Volume 56 — Oklahoma Reports

<p> Error from District Court, McIntosh County; </p> <p> Preslíe B. Cole, Judge. </p> <p>Action by Jannetta Fife against Sallie D. Gentry and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. BILLS AND NOTES — Indorsement—Transfer in Due Course— Defenses — “Guarantee Payment and Waive Notice, Etc.” Before the adoption of the Uniform Negotiable Instruments Act (chapter 49, Revised Laws 1910), the words “For value received, I hereby guarantee payment of the within note, and waive demand and notice of protest on same when due,” written on the back of the note by the payees, did not constitute an indorsement and transfer in due course, but constituted a mere guaranty of payment; and the maker of such note, is er'itled to make the same defenses against the same in the hands of the holder under such guaranty that he would be entitled to make if it were in the hands of the original payees.</p> <p>2. SUFFICIENCY OF EVIDENCE. Record examined, and held, that there was competent evidence reasonably tending to support the defense of breach of warranty.</p> <p>3. APPEAL AND ERROR — Instructions—Exceptions—Sufficiency. A recital in a case-made that “the plaintiff excepts to each instruc- - tion given by the court, separately, and also excepts to the instructions as a whole,” is insufficient where there are several paragraphs embodying different propositions in such instructions.</p> <p>(Syllabus by Watts, C.)</p>

Error from District Court, McClain County; R. McMillan, Judge. Action by Ed. Bridges against James E. Wright, as guardian of Elisha Bridges, a minor, and another. Judgment for defendants, and plaintiff brings error.

Error from District Court, Carter County; S. H. Russell, Judge. Action by S. A. Apple and another against G. W. Pierce and others, composing the firm of Westheimer & Daube. Judgment for defendants, and plaintiffs bring error.

<p>SCHOOLS AND SCHOOL DISTRICTS — Taxes—Excessive Levy — Proof —Injunction. In an action to enjoin certain taxes levied by school districts prior to the adoption of sections 7379, 7380, Rev. Laws 1910, as in excess of the estimated expenses for the fiscal year, the reports of the clerks of the respective school- districts to the county superintendent showing the estimated expenses of such districts for such fiscal year are not the best evidence of the making of such estimates of expenses by such districts, and there being no showing by plaintiff! that the minutes of the annual meetings kept by the clerks of the respective school districts could not be obtained or that such minutes did not show estimates of the expenses of such districts for the fiscal year, the evidence offered, consisting of reports to the county superintendent, is not sufficient to entitle plaintiff to the relief sought.</p> <p>(Syllabus by Rummons, O.)</p>

Error from County Court, Stephens County; J. W. Marshall, Judge. Action by Forsythe & Templar and others against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiffs, and defendant Railway Company brings error.

<p> Error from Superior Court, Pottawatomie County; </p> <p> Geo. C. Abernathy, Judge. </p> <p>Action by L. WV Clapp against E. W. Miller. Judgment for defendant, and plaintiff brings error.</p>

<p>COURTS — County Stenographer-r-Compensation — Transcripts of Testimony. Under provisions of sections 20, 21, and 22, c. 69, Session Laws 1910, and of sections 1833, 1836, and 1838, Rev. Laws 1910, the only compensation to which the county stenographer is entitled for making transcripts of shorthand notes of testimony taken and proceedings had in the county court and for making transcripts of the records of causes in such county court to constitute a case-made is the salary prescribed by the statute.</p> <p>(Syllabus by Rummons, C.)</p>

<p>APPEAL AND ERROR — Mechanics’ Liens — Presentation Below — Admission of Evidence — Trial by Court. Evidence examined, and held sufficient to sustain the' findings and judgment of the trial court.</p> <p>(Syllabus by Eummons, O.)</p>

Error jrom District Court, Custer County; James R. Tolbert, Judge. Action by the First State Bank of Clinton against L. L. Murray, wherein garnishment summons was issued against H. C. Powell and another. Judgment for plaintiff, and the garnishees bring error.

<p> Error ,'from County Court, Cotton County; </p> <p>Austin Akins,. Judge.</p> <p>Action by Ed Kessler against George Stringer. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by W. B. Scanland and others against the Board of County Commissioners of the County of Ottawa and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by Malinda Piekens and another against J. S. Mullen and others. Judgment for plaintiffs, and defendants bring error.

<p>1. DESCENT AND DISTRIBUTION — Inheritance by Mother — Construction of Statute. Chapter 35, Session Laws 1909, provides: “Second. If the decedent leave no issue, the estate goes .one-half to the surviving husband or wife, and' the remaining one-half to' the decedent’s father or mother, or if he leave both father and mother to them in equal shares. If there be no father, then one-half goes, in equal shares, to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares. * * * ” Held, that by said act it was the legislative intent to put the mother on equality with the'father in inheriting from a deceased son, and that through inadvertence following the words “If there be no father” the words “or mother” were left off.</p> <p>2. SAME. The said Session Laws further provide: “Fourth. If the decedent leave no issue nor husband, nor wife nor father and no brother or sister is living at the time of his death, the estate goes to his mother to the exclusion of the issue, if any, of deceased brothers or sisters.” Held, in view of subdivision 2, there was no field for its operation; that it was taken from an existing statute and inadvertently re-enacted, but was surplusage.</p> <p>3. SAME. Where the decedent was never married, leaves no issue nor father, but leaves a mother and half brothers and sisters and children of a deceased half-sister, the mother takes the entire estate to the exclusion of such half brothers and sisters and the children of such deceased half-sister.</p> <p>(Syllabus by Watts, C.)</p>

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

<p>APPEAL AND ERROR — Moot Question — Dismissal. Where The rime over which the controversy arose lias expired, and no practical relief can be gained by a decision, the cause becomes moot, and will be reg¡iided as abstract and hypothetical, and not necessary for decision, and will be dismissed.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from District Court, Delaware County; </p> <p> John H. Pitchford, Judge. </p> <p>Appeal by the County of Delaware from the action of the Board, of County Commissioners of Delaware County. From the judgment, the County brings error.</p>

<p> Error from District Court, Alfalfa County; </p> <p> James B. Cullison, Judge. </p> <p>Action by J. L. Oliver against F. S. Morford and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Superior Court, Tulsa County; </p> <p> M. A. Breckenridge, Judge. </p> <p>Action by W; C. Best against the Limestone Rural Telephone Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Comanche County; </p> <p> John F. Thomas, Special Judge. </p> <p>Action by Henry A. Gossett against the Board of Education of the City of Lawton. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Jackson County; J. M. Williams, Judge. Action by the Altus State Bank, a corporation, against A. E. Leach and another. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Love County; </p> <p> S. H. Russell, Judge. </p> <p>Action by L. O. Smith against R. T. Bond. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Seminole Comity; </p> <p> Tom D. McKeown, Judge. </p> <p>Action by Fred Stepney against Allen Danielson. Judgment for defendant,, and plaintiff brings error.</p>

<p> Error from Di§triet Court, Wagoner County; </p> <p> Fred P. Branson, Judge. </p> <p>Action by B. V. Leonard against Clifford Ross and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. PROCESS — Service by Publication — Affidavit—Sufficiency. Where it is stated, in an affidavit to obtain service by publication, that defendant is a nonresident of the state, and service cannot be had on him in the state, and such affidavit is otherwise sufficient, such affidavit is sufficient, notwithstanding facts are not stated therein showing that plaintiff, by the use of due diligence, was unable to make personal service in the state upon defendant.</p> <p>2. CANCELLATION OF INSTRUMENTS — Petition—Offer to Do Equity. In a petition for rescission of a contract, upon the ground of duress and want of consideration, it is not necessary for plaintiff to offer to do equity.</p> <p>3. SAME — Deeds—Duress—Want of Consideration — Sufficiency of Evidence. The evidence carefully weighed, and the weight thereof found to sustain the facts found by the court — that the deed sought to be canceled was obtained by the exercise of duress and ■ without consideration.</p> <p>4. SAME. Under the weight of the evidence, the conclusion of law reached by the court — that the deed in question should be canceled —is correct.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Muskogee County; R. P. de Graff enried, J.udge. Action by the Central State Bank against William H. Sims and others. Judge for plaintiff, and defendants bring error.

<p>1. HOMESTEAD — Judicial Sale — Purchase by Wife — Estoppel. Where the wife attends a sheriff’s sale of a homestead, which homestead at the time is occupied by herself and family, and which sale is had to satisfy an individual indebtedness of her husband, created for no purpose for which the homestead could be legally sold, and at which sale she buys the property thus sold and accepts a deed from the sheriff and places the same of record, she is not estopped thereby from subsequently asserting a homestead claim in said property, and the sale thus made by the sheriff to her is void, and the deed conveys no title of said homestead to her.</p> <p>2. HOMESTEAD — Alienation by Wife Alone — Right. The wife alone, under the laws of Oklahoma, cannot alienate the homestead by an express contract. Hence it follows that she cannot do so by parol declarations or negative silence, of any positive act or failure to act.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>APPEAL AND ERROR — Brief—Citation of Authority. A plausible, but not convincing, argument-in the brief, unsupported by citation of authority, is not sufficient to overcome the presumption indulged by the Supreme Court in favor of the correctness of the judgment of the trial court.-</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Craig County; Preston S. Davis, -Judge. Proceedings on the probate of the will of James F. Ballard, deceased, wherein Jessie M. Ballard was petitioner and Henry Ballard contestant. From judgment of the district court on appeal, admitting the will to probate, contestant brings error.

<p> Error from District Court, Okmulgee County; </p> <p> Wade S. Stanfield, Judge. </p> <p>Action by Leola Scott, nee Atkins, against Charles E. Cover and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Rogers County; </p> <p> T. L. Brown, Judge. </p> <p>Action by J. H. Burke against the Claremore Town-Site Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Presentation Below — Motion for New Trial. Errors occurring during tbe trial will not be entertained bere unless a motion for a'new trial, founded upon and including sucb alleged errors, bas first been presented to tbe trial court, overruled by bim, this ruling excepted to, and sucb ruling after-wards assigned as error in tbe Supreme Court.</p> <p>(Syllabus by Matthews, O.)</p>

<p>1. INDIANS — Proof of Age — 'Census Card — Enrollment Records. Where a properly certified “census card” is' admitted in evidence without objection as’ the “enrollment record,” it is conclusive evidence of the age of the allottee therein named as to transactions subsequent to the taking effect of the act of Congress approved May 27, 1908 (chapter 199, 35 Stat. 312).</p> <p>2. TRIAL — Refusal of Instructions Covered. Record examined, and held: (1) The evidence is sufficient to support the judgment; (2) the instructions correctly state the law.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from District Court, Mayes County; </p> <p> Preston S. Davis, Judge. </p> <p>Action by the M. Rumley Company, a corporation, against I. P. Bledsoe and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Marshall County; A. H. Ferguson, Judge. Action by Lula J. Weaver against the Madill State Bank. Judgment for plaintiff, and defendant brings error. Plaintiff in error will be designated as defendant and defendant in error as plaintiff, in accord with their respective titles in the trial court.

<p>1. INSURANCE — Pleading—Action on Policy — Limitation Clause— Defense — Pleading—Departure. After the lapse of one year from the date of the death of the insured, plaintiff sued to recover on-an insurance policy issued in the Indian Territory prior to statehood, which policy contained a provision limiting the timo within which suit could be brought to one year from the date of the death. Her petition pleaded the performance of the conditions precedent, but did not plead a waiver of the limitation clause in the policy. The defendant answered, pleading the limitation provision of the policy and the fact that the action was commenced after the lapse of one year from the date of the death of the insured. The plaintiff then filed a reply, admitting that the suit was commenced more than one year after the death, but pleading facts which, if true, would estop the defendant to take advantage of the limitation clause as a defense. The defendant then moved to strike that part of the reply as being a departure. Held, not a departure, the limitation clause not being a condition precedent to liability of the policy, but only fixing a limitation of time within which suit could be commenced, on the policy after the death of the insured, which could be waived by the insurer or pleaded as a defense to the action.</p> <p>2. SAME — Estoppel—Contract limitation — Waiver. A clause in an insurance policy issued in the Indian Territory prior to state- - hood, providing that no waiver of any provision of the policy could be valid unless in writing and signed by the president and one other officer of the company, has no reference to the conduct of the general counsel of an insurance company in whose hands the company has placed for settlement a death claim against it, who, by promise of settlement, induces the claimant to defer suit on the policy until after the expiration of the time limit fixed by the terms of the policy in which action on it could be commenced. Such conduct would not alter the contract nor would it, not being in writing and .signed by the president and one other officer. of the company, be a waiver, but it would be an act, not stipulated against by the clause referred to, which would estop the company to claim the benefit of such provision.</p> <p>3. CONTRACTS — “Condition Precedent.” A “condition precedent” of a contract is one which calls for the performance of some act, or the happening of some event, after the contract is entered into, and upon the performance or happening of which its obligations are made to depend.</p> <p>4. SAME — “Condition Subsequent.” A “condition subsequent” of a contract is one which follows the performance of the contract and operates to defeat or annul it upon the subsequent failure of either party to comply with the condition.</p> <p>.5. ESTOPPEL — “Waiver”—Distinction. A distinction is drawn between “waiver” and “estoppel” when the two doctrines are discussed in their purely technical aspect. Waiver involves the notion of an intention entertained by the holder of some right to abandon or relinquish instead of insisting on the right. An es-toppel arises when the purpose or natural consequence of a person’s representations or conduct is such as to induce another person to do or to omit some act the doing or omission of which would turn out to his detriment and to the inducing party’s benefit if the latter were permitted to take advantage of it. Such estoppel more often carries with it the implication of fraud than does waiver.</p> <p>(Syllabus by Wilson, O.)</p>

<p> Error from District Court, Pottawatomie County; </p> <p> Chas. B. Wilson, Judge. </p> <p>Action by the McAlester Carriage & Wagon Factory, a corporation, against R. W. Congdon. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Oklahoma County; </p> <p> W. R. Taylor, Judge. </p> <p>Action by J. E. Lawyer against the International Harvester Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Oklahoma County; </p> <p> Edward Dewes Oldfield, Judge. </p> <p>Action by F. C. Finerty against Louis Navarre and others. Judgment for plaintiff, and defendants Navarre bring error.</p>

<p>1. MASTER AND SERVANT — Injury to Servant — What Law Governs — Matters Determinative — Question for Jury. Whether an action by an employee for damages for personal injuries arises under and is protected by the federal Employers’ Liability Act (April 22, 1908, 35 Stat. L. 65 [,TJ. S. Comp. St. 1913, secs. 8657-8665]), or by the local law, does not depend solely upon the allegations of the petition, but is determined by the character of the employment at the time of the accident, and whether the work in which the employee was, at the time, engaged was a part of the interstate commerce in which the carrier was employed, and if the evidence as to this is in conflict, it may be a question for the jury. C., R. I. & P. Ry. Co. v. Bond, 47 Okla. 161, 148 Pac. 103.</p> <p>2. MASTER AND SERVANT — Negligence—Question of Law — Question of Fact. In cases involving the question of negligence, the rule is now settled that, “When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury It is only where the facts are such that all reason; able men must draw the same conclusion from them that the question of negligence is ever considered one of law for the court.”</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. INSURANCE — Accident Insurance Policy — Construction—Double Indemnity. In, an action upon an accident insurance policy providing a double indemnity for any bodily injury caused solely by external, violent,'or accidental means, while the policy is in force, and while the insured is in or on a public conveyance provided by a.common carrier.for the regular transportation of passengers, it is not necessary for a recovery of the double indemnity that the accident for which recovery is had should have been the result of the operation or construction of the conveyance provided by such common carrier, if all the other conditions involving the double indemnity be properly established.</p> <p>2. APPEAL AND ERROR — Harmless Error — Exclusion of Evidence. A cause will not be reversed for the exclusion of evidence, unless it appears that such exclusion might have been prejudicial to the plaintiff in error.</p> <p>3. APPEAL AND ERROR — Verdict—Evidence. The jury are the triers of the facts, and where their verdict is reasonably supported by the evidence this court will not weigh the testimony to determine whether or not it would have reached the same conclusion.</p> <p>(Syllabus by Burford, C.)</p>

<p> Error from District Court, Le Flore County; </p> <p> W. H. Brown, Judge. </p> <p>Action by Florida Lindsay, administratrix, against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. PLEADING — Amendment—Time for Amendment. Before or after judgment amendments may be allowed by inserting allegations material to the case when such amendments do not change substantially the plaintiffs claim.</p> <p>2. SAME — Discretion of Court. Amendments are favored under our procedure, and, in the furtherance of justice amendments generally should be allowed. However, the granting or refusing of .permission to amend rests largely within the discretion of the trial court.</p> <p>3. APPEAL AND ERROR — Continuance—Discretion of Court — Review. The granting or refusing of continuances rests largely within the discretion of the trial judge, and before this court will disturb the ruling of the trial court thereon it must affirmatively appear that he abused his discretion.</p> <p>(Syllabus by Mathews, C.)</p>

<p>(RAILROADS — Right of Way — Failure to Fence — Damages to Crops— Liability. A railroad company is not liable to one owning or occupying land adjoining tbe railroad right of way for damages to crops incurred from trespassing animals entering on said land by reason of tbe failure of tbe railroad company to properly fence its adjacent right of way.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. JUSTICES OF THE PEACE — Appeal—Dismissal—Deposit for Costs. The county judge adopted a rule requiring all parties taking an appeal from the justice court to the county court to make a deposit of $5 for costs. The appellant failed to make such deposit and its appeal was dismissed. Held, error.</p> <p>2. COURTS — Rule of Court — Validity—Dismissal of Appeal. The county or district court has no authority to promulgate a rule requiring a party appealing a cause from the justice of the peace court to make a deposit with the clerk of the appellate court to apply on costs accruing in said court, nor has the court any right or authority to dismiss the appeal upon a failure to comply with such rule.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. APPEAL AND ERROR — Findings of Fact — Evidence. Where a case is tried by the court without the intervention of a jury upon controverted questions of fact, and there is evidence reasonably tending to support its findings, such findings will not be disturbed on the weight of the evidence.</p> <p>2. SAME — Trial—General Finding — Effect. Where the testimony is partly oral and conflicting, and the finding of the court is general, such finding is a finding of every special thing necessary to he found to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.</p> <p>(Syllabus by Robberts, 0.)</p>

<p>1. BONDS — Requisites—Signature. Under the law there can be no objection to the manner and form in which the obligor makes his signature to a bond, provided it appears that he makes it for the purpose of binding himself; the question being always open to the jury whether the party, not having signed particularly at the foot, meant to be bound by it as it stood, or whether he left it unsigned because he refused to complete it; and it does not matter where the signature is, if it was' made to authenticate the bond as the act of the party.</p> <p>2. EVIDENCE — Parol Evidence Affecting Writings — Signature. Pa-rol evidence is admissible to show that a signature to a bond was misplaced by mistake.</p> <p>3. BONDS — Requisites—Designation of Obligors. The names of the obligors need not appear in the body of the bond, provided it is duly signed and sealed by them.</p> <p>(Syllabus by Robberts, C.)</p>

<p>APPEAL AND ERROR — Finding—Evidence—Trial Without Jury, when there is a trial by the court .without the intervention of a jury, with a general finding in favor of the defendant in error, there being some competent evidence reasonably tending to support such finding,- the same will be conclusive on review in this court.</p> <p>(Syllabus by Robberts, 0.)</p>

<p>APPEAL AND ERROR — Verdict—Weight of Evidence. The rule invariably applied in this jurisdiction, in an action at law, is that, where the evidence is conflicting, this court will not review such evidence to ascertain where the weight lies; and, if there is any evidence reasonably tending to support the verdict, the judgment will not be set aside upon appeal.</p> <p>(Syllabus by Bleakmore, O.)</p>

<p>CONTRACTS — Validity—Location of Post Office — Public Policy. A contract contemplating the establishment and maintenance of a post office at a certain place for the private advantage of the signers thereof, as contradistinguished from the interest of the general public, and providing that certain payments should be made contingent upon the accomplishment of such purpose, is contrary to the public policy of this state and void.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>CANCELLATION OF INSTRUMENTS — Void Deed — Conditions Precedent — Offer to Return Consideration. In a suit by a grantee in. possession of lands under a guardian’s deed to cancel, as a cloud upon his title, a previous conveyance of said lands made by the-ward, a freedman allottee, and void by reason of his minority, it is unnecessary to plead an offer to return the consideration received by such ward, or to allege its dissipation and his consequent inability to restore; the grantee in the subsequent deed being entitled to maintain his action without restoring such consideration.</p> <p>(Syllabus by Blealrmore, C.)</p>

<p> Error from District .Court, Alfalfa County; </p> <p> James B. CulMs'ion, Judge. </p> <p>Action by the Capron Hardware Company against W. J. Ranson. Judgment for plaintiff, and defendant brings error.</p>

<p>1. USE AND OCCUPATION — Burden of Proof. In an action to recover from a defendant the rental value of a tract of land for the wrongful use and occupation of the same by such defendant, plaintiff must prove the use and occupation of such land by said defendant in order to recover therefor.</p> <p>2. LANDLORD AND TENANT — Assignment of Defective Lease— Right to Cross-Judgment. In an action to cancel a lease upon a tract of land for fraud and gross inadequacy of consideration, to recover possession of said land, and damages for the wrongful use and occupation of the same against the lessee named in the lease and his assignee, the assignee filed a cross-action against his assignor praying that, in the event plaintiff had judgment against him for the cancellation of the lease and for the use and occupation of the land, he might have judgment against the assignor for the amount paid for the assignment of the lease. The court found that the assignee took his assignment with notice of the infirmities in the lease, and the evidence of the assignee showed that at the time of the taking of the assignment the assignor refused to warrant the lease, and the assignment contained no warranty. Held, that there was no evidence warranting a cross-judgment in favor of the assignee against the assignor.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. SALES — Conditional Sale Contract — Recovery of Property — Defense — Instruction. In an action of replevin to recover a typewriter delivered to defendant under a conditional sale contract, because of default in the performance of the conditions, an instruction, 'that if the machine was in such condition that it would not do good typewriting that was a breach of the contract on the part of the plaintiff, and if the jury should so find such breach of contract constituted a defense to plaintiff’s action, and which fails to charge that the jury must find that damage to the defendant resulted from such breach, constitutes reversible error. Quaere: May damages resulting from a breach of warranty of a machine delivered under a conditional sale contract be counterclaimed in an action of replevin based upon a default by the vendee in payment of the. purchase price.</p> <p>2. SAME — Evidence. Evidence of a breach of an implied warranty of fitness in a machine to do the work for which it was intended, without evidence of damage resulting therefrom in an amount equal to or in excess of the unpaid installments clue upon a conditional sale contract, constitutes no defense to an action of replevin brought by the vendor.</p> <p>(Syllabus by Rummons, 0.)</p>

<p>1. HOMESTEAD — Exemption—Town Property. To entitle one to claim a homestead in a town as exempt from levy and sale ■under execution, the property so claimed must he owned and occupied as a homestead, or have been impressed with the homestead character and no other homestead acquired.</p> <p>2. SAME. One who owns three adjoining lots, upon one of which is a building formerly occupied and used by him as a residence and store, and who built and occupied as a residence a house on another of said lots, and for several years rented out the first building occupied by him as a home, which at the time that an execution is levied thereon is occupied as a home and store by his tenant, cannot successfully claim that said property so occupied by his tenant is a part of his homestead and exempt from levy and sale under execution.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from District Court, Seminole County; </p> <p> Tom D. McKeown, Judge. </p> <p>Action- by Lucy Scott, formerly Lucy Grayson, against John Quimby and others. Judgment for defendants, and plaintiff brings error.</p>

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. Suit by the Pattin Bros. Company, a corporation, against M. E. Cline and others. From a judgment overruling a demurrer to plaintiff’s petition the above named defendant brings error.

<p>1. JUSTICES OF THE PEACE — Nature of Office — Scope of Authority. A justice of the peace court is one of limited jurisdiction, and the authority to' be exercised by the justice is derived from the-statute.</p> <p>2. SAME — Judgment—Default—Vacation. A justice of the peace-can vacate a judgment by default under the provisions of the-statute (section 5459 Itev. Haws 1910).</p> <p>3. SAME. In order for a justice of the peace to vacate a judgment by default, the application therefor must be filed within the time-named by the statute, and, if filed after that time, the justice-has no jurisdiction to grant the relief.</p> <p>4. SAME — Appeal—Jurisdiction of Appellate Court. An appeal to-the district court from an order of the justice refusing to vacate 'a judgment rendered by default where application was filed’ therefor after the expiration of ten days from dale of judgment; ■ cannot invest the' district court with jurisdiction to vacate said: judgment.</p> <p>(Syllabus by Hooker, C.)</p>

<p> Error from- District Court, McCuftain County; </p> <p> Summers Hardy, Judge. </p> <p>Action by Henry D. Barry against Elmer Kniseley and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Objection in Lower Court — Jurisdiction — Intermediate Court. In a case where the district court has original jurisdiction of the subject-matter and the case comes into that court improperly by appeal from a justice of the peace, and both parties appear and go to trial without objection, the question of the jurisdiction of the district court is waived, and such objection will not be heard when made for the first time after the court has announced its disposition to decide against the party making the objection.</p> <p>2. BILLS AND NOTES — Note Transferred after Maturity — Set-Off. The defendant may set off a debt arising upon a contract due him from the payee of a negotiable- rote agamst ‘the note in the hands of the person to whom the payee transferred it after maturity, and the fact that such claim may be for an unliquidated demand is no valid objection to its being pleaded as a set-pff.</p> <p>3. SET-OFF AND COUNTERCLAIM — Joint Maker of Note — Individual Claim. One joint maker of a note may set off against it an indebtedness due him individually from the payee.</p> <p>(Syllabus by Galbraith, 0.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by E. E. Tuttle & Son, a copartnership composed of E. E. Tuttle and another, against the Tulsa Mid-Continent Oil & Gas Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p>APPEAL AND ERROR — Case-Made—Validity—Time for Signing and Settling. In the absence of a waiver by the defendant in error a ease-made signed and settled by the trial court before the expiration of the time granted for suggestion of amendments is a nullity.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from District Court, Tillman County; Frank Mathews, Judge. Action by H. N. Owen and wife against the Deep Red Oil Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p>1. CONTRACTS — Damages—Breach. Where A. contracts to perform work for B., and in order to fulfill his contract A. hires machinery and employs skilled men to operate it, and without fault on his .part A. is delayed in his work by B.’s failure to furnish material as agreed, A. is entitled to recover damages for delay proximately caused to him, and the rent of the machinery and the hire of the men are proper elements of damage in this character of case.</p> <p>2. INTEREST — Unliquidated Damages. Interest cannot be recovered upon unliquidated damages, where it is necessary for a judgment on verdict to be had in order to ascertain the amount of same.</p> <p>(Syllabus by Hooker, O.)</p>

<p> Error from District Court, Stephens County; </p> <p> Frank M. Bailey, Judge. </p> <p>Action by F. E. .Watkins and another against the Comanche State Bank. Judgment for plaintiffs, and defendant brings error.</p>

<p>RAILROADS — Fir«—Proof of Origin — Circumstantial Evidence. The fact that á fire which destroyed property originated from the-sparks of a passing locomotive may- be shown by circumstantial evidence.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Court, Lineoln County; </p> <p> H. M. Jarrett, Judge. </p> <p>Action by R. R. Lokey against the Bank of Meeker, Okla., a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>GUARDIAN AND WARD — Guardian’s Sale — Order Setting Aside — Notice — Resale. Under section 6388, Rev. Laws 1910, where a purchaser at a guardian’s sale refuses to comply with the' terms thereof, the county court may, after the required notice, order a resale of the property; and where, pursuant to the provisions of said statute, the court sets aside an order confirming the sale of a ward’s property, all persons thereafter dealing with said property are chargeable with notice thereof (following Morris v. Sweeney, 53 Okla. 163, 155 Pac. 537).</p> <p>(Syllabus by Bleakmore, 0.)</p>

<p>1. EVIDENCE — Parol—Ambiguous Instrument. As a general rule parol evidence is not admissible to vary the terms of a written instrument, but the general rule is subject to the exception that, where anything appears upon the face of the instrument which suggests a doubt or ambiguity as to the party bound, or the character in which any of the persons who signed the instrument . acted, parol testimony is admissible as between the original parties for the purpose of showing the true intent and meaning of the parties.</p> <p>2. BANKS AND BANKING — Contract of Cashier — Acceptance of Benefit — Ultra Vires. Where a cashier of a bank makes a contract which is beyond his power and authority, but the bank by reason thereof secures a benefit or beneficial effect, it will not thereafter be heard to urge nonliability thereunder on the plea of ultra vires.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. APPEAL AND ERROR — Jury—Prejudicial Error — Search Warrant — Interpleader—Jury Trial. Under sections 5 and 6 of article 3, c. 69, Laws 1907-08. as amended by sections 9 and 10 of chapter 70 of the Session Laws of Oklahoma for the year 1911, which sections are set out in full in the 'body of the opinion, where a party appeal’s and enters an interplea claiming title to the property seized, and further answers that said property was not in any manner kept or possessed with the intention of violating any of the provisions of said act, said party so appearing on demand is entitled to a trial of the issue of facts thus raised by a jury, and held, further, that it is prejudicial error for the court to refuse such interpleader the right of trial by jury.</p> <p>2. INTOXICATING LIQUORS — Search Warrant — Release of Property. Where less than one-half gallon of liquor and other property mentioned in said sections is seized without first filing a complaint with the judge or magistrate, it must appear from the return of the officer or in the testimony taken at the hearing provided for in said sections that a violation of the provision of the statutes involved occurred in the presence of the officer making the seizure, and, in the absence of such complaint or showing, the seizure w’ould be without -authority of law, and the court without jurisdiction to hold said property.</p> <p>(Syllabus by Robberts, O.)</p>

<p>1. INDIANS — Allotments—Restrictions on Alienation. The policy of Congress in regard to restrictions upon alienation of allotments has been to protect Indians against their own improvidence, whether shown by acts of commission or omission, contracts or torts.</p> <p>2. SAME — Judgment. The prohibition contained in section 15 of the act of July 1, 1902, c. 1362, 32 Stat. 642, as to affecting or incumbering allotments made under this act by deeds, debts, or obligations contracted prior to the termination of the period of restriction on alienation, applies to a judgment entered against an allottee and his heirs, whether based on a tort or on a contract.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>SCHOOLS AND SCHOOL DISTRICTS — Vote to Consolidate Districts —Method of Voting — “Election.” A vote on the proposition to unite different rural school districts into a consolidated school district, under chapter 219, art. 7, of the Acts of the 1913 Legislature (Session Laws 1913, p. 534), by the voters duly assembled at a meeting for the purpose, in conformity with said law, need not be by ballot and under the regulations and requirements of the general election laws, but may be taken and registered by a standing vote and count.</p> <p>(a) Such an expression of the will of the assembled voters is not an “election” within the purview of article 3, sec. 6, of the state Constitution, which requires a vote by ballot.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Pottawatomie County; </p> <p> Chas. B. Wilson, Jr., Judge. </p> <p>Action by Janie M. Meek against M. F. Eggerman, trustee of D. N. Meek, bankrupt. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Coffe & Carkener, a partnership, composed of W. C. Coffe and another, against Ola Wilhite. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Ch'ady County; Frank M. Bailey, Judge. Action by Layson Jefferson, a minor, suing by and through W. C. Allen, his guardian, against J. H. Gallagher and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Sequoyah County; </p> <p> John H. Pitchford, Judge. </p> <p>Action by W. A. Holland against the Sallisaw Cotton Oil Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by S. B. Coley and wife against P. J. Dore and others. Judgment for defendants, and plaintiffs bring error.

<p>1. DIVORCE — Marriage — Indian Customs. Marriages, contracted between tribal Indians according to the usages and customs of their tribe, at a time when the tribal government and relations are existing, will be upheld by the courts, in the absence of a federal law rendering invalid the laws and customs of the tribe.</p> <p>(a) A dissoluthn of the marriage'contract, according to such tribal laws, usages, and customs, will be likewise upheld by the courts.</p> <p>% MARRIAGE — Validity — Presumption — Dissolution of Former Marriage. Where a man and woman have been living together as husband arid wife for many years, and it appears that at fclm time of marriage the former wife was still living, in the absence of further evidence on the subject, it will be presumed that there had been-a lawful separation or divorce between the husband and the former wife.</p> <p>(Syllabus by Brewer", C.)</p>

Error from. District Court, Kay County; Wm. M. Bowles, Judge. Action by John F. Reilly against S. H. Stevens and another, copartners as the Stevens-Milam Real Estate Company. Judgment for plaintiff, and defendants bring error. Affirmed, and rehearing denied.

<p>1. USURY — Rate of Interest — Recovery—Statute. Section 1004, Rev. Laws 1910, provides that by contract parties may agree upon any rate of interest not to exceed 10 per cent, per annum; therefore, where by contract the borrower agrees to pay and the lender agrees to take a sum in excess of 10 per cent, per annum, and where such excessive amount has been paid, the contract is usurious as defined by section 1005, Rev. Laws 1910, and the party paying such usurious interest may recover in a proper action twice the amount of the entire interest so paid, 'as usury, instead of twice the amount of the interest paid, over and above the rate allowed by law.</p> <p>2. SAME — Request for Return of Interest. When the contract is usurious as above set forth, and the borrower makes a written demand requesting the return of the whole interest so paid, instead of twice the interest paid, over and above the rate allowed by law, such borrower is within,his rights.</p> <p>(Syllabus s me as in Ardmore State Bank v. E. H. Thompson, 57 Okla. — , 164 Pac. 977.)</p> <p>(Syllabus by Rittenhouse, O.)</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Charles Mayfield and another, minors, by Pete Scott, their guardian, against M. F. Dunleavy. Judgment for plaintiffs, and defendant brings error. Affirmed.

Error from County Court, Pontotoc County; I. M. King, Judge. Action by Elias Roberts, an incompetent, by his legal guardian, J. E. G. Bradshaw, against L. M. Chandler. Judgment for'defendant, and plaintiff brings error. Reversed and remanded.

<p>1. HIGHWAYS — Operation of Automobile — Duty of Driver. One who operates an automobile on a highway owes to other travelers the duty of controlling and driving it carefully so as to avoid causing needless injury, and in the performance of that duty is bound to take all the precautions which reasonable care requires under all the circumstances.</p> <p>2. SAME — Care Required — Matters Determinative. The owners of automobiles have the same rights on highways as those riding 1 horseback or traveling by other vehicles, but must use this means of locomotion with due regard for the rights of others. And the speed of the machine, its size, appearance, its manner of movement, the danger of operating it upon the highway, and the like, will be taken into consideration in- determining the degree of care required of the operator of the automobile.</p> <p>3. SAME — Negligence—liability. ■ Where the driver of an automobile needlessly or recklessly runs his machine into the horse of a rider, upon a public highway, and thereby injures the horse, he will be held liable for .the injury.</p> <p>(Syllabus-by Brett, C.)</p>

<p>1. EVIDENCE — Declarations—Conversation Over Telephone — Judicial Notice. Evidence of a conversation over a telephone is not’ inadmissible because such communication is uncertain, unreliable, and easily manufactured. The great improvement in the means of communication which the telephone has made, its nature, operation, and ordinary uses, are facts of general .scientific knowledge of which the courts will take judicial notice as a part of public contemporary history.</p> <p>2. SAME — Identification of Declarant. The mere fact that a party testifying to a telephone conversation could no,t identify the voice of the person to whom he was speaking, does not render the conversation incompetent. It' is a question of fact for the jury to determine whether under the proof the identity of the speaker has been established.</p> <p>3. SAME. A telephone conversation may be repeated in evidence where such conversation is otherwise admissible, though the witness did not identify positively the person with whom he had the conversation; the uncertainty of identity, if any, going only to the weight of evidence.</p> <p>4. ESTOPPEL — Equitable Estoppel — Silence. In order for the silence of a party tO' constitute an estoppel against him, it' must have occurred under such circumstances as to have made it his imperative duty to speak, and .the party in whose favor the estop-pel is invoked must have been misled into doing that which he would not have done but for such silence.</p> <p>5. SAME. B., the holder of the record title to land, proposes to sell to C., who agrees to buy if the title is good. A., who is B.’s record grantor, is advised of the deal between B. and C., and remains silent as to his ownership. O. afterwards buys the land of B., taking his conveyance therefor. Held, that A. is estopped by his silence when he should have spoken, and cannot show, to defeat O.’s title, that' his deed ¡to B. was a forgery.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>1. BILLS AND NOTES — Negotiable Instrument? — Law Merchant, In any case not provided for by the Negotiable Instruments Law (chapter 49, Rev. Laws 1910), the rules of the law merchant govern.</p> <p>2 SAME — Certainty in Amount — Provision for Discount. The Negotiable Instruments Law does not purport to prescribe a rule different from that of the law merchant, theretofore recognized by the courts of this state, in a case where a promissory note provides for the discount of the principal sum otherwise payable, if, at the option of the maker, payment is made before maturity.</p> <p>3. SAME. Under the rule of the law merchant, a note payable in installments three months apart, which contained a stipulation that, if paid within 15 days from date, a discount of 6 per cent, would be allowed, was uncertain as to the amount necessary to satisfy it at the time of its execution, and therefore nonnegot'ia-ble.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from District Court, Noble County; </p> <p> W. M. Bowles, Judge. </p> <p>Action by Manuel Herrick against • Frank Devorak, for malicious prosecution. Judgment for defendant, and plaintiff brings error. Affirmed.</p>

Error from District Court, Hughes County; . John Caruthers, Judge. Action by the Wise-Autry Stock Company against Evan Scott to quiet title. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

<p> Error from County Court, Comanche County; </p> <p> H. W. Whalin, Judge. </p> <p>Action by W. T. Wynn against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>EVIDENCE — Parol Evidence Affecting Writings — Admissibility. In art action on a note, made payable to a trustee, where the'beneficiary is specifically named therein, and there is no doubt or ambiguity as to the identity of such beneficiary, it is error to admit parol evidence to vary the terms of such instrument to show .that another was intended as such beneficiary.</p> <p>(Syllabus by Rittenhouse. 0.)</p>

Error from District Court, Marshall County; ■ Jesse M. Hatchett, Judge, Action by D. B. Taliaferro against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed, with directions to dismiss.

<p> Error from District 'Court, Bryan County; </p> <p> Jesse M. Hatchett, Judge. </p> <p>Action by the American National Bank of Fort Worth, Texas, and another, against Bryan County State Bank and others. Judgment for plaintiffs, and defendants bring error. Affirmed.</p>

<p>SUBROGATION — Implied Contract. A demurrer was properly sustained to a petition in an action by an owner against a contractor seeking judgment ii: favor of the owner for the amount alleged to be due by the contractor to certain subcontractors for labor and material going into a building for which liens thereon might be obtained, where it appears that such owner has not been sub-rogated to the rights of the subcontractors, and no steps have been taken by them looking to the establishment of liens against the property.</p> <p>(Syllabus by Bleakmore. 0.1</p>

- Error from District Court, Jefferson County; Frank M. Bailey, Judge. Action by J. S. Mullen against Oura P. Folsom and others. Judgment for plaintiff, and defendants bring error. Reversed, and remanded for new trial.

<p>ABATEMENT AND REVIVAL — Disposition of Cause — Death of Party —Dismissal. The death of the defendant, pending an appeal to this court, in an action- -to recover damages for libel, abates the action, and it cannot be revived, and the appeal will be dismissed.</p> <p>(Syllabus by Collier, C.)</p>

Error from County Court, Payne County; W. H. Wilcox, Judge. Action by W. M. Robertson and another against Guss Howerton. From the judgment, plaintiff Robertson brings error. Reversed and remanded as to plaintiff in error, and affirmed as between defendants in error.

<p>Error from District Court, Garfield County;</p> <p>James B. Cublison, Judge.</p> <p>Action by James V. Harbison against A. B. White and others. Judgment for defendants, and plaintiff brings error.. Reversed and remanded.</p>

<p>CHATTEL MORTGAGES — Validity—Description of Property. In a chattel mortgage the property, excluding the description added, was described as “three new Michigan automobiles, forty horse power. No.-.” The mortgage provided that the property should not be moved from Oklahoma county, and ithe property was replevied in Oklahoma county, as the property of the mortgagor. Held, that the description is sufficient under the eircum--starcés, and the mortgage was not void for uncertainty in the description of ithe property.</p> <p>ALTERATION OF INSTRUMENTS — “Material Alteration." Where a mortgagor agrees to furnish the mortgagee’s agent the numbers .of the automobiles mortgaged and fails and refuses to ' comply with his agreement, and the mortgage was not „void for uncertainty in ithe description of the property, and the mortgagee adds the words “Money being advanced for the purchase price of these machines,” held, that such words merely added to the description of the identical property and did not change the legal effect of the instrument, nor operate to perfect an instrument otherwise invalid, and was not a material alteration.</p> <p>(Syllabus by Clay, 0.1</p>

Error from District Court, Okfuskee County; John Caruthers, Judge. Action by Melissa Jones, in her owh behalf and as administratrix of the estate of Henry C. Jones, against Luther A. Nye. Judgment for defendant, and plaintiff brings error.

<p>1. TRIAL — Instructions—Carriage of Passengers — Injuries. Where the uneontroverted evidence shows that plaintiff who desired to become a passenger on defendant’s train at Bokoshe, Okla., had boarded next to the last coach and passed through that coach onto the platform en route to the rear car, and sustained injury on the platform between the coaches, it is error to submit to the jury the question of negligence on the part of the railroad company as to wnether or not it had its train at said station long enough to give plaintiff a reasonable opportunity to board the same in safety, in the absence of any special circumstances such as weakness, crowded condition of platform, or other special circumstances within the knowledge of the operators of said train.</p> <p>2. TRIAL — Instructions—Correctness. It is not error to refuse a requested instruction which does not correctly state the law applicable.</p> <p>3. DAMAGES — Assessment—Instructions. In a personal injury case it is the duty of the court to define the rules of law by which damages may be assessed, and where an instruction leaves the jury to judge what are the proper elements of damages, such instruction is erroneous.</p> <p>(Syllabus by Clay, C.)</p>

<p> Error from District Court, Texas County; </p> <p> W. G. Crow, Judge. </p> <p>Action by A. B-ushnéll against Smith Haynes and others. Judgment for defendants, and plaintiff brings error.</p>

<p>CARRIERS — Damages—Carriage ol Passengers! — Breach of Contract— Exemplary Damages. The evidence in this case has been examined and it is held to be sufficient to sustain an action for the recovery of compensatory damages for the negligence of plaintiff in error’s conductor, but it is furthermore held not to be sufficient to sustain a recovery of exemplary damages, which can only be recovered where the conduct complained of shows the defendant to have been, actuated by malice or fraud, or to have been guilty of oppression, or of such gross negligence as amounts to malice, as where its conduct is wantonly and grossly negligent as to indicate a reckless disregard for the rights of others.</p> <p>(Syllabus by Wilson, 0.)</p>

<p>1. APPEAL AND ERROR — Pleading—Motions—Separate Statement and Numbering. A motion to separately state and number, which-fails to point out the causes of action or in any manner call the court’s attention to the paragraphs of the petition which should be separately stated and numbered, and does not set up the matter ’ supposed to constitute several causes of action, is too general, and a case will not be reversed unless it appears the trial court abused its discretion in overruling the same.</p> <p>2. SAME — Harmless Error — Rulings on Pleading. When the pre-ciso nature of the relief demanded is presented by the causes of action set up in the petition, and no apparent injury has resulted from the action of the trial court in overruling a motion to make more definite and certain, the ease will not be reversed.</p> <p>3. PLEADING — Demurrer—Grounds. It is not error to overrule a demurrer where the allegations of the petition, construed most favorably to the pleader, set up a cause of action.</p> <p>(Syllabus by Clay. C.)</p>

<p> Error from District Court, Nowata County; </p> <p> T. L. Brown, Judge. </p> <p>Action by W. E. Roberts, Sr., and another against H. F. Tyler and others. From a judgment for plaintiffs, defendant Tyler brings error.</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Four actions by R. P. Dickey, as trustee in bankruptcy of the estate of Stephens Bros. & Stewart, bankrupts; one against the Springfield Fire & Marine Insurance Company of Springfield, Mass., one against the Phoenix-Insurance Company of Hartford, Conn., one against the Liverpool & London & Globe Insurance Company of Liverpool, England, Limited, and the other against the Home Insurance Company of New 'York.

<p> Error from District Court, Oklahoma County; </p> <p> John J. Carney, Judge. </p> <p>Appeal by B. D. Shear from the Board of Equalization of Oklahoma County. From the judgment of the dis-tric court, Shear brings error.</p>

<p> Error from, District Court, Choctaw County; </p> <p> Summers Hardy, Judge. </p> <p>Action by Cocke & Willis against N. T. Burroughs. Judgment for plaintiff, and defendant brings error.</p>

Error from. District Court,. Caddo County; J. T. Johnson, Judge. Action by the Dr. Koch Vegetable Tea Company, a corporation, against W. F. Dietrich and another. Judgment for plaintiff, and defendants bring error.

<p>Fact — Conflicting Evidence. It has always been the settled policy of this court not to disturb the findings of the trial judge where the evidence is conflicting. (Syllabus by Mathews, C.)</p>

<p>1. BANKRUPTCY — Property of Bankrupt — Custody — Receivers. Courts of bankruptcy are invested with such jurisdiction at law and equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation, in chambers, and during their respective terms, to appoint receivers or marshals, in case the courts shall find it absolutely necessary for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition, and until it is dismissed or the trustee is qualified. ■</p> <p>2. SAME — Referees in Bankruptcy — Control of Property. Referees in bankruptcy are invested, subject' always to a review by the judge, within the limits of their districts as established from time to time, with jurisdiction to exercise the powers of the judge for taking possession and releasing of the property of the bankrupt, in the event of the issuance by the clerk of a certificate showing the absence of the judge from the judicial district, or the division of the district, or his sickness, or inability to act.</p> <p>3. SAME — Property Taken Under Process — Custody of Law — Interference by State Court. When property is taken and held under process, mesne or final, of a court of the United States, it is in the custody of the law, and within the exclusive jurisdiction of the court from which the process has issued, for- the purposes of the writ, and the possession of the officer cannot be disturbed by process from any state court.</p> <p>4. SAME — Summary Proceedings — Determination of Adverse Claims —Property of Bankrupt. The District Court sitting in bankruptcy has jurisdiction to draw to itself, and to determine by summary proceedings after reasonable notice to the claimants, all controversies between the trustees and adverse claimants over liens upon, and the title and possesion of (1) property in the possession of the bankrupt when the petition in bankruptcy is filed, (2) property held by third parties for him. (3) property lawfully seized by the marshal as the bankrupt's under clause 3 of section 2 of the bankruptcy law, and (4) property claimed by the trustee which has been lawfully reduced to actual possession by the officers of the court.</p> <p>5. • SAME — Filing of Petition — Property of Bankrupt. IXhe filing of the petition in bankruptcy and the adjudication themselves • constitute a caveat and an injunction by the court against any interference with the property of the bankrupt hy all persons who have no liens upon, title, or debatable claims to it at the time the petition is filed, and the taking and disposition of it by any of them violates that injunction.</p> <p>6. SAME — Courts—Jurisdiction—Rights in Property. Where the property in dispute is in the actual possession of the court of bankruptcy, there comes into play another principle, not peculiar to courts of bankruptcy, but applicable to all courts, federal or state. Where a court of competent jurisdiction has taken property into its possession, through its officers, the property is thereby withdrawn from the jurisdiction of all other courts. The court, having possession of the property, has an ancillary jurisdiction to hear and determine all questions respecting the title, possession, or control of the property. In the courts of the United States this ■ ancillary jurisdiction may be exercised, though it is not authorized by any statute. Jurisdiction in such cases arises out of the possession of the property and is exclusive of the jurisdiction of all other courts, although otherwise the controversy would be recognizable in them. Accordingly, where property was in the possession of the bankrupt at, the time of the appointment of a receiver, the bankruptcy court has exclusive jurisdiction to determine the.title as against an adverse claimant, and a state court has no jurisdictional right to take, or interfere with the possession of. said property in an action of replevin, or otherwise.</p> <p>(Syllabus by Robberts, C.)</p>

<p>1. APPEAL AND ERROR — Review—Nomprejudieial Errors. The Supreme Court is required by statute to disregard ány error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.</p> <p>2. SAMIS — Harmless Error — Instructions. Although an instruction may contain an improper statement of law, if it is clearly, apparent from the whole record that no prejudice has in fact resulted therefrom, the error will not be considered.</p> <p>3. SAME. Where no other verdict could have been rightfully rendered, the appellate court will not consider exceptions based on instructions given and refused.</p> <p>(Syllabus by Kobberts, 0.)</p>

Error from County Court, McCurtain County; E. E. Cochran, Judge. Action by R. C. Denson and others against D. A. Fowler and another. Judgment for defendants, and plaintiffs bring'error.

<p>1. COUNTIES — Employment Contract — Action for Compensation— Petition. The petition in an action against a county to recover for services rendered under an alleged contract of employment which fails to allege what services were agreed to be performed, "under the contract, or what compensation was agreed to be paid for such services, and which fails to allege what services were1 performed by the plaintiff pursuant to such contract of employment, does not state a cause of action upon an express contract.</p> <p>2.' SAME — Quantum, Meruit.' Plaintiff filed a petition seeking to recover against a county for moneys expended and services rendered under employment by the county attorney, alleged to have been ratified by the county commissioners, but such petition failed to allege when and for what purpose such moneys were expended and of what the services alleged to have been rendered consisted or the time devoted to the performance thereof. Held, that' such petition failed to state a cause of action upon a quantum meruit.</p> <p>(Syllabus by Rummons, O.)</p>

<p> Error from County Court, Haskell County; </p> <p> A. L. Beckett, Judge. </p> <p>Action by S. V. Capps against Jeff Aldridge. Judg-. ment for plaintiff, and defendant brings error.</p>

<p>1. ACTION FOR PERSONAL INJURIES. The syllabus in St. L. & S. F. R. Co. v. Mollie Bruner, 52 Okla. 349, 152 Pac. 1103, is approved and adopted herein.</p> <p>2. APPEAL AND ERROR — Ground for Reversal — Instructions— Pleading — Evidence. The giving of an instruction upon an issue not raised by the pleadings or the evidence, and which will probably tend to confuse the jury, constitutes prejudicial error.</p> <p>3. TRIAL — Burden of Proof — Instructions. The giving of an instruction'that a slight preponderance of the evidence will sustain the burden of proof, as applied to an issue of fraud, is prejudicial error.</p> <p>(Syllabus by Burford, C.)</p>

Error from District Court, Muskogee County; R. P. de Graff enried, Judge. Action by the Guaranty State Bank against R. B. Wells and another. Judgment for plaintiff, and defendants bring error.

Error from District Court, Seminole County; Thomas D. McKeown, Judge. Action by J. H. Whitten against E. C. Aldridge and another. Judgment for plaintiff, and defendants bring error. This was an action for the possession of land, and the petition contains the necessary allegations that plaintiff is the owner of a legal and equitable estate in the land, and that the defendants are in the wrongful possession thereof, and wrongfully withhold the possession from the plaintiff.

<p> Error from. County Court, Lincoln County; </p> <p> H. M. Jarrett, Judge. </p> <p>Action by Henry Green against the First National Bank of Wellston, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. . Action by George A. Murphey against the Western & Southern Fire Insurance Company, a corporation (now the Amazon Fire Insurance Company, by change of name). Judgment for plaintiff, and defendant brings error. Affirmed.

<p> Error from, County Court, Jackson County; </p> <p> J. M. Williams, Judge. </p> <p>Action by J. T. Gant against the Wichita Falls & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from. District Court, Tillman County; </p> <p> Frank Mathews, Judge. </p> <p>Action by James E. Harrington against the Wichita Falls & Northwestern Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. BILLS AND NOTES — Validity—Consideration. A benefit conferred uptm a third party or a detriment suffered by the payee of a note at the instance of the maker thereof, is sufficient consideration to support it, even though the maker received no personal benefit by reason of its execution and delivery.</p> <p>2. BANKS AND BANKING — Functions and Dealings — Representation by Officer — Adverse Interest. The record in this case examined, -and it is held that the bank is not bound by the acts of L. F. Fue nor by his statement's made to plaintiff in error at the time she signed the notes, and the defense offered by her is not available to her, and the action of the trial court in directing a verdict is approved.</p>

<p>1. APPEAL AND ERROR — Presenting Questions in Lower Court— Motion for New Trial-Record — Case-Made—Bill of Exceptions. Errors alleged to have occurred at the trial, unless excepted to and assigned in a motion for new trial, and made part of the record on appeal, by means of case-made or bill of exceptions, wil’ not be considered on review in this court.</p> <p>2. APPEAL AND ERROR. — Amendment Regarded as Made — Variance — Materiality, ffbough there be a variance between the allegations in a petition and the proof on the trial, yet, if it be a case where an amendment of the petition should be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance.</p> <p>( Syllabus by Bleakmore. C.)</p> <p> Error from District Court, Pottawatomie County; </p> <p> Charles B. Wilson, Jr., Judge. </p>

<p>MECHANICS’ LIENS — Enforcement—Parties. In an action by a subcontractor to enforce a materialman’s lien, the original contractor is a necessary party defendant; but, if the sheriff’s return shows that service of summons cannot be had upon such original contractor, the lien of the subcontractor can be enforced against the property, without obtaining a personal judgment against said original contractor.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from County Court, Tulsa County; </p> <p> Conn Linn, Judge. </p> <p>Action by the Indiana Harbor Belt Railroad Company against W. L. Britton. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Custer County; </p> <p> J. W. Lawter, Judge. </p> <p>Action by Mrs. Harry Dunlap against the Clinton & Oklahoma Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>TRIAL — Taking Case From Jury — Direction of Verdict. Where there is a controverted question of a material 'fact before the jury, it is error for the court to direct a verdict.</p> <p>(Syllabus by Bittenhouse, G.)</p>

Error from DistHct Court, Bryan County; Jesse M. Hatchett, Judge. Action by Georgia Ann Gardner against J. C. Walden and others. Judgment for defendant Walden, and from an order granting plaintiff a new trial, said defendant brings error.

<p>1. TRIAL — Taking- Case From Jury — Direction of Verdict. Where the evidence is not such that all reasonable men would come to the same conclusion about what the facts prove, it is error for the court to direct a verdict.</p> <p>2. BROKERS — Actions for Compensation — Direction of Verdict. T. and 6.. real estate brokers, made a verbal contract with C. for the exchange of C.’s lands for lands of P., and P. and C. entered into written contract of exchange. The question as to the condition of the agreement between the principal and the brokers was controverted, both in the pleadings and in the testimony. Held, the issue was 'for the jury to determine, and the court committed error in directing a verdict for the plaintiffs.</p> <p>3. BROKERS — Compensation—Necessity for License. Defendant pleaded the ordinance of the town of Fairview as a bar to plaintiffs’ right of recovery for the reason they had not. paid the license fee and secured a license as brokers. Upon the objection of the plaintiffs, the court excluded the ordinance as evidence. Held, that the primary purpose of the ordinance was to raise revenue. Hence it constituted no defense 'to plaintiffs’ cause of action, and the court committed no error in excluding same.</p> <p>(Syllabus by Linn. C.)</p>

<p>1. SUNDAY — Validity of Contracts — Execution of Instrument. The bond sued on bore date Monday the 5th day of May, but was signed on Sunday and delivered on a day other than Sunday. Held that said bond did not become effective until delivery, and was not invalid on the ground that it was signed on Sunday.</p> <p>2. PRINCIPAL AND SURETY — Obligation of Principal — Signature. In the body of the bond sued on it purported to have been made by I)., as principal, and B. O. M. and I., as sureties. The principal failed to sign the bond, but the same was signed by the sureties. Under the law as applied to the facts of this case, the principal was bound as fully for the obligation secured by the bond, without signing it, as if it had been signed by him. The facts fail to show ■that it was the intention of the sureties that they should not be liable unless the principal signed. Held, the omission of the obligor to sign said bond did not have the effect of releasing the sureties of any liability.</p> <p>3. SAME — Discharge of Surety — Alteration of Contract. The court found there were some slight changes made in the plans of the building and in its construction, the proof showing that such changes did not increase the cost of construction. These changes were made between the contractor and the builder without the knowledge and consent of tlie sureties or of the plaintiff, one of the beneficiaries in such bond. The court further found that the building contract provided for changes to be made between the contractor and builder. Held, that under the findings of the court the sureties were not released by reason of such changes.</p> <p>4. SAME — Estimate of Architect. The court further found that the architect in charge of said building in accordance with the building contract gave the contractor estimates in amounts not to exceed 90 per cent, of material and work furnished, except in one instance, where the estimates exceeded 90 per cent., which were made unintentionally and upon representations made by the contractor. Held, such facts did not have the effect of releasing the sureties.</p> <p>5. MECHANICS’ LIENS — Indemnity Bond —Person Entitled to Maintain Suit. One provision of the bond specially provided security for persons who might furnish material or labor in the construction of said building, without regard ¡to whether such claims were to be a lien upon said building or not. Plaintiff furnished cement which was sold and delivered for the purpose of being used in the construction of said building, and was one of the beneficiaries in the contract; and one provision of the contract was intended as security for the claim sued on. Held, plaintiff was authorized to maintain, this suit.</p> <p>6. NO PREJUDICIAL ERROR. Upon an examination of the entire record, we find there was no prejudicial error, affecting t'he substantial rights of the defendants or causing a miscarriage of justice, requiring a reversal.</p> <p>(Syllabus by Linn, C.)</p>