Volume 64 — Oklahoma Reports

<p>Error from District Court, Pontotoc County; Tom D. McKeown, Judge.</p> <p>Action by Francis J. Cushing against John H. Whaley, Mary E. Whaley, the American Trust Company, and J. A. Wooley, in which Jinsey Carney, Margrette Carney, and Billy Killcrease, Simon Killcrease, and Raymond Killcrease, by their legal guardian, John H. Cox, filed their plea of intervention, as did Johnson Carney, by a separate plea. From the judgment decreeing the title to the lands in controversy to be in the interveners, Jin-sey Carney, Margrette Carney, and Billy Killcrease, Simon Killcrease, and Raymond Killcrease, the plaintiff brings error. Pending the appeal, the said Francis J. Cushing died, and said proceedings in error were on July 27, 1915, revived in the name of Ada T. Cushing, administratrix of the estate of Francis J. Cushing, deceased.</p>

Error from District Court, Pawnee County; Conn Linn, Judge. Action by the Arkansas Valley National Bank against James M. McCollom and others. Judgment by default against defendant James M. McCollom, and judgment against defendant Anna McCollom, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>I.Mortgages — Construction of Contract— Time as Essence — Sufficiency of Evidence.</p> <p>The P. Bank sued J. and wife on a promissory note for $1,500, a past-due interest coupon for $45, and to recover $200 attorney’s fee, as provided for in the mortgage, and prayed that the same bo foreclosed. The petition alleged that W., D., M., McM., P., and the A. Bank claimed some interest in the land adverse and inferior to that of plaintiff, and also prayed that they be made parties defendant and required to set it up. W. answered that he had purchased the land subject to the mortgage, and pleaded and proved a contract in which (after reciting that there was $269.55 delinquent interest due on the indebtedness, that said interest coupon would be due on the $1,500 note July 1, 1913, and that W. was interested in the payment of said indebtedness) it was agreed by and between W?. and plaintiff, in consideration of a present settlement of all controversies in connection with the Iqan, that W. would pay plaintiff cash in hand said sum of $269.55 (which he did), and also “on or before June 25, 1913, as full principal and interest then accrued on the loan, $1,447.50, time being of the essence of this contract” ; that, if said sum was not paid plaintiff on or before said date, then plaintiff should be entitled to judgment in foreclosure of the mortgage for $1,545, with interest from July 1. 1913, and that W. would' interpose no defense to the action; that plaintiff would surrender to W. said evidences of indebtedness duly canceled, and receive the $1,447.50 on or before said date; and that, in case of default in the payment at the time specified, plaintiff would be entitled to judgment for the full amount of said note and coupon and foreclose the mortgage according to its .terms. "W. defaulted in the payment, but on July 12, 1913, and again on July 30, 1913, and again on August 2, 1913, tendered plaintiff $1,447.50, each time with interest from June 25, 1913. There was judgment for .plaintiff for $1,446.78, the sum last tendered. Held, that time was of the essence of the contract; that plaintiff was entitled to recover $1,500 on the note sued, also $45 on the past-due interest coupon thereto attached, together with interest thereon at 10 per cent, per annum from July 1, 1913, also $200 as an attorney’s fee, as provided in the mortgage, with interest thereon at 6 per cent, per annum from the date of the suit, and that the judgment was contrary to the evidence.</p> <p>2. Appeal and Error — Proceeding in Error —¡Petition —■ Parties — Dismissal — Mortgage Foreclosure.</p> <p>By way of cross-petition W. further alleged that the mortgaged lands were theretofore allotted to one S. B., a duly enrolled citizen of the Choctaw Nation by blood, who died November 10, 1904, after selecting his allotment, leaving him surviving as his only heirs at law his widow, K., and J. and S., his minor children, who sold and conveyed the land to Mrs. Pitt, and she to the defendant J., and he to W.; that the sale was good, and passed the title, but that the B.’s were asserting title thereto on the ground that the county court was without jurisdiction to appoint a guardian to make the sale for said minors; and that the three B.’s were necessary parties to the suit and asked that they be brought in. And such was done, whereupon they answered and set up title to the land, and by way of cross-petition asked that their title thereto be cleared of all conveyances including the mortgage sought to be foreclosed. No issue was joined between plaintiff and the three B.’s. There was judgment for W. against them as prayed, and that they take nothing on their cross-petition. Held, that they were not necessary parties to the proceeding in error to reverse the judgment foreclosing the mortgage, and that a failure to make them parties thereto was not a ground for a dismissal of said proceeding.</p> <p>3. Same.</p> <p>Further-, by way of cross-petition, W. also alleged that subsequent to the date of the mortgage sought to be foreclosed he and the defendant D. were sureties for one Williams, who then owned the land, on a promissory noté for $1,700, payable to the defendant A. bank, secured by a mortgage thereon; that later they became his sureties on another note to said bank for $2,290, which was secured by another mortgage to the bank executed by W.’s wife, who then owned the land; that both mortgages were junior to another mortgage on the land Williams owed Bowman for $210; that thereafter Williams caused the land to be conveyed to him and D. in consideration 'that they pay off all of said indebtedness, which they did, to the bank only, by executing their note for $4,000 and paying the balance in cash and delivering the notes to Williams; that thereafter Bowman foreclosed his mortgage and sold the land to the defendant M., who quitclaimed the same to W. for value, who offered to convey one-half thereof to D., in consideration that he pay one-half the purchase money paid M., which he refused to do. The A. bank answered, and D. defaulted, whereupon there was judgment agdinst him and in favor of the bank for $2,261.48, together with attorney’s fees and costs, and he was perpetually enjoined from asserting any claim to the land. Held, that ■ neither the bank nor D. was a necessary party to the proceeding in error to review the judgment in' favor of plaintiff, the P. bank, against W.. foreclosing its mortgage.</p> <p>4. Same.</p> <p>After the decree in foreclosure was rendered and entered, on the overruling of the motion for a new trial, the same was modified, pursuant to which the defendant W. paid plaintiff $1,462.78 and executed a bond' to respond in lieu of the land for any additional sum plaintiff might recover against him on the mortgage indebtedness. Held, that as no deficiency judgment was asked, and could not be recovered against the mortgagors J. and wife, they were not necessary parties' to the proceeding in error to review'said decree.</p> <p>5. Same.</p> <p>Where, in a suit to foreclose a mortgage, M., McM., and P. w’ere.allowed to claim some interest in the land adverse, but inferior, to that of plaintiff, M. appeared and disclaimed, and the other two were not summoned, nor did they appear, and no judgment was taken for or against them, all, seemingly, having passed out of the case, held, that a failure to make them parties to the proceeding in error is not a ground for dismissal.</p>

<p>Error from Superior Court, Pottawatomie County; Leander G. Pittman, Judge.</p> <p>Action by W. H. Chandler against the Security State Bank. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge.</p> <p>Action by R. L. Lane against the Security State Bank. There was judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Kay County; William M. Bowles, Judge. . Action by the Pabst Brewing Company against Hugh Johnston, as Sheriff of Kay County, and another. There was judgment for defendants, and plaintiff brings error.

Error from District Court, Wagoner County ; Fred P. Branson, Judge. Final accounting by G. D. Carl, administrator of the estate of Martha J. Wade. The claims of the opponents Kathleen Garrison and another were by the county court held inferior to other claims, and a similar judgment being rendered on appeal to the district court, opponents bring error.

Error from District Court, -'Cherokee County ; John H. Pitchford, Judge. Action by M. L. Allen against the guardian of Robert Chastain, a minor, and others. Judgment against Bruce L. Keenan, purchaser of land at sheriff’s sale, and he brings error. On second petition for rehearing and motion to dismiss appeal. Former opinion, published in 157 Pac. 326, withdrawn, and appeal dismissed.

Error from District Court, Grady County;' Frank M. Bailey, Judge. Replevin by J. E. Lucas against W. C. King. Judgment for defendant, motion for new trial overruled,' and plaintiff brings error.

Error from District Court, Jefferson County; Frank M. Bailey, Judge. Suit by Josie Allison against George W. Crummey, Deming Investment Company, E. E. Ford, and others, consolidated with suit by Wade Allison, by next friend, against the same defendants. Judgment for defendants Deming Investment Company and E. E. Ford, and plaintiffs bring error.

Error from District Court, Rogers County. W. J. Campbell, Judge. Action for injunction by J. D. Ward, for and on behalf of himself and other taxpayers against the city of Collinsville, Okla., and others. Judgment for plaintiff, motion to vacate judgment and to dissolve the injunction overruled, and defendants bring error.

Error from District Court, Oklahoma County ; W. R. Taylor, Judge. Action by the Mangelsdorf Bros. Company, a corporation, against E. R. Kolp and D. C. Kolp, copartners. Demurrer to plaintiff’s evidence sustained, and judgment against plaintiff for costs, and it brings error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Review—Qualification of Special Judge.</p> <p>Where an action is tried before a special judge selected by agreement of the parties in accordance with the statute and no question is raised in the trial court as to his power or authority to hear and determine the ease or as* to the regularity of his selection, such question cannot be urged for the first time in the Supreme Court on appeal.</p> <p>2. Libel and Slander — Special Damages— Allegation.</p> <p>Where in an action for libel the article published is libelous per se, it is not necessary for plaintiff to allege or prove special damages.</p> <p>3. Libel and Slander — Construction of Alleged Libel.</p> <p>In construing an article claimed to be libelous, it is the duty of the court to construe the words used in their most natural and obvious sense, and give them that meaning which would most naturally be ascribed thereto by those to whom the article was addressed.</p> <p>4. Libel and Slander — Language Libelous Per Se — Instruction.</p> <p>Where the language used is obviously libelous per se, it is the duty of the court to so instruct the jury as a matter of law.</p> <p>5. libel and Slander — Verdict—Statute.</p> <p>Section 4961, Rev. Laws 1910, declaring that when verdict is for plaintiff the verdict shall in no ease be less than $100, authorizes a minimum verdict in plaintiff’s favor in each suit or action, and not for each act or instance of libel.</p> <p>6. Constitutional Law — Constitutionality of ■Statute — Determination.</p> <p>The Supreme Court will not pass upon the constitutionality of an act of the Legislature until there is presented a proper case in which it is made to appear that the person complaining has, by reason thereof, been or is about to be deprived of some right or privilege to which he was lawfully entitled, or who is about to be subjected to some of its burdens and penalties.</p>

<p>(Syllabus by the Court.)</p> <p>1. Judgment — Correction of Mistake — Pow-of Court.</p> <p>The courts of record of this state have power to correct a mistake of the clerk in the entry of a judgment or order on the journal so as to make the same conform to the judgment actually pronounced, or the order actually made by the court at the time.</p> <p>S3. Same — Correction—Method.</p> <p>The correction may be made by an amendment after the term at which the judgment or order was pronounced, or the entry was made, upon motion of a party and upon reasonable notice to the opposite party, and opportunity to appear and show cause against the proposed correction.</p> <p>3. Same — Amendment—Evidence.</p> <p>Such amendment may be based on any competent evidence, parol as well as written, which is satisfactory and convincing. Record evidence or evidence quasi of record is not essential), but where there is not such evidence, the court should act with great care and caution.</p>

Error from County Court, Coal County; P. E. Wilhelm, Judge. Action by the State, on the relation of the County Attorney, against Pasquale Ferrero and another. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Mary Marshall against Lillie Grayson and others. Judgment for defendants dismissing the petition, plaintiff’s motion for a new trial overruled, and she brings error.

<p>(Syllabus by the Court.)</p> <p>1. Evidence — Photographs—Value.</p> <p>The probative value of photographs depends upon their accuracy. They must be shown by extrinsic evidence to be faithful representations of the place or subject, as it existed at the time involved in the controversy. And photographs taken to show more than this, with men in various assumed positions, and things in variotxs assumed situations, intended only to illustrate hypothetical situations, and to explain certain theories of the parties, are incompetent.</p> <p>2. Negligence —■ Contributory Negligence— ■ Pleading as Defense.</p> <p>An answer in an action for personal injuries, which only denies that the injury was ■caused by the negligence of defendant, and alleges that it was “wholly” caused by the negligence of the plaintiff, is in effect nothing more than a general denial, and does not plead contributory negligence.</p> <p>The law requires the plaintiff to apprise the defendant in the beginning, as to what he relies upon for a recovery, and limits him to the facts pleaded. And it likewise requires the defendant to apprise the plaintiff of any special or affirmative defense he expects to make, by pleading the facts constituting such defense. There is no reason why one should be entitled to the light, and the other required to grope -in the dark. Hence contributory negligence, to be available to the defendant, must be specifically pleaded, unless such contributory negligence appears from the allegations of the plaintiff’s petition, or unless the plaintiff’s own case raises the presumption of contributory negligence.</p> <p>3.- Corporations — Actions—Service of Pro- . cess.</p> <p>A return of the service of summons, on a domestic corporation, which shows that the president was not found in the county, and that the writ was served upon the managing agent, is sufficient. The statute contemplates that the absence of one officer from the county — “the chief officer” — opens the door for legally serving summons upon any one of the 'subordinates designated by the statute. It does not contemplate the absurdity of a multiplicity of chief officers, but makes the definite provision that if the one. single, “chief officer is not found in the ■County,” then service may be made upon either the “cashier, treasurer, secretary, clerk, or managing agent.”</p>

<p>Error from District Court, Ottawa County; Preston S. Davis, Judge.</p> <p>Action by James W. Lusk and others, receivers ■ of the St. Louis & San Francisco Railroad, and the St. Louis & San Francisco Railroad Company, against A. R. Botts, County Treasurer of Ottawa County, Okla, Demurrer to answer overruled, and plaintiffs bring error.</p>

, Error from District Court, Coal County; Robt. M. Rainey, Judge. Action by Hannah Green against the Western Coal & Mining Company. Judgment for plaintiff, motion to vacate judgment denied, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Trial—New Trial— Demurrer to Evidence — Procedure—Record.</p> <p>Our procedure does not expressly authorize a demurrer to the evidence in cases tried to the court without a jury, but the practice is followed in Kansas, and by the courts of this state. In such cases the action oí the court in sustaining or overruling a demurrer to the evidence must be tested by the same rules that obtain in jury eases, unless, in the event the demurrer is sustained, it affirmatively appears from the record that the court weighed all the evidence as upon final submission, and so gave judgment upon the evidence.</p> <p>2. Appeal and Error — Sustaining Demurrer to Evidence — Review—Prejudicial Error.</p> <p>In an action tried to the court without a jury, where the trial court did not make •findings of- fact, and there was nothing in the record affirmatively showing that the court, in sustaining the demurrers, weighed the evidence as upon final submission, and where the evidence tested by the rule applicable to a demurrer to the evidence was sufficient, held, the trial court committed reversible error in sustaining the demurrers.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Motions by the National Surety Company, W. A. Jones, and Will Dye to set aside a judgment rendered in a consolidated case entitled “S. H. Hanson Builders’ Supply Company and Others v. School District No. 70, Oklahoma County, and Others.” Motions denied, and movants bring error.

<p>Error from District Court, Roger Mills County; G. A. Brown, Judge.</p> <p>Action by L. A. Beaty against the Shawnee Pire Insurance Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Railroads — Abandonment of Right of Way — Question for Jury.</p> <p>To constitute abandonment of an easement of right of way, there must be not only an actual relinquishment, but an intention to abandon; and this is a auestion of fact for the jury, or the dourt sitting as a trier of the facts, under all the evidence.</p> <p>2. Same — Evidence of A’ andonment.</p> <p>The evidence of the railway officials that they did not intend to abandon the right of way is not conclusive upon the question of abandonment, but may be considered in connection with the other facts and circumstances.</p> <p>3. Appeal and Error — Review—Question of Fact.</p> <p>Where the evidence reasonably supports the finding of the trial court on a question of fact, the judgment will not be disturbed on appeal.</p> <p>4. Eminent Domain — Abandonment of Right of Way — Reverter.</p> <p>Where a railway company has obtained, through condemnation proceedings, an easement over certain lands, and afterwards abandons such easement, the title thereto reverts to the original grantor, and is subject to condemnation for the same purpose by another railway company.</p>

Error from District Court, Creek County; Wade S. Stanfield, Judge. Proceeding by the State, on relation of J. D. Lankford, State Bank Commissioner, against the Sapulpa Company. There was judgment for plaintiff, and defendant brings error.

Error from District ’Court, Atoka County; W. ’S. Farmer, Judge pro tern. In the matter of the will of Sampson James, deceased.,' Petition for probate by J. B. Maxey, opposed by Eliza Logan and others. Will admitted to probate, and on contestants’ appeal to the district court, probate was denied, and proponent brings error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Ejectment by Hickman' Amos, a minor, by his legal guardians, Allen W. Jam.es, and others, against John J. Cravens and others. There was a judgment for plaintiffs, and defendants bring error.

<p>Error from District Court, Harper County ; W. C. Crow, Judge.</p> <p>Action of forcible entry and detainer by H. A. Root against L. C. McCullough. Judgment for plaintiff in justice court, and defendant appeals, and from the granting of plaintiff’s motion to dismiss the appeal, defendant brings error.</p>

Error from Superior Court, Pottáwatomie County; Leander G. Pitman, Judge. Action by J. L. Hughes against the Chicago. Rock Island & Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error.

Error from Superior Court, Muskogee County; Parrar L. McCain, Judge. Action by the H. W. Johns-Manville Company, a corporation, against Lohr & Trapnell, a partnership, the Texas Building Company, a corporation, and the Southern Surety Company, a corporation. There was a judgment for plaintiffs, and defendants bring error. On motion to dismiss.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Equity Cases — Review — Reversal—Judgment.</p> <p>In all eases cognizable only in a court of chancery, this court on appeal has the power to consider the whole record, to weigh the evidence, and, when the judgment of the trial court is clearly against the weight of the evidence, render or cause to" be rendered such judgment as the trial court should have rendered.</p> <p>2. Appeal and Error — Cancellation of In-strumente — Fraud—Evidtence — Restoration of Purchase Price — Reversal.</p> <p>In a suit against M. and F. for the rescission and cancellation of a contract of sale for 160 acres of land and two warranty deeds, with covenants against incumbrances, for 80 acres each, made, executed, and delivered by plaintiff to defendants pursuant thereto, on the ground of fraud in their procurement, and also against H. to set aside, but not for fraud in its procurement, a prior executory contract of sale for the west 80 acres of the land, evidence examined, and held insufficient to preponderate against the contract and deeds assailed in the hands of M. and F. and repel all opposing presumptions in favor of their validity, and hence the court erred in setting the same aside. Held, further, that plaintiff is not entitled to relief on account of her failure to return or offer to return that part of the purchase money paid her by M. and F. at the time of the execution of the instruments assailed. Held, further, that as the trial court adjudged and decreed H. to toe the owner of the 80 acresNovered by his contract, subject only to the payment and release of certain mortgages on 120 acres including his 80 acres of the land, and the same is not complained of, and M. and F. offer to pay plaintiff the balance of the purchase money due her on the east 80 when said mortgages are discharged by H., the cause is reversed as to M. and F., not for a new trial, but with directions to vacate the judgment canceling their contract and deed to the east 80 acres in controversy, and requiring said money to be paid into court to be turned over to plaintiff upon the discharge of said mortgages by H.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by John H. Woodcock against J. Truman Nison and others. There was a judgment for plaintiff, and defendants bring error.

Error from County Court, Bryan County; J. L. Rappolee, Judge. Action by William Bondies, trading under .the name of William’ Bondies & Co., against the 8f. Louis & San Francisco Railroad Company. There was a judgment for plaintiff, and defendant brings error.

<p>. (Syllabus by the Court.)</p> <p>Railroad Right of Way — Abandonment-Appeal.</p> <p>(The syllabus in Canadian Hi ver R. Co. v. Wichita Falls & Northwestern Railway Co. et al., 64 Okla. 62, 166 Pac. 163, is adopted as the syllabus in this case.).</p>

<p>(Syllabus by the Court.)</p> <p>1. Partnership — Dissolution Agreements— Intent.</p> <p>Where parties entered into a contract to dissolve a partnership existing between them, it was the duty of the court in construing said contract to ascertain the intention of the parties from the writing itself if possible, and to so interpret the words thereof as to give effect to the mutual intention of the parties thereto' as it existed at the time of entering into the agreement, so far as such intention was ascertainable and lawful.</p> <p>2. Contracts — Construction — Surrounding Circumstances.</p> <p>Where the intention of the parties to a contract could not be ascertained from the writing itself, under the law in force in the Indian Territory at the time the contract was executed, the court was authorized to look to the situation of the parties thereto when the contract was made, its subject-matter and purpose in order to determine therefrom the intention of the parties and the meaning of the terms used in the agreement.</p> <p>3.Evidence — Parol Evidence Rule — Contracts.</p> <p>Plaintiff and defendant, who were engaged in the mercantile .business as partners, entered into a contract of dissolution, whereby plaintiff retired from the partnership and transferred his entire interest in the bust; ness to defendant. The contract expressly stipulated that defendant should assume and pay the liabilities, and should sell certain cotton and divide the proceeds, and should collect certain accounts and divide the proceeds equally. Certain valuations were placed upon the assets by the partners, and plaintiff contended that it was the intention that defendant, after paying the indebtedness of the partnership,, should pay plaintiff one-half of the value of the assets as shown by said valuations, while defendant contended that said valuations were merely descriptive. The contract contained no provision requiring defendant to pay plaintiff one-half the value of the assets in addition to the other considerations recited "therein.</p> <p>Held, that it was not error to admit parol evidence to determine the intention of the parties.</p> <p>Kane, J., dissenting.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. In action to foreclose mortgages executed by Isaac Eleigeltaub, there was a judgment of foreclosure, an order of sale and a purchase by James C. Wright, with objections by Wheeler & Motter Mercantile Company to confirmation of the sale. Objections overruled, and the objector brings error.

<p>(Syllabus by tbe Court.)</p> <p>1. Appeal and Error — Motion for New Trial —Opinion of Comí; Below.</p> <p>Where upon motion for new trial in a case tried before a referee, the court sustains the motion and grants a new trial, and at the time of passing on said motion delivers an oral opinion stating the reasons upon which the rhotion is sustained, said remarks of the court cannot operate to prevent the Supreme Court reviewing the entire record in order to determine whether said new trial was properly granted for reasons other than those stated by the court.</p> <p>2. Reference — Report—Exception.</p> <p>Prior to the taking effect of section 5033, Rev. Laws 1910, where by oral consent of the parties made in open court and entered on the journal a case was referred to a referee with directions to make findings of fact and conclusions of law and report the evidence taken before him, the evidence taken by the referee and returned with his report became a part of the record in the case, and it was not necessary to file exceptions to the report or motion for new trial with the referee, but it was the proper practice to file same with the court upon the coming in of the report and within three days from the filing thereof.</p> <p>3. New Trial — Procedure—Findings of Fact.</p> <p>Where a motion for new trial is sustained and the report of a referee entirely set aside, the effect of the order 'is to grant a new trial, and it is erroneous for the court to make other findings of fact and render judgment thereon.</p> <p>4. Appeal and Error — Discretion of Trial Court — Grant of New Trial.</p> <p>The granting of a new trial rests so much in the discretion of the trial court that the Supreme Court will not reverse such an order unless it is made to clearly appear that the trial court has erred in respect to some pure, simple, and unmixed question of law, and xuiless it can be seen that but for such error a new trial would not have been granted.</p> <p>5. Appeal and Error — Case-Made—Evidence.</p> <p>. The Supreme Court will not review questions which require an examination of the evidence where the case-made does not contain the evidence taken in the trial court.</p> <p>6. Reference — Discretion of Trial Court— Refusal to Send Case Back to Referee.</p> <p>It was within the discretion of the trial court when sustaining a motion for new trial, to deny,a request to send the case back to the referee with directions to make additional findings.</p>

Error from District Court, Carter County ; S. H. Russell, Judge. Action by John Sampson and others against C. R. Smith and others. Cross-petition by Steve Sampson and other defendánts against co-defendants Smith and others. Demurrers to cross-petition sustained, and cross-petitioners bring error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Suit by Anna Rei'd against Clara Re-markis, with garnishment against John H. Wright. Judgment for plaintiff, and defendant and the garnishee bring error.

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by D. E. Garrison, doing business as D. E. Garris-on & Co., against E. M. Lisle & Co. From the judgment, the palintiff brings error.</p>

Error from District O-ourt, Canadian County; George W. Clark, Judge. Action between Henry Schafer and another and L. P. Lee. There was a judgment for. the latter, and the former bring error.

Error from District Court, Okfuskee County; John Caruthers, Judge. Action by Howard Van Pelt against E. W. Brown and others. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by Jesse Fix and wife against George L. Rose and another. Judgment for defendants, and plaintiffs bring error.

<p>Error from District Court, Alfalfa County ; James B. Cullison, Judge.</p> <p>Action by B. J. Lambert against the Town of Burlington. There was a judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Johnston County ; Robert M. Rainey, Judge. Action by Ida L. Bridges, a minor, by her next friend, W. W. Wells, against W. C. Rea and another. There was a judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Jefferson County; Frank M. Bailey, Judge.</p> <p>Suit by Daniel Miller and Charlico Emer against N. B. Grayson and J. M. Bound. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Adair County; John H. Pitchford, Judge. Action by the State, on the relation of the County Commissioners of Adair County, against R. R. McCloud and another. There was a judgment for c.efendants, and plaintiff brings error.

Error from District Court, Johnston County; J. H. Linebaugh, Judge. Separate actions by J. T. Griffin against Springfield .Fire & Marine Insurance Company, a corporation, and Franklin Fire Insurance Company, a corporation, and Phoenix Insurance Company, a eorporatioh, consolidated in the trial courif. Judgment for plaintiff and against each defendant, and defendants bring error.

Error from District Court, Oklahoma County; Frank Mathews, Assigned Judge. Action by Mattie R. Storm against Chas. H. Garnett and Robert K. Garnett and others. Judgment for plaintiff against defendant Charles H. Garnett, with decree foreclosing a mortgage, and the named defendants bring error.

Error from District Court, Jackson County; Frank Mathews, Judge. Action by the Incorporated Town of Eldorado against O. W. Dickerson and W. H. Tatman, partners, and another. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by the Dux Oil & Gas Company against Sam Wilson and another, in which J. A. Bearman intervened. There was a judgment for plaintiff, and intervener brings error.

<p>(Syllabus by the Court.)</p> <p>1. States — Public Contracts — Abandonment of Work — “Completion”—Statutes.</p> <p>Under section 3881, Rev. Laws 1910, requiring public officers contracting for the construction of any public building to take from the contractor a bond for the payment of indebtedness incurred for labor or material furnished in the construction of such building, and section 3882, providing that no action sliall be brought on said bond after six months from the completion of said building, the abandonment of work upon such building by the contractor is not to be .regarded as its completion, so as to bar all actions not begun within six months therefrom. In such circumstances the word “completion,” as used in the statute, should be construed to mean actual completion — when, the building is in fact finished, and not when there was a cessation in the work, even though for a consid- '• erable period of time.</p> <p>2. Principal and Surety — Discharge of Surety — Alteration of Plans.</p> <p>Where a contract for the construction of public buildings of the state, secured by a bond for the payment of all indebtedness incurred for labor or materials as required in section 3881, Rev. Laws 1910, authorized alterations to he made in the work to conform to the recommendations made by designated state officers, upon order of the architects under whose charge the work was being carried on, and which provided that the work added or omitted should be computed by the architects and the amounts so ascertained, added or deducted from the contract price, the sureties, being bound by tbe terms of their undertaking, are not relieved of liability on account of the failure of the contractor to pay for materials used.on said buildings, though changes were made in the original plans and specifications, by which the cost of the buildings was increased.</p> <p>3. Principal and Surety — Public Buildings— Retention of Payment — Fraud of Principal — Liability of Surety.</p> <p>Where the building contract provided that 15 per cent, of the estimated approximate value of the materials. furnished and labor performed in the proper execution of the work should be retained until final settlement, and this was not done, due to the fact that fraudulent .statements were rendered by the contractor as to the amount of materials furnished and labor performed, find upon which the architects issued certificates showing the amount .drae and which recited that 15 per cent, of the balance due under the contract was retained, and where on account of such certificates the state made payments from time to time to the contractor, the sureties, as against the claims of the ma-terialmen and laborers, are not entitled to be 'relieved- of liability on account of the fraud of their principal, for the faithful performance of whose contract, in respect to such claimants, they stand obligated.</p>

Proceedings by the Board of Education of the City of Guthrie, State of Oklahoma, and others, against the Guthrie Gas, Light,- Fuel & Improvement Company and another. From an order of the Corporation Commission, defendants appeal.

<p>Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge, #</p> <p>Action by John H. Arnold and Elta Arnold against the Tulsa Rig, Reel & Manufacturing Company. Judgment for the plaintiffs, and defendant brings error.</p>

Error from District Court, Pontotoc Coiuinty; Tom D. McKeown, Judge. Action to quiet title by G. E. Nordjneyer and others against J. M. Bruner. Judgment for plaintiffs, and defendant brings error.'

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Review — Briefs — Reversal.</p> <p>Where the defendant in error has not filed briefs as required under rule 7 of this court nor offered excuse for such failure, and it appears from briefs properly filed by plaintiff in error the propositions relied upon for reversal are well taken, the judgment will be reversed and the cause remanded.</p>

<p>Error from Superior Oourt, Tulsa County; M. A. Breckenridge, Judge.</p> <p>Action between A. L. Dehner and others against Prank Z. Curry and others. There was a judgment for the latter, and the former bring error.</p>

<p>Error from District Court, Oklahoma County; W. R: Taylor, Judge.</p> <p>Proceedings by Oarroll, Brough & Robinson, of Oklahoma City, begun before the Board of County Commissioners of Oklahoma County, to secure a rebate of taxes, in which an appeal was taken to the District Court. A demurrer was sustained to the petition, and tEe petitioner brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Taxation — Lands—Indian Lands.</p> <p>Following Marcy v. Board of County Commissioners, 45 Okla. 1, 144 Pac. 611, it is held, where the conveyance or deed of the interest of a full-blood Indian heir of the allottee of land allotted in the Choctaw Nation is invalid, unless approved by the Secretary of the Interior, or by the court having jurisdiction of the settlement of the estate of the deceased allottee, such interest in the land is not subject to taxation for any year prior to the execution and approval of the conveyance or deed by the heirs.</p> <p>2. Same — Restrictions on Alienation.</p> <p>Brader v. James, 49 Okla. 734, 154 Pac. 560, and Moffett v. Conley, 63 Okla. 3, 163 Pac. 118, followed, and held, that at the dates as of which certain allotted lands of the Choctaw Nation were assessed for taxation, then owned by full-blood Indian heirs of the allottee, the same could not be alienated without the approval of the Secretary of the Interior or of the court having jurisdiction of the settlement of the estate of the deceased allottees.</p>

Decker, Ji^dge. Action toy Geo. H. Mouser against Theo. Kondos and another. There was a judgment for plaintiff, and defendants appeal.

Error from Superior Court, Custer County; Thos. A. Edwards, Judge. Action by John Thacker against G. D. Witt, Treasurer of Ouster County, and another. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Oklahoma County; Prank Mathews, Assigned Judge. Action by Lyman N. Norris against A. Zillah Dagley, represented by R. H. Christy, guardian, and another. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Payne County; A. H. Huston, Judge. Action by the Planters’ State Bank of Ripley and another against Jay Wade. There was a judgment for plaintiffs, and defendant brings error.

<p>Petition by A. C. Clark for writ of prohibition against R. P. de Graffenreid and another, Judges of the District Court in and for the Third Judicial District.</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by Rogers Noah against J. S. Mullen and others. There was a judgment for plaintiff, and defendants -bring error.

Error from District Court, Alfalfa County; James B. Cullison, Judge. Replevin by the Nichols & Shepard Company. a corporation, against the Sheriff of Alfalfa County, in which Charles E. Haltom was substituted as defendant. There was a judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Seminole County; Tom D. McKeown, Judge.</p> <p>Action by Sumpsey and Rosie against T. H. Smith. From a judgment for the plaintiffs, defendant brings error.</p>

<p>Error from District Court, Okfuskee County ; George 0. Crump, Judge.</p> <p>Motion in county court by Lessey Yarhola, an incompetent, and the United States of America, to discharge Fred L. Strough as guardian of the incompetent. From a judgment of the district court affirming the action of the county court overruling the motion, movants bring error.'</p>

<p>(Syllabus by the •Court.)</p> <p>Mandamus — Action of Justice of Peace— Adequate Remedy at Law.</p> <p>Mandamus will not lie to compel a justice of the peace to grant an application for change of venue, for the reason that the party making such application has a plain and adequate remedy at law by bill of exceptions and petition in error.</p>

Error from District Court, Okfuskee County ; George O. Crump, Judge. Proceeding by Nancy Severs, nee Yarhola, an incompetent, and the United States of America, against Fred L. Strough. Judgment for the latter, and the former bring error.

Error from District Court, Kiowa County; Jas. R. Tolbert, Judge. Action by the First National Bank of Hobart, a corporation,, against Robert L. Hutton and others. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by Lula, Seminole Roll No. 908, and another, by Alexander Crain, their guardian and next friend, against S. D. PoweE. There was a judgment for the latter, and the former bring error.

Error from District Court, Coal County; Robt. M. Rainey, Judge. Action by James W. McClendon against the ' Murrow Indian Orphans’ Home, a corporation. There was a judgment for plaintiff, and defendant brings error.

Error from District Court, Canadian County,' John W. Hayson, Judge. In the matter of the assessment of the Pirst National Bank of El Reno. Petition by the bank for reduction of its assessment was denied, and on appeal to the District Court the assessment was reduced, whereupon the Board of County Commissioners of Canadian County brings error.

Errofi from District Court, Stephens County; Cham Jones, Judge. Action by the Duncan Electric & lee Company against the City of Duncan, a municipal corporation. Judgment for defendant, and plaintiff brings error.

Error from County Court, Ottawa County; Vern E. Thompson, Judge. Action by Bentley & Olmstead Company, a corporation, against J. A. Peck and others. There was a judgment for the latter, and the former brings error. .

. Proceedings by the Pawhuska Oil & Gas Company before the Corporation Commission, to increase gas rates, opposed by the City of Pawhuska. From an order of the Corporation Commission, the City appeals.

<p>(Syllabus by tbe Court.)</p> <p>1. Insurance — Life Policies — Action!» — Instruction. .</p> <p>Instructions given in an action to recover on a life insurance policy examined, and beld to clearly and fully submit to tbe jury tbe issue of alleged material misrepresentations in tbe application for tbe policy.</p> <p>2. Trial — Instructions — Definitions — Intoxicated.”</p> <p>Tbe word “intoxicated” as used in an application for a life insurance policy is to be understood in its ordinary and popular sense, and it is unnecessary that it be defined in tbe instructions to tbe .jury.</p> <p>3. Insurance — Life Policies — Actions — Instruction.</p> <p>An instruction given and one refused, defining “intoxicated,” examined, and beld not prejudicial error in tbis ease.</p> <p>4. Appeal and Error — Insurance—Life Insurance — Actions' — Evidence — Harmless Exror.</p> <p>In an action to recover on a life insurance policy, evidence tending to prove that insured was Intoxicated at the time of bis death beld inadmissible for tbe purpose of showing that insured bad falsely represented in bis application that be bad not been intoxicated during five years prior thereto. Held, further, that if such evidence was admissible to show tbe materiality of tbe representation, error in rejecting same was rendered harmless when tbe court peremptorily instructed tbe jury that such representation was material.</p> <p>5. Insurance — Life Insurance — Actions — Evidence.</p> <p>Evidence tending to prove that insured bad made false representations in bis application with respect to tbe kind and quantity of intoxicating liquors used by him and whether he had been intoxicated examined, and beld not sufficient to authorize tbis court to set aside tbe verdict of tbe jury thereon.</p>

<p>Error from District Court, Okfuskee County; John Caruthers, Judge.</p> <p>Action by the Grand Lodge Knights of Pythias of North America, South America, Europe, Asia, Africa, and Australia and the Grand Jurisdiction of Oklahoma against the Farmers’ & Merchants’ Bank of Boley. 'There was a judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Suit by Edward O’Donnell against the Riter-Conley Manufacturing Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>Error from District . Court, Oklahoma County; James W. Steen, Assigned Judge.</p> <p>Action by the W. C. Dean Jewelry Company against P. G. Storm. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus by the Oourt.)</p> <p>1. Taxation — Remedies — Exclusive Kenne-dies.</p> <p>AVhenovor tlie statutes of a state provide a mode by which appeals may be taken from the assessment or equalization of property, that remedy is exclusive, and equitable remedies cannot be resorted to.</p> <p>2. Same.</p> <p>Section 7368, Rec. Laws 1910, provided a speedy and adequate remedy for inequality or injustice in assessments or equalizations, and is the sole method by which assessments or equalizatións may be corrected or taxes abated.</p>

<p>Error from District Court, Alfalfa County; James W. Steen, Judge.</p> <p>Action by E. M. Norman against Sam 0. Lambert. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Pottawatomie Comity; Chas. G. Watts, Assigned Judge. In the matter of the probate of the last will of Enos Nichols, deceased. Petition by Etta Phebus and others for probate of alleged lost will, opposed by S. C. Vinson, administrator and others, begun in the county court and appealed to the superior court, from whence it was transferred to the district court. There was a decree denying probate of the alleged lost will, and proponents bring error.

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Norman Barker against the Campbell-Ratcliff Hand Company and another. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Cleveland County; F. B. Swank, Judge. Action between Herman Turk and Albert S. Page. There was a judgment for the latter, and the former brings error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Petition by J. H. N. Cobb for admission to probate of the alleged last will of Mary Hut-ke, deceased, opposed by Samuel' O. Davis, guardian of Lucy Buttons, and others, who tendered another instrument for probate. Probate of both instruments was denied, and appeals were taken to district court.

Error from District Court, Wagoner County ; W. J. Campbell, Assigned Judge. Mandamus proceedings by the State of Oklahoma, on' relation of G. D. Carl and others, against Howard Searcy and others. There was a judgment in favor of relators, and respondents bring error.

<p>(Syllabus by the Court.)</p> <p>1. Licenses — Uniformity—Validity of Ordinance — Oemipaiioji Tax on Taxicabs.</p> <p>Amended section 22 of Ordinance 430 of the city of Pawhuska, imposing a license tax upon the business and occupation of transporting passengers for pay in automobiles or other motor-propelling vehicles upon and over the streets, alleys, and other public places of the city, and upon all those engaged in such business or occupation, and which -tax is fixed at $25 per annum for each automobile operated and engaged in such business, being, as stated in the ordinance, “for the purpose of raising revenue for said city,” and not an exercise of the police power, is in conflict with section 8, art. 4, c. , 173, of an act of the Legislature approved March 15, 1915 (Sess. Laws 1915, pp. 328, 329), and, on account of such repugnance, cannot be enforced.</p> <p>2. Habeas Corpus — ‘Illegal Conviction — Discharge.</p> <p>A conviction had and jail sentence imposed in default of the payment of fine assessed by the police court of the city, under the circumstances disclosed in the preceding paragraph, is without force; and one so convicted is entitled to a discharge from such illegal restraint.</p> <p>3. Licenses — Construction of Statute — Occupation Tax on Taxicabs.</p> <p>Neither section 581, Rey. Laws 1910, nor the city ordinance for the violation of which the petitioner was convicted contemplates the regulation or control of the business or traffic of transporting passengers for hire within and over the streets and public places of the city, but, on the other hand, provides for a license tax for revenue, as distinguished from a license fee collected on account of necessary police regulation.</p> <p>4. Same.</p> <p>Under section 8, art. 4, c. 173, Sess. Laws 1915-, local authorities, such as cities, may “regulate vehicles offered to the public for hire,” and in doing so may impose a license or fee when the purpose thereof is an exaction of regulation. But when the primary object of the local legislation is to afford a revenue, the ordinance pursuant to which the same is levied is invalid, and cannot be enforced.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by John W. Davis against E. B. Kinzer to try .title to land allotted to plaintiff. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>Licenses — Occupation Taxes on Taxicabs.</p>

<p>(Syllabus by the Court.)</p> <p>Licenses — Gtecupation Tax on Taxicabs.</p>

Error from District Oourt, Tillman County ; Frank Mathews, Judge. Action by the Board of County Commissioners of Tillman County against L. F. Wilson and O. W. Morgan, partners, doing business as Wilson & Morgan, and others. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Washington County; R. H. Hudson, Judge.</p> <p>Action by the State of Oklahoma to es-cheat real property of the Prairie Oil & Gas Company. Judgment for defendant, and the State prosecutes error.</p>

<p>Error from District Court, Hughes County; John Caruthers, Judge.</p> <p>Action by H. H. Diamond against Joel A. Culver, I. J. Culver, and E. C. Adlridge, Judgment for plaintiff, and defendants Cul-ver bring error.</p>

<p>(Syllabus by the Court.)</p> <p>Licenses — License Tax — Automobiles—Valid-ity of Ordinance.</p> <p>Revised Laws 1910, see. 581, authorized the city of Oklahoma City to levy and collect a license tax on certain occupations, of which the occupation of petitioner was not one, and also a license tax on omnibuses, carts, wagons, and other vehicles. Pursuant to section 1, art. 4, of the city charter, the city passed an ordinance levying a license tax upon certain occupations, and, among other things, providing: “See. 748. The license tax hereby levied under this ordinance shall be in the following amounts, to wit: « * *” “Sec. 753. Eách automobile offered or used on the streets of said city for hire, twenty-five ($25.00) dollars per year. * * *” Held, that such tax is not an occupation tax on the business of petitioner, but a license tax upon the owners of automobiles for the privilege of operating upon the public streets of the city, and that, he having paid the state tax imposed by General Highway Law 1915, e. 173, upon the automobiles used in his business of transporting passengers and their baggage for hire, said section of the ordinance was annulled by section 8 of said act, and petitioner is discharged.</p>

<p>Original proceeding, on the relation of Sam P. Render, to disbar Sam Hooker and Elmer L. Fulton, attorneys and counselors at law.</p>

Error from District Court, Pontotoc County; Tom D. MeKeown, Judge. Suit by the St. Louis & San Francisco Railroad Company and others against the City of Ada, a municipal corporation, and others. Judgment for defendants, and plaintiffs bring error.

Error from District Oourt, Oklahoma County; W. R. Taylor, Judge. Action by J. W. Arnold against Ed Gam-brel and the Gambrel Cotton Company, alias the Gambel Cotton Company, with garnishment by the State National Bank of Oklahoma City, and an attachment of cotton in hands of the Gulf, Colorado &. -Santa Fe Railway Company, in which the Bank of Paoli and Higgins & Campbell, a copartnership composed of J. M. Higgins and - Campbell, intervened.

<p>Error from District Court, McClain County ; R. McMillan, Judge.</p> <p>Suit by William E. Caldwell against Frank D. Stevens. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Carter County; 5. H. Russell, Judge.</p> <p>Action by Newton Kelsay against the Kel-say Land Company and W. P. Terrell. Judgment for defendant Terrell, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Insurance — Substitution of Policies — Fitaud — SXescis.saion — Lacjhes—'Sufficiency of Petition.</p> <p>A contract between an insurer and an insured involving a substitution of one for another policy of life insurance is intrinsically fiduciary, and necessarily calls for perfect good faith and full disclosure on the part of the insurer.</p> <p>(a) Where, in such contract, the policy surrendered by the insured was based upon the assessment, or flexible premium, plan of insurance and the policy received by him ih lieu thereof was based upon the legal reserve, or fixed premium, plan of insurance, and where, in such contract of substitution, the insured signed a separate writing, acknowledging an indebtedness in the form of a “loan” to be a lien upon the new policy as security for the same, on account of assessments qgainst him under the old policy, the policy and the separate writing are parts of a single contract. • .</p> <p>(b) Where, in such case, the insured is unable to read because of defective eyesight, and the insurer, upon whom he rightfully relies for information, represents to him, without mentioning any fact disclosed by such separate writing, that upon his death the amount specified in such new policy will be paid, such representation is false, in that it is not qualified by-information to the insured that the obligation to pay under the new policy is subject to the provisions of said separate writing.</p> <p>(c) Where, in such case, the insured, in ignorance of the character of such separate writing, enters into such contract of substitution and ' signs such separate writing in rightful reliance upon such false representations as to the contract as a whole, he is entitled to a rescission of the same as fraudulent under the provisions' of section 892, Stats. 1890 (section 984, Rev. Laws 1910), in view of the character, of such contract and the opportunities it afforded for his signa.-ture to writings appropriate to the same, notwithstanding his inability, for want of memory, after a lapse of about ten years, during which he believed such contract, as a whole, was as so represented to him, to allege what additional representations more immediately and specifically directed to such separate writing and to his act of signing the same, were made to him, except that he alleges that they were false and fraudulent and, in effect, that they were not inconsistent with and did not qualify the aforesaid false representations as to the contract as a whole.</p> <p>(d) Since'it is not essential to plaintiffs’ right to rescind in such ease 'under said section of the statutes that they allege all the false and fraudulent representations made to the insured as inducement to the execution of such contract, it is reversible error to sustain a general demurrer to their petition, alleging, in effect, the foregoing false .and fraudulent representations, and suppression of facts, for want of allegations of what additional affirmative fraudulent representation more immediately and specifically directed to such separate writing induced the insured to sign the same.</p> <p>(e) A petition for such rescission, filed on November 15, 1915, and alleging the foregoing facts, and further showing that on March 7, 1914, the defendant, to whom said new policy had been sent to enable it to indorse thereon the fact of a certain loan of that date upon the security of such policy, at the same time indorsed upon said policy the fact of the indebtedness and lien evidenced by the aforesaid separate writing, and further, that plaintiffs did not have actual knowledge of ' the latter fact until January 24, 1915, does not show such laches as to be vulnerable to a general demurrer upon that ground.</p> <p>(f) Under the facts shown above, equity will not require an offer toy the plaintiffs to compensate the insured for the time he has had the protection of the policy issued in such fraudulent contract to entitle them to a rescission.</p> <p>(g) The recitals in such new policy that the same is in consideration “of the payment in advance of $317.20 and of the payment of a like amount on or before the 24th day of January and every year thereafter until premiums for twenty years were duly paid or until the prior death of the insured,” and that said policy was granted of a date nine years prior to its issuance, and, further, that such premium should be paid for 11 years only, and that the premium period would end on a specified date 11 years after the issuance of such policy, although apparently inconsistent in this respect, are not constructive notice to the insured that the surrender of such old policy and the promise to pay 11 premiums of $317.20 are not the sole consideration for the same.</p> <p>%. Same — Petition—Prayer for Relief.</p> <p>A petition, based upon fraud in a substitution of one for another contract of life insurance, which alleges facts entitling the plaintiffs to no relief other than an equitable rescission of such contract, will be deemed sufficient to show plaintiff’s right to the same, notwithstanding the prayer is for “the sum of $6,659.06, the items going to make up this Sum being the alleged value of policy No. 58303, together with interest thereon from January 24, 1905, and the several annual premiums paid on policy 167821, with interest thereon from the dates of payment,” * * * and for “the further sum of $5,000 • as exemplary or punitive damages,” for costs of suit, and “for all other proper relief.”</p> <p>(a) The prayer for relief is not conclusive as to the character of the petition nor as to the relief that the plaintiffs may be allowed to recover.</p> <p>3. Cancellation of Instruments — Adequate Remedy at Law.</p> <p>While courts of equity will not grant a rescission of a contract for fraud when the legal remedy for the same is plain, adequate, and complete, it will grant such relief where the legal remedy does not appear, in all respects, as satisfactory as the relief that may be furnished by a court of equity, as, for instance, where it may grant more complete relief by compelling the cancellation or surrender of the instrument fraudulently obtained.</p> <p>Turner, J., dissenting.</p>

<p>(Syllabus toy the Court.)</p> <p>1. Telegraphs and Telephones — Rates — Basis for Determination.</p> <p>What a telephone company is entitled to demand in order that it may have just compensation is a fair return upon the reasonable value of its property as a going concern, as distinguished from its physical value as a mere, naked plant. This value is not obtained by adding up a number of separate items, but by taking a comprehensive view of each and all of the elements of property, tangible and intangible, including property rights, and considering them all, not as separate things, tout as inseparable parts of one harmonious entity, and exercising the judgment as to the value of that entity.</p> <p>2. Same — Single Exchange — Value of Plant.</p> <p>Where, in a rate case against a telephone company whose lines extend throughout the state, it is charged that the exchange rates of a single municipality are unreasonable, the Corporation Commission in finding a basis for the adjustment of such rate should, as far as practicable, separate the valuation of the toll plant from the value of the exchange plant and equitably apportion between them the value of the property used in common in giving both classes of service.</p> <p>3. Same — Depreciation Fund.</p> <p>Where the evidence shows and the commission finds that the plant is kept in a high state of efficiency, and charges are made in rates for the purpose of counteracting or preventing depreciation by replacement, no necessity exists for building up a fund to be used for the purpose of counteracting purely theoretical depreciation.</p> <p>4. Corporation Commission — Appeal — Constitutional Provisions.</p> <p>Section 22, art. 9, Williams’ Constitution, provides: “In no case of appeal from the commission, shall any new or additional evidence be introduced in the Supreme Court. * * * The Supreme Court shall have jurisdiction, on such appeal, to consider and determine the reasonableness and justness of the action of the commission appealed from, as well as any other matter arising under such appeal: Provided, however, that the action of the commission appealed from, shall be regarded as prima facie just, reasonable, and correct; but the court may, when it deems necessary, in the interest of justice, remand to the commission any ease pending on appeal, and require the same to be further investigated by the commission, and reported upon to the court (together with a certificate of such additional evidence as may be tendered before the commission by any party in interest), before the appeal is finally decided,”</p>

<p>Original application by John W. Lee for a writ of mandamus to William M. Franklin, as Clerk of the Supreme Court of the State of Oklahoma.</p>

<p>(Syllabus by the Court.)</p> <p>1. Attorney and Client — Di sbarment — Conviction of Felony.</p> <p>Under the first subdivision of section 252, Rev. Laws Okla. 1910, the conviction of an attorney at law of a felony under the statutes of Oklahoma is sufficient cause for revocation of said attorney’s license to practice law in this state.</p> <p>%. Same — Sufficiency of Evidence.</p> <p>The report of the' referee and the evidence examined, and found to fully support the findings of fact by the referee. Under the facts so found the said respondent, Earl R. Horine, should be and is hereby disbarred, and his license to practice law in the state of Oklahoma revoked.</p>

<p>Original proceedings by the Bar Commission of the State of Oklahoma, for the disbarment of Linus A. Williams and W. A. Corley.</p>

Plaintiff, having submitted his cause to the jury in the trial court on the issue of former adjudication, will not jbe permitted to change his theory and urge, for the first time in this court, the damages were not proper subject for counterclaim. Error from District Court, Tillman County; Frank Mathews, Judge. Action by William Mahaffey against Ben Brisley and others. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Taxation — Legislative Powers — Constitutional Provisions.</p> <p>Section 20, art. 10, Williams’ Annotated Constitution, providing that “the Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws confer on the proper authorities thereof, respectively, the power to assess and collect. such taxes,” does not constitute a limitation upon the powers of the Legislature to impose taxes in which the state has a sovereign interest, although of a municipal character, such as taxation for police protection, for streets, highways, and bridges, for the purpose of establishing and maintaining a public school system, etc.</p> <p>2. _ Counties — Taxation — Levy by Excise " Board.</p> <p>The members of the excise board are officials of the county, chosen by the electors thereof, and taxes levied by them for county purposes are levied in theory and in fact by the proper officials of said county.</p> <p>3. Municipal Corporations — Taxation — General Laws.</p> <p>The provisions of the charter of the city of Muskogee in so far as they regulate the method of levying and collecting taxes for purely municipal purposes prevail over the general laws of the state in reference thereto in so far as said general laws are in conflict therewith.</p> <p>4. Counties —- Taxation — Excise Board — Record.</p> <p>Section 7380, Rev. Laws 1910, which requires the excise hoard to keep a record of its proceedings, is directory, and when a tax is in fact levied as required by law, the failure to keep a record thereof will not invalidate such tax, and the fact that a levy was made may be shown by other evidence.</p> <p>5. Taxation — Levy and Assessment — Validating Statute.</p> <p>Chapter 184, Session Laws 1913, p. 413, legalizes and makes valid all levies and assessments of taxes for the various counties, cities, townships, towns, and villages of the state for the fiscal year ending June 30, 1913, as if all acts required by the statutes of the state in relation to the levy and assessment thereof had been fully and completely complied with.</p> <p>6. Taxation — Action to Recover Taxes— Application of Statute.</p> <p>Section 7, art. 1, c. 240, Session Laws 1913, requiring the payment of taxes claimed to be illegal by reason of some action from which no appeal is provided, and requiring notice to the collecting officer, showing the grounds of complaint, and authorizing the taxpayer to bring suit within 30 days for the recovery thereof, does not apply to an action commenced before its passage and approval.</p> <p>7. .Taxation — Assessment — Relief — Conditions.</p> <p>In all matters pertaining to taxation a party who seeks equitable relief against an assessment of which he complains must himself offer to do equity. He must offer to pay the amount of taxes which the facts show would be properly chargeable against him under a proper assessment.</p>

Error from District Court, Seminole County; Geo. C.' Crump, Assigned Judge. Action by AVilliam Laramour against Don Campbell. Judgment for plaintiff, and from an order setting aside the judgment he brings error.

<p>(Syllabus by the Court.)</p> <p>,1. Trial — Instructions—Uncontroverted Evidence.</p> <p>When the uncontroverted evidence showed certain facts to be true, it was not error for the court to so instruct the jury.</p> <p>2. Negligence — Instructions — Province of Jury — Contributory Negligence. -</p> <p>The defense of contributory negligence is at all times a question of fact for the jury, under article 23, sec. 6, Williams’ Annotated Constitution, and the court should not instruct the jury that a certain fact or circumstance or a given state of facts or circumstances do or do, not constitute contributory negligence.</p> <p>3. Damages — Excessive Damages — Injury to Arm.</p> <p>Evidence examined, and verdict held not excessive.</p>