting Ms title, and directing that the deeds .to Cruce and Joiner, and the power of attorney to Eli P. Williams, Elmer Williams, and Charles Williams be canceled, to which judgment exception Aras duly saved, and the case is brought to this court on error.</p>

<p> Error from County Court, Woodward Gounty; Clyde II. Wymd, Judge. </p> <p>Action by L. R. Henderson against Daniel Thomas. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Pawnee County; Fred J3. Liscum, Judge. Proceedings by the State, in which a search warrant was issued and executed by seizure of intoxicating liquors in the depot of the St. Louis & San Francisco Railroad Company, in which proceedings the Railroad Company and R. F. Robertson, doing) business as the Old Rock Distilling Company, intervened. From an adverse judgment, the intervener last mentioned brings error.

<p>SPECIFIC PERFORMANCE — Contracts — Uncertainty—Maturity of Notes. It is a well-settled principle that specific performance of a contract will not be enforced when any material part of the terms or conditions are uncertain. In the instant case the notes mortgages, for $4,000 and $2,000, respectively, were to be exe- • cuted on March 2, 1911. The date of their maturity is an essential element in order to enforce the specific performance of the contract. The question of the maturity of the notes is left to subsequent negotiations between the parties, and courts of equity will not enforce a contract of which any material part has to be settled by future negotiations between the parties. 'The contract is to that extent indefinite and uncertain,' and the specific performance thereof cannot be enforced.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from District Court, Oklahoma County; W. B. Taylor, Judge. Action by the Minnetonka -Lumber Company against W. -T. Tate and others. Judgment for Tate on cross-petition against the Southwestern Surety Insurance Company, a corporation, and the Insurance Company brings error.

Error from County Court, Oklahoma County; John W. Uayson, Judge. Action of replevin by N. É. Roseberry against the State National Bank. Judgment for plaintiff on appeal to the county court, and defendant brings error. Eor convenience the parties will be designated as they appeared in the trial ourt; that is, the plaintiff in error will be designated as the defendant, and the defendant in error as the plaintiff.

Error from District ‘Court, Grady •County; Frank M. Bailey, Judge. Action by Matt Chilton against Lotsee B. Dietrich and another. Judgment for defendant, and plaintiff 'brings error. Joseph Chandler, a Comanche Indian, a member of the Kiowa - Apache and Comanche Indians, was allotted the land in controversy, consisting of 320 acres, under the Medicine Lodge Treaty of 1866 or 1867 and of June, 1900.

<p>Error from District Court, McClain County; - B. McMillan, Judge.</p> <p>Action by M. A. Chitty against Mary P. Gillett and others. Judgment for defendants, and plaintiff brings error.</p>

<p>RAILROADS — Failure to Fence Right of Way — Damage to Crops — Instructions. It is error to instruct a jury that, under the law, the defendant company, is required to fence its right of way to protect landowners whose land is immediately adjacent to the right of way from the trespass of cattle that otherwise might enter over the right of way in and upon the adjactnt land.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Couri, Bryan County; J. L. Rappolee, Judge. </p> <p>Action by J. M. Webb, Jr., against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Oklahoma County; IF. B. Taylor, Judge.</p> <p>Action by Alfred Hare against John F. Winans and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. SALES — Breach of Warranty — Remedies of Buyer. Por a breach of warranty contained, in the written guaranty set out in the opinion the vendee had the option either to stand upon the warranty and recoup his damages in an action against him on the promissory note or to accept from the vendor another stallion that would satisfy the warranty.</p> <p>2. CONTRACTS — Validity—Restraint of Legal Rem.edies. Under section 977, Rev. Laws 1910, a stipulation in a contract that restricts the right of the parties to pursue the usual legal remedies in the ordinary tribunals for a breach thereof is void.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. STREET RAILROADS — Streets—Duties. The rights of a person driving along a public street and a street railway company operating cars thereon are equal and correlative; one is .bound to the same degree of care as the other. It is the duty of each acting in his own place and under the circumstances surrounding him to exercise that degree of care to avoid accident that an ordinarily prudent man would exercise under like conditions.</p> <p>2. STREET RAILROADS — Duty of Motorman — Street Crossing It is the duty of a motorman in charge of a car, when approaching a street crossing, to keep watch and see whether or not people on the street ahead of him are' in danger, or in difficulty, such as might throw them in contact with the car he is running, and, if so, to endeavor to get his car under such control as would enable him to avoid causing injury to such people, and to not take hazardous chances of people getting out of the way, and to exercise reasonable care to avoid accidents.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from County Covert, Murray County; TIarry 17. Fielding, Judge. Action by J. E. Bailey against Charles N. Hilton, wherein Frank Clark intervened. Judgment for plaintiff, .and defendant and intervener bring error.

<p>1. SALES — Action by Seller — Verdict. A general verdict for plaintiff for the entire amount sued for in an action for the purchase price of chattel, where damages are claimed by defendant for breach of an implied warranty to deliver property of the quality contemplated by the contract, determined, primarily, that there was no such breach of warranty.</p> <p>2. APPEAL AND ERROR — Harmless Errol — Evidence—Instructions —Cure By Verdict. In such case, if there was error in admitting or excluding evidence, or in failing to give requested instructions, or in giving others improperly stating the law as to the measure of damages, such error is not prejudicial.</p> <p>3. GQ0DS SOLD — Action for Price — Instructions. Instructions examined, and held to fairly state the law of the case.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. CHAMPERTY AND MAINTENANCE — Grantor out of Possession —Application of Statute — 'Indian Lands. The provisions of section 2215, Comp. Laws 1909 (section 2260, Rev. Laws 1910), apply to Indian lands, upon which restrictions have been removed.</p> <p>2. CHAMPERTY AND MAINTENANCE — Grantor out of Possession —Validity of Conveyance. Section 2215, Comp. Laws 1909 (section 2260, Rev. Laws 1910), making it a misdemeanor to buy or sell any pretended right or title to lands, where the grantor, or those by whom he claims, has not been in possession or taken the rents and profits thereof for the space of one year before such conveyance is executed, is declaratory of the common law; and a conveyance made in contravention thereof by the rightful owner of such lands, as against the person holding the same adversely, is inoperative, regardless of whether or not such adverse holder is holding under color of title.</p> <p>3. INDIANS — Lands—Descent—“Ancestral Estate.” An allotment, made by the Dawes Commission to the heirs of a deceased citizen of one of the tribes, passes, under section 2531 of Mansfield's Digest of the Laws of Arkansas, as an ancestral estate.</p> <p>(Syllabus by Collier, C.)</p>

Error from County Court, Oklahoma Countyj John W. Jlayson, Judge. Action by Ollie Hall against Robert A. Rogers. Judgment for plaintiff on appeal from a justice of the peace, and defendant brings error.

<p>Error from District Court, Oklahoma Countyj Geo. W. Clark, Judge.</p> <p>Action by G. T. Smith against the Oklahoma Supply Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. EJECTMENT — Issues—General Denial. Where the plaintiff brings ejectment, under section 6122, Compiled Laws 1909,' the defendant, under section 6123, under general denial, may make any defense, legal or equitable, that would strengthen his own title or defeat his adversary’s. .</p> <p>2. APPEAL AND ERROR — Questions Presented — Assignment of Error. An assignment of error that “the court erred in overruling the motion for a new trial’’ is sufficient to review all the questions raised- in the motion for a new trial.</p> <p>3. ’ VENDOR AND PURCHASER — Bona Fide Purchaser — Notice— Possession, J. owned 80 acres of land, 40 acres of which was his homestead allotment, on which he lived. In March, 1904, he leased said premises to R. and others, for a term of five years, for a cash rental, paid in advance. In December, 1904, he conveyed 40 acres of' said premises, exclusive of the homestead, by general warranty deed, to a trust company, which deed was duly recorded. • In April following, the trust company, for a valuable consideration, conveyed said forty acres to- R. In the meantime, J. remained in possession, of his residence on. said homestead, and was in possession thereof on the date of the deed from the trust company to R. Held, possession of J. was not notice to R. as to any right claimed by J. in the 40 acres.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from County Court, Oklahoma County; John W. Ilayson, Judge. </p> <p>Action -by Samuel Hoover against the Sulzberger & Sons Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BROKERS — Commission—Right—Contract. Questions arising out of a claim by a real estate broker for commissions or compensation generally depend upon the contract or understanding between him and the owner, under which the broker acts. The owner has the right to stipulate that he will not pay, or be in any way obligated to pay, for services in relation to the sale of his land, except in the event such sale is fully and finally consummated.</p> <p>2. BROKERS — Commission—Right—Performance of Contract. Where the owner of a farm makes a net price to a real estate broker, which he is willing to take for his land, but refuses to be bound for any commission, >or to be obligated in any way, except for any sum the broker may obtain in excess of the net price, and then only in the event the sale goes through and is finally consummated, the price paid, and the title passed, such broker is not entitled to recover compensation from the owner by merely finding a purchaser ready, willing and able to buy, and procuring from him-a written agreement to take the land, where such purchaser fails to live up to his agreement, or to take and pay for the land. '</p> <p>3. TRIAL — Failure to Admonish Jury — Waiver of Objection. Where after a civil cause has been submitted to it, the jury separates, and the individuals go to their homes for dinner, and mingle on the way with other persons, without having been admonished by the court, as required by section 5006, Rev. Laws 1910, “not to converse with, or suffer themselves to be addressed by, any othei person, on any subject of the trial,” and such fact is known tc. one of the parties, when it occurs, but the court’s attention is not called to the matter, and the jury reassembles and considers its verdict in the afternoon, separates for supper, then reassembles, and at an evening session returns into court, in the presence of such party, its verdict, without objection upon his part, or notice to the court of the irregularity, and where no wrongdoing or other irregularity is claimed, such party will be deemed to have waived the irregularity. He has no right to remain silent, in possession of knowledge of the facts, and speculate upon the chances of a favorable verdict, and after he is disappointed be heard to complain.</p> <p>(Syllabus toy Brewer, C.)</p>