Volume 50 — Oklahoma Reports

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Petition by Eliza Barnett, praying that letters of administration issue .to her on the estate of Austin Barnett, deceased, and Sallie Barnett protested. Petitioner was appointed administratrix, and an appeal taken to the district court, and, a motion to dismiss the appeal having been overruled, a writ of error was taken to the Supreme Court.

Error from District Court, Carter County; S. H. Russell. Judge. Action by U. S. Joines against J. M. Arnold, to recover for breach of warranty in a deed. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR^-Verdict — Evidence. Where the controlling issue in a cause is one of fact, and the same is submitted to the jury under approved instructions, the verdict, being supported by the evidence, will not be disturbed upon appeal to the Su-' preme Court. -</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, McClain County; R. McMillan. Judge. Action by Sam Frazier and others against ,W. H. Nichols and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from, Superior Court, Custer County; J. W. Laioter, Judge. </p> <p>Action by N. Myers against S. D. Gilbreath and another, doing business as Gilbreath & Power, and J. Fred Burlingame. William H. Smith was substituted as party plaintiff, and recovered judgment, and defendants bring error.</p>

<p> Error from District Court, Seminole County; Tom D. McKeown, Judge. </p> <p>Action by Mark Ingram against Thomas Turman and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Action between E. J. Moore and the Penn Lumber Company and others. From the judgment, Moore brings error.</p>

Error from District Court, Tulsa County; ■ L. M. Poe, Judge. Action by J. P. McCarty and another against the Tulsa Fuel & Manufacturing Company, a corporation, and another. Judgment for plaintiffs, and defendants bring error.

<p>1. INSURANCE — Fraternal Benefit Insurance — Reinstatement of Member — Condition—Waiver. The M. B. A., a fraternal benefit society, with lodge and insurance features, in April, 1910, received Mrs. Bailey as a member, and' issued to her a benefit certificate of insurance, and assessed and collected from her, monthly, a per capita tax, reserve fund dues, and benefit assessments, up to ‘assessment No. 11, which was due and payable during the month of November. This payment was not made until about 15 days after due, when it was made and received and retained by the company; an unconditional receipt being issued therefor. Thereafter, and for the months of December, January, February, March, and April, the company assessed her as other members in good standing and received and retained for each of said months, timely payments of the assessments and local dues, issuing unconditional receipts* therefor. Mrs. Bailey died in April, without any delinquency as to payments, except as to the belated- payment the previous December. Held, that the conduct of the company in retaining the belated payment, .without condition, and the continued assessments and retention of payments, without condition, for' several months, waived the provision that the reinstatement of a member, in default as 'to payments, is upon condition that such member is in' good health.</p> <p>2- CHAMPERTY AND MAINTENANCE — Insurance — Fraternal Benefit Certificate — Condition—Validity. A provision in a contract of insurance ^that in any action at law or equity, brought to enforce the collection of this certificate, or any amount alleged to be due thereunder, claimant or claimants shall not be entitled to receive or recover interest on the amount thereof,” is against public policy and will not be enforced, so as to cut off interest from a judgment duly rendered against the company. Such a provision tends to encourage, promote, and prolong litigation over a just claim, which ought not to be litigated; therefore, in principle, it comes under the condemnation of the-law relating to champerty and maintenance.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Garfield County; Winfield Scott, Judge. Action, brought in justice court by R. S. Goode against W. A. Chaffee. A demurrer to the bill of particulars was sustained on appeal to the county court, and plaintiff brings error.

<p> Error from County Court, Bryan County; J. L. Rappolee, Judge. </p> <p>■ Action by R. L. Murray against the St. .Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. '</p>

<p>1. TRIAL — 'Exceptions to Instructions. At tlie conclusion of - the instructions the following exceptions were taken: “To which instructions taken as a whole, and to each one separately,' the defendants excepted.” Held, such exceptions amount only to a general exception and will not avail as an exception to any particular paragraph.</p> <p>2. DAMAGES — Submission of Issues — Exemplary Damages. The jury cannot return a verdict for exemplary damages unless the same is submitted to them in the instructions.</p> <p>3. REPLEVIN — Excessive Damages. It is manifest that the verdict is excessive and was given under the influence of passion or prejudice.</p> <p>(Syllabus .by Mathews, C.)</p>

Error from County Court, Caddo County; C. Ross Hume, Judge. ' Action by Mary B. Gray (revived in the name of Sarah B. Gray, James E. Boys, and John H.. Boys) against L. K„ McKnight, F. H. Haskett, Robert L. Boke, and Albert Lamar, to vacate order of distribution of estate in the matter of the estate of John W. Nestell, deceased. Judgment for defendants, and plaintiff brings error.

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by the First National Bank of Independence, Kan., against G. W. Jordan. Judgment for plaintiff, and defendant brings error.'</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Where plaintifl in error fails to file and serve brief, in compliance with rule 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed.</p> <p>(Syllabus by Collier, C.)</p>

<p>* Error from District Court, Oklahoma County;. W. R. Taylor, Judge.</p> <p>Action between J. W. McClendon and E. T. Kilgore. From the judgment, McClendon brings error.</p>

<p> Error from County Court, Seminole County; T. S. Cobb, Judge. </p> <p>Action between Weldon Freeman and C. B. Williams. From the judgment, Freeman brings error.</p>

<p>1. EVIDENCE — Judicial Notice — Judges of Courts. The Supreme Court will take judicial knowledge of who are the judges of courts of record of this state, but will not take judicial knowledge of a special or a judge pro tempore, agreed upon or elected to preside in a specific ease.</p> <p>2. JUDGES — Record—Special Judge — Evidence of Qualification. Where a special -or judge pro tempore is agreed upon, or elected to try a specific case, as provided by sections 5813 and 5814, Rev. Raws 1910, it- must affirmatively appear from the record in the case in which he acts that the judge of the trial court was incompetent or disqualified to try the case; that such special or judge pro tempore was an attorney of the court; that he was agreed upon as provided by said section- 5813, supra, or elected as provided by section 5814, supra; and that he took the oath of office as such special or judge pro tempore, required by the Constitution of this state.</p> <p>3. APPEAL AND ERROR — Record—Special Judge — Jurisdiction. Where the record of a -case appealed to this court from a trial of a cause by a special or judge pro tempore fails to show that the judge of the trial court was disqualified, or incompetent to try the case; that such special or judge pro tempore was agreed upon as provided by section 5813, Rev. Laws 1910, or elected as provided by section 5814; that said special or judge pro tempore so agreed upon is an attorney of the county, if the case is in the county court, or an attorney. of the district, if in the district court; and that he has qualified according to law — such judgment will be treated as coram non judice, and the cause reversed and remanded, with instructions to set aside the judgment rendered and grant a new trial.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from County Court, LeFlore County; P. C. Bolger, Judge. </p> <p>Action by D. J. Moniot against John London, the First National Bank of Poteau, garnishee. Judgment for plaintiff, and the garnishee brings error.</p> <p>This action was brought in a justice of the peace court of LeFlore county by the defendant in error, D. J. Moniot, and on the same day a proceeding in garnishment was issued and served upon the First National Bank of Poteau. John London did not appear, and judgment was rendered against him by default.' For convenience, the plaintiff in error will be styled garnishee, and the defendant in error the plaintiff. Said garnishee filed its answer, denying liability, and the plaintiff gave notice cnat said answer of the garnishee was unsatisfactory, and demanded a trial of the truth of said answer, and upon trial of the cause, judgment was rendered against said garnishee in the sum of $150. From said judgment against the garnishee, an appeal was taken to the county •court of said county, and the case tried to a jury upon the following evidence: That the' Day & Night Bank, of Ft, Smith, Ark., forwarded to the garnishee for collection a draft, which is in the following words and figures.:</p> <p>“Fort Smith, Ark., July 22, 1911.</p> <p>“Aug. 10th pay to order of Day & Night Bank $150.00 one hundred fifty dollars. Value -received, and charge to account of John London. -</p> <p>“To H. J. Fowler, Poteau, Okla.' 1st' Nat. Bank:”</p> <p>Indorsed as follows:</p> <p>“Day & Night Bank. Pay ,to order of any bank or banker. Jul. 22, 1911, Prior indorsements guaranteed.</p> <p>”C.'L. Pyle,, Cashier, Fort Smith Ark.”</p> <p>Stamped on face of instrument as follows:</p> <p>“First National Bank, Collection 36. Poteau, I. T. Páid First National Bank, Poteau, Okla.”</p> <p>The draft was accompanied by letter of advice as follows:</p> <p>“Day & Night Bank, Fort Smith, Ark. ■ Date sent: 7-22-11. Our No. 32. M.- 1st. Natl. Bank, Poteau, Okla. Draft. We inclose for collection and return the following item: Payor, John London on Fowler at deliver papers, on payt. dft.. Date 7-22; time-. Due, 8/10. Protest No. Depositor, John London. Amount $150.00. Instructions: Will allow $5.00 disct. if paid Monday. Date paid -. Date returned -. $149.75. Please report by our number.</p> <p>“C. L. Pyle, Cashier.”</p> <p>Stamped on face as follows:</p> <p>“Paid First National Bank, Poteau. Okla.”</p> <p>The drawee of said draft paid the same, and prior to the proceeds of said draft being remitted to said Day & Night Bank, the garnishee was served with process of garnishment; and prior to the garnishment of said draft, C. L. Pyle, who was cashier of said Day & Night Bank, telephoned the drawee of the draft as to the payment of same, but did not inform the drawee that the Day & Night Bank owned the draft, that the draft had a deed from London to drawee attached thereto, and that the payment of said draft was. the consideration for said deed; that said Pyle obtained the draft in evidence ’from London, in payment of a note due him by London, and as cashier of the Day & Night Bank forwarded .the draft to garnishee for collection; that London had no interest in the draft after his (Pyle’s) receipt for it; that he (Pyle) delivered the note and collateral “I had to London,” and that when said draft was forwarded, it was the property of said Day & Night Bank; that upon demand of'the said Pyle, as cashier of said Day & Night Bank, the garnishee refused ,to pay the proceeds of said draft to said Day & Night Bank, upon the ground that it had been garnisheed; that afterwards, the garnishee paid the proceeds of said draft to said Day & Night Bank, upon the condition that if said garnishee was adjudged liable for said money paid the said Day & Night Bank, it would refund the same to the garnishee. There was other evidence in the case, which, from the view we take of the case; it .is unnecessary to recite. The jury returned a verdict against the garnishee for $150 and costs. The garnishee made timely motion for new trial, which was overruled, to which the garnishee duly excepted. From said judgment, 'this appeal is prosecuted.</p>

<p>1. INDIANS — Allotments — Right to Alienate — Statute. By the fourth paragraph of section 2, Act Oong. June 28, 1906, c. 3572, 34 Stat. at L. 539, known as the “Osage Allotment Act,” all lands allotted to the members of the Osage Tribe were made inalienable for a period of 25 years from the date of selection.</p> <p>2. SAME — Removal of Restrictions — Certificate of Competency. The issuance of a “certificate of competency” to an adult Osage Indian, by the. Secretary of the Interior, under paragraph .7, Act June 28, 1906, did not remove the restrictions- on alienation so as to subject the surplus allotment of such Indian-to a judgment lien rendered in an action of debt against him.</p> <p>3. HOMESTEAD — Exemption to Family. The homestead exemption in the Oklahoma Constitution (section 303, Williams’ Okla. Const.) protects the homestead of the family from forced sale for the payment of debts and from judgment liens, except for the purchase money, taxes, work and material, and a debt created by mortgage executed by husband and wife.</p> <p>4. SAME — Conveyance—Incumbrances. The homestead may be sold and conveyed by the husband and wife jointly, and the purchaser will take the title free and clear from all judgment liens or debts, except those enumerated in the homestead exemption clause of the Constitution.</p> <p>SAME — Constitutional Exemption — “Protect.” As used in Williams’ Const, sec. 303, providing that the homestead shall be protected from forced sale, etc., “protect” means to insure or shield from danger, harm, damage, trespass, or the like; to defend or to preserve in safety. F1</p> <p>(Syllabus by Galbraith, C.) -</p>

Error from County Court, Seminole County; T. S. Cobb, Judge. Action by the State against W. J. White and others. Judgment for the State, and defendants bring error.

<p>ACTION ON APPEARANCE BOND. The facts in this case are identical with those in White et al. v. State, ante, p. 97, 150 Pac. 716, and the syllabus in that case is adopted as the one in .this case.</p> <p>(Syllabus by Devereux, C.)</p>

<p> Error from District Court, Major County; James W. Steen, Judge. </p> <p>Action by A. A. Roe, as administrator of the estate of C. W. Rue, deceased, against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff and defendant brings error.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the Sheffield Cast Iron & Foundry Company against N. S. Sherman, doing business as N. S. Sherman Machine & Iron Works. Judgment for plaintiff, and defendant brings error.

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by Samuel Love, Peter T. Scott, and Emil Jaursch, partners as Love, Scott & Jaursch, against Gertrude McLaughlin, doing business as the McLaughlin Millinery Company. Judgment for plaintiffs, and defendant brings error.

<p> Error from County Court, Seminole County; T. S. Cobb, Judge. </p> <p>Action by Sam Norton, as plaintiff, against Charles Dunlap, as defendant. Judgment for plaintiff. Defendant brings error.</p>

Error from District Court, Latimer County; W. H. Brown, Judge. Action by Laurentas Serbantas against the Great Western Coal & Coke Company for damages for personal injuries. Judgment for the plaintiff, and defendant brings error.

Error from District Court, Tillman County; Frank Mathews, Judge. Action by Mrs. S. C. Clay, as widow of T. 0. Clay, deceased, and others against the Frederick Cotton Oil & Manufacturing Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p>1. INSURANCE — Authority of “Soliciting Agent.” Ordinarily a mere “soliciting agent” for an insurance company — that is, one whose power is confined to taking applications for insurance, which, when taken, are to be forwarded to the company for its approval or rejection — has no power to bind the company to a contract of insurance; nor has he, after the policy is issued, any authority to waive any of the terms or provisions therein.</p> <p>'2. SAME. Such soliciting agent, however, can bind his company with regard to matters within the limited and .restricted scope of his authority; that is to say, in matters pertaining to the taking and preparation of the applications for insurance, for submission to the company.</p> <p>3. INSURANCE — Hail Insurance — Fraud of Soliciting Agent — Action on Note. An agent, soliciting for a hail insurance company, agreed verbally with a proposed applicant that he should have until April 23d within which time he might cancel the proposed insurance and have a return of his premium note, and such agent was infrusted by the applicant to fill out the application and so state the conditions in it, and the agent filled out the part of such application blank (receipt and memorandum) which goes to the applicant, correctly showing a right to cancel by April 23d, but failed, through either inadvertence or fraud, to fill out the application proper, so as to allow cancellation by April 23d, but, upon the contrary, inserted April 1st. Held, that in such a suit on the premium note, it was competent for the defendant (plaintiff in error) to prove the above facts and introduce the receipt and memorandum, and to show, if he could, a cancellation of the policy before April 23d, in which event he would be discharged from the payment of the note. Held, further, that in refusing this testimony, under defendant’s second defense, the court committed reversible error.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court. Creek County; Wade S. Stanfield, Judge. </p> <p>Bill by William T. Richart against J. Robert Gillam and others. Judgment for plaintiff, and defendant Gillam brings error.</p>

<p>1. PLEADING — Petition—Verification—General Denial. Where a plaintiff attaches a duly verified account to his petition, but does not specifically allege in the petition that the account is correct, the defendant is not required to deny the correctness of the account under oath, but may raise the issue by a general denial.</p> <p>2. SAME. The statute upon its face not only requires that a verified account be attached to the petition, but also that the petition specifically allege the correctness of the account so attached, before the defendant is required to deny it under oath.</p> <p>(Syllabus by Brett, O.)</p>

<p>1. APPEAL AND ERROR — Insufficient Bond — Amendment—Dismissal. Where an appeal bond is attacked because of defects therein, the court should look first to the bond itself, and, if the intention of the parties and the purpose of the bond is manifest from the instrument itself, the court should allow an amendment, by rejecting insensible words, and supplying accidental omissions, so as to give effect to the manifest intention of the instrument, and should dismiss the appeal only when such defects render the bond so vague that its intention and purpose cannot be gathered from the instrument itself.</p> <p>2. JUSTICES OF THE PEACE — Appeal—Defective Bond — Amendment. • Where the plaint :ff in an action appeals from the justice court to the county court, and gives a bond which recites that the undersigned, as principal and sureties, bind themselves “to the plaintiff,” instead of the defendant, held, that such mistake, on motion, should be. amended by order of the county court.</p> <p>, (Syllabus by Brett, C.)</p>

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by Michael O’Hara . against the Henryetta Coal & Mining Company. Judgment for plaintiff, and defendant brings error.

<p>LIABILITY OF SURETY. The facts in this case are the same as ■ those in Dolese Bros, against the same defendants in error, 44 Okla. 745, 145 Pac. 1119, and the , syllabus in that case is adopted as the syllabus in the instant case.</p> <p>(Syllabus by Devereux, C.)</p>

<p> Error from, County Court, Coal County; R. H. Wells, Judge. </p> <p>Action by R. A. Linthicum and another against Felix Gibson. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from County Court, Adair County; W. A. Corley, Judge. </p> <p>Action by P. J. Dore and Nolia B. Dore against C. W. Waters. Judgment for plaintiffs, and defendant brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Brief. Where plaintiff in error does not file brief within' the time allowed by ■ rule 7 of this court (38 Okla. vi, 137 Pac. ix), nor before case is due to be taken on submission, the appeal will be treated as abandoned, and dismissed.</p> <p>(Syllabus by Thacker, C.)</p>

Error from District Court, Grady County; T. P. Clay, Judae. Action by E. B. Johnson against Grady County to recover taxes paid. Judgment for the defendant, and plaintiff brings error. Defendant in error will be called “defendant” and plaintiff in error will be called “plaintiff” in this opinion for the sake of convenience.

Error from District Court, Marshall County; A. H. Ferguson, Judge. Action for divorce by T. J. Guy against Zora Guy. There was a decree for divorce and alimony, and defendant moved to modify the decree. Motion denied. The defendant brings error.

<p>1. RELEASE — Ratification—Personal Injuries. A releasor, in a voidable release of liability for personal injuries, who voluntarily accepts the benefits thereof at a time when he is apprised of the probable extent of his injuries, knowing that such benefits have been paid to him in consideration of his discharge of the release from liability for any damage he may have suffered as a result of his injuries, thereby consents to and ratifies such release.</p> <p>2. APPEAL AND ERROR — Ground for Reversal — Submission • of Issues. Failure of the court, upon proper request of a defendant, to submit, by appropriate instructions, a theory of the defense which is supported by the evidence, constitutes prejudicial error.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. CHATTEL MORTOACEb — Failure to Record — Enforcement. A chattel mortgage given prior to the adoption of Revised Laws 1910 on property located at the time of its execution in another state, but thereafter removed to this state, and which is void as to creditors and subsequent purchasers for value by reason of the failure of the mortgagee to comply with the rogisUatiou laws of such other state, will not be enforced by the courts of this jurisdiction against a subsequent purchaser of the property in good faith and for value.</p> <p>2. REPLEVIN — Value of Property — Affidavit. The affidavit in replevin is competent evidence against the plaintiff as to the value of the property in a suit in replevin.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. ABATEMENT AND REVIVAL — Appeal and Error — Malicious Prosecution — Death of Defendant — Moot Question. Where an appeal is pending in this court, which seeks to set aside a conveyance of real estate on the ground that it was fraudulently made by the grantor, to defeat the collection of a judgment obtained by the plaintiff in error against the grantor, and this court becomes cognizant of the fact that said judgment was obtained in an action for malicious prosecution, that the grantor pending the appeal lias died, and that the judgment against him has been reversed by this court, the appeal 'will be dismissed on the ground that it- presents only a moot question, for the reason that an action for malicious prosecution abates on the death of the defendant, and the plaintiff, having lost his judgment against the grantor, can never recover another, since the cause of action died with him. And, even if the -conveyance were set aside in such a case, it could avail the plaintiff in error nothing.</p> <p>2. EVIDENCE — Judicial Notice — Judgment—Moot Question. This court will take judicial knowledge of its judgments and decrees.</p> <p>(Syllabus by Brett-. C.)</p>

<p>1. APPEAL AND ERROR — Filing Pleadings — Discretion of Court. Granting permission to file pleadings out of 'time rests largely within the discretion of the trial court. The record should show some injustice suffered by party urging a reversal of judgment on the sole ground of an abhse of discretion of the trial court in the matter of granting permission to file pleadings out of time.</p> <p>2. PLEADING — Delay in Filing — Discretion of Court. Laches of parties in filing pleadings should not be encouraged by too liberal rule as to granting permission to file pleadings out of time, but the trial court should grant such permission at all times when justice or the occasion requires.</p> <p>3. PLEADING — Judgment on the Pleadings. Motion for judgment on the pleadings is in the nature of a demurrer to the pleadings of the adverse party to which it is directed, and also exercises the functions of a motion in its application for an order for judgment. But such motion is not available to dispose of the merits of a case.</p> <p>1. SAME. The pleading must be clearly bad in order to justify a judgment on motion in favor of other party. If there is any reasonable doubt as to the sufficiency of the. pleading, judgment on motion will not be rendered.</p> <p>5. SAME — Reply to New Matter. Where it is necessary for plaintiff . to file reply to new matter set up in defendants’ answers to avoid a judgment on the pleadings in favor of defendants, it is reversible error to render judgment on the pleadings on the plaintiff’s motion made after his reply is filed.</p> <p>(Syllabus by McKeown, C.)</p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by J. G. Tjder against the City of Edmond. Judgment for plaintiff, and defendant brings error.</p>

<p>1. . CONTRACTS — Construction. The paramount rule in the inter-. pretation of contracts is to ascertain the intention of the parties and give effect to the same, if it can be done consistently with legal principles.</p> <p>2. EVIDENCE — Parol Evidence. Where words employed to express a particular condition in a contract in writing are ambiguous, and cannot be satisfactorily explained by reference to other portions thereof, it is not error to admit parol evidence to show-the meaning intended by the parties as to use of the words-employed.</p> <p>3. SAME. Parol evidence as to prior or contemporaneous conversations is not admissible to contradict or vary the terms of a written instrument plain and unambiguous in its terms.</p> <p>4. SAME — Explanaton of Contract. Section 959, Revised Laws-1910, providing, “If the terms of a promise are in any respect: ambiguous or uncertain, it must be interpreted' in the sense in which the promissor believed, at the time of making it, that the promisee understood it,” authorizes parol evidence as to prior or contemporaneous conversations, for the purpose of determining the meaning and intention of the parties in the use of words employed in the written contract, but does not authorize the introduction of parol evidence to vary the terms of a written contract plain in their meaning, nor to show that the intent of the parties differed from that implied in the words used.</p> <p>5. TRIAL — Reception of Evidence — Discretion of Court. The order-in which testimony is heard at the trial rests in the sound discretion of the trial court, consistent wth the rules of the Code, and a clear abuse of this discretion must appear to warrant a reversal of a case for error in this particular.</p> <p>(Syllabus by McKeown, C.)</p>

<p>Error from District Court, Mayesi County; Preston S. Davis, Judge.</p> <p>Action by S. A. Byers against J. B. Dunham, as County Treasurer, and others. Judgment for defendants and plaintiff brings error.</p>

<p>1. JUSTICES OF THE PEACE — Jurisdiction—Action Against Corporation. .The act approved March 22, 1913 (Sess. Laws 1913, e. S3), relating to venue of actions against domestic corporations and providing that actions against such corporations may be brought “in the county where the cause of action or some part thereof arose,” confers jurisdiction in such actions upon justice of the peace courts when the cause of action in all other respects is within their jurisdiction.</p> <p>2. SAME — Service of Process. In actions brought before a justice of the peace under the provisions of the statute above referred to, valid service may be had outside of the county where the action is brought when properly directed and served.</p> <p>(Syllabus by Crow, C.)</p>

<p>1. APPEAL AND ERROR — Service of Summons. Service of the summons in error on an attorney, who appears, from the journal entry in the trial court, to be one of the attorneys of record for the defendant, is sufficient.</p> <p>2. APPEAL AND ERROR — Case-Made—Notice of Settlement — Am-thority of Attorney. An attorney, who appears on the record for a party, can accept service of the case-made, and waive notice of the time and place of its settlement.</p> <p>3. SIGNATURES — Execution—Mark. Under section 2945, Rev. Law's 1910, in order for one who cannot write to execute a written instrument by .mark, the person who writes the name of" the maker must also write his own name .oil the instrument as a witness to the signature, except in the case of a paper' executed before a judicial officer, and when the name of the maker is written by one person, and a wholly different person writes his name as a witness, this does not constitute a signature,</p> <p>4. APPEAL AND ERROR — Review—Amendments—Allowance—Discretion. Amendments are discretionary with the trial court, and its action in allowing or refusing them will not be reviewed by this court, unless there is an abuse of discretion.</p> <p>(Syllabus by Devereux, C.)</p>

<p>APPEAL AND ERROR — Filing Briefs — Dismissal. Where plaintiff in error fails to file briefs in a cause as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed.</p> <p>(Syllabus by Collier, C.)</p>

<p>APPEAL AND ERROR — Filing Briefs — Dismissal. Where plaintiff in error fails to file briefs in a cause, as required by rule 7 of this court (38 Oírla, vi, 137 Phc. ix), the appeal will be dismissed.</p> <p>('Syllabus by Collier, C.)</p>

<p>BANKS AND BANKING — Insolvency—Assets—Set-Off. At and prior to the failure of a state bank B. owed it a promissory note of $200, and at the same time it owed B. $250 for services rendered it. In a suit by the Bank Commissioneir, who took charge of the bank under the law, B. was entitled to set off what the hank owed him against his note; said sums being mutual debts existing at the time the commissioner took over the insolvent institution.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from Suverior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Replevin by David Smith against Rees Evans, as: executor of Famous Smith. Judgment for plaintiff, and; defendant brings error.</p>

Error from District Court, Tulsa County; L, M. Poe, Judge. In re Estate of James G. McGannon, deceased. Exceptions filed by Peter McGannon to the account of an administratrix were overruled in the county court, and' on the exceptor’s appeal were overruled in part and sustained in part, and Alice S. McGannon brings error. This was an appeal from the county court of Tulsa county, from a judgment of that court overruling exceptions filed to the account of an administratrix.

<p>Error from District Court, Texas County; . R. H. Loofbourrow, Judge.</p> <p>Suit by Ada Whan against William Edens and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Muskogee County; - ■ R. C. Allen, Judge. • Action by R. F. Spaulding, administrator . of. the estate of Lee Spaulding, deceased, against the Penn Mutual Life Insurance Company. Judgment for' plaintiff, and defendant brings error.

<p>Error from Superior Court, Custer County; J. W. Lawter, Judge.</p> <p>Action by W. W. Dunlavey against Elcie Maud: Moore, George ,W. Hulme, and others. Judgment for' plaintiff, and defendant George W. Hulme brings error;.</p>

Error from District Court,' Tulsa County; L. M. Poe, Judge. Action for injunction, by Herbert E. Woodward, guardian of Grace E. Woodward, a minor, against the Panther Creek Oil Company. From an order refusing a. temporary injunction, plaintiff brings error.

<p> Error from, District Court, Okmulgee County; ■ Wade S. Stanfield, Judge. </p> <p>Action by the Mounts Oil Gas & Mineral Company against Sandals, Griffin & Co. and others. Attachment dissolved, and plaintiff brings error.</p>

<p>1. BILLS AND NOTES — Negotiability—Certainty—Amount. The provision in a promissory note, “* , * * If suit is begun, judgment may be taken for an additional $15.00 and ten per cent, of the amount due for ' attorney’s fees,”- does not render the amount to be paid uncertain, under the provisions of the Uniform Negotiable Instruments Act, which went into effect June 11, 1909 (section 4052, Bev. Laws 1910), and therefore, does not render the note non-negotiatble.</p> <p>2. SAME — Holder in Due Course — Sufficiency of Evidence. The evidence in this case shows that the bank purchased the note in suit for value, in good faith, in the due-course of business, before maturity; and there is no evidence to show that it had any notice of defects or infirmities in the paper, or of any equitable defense thereto.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. JUSTICES OF THE PEACE — Procedure-^Judgment—Vacation ' or Review. A district court lias no power' to review, vacate, modify, or set aside a judgment of a justice of the peace under sections 6066, 6069, or section 6082, Comp. Laws 1909.</p> <p>2. JUDGMENT — 'Equitable Relief — Negligence of Applicant. An injunction against a judgment will not be granted in favor of a party wbo, through want of diligence, has lost his right of appeal.</p> <p>3. JUSTICES OF THE PEACE — Procedure—Judgment—Action for Equitable Relief. A court of equity will not enjoin the execution of a judgment of a justice of the peace, where the aggrieved party has a plain, speedy, and adequate remedy at law, unless it is shown that the legal remedy has been denied on account of fraud, or some unavoidable casualty. - •</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from Superior Court, Pittsburg County; Wallace Wilkinson, Judge. </p> <p>Action by Switzer Lumber Company against James Brazell. Judgment for Brazell, and the Lumber Company brings error.</p>

<p>SALES — Contracts—Construction. In an action for damages for breach of contract of sale providing that “40 tons of this hay to be loaded as soon as cars can be secured for the loading and weather permitting the said hay to be loaded, * * * and the other 60 tons * * * to be shipped out in 90 days; car service and weather conditions also as above stated,” held, that by the terms of the contract it was contemplated that the hay should be delivered within 90 days if it was practicable to do so under the prevailing condition of the weather, and not that it should b'e delivered within that time regardless of the very contingency for which provision was made.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from District Court, Grady County; Frank M. Bailey, Judge. </p> <p>Action by T. W. Lanier & Bro. against Z. L. McFarland. Judgment for plaintiffs, and defendant brings error.</p>

<p>SCHOOLS AND SCHOOL DISTRICTS — School Boards — Powers. It may be laid down as a general rule that, when several persons are authorized to perform a public service, or to do an act of a public nature, as an organized body, which requires deliberation, they should be convened in a body, in order that they may have • the counsel and advice of every member, although they may not all be of the same opinion concerning the matter in hand.</p> <p>SAME. A public body, such as a school board, consisting of several persons, authorized to perform acts of a public nature, and to which public duties are intrusted, such as the employment of teachers for the public schools, should perform such duties as a board, and to do so it is imperative that all should meet, or at least be notified of such meeting, and have an opportunity to meet and to consult relative to the emloyment of such teachers, before a valid contract can be entered into by them binding the district, • 1</p> <p>SAME — Ratification of Contracts. The foregoing is subject to the doctrine of law that, where a public body, such as a school board, has the original power and authority to' enter into a -contract, such as the employment of teachers, such body or board may legally ratify a contract of employment, made by the board, or a majority of the members thereof, in an irregular or unauthorized manners and a ratification of such a contract is equivalent to a full cpmipliance with authority originally given, and when so done renders the cpntract valid from its inception.</p> <p>(Syllabus by Robberts, C.)</p>

<p>APPEAL AND ERROR — Review—Sufficiency of Exceptions — Instructions. An exception to the court’s instructions to the jury in the trial of a cause as follows: “Excepts at the time to each and singular instructions No. 1 to No. 9, inclusive, given by the-court in the above-entitled cause, and also excepts to said instructions as a whole” — is too general, and is not an exception as prescribed by section 5003, Rev. Laws 1910, and is not sufficient to bring any of the instructions before the Supreme Court for review.</p> <p>(Syllabus by Galbraith, O.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Consol'dated actions by R. S. Litchfield and others against Lola Magee. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Action by Oliver P. Compton against S. D. Burton and another. Judgment for plaintiff, and defendant Burton brings error.</p>

<p>Error from County Court, Jefferson County; B. T. Price, Judge.</p> <p>Action by E. R. and D. C. Kolp against Ed V. Parsons and the Chicago, Rock Island & Pacific Railway Company, with cross-petition by defendant Parsons against his codefendant. Dismissed as to defendant railway, cross-petition stricken. Judgment for defendant Parsons, and plaintiffs bring error against defendant Parsons alone.</p> <p>This was an action commenced by the plaintiffs below against Ed V. Parsons and the Chicago, Rock Island '& Pacific Railway Company, as defendants, alleging that the plaintiffs had purchased several car loads of corn from the defendant Parsons, and that when the corn reached its destination in Texas the weights were short; that the plaintiffs had paid drafts drawn on them by Parsons for the alleged amount of corn shipped, which, when it was weighed at its destination, showed that the drafts were for too large an amount, as the corn was short in weight. The defendant Parsons filed an answer denying these allegations, and also filed a cross-petition against the codefendant, the railroad company, alleging that if there was any shortage when the corn reached its destination it was the fault of the carrier, as he had put the requisite amount of corn in the cars when they were shipped. After the cross-petition was filed, the plaintiff dismissed as to the railroad company. ' A motion was then made by the railroad company to strike the cross-petition of Parsons against it, which was granted by the' court, and exceptions duly saved by Parsons. The case then proceeded to trial, and a verdict and judgment was returned in favor of the defendant Parsons. When the case was brought to this court by thq plaintiffs below, the railroad company was not made a defendant in error, nor was any case-made served on it, and the question is now before this court on motion to dismiss for the failure to make the railroad company a party in error.</p>

<p> Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judac. </p> <p>Action by J. A. Mendonca against W. L. Russell and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Bryan County; Summers Hardy, Judge. </p> <p>Action by Edward S.' Butterfield against Roland H. Butler and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from County Court, Cleveland County; F. B. Swank, Judge. </p> <p>Action by J. 0. Black and another against A. W. Carlson, Mrs. L. A. Williams interpleading. Judgment for plaintiffs, and defendant Williams brings error.</p>

Error from District Court, McIntosh County; PresKe B. Cole, Judge. Ejectment by Martha Wilson against B. C. Greer. Judgment for defendant, and plaintiff brings error. The case was tried on an agreed statement of facts, which are, substantially: That the land in controversy (which is described) is located in McIntosh county, and was the allotment of Lotka, a full-blood Creek Indian, who was duly enrolled as such.

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by David B. Trowbridge against the Success Realty Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CLERKS OF COURTS — Compensation—Statutes. Section 828, c. 16, tit. “Judiciary,” Bey. St. U. S. (U. S. Comp. St. 1913, sec. 1383), relating to the fees and compensation of clerks of the district court of Oklahoma Territory, by virtue of section 13 of the Organic Act. (Bev. Laws 1910, yol. 1, p. lviii), is inconsistent and repugnant to the Constitution, and is locally inapplicable, and was therefore not extended to 'and did not remain in force by reason of, section 2, art. . 25,’ of the Schedule to the .Constitution, in the Staite of Oklahoma after the adoption of the Constitution.</p> <p>2. ’ OFFICERS — Change of Compensation — Validity of Statute. There • being no provision of the statutes or the Constitution fixing the compensation for the several clerks of the district courts prior to the passage of the act by the special or extraordinary session of the Legislature on March 19, 1910 (Sess. Laws 1910. c. 69, pp. 129, 139), the action pf said Legislature in fixing the compensation of such officers is not in conflict with Const, art. 23, sec. 10, forbidding the enactment of a law diminishing or increasing the emoluments or salary of a public officer after his election or appointment or during his term of office.</p> <p>3. CLERKS OF COURTS' — Compensation—Fee and Salary Act— Time of Taking Effect. The fee and salary act (Laws 1910, c. 69), passed by the Legislature March 19, 1910, without- the emergency clause, wherein the salaries of the' various county officers were based, for the respective counties, on the population thereof, to be determined by the federal census of April 15, 1910, went into effect and became operative as to clerks of the distriot courts on June 17, 1910, by virtue of section 58, art. 5, Constitution, regardless of the fact that on that date the census showing the population of such counties had not been officially promulgated by the federal bflicers.</p> <p>4. SAME — Counties—Compensation—Per Diem Fee — Recovery of Payment. The federal fee bill, in force in Oklahoma Territory prior to statehood, not having been continued in force by section 2, Schedule, Const, (section 366, $Villiams’ Ann. Const.), there was no law authorizing clerks of the district courts of the state of Oklahoma to claim or receive a per diem fee of $5 per day for attending sessions of the court. And, where such claims have been made to and paid by the board of county commissioners, the same may be recovered back from such clerk receiving them.</p> <p>5. COUNTIES — Officers — Compensation — Recovery. A-board of county commissioners is without jurisdiction to allow a claim of a county officer for salary, fees, or other compensation not authorized by law; and an officer who receives such sums from the county treasurer, no!t being entitled thereto, is liable therefor at the suit of the county, regardless of the fact that no appeal has been taken from the action of the board allowing same.</p> <p>6. APPEAL AND ERROR — Harmless Error — Admission of Evidence. In a suit on an official bond, where a full and complete copy thereof is attached to and made a part of the petition, which avers the execution and obligation of the bond, and the breach thereof, and where the answer is unverified, and pleads special defenses, in which the execution of the bond is admitted, and where the case is tried to the court on an agreed statement of facts, in which it is agreed that defendant executed a bond and it was filed and approved on the date shown by the exhibit, and where the case was tried and determined in the light of the terms of the bond, and the parties and court treated it as in evidence, the fact that it was not formally introduced in evidence is immaterial and harmless.</p> <p>7. OFFICERS — Official Bond — Change in Powers and Duties. In the execution of an official bond of a county officer, it is within the contemplation of the parties that the Legislature has the power to change, add to, or moditfy the powers and duties of such officer from time to time and as may be thought necessary; and therefore, where a law is passed placing a clerk of a «court on a salary, and reauiring him to account for certain fees, where theretofore his compensation had been on a fee basis, such change and added powers and duties, being germane and appropriate to his office, will not have the effect of discharging his bond from liability.</p> <p>8. CLERKS OF COURTS — Officers—Official Bond — Liability. Sureties on an official bond are only answerable for the acts of their principal, while engaged in the performance of some duty imposed by law, or for an omission to perform such duty; and therefore the bond of a court iclerk is liable for all moneys coming into his hands as such clerk under the law and by virtue of his office and unaccounted for by him.</p> <p>9. OFFICERS — Official Bond — Liability of Sureties. To constitute ■ color of office, such as will render an officer’s sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity.</p> <p>10. CLERKS OF COURTS — Official Bond — Liability of Sureties— Extent. ' Sums paid illegally and without authority or warrant of law to á court clerk by the board of county commisisoners, who are themselves charged with the duty of administering the county business and protecting its finances, are not within the obligation of his bond as sums properly coming into his hands by virtue of his office. .</p> <p>11. SAME — Liability—Deposits for Costs. Deposits made in court cases,- in accordance with the law, to secure court costs, which, as earned, belong to the county, are sums coming into the hands of the clerk by virtue of his office, and his bond is liable upon his failure to pay -them to such party as may toe entitled to receive them.</p> <p>12. SAME — Liability for Fees. Sheriff’s fees and so-called stenographer’s fees coming into the hands of the clerk in cases in the court he serves, and which fees belong wholly or in pa-rt to the county, are sums received by virtue of his office.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by J. J. White against C. R. Ball and another.. Judgment for plaintiff, and the defendant named brings, error.</p> <p>This action was commenced by J. J. White, hereinafter called plaintiff, against the Success Realty Company, a corporation, and C. R. Ball.' Upon the ground that the statements in plaintiff’s petition did not state facts sufficient to constitute a cause of action against the Success Realty Company, the action as to said company was dismissed, and the cause proceeded against C. R. Ball, hereinafter designated defendant. This action was brought to enforce the specific performance of the following written instrument, entered into by said Ball with plaintiff:</p> <p>“Oklahoma City, Oklahoma, April 12, 1911.</p> <p>“Received of J. J. White one dollar, and other valuable consideration, in full payment for lots numbered 16, 17, 39, 40, 41, 42 and 43, in block 15, Success Heights addition to Oklahoma City, Oklahoma; deed and abstract to said lots to be delivered to said J. J. White on or before August 10, 1911. C. R. Ball.”</p> <p>The cause came on for trial to the court and a jury was empaneled to aid the court in determining the facts. Defendant objected to the introduction of any evidence, upon the ground that the petition failed to state a cause of action, and moved the court for judgment on the pleadings, upon the same grounds. The court overruled said objection, to which defendant duly excepted.</p> <p>Plaintiff introduced in evidence the instrument sued ■on in this action, and testified that he knew C. R. Ball; that said instrument was signed by said Ball on the day •of its date, and delivered to him by said Ball; that on August 10, 1911, he called upon Mr. Ball to comply with the contract; that Ball did not do so; that the last time he talked to him about it Ball said he had sent off some papers, and that said papers contained a release on the lots, and that they would return soon and he would fix it up; that he did not call upon him again; that he had never made plaintiff a deed, or given him an abstract; that he had had experience in selling lots; that he knew where they were located, and that he thought the lots were reasonably worth $1,205; that prior to the acceptance of the receipt Ball stated there was a little against the lots at that time, but he would clear it up at the expiration of the contract; that he did not pay Mr. Ball a dollar for signing the receipt; that “he paid him a good many dollars in service”; that he was hired to said Ball, as president and manager of the Success Realty Company; that he had been working for said company about a year and a half prior to the date of said contract, and that there was a balance due him from said company of $1,205 at the time the instrument in evidence was executed ; that at the time Ball gave plaintiff this instrument and agreed to give him a', deed to said' property plaintiff agreed to release ■ his debt against the Success Realty Company. The defendant demurred to the evidence, which demurrer the court overruled, and defendant duly excepted.</p> <p>Defendant testified that he owned an equity in the lots named in said written instrument offered in evidence, and was such owner on the 10th day of August, 1911; that he was not in a position to make this plaintiff a warranty deed to said lots, free and clear of incum-brance; that there was a mortgage against said lots which was unreleased; that plaintiff did not pay him the dollar named in the written instrument sued upon; that he did not owe said plaintiff any rqoney, property, or other valuable consideration at the time; that there was no agreement between him and White to the effect that he was to convey to him any lots free and clear of incumbrance; that he wrote the paper introduced in evidence; that he received no valuable consideration for it; that he was president of the Success Realty Company; that the reason he did not give a deed to this property and gave the receipt was that he simply wanted to satisfy the plaintiff; that, as he did not receive any consideration, he did not intend to carry it out “when he gave it to him”; that it was not true that either the company or defendant owed plaintiff anything at all.</p> <p>The court propounded to the jury five interrogatories, which were answered as follows: That there" was a consideration for the instrument sued on, by services rendered C. R. Ball, as president of the Success Realty Company; that the value of the estate in controversy was $1,205; that the title to be conveyed by defendant to plaintiff was to be a clear title; and that it was so understood by both parties. Said findings were adopted by the court, and supplemented by an additional finding or qualification to the finding of the jury that the consideration be $1,205 which is due plaintiff from the Success Realty Company, and which indebtedness should be satisfied by the execution of the instrument here sued on, and that such was the understanding of the parties, and that was the true condition, and that, under the undisputed evidence, defendant was unable to convey to plaintiff the sort' of title he contracted to convey, and that plaintiff was entitled to recover whatever damages he sustained by reason of the inability of defendant to carry out the contract according to its terms, that is, the value of the land which was to be conveyed, which was $1,205. The court rendered judgment in favor of plaintiff for said sum, and decreed a lien on whatever interest defendant bought or had in the property covered by the contract. To said findings of fact and judgment rendered the defendant excepted. Within due time defendant filed 'a motion for new trial, which motion was overruled and to which action of the court the defendant duly excepted. From said judgment this appeal is prosecuted, under the following assignments of error:</p> <p>“(1) Said court erred in overruling the objection on behalf of plaintiff in error to the introduction of any evidence.</p> <p>“(2) Said court erred in not rendering judgment for the plaintiff in error on the pleadings.</p> <p>“(3) Said court erred in overruling the demurrer of plaintiff in error to the evidence.</p> <p>“(4) Said court erred in admitting evidence on the part of the defendant in error.</p> <p>“(5) Said court erred in giving the following instruction to the jury, to wit: Instruction numbered 3.</p> <p>“(6) Said court erred in submitting the five special interrogatories to the jury.</p> <p>“(7) Said court erred,Jn supplementing or qualifying the second'finding* of fact of the jury.</p> <p>. “(8): .Said- court erred in overruling-the motion of plaintiff in error for.;a, new; triaL’’</p>

<p>CANCELLATION OF INSTRUMENTS — Signature to Indemnity Bond —Forgery—Petition—Evidence. A petition asked for the cancellation of a purported signature to an indemnity bond on the ground that said purported signature is a forgery, and that the name appearing on said bond would necessarily injure the credit of the plaintiff, who was a large borrower of money. Held, that said petition states a cause of action and shows on its face that plaintiff did not have a legal remedy which would be adequate, certain and complete. Held, further, that the evidence fully sustains the allegations of the petition.</p> <p>(Syllabus by Rittenhouse. C.)</p>

Error' from District C.ourt, Canadian County; John J. Carney, Judge. Action by the Security Trust & Savings Bank of Charles City, Iowa, against G. F. Gleichmann. Judgment for defendant, and plaintiff brings error. [Note. — This case, tq the extent of the rule announced in the sixth paragraph of the syllabus and in so far as the same overrules Randolph v. Hudson, 12 Okla. 516, has been overruled by Union Nat.

Error from, District Court, Murray County; - R. McMillan, Judge. Action by F. J. Longmeyer against J. D. Lawrence- and others. Judgment for defendants, and plaintiff' brings error. This case was tried entirely on an agreed statement of facts. The second paragraph is as follows: “That letters of guardianship were issued to E. 0..

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Gertie Doyle, nee White, against Kate A.sher and others. Judgment for plaintiff, and defendants bring error.

<p> Error from County Court, Mayes County; J. E, Bristow, Judge. </p> <p>Action by Beal Ingraham against S. A. Byers, Judgment fur the defendant, and plaintiff appeals.</p>

<p>1. CORPORATIONS — Civil Action — Process—Sufficiency. A summons was issued for defendant, under section 1339, Rev. Laws 1910, and served upon the (Secretary of State. No showing of any kind was made that defendant had not appointed a service agent in this state, or that one of its officers did not reside in the state upon whom service could be made. Held, in the absence of a showing by the defendant that it either had a service agent or an officer in the state upon whom prdeess could be had, the service was sufficient.</p> <p>2. PARTNERSHIP — Relation—Intention of Parties. Where the parties to a contract alone are concerned, a copartnership is not created, except where the parties so intend it, by a voluntary agreement to that effect.</p> <p>3. SAME — Requisites. In order to constitute a partnership inter sese there must be : (a) An intent to form the same; (b) generally. a participating in both profits and losses; (c) and such a community of interest, as far as third persons are concerned, as enables each party to make contracts, manage the business, and dispose of the whole property.</p> <p>4. CORPORATIONS — Powers—Partnership. A corporation cannot enter into a partnership agreement with an individual.</p> <p>5. SAME — Joint Venture. A corporation can enter into a joint venture with an individual, if the nature of the contract is in line with the business its charter authorizes.</p> <p>6. PARTNERSHIP — Relation — Sharing Losses. In partnership agreements, if the contract is silent on that point, there is an implied agreement that the partners shall share in the losses.</p> <p>7. SAME — Interest in Profits. If the interest in the profits is joint, then that generally makes it a partnership, but a common interest in the profits does not.</p> <p>8. SAME — Control and Right to Profits. Where the defendant company retained control and possession over the entire business and the plaintiff had no legal or equitable right in the profits as profits, but only a contractual right to have his share paid over to him by the company, held not to constitute a “partnership.”</p> <p>9.. SAME — -Members—Agency. Every' member bf a: partnership is a principal, having a joint-.interest in the partnership property, and is an agent for his associates.</p> <p>10. SAME — Relation—Contracts. Contract examined, and held not to constitute a “partnership.”</p> <p>11. CORPORATIONS — Foreign Corporation — -Attachment—Proof of Issue and Levy. Where it was conceded the defendant was a foreign corporation, and the evidence shows it was indebted to plaintiff upon a contract, where an attachment sued out was not called into question at the trial, it was not necessary for plaintiff to make proof of the issue and levy of the attachment.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. PLEADING — Verification—Necessity—Indorsements of Written Instruments. Tlie statute, providing that in all actions allegations of the execution of written instruments and indorsements thereon shall be taken as true unless denied under oath, is specific, and requires a specific allegation of the indorsements in the petition, before the defendant is required to deny them under oath. It is the allegation of indorsements that the defendant is required to deny under oath, and not some indorsement not pleaded, but merely shown by an exhibit attached to the petition. And. unless the indorsements are specifically alleged in the petition, the issues may be raised by an unverified denial.</p> <p>2. LIMITATION OF ACTIONS — Tolling of Statute — Voluntary Payment. A credit on a note to toll the statute must be a voluntary payment. And the application, by the holder of the note, of the , proceeds of the sale of securities hypothecated at the time of the making of the note, as' a credit on the note, does not toll the statute; for the reason that it does not constitute a new promise to pay, or a new acknowledgment of the indebtedness. But it is only an enforcement of the original obligation and promise.</p> <p>(Syllabus by Brett. C.)</p>

<p> Error from District Court, Hughes County; John Cdruthers, Judge. </p> <p>Action by George R. Parker against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Parties—Effect of Joining in Petition. Where parties in the trial court are necessary as parties here, but such parties failed to file a motion for new trial in the court below, and served no ease-made within the time allowed by law, or a valid order extending, as to them, the time, and whore such parties were not made defendants in error, the mere joining them in a petition in error as plaintiffs in error, along with others who had laid the proper foundation for an appeal, does not bring them into this court.</p> <p>:2. APPEAL AND ERROR — Service of Case-Made — Extension of Time — Validity of'Order. Where judgment was rendered against several defendants on May 19, 1911, and three of the defendants filed no motion for a new trial, but four other derendanrs did, and on June 3, 1911, the motion for new trial was overruled, and time, extended in whici hto serve case-made as to “defendants'’ generally, held that, as to the three defendants not complaining of the judgment by motion for new trial, the order extending the' time in which to serve a case was a nullity.</p> <p>(Syllabus bv Brewer. C.)</p>

<p> Error from District Court, Coal County; R. M. Rainey, Judge. </p> <p>Action by Robert T. West against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MALICIOUS PROSECUTION — Wrongful Attachment — “Punitive Damages.” An action at common law may be maintained for wrongful attachment against the plaintiff therein when the attachment is sued out maliciously and without probable cause, in which case, if the pleadings and evidence warrant it, both actual and punitive or exemplary damages may be recovered.</p> <p>(a) In such case, by reason of section 4070, St. 1893 (section 4718, Rev. Laws 1910), actual damages only may be recovered for the mere wrongfulness of the attachment and without regard to either' malice or probable cause.</p> <p>2. ATTACHMENT — Wrongful Attachment — Damages. Actual damages only for mere wrongful attachment may be recovered in an action against the plaintiff therein independent of the undertaking required by section 4070, St. 1893 (section 4814, Rev. Laws 1910), and without allegation or proof that the same was sued out maliciously or without probable cause.</p> <p>3. SAME — Actions. In an action for wrongful attachment, an allegation that the attachment was abandoned and waived, and that the cause in which it had been sued out was fully disposed of before the filing of the petition in the instant case by a judgment for the debt sued for, sufficiently shows, as against a general demurrer, the dissolution of the attachment suit to warrant the instant action.</p> <p>ON PETITION FOR REHEARING.</p> <p>4. APPEAL AND ERROR — Record—Questions Presented for Review. Where a pleading copied in a brief in this court is sufficient upon its face, as against a general demurrer, which demurrer was sustained by the trial court, it is not necessary, in order to have such erroneous decision reviewed in this court, under rule 25 (38 Okla. x, 137 Pac. xi), that exhibits, not required by statute to be attached to such pleading, should be copied into such brief.</p> <p>(a) In reviewing such decision, it will be presumed, in the absence of anything appearing to the contrary, that such exhibits do not negative the allegations of such pleading.</p> <p>5. ATTACHMENT — Wrongful Attachment — Determination. The taking, by plaintiff, of a mere personal judgment for debt, without reference therein to a prior ancillary attachment of defendant’s personal property, does not impliedly negative either the dismissal, dissolution, or abandonment of such attachment.</p> <p>C. SAME — Petition. As against a general demurrer, a petition in an action for wrongful attachment sufficiently describes the attached property by alleging that plaintiff was “engaged in business of undertaking and selling furniture at retail in the city of Duncan,” and that his “stock of merchandise in the city of Duncan” was taken in such attachment.</p> <p>(Syllabus by Thacker, O.)</p>

<p> Error from, County Court, Nowata County; Wm. F. Gilluly, Judge. </p> <p>Action by R. C. Crisp against William F. Gillespey, Sheriff of Nowata County. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by W. W. Smith against John W. Shields and another. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Custer County; J. W. Lawter, Judge. Action by J. P. Dillinger against J. P.. White, E. F. White, and H. W. Smith, doing business as White. & Smith, and J. P. White, H. W. Smith, and I. U. Smith and another, as administrators of ,E. F. White, deceased, interveners. Judgment, for plaintiff, and defendants bring error.

Error from District Court, Oklahoma, County; George W. Clark, Judge. Action by Van Zant-Bruce* Drug Company against the Orient Insurance Company, the drug company’s trustee in bankruptcy being later substituted as plaintiff. Judgment for plaintiffs, and defendant brings error.

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

<p>1. DAMAGES — Personal Injuries — Future Suffering. Tie jury, in a personal injury ease, may take into consideration, in assessing the damage, the pain and suffering which may reasonably be expected in the future, provided evidence has been presented tending to show that the person injured will, with reasonable certainty, experience future pain as a result of the injury. r</p> <p>2. SAME — Personal Injuries — Future Suffering — Proof. There are two rules by which future pain and suffering may be submitted to the jury: (1) If the injury is objective, and it is plainly apparent, from the nature of the injury, that the injured person must of necessity undergo pain and suffering in the future, the jury may infer that fact from proof of such an injury alone. (2) But where the injury is subjective, then, to warrant a jury to return a verdict for future pain and suffering, there must be produced evidence by expert witnesses that the plaintiff, with reasonable certainty, will experience future pain and suffering as a result of the injury.</p> <p>3. EVIDENCE — Opinions—Permanency of Injuries. It is not competent for a party, who as a witness testifies to his pains, to state his opinion that the injuries • which caused the same are permánent.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. LANDLORD AND TENANT — Breach of Covenant — Action. One who has a farm lease contract to farm the cultivated ■ land on certain described premises, which also provides that he “shall^ also have pasture on said premises for all of his stock,” has the right to sue his lessor immediately for damages upon said1 lease;1 before the expiration of ■ the lease term, for nailing up the pasi ture and forbidding him thereafter to put his stock or, any part of it therein.</p> <p>2. SAME — Measure of Damages. In such a case the measure óf the lessee’s damage, under the provision of section'. .2852, Revised Laws of 1910, is the amount which will compensate him for.all-the-detriment proximately caused thereby or which, in the ordinary course of things, will likely result therefrom, and he will not ordinarily be permitted to put his stock up and feed them hay, grain, and chops and drive them to water and charge his’lessor;- • as damage for the breach of the contract, with the ¿expense .of so doing and with the loss in values of such stock sustained by reason of their having to do without .pasturage during the time ■which, under the terms. of his contract, they should, have b,een permitted to graze on such pasture.</p> <p>3. SAME. In such case the lessee will be permitted to recover from the lessor that sum of money, as damages, which he tVo’uld reasonably and probably have .to expend to procure like pasturage to that to which his contract entitled him, together with the reasonable and probable expense of 'transferring his stOc¿ from one pasture to another and the reasonable value of his time hr procuring a new pasture and transferring his stock thereto.</p> <p>4. TROVER AND CONVERSION — Pleading-ySufficiency. One, who, being sued for damages for the breach of'a farm lease contract, pleads a counterclaim for the value of personal property taken by the lessee from the leased premises during the life of the lease, as one of his defenses! must allege • the ownership of such personal property to have been in himelf. at- the time of. the taking, or his counterclaim will not state a cause of acition against the plaintiff, and it will'not be error for the trial courti-io'refuse to admit evidence tending to establish such • defectively stated counterclaim. . .. .. ... ■ í¡:,, ., .... ..</p> <p>(Syllabus by Wilson, C.)</p>

Error from District Court, Rogers County; T. L. Brown, Judge. Action by John A. Reed and others against J. W. Orr and others. Judgment for plaintiffs, and defendants bring error.

<p>1. TRIAL — Directed Verdict — Right To. As to the effect of a demurrer to the evidence, the rule laid down in Scully v. Williamson, 26 Okla. 19, 108 Pac. 395, 27 L. R. A. (N. S.) 1089, Ann. Cas. 1912A, 1265, is followed.</p> <p>2. PARTNERSHIP — Presumptions—Continuance of Relation. Where it is admitted that the defendants were partners in 1907, and nothing appears in the record as to a dissolution of the partnership, as against a demurrer to the evidence, it will be presumed ■ that they were partners in 1910.</p> <p>3. PAYMENT — Acceptance of Cheeks — Effect. A creditor may, if he pleases, take an order on a third person, or a check in payment of his debt; but where such order or check is received by the creditor, in the absence of evidence that he agreed to take it in discharge of the debt, the presumption is that it is only to be regarded as a payment when actually paid, and, in the absence of such agreement to take the order or check as payment, it will be treated as a collateral security to the original debt.</p> <p>(Syllabus by Devereux, C.)</p>

<p> Error from County Court, Canadian County; W. A. Maurer, Judge. </p> <p>Action by the Finóla Manufacturing Company against H. C. Paulsen and another. Judgment for defendants, and plaintiff brings error. '</p>

Error from District Court, Seminole County; Tom D. McKeown, Judge. Petition by T. S. Cobb to the County Commissioners of Seminole County for the remission of taxes. The petition was denied, and petitioner appealed to the district court. The relief being denied there, he brings error.

<p>1. BREACH OF MARRIAGE PROMISE — Measure of Damages— Discretion. In an action for damages- for breach of a promise to marry, the measure of damages' rests in the sound discretion of the jury. Section 2871, Rev. Laws 1910.</p> <p>2. TRIAL — Impeachment of Verdict — Jurors. Upon grounds of public policy, trial courts will not receive the affiidavits, depositions, or oral testimony of jurors to impearih their verdict.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p> Error from District Court, McClain County; R. McMillan, Judge. </p> <p>Action by the Midland Land Company against A. Embry and others. Judgment for' plaintiff, and defendants bring error.</p>

<p> Error from County Court, Lincoln County; H. M. Jarreti, Judge. </p> <p>Action by Charles Egbert against the St. Louis & San Francisco Railroad Company. Cause dismissed, and plaintiff brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Virginia Owens and others against .the Supreme Tribe of Ben Hur, a corporation. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Kingfisher County; James B. Gullison, Judge. Action by John Richmond against H. B. Robertson and others, in which land was ordered sold on foreclosure. A sale was ordered confirmed, and Richmond brings error.

<p>1. WITNESSES — Knowledge of Witness — Written Instruments— Identification. Before a witness can be permitted to testify to the signature of a written instrument, when the execution thereof is denied under oath, it must be shown: First, ¡that such witness w.as present, and saw the instrument executed; or, second, that he was acquainted with the writing and signature of the party; or, third, that such witness is competent to testify to the gen- . .uineness of such signature by. a comparison with other writings or signatures admitted or proven to be genuine.</p> <p>2. EVIDENCE — Written Instrument' — Identification—“Standard of Comparison.” The genuineness of the writing or signature made the basis of comparison, and sometimes called the “standard writing,” must be proved by direct or positive evidence, and cannot be established by comparison.</p> <p>3. INDIANS — Enrollment Records — Evidence. The enrollment records of the Commissioner to the Five Civilized Tribes are conclusive evidence as to age of the members of said tribes and freedmen, on transactions had after the Act of Congress of "May 27, 190S,-c. 199, 35 Stat. 312, went into effect.</p> <p>.... (Syllabus by Brown, C.l ...</p>

Error from District Court, ■Comanche County; J. T. Johnson. Judae. Motion by O. G. Sparks to set aside- judgment recovered by the City National Bank in a cause in which the latter was plaintiff and the former was defendant. Judgment sustaining motion, and plaintiff brings error.

<p> Error from District Court, Oklahoma County.; , ■ W- R. Taylor, Judge. </p> <p>Action by H. C. Tréntman against Edward Croak, Judgment for plaintiff, and defendant brings error.</p>

<p>1. COMMERCE — Interstate Shipment Contract — Statutes—Constitutional Provisions. On account of the passage of the Act of Congress of June 29, 1906, c. 3591, 34 Stat. 584, 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 sec. 9 of art. 23 (see. 358, Williams’ Ann. Const.) of the Constitution of this state applies only to intrastate shipments (following Adams Express Co. v. Croninger, 226 U. 8. 401, 33 Sup*. Ct. 148, 57 L. Ed. 314, 44 L. R. A. [N. S.] 257).</p> <p>2. SAME — Provision for Notice of Claim for Damage — Validity. 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 live stocls 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 stock 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 the 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 such1stock is mingled with other stock, such notice to be served w-itiün one day after the delivery of such stock at destination,' is valid. St. Louis & S. F. R. Co. v. Ladd, 33 Okla. 160, 124 Pac. 461.</p> <p>3. SAME — Contract limitation as to Notice and Time for Suit— Instruction. The court instructed the jury that a shipper of live stock, under an interstate contract of shipment, was not “hound by any stipulation, provision, or agreement therein which required him to give written notice of damages he intended to claim * * * within one day from and after the delivery of the animals,” etc., and that a provision therein limiting the plaintiff to a period of six months after any cause of action accrued thereunder within which to bring suit was not binding, because in violation of the State Constitution. Held, reversible error.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Bryan County; Summers Hardy, Judge. Action by Charles Cowan, a minor, by A. Neeley, guardian, against Charles J. Hubbard and others. Judgment for the defendants, and plaintiff brings error.

<p> Error from District Court, Cleveland County; Tom D. McKeown, Assigned Judge. </p> <p>Action by Anna Bryan against Kenner W. Allison. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Disposition of Cause on Appeal — Evidence. In a ease purely of equitable cognizance, where the parties are not entitled to a jury, this court has on appeal the power to go into and examine the evidence, and, where the judgment of the trial court is clearly against the weight of the evidence, to render or cause to be rendered such judgment as the trial court should have rendered.</p> <p>2. VENDOR AND PURCHASER — Rescission—Notice—Sufficiency. In an action for specific performance of contract, the defense is made that plaintiffs unreasonably delayed tender of performance until the lands involved had iconsiderably appreciated in value, with a view of speculating on the chances of,, its proving advantageous to them, and the further defense was made that the defendant had rescinded the contract after reasonable notice. Held that, under the facts and circumstances in this ease, the time given in the notice was insufficient for the proper closing of the transaction, and the same amounted to an arbitrary and sudden attempt to terminate the negotiations.</p> <p>3. TIME — Holidays—Performance on Succeeding Day. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.</p> <p>4. VENDOR AND PURCHASER — Conditions Precedent — Tender of Performance — Sufficiency. Where a contract for the sale of lands provides for .the payment of the purchase price upon the approval of certain abstracts and the execution and delivery of a deed either party, in order to put the other in default, must make a tender of performance, and the depositing of such deed in a bank, not designated by the contract, is not a tender of performance.</p> <p>5. SAME. Where time is not of the essence of a contract for sale of lands, and such contract contemplates the (conveyance of good title, the seller cannot place the purchaser in default by a tender of conveyance, so long as there are outstanding mortgages remaining unsatisfied of record.</p> <p>(Syllabus by Rittenhouse, O.) ' '</p>

<p> Error from the County Court, Stephens County; W. H. Admire, Judge. </p> <p>Action by the Dempster Mill Manufacturing Company against H. J. Cox and another. Judgment for defendants, new trial granted, and defendants bring error.</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by Hattie Woodward against Nettie E. Jones, as administratrix of the estate of C. G. Jones, deceased. Judgment for plaintiff, and defendant brings error.

<p>1. CONSTITUTIONAL LAW — Contracts—Impairment of Obligation of Contracts — What Constitutes. The remedy subsisting in a state or territory when and where a contract is entered into and to be performed is a part of the obligation, and especially is that true when the particular remedy is agreed upon and dearly expressed in the contract; and any subsequent law of such state or territory which so affects that remedy as to substantially impair and lessen the value of the contract is in violation of section 10, art. 1, of the Constitution of the United States, which provides that no state shall pass any law impairing the obligation of a contract, and therefore void.</p> <p>2. MORTGAGES — Foreclosure—Sale. Under section 4759 of Mansfield’s Digest of the Laws of the State of Arkansas, which was in force in the Indian Territory before statehood, all sales of real property under mortgages and deeds of trust for less than two-thirds of the appraised value, and within less than one year from the date of the said appraisement, are void.</p> <p>3. SAME — Right of Mortgagees to Purchase. Under the decisions of the Supreme Court of the State of Arkansas, which were effective in the Indian Territory before statehood, it was the established rule in equity that a mortgagee of real estate, with power of sale, was not allowed to purchase the property directly or indirectly for his own benefit at such sale, and if the sale be made with fraud or partiality to the creditor, and with unfairness and oppression toward the mortgagoir, and to his injury, such sale would, on proper showing, be set aside.</p> <p>4. VENDOR AND PURCHASER — Bona Fide Purchasers — Who Are. In such sales a person purchasing an interest in land takes with constructive notice of whatever appears in the several conveyances constituting the chain of title, and if anything, including quitclaim deeds, appears in such conveyances, sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that which he is about to purchase, it is his duty to make inquiry, and if he does not do so, he is guilty of bad faith or neglect, and the law will charge him with the actual notice he would have received, if he had made it, and in such case he would not be entitled to protection as a bona fide purchaser.</p> <p>(Syllabus by Robberts, C.)</p>

Error from, County Court, Rogers County, H. Tom Kight, Judge.' Action by Hattie J. McClain and others against A. N. Starr and others. Judgment for plaintiffs, and defendants bring error.

<p>1. EJECTMENT — Bight to Maintain — Title. A person holding a valid contract for a deed from the owner of legal title to realty, and having performed and fully complied with conditions and made payments due under terms of said contract up to time of commencement of ejectment suit, and occupying said premises at the time said ■ contract was executed, and whose right to possession was never disputed l>y the owner or holder of the legal title, has an equitable interest in said realty sufficient, to maintain an action of ejectment, as against one in possession claiming the right thereto under same contract for deed.</p> <p>2. JURY — Jury Trial — Waiver. A jury may be waived without a wirtten stipulation, where both parties to an action submit their '■testimony to the court without a jury, the court announcing during the trial and at the close thereof that he would render judgment on the merits, and neither party objecting, but both parties, by their attorneys, expressly consenting thereto; and an objection thereto and demand for jury thereafter will not be considered by this court, the judgment itself reciting that jury was waived by both parties, the record clearly showing that the case was being tried to the court on its merits.</p> <p>3. APPEAL AND ERROR — Review—Finding. Where several assignments of enrol- all state in different ways that the judgment of the trial court is not sustained by the evidence, or is contrary to the law or the evidence, or both, and the evidence is conflicting on the material issues, this court, will not undertake to pass upon the credibility of the witnesses, nor the weight to be given their testimony; but if the record discloses evidence which, if true, would reasonably tend to sustain the judgment, the 'judgment will be affirmed.</p> <p>(Syllabus by Crow, C.)</p>

■ Appeal from County Court, Canadian County; • W. A. Maurer, Judge. Action by' Frank Lewis against Charles Preston and others, begun in justice court, and appealed to the county court. Judgment for plaintiff, and defendants appeal.

<p>1. APPEAL AND ERROR — Review—Sufficiency of Evidence. In the absence of a motion for a directed verdict, the insufficiency of the evidence to sustain the verdict is not presented to this court on appeal. Muskogee Electric Traction Co. v. Reed, 35 Olcla. 334. 130 Pac. 157.</p> <p>2. SAME. If there is any evidence, including every reasonable inference the jury could have drawn from the same, reasonably tending to support the verdict, this court will not reverse a case for insufficient evidence.</p> <p>3. EVIDENCE — Weight—Circumstantial Evidence. A jury may, if they so decide, accept circumstantial evidence upon one side, and reject positive testimony presented on the same point by the other side.</p> <p>(Syllabus ,iy Mathews, C.)</p>

<p>1. PLEADING — Demurrer—Plea in Abatement. Under the Code (sections 4735 and 4736, Rev. Laws 1910), there is no provision for a plea in the nature of a plea in abatement, and such pleading, if sustained at all, must be treated either as a demurrer or as an answer.</p> <p>2. PLEADING — Reply—Waiver. Where the defendant voluntarily goes to trial without a reply having been filed, when he is not bound to do so, he is held to have waived it, and is regarded as consenting to go to the proof of the answer as if it were denied.</p> <p>3. EVIDENGI5 — Secondary Evidence — Admissibility. Before parol or secondary evidence is admissible to prove the pendency of a prior ** action, .it must be shown that the record evidence is unavailable, unless such parol or secondary evidence is used to explain missing details in the record evidence.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from County Court, Marshall County; J. W. Falhner, Judge. Action by A. W. Rison against A. L. Harris. Judgment for defendant, and plaintiff brings error. This was an action to recover rentals reserved in a lease of certain farm lands, which the plaintiff alleged was duly assigned to him. The answer, which was duly verified, denied that the lease had been assigned, and this was the issue in the case.

<p> Error from County Court, Marshall County; J. W. Falkner, Judge. </p> <p>Action by A. W. Rison against J. L. Henry. Judgment for defendant, and plaintiff appeals.</p>

<p>1. APPEAL AND ERROR — Review—Law of Case. In tbe second appeal of a cause to tbis court, tbe facts being found to be practically thé same as on tbe first appeal, tbe rule applies that tbe decision on the first appeal becomes tbe law of the case in all of its subsequent stages, and will not be reviewed upon such second appeal.</p> <p>.2. SPECIFIC PERFORMANCE — Right To. A suit in equity may be maintained to enforce specific performance of an oral contract for the conveyance of land, where tbe moving party has fully performed tbe terms of such contract on her part. Purcell v. Corder, 33 Okla. 68, 124 Pae. 457.</p> <p>.3. APPEAL AND ERROR — Review—Harmless Error. Tbe admission of incompetent evidence by tbe trial court will not warrant tbe reversal of a judgment supported by competent evidence, unless tbe Supreme Count can say, upon an examination of tbe entire record, that a miscarriage of justice has probably resulted, or a statutpry or constitutional right of tbe complaining party has been violated. Section 6005, Rev. Laws 1910.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>COMMERCE — Interstate Commerce — What Constitutes. A foreign corporation, engaged in the manufacture and sale of shoes, is engaged in interstate commerce, and is not denied the privileges of suing in the icourts of Oklahoma upon contracts of sale made with citizens of this state on account of its failure to comply with the provisions of article 9, c. 15, Rev. Daws 1910.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from Superior Court, Custer County; 3. W. Laivter, Judge. </p> <p>Action by C. A. Roman and another against H. H. Clark. Judgment for plaintiffs, and his motion for an order to vacate it being overruled, defendant brings error.</p>

<p> Error from District Court, McIntosh County; Preslie B. Cole, Judge. </p> <p>. Action by Nancy Deere against R. J. Koch and Jackson Thompson. Judgment for plaintiff, and defendants bring error.</p>

Error from. District Court, Pawnee County; L. M. Poe, Judge. Action by G. W. Parsons against E. H. Simpkins and others. Judgment for plaintiff. Motion by defendant Simpkins to vacate judgment overruled, and he brings error.

<p>1. APPEAL ■ AND ERROR — Review — Instructions — Equitable . Action. Where a jury is .impaneled in an- action of purely equitable cognizance to aid the court in finding's the. facts, the finding of the jury being merely advisory, the giving or' refusing instructions cannot be r ¡¡signed as error in this court.</p> <p>2. JUDGMENT — Conclusiveness of. Adjudication — Dismissal Without Prejudice. . Where plaintiff is allowed by the court to dismiss the action without prejudice pending a ruling on a de- • murrer to the evidence, or pending the decision on a motion for an instructed verdict, such, order is not res judicata, .and does not bar another action on the same cause of action.</p> <p>3. APPEARANCE — “General Appearance" — What Constituí s. ' Wliere a defendant appears specially and objects to the jurisdiction of. the court by reason of defective- service of summons, and his motion to quash the service, is denied,, he .may file his answer and proceed with the trial, and this will not be held a general appearance;’ but where,' in his answer, he asks for affirmative relief, it is, ■ a ■ general appearance, and he thereby waives all objections to the service of the summons, and subjects himself to the jurisdiction' of the court for all purposes.</p> <p>■4. LIS PENDENS — Notice of Action — “Purchaser Pendente" Lite.” A purchaser pendente lite of property actually in litigation, for value and without actual notice -in fact, takes with notice of the action. So, where an action was instituted in March, 1910, but. no summons was issued until July 19, 1910, and the purchaser . acquired his title on July 26, 1910, after the summons was issued, held, that he is a “purchaser pendente lite,” and such action is notice to him.</p> <p>5. SAME. Where, under the above facts, the action was dismissed by the plaintiff without prejudice in September, 1911, and a new action for the same cause of action was instituted in November, 1911, held, there being no unreasonable delay in bringing the second action, and the condition of the purchaser not having changed in any respect, the benefit of the notice of the first action is not lost.</p> <p>(Syllabus by Levereux, O.)</p>

Error from District Court, Kiowa County; James R. Tolbert, Judge. Action by the W. E. Caldwell Company, a corporation, against the John 'Williams-Taylor Company, a corporation, and another. Judgment for defendants, and plaintiff brings error.