Volume 93 — Oklahoma Reports

<p>Error from District Court, Woods County; Arthur G. Sutton. Judge.</p> <p>Action by D. R. Johnson against Crowell Brothers, a partnership composed of Geo. W. Crowell and D. H. B. Crowell. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Railroads — Negligence—Liability During Federal Control.</p> <p>The Director General of Railroads, while operating the railroads under federal control assumed by the President under Act Aug. 29, 1916, and the Federal Control Act of March 21, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919 — 3115% a — 3115 3-4 p.), operated the railroads as a single national system of transportation under a unified head or control, and not as separate companies or systems; and the Director General was responsible for damages sustained through the negligent operation of sjaid railroads during federal control, regardless of what road or roads, in the operation of which such negligence occurred, and without regard to the relation, affiliation, or association of said roads in their corporate capacity.</p> <p>2. Same — Nature of Action — Jurisdiction — Process.</p> <p>Under the Transportation Act of 1920, an action against the federal agent of railroads for damages, suffered from the operation of railroads under federal control, is an action against the United States, and not against the railroads: and service of process, within the venue provided by Transportation Act of 1920, on the service agent for any of the railroads gives jurisdiction over the federal agent as to all of the railroads in the operation of which during federal control the damages complained of resulted.</p> <p>3. Appeal and Error — Harmless Error — Instructions.</p> <p>Instructions given which do not affect the substantial rights of a party, although erroneous, will be considered as harmless error, and will not be reviewed by the Supreme Court on appeal.</p> <p>(Syllabus by .Jarman, C.)</p> <p>Commissioners’ Opinion,</p>

<p>Appeal and Error — Failure of Defendant in Error to File Brief — Reversal.</p> <p>.Where the plaintiffs in error have duly filed and served brief in compliance with the rule of the Supreme Court, and defendant has neither filed brief nor offered excuse for failure so to do; the Supreme Court will not search the record to find some theory upon which the judgment may he sustained; but where the brief filed appears reasonably to sustain any assignment of prejudicial error, the judgment will be reversed.</p> <p>(Syllabus by Jarman, 0-)</p>

<p>Appeal and Error — Absence of Answer Brief —. Review.</p> <p>Where the plaintiff in error has filed a brief, and the defendant in error has filed none, and has given no excuse for his failure, and upon the examination of the record it appears that the errors assigned are well founded, this court is not required to stearch for some theory, or for some authority, that might possibly save the judgment appealed from.</p> <p>(Syllabus by Dickson, C.)</p> <p>Commissioners’' Opinion,</p>

<p>Error from District Court, Pittsburg County; Harve L. Melton, Judge. .</p> <p>Action by Agnes Eldred against Pittsburgh County Railway Company, a corporation. Verdict for plaintiff in the sum of $1,000. Plaintiff refused to file a remitti-tur of all above $600 as required by the court, and a new trial was granted. Plaintiff appeals.</p>

<p>Appeal and Error — Failure of Defendant in Error to File Brief — Reversal.</p> <p>Where the plaintiffs in error have duly filed and served brief in compliance with the rule of the Supreme Court, and defendant has neither filed brief nor offered excuse for failure so to do, the Supreme Court will not search the record to find some theory upon which the judgment may be sustained; but, where the brief filed appears reasoinobly to sustain any assignment of prejudiciaf error, the judgment will be reversed.</p> <p>(Syllabus by Jarman, C.)</p>

<p>1. Contracts — Construction — Meaning of Words.</p> <p>The words of a contract are to be construed and understood in their ordinary and popular sense, unless a special meaning is given to them by usage, in which case the latter must be followed.</p> <p>2- Evidence — Paro! Evidence as to Meaning of Words.</p> <p>Parol evidence may be introduced to show that certain words used in a written contract have a special meaning given to them by usage, and that the parties entered into said contract with knowledge of and in respect to such usage.</p> <p>3. ¡same — Intent of Parties to Contract.</p> <p>Where a contract is ambiguous or, the intention of the parties is not clearly ascertainable from the contract, itself, parol evidence may be introduced to show the conduct of the parties and the circumstances under which the contract was made, to ascertain the. intention of the parties at the time the contract was entered into.</p> <p>4- Pirincipa.1 and Agent — Agenii’p Aluiihor-i ity — Private Instructions.</p> <p>Where an agent is held out as having the authority of a general agent, any private Instructions or. limitations upon his authority, not communicated or known to third persons dealing with such agent, will not be binding upon such third persons where the agent oversteps such limitations.</p> <p>5. Estoppel — Sufficiency of Pleading.</p> <p>A party entitled to an estoppel need not in all cases formally plead the estoppel. If the facts constituting the estoppel are in any way sufficiently pleaded, he is entitled' to the benefit of the law arising therefrom.</p> <p>(Syllabus by Jarman, O.)</p> <p>Commissioners’ Opinion,</p>

Error from District Court. Ottawa County; S. C. Fullerton, Judge. , Action by Amelia Yawman against Joe Raíble and Harry Raíble, doing business under the name of Raíble Bros. Candy Company, and John Daniels, for damages growing out of a collision of automobiles, occasioned by the negligent driving of automobile trucks owned by the respective defendants.

Error from District Court, Grant County ; J. W. Bird, Judge. Action by Mary E„ Privett against Waiter J. Privett for divorce, division of property, and alimony. . Judgment for plaintiff. Defendant brings error.

<p>Error from District Court, Tulsa County; A. C. Brewster, Judge.</p> <p>Action by Bunnie McIntosh, administrator, ’ against E. E. Lynch and . another. Judgment for defendants, • and plaintiff Strings error.</p>

<p>Error from District Court, Okfuskee County; Lucien B. Wright, Judge.</p> <p>■ Action by E. B. Sizemore against W. H. Dill; Willard Johnston, intervener. Judgment for defendant, and plaintiff and in-tervener bring error.</p>

<p>’ Error from District Court, Carter Connty: Thos. W. Champion, Judge.</p> <p>Action by R. L. Ream against F. P. Von Keller for damages. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Woods County; Arthur G. Sutton, Judge.</p> <p>Action by Minnie C. Hapke against Henry B. Hapke, executor of the estate of Henry F. Hapke, deceased. Judgment for plaintiff, and defendant appeals,</p>

Error from District Court, Dewey Coun-tyT. P. Clay, Judge. Action by ■ Carl Rapp against William Madison Hicks and others to recover on promissory note. Judgment for defendants, and plaintiff appeals.

Error from District Court, Delaware County; A. O. Brewster, Judge. Action by Amos Ross Hedden against James E. Vaughan and Sarah Vaughan, to recover an initial payment on certain farm lands. From judgment in favor of the defendants, plaintiff appeals.

Error from District Court, Lincoln County ; 1-Iai Johnson, Judge. Action by Irving Stacy against George B. Rittenhouse to declare null and void a certain oil and gas lease held by defendant. From judgment rendered in favor of defendant, plaintiff appeals.

<p>Error from County Court, Tulsa County; W. B. Williams, Judge.</p> <p>Action by Eclipse Paint & Manufacturing Company, a corporation, against Louie Jacobs. Judgment for plaintiff, and defendant appeals.</p>

<p>L Corporations — Sale of Unissued. Stock ■ — Notice to Stockholders.</p> <p>Where the by-laws of ¿ corporation provide that five days notice shall be given to all shareholders of the intention of the officers of the corporation to sell the unissued shares of stock of said corporation, the fact that one of the stockholders received notice only four days prior to the sale will not invalidate the sale, when the right of no one is shown to have been prejudiced, and the c< mplaining stockholder admits that he had no intention or desire to purchase any of the shares of stock offered for sale.</p> <p>2. Corporations — Failure to Adopt ByLaws, Etc. — Right of Officers to Complain.</p> <p>A stockholder, or member of a corporation, who was named as president of the corporation in its charter and was the active manager of the business of said corporation for a long period of time following the organization, will not be heard to complain of the fact that no by-laws were adopted, no annual meetings held, and no directors elected as required by law, until immediately following his voluntary resignation as president and manager, in the absence of any fraud or misconduct on the part of the stockholders or members of such corporation, perfecting the organization.</p> <p>3. Corporations — Certificate of Stock —Necessity.</p> <p>“From the fact that a certificate of stock is not the stock itself, but merely evidence of the stockholder’s rights, it follows that in the absence of provisions to the contrary the issue of certificates of stock is not at all necessary, either to the existence of a joint-stock corporation or to make one a stockholder in such a corporation, for one may be a stockholder without the formal written evidence of his rights. * * *” 5th Fletcher, Cyc. on Corporations, section 3427.</p> <p>4. Same — Transfer by Shares — Record — Rights of Legal Holder.</p> <p>Under section 1237, Rev. Laws 1910, corporate shares of stack are personal property, negotiable, and must be transferred by the owner by indorsement and delivery, and is valid between the parties whether the transfer is entered upon the books of the corporation or not, and the legal holder thereof is entitled to participate in the organization and conduct of the corporation, as a stockholder or member of such corporation.</p> <p>(Syllabus by Jones, C.)</p> <p>Commissioners’ Opinion,</p>