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et al., 69 Okl. 273, 171 Pac. 1102; Flanagan v. City of Tulsa et al., 55 Okl. 638, 155 Pac. 542, which were paving cases, and the case of McGrew v. Kansas City, 64 Kan, 61, 67 Pac. 438: Scott v. Hines, 50 Minn. 204, 52 N. W. 523; and Lebberman v. City of Milwaukee, 64 N. W. 112. The facts in these cases are clearly distinguishable from the facts in the instant case, and it is so apparent from an examination of these cases that we deem it unnecessary to discuss them in this opinion."

The language of the court in the above opinion makes clear to our minds that the cases of Bowles v. Neely, Mayor, et al., 28 Okl. 556, 115 Pac. 344; Morrow v. Barber Asphalt Paving Co. et. al., 27 Okl. 247, 111 Pac. 198; and Union Trust Co. et al v. Shelby Downard Asphalt Co., 55 Okl. 251, 156 Pac. 903, relied upon by the defendants have no application to the facts in the instant case. Having arrived at the conclusion that the construction placed upon the contract by the trial court was correct, it follows that Assessing Ordinance No. 487 was not void, and that the permanent injunction was properly denied.

For the reasons stated, the judgment of the trial court is affirmed.

O'CONNER v. JOHNSON. (No. 15069.) (Supreme Court of Oklahoma. May 20, 1924. Rehearing Denied Sept. 30, 1924.)

(Syllabus by the Court.)

1. Indians 24-Unauthorized contract employing attorney by minor Creek Indian female allottee held void.

A contract made by a Creek Indian female allottee under the age of 18 years, whereby she employs and agrees to pay an attorney to appear for her in the probate court in which her allotted estate is being administered under control of her guardian to assist her and her guardian in the sale of such allotted estate, such contract not having been sanctioned nor authorized by said probate court, is void by reason of public policy, and violates the protection accorded to minor Indian members of the Five Civilized Tribes, under Act of Congress of May 27, 1908.

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GORDON, J. On the 12th day of February, 1923, plaintiff filed his amended petition. Thereafter defendant filed demurrer, general and special, and on the 6th day of October, this demurrer was sustained. Plaintiff stood upon his petition, and the court ordered the petition dismissed. To the sustaining of the demurrer and the dismissing of the action, exceptions were duly saved by the plaintiff, and notice of appeal was given, and the cause is here for review upon the judgment of the court sustaining such de

murrer.

The parties will be designated as in the trial court.

The petition alleges that plaintiff is a regularly licensed, practicing attorney, in the state of Oklahoma, practicing the profession of law therein. That the defendant is a member of the Creek Tribe of Indians, enrolled as of three-eighths Indian Blood, and that defendant became 18 years of age on November 16, 1920. That on or about the 10th day of March, 1920, defendant employed plaintiff as her attorney to counsel, advise, and appear for her in the matter of the proposed sale of an oil and gas mining lease upon certain of her lands, which said lands were the lands allotted to her by reason of her citizenship in the Creek Tribe of Indians. That defendant's estate was at that time being administered in probate in the county court of Tulsa county, Okl.; and that the guardians of said estate were J. E. Miller and the Title Guaranty & Trust Company, a corporation. That on the 20th day of May, 1919, the district court of Tulsa county by its order conferred rights of majority upon the defendant. That the contract of employment of plaintiff by defendant was originally oral, and by the terms of such contract it was agreed that defendant should under the age of 18 years will not operate to pay to plaintiff a liberal fee, to be determinchange the status of such minor Indian allottee ed and decided by her, and to be based upon as to her rights, disabilities, or restrictions the amount for which defendant's oil and touching her allotted estate. gas mining lease should sell, over and above [Ed. Note.--For other definitions, see Words the amount which defendant's guardian had and Phrases. First and Second Series, Minor.] agreed to accept therefor. Pursuant to said

2. Indians 13-Granting majority rights to
female "minor" Indian allottee will not change
her status touching allotted estate.
Section 2 of the Act of Congress of May 27,
1908, defines "minors":
And the term
minor or minors, as used in this act, shall in-
clude all males under the age of twenty-one
years, and all females under the age of eighteen
years." The granting of majority rights by the
courts of this state to a female Indian allottee

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(229 P.)

had been conferred upon the defendant, and by such order she was empowered in all things to contract as though of full age, except that the power to contract as to her property is limited by the terms of the statutes of the United States, by virtue of which such property came to her.

contract, the plaintiff did on March 13, 1920, er order of court, however, majority rights prepare and file in said probate court, objections and protest of the defendant to the proposed sale of the oil and gas mining lease of the defendant, at the price for which the guardians had arranged to sell the same. The plaintiff appeared in said probate court, and obtained a continuance of the sale, and on the 10th day of April, 1920, when the matter came on for hearing, the proposed purchaser increased its offer from the original offer of $200,000 to an offer of $325,000 at which price the lease was sold. On the 13th day of April, 1920, defendant gave to plaintiff a written contract of employment, fixing his fee for the services rendered, and for such other and further legal services as she might require of the plaintiff for the remainder of the calendar year, 1920. The alleged written contract is as follows:

"Mr. Charles O'Conner, Attorney at Law, 537 Mayo Bldg., Tulsa, Oklahoma-Dear Sir: I employed you to act as my attorney, and render services relative to the sale of oil and gas mining lease on my allotment, with the understanding that when I reached the age of eighteen years I would pay you a liberal fee in proportion to the amount realized from the sale of said lease.

"The lease having brought $125,000.00 more than it was proposed to sell for, I agree to pay you for your services, and for any further legal services which I may require between now and January 1st, 1921, the sum of twenty-five thousand dollars ($25,000.00). I will make this payment on reaching my eighteenth birthday, which will be November 16th, 1920. Virgie Childs."

"Yours very truly,

[2] Majority rights having at the time plaintiff entered into his oral agreement with the defendant been conferred upon the defendant, the defendant could, except in so far as limited by the federal law, contract with all the effectiveness with which she could contract if she had been of full age. The contract was valid, unless it is rendered void by reason of public policy arising out of an attempt to deal with an Indian regarding her restricted lands. The question before us therefore is whether this is such a contract as is inhibited by law or by general public policy. Plaintiff in her brief has to some extent simplified the question involved here, in the statement contained on page 27 of the brief, which is as follows:

"We are not unmindful of the fact that our courts have held, and rightfully so, that neither the marriage of a minor Indian nor a decree of court removing his restrictions has the effect of empowering him to deal with his allotment in any other manner than that prescribed in the act of Congress, and that the act of Congress

defines minors, and that they cannot incumber, alienate, or convey their allotted lands, until they actually become of age, notwithstanding their previous marriage or removal of disabilities of minority."

During the remainder of the calendar When Congress on May 27, 1908, passed year, 1920, plaintiff rendered legal services its act (35 Stat. 312), by virtue of which the to the defendant from time to time and all restrictions theretofore existing upon the legal services required of plaintiff by the de- alienation of their lands by members of the fendant. The defendant became of full age, Five Civilized Tribes were in large part re18 years, November 16, 1920. Defendant at moved, such removal of restrictions was all times thereafter ratified and confirmed doubtless justified in the minds of the legsaid contract and recognized her obligations islators, upon the assumption that those thereunder, and promised to pay the plain-members of the tribes possessing only the tiff the sum of $25,000 as soon as her estate quantum of Indian blood specified might be should be fully settled, and her property turned over to her. Defendant's estate was settled, and her property turned over to her prior to the filing of the original petition herein, but defendant failed to pay the sum of $25,000, and there is now due and owing to plaintiff said sum from the defendant. Plaintiff prayed judgment for $25,000, with interest at 6 per cent. from January 10, 1921,

and for costs.

presumed to have sufficient intelligence to properly safeguard transactions concerning such lands and estates, and to deal with them with the same ordinary intelligence possessed by the average citizens of the United States.

When in this act Congress dealt with mlnors as defined in the act, and the second section thereof, it realized that the property of these minors must be safeguarded and pro[1] The sole question presented here is tected to the fullest possible extent. There whether this petition states a cause of acwas no agency more competent or better. tion against the defendant. It is familiar equipped for this purpose than the county law that in determining this question the courts of the state of Oklahoma, in the extruth of the allegations of fact in the peti-ercise of their probate jurisdiction, and tion is admitted. At the time the oral con- therefore Congress provided in section of tract of employment was entered into be- the Act of Congress May 27, 1908, as follows: tween the plaintiff and defendant, defend- "That the persons and property of minor alant was less than 18 years of age. By prop-lottees of the Five Civilized Tribes shall, ex

cept as otherwise specifically provided by law, be subject to the jurisdiction of the probate courts of the state of Oklahoma."

By this provision and other provisions of the various acts of Congress touching such matters, all necessary machinery was furnished for the protection of the estates of such minors. The power was inherent in such probate courts to see to it that safe and proper guardians should be appointed, whose every act was under the supervision of the court. If in the judgment of these guard

of Hartridge v. Smith, 70 Okl. 218, 173 Pac. 818, is outside of the question here. In that case there was a conveyance made after the Indian had reached his majority, and after moved. The court said that the Indian was all restrictions on his property had been reof full age, and as to such unrestricted property he might make such disposition as he saw fit, subject only to the ordinary rules covering such transactions.

This

Okl. 166, 197 Pac. 430; Armstrong v. Phil-
The cases of McKinney v. Bluford, 81
lips, 82 Okl. 82, 198 Pac. 499; Barlow v.
Soldofsky, 84 Okl. 153, 202 Pac. 1009, and
Welch v. Ellis, 63 Okl. 158, 163 Pac. 321,
deal with unrestricted lands, and are not
court in the case of Mann v. Brady, 80 Okl.
helpful in solving the question here.
299, 196 Pac. 346, has passed fairly upon the
question of the public policy touching a con-
tract with an Indian, and a real estate agent,
who was employed as an agent or broker to
find a purchaser for the Indian's land, a part

ians, or of such courts, it was necessary that attorneys be employed to aid in the protection of such property, the selection of such attorneys was under the supervision of the court, and the fees to be charged could be regulated by such courts. A sale of any portion of such estate could be accomplished only through the courts and with their ap proval. It is evident that the granting of rights of majority by the state courts could not be construed to affect the status of the of which land was at the time restricted by Indian as to his property and his rights pertaining thereto as fixed by the acts of Con-commission for obtaining a purchaser for The broker sued for his acts of Congress. gress, and this fact is frequently admitted by plaintiff in his brief as heretofore shown. Jefferson v. Winkler, 26 Okl. 653, 110 Pac. 755; Mortgage & Debenture Ltd. Co. v. Bour-that while it might be regarded void as to tended that the contract was divisible, and rows, 75 Okl. 94, 182 Pac. 238.

At the time plaintiff's contract was made

these lands. The court held the contract

void by reason of public policy. It was con

"That all contracts looking to the sale or incumbrance in any way of the land of an allottee, except the sale heretofore provided, shall be null and void."

that portion of the land which was restricted, it would be valid as to that portion of with defendant, the defendant's estate was being administered in probate in the county the broker would have the right to recover the land which was unrestricted, and that court of Tulsa county, and under proper guardianship in pursuance of the jurisdic- the contract was indivisible, and further held pro tanto. The court held, however, that tion so conferred by the act of Congress that the contract being illegal in part was aforesaid. Plaintiff was employed by devoid in its entirety. In the opinion in this fendant, without permission or sanction of court, to counsel, advise, and appear for case, Justice Miller likens the general policy her (defendant) in the matter of the sale of of the government to that of a guardian with an oil and gas mining lease upon her al- the purpose of protecting the Indian in the lotment, which matter was in charge of her possession of the lands allotted to him. On guardian in the probate court. Plaintiff was Act of Congress June 28, 1898 (30 Stat. 507), page 301 of the opinion (196 Pac. 348), the to perform such other services as defendant is quoted as follows: might require during the calendar year, but the substance of the contract was the appearance in court for the above purpose. No particular legal service is mentioned outside of this appearance, and the alleged ratification by the defendant makes it clear that the fee to be paid was in consideration of the success of the plaintiff in having caused the oil and gas mining lease to bring the sum of $125,000 more than it was proposed to sell it for. The contract was clearly entire and indivisible. Page on Law of Contracts, vol. 4, par. 2083-2085; Mann v. Brady, 80 Okl. 299, 196 Pac. 346. Was this contract such as contravenes the spirit of our policy of protection to the Indian? The case of Post Oak v. Lee, 46 Okl. 477, 149 Pac. 155, cited in plaintiff's brief, is in our judgment not in point here, and the contract involved did not pertain to the allotment. The court in that case said: "The contract above set out was not within the restricted class." The case

The clear holding in this opinion is that any contract which has for its object the sale or incumbrance of the land of an allottee in violation of any of the restrictive provisions of the acts of Congress pertaining to such allotment is void by reason of public policy. This case is followed by the case of Johnston v. Burnett et al., 81 Okl. 294, 198 Pac. 489, where it is held that a deed made by an Indian to effectuate a contract for the sale of his restricted lands entered into be fore the passage of the act removing such restrictions is void, upon the basis of the reasoning in the case of Mann v. Brady. In the case at bar the plaintiff seeks to differentiate his contract from a contract entered into for the sale of lands restricted under

(229 P.)

[3] It is contended that this contract was ratified by the defendant after she became of full age. If, however, the contract was initially void, it cannot be ratified. Handy v. Globe Pub. Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 460, 16 Am. St. Rep. 695; Carlile v. Oil & Development Co., 83 Okl. 217, 201 Pac. 377; Pruitt v. Oklahoma Steam Baking Co., 39 Okl. 509, 135 Pac. 730.

the act of Congress. In the case before us protection which the government intended there is no direct restriction upon the sale of to afford, and therefore that contract is void the minor's land, except that jurisdiction as against public policy. thereof is conferred upon the probate courts. Restrictions have in fact been removed from the sale of the lands of those Indians of the quantum of blood possessed by the defendant here, but the Act of Congress May 27, 1908, has provided one, and only one, method whereby the lands of these minors may be sold, and that method is under and through the jurisdiction of the probate courts. This provision is tantamount to a restriction upon the sale, and so far as public policy goes, a violation of the provision places the one attempting to violate it in the same position as if there had been an attempted violation of an actual prohibition against the sale of the land. At the time this contract of employment was entered into, plaintiff with reference to the subject-matter of the employment was a minor. The machinery provided by the act of Congress for the protection of this Indian's property was in operation, and the probate court was functioning with reference thereto. If defendant had the authority to employ her own counsel to negotiate for this sale, such counsel under such employment must have had some authority to act for plaintiff, but under the act of Congress above mentioned the sole authority to act for plaintiff was vested in the probate court, and in her duly constituted guardians. If under these circumstances this Indian ward were to be permitted to make a valid contract with parties other than those so authorized to act, the very object of the law would be frustrated.

Considerable stress is laid by plaintiff upon the benefit accruing to the minor by reason of his services, in that as is alleged the price which the minor received for her oil and gas lease was largely in excess of that she would have received except for his services. It may be unfortunate that plaintiff cannot recover where his services have been of large value, but the result of the efforts made under the contract cannot affect the validity or invalidity of the instrument. It was either void or valid in its inception. We are therefore constrained to hold that the trial court did not err in sustaining defendant's demurrer, and the judgment of the trial court will be affirmed. It is so ordered.

JOHNSON, C. J., and NICHOLSON, LY. DICK, and WARREN, JJ., concur.

ADVANCE-RUMELY THRESHER CO. v.
YANCY. (No. 14538.)

(Supreme Court of Oklahoma. Sept. 16, 1924.)
(Syllabus by the Court.)

"The policy of the government is to exercise a protecting control over the Indian and his lands, and any contract made in disregard of that policy which cannot be carried to full frui-1. tion because of such governmental protection is void." Mann v. Brady, 80 Okl. 299, 196 Pac. 346.

It is contended by plaintiff that the defendant was by the act of the state conferring majority rights, of full age at the time this contract was made, and that while she could not bind her estate in process of administration, she could bind herself personally. That therefore he is entitled to judgment for the $25,000 agreed to be paid by the defendant, such judgment to be a personal judgment only. To approve such a theory would be in effect the taking of so much of the estate in process of administration. If judgment should be had, it would be easily enforceable out of the large estate of the minor when turned over to her settlement in the probate court at her majority, and her estate would be thereby depleted to this extent. It therefore seems to us that this contract is against the spirit of the law, and is calculated to take away from the Indian that

Sales 285(4), 287(6), 445(5) · . Conditions precedent to enforcement of warranty of tractor may be waived by seller's conduct; whether so waived is for jury.

Where plaintiff sells a tractor to defendant

and takes notes and mortgage for purchase
price, and warrants it "to be well made and of
good material. and with proper use capable of
doing as good work as any other machine of
the same kind, and rated capacity working un-
der like conditions," and the enforcement of
to the home office and delivery of machine to
this warranty, conditioned upon notice directed
the place where received, these conditions may
be waived by the conduct of the seller, and the
same is a question of fact for the jury under
proper instructions of the court.
2. Sufficiency of evidence.

The record examined, and held sufficient to show waiver of notice and delivery of machinery in compliance with contract in case of breach of warranty.

Commissioners' Opinion, Division No. 3. Appeal from the District Court, Tillman County; Frank Mathews, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Action by the Advance-Rumely Thresher, incurred by vendor in putting it in working orCompany against I. W. Yancy. From a judg- der shall be paid by purchaser. No attempt by ment for defendant, plaintiff appeals. Af-vendor or its representatives to remedy any firmed.

Massingale & Duff, of Tulsa, and Wilson & Roe, of Frederick, for plaintiff in error.

P. Mounts and W. H. Hussey, both of Frederick, and Herman S. Davis, of Oklahoma City, for defendant in error.

THREADGILL, C. Plaintiff in error was plaintiff, and defendant in error was defendant in the trial court, and they will be referred to here as they were there.

Plaintiff brought suit against defendant to recover on two promissory notes and to foreclose its mortgage on one oil-pull tractortype 16-30, No. 15639, complete, with all parts and attachments, also one guide for 16-30, oil pull, and one set of extension angle irons, for 16-30, which notes and mortgage were given for the purchase of said property, May 31, 1919. At the time the notes and mortgage were given there was an order contract in connection with the sale in which the plaintiff warranted the machinery as follows:

defects shall be deemed a waiver of any of the provisions hereof, and if a mechanical expert visits the machine and does not leave it working properly, purchaser shall give notice in writing or by prepaid telegram to vendor at its head office, stating specifically the failure or neglect complained of. If this agreement includes more than one machine or attachment, it shall be considered a separate agreement for each machine and attachment at separate prices, which prices bear the same ratio to the total price as the list price of each bears to the total list price of all as shown by vendor's current price list, and secondhand machinery taken in trade shall not be taken into account; the warranty applies to each separate machine or attachment, and the failure of one machine or attachment shall not relieve the purchaser from liability to pay for the others."

Plaintiff pleaded the notes and mortgage, and defendant admitted the execution of the same and denied liability on the ground of breach of warranty in failure to remedy the defects when notified or furnish a new engine as demanded. Plaintiff replied by pleading failure of defendant to give notice and to "Said machinery is warranted to be well made otherwise comply with the terms of the conand of good material, and with proper use ca- ditions upon which the failure was based. pable of doing as good work as any other ma-The issues were tried to a jury, January 17, chine of the same kind, size, and rated capacity, 1923, and resulted in a judgment for defendworking under like conditions." ant, and plaintiff appealed setting out numer

This warranty was based upon the follow-ous assignments of error; but the principal ing conditions:

"Purchaser shall not be entitled to rely upon any breach of above warranty, or to rescind this contract, or to any claim or set-off against the vendor because of any breach, unless: (a) Notice of the defect or breach, particularly describing the same and specifying the time of discovery thereof, is given by registering letter addressed to vendor at its head office, posted within four days after such discovery; (b) such defect or breach appears within ten (10) days after the first use of the goods; (c) the vendor fails to remedy such defect or breach by substitution of parts or otherwise within a reasonable time after such receipt of such notice, which substitution it shall have the right to make. Purchaser shall render necessary and friendly assistance to vendor in and about remedying the defect. If vendor fails to remedy the defect purchaser shall have the right immediately to return the defective goods or parts in as good condition as when received by him to the place from which they were received and shall thereupon give vendor immediate written notice of such return by a registered letter addressed and mailed to vendor at its head office. Thereupon the money paid and security given by purchaser on account of the purchase price of the goods returned will be promptly returned by vendor, and vendor shall be released from all further claim. Failure so to return the goods or to give the aforesaid notices shall

question raised by the motion for new trial and petiton in error and discussed in the brief was the sufficiency of the evidence to sustain defendant's affirmative defense and error of the court in instructing the jury. It is only necessary to consider the question of the sufficiency of the evidence to dispose of the appeal.

There is practically no conflict in the testimony. The undisputed facts are in substance as follows:

Defendant received the machinery at Frederick, and, in driving the engine home a distance of several miles, the engine gave trouble, in failing to work as it should, and defendant in his testimony described the trouble as one in which "it would thump, and spit, and go dead," and this habit continued, according to the testimony, and was never remedied by the plaintiff.

Out on the farm where they tried to oper ate the engine it was unsatisfactory and soon defendant made complaint to a Mr. Pritchford, who represented the plaintiff at Frederick, and, in response to the complaint, plaintiff sent a man by the name of Burkholtz, who worked on the engine without any satisfactory results. While cutting wheat, it took about half the time to work on the engine to get it to go the other half. It worked

be taken as conclusive evidence that the warranty is satisfied. When, at the request of purso bad the engineer, Scott, who operated the chaser, some person is sent to remedy or re-engine, quit and refused to serve as engineer. pair machinery and same is found to have been Upon another complaint to Mr. Pritchford, carelessly or improperly handled, the expense the company sent a man from Dallas, Tex.,

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