Volume 55 — Oklahoma Reports

Error from District Court, Seminole County; Tom' D. McKeown, Judge. Action by H. H. Rogers and V. V. Harris against Mace Herndon, Treasurer of Seminole County, to enjoin collection of taxes. Judgment for defendant, and plaintiffs bring error.

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Ejectment by Harry R. Denton against F. M. Sutton. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court„ Pontotoc County; Tom D. McKeown, Judge. Action by Pleas E. Smith against the Missouri, Oklahoma & Gulf Railway Company, to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Continuance — Discretionary Ruling. The granting or refusing of a continuance on account of the absence of counsel is a matter of discretion with the trial court, and, unless it appears that such discretion was abused, to the prejudice of the substantial rights of a litigant, the action of such court will not be disturbed upon appeal.</p> <p>2. APPEAL AND ERROR — Review—Weight of Evidence — Fraud— Equity. While the rule prevails in this jurisdcition that in cases of purely equitable cognizance it is within the power of this court to consider the entire record, weigh 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 should have been awarded by the trial court, yet the doctrine is equally well established that -where fraud is relied upon as a basis for equitable relief, and the trial court, after hearing the evidence, finds that fraud has not been established, this court will not disturb such findings, unless, it is clearly against the weight of the evidence. '</p> <p>(Syllabus by Blealunore, O.)</p>

Error from District Court, Garvin County; Ejectment by Ben Brown and others against Joseph C. Barber and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from County Court, Grant County; J. W. Bird, Judge. </p> <p>Action ’ by D. L. Cline against D. B. McCracken. Judgment for plaintiff, and defendant brings error!</p>

<p> Error from District Court, Jefferson County; Frank M. Bailey, Judge. </p> <p>Mandamus .by Emily Henderson against J. F. Pendleton. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Pawnee County; Geo. E. Merrick, Judge. </p> <p>Action by Mattie Haviland and another against the Minnetonka Oil Company, a corporation. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. BROKERS — Commissions—Right of Action — Contract—Damages. An owner of certain property contracted with a broker to in'ocure a purchaser for the same, at a certain price, net to the owner, with the further agreement that the broker was to look to the purchaser for his commissions for such deal. The broker procured a purchaser, able, willing and ready to take oyer the property at the owner’s price, and pay the broker's commissions, but the owner, without any fault of the broker or purchaser, failed to complete the contract. Held, that the broker could not recover on contract for commissions in an action against the owner of the property; and held, further, that the broker’s remedy, if any, would be in an action against the owner of the property for damages for failure to comply with his contract to sell.</p> <p>2. SAME. Where the gravamen of the action is to recover commissions claimed to be due the plaintiff upon a contract to furnish the defendant a purchaser, able, ready and willing to purchase certain property, a judgment for damages for failure on the part of the vendor to comply with the contract of sale cannot he sustained.</p> <p>3. ACTION — Abolition of Distinctions — Operation of Statute. "While sec. 4050. Rev. Laws 1910, abolished the distinction between actions' at law and suits in equity, as well as the forms of all such actions and suits, and provided that there should be but one form of civil action, it never intended to, and did not. abolish the distinction between an action for tort and an action on contract.</p> <p>4. BROKEKS — Action—Variance—Failure of Proof. When the cause of action alleged in the complaint i's on contract and the proof shows it to be a cause for tort, it is not a variance, but a failure of proof.</p> <p>(Syllabus by Robberts, C.)</p>

<p>Error .from Superior Court, Custer County; J. W. Lawter, Judge.</p> <p>Action by Fern A. Clark against- Monroe F. Clark. Judgment for plaintiff, and defendant brings error.</p>

Error • from District Court, Paionee County; L. M. Poe, Judge. Action by the Union Trust Company, a corporation, against Frances Cox and another. Judgment for defendants, and plaintiff brings error.

<p>BILLS AND NOTES — Bona Fide Holder — Presumption. Where a party is in tlie iwssession of a note payable to bis order, there is a strong presumption that he is the owner and holder of the same for value..</p> <p>(Syllabus by Mathews, C.J</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by the Midland Savings & Loan Company, a corporation, against Ellie Sutton and others. Judgment for defendants, and plaintiff brings error.

<p>INSURANCE — Accident and Health Policy — Construction—“Boil.” A special accident and health insurance policy, providing for the payment of indemnity in the event the insured under certain conditions suffered from boils, is clear and explicit, and does not cover disability occasioned by a disea.se designated as “ischio-rectal abscess” ; and the courts have not the right to enlarge upon the plain provisions of such policy.</p> <p>(Syllabus by liittenhouse, (’.)</p>

<p>Error from County Court, Bryan County; - J: L. Rwppolee, Judge.</p> <p>Action by W. W. Gates against Dave Summers and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. 2,3. APPEAL AND ERROR — Assignments of Error — Sufficiency—Instructions — Change of Contention. The same as paragraphs 1, 2, and 3 in Bouton v. Carson, 51 Okla. 579, 152 Pac. 131.</p> <p>4. SALES — “Sale”—“Executory Agreement to Sell,” The same as 4 in Brooks v. Tyner, 38 Okla. 272, 132 Pac. 6S3.</p> <p>5. SALES — Value of Property — Evidence. Upon the trial of a direct issue of fact, as to whether the sale of certain property was made at a. certain price, either party, as a circumstance bearing thereon, may show the value of the property involved, which the jury may consider for what it is worth in determining the issues.</p> <p>(Syllabus by Hooker, C.)</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by D. F. Sullivan against John Bryan and others. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Failure to File Briefs — Dismissal. Dismissal under rule 7 (38 Okla vi, 137 Pac. ix) for failure to prosecute.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmanve. Where defendant in error has not filed a brief or offered an excuse for such failure, aud the brief of plaintiff in error appears to reasonably sustain the assignments of error, this court will not search the record for grounds upon which to sustain the judgment rendered, but will reverse the case.</p> <p>(Syllabus by Collier, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiff in error fails to file brief under rule 7 (38 Okla. vi. 137 Pac. ix) of this court, and an examination of the record discloses that the appeal is without merit and was prosecuted for delay, the judgment appealed from may be affirmed.</p> <p>(Syllabus by Mathews, 0.)</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Proceedings by Albert H. Bell, administrator, for the probate of the will of Tuckabachee, a full-blood Creek Indian, contested by Ethel Davis and others. From a judgment of the district court denying probate on appeal from an order of the county court admitting the will to probate, the administrator brings error.

Error from. District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge. ■ Action by the Midland Savings & Loan Company, a corporation, against J. F. Legg and others. Judgment for plaintiff, and defendants bring error.

<p> Error from Superior Court, Garfield County; Dam Huett, Judge. </p> <p>Action by H. N. Medley, against the Chicago, Rock Island & Pacific Railway Company and another. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CONSTITUTIONAL LAW — Abrogation of Statute by Constitution. Art. 6, c. 20, Comp. Laws 1909, was abrogated by sec. 39, art. 9 of the Constitution, and after the adoption of the Constitution the provisions of the aforesaid statutes were not in force in this state.</p> <p>2. CORPORATIONS — Subscription Contract — Right of Action — Cumulative Remedies. The provisions of the statutes named with reference to forfeiture and sale of stock to pay the subscriptions, even if in force, are cumulative.</p>

Error from County Court, Tulsa, County; Conn Linn, Judge. Action brought in a justice of the peace court by M. F. Smith, executor of the estate of Tuckabachee,-deceased, against W. S. Cutburth. Pending appeal to county court, the executor died, and Albert H. Bell, administrator of the estate of Tuckabachee, deceased, with will annexed, was substituted as plaintiff. Judgment for plaintiff, and defendant brings error.

Error from District Court, Wagoner County; R. C. Allen, Judge. Action by James S. Posey, guardian of Kinnie W. Posey, a minor, and others, against Carl Stein and others, in which F. W. Case and another intervened. Judgment for plaintiffs, and interveners bring error.

<p> Error from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Action' by R. W. Williams against Tom Hart and another. Judgment for plaintiff, and defendants bring error.</p>

<p>BANKS AND BANKING — National Banks — Usury—Recovery of Penalty — Demand. An action to recover double the amount of usurious interest paid, against a national bank is governed by section 5198, Revised Statutes United States (U. S. Oomp. St. 1913, sec. 9759), and not by section 1005, Rev. Laws. 1910, and it is not necessary in such an action to allege and prove a demand for the return of the usury claimed.</p> <p>(Syllabus by Rummons, O.)</p>

<p>1. TRIAL, — Issues for Jury — Conflicting Evidence. Where there is evidence reasonably tending to sustain an issue on the part of plaintiff, and the evidence of defendant conflicts therewith, a determination thereof is for the jury.</p> <p>2. APPEAL AND ERROR — Verdict—Conflicting Evidence. A verdict found upon evidence reasonably tending to support it, though in direct conflict with all other evidence in the ease, will not be disturbed by this court.</p> <p>3. NEW TRIAL — Impeachment of Verdict — Testimony of Juror. Upon grounds of public policy, jurors will not be heard by deposition, affidavit, or other sworn statement to impeach their verdict.</p> <p>4. SAME — Incompetency of Juror — Hearsay. Statements made by a juror after the trial of a case to or in the presence of defendant's attorney, tending to show that such juror was an incompetent juror, cannot be shown by the testimony of such attorney.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from County Court, Pawnee County; George E. Merritt, Judge. </p> <p>Proceeding under search warrant by the State, wherein the Milwaukee Beer Company filed an interplea. Interplea dismissed, and interpleader brings error.</p>

<p> Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>"Action by the Marshall Manufacturing Company, a corporation, -against E. J. Dickerson and another, a co-partnership doing business undep the firm name of E. J. Dickerson. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Death of Party — Dismissal. One of the plaintiffs in error died pending proceedings in error and before submission in this court. Nothing was done to revive the action, and the year (see. 5294, Rev. Laws 1910) expired. The defendant in error, without consenting to a revivor, moved to dismiss; Held that the action is barred by .the statute, and the appeal is ordered dismissed.</p> <p>(Syllabus by Mathews, O.)</p>

<p>APPEAL AND ERROR — Scope of Review — Hypothetical Questions. Abstract or hypothetical questions disconnected from the granting of actual relief, or from the determination of which no practical relief can follow, except the awarding of the costs, will not be determined on appeal, but the cause will be dismissed.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from County Court, Tulsa County; Conn Linn, Judge. Action by J. M. L. Sargent and another .against J. W. Leach and another. Judgment for plaintiffs, and defendants bring error.

<p>1. SHERIFFS AND CONSTABLES — Action on Official Bond — Person Killed Resisting Arrest — Pleading—Color of Office. Where a deputy sheriff killed a man, and his widow brought suit against the sheriff and his bondsmen for damage, alleging that the husband of the plaintiff had committed a misdemeanor in the presence of the deputy sheriff, who thereupon attempted to arrest him, and,, upon the deceased resisting arrest, tlie deputy released his hold upon him, and stepped off a few steps, but returned to the de- ■ eased saying, “I will arrest you, anyhow,” and shot the deceased, killing him, held* that the facts pleaded show this act was done while in the discharge of his official duty, and under the color of office, and that it was error to sustain a demurrer to the petition on the theory that at the time of the shooting the deputy was only engaged in a personal encounter, and not acting under the color of office.</p> <p>2. SAME — Official Acts — What Constitute. The mere fact that a peace officer in the discharge of his duty becomes angered does not rob his acts of their official character. Nor does the fact that he may have momentarily abandoned his effort to discharge this official duty render the resumption of it any the less an official act.</p> <p>3. SAME — Wrongful Acts of Deputy Sheriff — Liability on Official Bond. Under the Constitution, the law cannot inflict the death penalty as punishment for a misdemeanor; and an officer certainly has no right to kill a person guilty of a misdemeanor to prevent him from escaping justice.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from, District Court, Jefferson County; Frank M. Bailey, Judge. </p> <p>Action by the National Cash Register Company, a corporation, against S. L. Hollister. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Grady County; Frank M. Bailey, -Judge. Action between H. Kapp and others and R. B. Croan. From the judgment, the parties first mentioned bring error.

<p> Error from District Court, Tillman County; Frank Mathews, Judge. </p> <p>Action by Atha Thompson against C. E. Thompson and others. Judgment for plaintiff, and defehdants bring error.</p>

<p>Error, from Superior Court, Muskogee County; Farrar L. McCain, Judge. .</p> <p>Action by the West Publishing Company against H. T. Walker. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Jefferson County; J. M. Adams, Judge. Action -by L. H. Squires and another against T. E. L. Pooley, wherein S. F. Pooley intervened. Judgment for intervener, and plaintiffs bring error.

<p>NEGLIGENCE — Definition. “Negligence'’ is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such a person would not hare done.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. . </p> <p>Action by R. M. Eacock against Retailers’ Fire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Seminole County; - A. S. Norvell, Judge. </p> <p>Action by John Nagle agaiñst the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from. District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the Union Trust Company and others against the Shelby Downard Asphalt Company. Judgment for defendant, and plaintiffs bring error.

<p> Error from County Court, Noble County; L. B. Robinson, Judge. </p> <p>Action by the Sumner Mercantile Company against Joseph Fakler. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Custer County; James R. Tolbert, Judge. Action by N. F. Fouts and another, as administrators of the estate of Shoe Boy, an Indian, decease®, against T. J. Nance. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by J. L. Pearson and another against the Glen Lumber- Company, a corporation. Judgment for defendant, and plaintiffs bring error.

<p>APPEAL . AND ERROR — Failure to File Brief — Reversal. Where plaintiff in error has completed his record and filed it in the Supreme 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 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 Brewer, C.)</p>

<p> Error from District Court, Latiyner County; W. H. Brown, Judge. </p> <p>Action by Charles Ghinelli and another against the Kali Inla Coal Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from. District Court. Marshall County; Jesse M. Hatchett, Judae. Action by the City National Bank of Madill against V. Gayle, as County Treasurer of Marshall county. A demurrer to defendant’s answer was overruled, and plaintiff brings error.

Error from- District Court, Garvin County; R. McMillan, Judge. Action by Edgar A. Bancroft against R. D. Bell. From judgment denying application of defendant to set aside judgment, defendant brings error.

<p> •Error from District Court, Washington County; ' R. H. Hudson, Judge. </p> <p>Action by A. McCann and others against L. J. Rees. Judgment for defendant, and plaintiifs bring error.</p>

<p> Error from County Court, Stephens County; J. W. Marshall, Judge. </p> <p>Action by J. F. Waymire against the Comanche Mercantile Company. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Discretionary Ruling — Granting New Trial. The action of a trial court in granting a new trial will not' be disturbed, unless it appears beyond all reasonable doubt that such court has manifestly and materially erred with respect to some pure, simple, and uninixed question of law, and that except for such error the ruling of the trial court would not have been so made.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from, Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by William A. Madden, as guardian of Marcus E. Madden, a minor, against the People’s Electric Railway Company, a corporation, and others. Judgment for plaintiff, and Muskogee Electric Traction Company, defendant, brings error.</p>

Error from County Court, Stephens County; J. W. Marshall.. Judge. Action by the Wheeler & Motter Mercantile Company against the Comanche Mercantile Company and another. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action by Susie R. Ringleman against John H..Dillon. Judgment for plaintiff, and defendant brings error.</p>

Error from. County Court, Greer County; M. H. Mills, Special Judge. Action by P. K. Richardson against F. L. Strother, administrator of the estate of William H. Harris, deceased. Judgment for defendant, and plaintiff brings error.

<p>1. ASSAULT AND BATTERY — Civil Action — Evidence of Reputation. AVhere, in an action for damages on account of an- assault and battery, the answer is a plea of justification and it is claimed by the defendant that the plaintiff was the aggressor in the fight, and the testimony is in conflict on this issue, it is not error to admit .testimony of the general reputation of the plaintiff for peace and quiet in the community where he lived.</p> <p>2. SAME — Instructions. AVhere, in the trial of such action, there is a conflict in the testimony as to whether the office where the fight occurred was a public or private office, it is not error to submit this issue to the jury with the statement as to the rule of law governing the rights of the parties, if it be found from the evidence that the place where the fight occurred was a public office.</p> <p>.3. APPEAL AND ERROR — Ground for Reversal — Instructions. A cause should not be reversed by the Supreme Court unless the court can say from an examination of the entire record that the trial probably resulted in a miscarriage of justice, or “constitutes a substantial violation of a constitutional or statutory right.” Section 6005, Rev. Laws 1910.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from- Superior Court, Pottawatomie County; George C., Abernathy, Judge. Action by J. R. Williams and others against School District No. 80 and others. Judgment for defendants, and plaintiffs bring error.

<p>APPEAL AND ERROR — Failure to File Brief — Reversal. Where plaintiff in error has completed his record and filed it in the Supreme 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 ottered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>(Syllabus by Brewer, O.)</p>

<p> Error from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action by Charles Loren Noble, by Emma G. Noble, his guardian, and another, against Percy A. Burhans and others, and the Blaine County Bank by leave was made a party defendant. Judgment for plaintiffs, and certain defendants bring error.</p>

<p>1. MECHANICS’ LIENS — Time for Filing — Notice—Subcontractor. While the law providing for a materialman’s lien should be liberally construed to effectuate the object of the law, it is a condition precedent to the establishment of such lien that the proper lien statement be filed with the clerk of the proper district court, within the time provided by section 3863, Rev. Laws 1910, if the party seeking the lien be an original contractor, and within the time provided by section 3864, Rev. Laws 1910, if the party .seeking the lien be a subcontractor; and such subcontractor must also give notice of the filing of such lien statement to the owner.</p> <p>2. HUSBAND AND WIFE — Contract by Husband — Presumption of Agency. From the fact that the relation of husband and wife exists, it cannot be presumed that the husband is the agent of the wife, and authorized, by reason of such marital relation,, to contract for building upon the wife’s land, so as to create a lien on her land.</p> <p>3. MECHANICS’ LIENS — Subcontractor — Personal Judgment Against Owner. A subcontractor, entitled to a mechanic’s lien upon the land of the owner, is not legally entitled to a personal judgment against said owner on account of said lien.</p> <p>4. BANKRUPTCY — Discliarge—Defense—Pleading and Proof. In order to successfully maintain the defense of discharge in bankruptcy from the claim sued upon, the fact of such discharge in bankruptcy must be pleaded and proved.</p> <p>(Syllabus by Collier, C.)</p>

<p>APPEAL AND ERROR — Service of Case-Made — Extension of Time— Condition Precedent. To authorize the making of an order extending the time for serving a case-made, under section 5246, Ilev. Laws 1910, after the time allowed by law, or a former order extending the time, has expired, notice must be given the opposite party of the application for such order, and a showing made to the court or judge, that the failure to serve the case within the time previously allowed, and then expired, was because of “accident or misfortune which could not reasonably have been avoided.’’</p> <p>(Syllabus by Brewer, C.)</p>

Error from Superior Court, Pittsburg County; W. C. LiedtJce, Judge. Action by George M. Swift against the McAlester Trust Company and others. Judgment for certain defend-’ ants, and plaintiff brings error.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Frank Hudson and others against Richard C. Adams and others. Judgment for all plaintiffs except William Hudson, and defendant Adams Oil & Gas Company brings error.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Frank Hudson and others against Richard C. Adams and others. Judgment for plaintiffs, except William Hudson, who brings error.

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by Martha Rose against James G. Sackett and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. TRIAL — Direction of Verdiet — Evidence. Where a petition alleges facts which are sufficient to constitute a cause of action, and at the trial there is evidence offered which reasonably tends to establish the truth of all such allegations, it is error to instruct a verdict for the defendant.</p> <p>2. ■ CONTRACTS — Building Contract — Breach—Extra Work — Direction of Verdict — Sufficiency of Evidence. Evidence in this case examined, and held to be reasonably sufficient to establish the allegations of plaintiffs' petition.</p> <p>(Syllabus by Wilson, C.)</p>

<p> Error from District Court, Osage County; R. H. Hudson, Judge. </p> <p>Action by L. Y. McFarland against the Town of Hominy.- Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge. </p> <p>Action by W. C. Chisum, against Ellen Huggins and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by the De Soto Paint Manufacturing Company, a corporation, against Kent Strahan. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from, District Court, Le Flore County; W. H. Brown, Judge. </p> <p>Action by A. F. Bray and another against the Boko-she Smokeless Coal Company, a corporation. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Rogers County; T. L. Brown, Judge. </p> <p>Action by the'-Parker Gordon Cigar Company against the First National Bank of Claremore. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by the Van Arsdale-Osborne Brokerage Company against T. N. Patterson. Judgment for defendant, and plaintiff brings, error.</p>

<p>1. SALES — Action on Purchase-Money Note — Defense—Breach of Warranty. In an action on a promissory note given as part payment for machinery purchased, the maker of the note may defend on the ground of breach of warranty as to fitness of the machinery to do the work for which it was intended and recover on a cross-petition the amount of damages sustained by reason of such breach.</p> <p>2. SAME — Breach of Warranty — Measure of Damages. • The measure of damages for breach of warranty as to fitness of machinery to do certain work is the difference between the value of such machinery as warranted to be and its actual value.</p> <p>3. • APPEAL AND ERROR — Presentation—Instructions. Instructions given to the jury by the trial court, although copied in full in the case-made, are not brought to the Supreme Court for review unless excepted to as provided by section 5003, Rev. Laws 1910.</p> <p>(Syllabus by Oalbraith, C.)</p>

Error from District Court, Oklahoma County; . W. R. Taylor, Judge. Action by Nancy E. Baldock against Harry C. Keisel and others. Judgment for plaintiff, and the defendant named brings error.

<p> Error from County Court, Osage County; Chas. R. Gray, Judge. </p> <p>Action by J. L. Miller against C. E. Hair and another, copartners as C. E. Hair & Co. Judgment for defendants, and plaintiff brings error.</p> <p>This action was commenced by the plaintiff in error against the defendants in error to recover a balance alleged to be due him as superintendent in the construction of the courthouse and jail in Osage county. It appears that the defendants in error were architects employed by the county to furnish preliminary sketches, contract, Working drawings, specifications, detailed drawings, and general superintendence of the building operations of such courthouse and jail. The contract further provided that, when the buildings had progressed to the extent to justify daily superintendence, the county should select a superintendent, who should be paid by the architects, the compensation not to exceed $--per month, as expressed in the contract on file in the office of the commissioners. Acting under this contract the county employed the plaintiff in error as superintendent, but made no contract with him as regards his compensation, and paid for a part of the time at the rate of $5 per day. A jury being waived, the court made the following findings of fact and conclusions of law:</p> <p>“(1). The court declares the law to be that oral testimony was admissible in this case to show what the contract was between C. E. Hair & Co. and the county commissioners of Osage County, as to the amount of salary that the superintendent should receive.</p> <p>“(2). The court finds the fact to be that the agreement between C. E. Hair & Co. and the board of county commissioners was that the board of county commissioners were to employ a superintendent at a salary of not to exceed $75 per month, and the court finds that C. E. Hair & Co. did not ratify or acquiesce in the board of county commissioners paying J. L. Miller a greater sum than $75 per month.</p> <p>“(3). The court declares the law to be that J. L. Miller could not recover from C. E. Hair & Co. a greater sum than $75, as provided in the contract between C. E. Hair & Co. and the board of county commissioners, unless C. E. Hair & Co. acquiesced in or ratified the paying to J. L. Miller a greater sum than $75 per month.</p> <p>' “(4). The court finds that the evidence, does not show that the plaintiff, J. L. Miller, had any knowledge or information of the contract between C. E. Hair & Co. and the board of county commissioners, whereby the board of county commissioners was not to pay the superintendent a greater sum than $75 per month.</p> <p>“(5) The court finds that C. E. Hair & Co. recognized J. -L. Miller as superintendent up to and including January 6, 1913.”</p> <p>There was judgment for the defendants, and the plaintiff brings the case to this court by petition in error and case-made.</p>

<p> Error from Superior Court, Oklahoma County; Edward D,ewes Oldfield, Judge. </p> <p>Action by Sarah Turk and another against Sam Choi. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. TRIAL — Action by Broker for Commission — Instructions—Evidence. Where a real estate broker is suing for a commission for the sale of real estate, which the uncontroverted evidence shows was actually made, and upon the terms the land was listed with him, it is not prejudicial error for the court to refuse to instruct, the jury that before he can recover he must have produced a purchaser ready, able, and willing to buy it, and upon the terms agreed upon. For while correctly stating a general principle of law, such requested instruction has no specific application to the facts in the case.</p> <p>2. SAME. Where a sale of real estate has been completed, and the agent is suing for his commission, it is not error for the court to refuse to instruct the jury that before the broker can recover his commission for the sale he must have procured a written, enforceable contract from the purchaser, binding him to take the land upon the terms agreed upon. This rule is only applicable when the agent is suing for a commission where the sale was never consummated.</p> <p>(Syllabus by Brett, C.)</p>

Error■ from District Court, Comanche County; J. T. Johnson, Judge. Action by J. S. Cather and others against W. S. Spencer and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Woodward County; Clyde H. Wyatt, Judge. </p> <p>Action by A. M. Appelget and another, partners as Appleget & Herod, against E. C. Forest. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District' Court, Washington County; R. H. Hudson, Judge. </p> <p>Action by Mary K. Lausten against Mads C. Laus-ten. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Carter County; S. H. Russell, Judge. Action by the Van Arsdale-Osborne Brokerage Company against R. L. Riner and others. Judgment for certain defendants, and plaintiff brings error.

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by S. A. Apple and another against West-heimer & Daube, a firm composed of Max Westheimer and another. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. APPEAL AND ERROR — Record—Case-Made—Requisites. The absence from the record of a recital that the case-made contains all the evidence introduced on the trial of the cause is ground for dismissal, if the question, involved requires an examination of the evidence; but, where this is the only defect in the record, . it is the policy of this court on application to permit the record to be withdrawn for the purpose of supplying this omission.</p> <p>2. SAME — Time for Settlement. The time allowed for suggesting amendments does not begin to run until the date which the court has fixed for serving the case-made, regardless of the fact that it may have been served before that date. And the defendant in error has the full time allowed him from that date in which to examine the case-made and suggest amendments.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from County Court, Murray County; H. W. Fielding, Judge. </p> <p>Action by R. E. May against G. W. Armstrong, Ben Hopson, and another. Judgment for plaintiff, and defendants named bring error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by John Sampson and others against Porter Staples. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. INDIANS — Estate of Creek Allottee — Descent and Distribution. Where an allottee .of the Creek Nation died February 4, 1912, the descent of such allottee’s estate is cast by the laws of Oklahoma, subject to the provisos of the sixth section of the Creek Supplemental Agreement (Act June 30, 1902, c. 1323, 32 Stat. 501) that “only citizens of the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation,” and “that if there be no person of Creek citizenship to take the descent and distribution of said estate then the inheritance shall go to noncitizen heirs in the order named in” the laws of the 'State of Oklahoma.</p> <p>2. SAME. Where a citizen of the Creek Nation died February 4, 1912, leaving a surviving wife, who was a Creek citizen, and no issue, and no father nor mother, nor brother nor sister; his whole estate vested in the surviving wife, under subdivision 5, sec. 89S5, Comp. Laws 1909. (section 8418, Rev. Laws 1910).</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from District Court, Cherokee County; John I-I. Pitchford, Judge. </p> <p>Action by Harry Hibbard against John Ford and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by S. H. Stephens against William Kremar and another. Judgment for plaintiff, and defendants bfiv error.</p>

<p>APPEAL AND ERROR — Briefs—Rules of Court — Reversal. Where plaintiff in error -lias filed proper brief sustaining bis assignment of error and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may reverse the judgment in accordance • with the prayer of the petition in , error.</p> <p>(Syllabus by Watts, O.)</p>

<p>1. INDIANS — Allotment of Deceased Creek Indian — Descent and Distribution. Johnson Kernals was the infant son of George Kernals, an enrolled Creek Indian by blood, and Ins wife, Retta Kernals, a 'Seminole by blood. Johnson Kernals was born October 25, 1900, and died June 14, 1901, intestate, without issue, leaving his father and mother as his only survivors. The land involved was selected and allotted “to the heirs of Johnson Kernals, deceased,” on the 27th day of August, 1904, and patent issued therefor on the 31st day of October, 1904. Thereafter there was born to George and Retta- two other sons, Harry and Benjamin F. D. Kernals, the plaintiffs herein. ' The father, George Kernals, died intestate on the 12th day of March, 1906, leaving surviving him his widow, Retta, and his two sons, plaintiffs herein. Held, that under the provisions of sections 6 and 7 of the Supplemental Treaty with the Creek Tribe of Indians, approved by act of Congress on June 30, 1902 ( 32 Stat. 501, c. 1323), ratified by the Creek Indians July 25, 1902, and made effective by the proclamation of the President August 8, 1902. the allotment, including the land involved, was patented to George Kernals (not by name) as the father and only heir of Johnson Kernals, deceased, and upon the death of George Kernals the land descended directly to the plaintiffs herein as his sons and only heirs, thereby leaving perfect title in them, subject only to the dower interest in Retta Kernals, his surviving widow.</p> <p>2. INDIANS — Lands—Dower—Assignability. Under the statutes of Arkansas, put in force in the Creek Nation by section 6 of the Supplemental Treaty above referred to. the widow’s right of dower, prior to assignment, is not an estate in the lands, but a mere chose in action, and is not at law assignable to a person not vested with the fee.</p> <p>3. DOWER — Transfer of Dower Before Assignment — Evidence. A - right of dower, before assignment, cannot be transferred by the widow to any other than the heir at law or person holding the legal title to the land under the husband, so as to vest in such other person a right of action therefor, or enable him to defend against ejectment brought by the administrator or heirs at law; and such a deed executed by her before assignment of dower is not admissible in evidence to establish title or right of I>ossession in her vendee.</p> <p>4. SAME. The purchaser of a widow’s dower interest in the lands of. her deceased husband, before the same has been set off to her, cannot avail himself of such title or interest in an action, of ejectment brought against him by the heirs.</p> <p>5. EJECTMENT — Proof of Possession — Title. In ejectment, proof of possession under claim of title by the plaintiff’s ancestor is sufficient to entitle the plaintiff to recover, unless the defendant' shows a better title, and the burden, is on the defendant to prove a superior title or right of possession.'</p> <p>(Syllabus by Robberts. C.)</p>

<p> Error from District Court, McCurtain County; Summers Hardy, Judge. </p> <p>Action by James S. Schoolfield against'Samuel J. Logan and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by C. E. Underwood against O. P. McNair and another. Judgment "for plaintiff, and defendant named brings error.</p>

Error from District Court, Adair County; . John H. Pitchford, Judge. Action by J. L. Marrs and another against B. S. Barnes and another. Judgment for the defendant named, and plaintiffs and Lafayette Barnes, defendant, bring error.

<p>1. MUNICIPAL CORPORATIONS — Municipal Warrants — '’‘Commercial Paper.” Municipal warrants possess none of the attributes or qualities of commercial paper, save the capacity of being transferred by delivery or assignment.</p> <p>2. STATES — State Warrants — Sale—Implied Warranty. Where the vendor sells to the vendee warrants purporting to be drawn upon a special fund, there is an implied warranty that the warrants-so sold are what they purport to be; that is, valid existing obligations against the state.</p> <p>(Syllabus by Bittenhouse, O.)</p>

<p>1. DEPOSITIONS — Objections—Waiver. Exceptions to depositions should be presented to the court before the trial is commenced, and if not they are waived, and it is error, after the jury has-been sworn, for the court to suppress the depositions, where the testimony is material and necessary in order to establish the facts disclosed therein; but the proper practice is to overrule the exceptions then and to pass upon the objections to competency, etc., when the same is offered in evidence.</p> <p>2. FIXTURES — Pleading'—Replevin. Petition in this case stated in opinion, and same is held to be sufficient to show that the building in question was personal property and that plaintiff is entitled to maintain an action in replevin therefor.</p> <p>3. FIXTURES — Termination of Tenancy — Recovery of Personalty —Buildings. Agreement and intention of the parties may alone determine the character of improvements placed upon real estate, and where a building is placed upon the lot of another, with the positive agreement between the owner and the lessee that same should remain the personal. property of the lessee • and might be removed therefrom, the same is personalty, and replevin may be maintained therefor by the lessee; and this is true, even though the lot is sold to a third party, provided ■ the third party has notice of the character of the improvements thereon.</p> <p>4. . LANDLORD AND TENANT — Forfeiture of Lease — Nonpayment of Rent — Demand. Forfeitures are not favored in law, and a lease cannot be forfeited for nonpayment of rent unless demand is made for the payment of same.</p> <p>(Syllabus by Hooker, O.)</p>

<p> Error from District Court, Cleveland County; R, McMillan, Judge. </p> <p>Action by James H. Shears against U. S. Tubbs. Judgment for plaintiff, and defendant brings error.</p>

<p>COURTS — Officers—Compensation—County Stenographer. Under the provisions of sections 20-22, c. 69, Sess. Daws 1910 (secs. 1833, 1836, and 1838, Rev. Daws 1910), a ’county stenographer is not entitled to retain any fees for making transcripts of shorthand notes of proceedings had in the county court; but all such fees must be paid into the county treasury to the credit of the court fund. The only compensation to which the county stenographer is entitled for such services is the salary prescribed by the statute.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by the Board of County Commissioners of Oklahoma County against Verna De Armond, County Stenographer of Oklahoma County. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Kingfisher County; James B. Cullison, Judge. </p> <p>Action by S. W. Hogan against Isabella A. McKone and another. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Equity—Judgment—Evidence. In a case-purely of equitable cognizance, where the parties are not entitled to a jury, this court has on appeal the power to go into, examine, and weigh the evidence; but if the judgment of the trial court is not clearly against the weight of the evidence, it will not be-disturbed.</p> <p>(Syllabus by Brett, O.)</p>

<p>1. APPEAL AND ERROR — Verdict—Evidence. A verdict will not be reviewed as to the facts on appeal if there is sufficient evidence to support it.</p> <p>2. SAME — Taxation of Cotts. Section 1006, Rev. Laws, 1910, is as follows : “In all cases where an action is brought by any person to recover the penalty prescribed by section 1005, supra, the prevailing party in such action shall be entitled -to recover as part of the-costs, a judgment against the other party to such action for a reasonable attorney’s fee in a sum not less than $10.00 to be fixed by the court, .for the' use and benefit of the attorney of .record of' the prevailing party, together with all costs. Held, that where, ' in an action to recover a money judgment, the defendant sets up-the piea of usury and alleges the payment of usurious interest and prays foi' judgment for double the amount of usury so paid and the trial court finds against the defendant on such issue, the findings of said court will not he disturbed on appeal; and held, further, that in such case the action of the trial court in taxing attorney’s fees to the defendant as the losing party will not be disturbed in this court unless it is apparent that manifest injustice has been done.</p> <p>(Syllabus by Robberts, C.)</p>

<p>APPEAL AND ERROR — Dismissal—Death of Party — Failure to Revive. The case-made was filed here July 22, 1914. One of the plaintiffs died August 9,1914, written notice 'of which was served on counsel for defendant November 9, 1915, on which date counsel for plaintiffs filed a motion to dismiss the appeal. Suggestion of death was filed in this court by counsel for plaintiffs November 10, 1915, Defendant has had a reasonable time to revive since notice of death and motion to dismiss were served on his counsel, but has taken no steps. The appeal should be dismissed.</p> <p>(Syllabus by Watts, 0.)</p>

Error from District Court, Tillman County; Frank Mathews, Judge. Action brought in district court by Oma Agnes Havron against A. F. Priboth and another, to cancel a deed as in fraud of creditors and subject lands to payment of judgment, wherein J. B. Baird, Jr., was appointed receiver. On application of the receiver, the county judge granted a mandatory injunction, which was later dissolved by the district court, and plaintiff and the receiver bring error.

<p> Em or from District Court, McClain County; R. McMillan, Judge. </p> <p>Suit by Walker Bros, against the Barger-Adams Company on a promissory note and to foreclose a chattel mortgage. Judgment for plaintiffs, and defendant brings ■error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Thomas P. Flanagan against the City of Tulsa, a municipal corporation, and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Wagoner■ County; R. P. de Graffenried, Judge. Action by W. E. Early and another against Wm. E. Long and another. Judgment for plaintiffs, and defendants bring error.

<p>1. APPEAL AND ERROR — Presentation for Review — Evidence — Transcript. Where the errors assigned are such that, in order to review them, it would be necessary to examine the evidence introduced below, the Supreme Court cannot review the same upon a transcript of the record.</p> <p>2. SAME. Assignments of error to the effect that the court erred in finding: (1) That W. D. Berry was not an innocent purchaser ; (2) that Tina Fields inherited said lands, and rendering judgment decreeing said lands to her as an inheritance, and that she had any interest, title, or claim to said lands, and in canceling the said deed of Tina Fields to Isaac Fields, and the deed from Isaac Fields to W. D. Berry; and (3) in overruling plaintiff’s motion for a new trial — cannot be presented for review upon a transcript of the record, because the same cannot be determined except by an examination of the evidence.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from District Court, Cherokee County; John II. Pitchford, Judge. </p> <p>Action by H. M. Chesnutt against John Hicks and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Cherokee County; John H. Pitchford, Judge. Action by Jackson Locust and others against Frank J. Boudinot and others. Judgment for plaintiffs, and defendants bring error. Held: so that all of the heirs should share in it; it being asserted, as was alleged in the petition and admitted throughout the case, that James Locust and his heirs were all full-blood Indian citizens of the Cherokee Nation.

<p>APPEAL AND ERROR — Presentation Below — Motion for New Trial. Errors occurring during tlie trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon, and including such errors, has been made by the complaining party, and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the Supreme Court.</p> <p>(Syllabus by Brown, C.)</p>

Error from District Coyrt, Coal County; Robt. M. Rainey, Judge. Action by C. M. Threadgill and others against the City of Coalgate and others. Judgment for defendants, and plaintiffs bring error.

<p>1. TRIAL — Verdict—Instructions. Verdict examined and held a substantial compliance with the instructions of the court.</p> <p>2. JUDGMENT — Conformity to Verdict — Caption. As a general rule the caption of a verdict is not a material part thereof, and cou'rts will not ordinarily be governed thereby,, but rather by the body or findings. However, where the court makes the caption a part of his instructions and the intention of the jury is evident, it was error for the trial court to disregard such verdict in entering the judgment.</p> <p>3. RAILROADS — Death of Pedestrian — Verdict—Judgment. In an action for damages for personal injuries, where a railway company and one of its employees, who were charged with the commission of the acts of negligence which caused the injury, were joined as parties defendant, and where from the negligence pleaded and the proof made the railway company, if liable at all, is liable upon the principle of respondeat superior, it is error to render. ' judgment against the railway company upon the verdict of the jury which found in favor of the plaintiff as against the railway company and in favor of the employee.</p> <p>(Syllabus by Watts, C.)</p>

Error from District Court, Garfield County; James W. Steen, Judge. Action by Amanda V. Clampitt, administratrix and personal representative of the estate of B. F. Clampitt, deceased, against the St. Louis & San Francisco Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error.

Error from- District Court, Carter County; S. H. Russell, Judge.. Ejectment by James Robinson and others against W. E. Caldwell and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by Frank T. Jordan against F. E. Scott and others. Judgment for plaintiff, and defendants bring error.</p>

<p> .Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by W. G. Brockman and another against A. S. Bilby' and others. Judgment for .plaintiffs, and defendant John S., Bilby brings error. Affirmed in part, and remanded, with directions.</p> <p>The defendants in error, hereinafter styled plaintiffs, commenced this action in the district court of Wagoner county in ejectment against the plaintiff in error, John S. Bilby, hereinafter styled the defendant, and others, to recover possession of the N. W. % of section 33, township 19 N., range 15 E., in Wagoner county. The case was tried to a jury, resulting in a verdict and judgment for the plaintiffs. The defendant John S. Bilby filed his motion for new trial in due time, which was overruled, and he appeals. Both the plaintiffs and the defendant claim title to the land in controversy from the same grantor, Alice Burley, to whom it was allotted as a .Creek freedman. It appears that on March 21, 1908, Alice Burley conveyed her surplus allotment, described as the S. E. % and the W. V% of the N. W. % of section 33, township 19 N., range 15 E., to Harve L. Hollingsworth and W. L. Hammet, by general warranty deed, for a consideration, expressed in the deed, of $1,400; that on March 25, 1908, said Alice Burley and her husband, Harrison Burley, conveyed such surplus allotment by warranty deed to T. H. Wells for a consideration, expressed in the deed, of $1,800; that on March 10, 1910, the said Alice Burley and her husband conveyed all the land in controversy to the plaintiffs by warranty deed for a consideration of $1,500; and that on December 31, 1910, the said Alice Burley conveyed all the land in controversy to the plaintiffs by warranty deed for the same consideration. It further appears that on October 20, 1909, Charlie Roberts, as the guardian of Alice Roberts Burley, executed a lease of the land in controversy to J. W. Kennedy for a period of three years, beginning January 1, 1910, for a consideration of $160, payable semiannually. It also appears that by mesne conveyance the defendant John S. Bilby had acquired whatever title T. H. Wells arid Harve Hollingsworth and W. G. Hammett had in the surplus allotment. The last of these deeds was dated February 14, 1911. It further appeared that Dr. E. W. Yates, acting as the agent of the defendant Bilby, secured an assignment, on February 20, 1911, of the lease made to J. W; Kennedy, and that thereby the defendant Bilby acquired the interest of J. W. Kennedy therein.</p> <p>The plaintiffs offered evidence tending to show that the rental value of the land in controversy was from $1.50 to $2.50 per acre. Plaintiffs offered evidence tending to show that the said Alice Burley, nee Roberts, was born in September, 1892, and that she reached her majority in September, 1910. The plaintiffs also offered in evidence the records of the Dawes Commission, which showed that Alice Burley, nee Roberts, reached her majority in September, 1909. This record was admitted over the objection of the defendant Bilby; but the court directed that it be neither read nor commented upon to the jury. On behalf of the defendant Bilby there was evidence contradicting the evidence of plaintiffs as to the rental value of the land, tending to show that the rental value was about $1.50 per acre for cultivated land and 50 cents per acre for hay land. The evidence for the defendant showed that the defendant Bilby had endeavored to secure possession of the land in controversy by procuring an attornment from the tenant occupying the land, but did not succeed in so doing until the year 1911, after he had procured the assignment of the -lease of J. W. Kennedy. It appeared that Charlie' Roberts, as the guardian of Alice Burley, had collected the rents for the land in controversy up to June, 1910.</p> <p>Alice Burley intervened in this action, and alleged that she had received of the consideration expressed in the deed to Hollingsworth, to wit, the sum . of $1,400, only $100, and of the consideration expressed in the deed to T. H. Wells, to wit, $1,800, she had received only the sum of $5; that of the consideration expressed in the deed to plaintiffs March 10, 1910, to wit, the sum of $1,500, she had received only the sum of $650. She further alleged that prior to the commencement of this action she had commenced an action to set aside the deeds executed by her to Wells and to Hollingsworth and to Hammett, hut that she had dismissed said action at the request of defendant John S. Bilby, and he promised to pay her in consideration of such dismissal the sum of $1,000, as soon as he perfected his title to the real estate; and she prayed that in the event the plaintiffs were successful in this action she might be decreed to have a vendor’s lien on the real estate for the sum of $850 and interest, and that in the event the defendant John S. Bilby succeeded in this action she might be decreed to have a vendor’s lien on this real estate in the sum of either $1,000 or $1,300' and interest. The case was tried to a jury, resulting in a. verdict for the plaintiffs for the possession of the land involved in the action and for the sum of $400 as damages,, and for the intervener, Alice Burley, against the plaintiffs in the sum of $990.25. Upon this verdict the court entered judgment for the plaintiffs for the possession of the real estate, and for the sum of $400 against the defendant John S. Bilby, and attempted to decree a suspended vendor’s lien in favor of the intervener, Alice Burley, upon the real estate, to become effective when the title to said premises bad been completely adjudicated in the appellate courts of last resort. From this judgment the defendant John S. Bilby appealed.</p>

Error from District Court, Washita County; Jas. R. Tolbert, Judge. Action by W. H. Jacobs against B. F. Davis and W. A. McAtee, and when Jacobs died the case was revived in the names of P. A. Janeway, administrator, and W. A. Mc-Atee, defendants in error. A general demurrer filed by defendant Davis was overruled, and he brings error.

<p> Error from District Court, Washita County; Swan C. Burnett, Special Judge. </p> <p>Action by Kitty Hood against F. E. Herring and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Washita County; J. A. Duff, Special Judge. Action by W. F. Winningham and others against J. H. Felkner and others. Judgment for plaintiffs, and defendants bring error.

<p>1. BANKS AND BANKING — Sale of Bank Stock — Contract By Seller — Construction and Operation. An agreement executed by M. to become a special indorser on all -the notes held by a bank, to the extent of 55 per cent, thereof, upon conditions contained in such agreement to be performed by the bank, made by M. in consideration of the sale by him of 55 per cent, of the capital stock . of the bank, and to secure the performance of which agreement M. makes a special deposit of money in said bank, of which agreement the bank had full knowledge at the time it accepted the special deposit and upon which it acted thereafter from time to time, does not constitute a contract between M. and the purchaser of the stock, but a contract between M. and the bank.</p> <p>2. SET-OFF AND COUNTERCLAIM — Agreement to Indorse Notes —Noncompliance With Conditions. Where the bank fails to comply with the conditions imposed upon it by such agreement, any part of such special deposit which has not been properly applied by the bank in accordance with the terms of such indorsement agreement is the property of M. and may be set off by M. in an action against him by the bank upon a promissory note.</p> <p>3. APPEAL AND ERROR — Verdict—Evidence—Where the record discloses evidence which would warrant the jury in returning the verdict which was returned, this court will not review the evidence nor disturb such verdict.</p> <p>4. BILLS AND NOTES — Evidence — Parol Evidence — Written Agreement — Actions. Objections to the rulings of the court upon the introduction of evidence and the giving and refusing of instructions, examined, and such rulings held to be free from prejudicial error.</p> <p>(Syllabus by Kummons, C.)</p>

<p>1. ESTOPPEL — Sufficiency of Evidence — Quieting Title. Evidence- . examined, and held not sufficient to sustain an allegation of' estoppel.</p> <p>2. ADVERSE POSSESSION — Acquisition of Title — Notice of Adverse Possession — Sufficiency of Evidence. In an action to quiet title and possession.of real estate, where, plaintiff -alleges and relies upon adverse possession for more than seven years, and the-plaintiff’s, evidence is uncontradicted that under a -claim of title he improved the. property at a cost of several thousand dollars, which from the very nature thereof was permanent and lasting... and defendants made no objection, held: (a) That the construction of such improvements, possession, and control of the property, under the evidence, were hostile and inconsistent with defendants’ claim of ownership and constituted a high class of notice ■ of adverse possession, (b) The test is as to whether the original. entry was exclusive and adverse to defendants, and whether it so continued uninterrupted for a space of more than seven years from its inception to November 16, 1907, the date of the advent of statehood and the expiration of the statute then in force (section 2938, Ind. Ter. Stat.). If so, there was complete constructive ouster, which under the statute was sufficient and conferred a valid fee simple title in the property to the plaintiff, (c) The evidence examined, and held to meet the required emergency, and the court erred in entering judgment against the plaintiff.</p> <p>(Syllabus by Watts, tí.)</p>

Error from District Court, Hughes County; John Caruthers, Judge. Action by Nicholas V. Bilby and others against Albert Stewart and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from, Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Susan Washington against E. A. Colvin and wife. . Judgment for defendants., and plaintiff brings error.</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by Joseph E. Fitzpatrick and others against H. J. Hamra and others. Judgment for plaintiffs, and defendants bring error.