Volume 61 — Oklahoma Reports

Error from District Court, Pontotoc County; Tom D. McKeown, Judge. Action by Gipson James against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, but the trial court granted plaintiff a new trial and set the judgment for defendant aside. Defendant brings error.

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action by John Penix against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and the defendant brings error.</p>

<p>1.Eminent Domain — Proceedings—Measure of Damages.</p> <p>The measure of damages m condemnation proceedings where private property is taken in the exercise of the right of eminent domain under the statutes of Oklahoma is the market value of the property actually taken, at the time it is so taken, and for the impairment or depreciation of vahie done to the remainder. And in ascertaining the amount of damages it is proper, among other things, to consider the inconvenience and annoyance likely to arise in the orderly exercise or conduct of the enterprise which interferes with the use and proper enjoyment of the property by the owner and which sensibly impairs its value,</p> <p>2. Condemnation — Evidence.</p> <p>It was not error in an appeal from an award of commissioners in a condemnation proceeding to admit testimony relating to the effect of the location and orderly operation of the enterprise for which the land was taken, as they existed at the time of the trial. The jury are not confined to the consideration of the facts as they existed at the time the land was taken, but may consider the subject in the light of the facts as they exist at the time of the trial.</p> <p>3. Evidence — Opinion Evidence — Value of Land.</p> <p>“The question of the value of property does not ordinarily involve a question of science or skill upon which only an expert possessed of technical training can speak; and where the value of farming land is in issue intelligent persons living in the vicinity of the property Involved who are acquainted with the market value of similar property in the locality and of the particular property in question may give their opinion as to its value.”</p> <p>4. Appeal and Error — Discretion—Opinion Evidence — Qualification.</p> <p>The question of opinion evidence is addressed very largely to the sound discretion of the trial court, and its ruling that the witness is sufficiently qualified will not ordinarily be disturbed unless it clearly appears that this discretion has been abused.</p> <p>5. Eminent Domain — Condemnation Proceedings — Damages—Evidence—Sufficiency.</p> <p>The damages assessed by the jury were not excessive under the proof.</p> <p>(Syllabus by Hayson, C.)</p>

<p>Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.</p> <p>Action by W. A. Grace against the Chicago, Rock Island & Pacific Railway Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Grant County; J. W. Bird, Judge. Action by John Jordon against the Farmers’ State Bank of Jefferson, for conversion of personal property. Judgment for plaintiff, and defendant brings error.

<p>1. Estoppel — “Waiver”—Nature.</p> <p>A waiver is the voluntary or intentional relinquishment of a known right, or such conduct of a party, or his authorized agent, as warrants an inference of such intent. It is essentially a matter of intention and may arise out of the acts done by a party, or his authorized agent, who has full knowledge of all the material facts out of which the right springs.</p> <p>2. Same — Question for Jury.</p> <p>“A waiver involves the notion of an intention. entertained by the holder of some right, to abandon or relinquish instead of insisting on the right.” It is a question of fact to be determined by the jury.</p> <p>3. Insurance — Actions on Policies — Evidence — Sufficiency.</p> <p>The record in this case examined, and held, there was sufficient evidence, if true, to warrant an inference that there had been a waiver of the iron-safe, books, and inventory clause in a fire insurance policy, and that the cause was properly submitted to the jury for their determination.</p> <p>(Sjdlabus by Hay,son, C.)</p>

<p>Error from County Court, Tulsa County: J. W. Woodford, Judge.</p> <p>Action by C. E. Thompson against T. A. Davies and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, McCurtain County; Summers Hardy, Judge. Action by W. C. Sinclair against the American Insurance Company of Newark. N. J.. on certain policies of insurance. Judgment for plaintiff, and defendant brings error.

<p>Appeal and Error — Assignments of Error— Necessity.</p> <p>Errors occurring during the trial cannot be considered by the Supreme Court, unless the ruling of the trial court upon the motion for new trial is assigned for error in the Supreme Court.</p> <p>(■Syllabus by Edwards, C.)</p>

<p>Error from District Court, Noble County; W. M. Bowles, Judge.</p> <p>Action by C. T. Talliaferro against the Atchison, Topeka & Santa Fe Railway Company and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Custer County; James R. Tolbert, Judge.</p> <p>Action by E. A. Liston against the Texmo Cotton Exchange Bank for debt for usurious interest paid. Judgment for plaintiff, and defendant brings error.</p>

<p>Indians — Lands—Allotments—Alimony.</p> <p>Under the latter part of section 4, 35 Stat. 312, c. 199, Act May 27, 1908, as follows: “Provided, that allotted lands shall not be subjected or held liable, to any form of personal claim, or demand, against the allottees arising or existing prior to the removal of restrictions, other than contracts heretofore expressly permitted by law” — held, that a decree of the court in'a suit for alimony which decrees a portion of the annual rents and profits of a restricted allotment and appoints a receiver to take charge of the land and collect and disburse such annual rents and profits until the further order of the court is a charge upon the land, and will be set aside by this court.</p> <p>(Syllabus by Hayson, C.)</p>

<p>1. Appeal and Error — Record — Case-Made —Authentication.</p> <p>Where a case-made is signed by the trial judge, but is not attested by the signature of the clerk and the seal of the court, it is not sufficiently authenticated, as required by the statute, to constitute a valid case-made, and the judgment of the trial court cannot be reviewed.</p> <p>3. Same — Case-Made—Extension of Time.</p> <p>A purported order of the trial judge extending the time in which to make and serve a case-made is without force where the case-made fails to show affirmatively that such order was made and is entered of record in the trial court.</p> <p>[Overruled by St. Louis & S. F. R. Co. v. Taliaferro, 58 Okla. 585, 160 Pac. 610. — Reporter.]</p> <p>(Syllabus by Campbell, C.)</p>

<p>1. Evidence — Testimony in Former Trial— Authentication.</p> <p>Before the longhand transcript of the testimony of a witness, given at a former trial, can be admitted in evidence at a subsequent trial of the same case, it must be duly certified by the reporter of the court who took the evidence as correct, or agreed to by the parties as being the evidence of such witness and as being correct, and, then, it can only be used under such conditions as would warrant the use of the deposition of such witness.</p> <p>2. Appeal and Error — Reviow — Harmless Error — Instruction.</p> <p>In an action for personal injuries, where there is no assignment of error that the verdict is excessive, an erroneous instruction in relation to the measure of damage is harmless.</p> <p>(Syllabus by Campbell, C.)</p>

<p>1. Appeal and Error — Record—Scope and Contents — Order of Court.</p> <p>The trial court rendered judgment on the pleadings. The answer referred to a certain order of court, approving a full-blood conveyance, as being attached and made a part of said answer. The order so referred to was in fact not attached and was not filed in the trial court. An appeal was taken to this court from said judgment upon a transcript of the record. After the expiration of over a year, a certified copy of the said order was filed with the clerk of this court and attached to the transcript of the record herein. Held, that such instrument is not a part of the transcript and cannot be considered by this court.</p> <p>2. Pleading — Motions—Judgment on Pleadings — Want of Reply.</p> <p>The petition contains two causes of action, namely, one in ejectment and one to cancel a conveyance. Both causes are stated in the usual form, and cancellation is sought upon the grounds: (1) That such conveyance was never executed by the plaintiffs; and (2) that the conveyance was never approved by the county court as required by law, the said conveyance being a full-blood conveyance of inherited lands. The petition was not verified. The answer of defendant, which was verified, contained: (1) A general denial; and (2) affirmative allegations of the execution and delivery of the said conveyance and the payment of an adequate consideration thereunder, -by way of a cross-petition, and sought to have title quieted as against the plaintiffs. Held, that the affirmative relief which defendant sought was de-pendant upon the result of the trial of the issues raised by the general denial to the petition, and if plaintiffs prevailed in such trial, no relief as sought could be granted defendant, and if defendant prevailed in such trial, his title became effectually adjudicated without such affirmative relief of quieting his title. Held, further, that no reply was necessary to join issues of fact, triable to the court or jury, and the relief sought under the cross-petition of the defendant, being dependant upon such trial, and being such relief as would accrue to him, if he were successful in such trial, without a judgment quieting his title, could not be granted him upon the pleadings in default of a reply to. the answer and cross-petition of the defendant.</p> <p>(Syllabus by Campbell, C.)</p>

<p>1. Homestead — Necessity of Occupation.</p> <p>A purchase of a homestead within the statutory limits as to quantity and value with the intention in good faith of presently residing on It or residing thereon as soon as some temporary obstacle to such residence can be removed or some necessary preparation for the same can be made, is equivalent to actual occupancy of the residence, and said property is exempt from lien, levy, or forced sale.</p> <p>2. Same — Evidence.</p> <p>The evidence in this case examined, and the same is held to show that the property in question was not subject to plaintiff’s claim, and the judgment of the trial court, sustaining a demurrer thereto is hereby approved.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from County Court, Hughes Couiuy; J. Ross Bailey, Judge.</p> <p>Action by the First National Bank of Poteau against School District No. 49 of Hughes County. Judgment for defendant, and plaintiff brings error.</p>

Error from Superior Court, Garfield County; James B. Cullison, Judge. Action by Mrs. Lewis Jones against Charlie H. Reser and others. Judgment for defendant Prank McViekers on his motion to vacate judgment, and plaintiff brings error.

Error from District Court, Washita County ; James R. Tolbert, Judge. Action by the New York Plate Glass Insurance Company against C. H. Wright, doing business as the C. H. Wright Dry Goods Company, for damages. Judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Muskogee County; R. C. Allen, Judge.</p> <p>Action by J. E. Padgett against W. C. Trent and others, Trustees of tbe School District of tbe City of Muskogee, Okla., and the Board of Education of tbe City of Muskogee, Okla. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Atoka County; Robt. M. Rainey, Judge.</p> <p>Action by the city of Lehigh against the O’Neil Engineering Company and the Southern Surety Company. Judgment for plaintiff and defendants bring error.</p>

Error from County Court, Pontotoc County; I. M. King, Judge. Action by Aaron M. Marks and another, against Ike Stein, doing business as the Mer-riman Manufacturing Company. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr.,.Judge. Action by J. P. Hubbard against May 'Meek, administratrix of tbe estate of W. H. Meek, deceased, E. J. Dickerson, M. H. Tennison, and tbe Partners National Bank, a corporation. Judgment for defendants, 'and plaintiff brings error.

<p>Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge.</p> <p>Action by the Panther Creek Oil Company against G. T. Braden. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Fraudulent Conveyances — Transactions Invalid-Property Transferred.</p> <p>A debtor in the disposition of his property can commit a fraud upon his creditors only by disposing of such of his property as the creditor has a legal right to look to for his pay.</p> <p>2. Exemptions — Sales—Rights of Creditors.</p> <p>The sale of personal property, “exempt from execution or liens,” dees not render such property subject to attachment in an action upon an unsecured claim against the vendor.</p> <p>(Syllabus by Galhraith, O.)</p>

<p>Chattel Mortgages — Release—Statutory Provision.</p> <p>Section 4408, Comp. Laws 1909, providing a forfeiture of $100 for the failure to release, a mortgage which has been satisfied, deals exclusively with recorded mortgages, and does not apply to chattel mortgages which are by law merely required to be filed.</p> <p>(Syllabus by Burford. C.)</p>

<p>1. Appeal and Error — Parties—Who are Parties.</p> <p>Where one only of two defendants in a joint judgment files a motion for a new trial, but both join as plaintiffs in error in an appeal therefrom and the case-made for appeal and the notice for settling and signing same is served upon the defendant, who filed no motion for new trial, and such defendant in due time waived the issuance of summons in error and entered his voluntary appearance in this court, held, that such party is in this court, and the party who filed the motion for new trial and properly preserved the record is a proper plaintiff in error, and entitled to have his appeal reviewed.</p> <p>2. Appeal and Error — Proceedings for Transfer of Cause — Waiver.</p> <p>A defendant in error or his attorney may waive in writing the issuance and service of a summons in error, and such waiver may be made at any time, prior to the expiration of the time allowed for appeal.</p> <p>3. Carriers — Carriage of Goods — Duty of Carrier — “Bill of Lading.”</p> <p>A “bill of lading” is an instrument in writing, signed by a carrier or his agent, describing the freight so as to identify it; and it is the duty of a carrier or its agent, issuing a bill of lading, for those products for which it is the general custom for shippers to draw drafts upon the consignee or others with bill of lading attached, to use ordinary care in issuing such bill of lading, in reference to the quantity and description of the product for which such bill of lading is issued.</p> <p>4. Words and Phrases — “Bale of Cotton.”</p> <p>A “bale of cotton,” as the term is used in the commercial and' 'business world, means a standard package of merchantable lint cotton, separated from the seed by the first process of a cotton gin, weighing approximately 500 pounds, and classable under one of the recognized market grades.</p> <p>5. Same — “Grabbots.”</p> <p>“Grabbots” or oilmeal motes, are composed of small particles of refuse cotton, detached from, but left with, the seed in the first ginning process and generally separated and recovered by a process of reginning.</p> <p>6. Cámers — Carriage '.of Goods — Bills of Lading.</p> <p>A bill of lading, issued by a carrier upon the receipt of 61 bales of “grabbots,” describing the same as 61 bales of cotton, without any qualifying or modifying term, is not a correct description of the freight; 'and, where an innocent person has paid money relying on the representations contained in such bill, and sustains damages thereby, he may recover from such carrier the moneys so paid.</p> <p>(Syllabus by Edwards, C.)</p>

Error from Superior Court, Oklahoma County; Edward Howes Oldfield, Judge. Action by E. X. Anderson against E. M. Lisle and C. M. Dunning, doing business as E. M. Lisle & Oo., to recover damages for personal injury. Judgment for plaintiff, and defendants bring error.

Error from District Court, Atolca County; Robert M. Rainey, Judge. Action by Robert L. Reinhart and another against the Chicago, Rock Island & Pacific Railway Company. Judgment against the railway company, and it brings error.

Error from District Court, Coal County; Robert M. Rainey, Judge. Action by John De Vork, by his father and next friend, Joe De Vork, against the Folsom-Morris Coal Mining Company. Judgment for plaintiff, and defendant brings error.

<p>1. Evidence — Parol Evidence Affecting Writings — Showing Invalidity of Contract — Fraud.</p> <p>The effect of evidence introduced to show that a written contract was induced and obtained by material false and fraudulent representations is not to contradict or vary the terms of the written contract, but to show that the party signing the contract was imposed upon, and that fraud -was practiced in obtaining his signature thereto; and such evidence is always admissible to show that contracts have been fraudulently obtained. No exact rule can be laid down by which every case of fraud can be tested; but the court must determine, under the broad principles of equity, whether or not what was done in each particular case amounts to cognizable fraud.</p> <p>2. Fraud — Elements—False Promise.</p> <p>There is a wide distinction between the non-performance of a promise and a promise made mala fide, and without any intention at the time of making it to perform it. And while ordinarily a statement upon which fraud may be predicated must be of an existing fact, yet if a promise is made to be performed in the future, as an inducement to obtain a contract, if the intention not to perform tlie promise be shown to have existed at the time the promise was made, such false promise constitutes cognizable fraud.</p> <p>3. Corporations — Agents — Authority — Ratification.</p> <p>Where a corporation arms persons with blank contracts to take stock subscriptions for the company, and they obtain subscriptions, through false and fraudulent repre--sentations, and promise to do certain things, it is immaterial whether they were authorized by the company to make these representations and promises or not. If the company accepts tlie benefits of their misrepresentations, it must also bear the burdens of the same; and if the company is unwilling to be bound by their misrepresentations, it must surrender the benefits obtained under them.</p> <p>(Syllabus by Brett, O.)</p>

<p>Error from County Court, (’anadian County.</p> <p>Action by W. W. Hinkle against William Kirne, defendant, and Henry Wihnering in-lerpleader. Judgment for plaintiff, and in-terpleader brings error.</p>

Error from County Court, Seminole County, A. S. Norvell, Judge. Action by George C. Crump and another) partners doing business under the style of Crump & Skinner, against AAT. E. Grisso. Judgment for plaintiffs, and defendant brings error.

<p>1. Fraud-False Representations.</p> <p>The second paragraph of the syllabus in Garvin v. Harrell, 27 Okla. 373, 113 Pac. 186, 35 L. R. A. (N. S.) 862, Ann. Oas. 1912B, 744, is adopted and approved herein.</p> <p>2. Same.</p> <p>A vendee in the exchange of real estate lias a right to act on the positive representations of existent material facts made by a vendor, even though the means of knowledge were open to him. The real question in such matters is: Was the party in fact deceived by the false representations? “It is as much an actionable fraud willfully to deceive a credulous person with an improbable story as it is to deceive a cautious and sagacious person with a plausible one.”</p> <p>(Syllabus by Galbraith, O.)</p>

Error from County Court, Payne County; AY. K. Jones, Judge. Action by the First National Bank of Cush-ing against the Model Clothing Company and another. Judgment for plaintiff, and the defendant Model Clothing Company brings error.

Error from District Court, Garfield Goun ty: .Tames W. Steen, Judge. Action by F. B. Buzzard and another against the Oklahoma State Bank of Cush-ing. Judgment for plaintiffs, and defendant brings error.

<p>Error from County Court, Plughes County; J. Ross Bailey, Judge.</p> <p>Action by B. J. Simpson against Denton Mauldin. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Muskogee County; ft. P. de Graffenried, Judge. Action by Thomas A. Bell against the Sinop-oulo Oil Company and others. Judgment for plaintiff, and defendant Sinopoulo Oil Company and another bring error.

<p>1. Exemptions — Property Exempt — Earnings.</p> <p>Under subdivision 16 of section 3342, Revised Laws of 1910; all current wages and earnings for personal or professional services earned within the last 90 days is reserved to the head of every family residing in the state, exempt from attachment or execution, and every other species of forced sale for the payment of debts.</p> <p>2. Same.</p> <p>Under section 5199, Revised Laws of 1910, the earnings of a debtor, who is a resident of this state, for his personal services at any time within three months next preceding the issuing of an execution, attachment, or garnishment process, cannot be applied to the payment of his. debts when it is made to appear, by the debtor’s affidavit or otherwise, that such earnings are necessary for the maintenance of a family supported wholly or partly by his labor.</p> <p>3. Same.</p> <p>The object of these statutes is to give to the head of a family his current wages or his personal earnings in whatsoever manner acquired for his personal services earned within the time specified by the statute, and he is entitled thereto, although his wages or his earnings for his personal services may be reserved to Mm under a contract, whereby he is to receive so much for the job- performed.</p> <p>(Syllabus by Hooker, O.)</p>

Error from District Court, Pittsburg County; ft. W. Higgins, Judge. Action by Frank M. Chilson, trustee in bankruptcy of the Alderson Coal Company, against J. E. Cavanagh. Judgment sustaining a demurrer to the petition, and plaintiff brings error.

<p>Error from Superior Court, Jefferson County ; Will Linn, Judge.</p> <p>Action by the Continental Gin Company against J. M. Pannell and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Cleveland County ; F. B. Swank, Judge. Action by Ben F. Williams against the Equitabtle Life Assurance Society of the United States, and J. T. Weightman, administrator of the estate of Thomas J. Gentry, intervenes. Judgment for intervener, and plaintiff and defendant bring error.

<p>Error from District Court, Grady County ; Frank M. Bailey, Judge.</p> <p>Action for conversion by N. T. Gilbert, as trustee, against the Citizens’ National Bank of Chickasha. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Homestead — Liabilities Enforceable — Constitutional Provisions.</p> <p>The homestead exemption in the Oklahoma Constitution (section 303, Williams’ Okla, Const.) protects the homestead of the family from forced sale for the payment of debts and from judgment liens, except for the pur chase money, taxes, and work and material, and a debt created by mortgage executed by the husband and wife.</p> <p>2. Same — Transfer—Rights of Purchasers.</p> <p>The homestead may be sold and conveyed by the husband and wife jointly, and the purchasers will take the title free and clear from all judgment liens or debts, except those enumerated in the homestead exemption clause of the Constitution.</p> <p>3. Homestead — Extent of Rural Homestead —Value.</p> <p>Under section 302, Williams’ Ann. Const., the limitation in value to $5,000, placed on the urban homestead, does not apply to the rural homestead, and the rural homestead is exempt from forced sale without regard to its value.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>Error from District Court, Oklahoma County; George W. Clark, Judge.</p> <p>Action by the Leeper Brothers Lumber Company against Charles W. Gunter. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from County Court, Alfalfa County; F. M. Gustin, Judge.</p> <p>Action by the Bank of Nashville against P. M. Matheny. From a judgment for plaintiff, defendant brings error.</p>

<p>Error from County Court, Osage County; Paul B. Mason, Judge.</p> <p>Action by G. W. Blue against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Motions — Orders — Vacation — Power of Court.</p> <p>A court of record has the inherent power of its own motion to set aside, vacate, or modify its order, however conclusive in their character, during the term at which such orders are rendered or entered of record.</p> <p>2. Same — Time for Decision.</p> <p>Where a motion is made during the term and continued to a future term, when decided, it is the same in legal contemplation as if the decision- had been made at the term at which the motion was filed.</p> <p>3. Former Decision Overruled.</p> <p>The holding in Lookabaugh v. Cooper, 5 Okla. 102, 48 Pac. 99, being in conflict with the weight of modern authorities, is not followed.</p> <p>4. Appeal and Error — Presumptions—Ground of Decision.</p> <p>When the court in granting- an order specifies fully and in detail the reasons for granting the same, it will be presumed that the ground thus stated is the only one upon which the court acts.</p> <p>5. Appeal and Error — Review—Scope and Extent — Ground of Decision.</p> <p>An order of court, setting aside an order granting a new trial and directing judgment to be entered upon the verdict, upon the grounds that the court was without jurisdiction at the term at which the new trial was granted to set its previous order aside rendered at the same term, overruling the motion for a new trial, was prejudicial error.</p> <p>(Syllabus by Collier, C.)</p>

<p>Courts — County Court — Jurisdiction.</p> <p>“Const, art. 7, sec. 12, and Act approved March 9, 1910 (Rev. Daws 1910, sec. 1816), construed together, and held to vest the county court with no jurisdiction of civil cases involving $200 or less.” Musser v. Baker, 53 Okla. 782, 158 Pac. 442.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from District Court, Washington County; It. H. Hudson, Judge. Action by J. K. Charlton against Katie Day and others. Judgment for plaintiff against all the defendants, and for Katie Day for contribution from defendant C. M. Keefer. Defendants Katie Day and others bring error, and defendant Keefer brings error by cross-petition against the other parties.

<p>Error from Superior Court, Oklahoma County; Edward D. Oldfield, Judge.</p> <p>Action by T. F. Champion and another against the Oklahoma City Land & Development Company and others. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by T. E. Champion and wife against the Oklahoma City Land & Development Company. There was a judgment in part for plaintiffs and in part for defendant, from which judgment the plaintiffs appeal.

<p>Error from District Court, Jefferson County; Frank M. Bailey, Judge.</p> <p>Action by Osborne Anderson against J. R. Brown and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Comanche County; Cham Jones, Judge. Action by F. H. Babcock against George A. Orcutt and others. Judgment in part for plaintiff, and in part for defendants. The plaintiff brings error, and files ease-made with petition in error, and defendants E. F. Applegate and another also file objection in error, attached to the same case-made.

Error from District Court, Mayes County; Preston S. Davis, Judge. Action by Craig C. Hays, a minor, by Jerry Y. Hays, his guardian, against P. Avery and others. Judgment for plaintiff, and defendants bring error.

<p>1. Master and Servant — Injuries to Servant . —Assumption of Risk — Employers’ Liability Act.</p> <p>In an action brought by a servant under tlie federal Employers’ Liability Act (Acts April 22, 1908, e. 149; 35 Stat. 65 [U. S, Comp. St. 1913, sees. 8657.-8665]), for damages for personal injuries arising from the negligence of the master, where the negligence alleged as causing or contributing to the injury does not constitute a violation of any of the federal statutes enacted for the safety of the employe, the defense of assumption of the risk as it existed at common law is open to the master.</p> <p>2. Same — Jury Question.</p> <p>In such eases the provisions of the Constitution of Oklahoma (Const." art. 23, sec. 6). requiring the submission of questions of assumption of the risk to a jury, do not apply.</p> <p>3. Same — Directed Verdict — Propriety.</p> <p>Where in such cases all the evidence, including that of plaintiff himself, shows a clear case of assumption of the risk, it is error to sustain a verdict for the plaintiff.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. Principal and Agent — Rights of Principal —Suit in Name of Principal.</p> <p>A principal may maintain in his own name an action upon a written contract made in the name of the agent.</p> <p>2. Bills and Notes — Actions — Evidence— Answer.</p> <p>In an action by S. upon an unindorsed note made payable to C., where the answer of the defendants alleges that the note was executed in consideration of a contract for the conveyance of lands by S. to defendants, and that the payee, C.. acted as the agent of S. in the transaction, such answer admits the ownership’of the note in S., and S. may maintain the action in his own name, and no proof that 'he is the owner and holder of the note is required, even though such ownership be denied in the answer.</p> <p>3. Principal and Agent — Actions—Evidence.</p> <p>Evidence examined, and held not to establish an agency to substitute other notes for notes given by the defendants.'</p> <p>(Syllabus by Rummons, 0.)</p>

<p>Mandamus — Subjects of Relief — Acts of Officers.</p> <p>Section 20, art. 6, c. 219, session Laws of Oklahoma of 1913, clothes the mayor of cities of the first class located in any independent school district with ministerial duties only; and under such section it is the duty of the mayor, upon the request of the board of education of such school district, to forthwith call an election, as provided in said section, and in the event of his failure or refusal so to do mandamus will lie to require the performance of such duty.</p> <p>(Syllabus by Edwards, C.)</p>

Error from District Court, Ottawa County; B. S. Davis, Judge. Action by the Miami Trust & Savings Bank against A. R. Botts, county treasurer of Ottawa county, to enjoin the levy and collection of a tax. From a judgment for defendant, plaintiff appeals.

<p>1. Appeal and Error — Review—Questions of Fact — Findings by Court.</p> <p>Where a jury is waived and a cause is tried to the court, a general finding of tlie court is given the same weight and effect as the verdict of a jury.</p> <p>2. Same.</p> <p>Where, in such cases, there is a confliei in the evidence on the issues joined, determination of the question of fact therein is for the court; and this court, on review, will not weigh the evidence, or determine as to the creditability of witnesses.</p> <p>3. Same.</p> <p>And where there is any evidence reasonably tending to sustain the judgment, it will nor be disturbed on appeal.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Railroads — Construction and Maintenance— Injuries to Animals — Liability.</p> <p>Where a railway company has notice that “arsenic dip” — a poisonous fluid in appearance resembling water — is escaping from one of its tank cars to the ground, and collecting in a. pool on its right of way, accessible to domestic animals running at large, and fails to exercise ordinary care to keep such animals away from such pool, held to constitute negligence and that the company is liable for injury resulting to animals from drinking out of such pool.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. Appeal and Error — Motions — Orders— Entry in Journal-Necessity.</p> <p>The requirements of section 5317, Revised Laws of 1910, as to entering all orders upon the journal of the court is directory, and it is not essential to the validity of such orders that the same be so entered, and that the case-made show affirmatively such recording.</p> <p>% Appeal and Error — Record!—Defects—Effect.</p> <p>That the case-made does not affirmatively show that orders extending time to prepare and present case-made are entered upon the journal of the court, is not sufficient ground for dismissal of appeal.</p> <p>3. Insurance — Actions on Policies — Pleading — Condition.</p> <p>Where a policy of life insurance contains a provision that after two years from date of its issue said policy is incontestable, such provision is not a waiver, but a condition, and where such condition is not specifically pleaded in the petition, but a copy of such policy of insurance is attached as an exhibit to and made a part of said petition, such condition as to incontestability of such policy of insurance is sufficiently .pleaded.</p> <p>4. Insurance — Avoidance—Breach of Warranty,</p> <p>Where the only defense interposed to an action on a life insurance policy, containing a condition of incontestability after two years from date of policy, is a breach of the warranties in the application for the issuance of the policy, such defense pleaded more than two years after the date of issue of the policy does not constitute a valid defense.</p> <p>5. Insurance — Cancellation.— Right of Insurer.</p> <p>After the issue of a policy or insurance, the insurer cannot cancel such policy on the ground of breaches of the warranties in the application for insurance, except with the consent of the insured and beneficiary named in the policy, who has vested interest in the policy, except in the manner provided in the policy, unless proper legal action is taken prior to the time named in the policy in which the same became incontestable.</p> <p>6. Same.</p> <p>An insurer cannot cancel a policy.of life insurance against the objections of the insured by declaring the policy canceled upon the ground that the insured falsely represented his family history, occupation, place of residence, and use of intoxicating liquors, and tendering back to the insured the premiums paid by him; there being no provision in the policy authorizing the insurer to thus cancel the policy.</p> <p>7. Insurance — Actions — Direction of Verdict.</p> <p>Where the petition states, and the evidence shows, a good cause of action upon a policy of life insurance, containing a condition of nonforfeiture after two years from the date issue of the policy, and the only defense pleaded is a breach of the warranties con-in the application for the insurance, pleaded more than two years after the policy became incontestable, such breach constitutes no defense, and the court should direct a verdict for the plaintiff.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action by the Colonial Trust Company against Ed M. Shields, sheriff, and another. Order granting a new trial after verdict for defendants, and defendants bring error.

Error from District Court, Custer County; T. A. Edwards, Judge. Action by S. J. Strong against G. W. Day and others. Prom a judgment sustaining a general demurrer to the petition, plaintiff appeals.

Error from County Court; Carter County ; W. P. Freeman, Judge. Action by Albert J. Lee against the Ard-more State Bank. There was a judgment for plaintiff, and defendant brings error.

Error from County Court, Comanche County; R. J. Ray, Judge. Proceedings by Joe L. Porter, county treasurer of Comanche county, against the J. W. Wolverton Hardware Company for the Collection of a tax. Judgment for plaintiff, and defendant brings error.

<p>Counties — County Commissioners — Personal Liability.</p> <p>The county commissioners of Garvin county contracted as such with the plaintiff for certain lumber and building material to be used in the work of eradicating the “Texas fever tick.” At the time the contract was made it was within the estimate duly made and approved by the excise board of Garvin county. Thereafter such estimate and the levy made thereunder were held to be void. Held, that the persons constituting the board of county commissioners were not individually liable to the plaintiff for the value of the material so bought.</p> <p>(Syllabus by Burford. O.)</p>

<p>Error from District Court, Garvin County; 1<\ B. Swank, Judge.</p> <p>Action by George M. Dizney against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Banks and Banking — National Banks— Recovery of Usury Paid — Demand.</p> <p>An action against a national bank to recover double the amount of usurious interest paid is governed by section 5198, Rev. St. TJ. S. (U. S. Comp. St. 1913, sec. 9759), and not by section 1005, Rev. Laws Okla. 1910, and in such action it is not necessary to allege and prove a demand for the return of the usury claimed.</p> <p>2. Courts — Concurrent Jurisdiction — National Banks — Recovery of Usury.</p> <p>A suit against a national bank for the recovery of a penalty for charging usury is cognizable in a state court having general jurisdiction of suits to recover usury and penalties therefor, and such state court is not d'ivested of jurisdiction, where no demand for the return of the usury is alleged or proved, by reason of the fact that the state statute requires a demand for the return of the usury as a condition precedent to the maintenance of a suit to recover a penalty for reserving or charging the same.</p> <p>3. Banks and Banking — National Banks— Action for Usury — Direction of Verdict.</p> <p>Where, in such case, the facts are undisputed and show a simple loan of money, upon which a sum is collected as interest in amount greatly in excess of that allowed by law, there being no other contracts or transactions involved, and the whole matter being carried on by one of the officers of the defendant bank, the trial court is justified in assuming that the collecting of such usurious interest was knowingly done, and in peremptorily charging the jury to return a verdict for the plaintiff.</p> <p>(Syllabus by Burford, C.)</p>

<p>Error from County Court. Cotton County; .T. C. Norman, Judge.</p> <p>Action by the State against Charley Bice and others, defendants, and Mrs. Elbert J. Cox and another, interpleaders. Judgment for plaintiff, and interpleaders bring error.</p>

<p>Error from District Court. Comanche County ; Cham Jones, Judge.</p> <p>Action by F. M. English, receiver, against J. 0. Severns and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Love County; W. P. Freeman, Judge. Action by Mrs. Etta Norton against the Supreme Lodge, Knights of Pythias, and Ruby E. Janeway and another intervene as defendants. Judgment for plaintiff, and in-terveners bring error.

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by the Maney Export Company against the Central Grain & Commission Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from Superior Court, Muskogee County '; H. C. Thurman, Judge.</p> <p>Action by J. W. Skinner against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Sequoyah County ; John H. Pitchford, Judge.</p> <p>Action by John W. Crawford against the Mitchell-Crittenden Tie Company and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Roger Mills County; Frank Mathews, Assigned Judge.</p> <p>Action by the Bank of Mound City against George E. Shufeldt. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Contracts — Fraud—Admissibility of Evidence.</p> <p>Where a written instrument is attacked for fraud, all the circumstances and transactions leading up to and surrounding the execution of the same, as well as the motives and intentions that prompted the maker to execute it, may be shown.</p> <p>2. Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>Where the verdict is approved by the trial court, and even though the evidence is conflicting and contradictory, but there is competent and positive evidence to sustain it, the judgment of the trial court will not be disturbed on appeal.</p> <p>3. Appeal and Error — Review—Prejudicial Effect of Error — Burden of Proof.</p> <p>It must clearly appear that the instructions complained of probably caused a miscarriage of justice before a reversal will be ordered.</p> <p>(Syllabus by Brunson, O.)</p>

<p>'Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by E. S. Warner against Margaret C. Wickizer and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Frauds, Statute of — Pleading — Issues .and Proof.</p> <p>A general denial raises the question of the statute of frauds.</p> <p>2. Appeal and Error — Presenting Questions in Trial Court — Necessity.</p> <p>The quéstion of the statute of frauds was not presented nor urged in the trial court, neither was it mentioned therein in any manner, nor was it relied upon in said court by the defendant for a defense. This court, therefore, will not consider this question when presented and urged by the defendant upon this court for the -first time on appeal.</p> <p>(Syllabus by Davis, C.)</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by the Municipal Excavator Company against the Southern Surety Company and another. Judgment for plaintiff, and the Surety Company brings error.

<p>Venue — Objections—Waiver.</p> <p>Where an action which, under the terms of section 4673, Rev. Laws 1910, should have been commenced in a county in which the cause, or some part thereof, arose is improperly commenced in some other county a question of venue arises, which may be waived, and if the defendants thus improperly sued in tlie wrong county, instead of confining tlieir objection to that of having been sued, in the wrong county, file demurrers presenting other grounds than that of the venue they thereby waive the objection that they have been improperly sued in the wrong county and submit themselves to the jurisdiction of the court of the county in which the action was commenced, that court having jurisdiction of the action in other respects.</p> <p>(Syllabus by Wilson, C.)</p>

<p>Error from District Court, Logan County; A. H. Huston, Judge.</p> <p>Action by Le Roy E. Waugh against W. J. Dibbens and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Pleading — Demurrer—'Waiver — Pleading Over.</p> <p>Where a demurrer is interposed to a pleading and such demurrer sustained by the trial court and leave granted to amend, and thereafter an amendment made, such action is a waiver of the demurrer. In order to take advantage of the ruling on a demurrer when it is sustained, the party must stand upon his pleading, held to be defective, and appeal from the action of the trial court.</p> <p>2. Guardian and Wajrd — Administration of Estate — Loans.</p> <p>Where the guardian of a minor takes notes, with personal security only, without authority from the county court to make the particular loan, and without the loan being approved by the county court, and thereafter offers such notes in settlement with his successor, and they are refused and suit instituted under the direction of the county court, a tender of such notes in settlement is insufficient.</p> <p>3. Guardian, and Ward — Liability on Bond —Judgment Against Principal — Collateral Attack. ■</p> <p>When the county court finds a guardian indebted to his ward in a specific sum, and directs the payment of the same, and further directs the newly appointed guardian to bring suit against the former guardian and his bondsmen, the judgment of said court rendered in said suit is final and binding upon the guardian and his sureties, and cannot be collaterally attacked when no appeal has heen taken therefrom.</p> <p>(Syllabus by Olay, O.)</p>

<p>1. Attachment — Wrongful Attachment — Actions — Pleading.</p> <p>In a petition to recover damages for the wrongful issue of an attachment, it is not necessary to aver the want of probable cause for the suing out of the attachment or a determination of the action in which the attachment was issued.</p> <p>2 Same.</p> <p>Actual damages only for mere wrongful attachment may be recovered in an action against the plaintiff therein, independent of the undertaking required by section 4070, Laws 1893 (section 4814, Rev. Laws 1910), and without allegation or proof that the same was sued out maliciously or without probable cause.</p> <p>3. Same.</p> <p>If exemplary or punitive damages are sought in an action for wrongful attachment against the party instituting the attachment proceedings, both malice and want of probable cause must be alleged and proved.</p> <p>(Syllabus by Bowles, O.)</p>

<p>1. Judgment — Vacation — Statutory Provisions.</p> <p>After the final adjournment of the term of court at which a final judgment is rendered, to give the court further jurisdiction to vacate such judgment, a substantial compliance with sections 5267-5269, Rev. Laws 1910, must be shown.</p> <p>Z. Same — Petition.</p> <p>A petition which does not describe the judgment sought to be vacated, and is not verified, does not comply with the requirements of section 5269, Rev. Laws 1910.</p> <p>3. Same — Motion.</p> <p>Motion to vacate the judgment filed in this cause carefully examined, and held not to be sufficient to authorize the judgment to he vacated.</p> <p>(Syllabus by Collier, C.)</p>

<p>1.Negligence — Dangerous Instrumentalities —Automobile.</p> <p>An automobile is not an inherently dangerous machine, and the rules of law applicable to dangerous instrumentalities do not apply,</p> <p>2. Evidence — Opinion Evidence — Existence of Agency.</p> <p>Evidence that the party is or is not an agent is a mere conclusion. But the witness may state the facts and circumstances concerning the various transactions between him and the alleged principal, leaving the court and the jury to determine, under the facts disclosed, whether or not he was such agent.</p> <p>3. Evidence — Best and Secondary Evidence —Contract of Agency.</p> <p>If the contract of agency is reduced to writing, the written instrument is the best evidence.</p> <p>4. Negligence — Automobiles — Liabilities of Sefier.</p> <p>The general rule, subject to certain exceptions not involved in this action, is that a manufacturer or vendor of an automobile is not liable to third parties who have no contractual relations, with him for negligence in the construction, manufacture, or sale of such machine.</p> <p>(Syllabus by Rittenhouse, C.) -</p>

<p>Error from District Court, Canadian County ; John AV. Hayson, Judge.</p> <p>Action by George AV. Hart against H. S. Clift and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Wagoner County; George C. Crump, Assigned Judge.</p> <p>Action by Harvey K. Thrailkill against W. T. Berryhill. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by the City National Bank against E. A. Cherry and another. From a judgment confirming a sale under execution, defendants bring error.

Error from District Court, Wagoner County; R. C. Allen, Judge. Action by Tooka Apeuka against the Walton Trust Company and o.thers, and Eck E. Brook and another, doing business under the firm name of Brook & Brook, were brought in as parties defendant. From an adverse judgment, defendants Brook & Brook bring error.

<p>1 Waters and Water Courses — Flowage— Care Required.</p> <p>. Where a railway company attempts to alter the course of the natural drainage of a tract of land, it must, provide sufficient means for the escape of the flow of such water, and where it attempts to gather up the water into ditches, it must care for it so that it will not do injury to an abutting landowner greater than would have resulted had it not interrupted the natural drainage.</p> <p>2. Evidence — Opinion Evidence — Damages.</p> <p>In an action for damages against a railway company, the court, over objections, permitted witnesses to testify as to the amount of damages the plaintiff had sustained. Held, error; that the witness should have been required to state the facts; and not conclusions as to the amount of such damage.</p> <p>3. Damages — Measure — Destruction of Property — Market Value.</p> <p>The measure of damages for the destruc lion of property is its reasonable market value at the time and place of its destruction, but if the property had no market value at the time and place, then its value in view, of the use to which it was to be put may be recovered.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by Carrie Edwards (nee Holland) against the Sovereign Camp, Woodmen of the World, on an insurance certificate. From a judgment for defendant, plaintiff appeals.

<p>Error from District Court, Blaine County; James B. Ouilison, Judge.</p> <p>Action by the Farmers’ Product & Supply Company against Albert Bond. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Jackson County ; Geo. C. Crump, Assigned Judge. Action by W. P. Clements and another against the Jacks on County Oil & Gas Company and others. From a judgment sustaining a general demurrer to the petition on behalf of the individual defendants, plaintiffs appeal.

<p>Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>In a ease at law, this court will not set aside the verdict of a jury upon the weight of the evidence; there being some evidence reasonably tending to support the verdict.</p> <p>(Syllabus by Burford, O.) ■</p>

<p>1. Appearance — General Appearance — Giving Bond.</p> <p>The giving of- a bond by defendant to discharge a garnishment, conditioned to pay any judgment which may thereafter be rendered against defendant, constitutes a general appearance to the action, and converts it from an action in rem to one in personam.</p> <p>2- Same.</p> <p>Defendant executed a bond to discharge a garnishment, conditioned to pay any judgment which might be rendered against it, gave and filed a notice of the giving of such bend, and requested and obtained an order of court, discharging the garnishee. It also entered into and filed a stipulation between the plaintiff and defendant for additional time to answer. Field, that by these acts the defendant entered a general appearance to the action.</p> <p>3. Corporations — Pleading — Amendment— Grounds.</p> <p>Where a corporation is properly before the court to answer a petition which names it correctly, but wrongly alleges the state of its incorporation, an amendment of the petition so as to properly describe such corporation, already in court, is justified.</p> <p>(Syllabus by Burford, C.)</p>

<p>Error from District Court, Pittsburg County ; K. W. Higgins, Judge.</p> <p>Action by Frank M. Chilson, trustee in bankruptcy of Alderson Coal Company, against F. J. McFarland. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from County Court, Caddo County; C. R. Johnston, Judge.</p> <p>Action by the Apache State Bank against William Voight. There was a judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Oklahoma County ; John W. Hay son, Judge.</p> <p>Action by John S. Hunter against Lena L. Eberle and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal and Error — Briefs—Failure to File— Dismissal.</p> <p>Appeal dismissed for failure of plaintiff in error to file brief in compliance with the rules of this court.</p> <p>(Syllabus by Johnson, C.)</p>

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by Grace Marlow against Kester-son & Telle, begun in justice court and appealed by defendants to district court. There was judgment for the plaintiff, and defendants bring error.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by Lula Owen against the National Council Knights and Ladies of Security. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by the News Dispatch Printing & Auditing Company against the Board of County Commissioners of Grady County. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Equity — Jurisdiction—Remedy at Law.</p> <p>Relief will not be granted by a court of equity where at the time- there is a plain, specific, and adequate remedy at law.</p> <p>2. Taxation — Assessment — Remedies for Wrongful Assessment.</p> <p>Whenever the statutes of the state provide a mode by which appeals may be taken from the assessment or equalization of property, that remedy is exclusive. Resort cannot he had to equitable remedies.</p> <p>3. Same.</p> <p>Article 9, ch. 81, Sess. Laws 1907-08, providing for the listing and assessing of omitted property, known as the Tax Ferret Law, provides a remedy by appeal to the county court from the final action of the county treasurer upon any assessments of omitted property made thereunder to the party aggrieved, and where the aggrieved i>arty neglects or refuses to avail himself of the remedy provided by statute for the correction of error of which he complains, the court is without jurisdiction to exercise its equitable powers by restraining the collection of taxes due under such assessment.</p> <p>(Syllabus by Rummons, C.)</p>

<p>Error from District Court, Alfalfa County; J. 0. Robberts, Judge.</p> <p>Action by the Wayne County National Bank against G. N. Kneeland and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by Collin James against C. M. Joiner and others. From the judgment, defendant Joiner brings error.</p>

<p>Error from District Court, Craig County; Preston S. Davis, Judge.</p> <p>Action by Charles Kabitt against Becky Hedrick and another, begun in justice’s court and appealed by defendants to the district court. The appeal was quashed, and defendants bring error.</p>

Error from District Court, Tulsa County; H. B. Schaeffer, Judge Pro Tern. Action by P. M. Rucker and another, co-partners under the firm name and style of Rucker Bros., against J. P. Mason and others. Jttdgment for defendants, and plaintiffs bring error.

<p>Appeal and Error — Review—Scope and Extent — Instructions—Questions of Fact.</p> <p>In cases of purely equitable cognizance, the verdict of a jury is only advisory; and, where the court adopts such verdict, instructions given to the jury will not be reviewed upon appeal. In such cases, if the judgment of the-court is sustained by the evidence, the same will be approved here.</p> <p>(Syllabus by Hooker, C.)</p>

<p>1. Divorce — “Alimony.”</p> <p>“Alimony” is defined to be an allowance which a husband or a former husband may be forced to pay to his wife or former wife, living legally separated from him, for her maintenance.</p> <p>2. Same — Separate Maintenance — Right of Wife.</p> <p>If the wife choose to live separate and apart from the husband, there being no reasonable cause for her abandonment of her husband, he cannot legally be required to contribute to her maintenance, nor can alimony in any form be granted her.</p> <p>3. Same — Separation—Division of Property.</p> <p>Where, in an action by a wife against her husband to obtain a divorce and alimony, the court finds that the wife is not entitled to a divorce or alimony and both are refused, the court is authorized under section 4966, Rev. Laws 1910, to make such order as may be proper for the equitable division of the property then owned by them, taking into consideration the time and manner of its acquisition.</p> <p>(Syllabus by Mathews, C.)</p>

<p>Landlord gild Tenant — Rents—Actions—Evidence.</p> <p>Evidence in this case examined, and it is held that it is insufficient to justify a recovery in behalf of the plaintiff in error, and the judgment of the lower court, denying tlm same, was proper.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from District Court, Johnston County; J. H. Linebaugh, Judge.</p> <p>Action by Roxie Fowler against Guy A. Fowler. From a judgment finding defendant guilty of contempt, he appeals.</p>

Error from District Court, Grant County; W. M. Bowles, Judge. Action by the W. L. Green Commission Company against C. G. Morrison, doing business as the Morrison Bros. Mills. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by D. C. Carr against the Bellevue Gas & Oil Company, a corporation, and the town of Mounds, a municipal corporation. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Alfalfa County; J. C. Robberts, Judge. Action by Lazira A. Nuckles Wood against E. E. Hood, trustee of the Shawnee Life Insurance Company, a corporation, dissolved. There was a judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Alfalfa County; .Tames B. Cullison, Judge.</p> <p>Action by E. Ford and Matilda J. Ford against B. E. Hood, trustee of the Shawnee Life Insurance Company, a corporation, dissolved. There was judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Alfalfa County; .T C. Robberts, Judge. Action by John W. Holcomb and Mary A. Holcomb against E. E. Hood, trustee, etc. There was a judgment for plaintiffs, and defendant brings error.

Error from District Court, Alfalfa ’ County ; J. C. Robberts, Judge. Action by Fannie Spangler and others against E. E. Hood, trustee of the Shawnee Life Insurance Company, a corporation, dissolved. There was a judgment for plaintiffs, and defendant brings error.

Error from District Courr, Alfalfa County; J. C. Ro'bberts, Judge. Action by Lydia M. Holcomb and B. A. Holcomb against B. E. Hood, trustee of the Shawnee Life Insurance Company, a corporation, dissolved. There was a judgment for plaintiffs, and defendant brings error.

Error from District Court, Alfalfa County; J. C. Robberts, Judge. Action by Maud M. Mitchell against E. E. Hood, trustee of the Shawnee Life Insurance Company, a corporation, dissolved. There was a judgment for plaintiff, and defendant brings error.

<p>1. Trial — Tailing Case from Jury — Demurrer to Evidence.</p> <p>The test applied to the demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn from the evidence, are admitted, and the court cannot weigh conflicting evidence, but must treat thát as withdrawn which is most favor-</p> <p>3.Evidence — Parol Evidence Affecting Writing — Contract Partly in Writing.</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 such written contract is admissible to show the full agreement.</p> <p>3. Contracts — Performance — Tender — Waiver.</p> <p>When the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused.</p> <p>4. Brokers — Compensation—Performance of Contract — Tender.</p> <p>In a suit by a real estate broker to recover a commission under a contract to procure assignments of certain leases for a stipulated price, the title -'onyeyed by said leases to be approved by the purchaser’s attorney, where it is shown that assignments of such leases for the price fixed and made to the party contemplated in the broker’s contract were procured and tendered during the course of preparation of abstracts of title to the land owned thereby, and the broker’s client absolutely and wrongfully signified his refusal to accept said assignments upon the grounds not related to the title and without mention thereof, held, that, in order to recover his commission, the broker is not required to adduce proof that proper abstracts showing good title to the leases so offered to be assigned were tendered to his client or approved by his client’s attorney.</p> <p>5. Same — Actions for Compensation — Sufficiency of Evidence.</p> <p>Evidence examined, and held sufficient as against a demurrer thereto to establish a cause of action.</p> <p>(Syllabus by Burford. 0.)</p>

<p>New TrSa.1 — Grounds—“Unavoidable Casualty” and Misfortune.</p> <p>Judgment was rendered against plaintiffs in error, and from the judgment rendered an appeal was attempted to be prosecuted to the Supreme Court; case-made being duly signed, sealed, and filed in the trial court within the time provided. Two firms of lawyers, living at different points, represented plaintiffs in error, and one of said firms, after sa'id case-made was settled and signed, mailed the same to the other firm of attorneys, with request that such attorneys prepare the petition in error and file the case-made in the Supreme Court. The said case-made was miscarried by mail and never reached the attorneys to whom it was sent, and the said case-made and petition were not filed in the Supreme Court within the time provided by law for taking an appeal. Thereafter, in accordance with the statute, the plaintiffs in error filed petition in the trial court, praying that the judgment rendered be vacated and a new trial granted, predicated upon “an unavoidable casualty and misfortune preventing the parties from prosecuting or defending,” and setting up as such unavoidable casualty and misfortune, the loss of said case-made 'in the mail. Held, that the loss of said case-made in the mail and the subsequent failure to file the same in the Supreme Court within the time provided by law was not such “unavoidable casualty or misfortune as entitled the plaintiffs in error” to a new trial of the cause in which said judgment was rendered.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Adair County; John H. Pitchford, Judge. Action by J. H. Cos & Co. against O. E. Fisher and others. From a judgment sustaining a demurrer on behalf of all defendants except Ed Le Master and against defendant Le Master for the amount sued for, plaintiff appeals.

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

<p>1. Indians — Lands — Conveyances—Validity.</p> <p>A deed to a part of the allotment of a Cherokee citizen of three-sixteenths "blood, before attaining his majority, and after act Cong. May 27, 1908, ch. 199, 35 Stat. 312, 313, took effect, is absolutely void as violative of section 5 of said act.</p> <p>2. Same".</p> <p>A Cherokee allottee, April 1, 1910-, while a minor, in consideration of the payment of the purchase price, executed a deed for a part of his allotment, and on March 14,1914, after he became of age, executed a second deed to the same grantee, for a consideration of $26 “in hand paid,” and “for the purpose of ratifying” the deed of April 1,1910). Held, that such second deed was not violative of the provisions of the governing statute, section 5 of the act of Congress of May 27, 1908, and conveyed title to the grantee.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Municipal Corporations — Contractors’ Bonds —Persons Protected.</p> <p>A person loaning money to a contractor to pay for labor and material furnished to such contractor is not protected by the provisions of a bond executed in conformity to section 3831, Rev. Laws of 1910.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Other Decision Followed.</p> <p>Same as in First Nat. Bank v. Southern Surety Co., 61 Oklahoma, 161 Pac. 539. (Syllabus by Hooker, C.)</p> <p>Error from Superior Court, Muskogee County ; H. O. Thurman, Judge.</p>

Error from District Court, Oklahoma County ; J. W. Hayson, Judge. ■ Action by the J. S. Mayfield Lumber Company and others against the Jefferson Trust Company and another. From a judgment for plaintiffs, defendants appeal.

Error from District Court, Cotton County; Cham Jones, Judge. Action by H. M. Johnson against the Temple National Bank to recover penalty for usury. Prom a judgment for plaintiff, defendant appeals.

<p>1. Trial — Demurrer to Evidence.</p> <p>It is only where the evidence with all the inferences to be drawn therefrom is insufficient to support a verdict for the plaintiff that a demurrer to the evidence can prop erly be sustained, or a verdict directed for t he defendant. -</p> <p>2. Appeal and Error — Instructions—Prejudicial Error.</p> <p>The jury is not supposed to know when the court correctly or incorrectly states the law, and it is prejudicial error for the court to give conflicting instructions to the jury, and thus leave the jury to decide conflicting principles of law. .</p> <p>3.Trial — Injuries to Servant — Inconsistent instructions.</p> <p>Instructions numbered 15ys and 19, respectively, given in this case, carefully considered, and held to be in direct conflict.</p> <p>(Syllabus by Collier, C.)</p>

<p>Release — Evidence—Burden of Proof.</p> <p>Where the execution of a release for damages for personal injuries is admitted, and fraud in procuring the execution of the same and want of consideration therefor are pleaded, the burden is upon the party executing the release to prove by a preponderance of the evidence such fraud or want of consideration.</p> <p>(Syllabus by Rummons, C.)</p>

<p>Error from District Court, Osage County; R. H. Hudson, Judge.</p> <p>Action by John Rippe against the Midland Valley Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

Error for District Court, Grant County; W. M. Bowles, Judge. Action by James H. Asher, as guardian of Elizabeth Miller, a minor, against A. J. Stull and others. Judgment for defendants, and plaintiff brings ertror. Reversed and remanded.