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Error from District Court, Pawnee County; before Justice Bayard T. Hainer.

Action by the Jennings State Bank against John Rapp. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

McGuire & Clark and Fred S. Liscum, for plaintiff in error.

GILLETTE, J. This was an action brought In the court below to recover upon three promissory notes, one for $305 and two notes of $275 each, the purchase price of certain mill machinery and a gasoline engine, executed March 6, 1901. The defendant, to secure payment of these notes, gave a mortgage upon his farm, and a chattel mortgage, upon all the machinery purchased. The petition prays judgment for the amount of the notes, and a foreclosure of both mortgages. The answer admits the execution of the instrument sued on, but denies consideration therefor. The instruments were nonnegotiable, and defendant's defense therefore good as against the plaintiff bank, to whom the notes had been assigned, the notes containing conditions which destroy their negotiability, and the president of the bank being one of the contracting parties in the sale of the machinery. It appears from the evidence offered upon the trial that the defendant in the court below, now plaintiff in eiror, in October, 1900, executed the notes sued on at the solicitation of Trees & Canfield, Machine Manufacturers at Jennings, O. T., under the following circumstances: Mr. Canfield, of the firm, held obligations against certain mill machinery then in a building at Crystal, O. T., which town of Crystal was situated on a part of what had been Mr. Rapp's farm, on property controlled by Mr. Canfield.

In October, 1900, defendant Rapp, being at Trees & Canfield's machine shop at Jennings, Mr. Trees suggested to him that if he had a gasoline engine like one they were using, or bigger, he could buy the mill at Crystal and run it, and he stated in reply that if he could make a bargain with Canfield for the mill, he would also buy a gasoline engine from them, and an agreement to that effect was entered into, the defendant then and there executing his promissory notes therefor, and in consideration of Trees & Canfield's verbal promise to build a gasoline engine for him of sufficient power to run said machinery as quick as they could. Trees & Canfield failed to build the engine by the time the first note came due, February 1, 1901, and afterwards, on March 6th, the defendant being about to go to the state of Missouri for the summer, asked to have the notes taken up and new ones given falling due in the future, the first one to fall due on September 1901, which was agreed to. At this time it was suggested to the defendant that Trees & Canfield would give him $95 for the use of the engine then partly constructed for the summer, and he was

asked to sign a written lease or agreement to that effect. This he objected to because the engine was not finished, and would not be his until it was finished and at work in connection with the mill machinery for which purpose it was purchased. Canfield told him it would be his when finished, and wanted him, as a matter of form, to sign a lease for the use of it during the summer, which he did. This lease, or rental contract, whatever it was, is not shown in the evidence, and is referred to in the record simply as a lease, without proof of its terms, its loss, however, being accounted for. In June following defendant returned from Missouri, asked for his engine, and was informed that it was not finished, but could be ready for him on three days' notice. The defendant answered that he would be ready to receive it on the following Friday, six days from that time. The engine or mill machinery was never delivered, so far as the record shows, and there is no evidence showing that the engine was ever completed. The action was tried to a jury, and at the close of defendant's testimony the trial court sustained a demurrer to the evidence offered in defense, as we suppose from the record upon the theory that the lease of the engine under the circumstances was an acceptance thereof, and amounted to an agreement acknowledging a completed contract, withdrew the case from the further consideration of the jury, and entered judgment for the foreclosure of both the real and chattel mortgages, and crdered a sale of the property to satisfy the judgment. Motion for a new trial was overruled, and the case comes to this court upon error in the determination of the court below.

It will be observed that the engine was not completed at the time this lease agreement was entered into, nor in fact four months later, when the defendant demanded possession of it. There is no proof that it was sufficient to run the machinery for which it was purchased, and we think it a violent presumption to hold that the lease agreement solicited by Trees & Canfield was when accepted intended by the defendant as an acceptance of the entire machinery, which had never been delivered to him. The lease at most refers only to the gasoline engine. There was no tender of the possession of the mill machinery, and no conversation had at the time touching its delivery. The notes when executed were wholly without consideration, as nothing of value was delivered therefor except the promise of Trees & Canfield to build a gasoline engine at some time in the future, and attach it to the mill machinery at Crystal, and thereafter deliver the completed mill to defendant when shown to be in good running order. Nor, so far as the record shows, was the consideration for the lease ever paid, tendered, or indorsed upon the notes. The defendant in error has not favored us with a brief or statement in

forming the court upon what theory they rely for the confirmation of the determination of the court below.

We assume that the judgment of the court below must be affirmed, if affirmed, upon the theory that the lease executed at the time that the new notes sued on were executed amounted in law to an acceptance of the machinery as it then was, and was at that time, by force of the lease, a completed contract. An acceptance, to be good, must, of course, be such as to conclude an agreement or contract between the parties, i. e., an acceptance to bind the parties must be unconditional and unqualified, and intended as such where it modifies the terms of the original agreement. Bennecke v. Insurance Co., 105 U. S. 355, 26 L. Ed. 990. To hold that the lease at the time of its execution and under the circumstances then existing was intended as a waiver of the original contract to construct the machinery, and was an acceptance of the unfinished machine, and amounted to a delivery of the undelivered mill would be doing violence to sound reason, and such construction could not be given the transaction except upon proof satisfactory that such was the intent of the parties. It might, and probably would amount to a waiver of damages for a failure to deliver the property in due time or within a reasonable time, but to say that it amounted in law to a present delivery and acceptance of the unfinished machinery would be carrying the rule to an extent beyond any authority we have been able to find. Whether or not the transaction was intended by the parties at the time as a closing of the unexecuted agreement existing between them is a question of fact, which the defendant in the action had a right to have submitted to the consideration of the jury under the instructions of the court governing their deliberations upon that subject, and a failure so to do was in the judgment of this court an error requiring the reversal of the case.

This case is therefore reversed, and the cause remanded with instructions to set aside the order overruling the motion for a new trial, and to allow the same. All the Justices. concurring except HAINER, J., who presided in the court below.

(17 Okl. 189)

WEAVER v. KUCIILER et al. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. NUISANCE-WHAT CONSTITUTES-INJUNC

TION.

Where a slaughter house has been enjoined as a nuisance, and, on the hearing of a motion to dissolve, the evidence shows that it is not a nuisance per se, and that it can be carried on so as not to constitute a nuisance, the injunction will be modified so as to permit its usage vin an unobjectionable manner.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 72-74.]

2. SAME-ABATEMENT-ACTION TO ENJOIN. Chapter 13, art. 10, Wilson's Rev. & Ann. St., 1903, entitled, "An act to protect platted lands and townsite additions from nuisances" provides:

"Sec. 134. It shall be unlawful for any person to maintain a slaughter house within less than one-half mile of any tract of land platted into lots and blocks as an addition to any town or city within the territory of Oklahoma, or to maintain such slaughter house within one-half mile of any tract of land platted into acre tracts for the purposes of being sold for residence, and in which tracts of land have actually been sold for residence purposes."

"Sec. 136. The maintaining of any slaughter house, or location and use of any graveyard or cemetery in violation of the provisions of this act, are declared to be a nuisance, and any person owning real estate within any such addition to a town or city, or within the lands platted and set apart to be sold for residence purposes, may maintain an action in the courts tinuance, and if it appears that they are being to abate such nuisance and to enjoin their concarried on in violation of this act, a perpetual injunction shall be granted against the parties maintaining such nuisance.

"Sec. 137. It shall be the duty of any sheriff, constable or other police officer to make complaint against such nuisance and hasten its abatement as provided for in this act."

Held, that section 136 limits the persons authorized to bring an action under the act to the owners of real estate as described therein, and an action brought by one who is not the owner of real estate as provided under section 136, or an officer as provided under section 137, must bring himself within the provisions of chapter 56, Wilson's Rev. & Ann. St. 1903, entitled, "Nuisance."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 64-66.]

(Syllabus by the Court.)

Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by John F. Weaver against Henry Kuchler and Amelia Kuchler to abate a nuisance. Plaintiff secured a temporary restraining order in the probate court, which, upon a motion to dissolve in the district court, was modified. From the order and judgment of modification, plaintiff appeals. Affirmed.

In the fall of 1900 the defendants leased three acres of land on the S. 1⁄2 of the S. E.14 of the N. E. 14 of section 22, in township 28 N., of range 2 E. I. M., in Kay county, Okl. T., and located a slaughter house thereon, and used it continuously for that purpose until restrained by the temporary writ issued in this action. In the fall of 1905 the defendants purchased 20 acres of land, including the three acres above described, for the purpose of having a suitable place to feed and keep their live stock in conjunction with their slaughter house, the location of which was within less than a half mile from the corporate limits of the city of New kirk, and of a tract of land platted into lots and blocks as "College addition" to said city, and within less than a half mile of lands platted to be sold as residence lots and which were actually sold for that purpose. The plaintiff resided with his family about threeeighths of a mile from the defendant's slaugh

said slaughter house to remain and decay upon any part of said slaughter house premises." From the judgment modifying the temporary order plaintiff appeals.

C.

Moss & Turner, for plaintiff in error. L. Pinkham and W. S. Cline, for defendants in error.

ter house on the S. E. 14 of section 27, in township 28 N., of range 2 E. I. M., a tract contiguous to defendants' 20 acres, and outside the corporate limits of the city of Newkirk and its additions. A creek called "Spring creek" ran through and across the premises of both parties, the plaintiff's dwelling house being down stream from defendants' slaughter house, and situated about 20 rods back from the creek. Near the dwelling house is a spring from which plaintiff and his family procured their water for family purposes. Plaintiff averred the location of defendants' slaughter house to be within less than a half mile from the corporate limits of the city of Newkirk, and from a tract of land platted into lots, etc., and special injury to himself, in that the defendants permitted to remain upon their premises in and near the slaughter house and creek the offal. refuse and unsalable portions of the animals slaughtered, a part of which, through the creek, became scattered over and upon his premises, causing the water in the spring to become unwholesome, jection being raised in the court below, the

and unfit for use, and that the decay and decomposition on the premises of both parties created a foul, unwholesome stench and odor around his dwelling house, endangering the health of plaintiff and his family. The plain tiff prayed for a judgment permanently enjoining the defendants from using their prem ises for slaughter house purposes. A temporary restraining order issued out of the probate court on the 25th day of October, 1905, the date of the filing of the petition herein. On the 20th day of November the defendants filed their answer, which contained a general denial, also a demurrer to that part of plaintiff's petition alleging the location of defendants' slaughter house to be within less than a half mile from the corporate limits of the city of Newkirk and its additions. On the 28th day of November the defendants filed a motion to dissolve the temporary writ upon the grounds as set forth in their answer, which was attached to, and made a part of, their motion. A partial hearing was had on December 1st, and both parties ordered to submit additional evidence in the form of affidavits. On the 30th day of December, 1905, the matter came on for final hearing, and the court rendered judgment modifying the temporary order issued, permitting the defendants to operate their slaughter house, but enjoining them "from permitting any offal, refuse, or unsalable matter of said business thereof in any manner to be conducted into the stream running through the defendants' slaughter house yard and that said defendants, their agents, or their employés, are hereby enjoined from permitting any offal or refuse matter to accumulate in, about, or near the said slaughter house premises, and the defendants are further enjoined from permitting any bones, carcass, or other objectionable matter resulting from the slaughter of cattle and hogs at

GARBER. J. (after stating the facts). It is here contended that the order and judgment of the district court modifying the temporary order of injunction should be set aşide and reversed for two reasons: First, that the court committed prejudicial error in not passing on the sufficiency on the part of plaintiff's petition demurred to by the defendants before the motion to dissolve the temporary writ was heard. The record shows that the attention of the trial court was never called to the demurrer on file, that both parties announced ready for trial without objection, and the court proceeded to hear the evidence on the motion to dissolve. No ob

question cannot be raised here for the first
time. The general answer of the defendants,
however, waived their demurrer, and the
party to whose pleading a demurrer is filed
the demurrer. Penn. Co. v. Bond, 99 Ill. App.
cannot complain that ruling was not made on
274, and authorities cited therein.
535; 6 Pleading and Practice, 38; Cyc. 259,

The remaining error assigned is that the court erred in modifying the temporary order of injunction. Plaintiff insists that, under section 134. art. 10, c. 13. Wilson's Rev. & Ann. St. 1903 entitled, "An act to protect lands platted into residence tracts and additions to townsites from nuisances," the maintenance of the slaughter house by the defendants was a nuisance "per se." The sections relied upon, read as follows:

"Sec. 134. It shall be unlawful for any person to maintain a slaughter house within less than one-half mile of any tract of land platted into lots and blocks as an addition to any town or city within the territory of Oklahoma, or to maintain such slaughter house within one-half mile of any tract of land platted into acre tracts for the purposes of being sold for residence, and in which tracts of land have actually been sold for residence purposes."

"Sec. 136. The maintaining of any slaughter house, or location and use of any graveyard, or cemetery, in violation of the provisions of this act, are declared to be a nuisance, and any person owning real estate within any such addition to a town or city, or within the lands platted and set apart to be sold for residence purposes, may maintain an action in the courts to abate such nuisance, and to enjoin their continuance, and if it appears that they are being carried on in violation af this act, a perpetual injunction shall be granted against the parties maintaining such nuisance.

"Sec. 137. It shall be the duty of any sheriff, constable or other police officer to make complaint against such nuisance and hasten its abatement as provided for in this act."

It will be observed that sections 136 and 137 specify the persons authorized to bring an action under section 134: "Any person owning real estate within any such addition to a town or city, or within lands platted and set apart to be sold for residence purposes, may maintain an action, and it shall be the duty of any sheriff, constable, or other police officer to make complaint." Under chapter 13, art. 10, Wilson's Rev. & Ann. St. 1903, the Legislature declared the maintaining of a slaughter house within a certain district to be a nuisance "per se," and authorized certain owners of real estate to bring an action in the courts to abate and enjoin its continuance. Whether, under that act, the abatement of defendants' slaughter house (erected long prior to the passage of the act) as a nuisance "per se," would be constitutional, we do not determine. We think the scope and purpose of the act is clearly set forth in its title to be "An act to protect platted lands and townsite additions from nuisances." In the absence of any allegation or proof at the hearing that the plaintiff was an owner of real estate as set forth in section 136, he cannot invoke the application of this act. The plaintiff resides outside the city of Newkirk, owns no real estate within its corporate limits, or additions thereto, and it does not appear in the record that this action was brought for the protection of any of the citizens residing within the corporate limits of said city or its additions. On the other hand, it clearly appears from plaintiff's petition that this action is brought under chapter 56, Wilson's Rev. & Ann. St. 1903, entitled "Nuisance," and upon which he must rely in this action. Section 1 provides: "A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or [omitting the second and third subdivisions] fourth in any way renders other persons insecure in life, or in the use of property." Section 2: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal." Section 3: "Every nuisance not included in the definition of the last section is private." Section 8: "The remedies against a public nuisance are: First, indictment; second, a civil action; or third, abatement." Section 10: "A private person may maintain an action for a public nuisance if it is specially injurious to himself, but not otherwise." From the above sections the maintaining of a slaughter house is not a nuisance "per se," unless it would appear from the evidence, independent of the manner in which it was being used and

conducted, that its location, proximity, and relationship to the public made it so.

On the hearing on the motion to dissolve the temporary writ issued in this case, oral testimony, together with the affidavits of numerous witnesses living in the immediate vicinity, was submitted, all of which went to the manner in which the defendants used and conducted the slaughter house, and upon this question the testimony was conflicting. Numerous witnesses testified that its location was some 60 rods from the nearest public highway, in an inclosure of about one acre, and that its usage was not such as to create a nuisance injurious to the public. W. M. Smith testified that there is no residence nearer to said slaughter house than the one he occupies as a home for himself and family, and that during the present season he cultivated a piece of land close to the slaughter house and abutting the inclosure, and that the odor he detected therefrom was not different from that coming from an ordinary feed lot where stock was kept. A. B. Norton, the owner of a quarter section of land (excepting the 20 acres sold the defendants) upon which the slaughter house of the defendants is located, testified substantially that he had resided continuously for more than five years upon that quarter section within less than one-half mile north and east of the slaughter house, and that when he leased the three-acre tract to the defendants in the fall of 1900 it was expressly stipulated that "whenever the said slaughter house was conducted in such manner as to become a nuisance by causing a stench or odor to be noticeable, then, the lease was to be canceled. and the house removed," and that during all of that period he was not annoyed in any way by its operation. He further testified that the city of Newkirk practically empties its entire sewerage into the creek or branch called "Spring creek" running through and across the lands of the plaintiff and defendants, and that frequently the odors arising from said creek caused by the said sewerage, were extremely annoying, and that they existed long prior to the time of the erection of the slaughter house; that various farmers living along the banks of the creek have their feedyards and hog lots on the banks; and that the waters of said creek were more or less polluted by reason thereof, and unfit for stock purposes. Jay Haney, another witness living within one-half mile due north, testified that he had not been annoyed by any odor or disagreeable or injurious effects from the operation of said slaughter house. W. W. Apperson, the stock inspector, who visited the slaughter house two or three times each week in his official capacity to inspect the stock to be slaughtered, testified that he had not observed about the slaughter house or in the yards adjacent thereto, any refuse or offal lying around that would occasion any obnoxious odors. A. L. Hazen, a physician residing at Newkirk, and superintendent of

the board of health of Kay county, testified that he had made an examination of the slaughter house in his official capacity, and that he found at that time lying upon the ground a small quantity of refuse matter which he ordered the defendant to remove; that in his opinion the waste from the city of Newkirk found its way into "Spring creek" as well as the wash from the various feed lots along the banks of said creek, and that in his opinion the slaughter house in question could be conducted in a comparatively cleanly manner and noninjurious to the public health and inoffensive to the smell by requiring the owners thereof to promptly dispose of all refuse matter.

In view of the testimony of the above witnesses, can it be seriously urged that there was no evidence reasonably tending to support the finding of the trial judge that the slaughter house of the defendants was not a nuisance "per se"? Where a nuisance consists not of a building itself, but in a wrongful use of it, the remedy is to stop such wrongful use, and not to remove the building or to enjoin its rightful use. Barclay v. Com., 25 Pa. 503, 64 Am. Dec. 715; Brightman v. Bristol, 65 Me. 426, 20 Am. Rep. 711; Welch v. Stowell, 2 Doug. (Mich.) 332; Atty. Gen. v. Steward, 20 N. J. Eq. 415; Cleveland v. Citizens' Gas. Light Co., 20 N. J. Eq. 201. In Richards v. Holt, 61 Iowa, 529, 16 N. W. 595, where it was determined that a certain hog lot was so kept and used so as to create a nuisance, but not that it was a nuisance "per se," it was held that "the court was not authorized in wholly restraining the use of the lot for the purpose of feeding hogs. It should have enjoined only such use of the lot as would amount to a nuisance." Where a livery stable which was a source of annoyance had been burned down, the court refused to enjoin the rebuilding of the same, since it might be so modified as not to be a nuisance. Shiras v. Olinger, 50 Iowa, 571, 33 Am. Rep. 138.

Although numerous witnesses testified that the usage by the defendants was not such as to create a nuisance, we think the weight of the evidence established that fact, and the trial court very properly interrogated the the defendants to ascertain their ability and willingness to conduct their business in such a manner as to avoid the matters complained of by the plaintiff as being specially injurious to him. The evidence upon this phase of the question was not contradictory, but very satisfactory, and clearly showed that the defendants would and could make certain changes whereby the matters complained of could be easily avoided, and, under those circumstances, the court would not have been warranted in rendering a judg ment wholly restraining the defendants from the use of their slaughter house, but only from such usage as created a nuisance injurious to the plaintiff, and to the public. A court of equity is always reluctant to

grant a perpetual Injunction against the car rying on of a legitimate business. Where the court finds that such an establishment, as conducted, is a nuisance, it should allow the defendants to show, if they can, that, by the use of proper methods and appliances, it is possible to continue the business in the same place without its being a nuisance. Where this can be done, a decree absolutely enjoining the defendants from further conducting such business is too broad. The injunction should be limited to such usage as created the nuisance, leaving the right to carry on the business in the proper manner." 18 Encl. Pl. & Pr., 1148; Hutchins v. Smith, 63 Barb. (N. Y.) 251; Chamberlain v. Douglas, 24 App. Div. 582, 48 N. Y. Supp. 710; Bushnell v. Robeson, 62 Iowa, 540, 17 N. W. 888; Seifried v. Hayes, 81 Ky. 377, 50 Am. Rep. 167; Fresno v. Fresno Canal, etc., County, 98 Cal. 179, 32 Pac. 943. "When the defendant, who has been doing what amounts to a nuisance, disclaims the intention to continue it and is proceeding with diligence to remove and abate it, the court will, if satisfied that the cause of complaint will be removed as speedily as practicable, refuse an injunction." King v. Morris R. Co., 18 N. J. Eq. 397.

In view of the evidence in this case the trial court properly modified the temporary restraining order, permitting the defendants to conduct and operate their slaughter house, but restraining them from such usage as to create it a nuisance to the plaintiff and the public, and the judgment of the trial court will therefore be affirmed. All the Justices concurring except HAINER, J., who tried the case below, not sitting.

(17 Okl. 525)

CITY OF NEWKIRK v. DIMMERS. (Supreme Court of Oklahoma. Sept. 7, 1900.) TRIAL-MISCONDUCT OF JUDGE-WEIGHT OF EVIDENCE.

Under the law and the rules of practice in this territory the jury is the exclusive judge of the weight to be given the testimony of any witness, and a remark or the demeanor of a trial judge which amounts to an expression of opinion touching the truthfulness of the testimony of a material witness is reversible error. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 81, 82.]

Burford, C. J., dissenting in part. (Syllabus by the Court.)

Error from District Court, Kay County; before Justice Bayard T. Hanier.

Action by Effie Dimmers against the city of Newkirk. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

This is an action commenced by the defendant in error in the district court of Kay county to recover damages for personal injuries alleged to have occurred, and been occasioned, by being thrown out of a buggy, in consequence of a defect in the street in the city

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