Volume 69 — Oklahoma Reports

<p>1. Appeal and Error — Extension Order'— Construction — “60 — 10—5 to Make and Serve Case-Made.”</p> <p>Where tlie recital in tlie record «Blowing Hie order of the trial court extending the time for making and serving case-made is “60 — 10—5 to make and serve case-made,” such recital is commonly understood by the bench and member® of the bar to mean 60 ■ days given to appellant in which to prepare and serve a case-made, 10 days for appellee to suggest amendments, and 5 days’ notice to be given by either side for the settling and signing of a case-made, and such recital of order extending time within which to make and serve case-made is sufficient.</p> <p>2. Evidence — Parol Evidence — Contradiction of Terms of Writing — Proof of Cotemporaneous Oral Contracts.</p> <p>While parol testimony is inadmissible to change or contradict the terms of a written contract, yet a parol contract may be made between the parties cotemporaneously with the execution of the written agreement, providing it is separate and independent, and its terms in no way conflicting with or contradictory to the written stipulation. Thus, where the plaintiff sold to the defendant a piano at a stipulated; price to be paid a certain amount down and the balance in installments, and the plaintiff retaining title to the same until the full amount was paid, the terms of the sale being evidenced by a written contract, it is competent for the defendant. to show by parol evidence in an action for the balance due on the purchase price -that the plaintiff and the defendant entered into a cotemporaneous parol agreement. whereby it was agreed that tbe defendant might pay for the piano in hauling for the plaintiff, and that the plaintiff breached the parol agreement by refusing to furnish the defendant hauling as provided for in the parol agreement, as the parol agreement did not contradict or vary the written contract, except as to the manner c* : arment, which could he shown by parol.</p> <p>('Syllabus by Pryor, O.)</p>

<p>1. Pleading — Allegation of Agency — Failure to Deny Under Oath — Effect as Admission.</p> <p>Under section 4759, Rev. Daws Otela. Si910, a general allegation of authorized agency, will ibe presumed to be an agency with full powers legally conferred, and the failure to deny such allegation under oath is equivalent to an admission in the answer, and no further proof of the agent’s authority is required.</p> <p>2. Mortgages — Tender — Effect to Extinguish Lien.</p> <p>A tender -of a mortgage debt in order to extinguish the mortgage lien must be made by one having the right, to make it, and cannot be made by a stranger.</p> <p>3. Same — Sufficiency of Tender.</p> <p>At the time tire tender is made, if not made by the original mortgagor, it ¡must clearly and unequivocally toe made known to the tenderee that the tenderer is a person haring the legal right to make the tender, and that all the rights of the mortgagor Will be protected by an acceptance of the money and the discharge of the mortgage.</p> <p>(Syllabus by Robberts, CO</p>

Error from County Court, Atoka County; W. M. Rainey, Judge. Suit by J. H. Buff against TV. F. Clark. From a judgment in the county court in fav- or of the plaintiff, on appeal from a judgment in justice’s court for defendant; defendant brings error.

<p>1). Carriers — Interstate Shipment of Live Stock — Suit ' for Damages — Conditions Precedent.</p> <p>A provision in a contract with the carrier for an interstate shipment of live stock, “That, as a condition precedent to the bringing of any suit for damages for any loss or injuries to the person or persons or property covered by this contract, the claimant shall give notice in writing of the claim for such' damages to some general officer, claim agent, or station agent of the said first party, not later than 90 days after the date of the loss or injury claimed, and a failure to strictly comply with this provision shall be a bar to a recovery to any and all damages occasioned to the person or -persons or property embraced in this contract,” is reasonable and valid, and no action can be maintained by the shipper for damages for loss or injuries occasioned by said shipment without showing a substantial compliance with the requirements of said provision as to notice. '</p> <p>2. Same — Claim for Damages — Evidence.</p> <p>The evidence and all the reasonable inferences to be drawn therefrom held to be insufficient to justify the court in submitting this cause to the jury upon the issue of a substantial compliance with the provision of said contract.</p> <p>(Syllabus by Hooker, O.)</p>

<p>1. Insurance — Agency Contract — Action — Evidence.</p> <p>In an action to recover damages for the wrongful breach of a contract of employment by a life insurance company of the plaintiff, as manager to solicit individually and through agents appointed by 'him life insurance for said company, which contract provided that, if the plaintiff should fail during any month to tender to the company accepted and paid-for applications for insurance to the amount of $12,000, the contract might at the option of the company-become null and void and cease and determine, evidence examined, and held, to be insufficient to show any 'breach of the contract upon the part of the defendant insurance company, or any actionable wrong upon the part of said defendant insurance company in exercising its option to abrogate said contract.</p> <p>2. Contracts — Insurance — Agency — Contracts — Modification.</p> <p>The payment by one member of a partnership, acting- as managers for a life insurance company of a shortage due said life insurance company, incurred through the fault of another partner, is not a consideration to support an agreement on the part of said life insurance company to modify an existing written contract.</p> <p>(Syllabus by Rummons, 0.)</p>

Error from District Court, Muskogee County ; R. P. De Graffenried, Judge. Action by Guy T. Berry against O. F. Parks. Transferred to the district court, and, after the death of O. F. Parks, revived in the name of his administratrix, Laura Parks, and heirs. Judgment for plaintiff, and defendants bring error; and, from a judgment decreeing lien in favor of defendants, plaintiff brings error.

Error from Superior Court, Muskogee County; Farrar L. McCain. Judge. Proceeding on a supersedeas bond by Rachel Edwards against George K. Powell and the National Surety Company. Demurrer to petition overruled, judgment for plaintiff, and defendants bring error.

Error from District Court, Tillman County ; Frank Mathews, Judge. Action by William Schenbeck against the First National Bank of Grandfield, Okla., Armour & Co., and J. C. Eversole. Judgment for defendant bank and for Armour & Co., and plaintiff brings error.

<p>Trial — Directing Verdict.</p> <p>‘‘The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it.”</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. Fraud — “Fraudulent Misrepresentation—</p> <p>The gist of a fraudulent misrepresentation is the producing of a false impression upon the mind of the other party, and if this result is actually accomplished, the means of producing it are immaterial.</p> <p>2. Same — Actionable “Fraud” — Elements.</p> <p>To constitute actionable fraud there must be made to appear, first, that the defendant made a material misrepresentation.; second, that it was false; third, that when he made it he knew it was false and made it recklessly without any knowledge of its truth or-as a positive assertion; fourth, that he made it with the intention that it should be acted upon by the' other; fifth, that the party to whom it was made acted in reliance upon it; and, sixth, that injury was suffered thereby.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Payne County; A. H. Huston, Judge. Action by C. P. Autry and another against Clayton S. Smith and another. Judgment for plaintiffs for damages and for equitable relief, and defendants bring error.-

<p>Error from District Court, Carter County ; W. F. Freeman, Judge.</p> <p>Action by Texie Coleman against Robert Sweeney and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Courts — Exclusive Jurisdiction! — Receivership — Royalties.</p> <p>Where th-e United States, in the District Court for the Eastern District of Oklahoma, had filed suit to avoid an .allotment and patent, and the parties, claiming an interest in said allotment and patent as heirs and lessees, having -answered in said suit, and, upon application of both, the parties plaintiff and defendant, a receiver had been appointed to cause and direct the production of oil and gas from the land in question, and ordered and -directed to make a formal agreement for the development of, the land and the production of oil and gas therefrom, whereby the -lessee should deliver or pay to the receiver one-fourth of all oil and gas produced from the land, and said receiver was directed to release to -said lessee, free from any claim of any parties to the action, the remainder of the oil and gas produced — that is, three-fourths being the working interest therein — and the- receiver • had made such agreement as directed by the court, held, that said court acquired jurisdiction of the specific property by taking possession thereof by its receiver, would thereby withdraw said property from the jurisdiction of every other court, and was entitled to retain the control of it until it completely effectuated its judgment or decree in the suit free from the interference of -every other tribunal, and that J., a lessor, who had made a lease which was held under assignment -by B. P. Co., the same company to which- the receiver leased said property, and the said lessor, J., having filed a plea in intervention; in said suit, in the United States court, setting up his claim in and to the property in question and his interest in the oil rights therein, and praying for an adjudication as claimed by him, and then assigned bis interest to his claim in the oil rights to S., that S. could not, during the pendency of the suit in the United States court, litigate his claim- to the royalty by virtue of the assignment to him. from j. in fcb-e State court.</p> <p>(Syllabus by West, O.)</p>

<p>Municipal Corporations — Street Improvements — Assessments—Tax Bills — Assignment — Foreclosure.</p> <p>A municipal corporation having adopted a charter form of government, as provided by law, may, under section 7, art. 10, of the Oklahoma Constitution, and the provisions of its charter and ordinance enacted in pursuance thereof, levy and collect assessments for street improvements, and fix the amount thereof as a lien on abutting property in proportion to the accruing benefits regularly ascertained, and may issue and deliver to the contractor in payment of his claim for making such improvements written evidence of the amount thereof, designated “tax bills,” the same may be made to bear interest at 7 per cent, per annum, and provide for the payment of a reasonable attorney’s fee in case of legal proceedings to collect the same, and such certificate may be assigned and the lien which it evidences may be foreclosed by the assignee, and the property sold to satisfy the same.</p> <p>(Syllabus -by Galbraith, C.)</p>

Error from District Court, Pontotoc County; Charles T. Barney, Special Judge. Action by W. C. Rollow against J. F. Price, Curtis Grayson and wife, and others. Judgment for plaintiff, and certain defendants bring error.

<p>1. Fraud — Admissibility of Evidence— Scope.</p> <p>In determining the existence of fraud, any evidence, direct or circumstantial, which is competent hy other rules of. law, and which in the opinion of the court has a legitimate tendency to prove or disprove the allegations in the issue, is admissible. Great latitude is allowed in the introduction of evidence; the extent of the investigation being largely in the discretion of the trial court. The whole transaction involving the alleged fraud may be given in evidence.</p> <p>2. Fraud — Sale of Property — Action *»r Damages.</p> <p>A person induced by false and fraudulent representations to purchase or exchange his property may retain that which be bas received and bring an action at 'aw f,v •■••over the damages sustained by reason of his reliance upon the fraudulent representations</p> <p>3. Evidence — Prior Agreements — Merger in Written Contract.</p> <p>Fraud and deceit always may be timely raised and vitiate any contract into which they are injected, and destroy the validity of everything into which they enter, aud the party cannot hide behind a contract procured in the general scheme of his misconduct with the assertion that all representations whether false or otherwise made previous to a written conraet are merged therein.</p> <p>4. Appeal and Error — Harmless Error — Improper Argument — Objection.</p> <p>The erroneous refusal of a trial court to sustain an objection to improper argument will not require a reversal of a ease unless the same has probably resulted in a miscarriage of justice or constitutes a substantial violation. of a constitutional or statutory right.</p> <p>(Syllabus by West, C.)</p>

Error from District Court, McClain County; R. McMillan, Judge. Action by Grace E. Shepherd, as admin-istratrix, against Charles R. Allen and others. Judgment for plaintiff, and defendant Allen brings error.

Error from District Court, Wlashington County; R. I-I. Hudson, Judge. Action by Alfred Dodge Hill, a minor, by Erank L. Hill, his guardian, against William James .Burnett, a minor, by Bates B. Burnett, his guardian. Judgment for defendant, and plaintiff brings error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by George Drew against the First National Bank of Haskell. Judgment for defendant, and from an order granting a new trial it brings error.

<p>1. Taxation — Delinquency — Penalty — Notice.</p> <p>Giving notice by the county treasurer to the owner of the amount of taxes due, provided by secion 2, c. 73, Sess. Laws 1910, as amended by section 1, c. 120, Sess. Laws 1910-11, determines the delinquency of the taxes and is essential to the accrual of the penalty and the collection of the same.</p> <p>2. Taxation — Tax Deed — Vaidity — Penalty for Delinquency.</p> <p>Where such notice has not been given, a tax deed, which includes the penalty for delinquency with the taxes du» although otherwise regularly issued, is unauthorized and ineffectual.</p> <p>(Syllabus toy Galbraith, C.)</p>

<p>Error from County Court, Payne County; W. R. Jones, Judge.</p> <p>Action by Chris Glacken against R. N. Andrew. Judgment for defendant on the pleadings, and plaintiff brings error.</p>

Error from Eish-ict Court, Greer County; W. A. Edwards, Judge. Action of «forcible entry and detainer by Win. Thur against Elisha Morgan. Judgment for plaintiff in justice’s court, and from a judgment of the district court, .dismissing an appeal, defendant brings error.

Error from District Court, Blaine County; James R. Tolbert, Judge. Action by the Citizens’ State Bank of Okeene, Okla., against E. E. Cressler, David R'usch, and others to foreclose a mortgage and for personal judgment on a note. From a judgment in favor of defendant David Rusch, plaintiff brings error.

Error from District Court, Jefferson County; Cham Jones, Judge. Suit by F. E. Driskill, guardian of Harold Stidham, a minor, against B. O. Quinn and others. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Bryan County; Jesse M. Hatchett, Judge. '</p> <p>Actions by Marcus L. Taylor against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiff, and the denial of petitions for a new trial and for the vacation of the judgment, defendant brings error.</p>

<p>1. Guardian and Ward — Pleading—Guardian’s Right of Action -- Admission by Unverified Answer.</p> <p>When a petition avers that the plaintiff is the duly appointed, qualified, and acting guardian of certain minors, to which an unverified answer is filed, such guardianship is admitted, and such guardian in her own name may maintain an action for property belonging to her wards without joining them as parties in the action.</p> <p>2. Pleading — Judgment on Pleadings — Insufficient Answer.</p> <p>AVhere an action is brought upon a promissory note, and an answer thereto filed, which is not verified, and which does not set up any setoff or counterclaim or other legal defense, judgment on the pleadings may be properly entered for the plaintiff.</p> <p>3. Guardian and Ward — Action — Abatement — Grounds.</p> <p>Where an action is brought by a guardian on a promissory note made to her as such guardian, the fact that her wards prior to the bringing of the action upon such note reached their majority or have married is not a defense to said action or ground for its abatement.</p> <p>4. Mortgages— Foreclosure — Personal Judgment.</p> <p>In an action to foreclose a mortgage made by a husband and ,wife to secure an indebtedness alone of the husband, foreclosure of such mortgage may be decreed against both the husband and wife, without rendering a personal judgment against the wife, notwithstanding no consideration moved to the wife.</p> <p>5. Bills and Notes — Attorney’s Fee — Allowance-Taxation as Costs.</p> <p>When 10 per cent, attorney’s fee is provided in a promissory note, if the jury fail to allow it, it is the duty of the trial court so to do, and this may be done by including the amount of such fee in the judgment proper, or by taxing such fee as a part of the cost.</p> <p>6. Same — Inclusion in Judgment.</p> <p>AVhen a 10 per cent, attorney’s fee is provided in a promissory note, it is better practice to include such fee in the judgment proper, than to tax such fee as a part of the costs.</p> <p>7. Pleading — Judgment <>n the Pleadings— Allowance.</p> <p>An examination of the pleadings in this case discloses that the trial court did not err in sustaining plaintiff’s, motion for judgment on the pleadings.</p> <p>8. Appeal and Error — Affirmance—Judgment Against Sureties on Supersedeas Bonds.</p> <p>This court upon affirming a judgment against an appellant cannot, under chapter 249, Sess. Laws 1915, also render judgment against the sureties upon a supersedeas bond, conditioned as provided by subsection 3, § 5251, Rev. Laws 1910; given in the case.</p> <p>(Syllabus by Collier, O.)</p>

Error from County Court, Creek County; Vick S. Decker, Judge. Action by Eva Brumley and Mrs. Flossie Martin against the Bristow National Bank and Rufe Alcorn. Judgment for the plaintiffs, and defendants bring error.

Error from District Court, Garfield County; James B. Cullison, Judge. Suit for injunction by Henry Oelerking against R. A. Hiatt, president, and others constituting the board of education of the town of Daboma, Okla., .School District No. 61 of Garfield County. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Muskogee County; R. P. De Graffenried, Judge.</p> <p>Action by W- H. Jackson against the National Bank of Commerce of Porum, Okla. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Canadian County; Edward Dewes Oldfield, Judge.</p> <p>Suit by the Emerson-Brantingham Implement Company against Christ Ritter. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Beckham County; G. A. Brown, Judge.</p> <p>Action by the Oklahoma State Bank of Sayre against Janies T. Seaton and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Compromise and Settlement — Disputed Claim . —Consideration.</p> <p>Where the amount of a claim is in good faith disputed and the parties interested therein enter into a compromise agreement, the same is a sufficient consideration to uphold the settlement, and the compromise and agreement of settlement thus made constitutes a bar to any further recovery thereon.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court,. Harper County ; W. C. Crow, Judge. Action by the Bank of Harwood against Sallie E. Gibson and Geo. H. Gibson and the First National Bank of Nevada, Mo., in which S. J. Cooper intervened. Judgment for the defendants and against the intervener for costs, and he appeals.

<p>BaiLUng and Loan Associations — Bid for Loans — Premiums — Statute— Interest —Usury.</p> <p>The syllabus in .¡Etna Building & Loan Association v. Lillie A. Harris et al., 67 Okla. 257, 170 Pac. 700, is adopted as a syllabus in tliis case.</p> <p>(Syllabus by Pope. C.)</p>

<p>1. Fraudulent Conveyances — Voluntary Conveyances — Trust—Validity.</p> <p>! A voluntary conveyance of real estate in trust for the use and benefit of a minor child of the grantor and his divorced wife, made at a time when the grantor is in good financial condition, will not be set aside by a creditors’ bill brought by a creditor to whom the grantor was under no financial obligation at the time of the execution and recording of the deed.</p> <p>2. Appeal and Error — Question of Fact-Review.</p> <p>Facts in the instant case as shown in the opinion examined, and held that, the judgment not being clearly against the weight of the evidence, the refusal of the trial court to give the equitable relief prayed for will not be disturbed.</p> <p>(.Syllabus by Stewart, C.)</p>

<p>1. Bills and Notes — Allegation of Indorsement — Answer—Issue.</p> <p>An allegation by the plaintiff of indorsement of bills of exchange is not put in issue by a verified allegation in the answer that defendant “denies that the -bills of exchange were transferred and indorsed to said plaintiff for a valuable consideration before maturity.’’</p> <p>2. Bills and Notes — Indorsement — Consid-. eration. .</p> <p>An indorsement of a negotiable instrument by the payee of itself imports a valuable consideration.</p> <p>3. Bills and Notes — Indorsement—Time— Pre umption.</p> <p>When the indorsement of a negotiable instrument is not dated, the indorsement and negotiation is presumed to have been made before maturity.</p> <p>4. Bills and Notes — Indorsement — Rubber Stamp — Authority — Presumption-Verification.</p> <p>An indorsement of the name of the payee on a bill of acceptance by means of a lubber stamp is sufficient, if such indorsement, was made 'by authority of the payee, and there is no presumption of want of sucfe authority when the indorsee in a suit oij Hie instrument alleges due indorsement such allegation being taken as une. unless the denial thereof is duly verified,</p> <p>('Syllabus by Stewart, C.)</p>

Error from District Court, Grady County ; Cham Jofies, Judge. Action by W. - J. Thompson and another agíiinst F. E. Riddle and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Rogers County : AV. J. Campbell, Judge. Action by J. B. Shirley against the Producers’ Supply Company and others. Judgment for plaintiff, and defendant named brings error.

<p>Error from District Court. Stephens County; Frank M. Bailey, Judge.</p> <p>Action by A. B. Ferguson against C. T. Lawrence. Judgment for defendant, and plaintiff brings error.</p>

•Error from Distiict (Vurt, Oklahoma County; AY. R. Taylor, Judge. Action by D. C- Pryor against Charles McCafferty, County Treasurer, and the Board of County Commissioners, consolidated (with action by C. D. Andrews against Charles - McCafferty, County Treasurer. Judgments for defendants, and plaintiffs bring error.

<p>Error from District Court, Osage County; R. H. Hudson, Judge.</p> <p>Action by Henry C'ox against the Midland Valley Railroad Companju Judgment for plaintiff,- and -defendant brings error.</p>

Error ¡from Oounty Court, Okmulgee County; Mark L. Rozarth, Judge. Action by John R. Yollentine, as plaintiff, against J. II. McEwen and W. M. Hew1-itt, as defendants. Judgment for jilaintifi'. and defendants bring error.

Error from District Court, Major County ; James TV. Steen, Judge. Action by Lula Costa, administratrix of the estate of Burley D. Costa, deceased, against the Kansas City, Mexico & Orient Railway Company and J. O. Davidson and others, receivers. Judgment for plaintiff, and defendants bring error.

<p>Error from County Court, Ellis County; A. L. Squire, Judge.</p> <p>Replevin by the Farmers’ & Merchants’ Bank against Amanda J. Hankins1. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error — Failure to File Brief— Reversal.</p> <p>First paragraph of the syllabus in Phillips v. Rogers et al., 30 Oida. 99, 118 Pac. 371, adopted herein.</p> <p>(Syllabus by Galbraith, C..)</p>

Error from County Court, Seminole County ; A. S. Norvell, Judge. Action by Charles T. Bates against C. P. Jackson. Prom a judgment of the county court for plaintiff, on appeal from a verdict in justice court for plaintiff, defendant brings error.

Error from District Court, Hughes County ; John Caruthers, Judge. Action between the Chicago, Rock Island & Pacific Railroad Company and B. IV. Mack-ey, County Treasurer of Hughes County, and another. Judgment for the latter, and the former brings error.

Error from District Court, Oklahoma County: John W. Hayson, Judge. The relator, McDaniel Auto Company, brings action in mandamus against the respondent, Tom Bodine», County Clerk of Oklahoma County. From judgment awarding the peremptory writ, the respondent: appeals.

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by the Tulsa Rig- Reel & Manufacturing Company against John Hansel and others. Judgment for defendants upon a directed verdict, and plaintiff brings error.</p>

<p>1. Judgment — Control of Court During Term — Vacation or Modification.</p> <p>The judgments, decrees, or other orders of the court, however conclusive in their character, are undelr the dontrol of the coiirt which pronpnnees them during the term at which they were rendered or entered of record, and may then be set aside, vacated, or modified by the court.</p> <p>2. Appeal and Error — Discretion of Trial Court — Vacation of Orders.</p> <p>The setting aside and vacating of orders resits in the sound legal discretion of the trial court, and unless it affirmatively appears that the court abused its discretion in vacating a judgment of order of default, its decision will not be disturbed on appeal. Hence, in the absence of any showing of abuse of its discretion, the court’s order setting aside a default judgment and allowing the party against whom such order was entered to plead out of time will not be disturbed on appeal.</p> <p>3. Pleading — Striking Reply — Judgment on the Pleadings.</p> <p>Where the defendant attaches to his answer and cross-petition a verified account, which on its face shows that it is a joint liability against the plaintiff and a third party who is not a party to the action, and the defendant alleges in his answer and cross-petition that such account is a joint liability against the plaintiff and finch third party, and further alleges that the third party is the agent of the plaintiff, and the correctness of such account is denied by the affidavit of the third person in the reply of the plaintiff, it is not error for the trial court to refuse to strike the reply of the plaintiff for want of proper verification or to refuse to render judgment upon the pleadings.</p> <p>(Syllabus by Pryor, O.)</p>

<p>Appeal and Error — Trial—Review—Harmless Error — Instructions—issues.</p> <p>(a) “The insiructions of the court should he based upon issues as made by the pleadings and evidence, and should present the respective theories of the parties in accordance with the testimony offered in support thereof.” li. I. & P. Iiy. Co. v. Pitch-ford. -14 Okla. 199, 143 Pac. 1146.</p> <p>(b) An instruction which withdraws from the consideration of the jury a theory of a party properly presented under the issues formed by tlie pleadings and the evidence is prejudicially erroneous.</p> <p>(■Syllabus by Bloakmore.- C.)</p>

Error from District Court, Ouster County ; Thos. A. Edwards, Judge. Action by A. J. Welch against W. W. Church. From an alternate judgment of the district court, on -appeal from a judgment in the justice court, in favor' of the plaintiff, and from the overruling of a motion for a new trial, defendant brings error.

<p>Error from County Court, Tulsa County;J. W. Woodford, Judge.</p> <p>Action by J.- E. Blythe against - J. F. Hodges. Fi-om a judgment for plaintiff in the county court, on appeal from a judgment-for plaintiff -in a justice’s court, defendant brings error.</p>

Error from District Court, Okmulgee County; Ernest B. Hughes, Judge. Suit toy James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company, and the company, against M. Ryan, County Treasurer of Ok-mulgee County. Demurrer to amended petition sustained and petition dismissed, with judgment against plaintiffs for cost, and they bring error.

Error from District Court, Craig County; Preston, S. Davis, Judge. Prohibition by John ,B. Cheyne, administrator of the estate of James Welch, deceased, and Maud Welch, a minor, by John A. Daniels, her guardian, against the County Court of Craig County, and S. W. Parks, County Judge of Craig County, Okla., and others. Demurrer to petition sustained, and plaintiff bring error.

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by the Caylor Lumber Company, a partnership consisting of Floyd Cayl'or and R. A. Caylor, against Eva A. Ralls and others. Judgment for plaintiff, foreclosing the materialmen’s liens, and defendants bring error.

Error from County Court, Woodward County; Clyde H. Wyand, Judge. Action by C. W. Harrison against C. L. Lambert. Judgment for plaintiff, motion for new trial overruled, and defendant brings •error.

<p>Error from District Court, Cherokee County; John H. Pitehford, Judge.</p> <p>' Action by William M. Jones and others against the National Surety Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Banks and Banking — Franchises — Transfer.</p> <p>The -privileges of becoming and -being a corporation -and of transacting a hanking business under the laws of this state are fundamental franchises in their nature incapable of being imparted by any act of the incorporator-s of an unorganized banking-corporation to other individuals and any-attempt to so transfer them is void.</p> <p>2. Bills and Notes — Consideration—Transfer of Franchise.</p> <p>In an action by the payee against the makers! of a promissory note executed to one of the incorporators of an unorganized banking corporation, in consideration of the transfer by him to the makers of the primary franchises of being a corporation and engaging in the banking business, held, that, such franchises being incommunicable between the parties, the attempted transfer thereof "was ineffective, the payee parting with nothing, suffering no detriment, the makers receiving no benefit, and there was a total want of consideration for the note.</p> <p>(Syllabus by Bleakmore, C-)</p>

<p>Error from District Court, Cleveland County; F. B. Swank, Judge.</p> <p>Action by Mrs. E. J. Neale against J- A. Holmboe, doing business as tlie Holmboe Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Carter County ; W. F- Freeman, Judge.</p> <p>Action by E. W. Hesseniloiw against the Chicago, Rock Island & Pacific Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Bryan County; J. L. Rappolee, Judge. Application of the State of Oklahoma for confiscation of 100 gallons of whisky> two automobiles, one wagon and one team, one wagon sheet., and one skillet and one set of tug harness, with interpleader and claim by Mrs. H. Mlclnnes and the Coalgate State Bank. Prom a judgment of confiscation. Mrs. H. Mclnnes brings error.

<p>Error from District ’ Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by A. R. Gourley against H. O.. Lookabaugb. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Verdict or Findings —Conclusiveness.</p> <p>AVihere the evidence reasonably tends to support the verdict of the jury or the finding of the court, such verdict or finding is conclusive on this court upon appeal.</p> <p>2. Appeal and Error — Second Appeal— Law of Case.</p> <p>A question decided by the Supreme Court on a former appeal becomes the .law of the case in all its subsequent stages, .and will not ordinarily be reversed upon a second appeal of the same case, when the facts are substantially the same.</p> <p>3. Parties — Defendants—Action for Money Judgment.</p> <p>In a legal action, like the present, in which the plaintiff seeks only a money judgment, she cannot be compelled to bring in and to admit other parties than those whom she has chosen as defendants.</p> <p>(Syllabus by Galbraith, 0-)</p>

Error from County Court, Tulsa County; •T. W. Woodford, Judge. , Action by Abraham Ratkowsky against R. C. Brady. Judgment for plaintiff, motion for new trial overruled, and defendant brings error-

Error from District Court, Coal County; J. H. Linebaugb, Judge. Action by Charles May, Constable, against J. W. Boyle and tbe American Central Insurance Company, with cross-petition by defendant Boyle. Demurrer of American Central Insurance Company to tbe answer of cross-petition of defendant Boyle overruled, and judgment rendered for Boyle against tbe company, and it brings error.

<p>Error from District Court, Kay County; M. Bowles, Judge.</p> <p>Action by the Midland Savings & Loan Company against Elias Evans and others. Demurrer to plaintiff’s evidence sustained, ami it hring-s error.</p>

<p>1. Mechanics’ Liens — Materialmen’s Liens —Interest of Purchaser.</p> <p>A materialman who furnishes material to be used in the construction of improvements on premises to a party who is in the peaceable and lawful possession of said premises under and by 'virtue of an executory contract to purchase the same from the legal owner thereof has a lien upon the equitable interest of the vendee in said contract together with the building in the construction of which the material was used.</p> <p>2. Same — Interest of Vendor.</p> <p>The mere fact that the vendor in a contract for the sale of real property repurchases the interests of the vendee in such contract subsequent to the making of the improvements and furnishing of the material for which the lien is claimed does not enlarge the lien, so as to extend it to the' legal interest of said vendor.</p> <p>(Syllabus by Pryor, C.)</p>

<p>1. Appeal and Error — Supersedeas Bond —Accrual of Liability.</p> <p>After the time has expired for appeal, and the judgment has become final, and not paid, or otherwise stayed, an action will lie on a statutory supersedeas bond, conditioned for the payment of “the condemnation money and costs in case of (the) judgment or final order shall be adjudged against it,” even though the appeal has not been perfected, or fails for want of prosecution.</p> <p>2. Same — Effect of Time of Filing Bond.</p> <p>Where a supersedeas bond has been executed, filed, and approved by the clerk of ihe court in which the judgment was rendered after the time allowed by the court in which execution may be stayed pending the filing of the petition in error and case-made in the Supreme Court, and the plaintiff in error thereafter filed his petition in error and case-made in the Supreme Court, and has had the benefit accruing by virtue of the execution of said bond by a stay of said execution pending the disposition of his case in the Supreme Court, neither be nor his sureties will be permitted to deny liability upon said bond because the same was not filed within the time originally allowed by the court for the same -to be filed.</p> <p>('Syllabus by .Hooker, C.)</p>

<p>Error from County Court, Comanche County; H. N. W'halin, Judge.</p> <p>Replevin by D. E. MeAnaw against G...,:E-Williamson. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Comanche County; Cham .Tones, Judge.</p> <p>Action by Henry Schafer against the Midland Hotel Company and (!. H. Block. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Appeal and Error — Equity — Advisory Jury — Adoption of Jury’s Conclusions —Instructions.</p> <p>In cases of equitable cognizance, the judge may call a jury or consent to one for the purpose of advising him on questions of fact, and he may adopt or reject their conclusions; and instructions offered by the parties furnish no ground of error on appeal.</p> <p>2. Same — Reversal of Judgment.</p> <p>It is not. only the right but the duty of the court in such ca-'es to finally determine all questions of fact as well as of law, and, where the record shows that the court did not adopt the findings of the jury but especially disagreed therewith, a judgment of the court based on tbe findings of the jury must be reversed.</p> <p>3. Evidence — Secondary Evidence — Foreign Judgment.</p> <p>Parol evidence is inadmissible to prove the existence of a foreign judgment.</p> <p>(Syllabus by Hooker, C.)</p>

Error from County Court, Sequoyah County; W. B. Wall, Judge. Action between John E. Johnston, Sheriff of Sequoyah County, and another and Sallie Bradley. Judgment for the latter, and the former bring error.

<p>Error from District Court, Okfuskee County; Geo. C. Crump, Judge.</p> <p>Action by Annie King against W. F. Mitchell and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from: District Court, Pottawatomie County: Chas. B. Wilson, ’Jr.. Judge.</p> <p>Action by Jordan Drake against the City of Shawnee. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Kingfisher County; James B. Cullison, Judge. Action by Ely a E. Westlake against Henry Cooper, Robert Tutt, and others. Judgment by default against all the defendants except defendant Tutt, who answered, and recovered judgment, and plaintiff brings error.

<p>1. Bills and Notes — Negotiability — Purchaser as “Indorsee — Defenses..</p> <p>When a payee of a negotiable promissory note transfers it by indorsing thereon, “For value received I hereby guarantee payment of the within at .maturity, or any time thereafter, with interest at the rate of eight per cent, per annum until paid waiving demand, notice of nonpayment, and protest,” the purchaser is an indorsee within the rule protecting an innocent purchaser of such paper in due course for value, and before maturity against defenses good between the original parties.</p> <p>2. Case Overruled.</p> <p>The ease of Ireland et al. v. H. W. Floyd. 42 Okla. 609, 142 Pac. 401, L. R. A. 19150, 061, is expressly overruled.</p> <p>('Syllabus by Collier, C.)</p>

<p>1.Insurance — Fraternal Beneficiary Insurance — Statute.</p> <p>An association cannot establish its status as a fraternal beneficiary association under article 19, § 3, Const., chapter 38, Rev. Laws 1910, and chapter 205, Laws 1915, by merely showing that it has a ritual, local lodges, and a representative form of government; but the character of the business transacted, and not the mere formal work-•tags of the ■ organization, will fix its true status.</p> <p>2. Same — Chara cí er of Business — Certificates or Policies. ’ ’ ’</p> <p>In determining the character of business transacted by an association under article 19,- § 3, of the Constitution, chapter 38, Rev. Laws 1910, and chapter 205, Laws 1915, it is not error to take into consideration certificates o'r policies issued by the association other than the ones sued on. .</p> <p>3. Same — “Fraternal Beneficiary Association” — Exemptions — Statute. ;</p> <p>An association engaged in the business of writing 20-payment life, 10-payment life, 15-payment life, 20-year renewable term, old age benefit, 20-year. installment certificates, whole life 20-year installment, and 20-payment life, policies or certificates of insurance, although having a ritual, local lodges, and a representative form of government, is not a fraternal beneficiary association, within the purview of the Constitution and statutes of this state, and -is not entitled to exemption from the. provisions .of the insurance laws.</p> <p>(Syllabus by Pope, C.)</p>

. Error from County Court, Carter County ; Thomas W. Champion, Judge. Action by Guaranty State Bank of Ard-more, Okla., against the St. Louis & San Francisco Railway Company and ' others. Marsh Milling & Grain Company intervenes. Judgment for plaintiff, and inter-vener brings error.

Error from District Court, Osage County; R. H. Hudson, Judge. Action by Julius Mst and Emanuel Fist, doing business under the firm name of Julius Fist & Co., against Edna La Batte. Judgment for defendant, and plaintiffs appeal.

<p>Error from District Court, Oklahoma County; George O. Crump, Assigned Judge.</p> <p>Action by Mabel Thayer against Calvin D. Andrews and Dora J. Andrews. Judgment Tor plaintiff, and defendants bring error.</p>

Error from District Court, Tulsa County; Conn Linn, Judge. Application for the dissolution; of the Northrop-Bell Oil & Gas Company, with objection by Thomas A. Bell, a shareholder. Objection overruled, and corporation disv solved, and Bell appeals.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by Thomas A. Bell against the Northrop-Bell Oil & Gas Company and others. Demurrer to plaintiff’s evidence sustained, and judgment rendered for defendants, and plaintiff brings error.

Error from District Court, Pawnee County: Conn Linn, Judge. Suit to enforce an attorney’s lien by L. V. Orton and another against Maria Elliott, the First National Bank of Ralston, Okla., and another. Judgment for plaintiffs, and defendants bring error.

<p>Mechanics’ Liens — Contractor’s Bond — As, signment of Lien — Liability of Surety.</p> <p>Where a contractor makes bond conditioned for the faithful performance of his builder’s contract and to hold obligee free and harmless from all labor and materialmen’s liens occasioned upon the order of said ob-ligor or his agents, as well as all costs, including attorney’s fee, enforcing payment and collection of any claim incurred thereon, and providing that the bond is made for the use and benefit of all persons who may become entitled to liens under said contract according to the- provisions of law covering the same, and may be sued upon by them as if made directly to them, held, that, where liens are filed and assigned, and suit is brought upon said bond to enforce their payment, the said obligor and his sureties are liable for a reasonable attorney’s fee in enforcing the payment and collection of same.</p> <p>(Syllabus by West, C.)</p>

<p>Error from Superior Court, Tulsa County: M. A. Breckinridge, Judge.</p> <p>Action by W. J. Creekmore and another against the Globe & Rutgers Eire Insurance Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by Mollie A. Miller against the La-clede Oil & Gas Company. Judgment on default for plaintiff, and defendant appeals from judgment overruling petition for a new trial.

<p>1. .Appeal and Error — Pleading—Theory of Case Below — Change on Appeal — Objections.</p> <p>The parties to an action, having- presented their case, or defense, to the trial court upon a certain, definite theory, are bound thereby and will not be permitted to change the theory of the case, either at any subsequent stage in the trial court, or in the appellate court upon appeal.</p> <p>2. Appeal and Error — Questions of Fact— Review.</p> <p>In actions at law the finding and verdict of .the jury upon questions of fact, reasonably supported by the evidence, will not be disturbed by the appellate court.</p> <p>3. Electricity — Action for Services — Verdict —Sufficiency of Evidence.</p> <p>Record examined, and held, that the verdict is supported by the evidence.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>Error from District, Court, Stephens County; Cham Jones, Judge.</p> <p>Action by the Waggoner Bank & Trust Company against J. T. Doak. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Stephens County: Cham Jones, Judge.</p> <p>Action by Nellie B. Brown against the City of Duncan, Okla. Judgment for plain-1 iff, and defendant brings error.</p>

Error from District Court, Grady County; Will Linn, Judge. Action by Lida McFarland against Ed. Coyle, with motion by defendant to quash a levy of execution. From a judgment sustaining the motion and quashing the levy of execution, plaintiff brings error.

<p>1.Carriers — Delay in Transit — Measure of Damages.</p> <p>The measure of damages for delay in transit of a shipment of merchandise in the absence of the shipper having communicated to the carrier all of the facts and circumstances of the shipment, which do not ordinarily attend the carriage, is the depreciation of the merchandise at the market value at the place of delivery between the date at which it ought to have been delivered and the date of its actual delivery.</p> <p>2. Same — Special Damages.</p> <p>In order to recover special damages for delay in a shipment of freight, it must be shown that such damages were within the contemplation of both parties to the contract.</p> <p>3. Same — Remote Damages.</p> <p>In an action for damages for delay in transit in a shipment of merchandise, damages occurring after receipt' of the merchandise by the consignee, by reason of the fact that said merchandise had to be carried over to another season, cannot be recovered.</p> <p>4. Same — Evidence.</p> <p>In the absence of pleading and proof o£ special damages in an action to recover damages for delay in transit of a shipment of merchandise, it is error to admit evidence of the depreciation of the value of the merchandise, after its receipt by the consignee, by reason that said merchandise had to be carried over to another season.</p> <p>.3. Trial — Directed Verdicts Evidence.</p> <p>Where, admitting the truth of all the evidence in favor of the plaintiff, together with such inferences and conclusions as may reasonably be drawn therefrom, it is insufficient to sustain a verdict in favor of the plaintiff,. it is reversible error for the court to direct a verdict for the plaintiff.</p> <p>6, Carriers — Delay in Transit — Verdict— Sufficiency of Evidence.</p> <p>The evidence in this case carefully considered, and found not sufficient to support a verdict for the plaintiff. ■</p> <p>(Syllabus by Collier.)</p>

<p>.1. Trial — Directed Verdict. — Power of Court.</p> <p>It is error for the trial court, of its own motion, to direct a verdict for the plaintiff before the defendant has rested his case.</p> <p>2. Appeal and Error — Objection to Direct- ' ed Verdict — Sufficiency.</p> <p>Where the court directs a verdict for plaintiff before defendant has rested, and defendant excepts and objects because the case has not been concluded, the error is sufficiently saved. Defendant is not re•quired to offer additional. evidence ■ to preserve his exception. -</p> <p>(Syllabus by Rummons, C.)</p>

<p>L Trespass — Cutting and Removal of Timber — Measure of Damages.</p> <p>Where one willfully and without authority from the owner enters upon the land of another and cuts and removes the timber therefrom, under section 2883 of the Revised Laws of .1910, the measure of damages is three times such sum as would compensate the owner for the actual injury.</p> <p>2. Same — Trial—Demurrer to Evidence-Directed Verdict.</p> <p>The evidence of the plaintiff in this cause examined, and held, that the court properly overruled the demurrer thereto, and, upon the defendant’s failure to introduce any evidence, properly directed a verdict thereon for plaintiff.</p> <p>(Syllabus by Pryor, C.l</p>

Error from District Court, Osage County; It. H. Hudson, Judge. Suit between Nicholas Webster and Wah-tsa-e-o-she and others to determine heirship. Judgment for Webster, and Wah-tsa-e-o-she and others bring error.

<p>1.Libel and Slander — Entry in School Register — “Privileged Communications.”</p> <p>An entry made in a register by the teacher of ¡V district school, concerning a pupil, that he “was ruined by tobacco and whis-ky,” is defamatory, and the same is not “privileged communication” or publication within the purview of any provision of section 4958, Rev. Laws 1910. '</p> <p>2. Same — Proof—Evidence.</p> <p>Under section 4959, Rev. Laws 1910,- in all civil actions to recover damages for libel or slander, it shall be sufficient for the plaintiff to establish what the defamatory matter was, and that it was published or. spoken of the plaintiff, and to allege any general or special damage caused thereby, and in order for him to recover it is only necessary for him to prove that the matter was spoken or published by the defendant concerning him. The evidence in this ease examined, and held, that it was error for the trial court to sustain a demurrer to the evidence offered by the plaintiff below..</p> <p>3. Same — Issues and Proof — Defenses. ''</p> <p>In such actions the defendant may deny and offer evidence to disprove the charges made, or he may prove that the matter charged, .as defamatory was true, and in certain cases that it was published or spoken under such circumstances as to render it a privileged communication.</p> <p>(Syllabus by Hooker, 0.)</p>

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action by C. S. Smith and wife against the Ely Walker Dry Goods Company to modify a judgment and for an injunction. Judgment for plaintiffs, and defendant appeals.

Error from District Court, Creek County; Henry Asp, Special Judge. Suit for injunction by Rufus B. Thompson against C. W. Wills, individually and as guardian, with receivership, and cross-petition by defendant, as guardian of Thomas Wills, an incompetent with leave to plaintiff to dismiss the petition and to file an answer to the cross-petition.

Error from District ('ourt. Oklahoma County; James W. Steen, Assigned Judge. Action by C. J. Tuohy and Laura Tuohy against the Midland Savings & Loan Company to recover usury exacted and received by the company from the Tuohys. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Muskogee County: R. P. De Graff enried, Judge. Action by Sam P. Nicholson and others against the City of Muskogee and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Stephens County; Cham Jones, Judge. Action by the Johnson Grocery Company and others against the James McCord. Company. From a judgment of the district court in favor of the plaintiffs on appeal from a judgment of justice court in favor of the plaintiffs and from denial of motion for a new trial, defendant brings error.

<p>Error from District Court, Oklahoma County; W. C. Crow, Assigned Judge.</p> <p>Action by W. B. Hendrickson and others against the Union Trust' Company. Judgment for plaintiff Hendrickson, and defendant brings error.</p>

Error from District Court, Pawnee County ; Conn Linn, Judge. Action for specific performance by Flora P.owker against Taylor Linton and others. Demurrer to petition sustained, and judgment for defendants, and plaintiff brings error.

Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. .Action by J. S. Shaver and others against J. M. L. Sargent and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Leflore County: W. H. Brown, Judge. Action by T. A. Locke against the Chicago, Rock Island & Pacific Railway Companj'. Prom a judgment for plaintiff and from an order dismissing its appeal, defendant brings error.

Error from District Court, Tulsa County; Conn Linn, Judge. Missouri A. Thomas, Mabel E. Walters, and Jacob Thomas each file petition for letters of administration on the estate of John Thomas, deceased. From judgment of the district court denying the petition of Missouri A. Thomas, and appointing Mabel E. Walters administratrix, Missouri A. Thomas brings error adversely to Rozella James and others.

<p>1. Mortgages — Foreclosure—Duress — Evi-. dence.</p> <p>The evidence in this case is examined, and held, that the finding of the trial court that the note and ¡mortgage sued upon were procured l>y duress is sustained by tbe .evidence.</p> <p>2. Abatement and Revival — Causes of Action Which Survive — Duress.</p> <p>TVhere tbe execution of' a mortgage is procured1 by duress, and the maker thereof dies; his or her heirs may set up, in an action to foreclose said mortgage; the defense of duress; or such heirs may maintain an action' for the cancellation of said mortgage on said ground.</p> <p>(Syllabus by Pryor, 0.)</p>

Error from District Court, Murray County ; E. B. Swank, Judge. Suit by Ike Adler, receiver of the United Mining & Milling Company, a corporation, against Isaac E. Powell to> establish a trust. Judgment for plaintiff and defendant brings error.

<p>1. 1 Carriers — Carriage of Passengers — Duty —Exceptions.</p> <p>Generally the contract o£ a carrier js that it will carry the passenger safely, and in a proper carriage, and afford him safe and convenient means for entering cars .and alighting therefrom, but it does not. contract to render him i>ersonal service or attention beyond that. The recognized exception to the general rule is passengers who by reason of illness, great age, or other infirmity are unable to help themselves.</p> <p>2. Same — Necessity of Personal Service or Attention — Question for Jury.</p> <p>Whether the plaintiff below' belongs to one of the classes within the exception to the general rule is a question of fact, and in this case the same was properly submitted to the jury.</p> <p>3. Same — “Railroad Ticket.”</p> <p>The ticket issued by a railroad company to a passenger is not a contract, but only evidence of the right of transportation furnished to the passenger by virtue of the contract made by him with the company for transportation.</p> <p>4. Same — Passengers — Ejection — Evidence —Damages—Excessive Damages.</p> <p>Evidence in this ease examined, and held, that the plaintiff below' wms entitled to be transported from Texola to Oklahoma City, upon the train on which she was riding, and that her ejection therefrom was unlawful, for w'hich the company was liable to her for whatever damage she sustained. And this question of damage having been submitted to the jury, and the same not appearing excessive and within the issues and justified by the evidence, the judgment of the lower court is affirmed.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by A. IV. Bean and Mamie Bean against George II. Rumrill. Judgment for defendant, and plaintiffs bring error. |</p>

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by Peter Ostran against Jesse W. Bond and another to cancel and set aside a note and mortgage, with interpleader by J. Harrah. Defendant’s demurrer to petition sustained, and judgment rendered for defendant, and interpleader’s motion for judgment on the pleadings sustained, and plaintiff brings error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Polly McIntosh and others against Isiah Reason and others. Judgment for defendants, and plaintiffs bring error.

<p>Bills and Notes — Defense—Striking Answer,</p> <p>In an action upon a promissory note, where the answer of the defendant pleaded usury charge, no consideration, the existence of agency between the present payee and the cashier of the former payee, and knowledge on the part of the present payee as to usury toeing embraced therein, the same stated good defenses, if true, to said note, and it was error to sustain a motion to strike out that part of said pleadings which pleaded the same.</p> <p>(Syllabus by Hooker, C.)</p>

<p>1. Conversion — Purchase from One Without Title — Notice.</p> <p>Where one purchases chattels from one in possession, but without title or authority from the owner to sell, and sells them again, he is liable in damages to the owner for conversion, notwithstanding he has no notice or knowledge of the true owner’s rights.</p> <p>2. Conversion — Demand—Necessity.- .</p> <p>In an action for wrongful conversion,, where the defendant by disposing of the property or otherwise has rendered a demand useless, a demand is not a necessary prerequisite to the institution of the action.</p> <p>(Syllabus by Pryor, C.)</p>

Error from Superior Court, Muskogee county; Farrar L. McCain, Judge. Action by H. G. Gwinnup against the Walton Trust Company, a corporation. Judg« ment for defendant, and plaintiff brings er< ror.