Volume 78 — Oklahoma Reports

<p>Error from District Court, Rogers County; W. J. Campbell, Judge.</p> <p>Action by C. J. Strange and others against H. L. Hicks and another to cancel an oil and gas lease and for a restraining order. Judgment for defendants, and plaintiffs bring error.</p>

From an order of the Corporation Commission prescribing refund for natural gas service furnished by the Oklahoma Natural Gas Company and the Oklahoma Gas & Electric Company to domestic consumers in Oklahoma City, the Oklahoma Natural Gas Company appealed.

<p>1. Waters and Water Courses — Right of Riparian Owner to Natural Flow.</p> <p>Every riparian owner upon water flowing in a defined channel so as to constitute a water course has the right to insist that the water shall continue to run as it has been accustomed, and no one can change or obstruct its course injuriously to him without being liable.</p> <p>2. Same — Right of Riparian Owner to Change Channel.</p> <p>A riparian owner may change the channel of a water course upon his own premises, provided he causes the water to be returned into the original water course before it leaves his premises.</p> <p>3. Same — Surface Water — Diversion.</p> <p>As to surface water each proprietor may divert the same, east it back upon or pass it along to the adjacent proprietor, provided he can do so witko it injury to such adjoining proprietor.</p> <p>4. Same — Right of Upper Proprietor — Injunction.</p> <p>B. constructed a levee upon his lands to ward off surface waters, which levee obstructed the flow of no natural water course and occasioned no damage to the upper proprietor until said upper proprietor diverted the water from the natural water course into an artificial channel which emptied upon the lands of B. and against such levee without the water being returned to the original channel of the water course. Held, that the upper proprietor is not entitled to restrain by injunction the repairing and maintenance of such levee, though such levee may obstruct and throw back upon his premises the water» flowing through said artificial channel.</p> <p>5. Same — Judgment—Evidence.</p> <p>Evidence examined, ar J held that the judgment of the trial court is against the weigh1' thereof.</p> <p>(Syllabus by Summons, C.)</p>

<p>Error from District Court, McIntosh County; R. W. Higgins, Judge.</p> <p>Action by Emma Ryal and others against Roy Scott. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Noble County; Wm. M. Bowles, Judge. Contest of the probate of the will of Martin Klufa, deceased. From judgment of district court on appeal, admitting will to probate, Annie Dufek and others bring error.

Error from District Court, Carter County; W. P. Freeman, Judge. Action by Audry Franklin against Cullen Jackson and others. Judgment for plaintiff by default vacated upon motion of defendant James M. Hoffman. Judgment later for defendant Hoffman, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Oil and Gas — Lease—Effect of Surrender Clause.</p> <p>The presence of a surrender clause in an oil and gas lease does not give the lessor the right to terminate the lease, where the lessee has not breached its terms.</p> <p>2. Homestead — Definition.</p> <p>The word “homestead” has both a popular and a legal signification and its popular and legal meaning is the same. In common acceptation of the term it means the residence of the family — the place where the home is, and it was employed in the common and popular apprehension of its meaning in that part of section 1, art. 12, of our Constitution, pertaining to rural homesteads.</p> <p>3. Homestead — Residence.</p> <p>Where the head of a family in this state is the owner of but one tract of land, not within any city, town, or village, consisting of not to exceed one hundred sixty acres, the fact of ownership alone does not constitute it a homestead. There can be no homestead right in land where the owner floes not and never has resided thereon, and has made no preparation or evinced any intention of so doing.</p> <p>4. Corporations — Oil Lease — Corporation as Lessee.</p> <p>' There is no inhibition in section 2, art. 22 of the Constitution, against a corporation acquiring a lease to prospect land for oil and gas.</p> <p>On Rehearing.</p> <p>5. Constitutional Law — Due Process of Law — Impairment of Obligation of Contracts — Oil and Gas Leases — Change in Judicial Decisions — Effect.</p> <p>Defendants in error obtained an oil and gas lease on a tract of land prior to the rendition of the opinion of Brown v. Wilson, 58 Okla. 392, 160 Pac. 94, which case was thereafter overruled by an opinion of this court in the ease of Rich v. Doneghey, 71 Oklahoma, 177 Pae. 86. Held, the overruling of the case of Brown v. Wilson did not deprive the defendants in error of any of their property rights without due process of law, nor did the same impair any of their rights under and by virtue of their oil and gas lease in violation of section 1, art. 14, and sec. 10, art. 1, of the Constitution of the United States.</p> <p>6. Courts — Stare Decisis — Decisions on Oil and Gas Leases.</p> <p>Under the facts and pleadings in this ease, the rule of stare decisis has no application.</p> <p>7. Constitutional Law — Impairment of Obligation of Contracts — Change in Judicial Decisions.</p> <p>It is well settled that an impairment of the obligation of a contract, within the meaning of the federal Constitution, must be by subsequent legislation, and no mere change in judicial decisions will amount to such deprivation.</p>

Error from District Court, Payne County; John P. Hiekam, Judge. Action by the Treese Cotton Company against the Oil Fields & Santa Fe Railway Company for damages for obstructing street adjacent to its property, and condemnation proceedings by the Railway company to condemn and take the street and a strip of the Cotton company’s property. Actions consolidated. Appeal by Railway company from lower court’s judgment in favor of Cotton Company.

Error from District Court, Garvin County; F B. Swank, Judge. Administration proceedings in re estate of Hohert Y. Hibdon, deceased. On motion of J. W. Porter and another, the county court revoked letters of R. Y. Humphrey, administrator, and dismissed the proceedings. From judgment of district court affirming the county court’s judgment, the administrator brings error.

<p>(Syllabus by the Court.)</p> <p>1. Officers — Liability on Bonds — Negligence and Malfeasance.</p> <p>It goes without saying that sureties on official bonds are liable for negligence or malfeasance of their principal in the performance of acts which are done by virtue of office.</p> <p>2. Same — Validity of Surety Bond — Nonpayment of Premiums.</p> <p>Where a bonding company signed as surety the official bond of a city official for one year, and thereafter extended the bond annually for three years by means of renewal certificates, without exacting cash payment of the renewal premium or prompt payment thereof at a specified time, and the bond was silent as to the payment of premiums and the plan of exacting payment of premiums was that the local agents of the bonding company would file a claim therefor with the proper city official and the same would be audited and paid 60 or 90 days thereafter, usually, and the same would be received without complaint, and when the fifth annual renewal was sought, claim therefore was filed in such manner by the local agent, which claim was misplaced in some way, and on being so advised the company filed another claim for such premium, which was pending for allowance when the principal in the bond, absconded and was short fn his accounts, held, that in a suit by the city to recover for the shortage of the principal, the surety may not defeat a recovery against it because the renewal premiums had not been paid.</p> <p>3. Same — Judgment—New Trial.</p> <p>Record examined, and held in the instant ease that the motion for a new trial was properly overruled, and the judgment of the trial court is affirmed.</p>

Error from Superior Court, Pottawatomie County; L. G. Pitman, Judge. Action by Michael Medlinger against Andrew Curley and others to recover real estate. From judgment in favor of plaintiff, defendants Theresa. Bruno and Samuel Bruno appeal.

Error from District Oourt, Oklahoma County; Edward Dewes Oldfield, Judge. Action by C. F. Barrett and another, partners under name and style of O. F. Barrett & Son, against the Gorman-Head Auto Company. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Okmulgee County; Chas. G. Watts, Judge. Action by Sarah Jacobs against Josephine Hill and others to quiet title. Judgment for defendants, and plaintiff brings error.

From an order requiring the Pioneer Telephone & Telegraph Company and Farmers’ Mutual Telephone Company to make physical connection of their lines and exchanges for long-distance service in the town of Weatherford, the Pioneer Company appeals.

Error from District Court, Tulsa County; Cqnn Linn, Judge. Action for forfeiture of oil and gas lease by W. L. North against the Pelham Petroleum Company. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Rogers County; W. J. Campbell, Judge.</p> <p>Action by Cora L. Sheffler against Farmers Bank & Trust Company. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Initiative and Referendum — Referendum Petition — Signatures—Firm and Corporate Names.</p> <p>A firm, partnership, or corporation, as such, is not authorized by virtue of section 3392, Revised Laws 1910, to sign the firm or corporate name to a referendum petition which is intended to refer the act of the Legislature to the people, and where such firm or corporate name appears upon a petition for referendum, the same must be disregarded.</p> <p>2. Same — Duplication of Names.</p> <p>Where a name with the same initials and the same address as to the city, the street, and the street number appeared upon two separate petitions for referendum, the fact that said names and initials and addresses are identical is prima facie evidence that the same person has signed both petitions, and where there is no evidence to the contrary, it will be presumed that said name is a duplication and one of the names will be disregarded.</p> <p>3. Same — Petition — Verification by Cir-culator.</p> <p>A petition for referendum which is not signed and sworn to by the person who circulated said petition, does not substantially comply with section 3373, Revised Laws 1910, and said petition must be disregarded.</p> <p>4. Same — Signatures—Omission of Residence Address.</p> <p>Where a petition contains . certain signatures with the post office address or residence omitted from the petition, said signatures are not in compliance with section 3368, Revised Laws 1910, and must be disregarded.</p> <p>5. Same — Necessity of Personal Signing.</p> <p>. Where the signatures to referendum petitions all appear in the handwriting of one person, or are written in with the typewriter, such signatures are not in compliance with section 3392, Revised Laws 1910, and cannot be considered as legal signatures to said petition.</p> <p>6. Same — Defective Addresses.</p> <p>A signer upon a referendum petition who gives his street address or rural route, but fails to designate the city in which such street is located or town with which such rural route is connected, has not signed said petition as required by section 3368, Rev. Laws 1910, and such signatures cannot' be counted.</p> <p>7. Same — Notice of Protest — Service.</p> <p>The written notice to the Secretary of State and to the party or parties who filed the initiative of referendum petition, embodying a protest against said petition, having been filed with the Secretary of State, it becomes his duty then and there to fix a day not sooner than five days thereafter in which to hear the same, and it is not essential that such notice be served otherwise upon the party or parties filing said initiative or referendum petition.</p>

<p>(Syllabus by the Court.)</p> <p>1. Master and Servant — Action for Death of Brakeman — Evidence—Res Gestae.</p> <p>The question of admissibility of statements as part of the res gestae should in a great measure be left to the determination of the trial court. Held, under the facts in the above-entitled case, the evidence was admissible.</p> <p>2. Sam© — Evidence of Poverty of Plaintiff— Harmless Error.</p> <p>The court permitted plaintiff to testify that she was working in a restaurant at $7 per week and that her children were in an orphanage. There is no complaint made that the verdict is excessive. Held, although error from an examination of the record the rights of the defendant were not prejudiced thereby.</p> <p>3. Same — Elements of Damages — Employers’ Liability Act.</p> <p>Under the federal Employers’ Liability Act, the principal representative of the deceased employe on the part of a designated beneficiary, in a proper case, may recover such damages as will compensate them for their pecuniary loss, and also such damages as will be reasonably compensatory for the conscious pain and suffering of deceased between the time of the injury and his death.</p> <p>4. Same — Recovery for Suffering of Deceased — Petition—Sufficiency.</p> <p>The petition in the aboverentitled ease failed to allege that the deceased evér recovered consciousness after receiving the injury, and failed to state how long he survived after receiving said injury, and failed to state that the deceased suffered intense pain; therefore did not state sufficient allegations to predicate a cause of action to recover for conscious pain and suffering between the time of the injury and the time of the death of the deceased.</p> <p>5. Same — Insufficiency of Petition — Method of Attack.</p> <p>Allegations in a petition of the representatives of a railroad employe to recover for death of the employe caused by the railway company’s negligence, that the company was incorporated in Iowa and Illinois and operated its railway in and through the state of Oklahoma, and that, when injured, deceased was in the line of his duty, and that the injury occurred in Oklahoma, by reason of the negligence of the defendant in operating its train, imperfectly stated a cause of action under the federal Employers’ Liability Act, and if the company was in doubt as to whether the action was brought under the state or federal statute, they should have filed a motion to make the petition more definite and certain, or to require the plaintiff to elect.</p> <p>6. Same — Departure in Reply — Waiver of" Defect.</p> <p>When the allegations of the reply constituted á departure, the same could not be taken advantage of by objecting to the introduction of any evidence under the pleadings, and that defendant waived the defect by failing to move to strike the reply and going to ■trial on the issues thus raised.</p> <p>7. Trial — Instructions — Sufficiency as a Whole.</p> <p>All of the instructions should be considered together, and if, when considered as a whole, they state the law correctly and without conflict, it is sufficient, although one or more, standing alone, might be incomplete.</p> <p>8. Master and Servant — Damages for Death of Brakeman — Sufficiency of Evidence.</p> <p>The evidence examined, and held, that it was not error for the court to overrule the motion of the defendant to instruct the jury to return a verdict for defendant, and there was sufficient evidence to support the verdict of the jury. ,</p> <p>9. Appeal and Error — Modification of Judgment-Damages for Death of Brakeman.</p> <p>Where a verdict in a damage suit for the death of an employe of a railroad company under the federal Employers’ Liability Act itemizes the damages at $10,000 for pecuniary loss and $5,000 for conscious pain and suffering, and the petition fails to state sufficient allegations to state a cause of action for conscious pain and suffering, but the item for pecuniary loss is proper, the court being able to separate the legal from the illegal amount of the verdict, the judgment will be modified and affirmed for the amount of the verdict that was proper.</p>

<p>Error from District Court, Latimer County; W. H. Brown, Judge.</p> <p>Action by W. S. Elliott against Jacob M. Dickinson, receiver, and the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus by the Court.)</p> <p>Attorney and Client — Disbarment Proceedings — Report of Referee — Dismissal.</p> <p>In a proceeding by information to disbar an attorney, where this court has appointed a referee to hear the evidence, and a special prosecutor has been appointed to prosecute said case, and the referee makes his report to this court that the material witness necessary to substantiate the charges in ‘the information has died since the institution of said proceedings, and it appearing to the referee and special prosecutor '‘■hat they are unable to obtain sufficient evidence to justify submitting the case to the referee, and the referee recommends the proceedings -be dismissed, there being no objection, ■ the report of -the referee will be adopted and the disbarment proceedings will be dismissed.</p>

<p>Error from District Court, Delaware County; John H. Pitchford, Judge.</p> <p>Applications by both W. J. Wilson and Charles Eoley to be appointed guardian of William Clyde Eoley, a minor. Upon the appointment of Wilson, Charles Eoley brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Carriers — Injuries to Person in Charge of Stock — Negligence—Evidence.</p> <p>Plaintiff shipped his household goods and live stock from Sulphur to Durant in a car chartered from defendant company. By the terms of the contract plaintiff was entitled to ride in the caboose free of charge, but providing that he should not go on or be on any freight car while switching was being done. The car so chartered reached Madill, an intermediate point, about dark, and was side-tracked in order to be taken on another and different road to Durant the following morning. Between 9 and 10 o’clock p. m. plaintiff and another party went into the ear, as alleged by plaintiff, for the purpose of caring for the live stock and nailing up a partition, this work consuming 'about 30 minutes. The parties then lay down. Sometime after 12 o’clock plaintiff arose and again commenced nailing on the partition. While so engaged the car received a sudden jar or bump occasioned by the switching. One of the horses was thrown against the partition with sufficient force to break down same. The plaintiff was thrown against a buggy, resulting in an injury to his back. But there was nothing in the evidence tending to prove defendant knew plaintiff was in the car at the Itime. Held, no evidence from which negligence on the part of defendant could be inferred.</p>

Error from District Court, Comanche County; Cham Jones, Judge. Action by Beulah B. Cunningham and another against the Interstate Mortgage Trust Company and others. From the judgment, both plaintiffs and defendants appeal.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Turner Bear, a minor, by Samuel G. Oumberledge, his next friend, against B. B. Jones, Prank M. Wheeler, C. B. Shaffer, W. J. Rowland, and Edwin A. Welty. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Dismissal—Settlement of Controversy.</p> <p>Where, prior to the determination of a proceeding in error in this court, it is made to appear that the controversy has been settled and determined, the proceeding will he dismissed.</p> <p>2. Appeal and Error — Parties—Substitution on Appeal.</p> <p>A motion to be substituted as defendant in error on the ground that the movant has acquired the interest of the defendant in error to the lands in controversy will be denied where it is shown that movant’s interest had been acquired prior to the rendition of judgment in the trial court and that no motion was made to intervene in that court.</p>

<p>Error from District Court, Wagoner County; R. P. de Graffenreid, Judge.</p> <p>Action to quiet title by William H. Harris and another against J. N. Allen and others. Judgment for. defendants, and plaintiffs bring error.</p>

Error from District Court, Alfalfa County; James B. Cullison, Judge. Action by D. W. Dotterer and others against the Chicago, Rock Island & Pacific Railway Company and others. Prom the judgment, plaintiffs bring error.

<p>Error from District Court, Alfalfa County; James B. Oullison, Judge.</p>

<p>(Syllabus by the Court.)</p> <p>1. Limitation of Actions — Tolling Statute— Acknowledgment of Debt.</p> <p>Letters written by a debtor to the attorney for a creditor, if sufficient to constitute an acknowledgment of a then existing debt, is effective to toll the statute of limitations.</p> <p>2. Same.</p> <p>A general reference to an indebtedness of the author contained in a letter addressed to attorneys for creditor, and expressions in such letter of a desire or purpose to raise and pay money to one who was the holder of an obligation, are not such an acknowledgment as will remove the bar of the statute of limitations. To be sufficient, such acknowledgment must be a direct and unequivocal admission of a present, existing debt upon which the party signing the admission is liable.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Findings of Court— Weight and Effect.</p> <p>A cause of action having been tried to a court without a jury, a general finding by said court in favor of one of the parties will be given, upon appeal, the same weight and effect as the verdict of a jury.</p> <p>2. Bills and Notes — Action—Defense of Payment.</p> <p>The record examined, and held, that the evidence is sufficient to support the judgment of the court.</p>

Error from District Oourt, Oklahoma County; John W. Hayson, Judge. Action by L. M. Gantt and another against John Tobin and another for rescission of contract. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Negligence — Elements—Petition.</p> <p>In every case involving actionable negligence, there are of necessity three constituent elements to its existence: First, the existence of a duty on the part of the person complained against to protect the complainant from the injury of which he complains; second, the failure of the defendant to perform that duty; third, injury to the plaintiff resulting from such failure of the defendant; and when a petition affirmatively shows these three elements, it is good as against a demurrer.</p> <p>2. Trial — Demurrer to Evidence.</p> <p>Where the evidence is sufficient to tend reasonably to support the allegations of a petition that states a cause of action, a demurrer to such evidence should be overruled.</p> <p>3. Negligence — Question for Court or Jury.</p> <p>Where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence or contributory gligence, such questions are properly for tlie jury. And it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.</p> <p>4. Appeal and Error — Review—Sufficiency of Evidence.</p> <p>In a civil action triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury,' and no prejudicial errors of law are shown in the instructions of the court or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.</p>

<p>(Syllabus by the Court.)</p> <p>1, Waters and Water Courses — Flowage— Liability for Injuries — Act of God.</p> <p>An unprecedented rainfall and resulting flood, to excuse liability as an “act of God,” must not only be the proximate cause of the injury, but it must be the sole cause. If the injury occasioned by an “act of God” would not have occurred except for the negligence of the defendant co-operating therewith as an efficient and contributing cause, the defendant will be liable.</p> <p>Same — Liability for Notice. of Railroad — Necessity</p> <p>Where a railroad company operates a railroad under a lease, and prior to the execution of the lease there had been constructed upon the right of way bridges and embankments, which, because of being insufficient to carry off the waters of the water course, crossed by said railroad, in times of ordinary flood, obstructed sucb waters and caused them to overflow adjacent lands to their damage, so as to constitute a nuisance, and said railroad company had knowledge of the insufficiency of such bridge and embankments, or should have known of such insufficiency from facts of which it had knowledge, no notice and request to abate the nuisance is required to make the railroad company liable for injuries occasioned thereby.</p> <p>3. Action — Injuries from Flowage — “Permanent” Condition — Successive Causes of Action.</p> <p>In a suit for damages resulting to crops from a negligent condition in the construction and maintenance of a railroad bridge and embankments, even though such structures be permanent in their nature, such negligent condition will not be held permanent if it is abatable by an expenditure of either labor or money, and the abatement of such causal negligent condition is consistent with the rightful use and maintenance of the structures ; and a cause of action for damages occasioned by negligence in a structure not permanent under ’this rule, arises at the time of the actual injury, and successive actions may be maintained for successive injuries in such a case.</p>

Error from District Court, Osage County; R. B. Boone, Judge. Action by Floyd Che-she-wal-la and others for partition of land. From the judgment for plaintiffs, Charles Stuart and others, bring error.

<p>Error from District Court, Muskogee County ; Ii. P. deOraffenried, Judge.</p> <p>Action by Lula Gonzales against E. M. Cow-erd and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by Bunnie McIntosh, administrator of the estate of William Nero, deceased, against P. E. Lynch and another. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Indians — Allotments—Lien for Value of Included Improvements.</p> <p>Where an allotment made in the Cherokee Nation includes improvements appraised and disposed of under provisions of act of Congress of March 2, 1907, ch. 2521, 34 Stat. 1220, a lien on the rents and profits of the land to secure the payments of the appraised value of the improvements is created by operation of law.</p> <p>2, Same — Limitation of Actions.</p> <p>The statute of limitations does not begin to run until a cause of action has accrued; held, the cause of action stated in the above entitled cause was not barred by the statute of limitations.</p>

<p>(Syllabus by the Court.)</p> <p>1. Bonds — Action on — Defenses — Mistake and Fraud.</p> <p>Mistake or fraud in the execution of a bond, whereby the obligors executed the bond different from the one intended, is available as a defense only in case the obligee was a party to the fraud or mistake. Mutuality of mistake is a question of fact.</p> <p>2. Pleading — Answer—Sufficiency Upon Demurrer.</p> <p>A demurrer to an answer because not stating facts sufficient to constitute a defense can be sustained only where the answer contains defects so substantial and fatal as to authorize the court to say that, taking all the facts to be admitted, they furnish no defense, and if the facts stated therein entitled the defendant to any relief, a demurrer for want of sufficient facts should be overruled.</p>

<p>(Syllabus by the Court.)</p> <p>1. Pleading — Answer—Requisites and Latitude.</p> <p>Under paragraph 3, sec. 4745, Rev. Laws 1910, the defendant may set forth in his answer as many grounds of defense, counterclaim, setoff, and for relief, as he may have, whether Ihey be such as have been heretofore denominated legal or equitable, or both. Each must be separately stated and numbered, and they must refer in an intelligible manner to the cause of action which they are intended to answer, and even if the defenses are inconsistent, unless expressly prohibited by statute, they may still be united in one answer, and the pleader cannot be compelled to elect between such defenses.</p> <p>2. Oil and Gas — Action to Cancel Lease— Defense — Mistake in Contract.</p> <p>Defendant alleged in its answer that on or about the 23d day of February, 1916, the date upon which plaintiffs’ lease was executed, the Chanute Refining Co. and B. A. Garber had procured leases upon a large number of tracts of land in Garfield county; that prior thereto, oil and gas had not been discovered within many miles of said tracts of land: that the leases were obtained for the purpose of exploring said land for oil and gas; that the lands at that time had no value whatever for oil or gas mining purposes : that plaintiffs knew that said leases, and each of them, wore secured to constitute a block of acreage sufficiently large to justify the expenditure of a large sum of money in prospecting said lands for oil and gas; and well knew that the lessees would not undertake to prospect said tract of land, or any part thereof, for oil and gas, unless a sufficient number of acres were included in said block to make the financial returns to the lessees sufficient, in case oil or gas was discovered, to justify them in taking the chance of the great loss of time and money in ease of failure upon their part to discover oil and gas; that plaintiffs executed said lease for the purpose of including the land therein described in the acreage to be contained in said block of acreage, in order to induce the lessees to prospect the same for oil and gas: that it was understood and agreed by and between the lessees and the plaintiff that should the lessees commence a well within six months on the said tracts of land, or any of them, in that event no rental shpuld be due or paid under the lease, but that the commencing of said well should be in lieu of all rentals; that said lease was executed upon a printed form: that at the time of its execution, that portion of the printed lease providing for the completion of a well on the premises leased on or before a certain date, -was inadvertently allowed and permitted to remain in said lease; that the blanks in said part of said printed lease were filled in so that the printed portion of the lease required the lessees to complete a well on said premises on or before the 23d day of August, .1010, but that the true agreement and understanding of said parties was expressed, and intended to be expressed, by the last clause of the lease made in writing upon said printed form, which reads as follows, to wit: ‘Second party agrees to commence drilling a well within six months on the block of leases, of which this is a part.’ Held, that the answer stated facts sufficient to constitute a defense to the cause of action set forth in the amended petition of the plaintiffs : and that the trial court erred in sustaining the special demurrer thereto.</p> <p>3. Oil and Gas — Lease—Hule of Construction.</p> <p>Oil and gas leases in this jurisdiction are construed strongly against the lessee, and in favor of the lessor, and where its terms will permit it tinder the rules of law, such lease will be construed so as to promote development and prevent deiay.</p> <p>4. Same — Termination of Lease — Time as of Essence of Contract.</p> <p>■Where an oil and gas lease expressly provides that rights of parties shall terminate if no well he drilled within a fixed period unless the lessee, on or before that date shall pay or tender to the lessor a fixed sum, time is of the essence of the contract.</p> <p>5. Same — Nature of Grant — “Unless” Leases — Construction.</p> <p>Tinder the decisions in this state, oil and gas, while in the earth, unlike solid minerals, are not subject to ownership distinct from the soil, and the grant of the oil therefore is a grant, not of (lie oil that is in the ground, but of such a part as the grantee may find. An “unless” lease is subject to termination at the will of the. lessee, which privilege may be exercised by a mere failure to pay the stiprilatecl rental at the time due, upon the happening of which the lease automatically terminates, and the lessor cannot maintain an action against the lessee for rentals.</p> <p>6. Same — Construction of Lease.</p> <p>Where a party leases a tract of land for the sole and only purpose of mining and operating for oil and gas, the laying of pipe lines, and of building tanks, towers, stations, and structures thereon to, produce, save, and take care of said liroduets, the lessee contracting to deliver to the credit of the less- or, free of cost, in the pipe line to which they may connect their wells, the equal one-eighth part of all oil produced and saved from the leased premises, and to pay $250 each year in advance for the gas from each well where gas only is found, while the same is being used off the premises, at the rate of $50 per year for the time during which said gas shall be used; and the lease containing the following provision: “If no well be completed on said land on or before the 23d day of August, 1916, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Birst National Bank, at Medford, Okla., or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of $80, which shall operate as a rental and cover the privilege of deferring the completion of a vJell for six months from said date. In like manner, and upon like payments or tenders, the completion of a well may be further deferred for like periods of the same number of months successively, and it is understood and agreed that the consideration first recited herein, the down-payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred., If while this lease is in force, and prior to the discovery of oil or gas on said leased land, there shall be drilled on adjacent land and within 200 feet of any line of said leased land, a well producing as much as 25 barrels of oil per day for 30 consecutive days, the lessee will, with reasonable diligence, begin and prosecute the drilling of a well on said leased land in a faithful effort to find and produce oil in paying quantities. * * * “Second party agrees to commence drilling a well within six months on the block of leases, of which this is a part.” Held, that this provision did not bind the lessee to pay any rent for the land, or for delay in commencing to operate for oil and gas, said grant or lease amounting to an option, preventing the lessor after receiving the consideration for the first six months from leasing and entering during such time, the lessee having the option by continuing to pay such half-yearly payments to continue such option by such succeeding payments, it not appearing that the lessor had any direct interest in the drilling of any wells to he commenced within six months on the block of leases of which this lease was a part.</p> <p>7.Same — Termination—Mere Ignorance of Contents.</p> <p>Mere ignorance of the contents of a lease on the part of one who becomes a party thereto is not sufficient to excuse non-compliance therewith. The lessee is bound by its terms, and where under the terms of an “unless” lease, the lease terminated if a well was not completed in six months from the date thereof, or rentals paid as therein provided, the failure to complete a well, or pay the rentals within the time stipulated, automatically terminated the lease.</p>

<p>Error from Superior Court, . Muskogee County; H. 0. Thurman, Judge.</p> <p>Action by Mittie Parker against L. E. Tomm and others. Judgment for defendant named, and plaintiff brings error.</p>

<p>(Syllabus by the Oourt.)</p> <p>Usury — Joint Adventures — Speculative Profits.</p> <p>H. N. and three others purchased certain land for the purpose of having the same platted into lots as an addition to the city of Muskogee. Each party was to share in one-fourth of the net profits of the venture arising from the sale of the lots after the payment of the balance of the purchase money, the expenses, and the several amounts contributed by the parties respectively. The mortgage given by the parties to secure the balance of the purchase money being about to mature, a loan of $25,000 was secured from the plaintiff upon the following conditions: The interest of E., one of the original parties, was to be purchased and paid for out of the $25,000 and assigned to plaintiff. H. N. and the two remaining owners were to execute a note for $25,000, with interest from the date thereof at ten per cent per annum, the same to be secured by a mortgage covering the entire townsite or addition; plaintiff to have one-fourth of the profits arising from the sale of the lots comprising the addition after the payment of all expenses incurred in improving, selling, and disposing of the said land, and the $25,000 with interest. Held, that the transaction was not usurious on the part of the plaintiff, as the value of the interest of E., assigned to plaintiff was purely speculative, indefinite, uncertain, and very doubtful.</p>

<p>Error from District Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by Earl Wooley against the Atchi-son, T. & S. E. R. Co. Judgment for plaintiff, and /defendant brings error.</p>

<p>Error from District Court, Kingfisher County; T. C Robberts, Judge.</p> <p>Action by A. E. Bracken against A. H. Evans. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Pottawatomie County; Leander G. ritman, Judge. Action by Letha Owens against the Chicago, Rock Island & Pacific Railway Company, a corporation, and H. U. Mudge and Jacob M. Dickinson, receivers. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Harmless Error — Mis-joinder of Causes of Action.</p> <p>It is unnecessary to determine on appeal whether causes of action were properly joined, where a judgment in the trial court was rendered for plaintiffs in error -on all but one cause of action, and where plaintiffs in error were not injured by a failure of the trial court to sustain a demurrer to the petition because of alleged misjoinder of causes of action. Such error, if committed, was not prejudicial.</p> <p>2. Pleading — Petition — Sufficiency — Objection to Introduction of Evidence.</p> <p>A general objection of the defendants to the introduction of evidence is not well taken where the petition of the plaintiff states a cause of action.</p> <p>3. Appeal and Error — Defects in Petitioiir— Amendment Regarded as Made.</p> <p>Where proof of unpaid stock subscription is made by plaintiff without objection of the defendants, the petition will be considered amended to allege that fact.</p> <p>4. Corporations — Debts—Liability of Stockholders — Unpaid Stock Subscriptions.</p> <p>Under section 1263, Rev. Laws 1910, stockholders are liable for the debts of the corporation to the extent of the amount of their unpaid subscriptions for stock held by them.</p> <p>5. Appeal and Error — Harmless Error.</p> <p>Where errors complained of on appeal affect none of the substantial rights of the plaintiffs in error, they will be held harmless and insufficient to cause a reversal of a judgment of the trial court.</p>

<p>(Syllabus by the'Court.)</p> <p>1. Indians — Unallotted Choctaw-Chickasaw Lands — Title—Patent.</p> <p>The title to unallotted lands in the Choctaw and Chickasaw Nations is held in trust by the United States for the use and benefit of the Indians, respectively, comprising each of said tribes, and their heirs, and is divested by the issuance and delivery of patent under rules and regulations prescribed by the Secretary of the Interior.</p> <p>2. Same — Public Sale — Resulting Trust,</p> <p>An action will not lie to establish a resulting trust in unallotted lands of the Choctaw and Chickasaw Nations, sold at public sale, prior to the full payment of the purchase price and the issuance and delivery o'f patent therefor.</p>

<p>(Syllabus by the Court.)</p> <p>1. Customs and Usages — Evidence to Explain Contract.</p> <p>Customs or usages may properly be received to ascertain and explain the meaning and intention of the parties to a contract, whether written or parol, the meaning of which could not be ascertained without the aid of such extrinsic evidence, where the parties knew of the existence of the custom or usage, and contracted in reference to it.</p> <p>2. Same.</p> <p>Parties who contract on a subject matter concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action for personal injuries by Perry Clark against the Midland Valley Railroad Company. Judgment for plaintiff and defendant brings error.

Error from County Court, Johnston County; C. M. Crowell, Judge. Action by J. C. Wadsworth against J. A. Mitchell and another for damages sustained by reason of a prairie fire. From judgment for plaintiff., defendants bring error.

<p>Error from District Court, Garfield County; J. C. Rohberts, Judge.</p> <p>Action by Fred D. Stevens against the Oklahoma Automobile Company and another. Judgment for defendants, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Jury — Right to Jury Trial — Action to Recover Money.</p> <p>Under section 4993, Rev. Laws 1910, an action for the recovery of money is triable to a jury.</p> <p>2. Trial — Directing Verdict — Evidence.</p> <p>The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith.</p> <p>3. Trial — Province of Jury — Weight and Credibility of Evidence.</p> <p>In an action at law the credibility of a witness and the weight and value to bo given his testimony is a question for the jury.</p>

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action between G. W. Canfield and others and Lolly Jack, by his guardian, John Tiger, and others, involving title to Indian allotment of Susie Crow, deceased. From the judgment, the parties first mentioned bring error.

<p>(Syllabus by the Court.)</p> <p>Oil and Gas — Lease—Surrender Clause— Right of Lessor.</p> <p>This cause is reversed and remanded for reasons stated in the opinion.</p>

Error from District Court, Kingfisher-County ; X C. Robberts, Judge. Action by the Hennessey State Bank: against W. C. Brown, county treasurer of Kingfisher county, to enjoin tax collection - Judgment for plaintiff, and defendant brings error.

Error from District Court, Garvin County; F. B. Swank, Judge. Action by W. G. Kimberlin and others’ against the Board of Commissioners of Gar-vin County. Judgment for defendant, and plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>Mortgages — Foreclosure Sale — Disposition of Proceeds — Action by Judgment Debtor.</p> <p>Record examined and held, that, in the circumstances stated in the opinion, there was no such privity disclosed between the movants and the plaintiff as entitled them to the relief prayed for.</p>

Error from District Court, Stephens County ; Cham Jones, Judge. Action by Watson Billy against P. W. Folsom and others for forcible entry and de-tainer. From judgment in favor of plaintiff, defendants bring error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Errox- — Failure to File Brief — Reversal.</p> <p>Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of the court, and the defendant In error has neither filed a brief nor offered any excuse for such failure, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the case in accordance with the prayer of the petition of plaintiff in error.</p>

<p>Error from Superior Court, Tulsa County: M. A. Breckinridge, Judge.</p> <p>Action by Tena Henson against James W. Lusk and others, receivers of the St. Louis & San Francisco Railway Company.</p>

<p>(Syllabus by the Court.)</p> <p>Evidence — Best Evidence — Statements of Account.</p> <p>The original books of account should be produced, where copies of entries in such books are objected to as not the best evidence.</p>

<p>(Syllabus by the Court.)</p> <p>Bills and Notes — Action on Notes — Defenses —Issues.</p> <p>Cause is reversed and remanded for reasons given in opinion.</p>

Error from District Court, Osage County; R. B. Boone, Judge. Action by C. O. Fowler against Grant Swank and others on promissory note and to foreclose a mortgage executed to secure payment of the note. Judgment for defendants, and plaintiff brings error.

Error from District Court, Pawnee County ; Chas. B. Wilson, Jr., Judge. Action by the Missouri, Kansas & Texas Railway Company to recover damages upon an indemnity contract and bond executed to it by Robert Ellis. Judgment in favor of Ellis and his sureties on the bond, from which plaintiff- railway company brings error.

<p>Error from District Oourt, Pontotoc County; J. W. Bolen, Judge.</p> <p>Action by Mrs. Bessie Jones to recover damages from H. C. Ferris and Alexander New, as receivers of tlie Missouri, Oklahoma & Gulf Railway Company, for the negligent death of her husband, W. E. Jones. Judgment for plaintiff in the sum of $15,000, and defendants bring error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Oil and Gas — Lease—Covering Separate Tracts — Construction—Production on One Tract — Effect.</p> <p>Where an oil and gas mining lease covers 160 acres of land, and 120 acres thereof are contiguous and the other 40-acre tract is located one-half (pile tiherefrom, and thei lessee assigns the 40-acre tract and the as-signee brings in a producing well producing oil and gas in paying quantities within the one-year period stipulated for in the lease and pays the royalties reserved to the owner of the land, which are accepted by such owner according to the terms of the lease, and the lease contains the stipulation “that this lease shall remain in full force for the term of five years from this date, and as long thereafter as oil and gas or either of them is produced therefrom by the party of the second part, successors or assigns,” these facts do not make the lease a separate lease upon each tract of land, but the same remains a lease upon the entire 160 acres, and the drilling of such well on any portion thereof and the payment of the royalties extend the life of the léase upon the entire 160 acres.</p> <p>2. Same — Estate of Lessee in Premises for Further Operations After Five-Year Term.</p> <p>After gas was found upon the leased premises within five years from the date of the lease in paying quantities, the lessee thereby , became vested with a limited estate in the leased premises for further operations in accordance with the terms of the lease.</p> <p>3. Judgment — Persons Concluded — Grantee of Land Not a Party.</p> <p>A grantee of land is not bound by a judgment in an action, to which he is not a party, commenced against his grantor subsequent to the grant.</p> <p>4. Oil and Gas — Suit to Cancel Lease— Trust Relation Between Lessee and As-signee.</p> <p>Where a trust relation existed between the lessee in an oil and gas mining lease and a third person, as to one of the two tracts of land covered by the lease at the time the lease was executed by the lessors, and some time thereafter the lessee, upon the payment to it by the person for whose benefit the trust existed, of the bonus agreed upon, and at his request the lessor assigned the lease to such other, covering said tract, which assignment has been treated as valid by the lessee and the purchasers of the fee in the land covered by the lease, held, that such trust relation is not available to the purchasers of the fee as a ground for suit for the cancellation of the lease covering the other tract.</p> <p>5. Same — Sufficiency of Evidence to Cancel Lease.</p> <p>Where an oil and gas mining lease gave the lessee, his successors, or assigns, one year from date thereof to complete a well or pay at the rate of $160 in advance for each additional 12 months such completion was' delayed, and providing that the completion of such well should operate as a full liquidation of all rent, during the remainder of the term of the lease, which was for five years, and where the assignee of the lessee to a portion of the leased premises completed a well upon such portion within one year and such well continued to produce oil and gas in paying quantities and assignee continued to operate said well and pay the landowners the royalties reserved to them for the full term, and where the lessee neither drilled on the unassigned portion of the lease, nor paid delay money during the term, and some time after the term expired the landowners brought suit to quiet the title to the unassigned portion of the premises, and asked that the lease as to such portion 'be forfeited for failure to drill and operate and develop the same, and where, upon the trial of the cause, the court announced as his findings “that the plaintiffs are the owners of the land and went in possession of the premises at the time of taking their deed, and have retained possession since that date,” and entered a judgment in favor of the plaintiffs quieting their title to the premises and canceling the lease of the defendant, held, that from an examination of the record it clearly appeared that the plaintiffs alleged no facts nor offered proof of facts such as would be sufficient to authorize the court to cancel the lease for a breach of the implied covenants to diligently operate and develop the premises; that the demurrer of the defendant to the evidence of the plaintiffs should have been sustained; that the judgment of the trial court should be reversed and the canse remanded.</p>

<p>Error from District Court, Lincoln County; C. M. Feuquay, Special Judge.</p> <p>Adtion between Charles L. McGuire and Irene Frances McGuire. From the judgment, the former brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Taxation — Tax Sale of Land — Resale—Effect to Cancel Taxes.</p> <p>Certain lots in the city of Muskogee were assessed for ad valorem taxes in the year 1913. The taxes becoming delinquent, at the regular sale of property for delinquent taxes, on the 10th day of November, 1915, the lots were offered for sale. For want of bidders the same were bought by the county treasurer for the county for the amount of the taxes, penalties, and costs due thereon. Thereafter, on the 29th day of November, 1919, the lots were resold for taxes, penalties, and costs’ for the years 1913 to 1918. inclusive. Held, that it was the duty of the county treasurer, within ten (10) days after such resale, to execute, acknowledge, and deliver to the purchaser, or his assigns, a deed conveying the lots thus resold, which deed should expressly cancel and set aside all ad valorem taxes, penalties, interests, and costs previously assessed or existing against said lots.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Frank Stanton against the Missouri, Kansas & Texas Railway Company for damages for death of his two sons and for killing team and demolishing wagon., Judgment for plaintiff, and defendant brings error.

Error from District Court, Garfield County; James B. Cullison, Judge. Action by the Lonsdale Grain Company against W. B. Johnston for breach of contract. Judgment for defendant, and plaintiff brings error.

Error from District Court, Latimer County; W. H. Brown, Judge. Action by T. P. Mobley and another against James W. Lusk and others, receivers for the St. Louis & San Francisco Railroad Company, for loss from fire. Judgment for de fendants, and plaintiffs bring error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by B. W. Ludeman against Bessie E. English, executrix of the last will and testament of A. Z. English, deceased, to recover real estate broker’s commission on an oil and gas mining lease. Judgment for defendant on demurrer to the evidence, and plaintiff brings error.

Error from District Court, Creek County; Lucien B. Wright, Judge. Injunction by Joseph O. Denton against the City of Sapulpa and certain of its officers. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Bills and Notes — Admissibility as Evidence — Effect of Failure to Register for Taxation.</p> <p>Section 6, ch. 264, Session Laws of 1917. has no application to promissory notes of less than eight months’ duration.</p> <p>2. Bills and Notes — Action—Building Contract — Evidence—Prima Facie Case.</p> <p>In an action to recover on a note which contains the provision, “providing the entire house is completed satisfactory as per contract and specification, for work on house received,” where plaintiff introduces in evidence said note and copy of building contract and the certificate of the architect accepting 'the house with the exception of certain items of work enumerated which were to he completed, and plaintiff offers evidence that he has completed all of said work enumerated by said architect, .he has thereby made out a prima facie case, and it is not error to overrule. a demurrer to the evidence.</p> <p>3. Contracts — Building Contrasts — Substantial Performance — Right to Recover.</p> <p>A contractor and builder who has in good faith endeavored to perform all that is required of him by the terms of his contract for the construction of a building, and has in fact substantially performed the same, is ordinarily entitled to sue upon his contract and recover the contract price less proper deductions therefrom on account of omis.sions, deviations, and defects chargeable to him, especially where the owner occupies and uses such building.</p> <p>4. Trial — Motion to Direct Verdict — Effect.</p> <p>Where the evidence is conflicting and the</p> <p>court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled.</p> <p>5. Contracts — Building Contract — Action by Contractor — Instructions.</p> <p>Instructions examined, and held to correctly state the issues in the case, and fairly present the law applicable to the facts and pleadings, and that no prejudicial error was committed in the giving of said instructions.</p> <p>6. Trial — Refusal of Instructions Covered'.</p> <p>It is not error to refuse an instruction when the court has included the substance of said instruction in the instructions given.</p> <p>7. Contracts — Action by Building Contractor —Sufficiency of Evidence.</p> <p>Evidence examined, and held sufficient to support the finding of the jury.</p>

<p>Error from District Court, Okmulgee County ; Mark L. Bozarth, Judge.</p> <p>Action by Miley Johnson and another against Seth Salmon and another. From the judgment, defendants bring error, and plaintiff Johnson also brings error.</p>

<p>Error from District Court, Kingfisher County; James B. Cullison, Judge.</p> <p>Action by S. W. Hogan and Calvin B. Moody against Thomas B. Grimes and Daisy F. Grimes et al. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Emily Culbertson against S. A. Rourke, doing business as the Southwest Transfer and Storage Company. Judgment for plaintiff, and defendant brings error.

Error from District Court, Cotton County; Cham Jones, Judge. Action by the Aetna Building & Loan Association, a corporation, against C. E. McCarty and others to recover on a promissory note and to foreclose a real estafe mortgage. Judgment for plaintiff for amount less than that sued for. Plaintiff brings error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Lolly Jack, through his guardian, John Tiger, against George W. Can-field, D. A. McDougal, L. O. Lytle, Charles J. Wrightsman, and others, with intervention by Lusanna Brink. Judgment for plaintiff Lolly Jack, and against intervenor, dismissing her cross-petition with prejudice, and in favor of defendants McDougal and Lytle, and intervenor brings error.

Error from District Court, Creek County Gaylord Wilcox, Judge. Action by the Williamson-Halsell-Frazier Company against O. F. Self and J. Shawver partners. Judgment for plaintiff and defend ant Shawver brings error.

Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by E. D. Kesselring against Mary L. Willett for unlawfully detaining premises leased by plaintiff to defendant. Judgment for plaintiff, and defendant brings error.

Error from District Court, Grady County; Will Linn, Judge. Action by J. M. Marler and another against W. H. Peaden for real estate broker’s commission. Judgment for plaintiff, Marler, and defendant brings error.

<p>(Syllabus by the Court.)-</p> <p>Appeal and Error — Failure to MIe Brief-Dismissal.</p> <p>Where plaintiff in error fails and neglects to file briefs, as required by rule 7 of this court (47 Okla. vi), the appeal will be dismissed for want of prosecution.</p>

Error from District Court, Ottawa County ; Preston S. Davis, Judge. Action by T. L. - Bobinson and others against J. E. Potterff and others for an accounting under a mining lease. Judgment for defendants, and plaintiffs bring error.

Error from County Court, Okfuskee County; T. H. Wren, Judge. Action by the Board of Commissioners of Okfuskee County against Kelly F. Gibson, doing business under the firm name and style of Kelly F. Gibson Construction Company, and another. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action for personal injuries by Aaron Jones against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant brings error.

Error from County Court, Lincoln County; Ira E. Billingslea, Judge. Replevin by Mose Chortney against Ash Curry. Judgment for defendant, and, from the action of the eouit in overruling his motion for new trial, plaintiff brings error.

<p>Error from Superior Court, Tulsa County; M A. Breckenridge, Judge.</p> <p>Injunction by the Red Star Oil Company and another against H. C. Rennie. Judgment for plaintiffs, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Replevin — Elements of Damage — Usable Value.</p> <p>Where personal property has a distinct usable value, the same may be recovered as damages for its detention; and a general allegation of damages in the petition in re-plevin is sufficient to authorize a recovery of property while wrongfully detained by defendant, from the date of the demand for the return of the property to the date of trial.</p> <p>2. Limitation of Actions — Action to Recover Stolen Property.</p> <p>The statute of limitations as to personal property in the hands of a thief, who has removed it from the vicinity of the owner, or secreted it from him, does not begin to run until he returns the property to the vicinity, and openly and notoriously holds it, so that the owner may have a reasonable opportunity of knowing its whereabouts and of asserting his title. If the statute had not begun to run while the property was in the possession of the thief, his grantee can claim nothing by his possession. If the thief has done nothing to start the statute in his favor, his vendee cannot tack the thief’s possession, or any part of it, to fill out the unexpired time.</p>

<p>Error from District Court, Osage County; R. B. Boone, Judge.</p> <p>In the matter of the probate of the last will and testament of Son-se-gra, Roll No. 2130, deceased. From judgment admitting will to probate, contestant, Cap Strike-Axe, brings error.</p>

Error from District Court, Osage County; R. B. Boone, Judge. Contest of will of Me-hun-kah, Osage al-lottee, No. 621, deceased; H. G. Carson, administrator of the estate of Rosanna Shah-pali-nah-she, deceased, and another, being contestants, and Joseph Mills and others proponents. Judgment admitting will to probate, and contestants bring error.

<p>Higgins, Pitchford, and Bailey, JJ., dissenting.</p> <p>Action to review decision of State Industrial Commission refusing compensation for personal injuries to Lon Willis.</p>

Error from District Court, Craig County; Pieston S. Davis. Judge. Action for damages resulting from land transaction by L. H. Katterhenry and wife against S. S. Williamson. Judgment for defendant, and plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>1. Quieting Title — Necessary Parties.</p> <p>In an action for the cancellation of deeds and to remove cloud on title to real estate, every person whose legal or equitable status with reference to the real estate involved .will be materially changed by the judgment is a necessary party to the suit.</p> <p>2. Deeds — Reformation— Grantors Necessary Parties.</p> <p>In a suit for reformation of deed, equity in such ease, not knowing the interest of grantors, will not reform such deed without making the grantors parties-to the suit.</p> <p>3. Quieting Title — Evidence of Notice — Records of Former Trial.</p> <p>In an action to remove cloud on title, where the claim of one of the title holders is that he was an innocent purchaser in good faith, the records of a former trial and judgment which tend to show that such party had notice of the condition of title to the land and that it was in litigation, and that he was a necessary party to such former action, are competent evidence, material to the issue, and to exclude which is error.</p>

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action for personal injuries by Charles Cogburn against the Quapaw Mining Company. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Juiy — Right to Jury Trial — Action on Notes and Mortgage.</p> <p>In an action for the recovery of money on promissory notes, although involving the foreclosure of a mortgage on real estate, issue being joined as to the amount due, defendant is entitled to a trial by jury as a matter of right.</p> <p>2. Appeal and Error — Harmless Error.</p> <p>Where an examination of the record does not show that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, a new trial will not be granted. Section 6005, Rev. Laws 1910.</p> <p>3. Trial — Right to Open and Close — Action on Notes — Admissions and Defenses.</p> <p>The trial court did not err in permitting defendant to open and close the case where the defendant admitted the execution, delivery, and assignment of the notes sued upon and pleaded a separate agreement between himself and the assignor of the notes as a defense to payment of the notes, and where the notes show on their face they were past due when the assignment was made.</p> <p>4. Contracts — Alteration—Writings.</p> <p>A contract in writing may be altered by a contract in writing. Section 988, Rev. Laws 1910.</p> <p>5. Appeal and Error — Review—Admission of Secondary Evidence. 1</p> <p>The determination of the trial court, based upon supporting evidence, that a written agreement is lost, and that secondary proof of the terms of the lost writing is admissible, will not be disturbed on appeal.</p> <p>6. Same — Judgment—Conflicting Evidence.</p> <p>Where the judgment of the trial court is reasonably supported by the evidence, this court will not weigh conflicting testimony, but will aflirm the judgment.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by the Dawson Produce Company against Flory & Albers and others; the Farmers’ National Bank, garnishee; inter-plea by the Alamo National Bank of San Antonio, Texas. Judgment for plaintiff, and interpleader brings error;

Error from District Court, Grady County; Thos. A. Edwards, Assigned Judge. Action by Oren Seldon Penny, guardian of his minor children, to cancel conveyances of real estate and quiet title. Judgment for plaintiffs, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Review—Trial to Court— General Finding — Weight.</p> <p>A jury ease having been tried to the court without a jury, a general finding by the court in favor of one of the parties will, upon review here, be given the same weight as the verdict of a jury, (b) Where the evidence was partly in parol and partly in writing, and conflicting, and the finding of the court is general, such finding is a finding of every special thing essential to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.</p>

Error from District Court, Hughes County; Geo. C. Crump, Judge. Action by Ewnáh J. Tiger and another against James M. Nolen and another. Judgment for defendants, and plaintiffs bring error.

Error from Superior Court, Muskogee County; Guy F. Nelson, Judge. Action by Mrs. Maidie Holiman, adminis-tratrix of the estate of John Holiman, her deceased husband, against H. O. Ferris and another, receivers of the Missouri, Oklahoma & Gulf Railway Company, for damages for wrongful death. Judgment for plaintiff, and defendants bring error.

Error from District Court, Washita County; Thomas A. Edwards, Jfidge. Action between A. H. Johnson and others and the State of Oklahoma. From the judgment, the former bring error.

Error from District Court, Mayes County; E. B. Arnold, Judge. Action by Chas. P. Rock against C. R. Craig and ,T. L. Osborne' a partnership, doing business under the firm name and style of Craig & Osborne, and the Thomas Milling Company for damages for breach of contract. Judgment for Craig & Osborne, and the other parties bring error.

Error from Superior Court, Okfuskee County; John L. Norman, Judge. Action for specific performance to convey land by G. G. Bledsoe against W. S. Peters. Judgment for plaintiff, and defendant brings error.

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge. Injunction by Walker D. Hines, Director General of Railroads, and the St. Louis & San Francisco Railway Company against C. H. Olsen and another Judgment for defendants, and plaintiffs bring error.

Error from District Court, Kay County; Wm. M. Bowles, Judge. Action for injunction by G. M. Cassity and others against W. R. Crawford, mayor, and oihers, members of the city council of the city of Tonkawa, and F. W. Keeney & Company. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Jefferson County ; Cbam Jones, Judge. Action by Union Savings Association, against B. V. Cummins, Laura Cummins, H. W. Lemons, and W. J. Chubbuck, to recover on a certain note and mortgage upon real estate. Judgment for defendants, and plaintiff brings error. '

Error from District Court, Haskell County : E. F. Lester, Judge. Action by Sam Rose against R. E. Stal-cup, County Treasurer of Haskell County, to recover tax payment made under protest. Judgment for defendant and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Review—Actions at Law — Questions of Fact.</p> <p>In actions at law only alleged errors of law, and not matters of fact, are revicwable by this court on appeal. (See par. 1, Op.)</p> <p>2. Same — Procedure to Preserve Grounds of Review.</p> <p>Whether or not there is sufficient evidence to go to the jury in a law case is a question of law, and that question must be presented (1) to the trial court by a demurrer to the evidence or motion to direct a verdict, a ruling made, and exception saved; (2) the alleged error in sustaining or overruling the demurrer to the evidence or motion to direct a verdict'must be preserved by a motion for a new trial, ruling thereon by the trial court, and exception saved; then this court on appeal will review the alleged error of law committed by the trial court in sustaining or overruling such demurrer or motion to direct a verdict, otherwise the sufficiency -of the evidence to support the verdict cannot be inquired into by this court. (See par. 1, Op.)</p> <p>3. Same — Review of Equity Cases — Sufficiency of Evidence.</p> <p>Neither a demurrer to the evidence, nor a motion to direct a verdict (if tried to a jury), nor motion for a declaration of law, nor finding of fact, nor conclusion of law, is a necessary prerequisite to a review of the evidence in an equity case by this court on appeal, it being well settled that in equity cases this court will review the evidence as a question of fact, apply the law and the principles of equity thereto, and pronounce such judgment as the pleadings, the facts, and the principles of equity demand, and if the judgment of the trial court is clearly against the weight of the evidence, its judgment will be reversed or modified accordingly. (See par. 1, Op.) ,</p> <p>4. Trial — Waivter of Exceptions — Failure to Demur to Evidence or Move for Directed Verdict.</p> <p>The failure to demur to the evidence in a law case or move to direct a verdict does not operate to waive exceptions to the instructions to the jury, or to the refusal to give certain instructions to the jury, or to the rejection or admission of evidence, or any other erroneous ruling, during the progress of the trial. (See par 2, Op.)</p> <p>5. Principal and Agent — Authority of Agent —Duty to Ascertain.</p> <p>It is incumbent upon a person dealing with an alleged agent to discover, at his peril, whether the assumed agency he general or special, that such pretended agent had authority, and that such authority is in its nature and extent sufficient to permit him to do the proposed act. (See par. 3, Op.)</p> <p>6. Same — Actions—Burden of Proof.</p> <p>The law itself makes no presumption of agency, and the burden of proving agency, including not only the fact of its existence, but its nature and extent, rests ordinarily upon the party who alleged it. (See par. 3, Op.)</p> <p>7. Same — Evidence—Admissions and Acts of Agent.</p> <p>The fact of agency being in issue, evidence of the alleged agent’s own declarations, statements, or admissions, as distinguished from his sworn testimony as a witness, is not admissible against an alleged principal for the purpose of establishing, enlarging, or renewing his authority, nor can his authority be establshed b.v showing that he acted as agent, or that he claimed to have the powers which he assumed to exercise. (See,par. 5. Op.)</p> <p>8. Same — Evidence of Reputed Agency.</p> <p>The authority of a private agent to represent his principal is a fact, if in issue, that cannot be established -by proof that he was generally reputed to be the agent. (See par. 5, Op.)</p> <p>9. Same — Scope of Agency — Sales.</p> <p>General repute that one is agent for a farmer “in handling his cattle, stock, and other stuff during the latter part of his life” is no evidence that such alleged agent had authority to sell the farmer’s cattle, stock, and other stuff. (See par. 5, Op.)</p> <p>10. Trial — Sufficiency of Objections to Evidence.</p> <p>Except as modified by section 5070. Rev. Laws 1910, making an objection to evidence on the ground that it is incompetent, irrelevant, and immaterial sufficient in the absence of a request from the trial judge or opposing counsel for more specific reasons, tli'e general rule is that afa objection that evidence “is immaterial,” or is “incompetent, irrelevant, and immaterial,” or is “incompetent,” is considered no objection. (See par. 4, Op.)</p> <p>11. Same — Grounds for Rule.</p> <p>The rule that objections should always state the grounds thereof, and should present to the trial court the precise point relied upon by the party objecting, is based on two grounds: (1) To show the trial judge the exact point on which the ruling is asked, in order that he may act advisedly and not be misled: (2) that counsel for the opposing party may have an opportunity to obviate the objection if well taken: and that it is not the duty of the trial judge and opposing counsel to explore the whole domain of the law of evidence in an effort to discover why the evidence objected to is not admissible. (See par. 5 Op.)</p> <p>12. Same.</p> <p>The proper test for determining whether or not a thing is within a rule is to ascertain whether it is within the reason of the rule, and if not within the reason of the rule, it is not within the rule; thus, if the inadmissibility of the evidence offered is clearly apparent on its face, no casting around b.v the court or opposing counsel for a ground of exclusion is necessary. (See pdr. 5. Op.)</p> <p>13. Appeal and Error — Review—Admissibility of Evidence — Sufficiency of Objection.</p> <p>If it is apparent that the general objection, to wit: “Objected to,” could not have been obviated, and that the evidence is clearly inadmissible for any purpose, this court, more as a favor than as the recognition of a right, may notice it, and will do so when it clearly appears the evidence admitted was highly prejudicial. (See par. r>. Op.)</p> <p>14. Same-^Reversal.</p> <p>Record examined, and case reversed for error in overruling such general objection to the introduction of evidence.</p>

. Error from District Court, Carter County; IV. F. Freeman, Judge. Action by E. B. Johnston against Becky Bettis for rents and foreclosure of landlord’s lien on crops. Judgment for plaintiff, find defendant brings error. Johnston, plaintiff below, defendant in error, commenced this suit before a justice of the peace against Becky Pettis, plaintiff in error, to recover a money judgment for rent and to foreclose a landlord’s lien on defendant’s cotton crop.

Error flom District Court. Pittsburg County; R. W. Higgins, Judge. Action by J. M. Smith against John Williams and others, heirs of Joshua McCurtain, deceased, Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1.Taxation — Income Assessment — Revision ■ —Remedy by Appeal.</p> <p>The remedy of an income taxpayer complaining at tlie action of the State Auditor in revising, adjusting, and correcting his income tax assessment is by appeal fo the district court.</p> <p>2. Mandamus — Right to Writ — Official Discretion.</p> <p>A writ of mandamus may lawfully issue, from a court having jurisdiction, to compel an executive officer to perform a mere ministerial duty, which does not call for the exercise of his judgment or discretion, but which the law gives him the power and imposes on him the duty to do; but it may not lawfully issue to command or control the executive officer in the discharge of those of his duties which involve the exercise of his judgment and discretion in the construction of the law, or in determining the existence and effect of the facts.</p> <p>3. Same — Adequate Remedy at Law.</p> <p>The writ of mandamus will not be issued in any case where there is a plain and adequate remedy in the ordinary course of law, and where the duty or right sought to be enforced by such writ is not clear and indisputable.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Review—Motion for New Trial — Time for Filing.</p> <p>Revised Laws 1910, sec. 5035, requiring a motion for a new trial to be filed within three days after verdict, is mandatory, and, in the absence of a showing that the party filing it has been unavoidably prevented from filing it within the time specified in said statute, this court cannot consider it or review the errors occurring at the trial.</p> <p>2. Judgment — Orders — Vacation—Power of Trial Court.</p> <p>It is a general rule of law that all the judgments, decrees, or other orders of the court, however conclusive in their character, are under the control of the court which pronounced them during the term at which they are rendered or entered of record, and may then be set aside, vacated, or modified by the court.</p> <p>3.New Trial — Motion After Term — Misconduct of Jury.</p> <p>Affidavits, disclosing misconduct on the part of the jury, filed during the term, but • more than three days after the return of the verdict, are sufficient to invite the attention of the court, and would authorize the court in-setting aside the verdict during the term of court wherein the verdict was rendered, but unless the court acts at that term, it would be without jurisdiction, at a subsequent term, to vacate any order or judgment rendered at a prior term upon the strength of said affidavits on a motion for new trial filed the first day of the succeeding term.</p>

<p>Error from I listriet Court, Caddo County; Will Linn, Judge.</p> <p>Action by J. D. Swan and another against I. M. Duncan and another to cancel oil and gas lease. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Oklahoma County; Jas. R. Tolbert, Assigned Judge. Action by the Aetna Building & Loan Association against L. M. Holt and E. I. Holt to recover upon a certain promissory note and to foreclose a real estate mortgage upon land in Oklahoma County. Prom a judgment for plaintiff, defendants bring error, and plaintiff brings cross-appeal.

Error from District Court, Stephens County ; Cham Jones, Judge. Action by Ether Muncus Marlow and others, by T. B. Reeder, guardian, against the Southwestern Surety Insurance Company upon former guardian’s bond; the First National Bank of Duncan being made a party defendant. Judgment for plaintiffs and the bank, and the surety company brings error.

Error from District Court, Canadian County ; Edward Dewes Oldfield, Judge. Action by the Industrial Savings Society against Estella Collins and George E. Collins and others for recovery of money and foreclosure of mortgage. Judgment for plaintiff, and the defendants named bring error.