Volume 59 — Oklahoma Reports

Error from District Court, Craig County; O. L. Rider, Special Judge. R. V. McSpadden, as administrator of the estate of A. W. Foreman, deceased, filed his final report in the county court of Craig county. Margaret E. Foreman, widow of A. W. Foreman, filed exceptions thereto. The exceptions were overruled, and the widow appealed to the district court, where the exceptions were sustained, and the administrator appeals.

<p>Error from County Court, Tulsa County; Conn. Linn, Judge.</p> <p>Action by tbe First National Bank of Marseilles, 111., against A. D. Clark. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Wills — Probate—Appeal—Parties.</p> <p>Devisees in a will who are served with a notice of application to probate the will, but who are not parties to the hearing of such application, are not necessary parties on ap-I>eal to this court, involving the probate of such will.</p> <p>2. Same.</p> <p>On appeal from the county court to the district court in a probate matter, one who is a party to the proceedings in the county court is not required to make the affidavit required by section 6503, Rev. Laws 1910. Such affidavit is only required when the appeal is taken by a party in interest, who is not a party to the proceedings in the county court.</p> <p>3. Wills — Probate—Matters Considered.</p> <p>In a proceeding to probate a will, the court cannot construe or interpret the will or distinguish between valid and void dispositions. If the will be legally executed and proved, and not successfully attacked for want of testamentary capacity, undue influence, fraud, or duress, it must be admitted to probate.</p> <p>4. Wills — Validity—What Law Governs.</p> <p>A will'is governed by the law as it exists at the time of the death of the maker; and not by the law as if exists at the time of the execution of the will.</p> <p>5. Wills — Probate—Contest—Petition.</p> <p>The petition of contest in the instant case carefully examined, and found not to set up any legal grounds of contest of the probate of the will offered for and probated.</p> <p>6.* Indians — Testamentary Capacity — Statutory Provisions.</p> <p>The proviso of section 8341, Rev. Laws 1910, does not apply to wills executed by members of the Five Civilized Tribes of .Indians devising their allotted lands.</p> <p>(Syllabus by Collier, O.)</p>

<p>Appeal and Error — Assignments of Error— Sufficiency.</p> <p>In an action for personal injuries, where there is no assignment of error that the verdict was excessive, error in an instruction relating to the measure of damages is harmless, following Planters’ Cotton & Ginning Co. v. Penny, 53 Olcla. 136, 155 Pac. 516.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Appeal and Error — Prejudicial Error — Instructions — Applicability to Case.</p> <p>Where the issue to be tried is based upon fraudulent representations, and the court charges the jury on the question of a mutual mistake of fact, which is not within the issue, the error under the facts in this case is prejudicial.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by Melvina Durant and others against Sadie Nesbit and others. Judgment for defendants, and plaintiffs bring error.

<p>1. Master and Servant — Injuries to Servant —Contributory Negligence — Statutory Provision.</p> <p>In an action to recover damages for injuries resulting from a failure to comply with the factory act (Rev. Laws 1910, sec. 3746) as to properly guarding machinery, the defense of contributory negligence by plaintiff may be interposed.</p> <p>2. Negligence — Actions—Question for Jury.</p> <p>Where an issue of contributory negligence is raised by the pleadings, and there is any evidence to support such defense, the question of whether or not the plaintiff was guilty of contributory negligence is one of fact which should be submitted to the jury.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Caddo County: J. T. Johnson, Judge. Separate actions by the State of Oklahoma against J. A. Dinkier, A. J. Morris, and Frank Carpenter, in which the Commerce Trust Company intervened. There was a consolidation of the actions and a judgment .for the State, from which the Commerce Trust Company brings error.

<p>Error from Superior Court. Garfield County; Dan I-Iuett, Judge.</p> <p>Action by S. 0. Craig against, the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff and defendant brings error.</p>

<p>1. Appeal and Error — Presenting Questions in Trial Court — Motion for New Trial.</p> <p>The statutory ground for a new trial, viz., “error of law occurring at the trial and excepted to l>y the party making the application,” will, when embraced in the motion for new trial, present on appeal any objection or exception made to the, instructions at the trial in the statutory way.</p> <p>2. Same — Instructions—Inconsistency.</p> <p>The instructions as a whole must be consistent and harmonious, and, where two instructions contain inconsistent propositions, ihe cause will be reversed, for the reason that the court is unable to tell which the jury followed and which they ignored.</p> <p>(Syllabus by Mathews. C.l</p>

<p>Error from District Court, Blaine County: James R. Tolbert, Judge.</p> <p>Action by the Fairbanks-Morse Company against the City of Geary. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Oklahoma. County ; W. R. Taylor, Judge.</p> <p>Action by the Southern Fuel Company against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Verdict—Evidence.</p> <p>Where the law applicable to the facts material to the. issues joined by the pleadings iu ail action is fairly and fully submitted to the jury by the court, a verdict of the jury, based upon conflicting testimony, will not he disturbed, if it is reasonably supported by the testimony in the case.</p> <p>2. Principal and Agent — Contrast by Agent —Knowledge of Agency — Liability of Agent.</p> <p>One who, without disclosing his agency, enters into a contract in his own name with one who has no knowledge of the agency, binds himself.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. Taxation — Tax Deeds — Validity.</p> <p>A tax deed that shows upon its face that the property sought to be conveyed was in separate parcels, and not contiguous, and was sold en masse for a lump sum, is void.</p> <p>2, Same — Correction of Deed.</p> <p>An officer who executes an imperfect or irregular tax deed, the recitals of which do not conform to the prior proceedings, may ■execute a second deed to conform to the truth.</p> <p>g. Same.'</p> <p>Where the first tax deed conforms to the prior tax sale, regardless of whether the prior sale was void or valid, the officer executing ■ such first deed thereby exhausts his authority, and has no power or authority to issue a second deed, the recitals of which falsify the prior acts and records.</p> <p>4- Same — Effect as Evidence.</p> <p>A recital in a tax deed is presumptive evi-■fleiiee only, and may be contradicted by competent evidence.</p> <p>(Syllabus by Day, 0.)</p>

<p>Error from District Court, Creek County; Wade S. Stanfield, Judge.</p> <p>Action by David Hawkins against the Boynton Land, Mining & Investment Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Marshall County : Jesse M. Hatchett. Judge.</p> <p>Action by the Madill. Oil & Cotton Company against W. O. Davidson. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Logan County; Wm. M. Bowles, Assigned Judge.</p> <p>Action by the Missouri, Kansas & Oklahoma Railway Company against Julius Ward. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error — Liability on Bonds — Enforcement — Judgment.</p> <p>By virtue of chapter 249, Sess. Laws 1915, where a supersedeas bond has been filed to-stay execution on a judgment pending appeal, and the appeal is dismissed, irpon proper motion of defendant in error, judgment will ftp-rendered here against the sureties upon snob, bond.</p> <p>(Syllabus by Rittenhouse, C.)1</p>

Error from District Court, Atoka County; R. M. Rainey, Judge. Action by George M. Maxey and wife against Wilder S. Metcalf, and Mary H. Brinton intervenes. Judgment for plaintiffs, and intervener brings error.

Error from District Court, Major County; James Ay. Steen, Judge. Action by Ralph S. Clayton, as administrator of the estate of Henrietta Oberlander, deceased, and others against Nora M, Ober-lander, administratrix of the estate of S. B. Oberlander, deceased, and another. Judgment for defendants, and plaintiffs bring error. This action was commenced in the district court of Major county by Ralph S. Clayton, as administrator of the estate of Henrietta Oberlander, deceased.

<p>Appeal and Error — Briefs—Effect of Failure to File — Reversal.</p> <p>Where a cause has been duly submitted, and the defendant in error has failed to file an answer' brief within the time allowed by the rules of this court, and no reason therefor has been given or extension of time granted for good cause, and the brief filed by the plaintiff in error reasonably well sustains the assignments of error set out in the petition in, error, the court will not search the record to find some reason why the judgment appealed from should he sustained, hut will reverse and remand the ease for a new trial.</p> <p>(Syllabus by Wilson, O.)</p>

<p>Contracts — Principal and Agent — Existence of Relation — Validity of Contract.</p> <p>A purported contract, by the terms of which It. is to procure a wagon and team and put a man on the road to sell the sewing machines of W., in consideration of .which W. agreed to give R. the exclusive right to sell the machines of W., in H. county, so long as he should sell those machines, the machines to be shipped by W. as ordered by R. and paid for by R. at a price agreed upon, upon terms of credit agreed upon, there being no agreement as to any definite number of machines to be purchased of W. by R. and the termination of said agreement being solely at the pleasure of R., is so indefinite and uncertain, and so wanting in mutuality, as to be of no effect, and no action arises from the breach thereof.</p> <p>(Syllabus by Rummons, C.)</p>

<p>Corporations — Managing Agent — Drafts.</p> <p>K. was a live stock commission company. G. was a cattle buyer. K.’s manager told G. to buy cattle, draw drafts on I-C. iii payment therefor, and that such drafts would be honored. Acting under such authority, G. bought cattle from M., representing to M. that he- was buying for K. M., relying on the truth of such representation, delivered the cattle to G., and accepted G.’s draft on K. in payment therefor. Later, but while said cattle were in the stock pens in the neighborhood in which thej'- were bought, G. called up K.’s manager, by phone, told him of the purchase of the cattle from M., and that he had given M. a draft on.K. in payment therefor, and asked for instructions as do when he should ship said cattle, together with others. Whereupon K.’s manager told G. to “let them come right in.” The only profit K. could derive from its arrangement with G. would bo 'from the commissions and charges it would collect from G. from the sale of cattle purchased by G. and consigned to it for sale on the market. Held, K. is liable to M. for the payment of the draft drawn on it by G. to pay for the cattle.</p> <p>(Syllabus by Wilson, G.)</p>

<p>Appeal and Error —. Review — Question of Fact.</p> <p>It is a well-established rule in this jurisdiction that where the only error assigned on appeal in a law case, tried to the court, is that the evidence was insufficient to support the judgment, the supreme court will not weigh the conflicting evidence, but if it be found that there was any evidence reasonably tending to support the judgment, it will be affirmed.</p> <p>(Syllabus by Wilson, C.)</p>

<p>1. Master and Servant — Injuries 'to Servant —Relation of Parties — Infant Employees.</p> <p>The employer of children in the work provided by section 3728, Rev. Laws. 1910, must ascertain at his peril that the persons he employs are members of the class of persons he may lawfully employ.</p> <p>2. Same.</p> <p>Neither the appearance of an infant nor misrepresentations as to his age will relieve the employer from the operation of the statute, but the employment of a child in violation of the statute is evidence of negligence in an action by the child to recover for personal injuries inflicted upon him while at work in the place named in said statute.</p> <p>3. Same — Actions—Instructions.</p> <p>In this case the court refused to instruct the jury that if the defendant, in the exercise of proper vigilance ancl due caution, was led to believe that the plaintiff was above the statutory age, could not be charged with negligence in employing him and likewise refused to instruct the jury that if his parents falsely stated his age at the time of his employment, the defendant was not guilty of negligence in hiring him. Held, no error.</p> <p>(Syllabus by Hooker, O.)</p>

Error from District Court, Oarvin County; JR. McMillan, Judge. Action by the State, on the relation of W. H. Poft'enberger, against W. H. Houser, County Treasurer of Garvin County. Judgment for plaintiff, and defendant bungs error

<p>1. Appeal and Error — Settlement of Case-Made — Notice—Waiver by Stipulation.</p> <p>Where counsel, by stipulation, waive the right to suggest amendments, and agree that the case may be settled immediately and without notice, such stipulation constitutes a waiver of all notice of the settlement of the case-made.</p> <p>2. Same — Case-Made—Cure of Defects.</p> <p>Where a case-made does not contain a positive averment by way of a recital that it contains all the evidence introduced or submitted on the trial of the ease, the same will be insufficient and without force, and it is not cured by the certificate of the court clerk or the stipulations of counsel.</p> <p>(Syllabus by Clay, C.)</p>

<p>1.Telegraphs and Telephones — Transmis-mission of Messages — Negligence.</p> <p>G. sent a telegram from M. to his brother at O. notifying him of the serious illness of his brother at M. December 19, 1910, which was not delivered until called for January 7, 1911, long after his brother’s death, and no excuse offered for failure to deliver. Defendant’s agent at C. was well acquainted with plaintiff, to whom the telegram was sent, seeing him two or three times every day. Held, defendant was' guilty of gross negligence amounting to a wanton and reckless disregard of plaintiff’s rights.</p> <p>2. Saíne — Actions—Evidence.</p> <p>It is error to admit testimony showing defendant's agent at C. was in the habit ot getting drunk, or was drinking at or about the time the telegram was sent, without showing that his drinking was the proximate cause of the loss and damage of which complaint is made, or had anything to do with the failure to deliver the telegram.</p> <p>3. Damages — Exemplary Damages — Right to Recover.</p> <p>Where plaintiff does not recover actual damages in an action for delay in delivering ■a death message, a verdict for exemplary damages alone should, upon proper application to the court, lie set aside.</p> <p>(Syllabus by Clay, C.)</p>

<p>Error from County Court, Seminole County; A. S. Nor veil, Judge.</p> <p>Action by AV. A. Raines against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Master and Servant — Injuries to Servant —Tools and Appliances — Inspection.</p> <p>It is the duty of the master to use ordinary care to provide his employes with reasonably safe tools and appliances, and from time to time inspect such tools and appliances, and use ordinary care in keeping them in reasonably safe condition, but he owes no duty to the employe of inspecting simple tools where the defects are necessarily obvious.</p> <p>2. Same — Defects In Tools — Knowledge of Defects.</p> <p>AVhere a simple tool becomes defective, and the master had actual notice of such defect, and the servant injured had no knowledge of such defect, and injury results from the use of such tool by a fellow servant, the master is liable.</p> <p>3. Same — Tools and Appliances — Negligence of Master.</p> <p>H. was injured by the head of a steel niaul flying off the handle as it was being used by a fellow workman. This workman knew of the defect in the maul and had notified the foreman of said employes, whose duty it was to repair defective tools. H.. who was not using or holding the tool, had no knowledge of the defect. Held, notice to the foreman was notice to the master, and the master was negligent in the breach of a positive duty, that of repairing a known defect.</p> <p>•Í. Same — Assumed Risk — Negligence of Master.</p> <p>H.. a member of a bridge gang, impliedly assumed the ordinary risks incident, to his employment, among which was such accident as a maul flying from its handle and striking him, but did not assume any risk of the master’s neglect or breach of duty to repair a known defect.</p> <p>5. Trial — Instructions — Construction as a Whole.</p> <p>Where the trial court generally instructed the jury in plain and simple language defining the issues made by the pleadings, and the law applicable to the facts as proven in the trial, error predicated upon definitions of legal terms, correct as far as the definitions went, but incomplete, held harmless.</p> <p>(Syllabus by Olay, 0.)</p>

<p>Appeal from County Court, Okmulgee County: Mark L. Bozarth, Judge.</p> <p>On motion for judgment against sureties on supersedeas bond. Motion sustained.</p>

<p>1. Indians — Lands — Issuance of Patent— Review by Courts.</p> <p>A final decision of the Commissioner to the Five Civilized Tribes and the Secretary of the Interior in a contest proceeding awarding the right to allot certain lands, and the issuance of a patent therefor to the prevailing party, may be reviewed by a court of equity; and. if it be found that the departmental officers in arriving at such decision have departed from the established principles of law and governing rules of procedure, and have been induced to issue the patent to the wrong party by reason of a materially erroneous view of the law, the effect of such decision and patent may be avoided by decree of the court, and the legal title to the lands involved in the contest and conveyed by the patent charged with a trust in favor of the rightful claimant.</p> <p>2. Trusts — Enforcement — Plea-ding — Petition.</p> <p>Petition examined, and held to state facts sufficient to constitute a cause of action.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Pleading — Set-off and Counterclaim.</p> <p>The record examined, and it is held that the demurrer to that part of the answer which pleaded a set-off was properly sustained for reasons stated in the opinion, and, there being no error in the case, same is affirmed.</p> <p>(Syllabus by Hooker, C.)</p>

<p>-1. Electricity — Liability for Injuries — Care -Required.</p> <p>It is negligence for an electric lignt company to maintain in the streets of a city a “primary wire” carrying a high voltage of electricity without having such primary wire insulated.</p> <p>3. Same — Proximate Cause.</p> <p>Where the injury received was caused by an uncharged wire coming in contact with an uninsulated wire, over which a high voltage of electricity was being conveyed, there being no contributory negligence, such uninsulated charged wire was the proximate cause of the injury received.</p> <p>(Syllabus by Collier, 0.)</p>

<p>Appeal and Error — Liability on Bonds — Entry of Judgment.</p> <p>Where an execution of a judgment, affirmed in the Supreme Court on appeal, has been stayed by the execution of a supersedeas bond, on a motion, judgment will be entered in this court against the surety on such bond, under the provision of chapter 249, Sess. Laws 1915.</p> <p>(Syllabus by Collier, 0.)</p>

<p>Error from County Court, Caddo County: C. Ross Hume, Judge.</p> <p>Action by the St. Louis Carbonating & Manufacturing Company against the Look-eba State Bank. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge.</p> <p>' Action by A. H. Gorby against John J. Gayman, County Treasurer of Lincoln County, and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Chattel Mortgages — Foreclosure—Conversion.</p> <p>Where a mortgagee has taken possession of chattels under a writ of replevin, and is proceeding to foreclose by advertisement, and tbe mortgagor invokes section 4026, Rev. Laws 1910, and the foreclosure by advertisement is enjoined, held, that it is error for the court to instruct the jury that if the mortgagee did not. within a reasonable time after taking, possession of the property, by virtue of the writ of replevin, begin advertisement and proceed to a sale of the property under the terms of the mortgage, he was guilty of conversion.</p> <p>2. Alteration of Instruments — Effect—Mortgage and Note.</p> <p>Where a mortgage securing a note has been materially altered and clianged. held that it is error for the court to instruct the jury that such alteration in the mortgage renders the note also void, and there can be no recovery upon the debt.</p> <p>(Syllabus by Brett, C.)</p>

Error from County Court, Cleveland County; B. F. Wolf, Judge. In the matter of proceedings to assess for luxation in Cleveland County property of E. B. Johnson charged to be subject to taxation, and which had been omitted from the tax rolls. From the finding of the county treasurer sustaining the protest of the taxpayer, an appeal was taken to the. 'County court, which on motion was dismissed. From the order dismissing the appeal, the county brings error.

<p>Error from District Court, Hughes County; John Caruthers, Judge.</p> <p>Action by Bunnie McCosar and others against James A. Chapman. Judgment for defendant, and plaintiffs bring error.</p>

<p>Error from Superior Court, Tulsa County; M. A. Breckenridgc, Judge.</p> <p>Action by ,T. O. Allen, guardian, against F. B. Dillard. Judgment for defendant, and plaintiff appeals.</p>

<p>3. Evidence — Hearsay—Admissibility.</p> <p>A report on the action of the officers of a corporation as to its management and financial condition, and expressing opinions as to ihe future management of such corporation, made by attorneys who are not examined as witnesses in a cause, is not admissible in evidence.</p> <p>2. Appeal and Error — Review—Prejudicial Effect of Error — Hearsay Evidence.</p> <p>The admission of material hearsay evidence, when timely objected to. is reversible-error.</p> <p>(Syllabus by Collier. 0.)</p>

<p>1. Husband and Wife-Married Women— Right of Action.</p> <p>Under the laws of Oklahoma, a woman, though married, retains her legal existence and personality, and may sue in the courts in her own name for the protection or redress of injury sustained to her reputation, person, property, or natural rights, the same as a man can do.</p> <p>2. Divorce — Husband and Wife — Support of Children — Disposition of Property — Right of Action — Decree—Partition.</p> <p>The decree of a district court, made in a proper action under section 4966. Rev. Daws 1910, adjudging an undivided one-half interest in real estate to a married woman for the care, maintenance and education of her minor child, and not modified or apealed from, may be the basis of a subsequent action in partition commenced by the wife against the husband.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Error from District Court, Muskogee County;.! Fred M. Branson, Judge.</p> <p>Action by the Midland Savings & Loan Company against J. W. Cheves and others. Judgment for defendants, and plaintiff'brings error.</p>

Error from District Court, Custer County; James R. Tolbert, Judge. Action by R. J. Hodges against Butler State Bank and another. Judgment for plaintiff, and against defendant R. B. Farris, and he brings error.

<p>Error from County Court, Jackson County; J. M. Williams, Judge.</p> <p>Action by A. Gleason against the Kansas City, Mexico & Orient Railway Company of Texas and another. Judgment for plaintiff, and the defendant named brings error.</p>

Error, from District Court Bryan County ; Jesse M. Hatchett, Judge. Action by the Fabric Fire Hose Company against the town of Caddo and others. Judgment for defendants, and plaintiff brings er ror.

Error from County Court, Carter County; AV. F. Freeman, Judge. Action by Noble Bros., a partnership composed of Eva Noble and others, against D. M. Ballew. Judgment for defendant, and plaintiffs bring error.

Error from County Court, Pontotoc County ; I. M. King, Judge. Action by the Rice Stix Dry Goods Company against W. C. Lee and another, doing business under the firm name of Lee & Sawyer, and others. Judgment for defendants, and plaintiff brings error.

<p>1. Quieting Title — Jurisdiction—Cross-Petition.</p> <p>It is no objection to the jurisdiction of the court in an action to quiet title that plaintiff is not in possession, where defendant files a cross-petition asking that his own title be established and quieted, as the court is thereby given jurisdiction of the entire controversy.</p> <p>2. Taxation — Delinquent Tax Sale — Validity.</p> <p>Whore the statute requires that under a delinquent tax sale the land shall be offered for sale at the office of the county treasurer, and same was offered for sale at the front door of the courthouse, there has not been a substantial compliance with the statute, and such sale is void.</p> <p>(Syllabus by Day, C.)</p>

<p>Error from County Court, Creek County; IVarren H. Brown, Judge.</p> <p>Action by Kimball & Reading against the Sapulpa Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Appearance — Special Appearance — Want of Jurisdiction — Waiver of Objection.</p> <p>Where a court acquires no jurisdiction over the person, and the defendant appears specially for the purpose of challenging the attention of tlie court to such irregularity, and the court thereupon overrules his motion to such jurisdiction, the defendant may save his exception, file his answer and proceed to trial without waiving such error, and he may take advantage of such error on appeal to a higher court</p> <p>3.Corporations — Service of Process — Return.</p> <p>Tlie service of summons upon a corporation other than railroads must be made upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or. if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent, or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of the said corporation with the person having charge thereof, and the return of the sheriff or other officer making the service must show why the service was not made upon one of these chief officers, before a return showing service upon any of the officials named can be justified or upheld.</p> <p>3. Railroads — Service of Process — Return.</p> <p>Under sec. 4717, Rev. Laws of 1910. every railroad company doing business in this state and having agents doing business herein for such company is required to designate some person residing in each county into which its railroad line runs or in which its business is transacted upon whom process may be served ; and under see. 471S. Rev. Laws 1910, service may be made upon the person thus designated as provided by sec. 4717 aforesaid.</p> <p>4. Same.</p> <p>By sec. 4719. Rev. Laws 1910, if the railroad company fails to designate such person, summons may be served on any local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of such company in such comity, or sucli process may be served by leaving a copy thereof, certified by the officer to whom the same is directed, at any' depot or station of such company in such county, with some person in charge thereof, or in the employ of such company. And it is equally true that service must be made upon the chief officials or agents designated in such sections, and, if the same cannot be done, the return of the officer must show why it was not served upon one of these and what the official character of the person was upon whom it was served.</p> <p>5. Same.</p> <p>The statute contemplates that an attempt must be made to obtain service upon those first named before resorting to service upon the other class of persons designated therein.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from District Court, Cotton County; Cham Jones, Judge.</p> <p>Action by Charles Orth against the Town of Walters. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Payment — Defense—Burden of Proof.</p> <p>Payment is always a matter of defense, and the burden of proof is upon the party alleging same.</p> <p>2. Appeal and Error — Presentation for Re view — Exclusion of Evidence.</p> <p>The action of the trial court in the exclusion of evidence will not be reviewed unless the full substance of the evidence, to the exclusion of which objection is made, is set out in the brief of plaintiff in error, as required by Rule No. 25 (38 Okla. x, 137 Pac. xi), although properly assigned as error.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>Error from County Court, Kiowa County: J. S. Carpenter, Judge.</p> <p>Action by George A. Bottom against A. B. Miner, wherein a writ of garnishment was issued. Garnishee discharged, and plaintiff appeals.</p>

<p>Error from District Court, Wagoner County; R. P. de Graffenried, Judge.</p> <p>Action by Henry Secrest against W. J. Colter and others. Judgment for plaintiff, and defendants bring error. On motion for affirmance, and for judgment against sureties on appeal bond.</p>

Error from District Court, Garfield County; J. B. Cullison, Judge. Two actions consolidated, one by the Ely Walker Dry Goods Company, the other by Peter’s Branch of the International Shoe Company, both against J. F. Green and Grace A. Blake, administratrix of the estate of W. B. Blake, deceased. Judgment' for the ad-ministratrix, and plaintiffs bring error.

<p>Application by J. W. MeClintie for writ of habeas corpus.</p>

<p>1. Adverse Possession — Requisites.</p> <p>In order for a party to be able to avail Tiimself of an adverse possession, it must be exclusive.</p> <p>:2. Same — Possession of Another — Contingent Agreement to Pay Rent.</p> <p>Where one person is in possession of a tract of land and agrees to pay the rent to a ■second party upon a certain contingency which never materializes, the said second party cannot successfully claim that he was in adverse possession of said tract against a third party during the time the first party held the same under said agreement.</p> <p>:3. Champerty and Maintenance — Conveyance by Person Ouit of Possession — Validity.</p> <p>A conveyance ■ of land made in contravention of the provisions of see. 2260. Rev. Laws 1910, by the rightful owner, is utterly void as against the person holding adversely claiming to be the owner thereof under color of title, but as between the parties and all the rest of the world it is good, and passes the grantor’s title.</p> <p>4. Same.</p> <p>Under sec. 2260, Rev. Laws 1910, a conveyance of land by the rightful owner while he was out of possession of the same and while the title to said land was in litigation is void, but only as to those parties engaged in the litigation. As to the grantor and third parties who had no part in and were not concerned with the litigation, such a conveyance is valid and operates to convey whatever title the grantor had.</p> <p>5. Appeal and Error — Briefs—Citation of Authorities.</p> <p>Attorneys representing parties here on ap peal should not risk their client’s interest by merely setting out an argument in their brief, but should cite authorities in support of their argument. No other kind of brief is worth while.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. Railroads — Accident at Crossing — Proximate Cause of Injury.</p> <p>Negligence cannot be based upon the failure of those in charge of a train to ring the bell and sound the whistle, where the plaintiff pleads and proves that, while .in a position of safety, he knew the train was approaching.</p> <p>2. Evidence — Competency — Knowledge of Facts. ^</p> <p>Where a witness testified that he did hot observe or know the speed of the train at the time of the injury, but when urged by counsel testified that in his judgment it was traveling 15 miles an hour or more, held, that the witness, not having observed or knowing the speed of such train, was not qualified to testify with regard thereto.</p> <p>3. Railroads — Accidents at Crossings— Speed — Question of Fact.</p> <p>Where, in the limits of a town, the speed of a train is not regulated by ordinance, a railway company may run its trains at any rate of speed consistent with the safety of such trains and persons rightfully on its premises, but this privilege does not give to such company the right to run into a station at an excessive rate of speed in utter disregard of the safety of persons rightfully upon its promises; such speed must be regulated with due regard for the safety of the public. Held, that whether there was excessive speed, and, if so, whether under facts and circumstances of the case such speed constituted negligence, is a question of fact to be determined by the jury.</p> <p>4. Same — Burden of Proof.</p> <p>Whether the excessive spsed of a train is the proximate cause of an injury is never presumed, but must be established by the evidence.</p> <p>5. Same — Evidence.</p> <p>Evidence examined, and held insufficient to support the doctrine of the last clear chance.</p> <p>6. Negligence — Actions—Question for Court or Jury — Constitutional Provision.</p> <p>,Section 6, article 23 (Williams’) Constitution, providing that the defense of contributory negligence shall in all cases whatsoever be a question of fact, and shall, at all times, be left to the jury, does not take from the courts the right to ascertain whether the three necessary elements of primary negligence exist, viz: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) The failure of the defendant to perform that duty; and (3) Injury to the plaintiff resulting from such failure.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by P. J. Nicholson and another against M. C. Binion, Sheriff of Oklahoma County, Oklahoma, and others. Judgment ■for defendants, and plaintiffs bring error.

<p>1. Cancellation of Instruments — Right of Action — Possession of Plaintiff.</p> <p>In an action brought to cancel a void conveyance of land, it is not necessary to allege and prove1 that plaintiff is in possession of (he land.</p> <p>Actions — Limitations Applicable — Cancellation of Deed.</p> <p>In an action to cancel a void conveyance of land, the plaintiff is not barred by any lapse of time short, of that sufficient to establish title by prescription, as fixed by subdivision 4. sec. 4655, Rev. Laws. 1910.</p> <p>3. Witnesses — Impeachment — Former Conflicting Testimony.</p> <p>A witness having admitted upon cross-examination that she gave testimony in another proceeding in conflict with the testimony given at the trial, it is not error for the court to reject evidence of the testimony given by the witness in the other proceeding.</p> <p>4. Cancellation of Instruments — Actions— Parties.</p> <p>The grantor in a deed, void as against defendants in adverse possession, may maintain an action in his own name against those holding adversely to him and his grantees to cancel void deeds executed by said grantor to those in adverse possession.</p> <p>5. Indians — Cancellation of Deed — Action —Evidence.</p> <p>Evidence examined, and held to sustain the judgment of the trial court.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court. Oklahoma Oounly: .T. W. I-Iayson, Judge. Action by Ethel Nicholson and another against M. 0. Billion, as Sheriff of Oklahoma County, and others. From a judgment for defendants, plaintiffs bring error.

<p>Error from District Court, Garfield County ; James B. Cullison, Judge.</p> <p>Action by William Howald against J. H. Bash and others. Prom a judgment for plaintiff, defendants bring error.</p>

<p>Error from District Court, Greer County; G. A. Brown, Judge.</p> <p>Action by the Southwestern National Bank against F. Armbruster and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from County Court, Le Flore County; P. C. Bolger, Judge.</p> <p>Action by M. M. Ryan against Walter Reynolds, and Frank Babcock files a petition for intervention. Judgment for plaintiff, =and defendant and intervener bring error.</p>

Error from District Court, Rogers County ; T. L. Brown, Judge. Action by E. C. Feland, administrator of the estate of John R. H. Daugherty, against T. J. Daugherty and another. Judgment for rdaintiff. and defendants -bring error.

<p>Error from District Court, Rogers County; T. L. Brown. Judge.</p> <p>Action by Charles Richardson against Ada A. MeSpadden. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error — Supersedeas Bond-Entry of Judgment.</p> <p>In a case where execution of a judgment, affirrhed in the Supremo 'Court on appeal, has been stayed by virtue of a supersedeas bond, under the provisions of chapter 249, Session Laws 1915, judgment will be entered in this court against the sureties on such bond.</p> <p>(Syllabus by Blealcmore, O.)</p>

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by tlie United Brothers of Friendship and Sisters of the Mysterious Ten of Oklahoma against P. M. Delancy and. others. Judgment for defendants, and. ¡daiutiff, brings error.

<p>J. Principal and Agent — Rights as to Third Persons — Ratification. /</p> <p>If the purchaser in dealing with the agent in good faith believes him to be the principal, the undisclosed principal must take the contract if he seeks to enforce it as his agent and the purchaser left it. If he seeks the advantages of the contract, he-must suffer its burdens. He must take his pay ns the agent agreed to take it.</p> <p>2. Appeal and Error — Presenting Question in Trial Court — Exceptions.</p> <p>When the instructions are given in writing, and following them the case-made recites. “To each and every instruction given by the court the plaintiffs except,” this is not a sufficient reservation of an exception to any particular instruction contained in the' charge "under section 5003 of the Revised Laws of 1910, as the same is only a genera) exception, and is insufficient to challenge the attention to any specific instruction or to bring to the consideration of this court any separate instruction, nor will the same avail as an exception unless the whole charge or its general scope or meaning is erroneous.</p> <p>(Syllabus by Hooker, O.)</p>

Error from District Court, Jefferson County; Cham Jones, Judge. Action by the North Healdton Oil & Gas Company against W. G. Skelley and another, doing business under the firm name of the Skelley Drilling Company. Erom a judgment sustaining a demurrer to the petition, plaintiff appeals.

<p>Error from District Court, Pontotoc County ; Tom D. MeKeown, Judge.</p> <p>Action between George AV. I-Iicks and L6n Allen. Prom the judgment, I-Iicks appeals.</p>

<p>1. Divorce — Alimony—Judgment—Modification.</p> <p>Upon a motion and notice to modify a judgment decreeing alimony, made after the expiration of the term at which such judgment is rendered, where it appears that tlie original journal entry of judgment was submitted to the court in the presence of the counsel for both sides, there discussed, and its terms finally settled and signed by the court, such court is not justified in modifying such judgment upon the ground that the order did not express the proper intent ion at the time, according to his recollection, and in contradiction to the records then made.</p> <p>2. Judgment — Modification—“Irregularity.”</p> <p>An “irregularity,” within the meaning of subdivision 3 of section 5267, Rev. Laws 1910, is some departure from the preseribecl procedure in the trial, or in the determination of the action, not evidenced by a ruling oí-an order.</p> <p>(Syllabus by Galbraith, 0.)</p>

Error from District Court, Haskell County; AT. H. Brown, Judge. Action by J. T. Howard against tlie First National Bank of Stigler, to recover penalty for usury charged. Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and Error — Presentation Below— Instructions.</p> <p>In order Cor a party to avail himself of an alleged error in an instruction given to the jury by the court, or the refusal to give a requested instruction, it must appear from the record that the instruction complained of. or the refusal to give the requested instruction, was duly excepted to at the time.</p> <p>3. Appeal anti Error — Verdict — Evidence.</p> <p>. Tn a civil action the verdict of the jury reasonably supported by the evidence will not be reversed upon appeal, in the absence of a showing that the court committed some prejudicial error of law during the course of the trial.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Carriers — Carriage of Goods — Limitation of Liability — Validity.</p> <p>A provision in a bill of lading issued by a common carrier in 1912 covering an interstate shipment of grain, providing that claim for any loss incurred must be filed within four iponths after the delivery of the shipment, or in ease of failure to deliver within four months after a reasonable time for/such delivery, if fairly entered into by the carrier and the shipper, and not unjust or unreasonable under the circumstances of the particular case, is valid; and a failure to comply therewith • on the part of the shipper, when such provision of the contract is \properly pleaded and not waived by the carrier, bars a recovery.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. Appeal and Error — Presentation Below— Motion for New Trial.</p> <p>The statutory ground for a new trial, viz., ‘‘error of law occurring at the trial and excepted to by the xiarty making the application,” will, when embraced in the motion for a new trial, present, on appeal any objection or exception properly made and saved during, the progress of the trial.</p> <p>3, Appeal ami Error — Instructions—Exceptions — Sufficiency.</p> <p>A general exception to a charge of the court containing several distinct instrluc-tions, some of which are correct, is not sufficient to save an exception to any specific instruction.</p> <p>3. Chattel Mortgages — Debts Secured— Future Debts.</p> <p>A mortgage given to secure, a stated indebtedness, and therein stipulating that, should the maker become indebted to the mortgagee in any further sum, the instrument should cover and constitute a lien on the mortgaged property to secure the payment thereof, effectively operates, to secure an open account made while said mortgage was still in force and effect.</p> <p>d. Usury — What Constitutes — Forfeiture.</p> <p>Two notes in the sum of $150 and $100 were executed to a merchant, and in lieu thereof the maker received two coupon books for ■ $132 and $88, respectively, to be traded out in the merchant’s store. Each of said notes matured in less than a year from the dates of execution. Held, the notes were usurious, and there was forfeited to the maker the sum of $60. being twice the amount of the usury charged.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. Blaster and Servant — Injury to Servant— Safe Place and Appliances — Liability of Blaster.</p> <p>An employer owes to his employee a duty to furnish him a reasonably safe place in which, and reasonably safe tools and appliances with which, to work and is responsible for injuries proximately resulting to the employee from neglect to do so, unless the employee has assumed the risk of the same or has contributed to the injuries.</p> <p>2. Same — Proximate Cause.</p> <p>Where the master fails in his duty to the injured servant of furnishing safe premises, machinery, or tools, and this failure is the proximate cause of injury, the fact that the negligence of a fellow servant also commingles with it as a proximate cause will not exonerate the master from liability.</p> <p>3. Same — Concurrent Negligence — Demurrer to Petition.</p> <p>The petition in this case examined, and the same charges concurrent negligence upon the part of the servant and the master, and a demurrer thereto was properly overruled.</p> <p>4. Appeal and Error — Verdict—Evidence.</p> <p>The verdict of the jury being supported by the evidence, the same will not be disturbed by this court. .</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from County Court, Stephens County ; J. W. Marshall, Judge.</p> <p>Action by J. W. Hine against the Chicago, Rock Island & Pacific Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error — Judgment — Conflicting Evidence — Equity.</p> <p>The judgment of the trial court in an equitable action, where the evidence is conflicting, should be given weight, and, unless the appellate court is satisfied that the conclusions reached by him are wrong, should be alfirmed.</p> <p>(Syllabus by Burford, C.)</p>

Error from County Court, Tulsa County; J. W. Woodford, Judge. Action by the State against certain liquors, vessels, implements, fixtures, and furniture. wherein the Diamond Drug Company and another intervened. Judgment for the State, and interveners bring error.

<p>Error from County Court, Pittsburg County ; S. P. Brown, Judge.</p> <p>Action by the Seneca Company against C. O. Doss. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court. Murray County ; R. McMillan, Judge. Consolidated action by E. E. Ford and others to foreclose mortgages, in which S. M. Davis intervened. Judgment for plaintiff. and Davis appeals.

<p>1. Usury — Remedies of Parties — Recovery of Usury Paid — Amount of Recovery.</p> <p>The amount which a party who has paid interest in excess of 10 per cent, per annum may recover, after due demand therefor, in an action brought under section 1005, Rev. Law's 1910, is twice the amount of the unlawful interest so paid by him, and is not limited to twice the amount paid in excess of 10 per cent, per annum upon tlie principal debt.</p> <p>2. Appeal and Error — Harmless Error — Reception of Evidence — Order.</p> <p>Where evidence is admitted, without tlie proper foundation being laid, and thereafter evidence is introduced properly laying such foundation, tlie premature admission of such evidence will not ordinarily constitute reversible error.</p> <p>3. Usury — Remedies of Parties — Pleading.</p> <p>Petition in a suit for usury examined and held to state a cause of action.</p> <p>(Syllabus by Burford, 0.)</p>

<p>Error from District Coitrt, Jackson County ; Frank Mathews, Judge.</p> <p>Action by the Parry Manufacturing Company against John D. Bailey and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Rogers County; T. L. Brown, Judge.</p> <p>Action by W. P. McClellan against the -Oklahoma Fuel Supply Company. Judgment for plaintiff, and defendant ■ brings error.</p>

<p>Error from District Court, Woodward County; Jfimes W. Steen, Judge.</p> <p>Action by C. S. Patton against the Atchison, Topeka & Santa Fe Railway Company.vFrom an order overruling a demurrer to the answer, plaintiff brings error.</p>

<p>Justices of the Peace — Review of Decisions— Causes of Action Involving Amount in Controversy.</p> <p>An appeal will not lie from the judgment of a. justice of the peace, where the recovery sought is for a sum less than $20, exclusive of costs.</p> <p>(Syllabus by Rummons, C.)</p>

<p>Error from County Court, Choctaw County ; W. T. Glenn, Judge.</p> <p>Action by Jo.e Harkey against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Brokers — Bight to Commission — Exchange of Properties.</p> <p>T., a broker, was employed by D. to find some one with whom D. could exchange a stock of merchandise for live stock. T. brought I), and H. together for the purpose of negotiating such exchange. After some negotiations the exchange fell through, because I), was not satisfied that the value of the live stock he was to receive in the proposed exchange was equal to the value of his stock of merchandise.</p> <p>Held, that T. was not entitled to recover commissions from I), because of such proposed exchange,.</p> <p>(Syllabus by Summons, C.)</p>

<p>. Error from District Court, Creek County; R. P. de Graffenried, Judge.</p> <p>Action by G. W. Smiley against Samuel J. Scott and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Highways — Vacation—Authority of County Commissioners.</p> <p>By virtue of section 1600, subdivision 3, of the Rev. Laws of 1910, the board of county commissioners of the various counties of this state have authority to vacate highways donated by section 23 of the Organic Act.</p> <p>2. Same — Order.</p> <p>The laying out and establishment of a new road between two objective points, in such close proximity to the old road as clearly indicates an intention upon the part of the board of county commissioners to substitute the new for the old, ipso facto, vacates the old road.</p> <p>3. Appeal and Error — Review—Questions of Fact.</p> <p>In eases of purely equitable cognizance, where the parties are not entitled to a jury, this court on appeal has the power to examine the evidence, and, where the judgment of the trial court is clearly against the weight of the evidence and the law, to render or cause to be rendered such judgment as the trial court should have rendered.</p> <p>(Syllabus by Hooker, O.)</p>

<p>Error from District Court, Atoka County; Robt. if. Rainey, Judge.</p> <p>Action by Tames J. Kennedy against the Modern Order of Praetorians, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Muskogee County; Fred P. Branson, Judge.</p> <p>Action by W. E. Reynolds against M. K. Ownby and others. Judgment for plaintiff, and defendant H. B. Nelson brings error.</p>

<p>Counties — County Funds — Interest—Liability of Treasurer.</p> <p>County funds received by the county treasurer remain the money of the county until paid out according to law, and the treasurer having charge thereof is prohibited by law from receiving for his own private use anv interest for the use of said funds, and any interest collected by him for the use of said money belongs to the county and an action can be maintained therefor against the county treasurer by the board of county commissioners to recover the same.</p> <p>(Syllabus by Hooker. C.l</p>

<p>Error from District Court, Craig county; Preston S. Davis, Judge.</p> <p>Action by J. W. Wildrick against James W. Orwig and others, wherein Davis Hill and another were garnisheed. From the judgment John F. Rector, who was made a party defendant after commencement of the suit, brings error.</p>

<p>1. Appeal and Error — Review—Questions off Fact.</p> <p>The first paragraph of ' the syllabus in -Myers v. Gabincss, 14 Okla. 671, 146 Pae. 33, is adopted and approved in this case.</p> <p>2. Judgment — Conclusiveness — Parties Cwr-ciuded.</p> <p>Tlic scheduling of property as exempt by a bankrupt and its approval by .the referee in bankruptcy is not- res adjudicata as to -the ownership of such property in a subsequent action between the bankrupt and the third parties — not parties to the bankruptcy proceedings.</p> <p>3. Replevin — Judgment — Form — Value ®f Property.</p> <p>In an action of replevin, where the plaintiff obtained possession of the property at the commencement of the action, and the verdict was for the defendant, but the verdict did not fix the value of the property, and no objection was made to the form of the verdict until three'days thereafter, when it was assigned an error in the motion for new trial, Held that, no timely objection to the form of the verdict having been made, it was not prejudicial error for the court to render judgment against the plaintiff for the value of the property in th" event it should not be returned to the defendant.</p> <p>(Syllabus by Galbraith. G.)</p>

Error from .District Court, Wagoner County; Fred P. Branson, Judge. Action between J. L. Cope and others and Hannah Anderson and others. From the judgment, the parties first mentioned bring error.

<p>Error from District Court, Kay County; IV. M. Bowles, Judge.</p> <p>Action by George A. Harris and another against Thomas Gvosdanovic. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Muskogee County; It. P. de CralTenried, Judge. Action in which a trust in land was declared in favor of Emma T. Forster against Mary Ingrain. Petition by F. W. Hirsch-man and another, successors in interest of defendant Mary Ingram, to vacate judgment. From a judgment sustaining a demurrer to the petition, petitioners appeal.

Error from District Court, Tillman county; Frank Mathews, Judge. Action by Laura Crouch and another against W. E. Crouch and another. Judgment for defendants, and plaintiffs bring error.

<p>1. Appeal and Error — Record—Case-Made— Requisites.</p> <p>Where the certificate of the trial judge to a purported case-made is not attested by the clerk of the trial court, with the seal of said court attached, such purported case-made is a nullity, and confers no jurisdiction upon' this court to review any question presented by such purported case-made.</p> <p>2. Appeal and Error — .Record — Questions Presented for Review.</p> <p>Only that which constitutes the “judgment roll” can be considered on an appeal taken by transcript.</p> <p>(Syllabus by Collier, C.)</p>

<p>1. Appeal and Error — Assignments of Eitoj —Argument—Citation of Authorities.</p> <p>Where assignments of error are not supported by argument, or citation of authorities, the same will not be considered by this court.</p> <p>2. Appeal and Error — Briefs — Requisites • and Sufficiency.</p> <p>Where the brief sets forth the assignments of error in one group, and the argument discusses abstract questions of law without calling the attention of the court to any specific ruling or error committed by the trial court, the brief is insufficient.</p> <p>•3. Bills and Notes — Negotiable Instrument Law — Retroactive Operation.</p> <p>The provisions of the Negotiable Instrument Law approved March 20, 1909 (Laws 1909,. c. 24), do not apply to negotiable instruments made and delivered prior to its passage.</p> <p>4. Bills and Notes — Bona Fide Holder — Alteration.</p> <p>An alteration of notes whereby the name of the payee is changed from “E. T. Philpot & Co.” to “Edward T. Philpot or bearer,” without the consent of the makers, renders the notes void as to the makers, even in the hands of a holder (in due course) without notice of such alteration.</p> <p>5. Trial — Submission of Special Interrogatories — Discretion.</p> <p>By virtue of article 7, section 21, Constitution of Oklahoma, it is within the discretion of the trial court to refuse to submit special interrogatories to a jury.</p> <p>-6. Bills and Notes — Negotiable Instrument Fraudulently Obtained — Burden of Proof —Bona Fide Purchaser.</p> <p>Where a negotiable instrument is shown to have been obtained by false representations, the burden is on the subsequent holder to show that he is -a bona fide purchaser for value without notice.</p> <p>'7. Appeal and Error — Harmless Error — Rulings on Evidence.</p> <p>Upon an examination of the entire record we are of the opinion that th? errors complained of in the admission and rejection of evidence have not resulted in a miscarriage of justice, or constitute a substantial violation of a constitutional or statutory right.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>Appeal and Error — Case-Made—Service— Parties.</p> <p>All persons against whom a joint judgment has been rendered must be made parties to a proceeding in error to reverse such judgment, and such of those parties who fail or refuse to join in the appeal as plaintiffs in error must be made defendants in error; and, in such cases the case-made must he served upon them, and summons in error, unless waived, must be issued and served upon them.</p> <p>(Syllabus by Mathews, C.)</p>

<p>Appeal and Error — Failure to File Brief— Review — Reversal.</p> <p>Where plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and there is no brief filed and no reason given for its absence on the part of the defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained: but. 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 Edwards, O.)</p>

<p>Justices of the Peace — Review of Decisions— Security — Deposit.</p> <p>The procedure for taking appeals from tlje justice to the county or district court is provided in the statutes, and the only provisions therein for securing the costs is by giving an appeal bond, and the appellate judge, has no right or authority to require the appellant to make a cash deposit to cover the costs in the appellate court.</p> <p>(Syllabus by Mathews, C.l</p>

<p>1. Appeal and Error — Review—Successive Appeals — Law of the Case.</p> <p>A question decided by the Supremo Court-on a former appeal becomes the law of Ibe case in all its stages, and will not ordinarily be reversed upon a second appeal of the same ease, when the facts are substantially the same.</p> <p>2. Insurance — Action for Death Benefit— Instructions — “Good Health.”</p> <p>Instructions examined, and held to fully state the law applicable.</p> <p>3. Same — Question for Jury.</p> <p>The trial court properly refused to direct a verdict for defendant.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. Covenants — Actions —• Evidence — .Judgment as Evidence of Paramount Title.</p> <p>The law of notice of suit to grantor, as provided by section 1166. Bey. Laws 1910. does not apply to cases begun prior to the coming of statehood, in actions had in tli« Indian Territory. But under the common law in force in Arkansas, which extended over the Indian Territory, if a grantee gave reasonable notice to his grantor of an action to evict said vendee from the land purchased from the vendor, and requested the vendor to defend his covenant of good title, and said vendor failed so to do, and such defendant was evicted, in an action by said vendee against said vendor for a breach of such covenant, such vendor cannot set up as a defense to said action that he, vendor, had and conveyed to said vendee a good title.</p> <p>2. Courts — Stare Decisis — Prior Ruling' as Law of the Case.</p> <p>Where this court renders a decision which is afterwards overruled, the decision overruled is the law of the ease in which rendered.</p> <p>3. Appeal and Error — Review—Questions of Fact.</p> <p>Where contradicted questions of fact are submitted to a jury and the evidence reasonably tends to support the verdict, this court will not disturb the verdict.</p> <p>4. Covenants — Actions—Instructions.</p> <p>Instruction complained of by plaintiff in error as conflicting carefully examined, and found not to be in conflict with another instruction given by the court.</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from District Court, Woods Countv; IV. C. Crow. Judge.</p> <p>Action by the Connecticut Mutual life Insurance Company against Cliarlev Devin and others. From a judgment in favor of the defendant Laura B. Devin, the defendants Charley Devin and others bring error.</p>

<p>1. Judgment — Motion to Vacate — Grounds— invalidity.</p> <p>Where,the petition charges that, in consideration of a designated amount paid, plaintiff purchased from defendants certain real estate 8Md received a warranty deed with covenants ®ff title, and further charges that at the execution and delivery of the deed paramount Mile was not in the defendants but in an-•®ftl»er, and that plaintiff had been evicted, amd where the answer admits the execution ®ff the deed and reception of the consideration, tat states other matters, which, if proven ffi® the trial, would have been sufficient to defeat plaintiff, and the journal entry of the record shows, “The above numbered and entitled cause coming on to be heard after having been regularly set for trial, and service having been heretofore had and answers Sled, the court being fully advised finds that the allegations of plaintiff’s petition are true, and plaintiff is entitled to recover of and from defendants,” etc., ordering, decreeing and adjudging that the plaintiff have and recover of and from defendants a specified sum, etc., held, that the judgment is not void, and where a motion is filed more than three days after rendition of the judgment, charging that it was void because the petition does not state facts sufficient to constitute a cause of action, it is not well taken.</p> <p>2. Same — Belief Granted.</p> <p>Held, that the journal entry of judgment does not bear out the contention that the Judgment was rendered on the pleadings, that defendants have pursued a course not authorized by law, and relief cannot _ be granted, if error was committed during progress of the trial.</p> <p>(Syllabus by Watts, O.)</p>

<p>Appeal and Error — New Trial — Discretionary Ruling — “Discretion of Court.”</p> <p>The granting or refusal of a new trial is always a matter largely within the legal “dis¡-cretion” of the trial court, and, unless it clearly appears that such discretion has been abused by disregard of the established rules of law, its action will not be disturbed upon appeal.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from District Court, Jefferson County; Frank M. Bailey, Judge. Action by E. E. Watkins against Tom Dor-sett, in which the First National Bank of Ryan intervenes. Judgment for plaintiff, and defendant and intervener bring error.

Error from District Court, Rogers County; Frank Ertell, Special Judge. Action by William Taylor and A. G. Cochran, trustee in bankruptcy, against the Insurance Company of North America. Judgment for plaintiffs, and defendant brings error.

<p>Error from District Court, Custer County; Frank Mathews, Assigned Judge.</p> <p>Petition by G. O. Darnell against the State National Bank of Oklahoma City and others to have returned to plaintiff certain sums paid in at a sheriff’s sale. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Marshall County; Jesse M. Hatchett, Judge. Action by Freeman Arkansaw and wife against Y. J. Howard and others. Judgment for plaintiffs, and defendants bring error.

<p>1. Libel and Slander — Actions—Sufficiency of Evidence.</p> <p>Plaintiff brought suit against several defendants for writing, printing, and publishing certain alleged false, malicious, defamatory, and libelous matters, and upon a trial the evidence wholly failed to connect any of the parties by any positive testimony with the commission of any of the acts charged. Held, that upon demurrer to the evidence by defendants the court should have sustained such demurrer and instructed the jury to return a verdict for defendants.</p> <p>2. Same — Instructions.</p> <p>Where plaintiff’s petition contains charges that are libelous per se, and other charges that are not libelous per se, it is error for the trial court to instruct the jury that each of the charges contained in plaintiff’s petition are libelous per se.</p> <p>(Syllabus by Olay, O.)</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by A. R. Nelson against O. L. Eichoff and another for rentals under an indenture of lease. From a judgment for defendants, plaintiff appeals.

Error from Superior Court, Muskogee County: Farrar L. McCain, Judge. Action between Jane Grayson and Fritz H. Damme and others. From the judgment, Jane Grayson brings error, and defendants in error move to dismiss.

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by Jane Grayson against Fritz H. Damme and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Usury — Remedies of Parties — Who May Sue.</p> <p>Under section 1005 of the Revised Laws of 1910, a cause of action to recover twice the amount of interest paid, in ease a greater rate of interest has been paid than authorized by law, must be instituted by the party paying the same or his legal representative.</p> <p>2. Appeal and Error — Disposition of Cause —Coparties.</p> <p>Where a cause of action has been instituted by more than one plaintiff, and judgment has been rendered in favor of all, but under the law and the evidence only one is entitled thereto, this court on appeal has the authority to reverse the judgment as to chose plaintiffs not entitled to recover and to affirm the same as to the plaintiff entitled thereto: there being no dispute as to the facts from which the cause of action arose.</p> <p>3. Usury — Remedies of Parties — Amount of Recovery.</p> <p>A substantial compliance with the provisions of section 1005 of the Revised Laws of 1910, requiring a demand for the return of usury, is a prerequisite to the institution and maintenance of an action therefor; and, where a demand is made for a less sum than twice the amount of the usurious interest paid, recovery in a suit therefor is limited i o tbp amount of such demand.</p> <p>4. Same — Limitation of Actions.</p> <p>Under section 1005 of the Revised Laws of 1910. an action to recover usury must he brought within two years after the maturity of said contract.</p> <p>(Syllabus by Hooker. C.)</p>

Error from District Court, Kiowa County; James A, Tolbert, Judge. Action by Henry E. Kobins against the Pittsburg Mortgage Investment Company and another. Judgment for plaintiff, and the defendant named brings error.

<p>1. Bills and Notes — -Indorsement—Validity.</p> <p>A qualified indorsement on a negotiable instrument may be made by adding to the indorser’s signature the words, "Without recourse,” or words of similar import.</p> <p>2. Same.</p> <p>The words: “I transfer my right, title and interest in same. J. M. Burk” — written upon the back of a negotiable instrument, by the payee, is not a qualified indorsement, and such payee is liable thereon as an ordinary indorser.</p> <p>(Syllabus by Edwards, C.)</p>

Error from District Court, Garvin County; B. McMillan. Judge. Action between the Board of County Commissioners of Garvin County, and Alvin F. Pyeatt, assignee of T. C. Branum, and others. From the judgment, the Board brings error.

<p>Error from District Court. Kingfisher County; Jas. W. Steen, Judge.</p> <p>Action by Anton Zalaback against the City of Kingfisher. Judgment for defendant, and plaintiff brings error.</p>

<p>Fortner Decision Controlling.</p> <p>The syllabus in this case same as in case No. 5776, ante, p. 221, 158 Pac. 1133.</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from District Court, Choctaw County : Summers Hardy, Judge.</p> <p>Action hy Stephen Shelton against C. L. Webb and others. Judgment for plaintiff, and defendant Webb brings error.</p>

Error from District Court, Oklahoma County ; George W. Clark, .Judge. Action by H. F. Tripp, trustee in bankruptcy, against S. C. English and others. Judgment for defendants, and plaintiff brings error.

<p>1. Assault and Battery — Joint Tort-Feasors —Lia'.ility.</p> <p>Where two or more are engaged in an unlawful enterprise, each is individually responsible for all injuries committed in its prosecution, and this, although the specific injury was done by one of the parties alone.</p> <p>2. Appeal and Error — Review—Questions of Fact — Sufficiency of Evidence.</p> <p>Whore the testimony on the part of the prevailing party reasonably tends to support the verdict, this court will not disturb the same on appeal.</p> <p>?>. Torts^ — Joint Tort-Feasors — Liability.</p> <p>.Where an action is based on tort alleged to have been caused by several defendants jointly, a right of action exists against any or all of the wrongdoers, independent of contract.</p> <p>(Syllabus by Crump, C.)</p>

<p>1. Time — Tax—“Year.”</p> <p>By the provisions of our Constitution and statutes, the fiscal year begins July 1st, and the term, “1911 taxes,” means the taxes levied for (he fiscal year beginning July 1, 1911, and not the tax that may have been levied for the calendar year 1911.</p> <p>2. — Same—Contract to Pay Taxes.</p> <p>Under contract which provides, “We hereby guarantee to pay the 1911 taxes on same up to and including September 19,. 1911; that is to say, we are to pay the pro rata portion of same up to and including that date,” the guarantors are liable for their proportionate share of the taxes levied for the fiscal year beginning July 1, 1911, in the ratio that 2 months and 19 days bears to 12 months.</p> <p>3; Damages — Contract to Pay Taxes.</p> <p>Where such a contract provides that upon failure of the guarantors to pay their share of the taxes the guarantee is authorized (o pay same and that he will, on demand, be reimbursed for such proportion- of the full amount paid by him, the guarantors are liable for their proportionate share of penalty accrued at the time the guarantee pays such taxes, upon their failure to tender or pay their proportionate share.</p> <p>(Syllabus by Rmmnons. 0.)</p>

<p>Error from District Court, Seminole County ; Tom I). McKeown, Judge.</p> <p>Action by the Chickasaw Loan & Trust Company against Eke Mills. Judgment for defendant, and plaintiff brings error.</p>

<p>Courts — Bailiffs—Fees of.</p> <p>A bailiff, in attendance upon a court of record, is only entitled to receive the compensation provided by law, that is, a sum not exceeding $2 per day, for the time actually in attendance upon the court while in session, and he is not entitled to receive additional compensation because his duties require him to remain in attendance upon the court during the nighttime.</p> <p>(Syllabus by Rummons, O.)</p>

<p>Error from District Court. Sequoyah County : John H. Pitchford. Judge.</p> <p>Action by T. I'. Walters against Tom Johnson. Judgment for plaintiff, and defendant ■lirrngs error.</p>

<p>Error from Superior Court, Muskogee County; F. L. McCain, Judge.</p> <p>Action by Clarence O. Doss against the Muskogee Electric Traction Company. From a judgment for plaintiff, defendant brings error.</p>

<p>Error from District Court. Caddo. County; Oliam Jones, Judge.</p> <p>Action by Ida Elms against S. S. Arn. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from County Court, Caddo County; ' C. Ross Hume, Judge.</p> <p>Action by H. O. Du Bois against F. Fire-(baugli. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Bills and Notes — Chattel Mortgages— Construction — Relation to Note.</p> <p>A note and a chattel mortgage given to secure same are construed together as one contract.</p> <p>2. Bills and Notes. — Validity—Stipulation for Attorney’s Fees.</p> <p>The stipulation in a note, “In case this nole is placed in the hands of an attorney for collection, I, we. or cither of us, agree to pay 10 per cent, additional for the collection of the- same,” is valid and enforceable, when the note is past due and unpaid, and has been placed in the hands of an attorney for collection.</p> <p>3. Chattel Mortgages — Construction—Debt Secured — Attorney’s Fee.</p> <p>When the conditions making the attorney’s fee payable have been met. (lie attorney’s fee stipulated in such note is collectible in an action of replevin based upon the note and chattel mortgage securing it.</p> <p>4. Same — Payment and Discharge — Tender —Attorney’s Fee.</p> <p>When such note is past due, and unpaid and has been placed in the hands of an attor ney for collection, a tender of the amount of the indebtedness, exclusivo of the attorney’s fee, is insufficient to discharge the lien of the chattel mortgage securing such note.</p> <p>(Syllabus by Edwards, C.)</p>

<p>1. Appeal aiid Error — Presenting- Questions in Trial Court — Motion for New Trial.</p> <p>Where instructions are assigned as error, and such instructions are not presented in a motion for a new trial as a ground therefor, errors assigned, predicated upon the giving or refusal to give such instructions, will not be considered by this court.</p> <p>2. Trial — Taking- Question from Jury — Demurrer to Evidence.</p> <p>Where there is any evidence introduced at the trial of a cause tending to establish the allegations of the plaintiff’s petition, it is not error for the court to overrule a demurrer to such evidence.</p> <p>3. Appeal and Error — Assignments of Error —Definiteness—Rulings on Evidence.</p> <p>Where error is assigned to the admission or rejection of evidence, and the evidence admitted or rejected is not set out. and it is indefinite as to what evidence was admitted or rejected, this court will not consider such assignment of error.</p> <p>4. Appeal and Error — Review—Question of Fact — Conflicting Evidence.</p> <p>Where the evidence is in conflict, and there is evidence reasonably supporting the verdict of the jury, this court will not disturb the. verdict rendered.</p> <p>(Syllabus by Collier, C.)</p>

<p>1. Indians — Statutory Provisions.</p> <p>Prior to February 19, 1903, when, by Act of Congress (Act Feb. 19, 1903, c.. 707, 32 Stat. S41). chapter 27 of- Mansfield’s Digest of the laws of Arkansas relating to conveyances was extended over the Indian Territory. there was no law in force in said territory authorizing or requiring the registration of instruments affecting the title to real estate.</p> <p>2. Vendor and Purchaser — Bona Fide Purchaser — Records.</p> <p>The registration of such instruments, improperly admitted to record because neither proved nor acknowledged, as required by the provisions of said chapter, did not operate as constructive notice to subsequent purchasers.</p> <p>3. Quieting Title — Improvements—Compensation — “Occupants.”</p> <p>Record examined, and held, under the Laws of Arkansas in force in the Indian Territory prior to statehood, that defendants were not entitled to reimbursement for improvements placed upon the lands involved, and that such improvements could not properly be made a charge against such lands.</p> <p>(.Syllabus by Bleakmore, O.)</p>

Error from County Court, Jefferson County; B. T. Price, Judge. Replevin by Mrs. Hattie. Bateman against Cr. A. Nelson and another, begun in justice court and appealed by defendants to county court. There was a judgment there for plaintiff, and defendants bring error.

Error from Superior Court, Muskogee County: IT. C. Thurman, Judge. Action by the State, on the relation of J. I). Lankford, State Bank Commissioner, and another against A. W. Marshall and another. Judgment for plaintiffs, and defendants bring error.

<p>Error from District Court, Pawnee County r L. M. Poe, Judge.</p> <p>Action by Sarah J. Mullendore against John B. Jordan and others. Judgment for plai-ntiff, and defendants bring error.</p>

Error from District Court, Oklahoma County ; W. R. Taylor, Judge. Action by J. P. Martin against E. P. Hostetter and others. From an order confirming a sheriff’s sale of real estate, plaintiff brings error.

Error from District Court, Oklahoma County; John J. Carney, Judge. Action by the J. S. Mayfield Lumber Company against J. W. Mann and) another. Judgment against named defendant only, and plaintiff brings error.

Error from District Court, Alfalfa County ; .Tames B. Oullison, Judge. Action by C. J. McDuffee against D. S. Schuber and others. Judgment for plaintiff, and defendants D. S. Schuber and another bring error.

<p>Error from District Court, Pontotoc County; A. H. Ferguson, Assigned Judge.</p> <p>Action by Archibald Holmes against Andrew Zimmerman. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court,-Carter County; S. H. Russell, Judge.-</p> <p>Action by C. R. Smith against Paul Whit-low and others. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court, Grant County: TV. H. C. Taylor, Special Judge. Action by M. 30. Galvin, as administrator of the estate of J. W. Galvin, deceased, against the Chicago, Rock Island & Pacific. Railway Company. There was a judgment for plaintiff, and defendant brings error.

<p>1. Specific Performance — Options — Mining Lease.</p> <p>Where a lease for oil and gas provides, among other things, that the lessee shall be-' gin operations within six months, and. upon failure to do so. shall nay annually $500 into a certain bank, or to the lessor direct, and that failure to commence operations or to pay shall render the lease null and void, held that such lease was a mere option, preventing the lessor, after receiving the delay money, from leasing to another for the period of one year from the date of such payment, and that such contract, being an option on the part of the lessee to terminate the lease at any time, deprived such lessee of the right of specific performance, at least until he had performed the contract or placed himself in such posi-lion that he might be compelled to perform.</p> <p>2. Contracts — Construction—Options.</p> <p>When contracts are optional in respect to one party, they are strictly construed in favor of the party that is bound and against the party rhat is not bound.</p> <p>3. Contracts — Performance—Payment—Sufficiency — Unsigned Check.</p> <p>Where a contract provides for the deposit of delay money in a certain bank, sending to such bank an unsigned check before the due date of such delay money, or sending to the lessor or owner of the lease several days after delay money was due a check payable to the owner, is not such compliance with the contract as to require the lessor to accept such check.</p> <p>4. Same — Waiver of Performance.</p> <p>Where a contract provides that delay money shall be deposited in a certain bank or paid to the lessor, and an unsigned check is sent to said bank and returned to the lessee by such bank with directions to make it payable to the owner of the land and properly sign the same, and such direction is given several days before the due date of the delay money for extending option, and the lessee sends a check to such bank properly signed and payable to the owner of the iand, held, the owner of the land is not estopped upon his refusal to accept such check from declaring the lease at an end, especially where the lessee has pleaded performance of the contract and has not pleaded waiver or estoppel.</p> <p>(Syllabus by Clay, C.)</p>

<p>Sales — Construction—Options.</p> <p>The W. P. O. Co., whose successor was the Pierce Oil Corporation, entered into a written contract with the P.' G. Co., whereby the W P. O. Co. sold and agreed to deliver to the P. G. Co. 200 barrels of gasoline during a specified period, and provided in said contract that the P. G. Go. should have the optional right to order and receive and the W. P. O. Co. should thereupon deliver under said contract such additional quantity of gasoline as it might desire not to exceed 400 barrels during the life of the contract. The W. V. O. Co. dgjtvered 230 barrels of gasoline and refused, upon order therefor by tlie.P. G. Go., to furnish defendant 150 barrels more of gasoline. Held, that the part of the contract providing- for furnishing the additonal 200 barrels of gasoline was not a unilateral contract, but was an option based upon a consideration — the purchase of the 200 barrels of gasoline which were delivered. Further held, that, upon failure of the successor of the W. P. O. Co. to fill the order of the P. G. Co. for the additional 150 barrels of gasoline, the Piei;ce Oil Corporation, as successor to the W. P. O. Co., was liable to the P. G. Co. for the difference between the contract price of said gasoline and the market price of said gasoline at the time the order for the said 150 barrels was made by the P. G. Co.</p> <p>(Syllabus by Collier, c.)</p>

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by Susan E. Koi>hart against the Pioneer Telephone & Telegraph Company, a corporation. There was a judgment for plaintiff. and defendant brings error.

<p>Error from District Court, Greer County; G. A. Brown, Judge.</p> <p>Action by G. P. Cherry against the City State Bank and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Creek County; Jesse M. Hatchett, Assigned Judge. Action by the State against Robert Pitman, as administrator of the estate of Rowie E. Pitman, deceased. , Judgment for plaintiff, and defendant brings error.

<p>1. Trial — Instructions—Pleadings.</p> <p>It is not error for the court to instruct the jury on the nature and extent of the pleading, in order that the jury may determine whether the allegations have been supported by the proof.</p> <p>2. Trial — Injuries to Passengers — Instructions.</p> <p>The theory of the cause of action in the instant case was a negligent injury. This theory was maintained throughout the trial. The instructions examined, and held to properly charge the jury on the question of negligence.</p> <p>3. New Trial — Grounds—Newly Discovered Evidence.</p> <p>Newly discovered evidence merely cumulative is not sufficient grounds for a new trial.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>1. Judgment — Conelusireness—Matters Concluded — Parties.</p> <p>A judgment rendered in an action of ejectment, in" which the grantee in a ehampertous deed is the plaintiff and the party in possession ol‘ the land in question is the defendant, is not conclusive of the questions raised in a subsequent action brought by the grantors in a ehampertous deed for the use and benefit of the grantee therein to recover liossession of the same land, since the titles upon which the causes of action are based are not the same and the parties are not the same.</p> <p>2. Same.</p> <p>There is no such privity of estate between the grantee in a ehampertous deed and his grantor as will render a judgment, given in an action of ejectment in which a grantee was plaintiff, conclusive in a subsequent action brought by the grantors in such deed against the party in possession.</p> <p>(Syllabus by Burford. C.)</p>

<p>1. Appeal and Error — Decisions Reviewable —Finality.</p> <p>An order of the district court allowing a temporary injunction may be appealed from and brought for review in this court before final judgment is had in the trial court in the main action.</p> <p>2. Injunction — Nature of Remedy — Adequacy of Remedy- at Law.</p> <p>Where a party testifies that he is worth from $12,000 to $15,000, and the trespass threatened by him, if committed, will result in the suspension of the business of an extensive oil refinery, the court was warrant ed in finding that he was not able to respond in such damages as would likely be incurred by said refinery it the ihroalm ed trespass was actually carried out.</p> <p>3. Injunction — Temporary Injunction —, Grounds.</p> <p>A temporary injunction should never be granted because of the mere apprehension that injury may be done.</p> <p>4. Injunction — Grounds—Trespass.</p> <p>Where an oil refinery is in the actual possession of a certain tract of land claiming the title thereto, and a party sets up an adverse claim thereto and takes forcible possession thereof, and, having been ousted, threatens to return and again take forcible possession, and there is a reasonable probability of said threats being executed, the said party should be restrained by means of injunction until the title to said property is determined by the proper legal procedure.</p> <p>(Syllabus by Mathews, O.)</p>

<p>1. Appeal and Error — Presentation of Grounds of Review in Court Below— Necessity.</p> <p>Alleged errors occurring in the trial, which are not excepted to at the time nor set forth in the motion for new trial, are waived, and will not be considered on appeal.</p> <p>2. Replevin — Actions—Policy of Law.</p> <p>In a suit in replevin, it is the policy of the law to settle in one action all the conflicting claims of the parties for the possession of the property in controversy or for damages for detention or loss.</p> <p>(Syllabus by Edwards, O.)</p>

Error from County Court, Pawnee County; Geo. B. Merritt, Judge. Action by the Cleveland National Bank against A. B. Biekel and another.' Judgment for plaintiff against defendant Biekel, and judgment for defendant W. H. A. Williams, and the Bank appeals.

<p>Error from District Court, Nowata County; W. J. Campbell, Judge.</p> <p>Action by George H. Ferguson against Charles A. Etehen. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Greer County; G. A. Brown, Judge. Action by the Eureka Fire Hose Manufacturing Company against the Town of Granite, to recover the sum of $1,597.60 on a written contract. Judgment for defendant and plaint iff brings error.

<p>Corporations — Liabilities—Estoppel to Deny Liability.</p> <p>Where the president of a corporation makes arrangements with a bank to borrow money on behalf of such corporation and at the time advises the bank that the treasurer of the corporation will execute, for the cofix>ration, the note evidencing such loan, and pursuant thereto the note is later made in the name of the corporation by its treasurer, and the proceeds thereof are duly passed to the credit of the corporation in said bank and checked out by the corporation in due course of business for corporate purposes, and where srich transaction is in consonance with the prior business transactions between said bank and said corporation, the corporation will be held liable on such note, regardless of whether the note is executed in the manner and form required by the by-laws of such' corporation.</p> <p>(Syllabus'by Edwards, O.)</p>

<p>1. Warehousemen — Limitation of Liability —Validity.</p> <p>A contract, executed by a compress company in this state, which seeks to relieve from liability the company for loss by damage, fire, flood, or other agencies, unless caused by the willful act or gross negligence of the company, is against the public policy of the state, and therefore void. • -</p> <p>'2.' Warehousemen — Liability’— Care Required.</p> <p>A cotton compress in this state is a bailee for hire, and under the statute must exéreise at least ordinary care for the preservation of property intrusted to it. '</p> <p>■(•Syllabus by- Hooker. C.)</p>

<p>Error from District Court, Haskell County; vY. H. Brown, .Tudge.</p> <p>Action between the First National Bank of Stigler, a corporation, and the Eureka Publishing Company. There was a judgment for the former and the latter brings error. The judgment being affirmed, the successful party moved for judgment against the sureties on the supersedeas Ijond.</p>

<p>Appeal and Error — Case-Made—Nullity.</p> <p>In an absence of a waiver by the defendant in error, a case-made, signed and settled by the trial court before the expiration of the time granted for the suggestion of amendments,' is a nullity.</p> <p>(Syllabus by Bleakmore,' C.)</p>

<p>Appeal and Error — Preparation of Case on Appeal — Case-Made.</p> <p>An order or orders, purporting to grant an extension of time in which to serve case-made for appeal to the Supreme Court, made after the expiration of the time or times formerly allowed, is and are nullities, and appeal based upon service of case-made thereunder will be dismissed.</p> <p>(Syllabus by Davis, C.)</p>

<p>I. Evidence — Documentary Evidence — Parol Evidence.</p> <p>Where an oral contract is partially reduced to writing, and the writing evidencing it is not a complete and final statement of the entire transaction, parol evidence not inconsistent with sneh written contract is admissible to show the full agreement.</p> <p>3. Carriers — Transfer Company — Deviation.</p> <p>Where a transfer company agreed to ship the goods of plaintiff over a certain route, and took from plaintiff a shipping order limiting the liability of the transfer company, and thereafter the transfer company shipped the goods over a different route to that specified by the shipper, in consequence of which they were burned: held, that the transfer company was liable for the value of the goods less the amount recovered from the railroad company, without regard to the limitation of liability in the shipping order.</p> <p>3. Evidence — Opinion Evidence — Expert Testimony.</p> <p>A witness is not required to be an expert to prove the reasonable or market value of goods, such as ordinary wearing apparel and household furniture, where it is apparent from the facts proved that the value of the articles is within the knowledge of persons of ordinary intelligence and experience.</p> <p>4. Damages — Measure—Household Goods.</p> <p>In an action for loss of household goods and wearing apparel, which have no fixed market value, the measure of damages is the value of the goods to the owner; not a fanciful value which such owner might place upon them, but such reasonable value as they had to him, considering the nature and condition of the goods and the purposes for which they were adopted. St. L. & S. F. R. Co. v. Dun-ham, 36 Okla. 724, 129 Pac. 862.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. Bills and Notes — Validity—Duress.</p> <p>It is not duress under the second paragraph of section 900 of the Revised Laws of Oklahoma 1910, where the defendant signs notes in settlement of an account which is not due and upon which a former suit was filed and at the same time an affidavit alleging statutory grounds of attachment was filed, but no order of attachment was issued and' none of the defendant’s goods were detained either lawfully or unlawfully by the plaintiff.</p> <p>2. Set-Off and Counterclaim — Subject-Matter — Unliquidated Damages,</p> <p>The defendant cannot plead unliquidated damages as a counterclaim in an action against him on promissory notes, which damages arose out of the wrongful suing out of an attachment in a former suit in settlement of which the promissory notes involved here were executed and delivered to the plaintiff in this action, even though the grounds of attachment affidavit were false, and even though the order of attachment was issued wrongfully and he was damaged thereby.</p> <p>(Syllabus by Brunson, C.)</p>