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III. 301. "Usury depends on the intention, no remedy on the contract as originally made, and where more than legal interest has been the circumstance may be such that the law taken, the jury must find the intention so to

would imply a new contract, and give him a

remedy on a "quantum meruit." take it.” Duvall v. Farmers Bank, 7 Gill

[Ed. Note.-For cases in point, see Cent. Dig. & J. (Md.) 44. Whether the transaction is a

vol. 50, Work and Labor, 88 31-33; vol. 10, risurious one depends upon the intention of Contracts, $8 1493–1507.] the parties, and that is a question for the 2. SANE-AMOUNT OF RECOVERY. jury.” Thurston v. Cornell, 38 N. Y. 281. Where the plaintiff entered into a contract There must be an intent to take unlawful

with the defendant to furnish the necessary

material to paint and paper his house, and was interest, to constitute usury. There can be

prevented from completing the contract by no usury where the amount taken in the breach of defendant, who receives without comcontract for interest in excess of 10 per cent.

plaint and accepts the benefits of what has been

done, the plaintiff may recover according to per annum was reserved through a mistake

contract price for what had been done; or or ignorance of the fact that it was in such

where he is to receive a fixed sum for the excess. If the lender by mistake of fact, by whole work, then in the proportion which the error in calculation, or by inadvertence in

work done bears to the whole; or where there

is no fixed price, then upon a "quantum meruit." the insertion of a date, contracts to receive

[Ed. Note.-For cases in point, see Cent. Dig. an illegal rate of interest, such mistake, er

vol. 50, Work and Labor, &$ 31, 32.] ror, or inadvertence will not stamp the taint

3. EVIDENCE-ADMISSIONS-PLEADINGS. of usury on such engagement, nor cause to be A lien statement under oath and a crossvisited upon him, who did not knowingly petition filed in one case by a party is coinand intentionally disregard the law in this

petent evidence against such party on the trial

of another case as statements or admissions, behalf, the highly penal consequences of an but are not conclusive, and carry nothing of risurious offense.” Garvin v. Linton (Ark.) estopprl in favor of a stranger to proceedings 35 S. W. 430, citing Moody v. Hawkins, 25 in which they were filed. Ark. 191, and Bank v. De Shon, 41 Ark. 331.

[Ed. Note.For cases in point, see Cent. Dig.

vol. 20, Evidence, $$ 713-725, 1029-1050.] In this case the parties in interest undoubted

4. PLEADING-AMENDMENT. ly intended to contract for interest at 12 per

In an action for material furnished and cent. ; the trial court so regarded the trans

services rendered for the recovery of the conaction, and there was evidence warranting tract price, it is .proper to permit plaintiff to such conclusion,

amend his petition, stating no new facts conIt remains only to consider the third prop

stituting a new cause of action, but seeking to

recover the value of the material actually furosition of the plaintiff in error: “The con- nished and work performed upon a "quantum tract was impossible of performance, for merui:." the reason that plaintiff was unable to ob- [Ed. Yote.--For cases in point, see Cent. Dig. tain the title to the lands contemplated.”

vol. 39, Pleading, $8686, 687, 690, 691, 702.) We are unable to perceive how the defendant

(Syllabus by the Court.) in error is to be held responsible for this

Error from Probate

Probate Court, Oklahoma failure of the hopes and expectations of the County: before Justice William P. Harper. plaintiff in error. He gave to the bank his

Action by A. D. Lee against G. W. Limernotes and securities for $1,650, and received ick. Judgment for plaintiff, and defendtherefor a certificate of deposit for $1,000, ant brings error. Affirmed. 2nd an additional credit upon his personal The original petition of plaintiff below account for $50, either of which the bank substantially alleges that on or about the 1st was liable to pay at any time when the plain- day of June, 1901, T. II. Harvey, pursuant tiff in error was able to consummate his to contract, was building a dwelling house in plans; and so long as he held this certificate, Maywood Addition to Oklahoma City for his notes were security therefor, and the defendant, G. W. Limerick, and that the interest was accumulating thereon to the plaintiff entered into a contract with Harsame extent as though he had taken the cash vey to furnish material and labor to paint instead of such certificates, and the holding and paper the house for $335, and that under of the trial court that he was liable for such

that contract he performed $5 worth of work, Interest until the transaction was closed was and that on or about June 25, 1901, he learned not erroneous.

that said Harvey was unable to pay for Finding no reversible error in the record, said labor and material, and refused to prothe judgment of the court below will be

ceed any further under the terms of said conaffirmed, with costs. All the Justices con- tract; that on that day the defendant, G. curring, except HAINER, J., who presided W. Limerick, came to said building, and in the trial court, not sitting.

entered into a verbal contract with the plaintiff whereby he agreed and promised

to pay him the sum of $330 for furnishing (17 Okl. 165)

material and labor to complete the painting LIMERICK V. LEE.

and papering of said house, said amount to (Supreme Court of Oklahoma. Sept. 5, 1906.)

be due and payable upon its completion; 1. WORK AND LABOR - CONTRACTS - PARTIAL and that in pursuance thereof he furnished PERFORMANCE-RECOVERY. A party who has performed only a part

material and labor, and completed said conof his side of a contract is not in all cases

tract with Limerick on the 19th day of without a remedy, for, although he may have | December, 1901, and that there became due

and owing to him from the defendant upon the labor performed, and their value. The that date the sum of $330. In his amended evidence shows that Lee complied with the petition the plaintiff repleaded his allega- conditions and requirements of the contract. tions in reference to his contract witl: llar- excepting in so far as he was prevented from vey, his refusal to proceed thereunder, and so doing by Limerick, and that the latter made his contract with the defendant, and nega- no objections at any time, but received and tired the allegation of the original petition accepted, without complaint, all the benethat he had completed the contract, and as fits accruing froin the services rendered and an excuse therefor set up that the defend- materials furnished by Lee. It is true the ant failed to select the paper that was to be defendant below set up in his answer and used in three of the rooms, and alleged that cross-petition a claim for damage for failure the material furnished and labor performed of performance, but offered no evidence in under the contract with defendant was worth its support, and to that extent abandoned $310, and for which sum he prayed judg- his pleading. The leading case with referment, with interest. For his answer the ence to contracts for personal service's susdefendant below entered a general denial, taining recovery on "quantum meruit" is admitted that the plaintiff entered into a con- Britton v. Turner, 6 N. H. 181, 20 Am. Dec. tract with Ilarvey to furnish the material and 713, and the doctrine there laid down is betlabor for the painting and papering of said ter adapted to do adequate justice to both house, and set up that the plaintiff sought parties and wrong to neither than those to enforce payment thereunder by filing a numerous cases which rest upon the „somesubcontractor's lien against the dwelling what technical rule of the entirety of conhouse, and thereafter sought to foreclose the

tract.

In McClay v. Hodge, 18 Iowa, 60, same, but, because of defects therein, was Judge Dillon, speaking for the court, said: compelled to dismiss his cross-petition in "Referring to the doctrine laid down in Britthat suit, and thereupon brought this action ton v. Turner, 6 N. II. 181, 20 Am. Dec. 713, against the defendant upon an entirely dif- * * * its principles have been gradually ferent contract from the one in which he winning their way into professional and had theretofore solemnly alleged to have judicial favor. It is bottomed on justice, furnished the material and performed the and is right upon principle, however it may labor upon said house. The issues thus be upon the technical and more illiberal joined were submitted to trial by jury, re- rules of the common law as found in the sulting in a verdict and judginent for plain- older cases.” In Duncan v. Baker, 21 Kan. tiff below in the sum of $380.10, being the 99, it was held: "Where a contract is entire, amount claimed, with interest. A motion and has been only partially fulfilled, the parfor

trial was overruled, exceptions ts in fault may nevertheless recover from saved, and case brought here by plaintiff in the other party for the actual benefit error, and case made for review.

received and retained by the other par

ty less the damages sustained by the other Snyder & Clark, for plaintiff in error.

party by reason of the partial nonfulfillJohn S. Jenkins, for defendant in error.

ment of the contract; and this may

be done in all cases where the other GARBER, J. (after stating the facts). The party has received benefit from the partial plaintiff in error complains: First. That fulfillment of the contract, whether he has suit was filed on a contract in entirety, and so received the same and retained it froin that the petition was amended and judgment choice or from the necessities of the case." pray for a sinaller amount on "quantum Barnwell v. Kempton, 22 Kan. 317; Quigley meruit." By the strict rules of the common V. Sumner Co., 24 Kan. 300; Ryan v. Cranlaw, full performance was required as a con- ston, 27 Kan. 672. Mr. Parsons, in his dition precedent to the right of recovery; work on Contracts, says: “If one party, but the rigor of this rule has been relaxed in without the fault of the other, fails to permany jurisdictions, and the trend of modern form his side of the contract in such mandecisions is to administer equitable relief, ner as to enable him to sue upon it, still, rather than to hold the parties to the very if the other party has derived a benefit from letter of their agreement. In this case, how- the part performed, it would be unjust to ever, the plaintiff below pleaded as an ex- allow him to retain that without paying (-use for his failure of performance the re- anything. The law, therefore, generally imfusal of defendant to select paper for three plies a promise on his part to pay such : of tlie rooms according to the terms of the remuneration as the benefit conferrell upon contract, and, under those circumstances, him is reasonably worth, and to recover the plaintiff could not be prevented from that quantum of remuneration. In action recovering in this case for material furnished of indebitatus assumpsit is maintainable." and work performed. He can

He can recover as 2 Pars. Cont. (6th Ed.) 523. Mr. Field, in his upon a "quantum meruit.” Both the plead- work on Damages, says that: "The doctrine ings and the evidence were sufficient for that now generally recognized in case of part purpose. The petition stated the facts con- performance of a contract for personal servstituting plaintiff's cause of action, setting ice is that, if the employer accepts the beneforth the contract and materials furnished, fit of what has been done, whether voluntarily or from the necessities of the case, the filed his separate answer and cross-petition, employé may recover according to contract which he subsequently dismissed, witho'it price for what has been done; or where he is prejudice. In both the lien statement and to receive a fixed sum for the whole work, cross-petition Lee stated that he perform a then in the proportion which the work done the labor and furnished the material in th: bears to the whole work; or where there painting and paperiny of Limerick's hous is no price fixel, then upon a quantum meru- "at the instance and request and hy verbal it; from which, however, there must be de- contract with the contractor, the defen:laut, ductect whatever damages may have resulted T. H. Harvey,” etc. It is now insisteil that to the employer from the failure to fully the defendant in crror was bound by the perform the contract by the employé.” | solemn admissions made in his lien StartField, Dam. 327. In Duncan v. Baker, supra, ment and cross-petition fileil in the d'strict Mr. Justice Valentine said: "* * * Sup- court, and that he cannot be heard to contropose that all owner of real estate employs vert them, except by showing that they were a man to build and repair some structure made without his knowledge or authority. thereon for a gross but definite sum, the In support of their position, counsel for owner of the real estate to furnish the ma- plaintiff in error cite Lane Implement Co. terials, or a portion thereof, in case of build- V. Lowder, 11 Okl. 61, 6.7 Pac. 926. In that ing, and either to furnish them in case of case the Line Implement Company brought repairing, and the job is only half finished, suit against L. R. Lowder on a promissory what choice has the owner of the real es- note before a justice of the peace, and couns 1 tate with reference to retaining or returning caused an attachment to issue and to be the proceeds of the workman's labor? This levied on certain property of defendant. On kind of supposition will also apply to all the same day the defendant gare a forthcomkinds of work done on real estate, and will ing bond, with J. H. Manning as surety. often apply to work done on personal prop- Judgment was finally rendered for plaintiff. erty. Of course, in all cases where the em- the attachment sustained, and the attached ployer can refuse to accept the work, and

property orilered sold; but when the oflicer does refuse to accept it, or returns it, lie attempted to take the property mder the is not bound to pay for it unless it exactly order of sale it could not be found. Suit corresponds with the contract; but where

was then brought on the forthcoming bonil. he receives it and retains it, whether he re- The defendant answered, admitting the comtains it from choice or from necessity, he is mencement of the original suit, the issuance bound to pay for the same what it is reason- of the order of attachment, the seizure of ably worth, less any damage that he may the property thereunder, the execution and sustain by reason of the partial nonfulfill- delivery of the forthcoming bond, the rement of the contract. Of course, he is not turn of the property to Lowder, the rendibound to pay anything unless the work is tion and existence of the judgment is plead. d worth something, unless he received or may by plaintiff, and that the attached property receive some actual benefit therefrom; and had been ordered sold. In his amended allwhere he received or may receive some ac- swer the defendant entered il general detual benefit therefrom, he is bound to pay for nial, and set up that the forthcoming bond such benefit, and only for such benefit, with- was given without consideration, in that th: in the limitations hereinbefore mentioned."

property attached was exempt under the See Beach on Contracts, par. 108, p. 135; laws of the territory. Under the pleadings 9 Cyc. 686; 7 Encl. of Law, 152.

in the case, the court projierly held that There was no abuse of discretion in grant- solemn admissions made by a party to an ing leave to amend, setting up "quantum action in his pleadings should be regardeil meruit." There were no new facts stated as admitted facts in the case, until there is upon which a new cause of action was based. a showing that they were made by mistake The contract and the material furnish:d and either on the part of the pleader or his atservices performed and the amount claimed

torney, and that by the giving of the forthwere the same in both the original and coming bond one is estopped from denying amended petitions. Cox v. McLaughlin, 76 that the property returned under it is the Cal. 60, 18 Pac. 100, 9 Am. St. Rep. 161. The property of the party who gave the bond, or evidence shows that the defendant in error that the property was not subject to attachentered into a contract with Rice, Harvey & ment. In the case at bar G. W. Limerick, Rice, and, becoming doubtful of their finan- plaintiff in error, was not a party or privy cial responsibility, with their consent, sub- to the suit in the district court; he was not sequently entered into a contract with plain- influenced or affected thereby; he wils a tiff in error. On the 19th day of December, total stranger to the entire proceedin:; he 1901, upon the advice of counsel, he filel a was not bound by it in any way; and, ordiinechanic's lien against the property, the narily, one who is not bound by a judgmet title of which was vested in Della Limerick, cannot avail himself of it in another proand on the 21st day of August, 1903, in an ceeding. If Limerick did not act upon, or action in the district court of Oklahoma rely upon, the admissions of Lee in the Storm county, Case No. 3,239. W. W. Storin, plain- suit, how can he invoke the doctrine of estiff, v. W. W. Rice et al., defendants, he topel here? It is an essential principle of

estoppel that the conduct of the person has been influenced by the statements or conduct of another, and, because so influenced, he shall be protected, and the other estopped. "With regard, then, to the conclusiveness of admissions, it is first to be considered that the genius and policy of the law favor the investigation of truth by all expedient and convenient methods, and that the doctrine of estoppel, by which further investigation is precluded, being an exception to the general rule, founded on convenience, and for the prevention of fraud, is not to be extended beyond the reasons on which it is founded. It is also to be observed that estoppels bind only parties and privies, and not strangers. Hence it follows that, though a stranger may often show matters in evidence which parties of privies might bave especially pleaded by way of estoppel, yet in his case it is only matter of evidence to be considered by the jury." Greenleaf on Evidence (16th ed.) vol. 1, par. 204. “Admissions or statements, though appearing in judicial records, estop the person making them from explaining or denying their truth only as against those who were parties, or who claim rights under such records, or who acted upon or were influenced by such statements.” Dahlman v. Foster, 55 Wis. 382, 13 N. W. 261. In Quinby v. Carhart et al., 133 N. Y. 579, 30 X. E. 972, it was said: “The fact that de fendants brought a suit, to which plaintiff was not a party, against such third person, claiming that the sale was to him, and seeking to recover the price thereof, and gave evidence tending to show that the sale was directed to bim, and not to plaintiff, did not conclude them from afterwards claiming that the sale was to plaintiff, though it may have tended to discredit their testimony that they sold to the plaintiff. In Murphy et al v. Hindman, 58 Kan. 184, 48 Pac. 830, the court held: “If the record or judicial proceeding contains material declarations or admissions of a party to the same, it may be offered in evidence in behalf of one who was not a party; but it will not be conclusive against the party who made the declarations or admissions." "A record or judicial proceeding is admissible in evidence in behalf of one not a party to it when it contains a declaration or admission made by the person against whom it is offered. In such circumstances it does not have the unimpeachable verity of a record. It is not conclusive against the person who made the admission or declaration, but such admission or declaration is of no higher dignity than if made in some other manner, and may be explained or rebutted.” Freem. on Judgm. 417 “A.” See, also, Black on Judgments, 608. In Solomon R. Co. v. Jones, 30 Kan. 601, 2 Pac. 657, Brewer, J., said: "While an allegation in a verified petition in another case is not estoppel, and does not conclude the party making it, it is competent evidence against him, just as a declaration or admission made by

him in any other manner and place." While the admissions of Lee in the lien statement and cross-petition in the Storm suit may have been inconsistent with the allegations of his petition in this case, they were not conclusive. The doctrine of the election of remedies or estoppel did not apply. He had entered into two contracts, first with Harvey, then with Limerick, and through advice of counsel, or mistake, or otherwise, he may have taken a false position in that action, and there is no rule of law prohibiting him from taking what he claims to be his true position in this. What he said and did in that action, howerer, bears upon his good faith and credibility in this. His admissions were properly admitted in evidence under proper instructions, and considered by the jury in connection with his explanation.

Under the pleadings in this case, and the theory upon which it was tried in the court below, the sole issue was: Did the plaintiff in error, Limerick, make a contract with defendant in error, Lee, in which he agreed to pay him for material furnished and services rendered in painting and papering his house? There is no contention or suggestion in the record that Limerick ever paid any one for the material furnished or services rendered, or that the material and work did not meet the requirements of the contract. On the contrary, Limerick admits and says by his conduct: “Lee furnished the material, of good quality, papered and painted my house in a good workmanlike manner, and I am receiving the benefits, but I refuse to pay him because he made his contract with Harvey, the contractor, as shown by his admissions; and, while I did not pay Harvey or any one else for the material and Jabor, I never made a contract with Lee, and refuse to pay him.” The question of contract, however, was presented to the jury in special interrogatory No. 12, which reads: "Was any other contract made between the plaintiff, Lee, and defendant, Limerick, with reference to the doing and performing of the work, or any part thereof, for which it is sought to recover in this action? If so, state when it was made, and where and what were the terms of said con. tract?And that the jury did not agree with Limerick in his statement, viz., "that he never made a contract with Lee,” is disclosed by their answer: “Yes; a verbal contract about June 20, 1901, at Limerick's house, to paper and paint, as per specifications, for the payment by G. W. Limerick to A. D. Lee of $335, less $5 for labor already done. Ed Ward, Foreman." After hearing all the evidence in the case, the jury found that Limerick had entered into a contract with Lee in which he agreed to pay hin for material and labor, and that finding of the jury is supported by the evidence of three witnesses, and denied only by the plaintiff in error; and when controverted

questions of fact are submitted to a jury, | provisions of the statutes of Oklahoma. and the evidence adduced is conflicting and It is contended by the plaintiff that the contradictory, but there is competent evi- act of the Legislature of Oklahoma is void, dence reasonably tending to support every for being in conflict with the act of Congress material allegation necessary to uphold the prohibiting the removal of county seats, and verdict, and the trial court approves the ver- hence the removal of the county seat is void. dict, and renders judgment in accordance Since the submission of this case, the Contherewith, and a new trial is refused, this gress of the United States, on March 3, 1906. court will not disturb the verdict of the passed the following act legalizing the rejury and the judgment of the court on the moval of said county seat: "An act legalizing weight of such conflicting evidence.

the removal of the county seat of Washita We have searched the books in vain for County, Oklahoma Territory. Be it enacted an authority holding that an admission in by the Senate and House of Representatives a lien statement or cross-petition was a legal of the United States of America in Congress tender, with which a stranger to the proceed assembled, That the action of the majority ings could pay for material furnished and of the electors of Washita County, Oklahoma services rendered in painting and papering Territory, as determined by an election held his house; and the total absence of such an on the seventh day of August, Anno Domini authority, in more than a century of judicial | nineteen hundred, for the purpose of removgrowth, prolific of judicial decision upon the ing the county seat of said county from the multitudinous phases and features of legal town of Cloud Chief to the town of New controversy, is a lasting tribute to our juris- | Cordell, in said county, be, and the same is prudence, as evidence of the substantial and hereby, in all things ratified and confirmed, ample protection it affords to laborer and and the county seat of said county is hereby artisan alike as against technicality invoked declared to be at the said town of New to defeat the payment of an honest debt. Cordell.” Chapter 512, 34 Stat. 50. This, In this case the law and the equity will take in our opinion, settles the controversy, and the lien statement of Lee, properly framed, makes it unnecessary to pass upon the queswith its limitations, hang it up over the tions presented. mantel of Limerick, with the inscription, The peremptory writ is denied, and the "The laborer is worthy of his hire."

cause is dismissed, at the costs of the plainA careful examination of the record fail- tiff. ing to disclose reversible error, it will be

All the Justices concurring. unnecessary to consider the remaining questions raised, and the judgment of the trial court will be affirmed.

(17 Okl. 370) All the Justices concurring.

CULBERTSON et al. V. ALEXANDER. (Supreme Court of Oklahoma. Sept. 6, 1906.)

1. MUNICIPAL CORPORATIONS-USE OF STBEETS (17 Okl. 465)

-BUILDING MATERIALS. TERRITORY ex rel. BURROUGHS et al. v. As a general rule, owners of property abutYATES et al.

ting on a street in a city may use such parts

of the street as are necessary for the enjoyment (Supreme Court of Oklahoma. Sept. 6, 1906.)

of their property. Among these rights of an COUNTIES-REMOVAL OF COUNTY SEAT.

abutting owner is the right to temporarily deThe removal of the county seat from Clouc posit in the street material necessary for the Chief, in the county of Washita, to the town construction, erection, or repair of a building of New Cordell is legalized by act of Congress (in the absence of municipal regulations to the approved March 3, 1906 (chapter 512, 34 Stat. contrary). But the right to deposit such ma50).

terial for the erection or repair of a building (Syllabus by the Court.)

must not interfere with the rights of the public

to use the street, or unreasonably interfere with Application by the territory, on the rela- the rights of an adjacent property owner, and tion of W. E. Burroughs and others, for

for such material must not remain in the street writ of mandamus to William H. Yates and

an unreasonable length of time.

[Ed. Note.-For cases in point, see Cent. Dig. others. Writ denied.

vol. 36, Municipal Corporations, $$ 1445, 1493.] Virgil M. Hobbs and Strang & Devereaux, 2. SAME-UNREASONABLE USE-QUESTION FOR for plaintiff. Wisby & Tibbetts, T. A. Ed- JURY.

Whether the material in this case remained wards, J. W. Smith, and Massingale & Shean,

in the street an unreasonable time, and whether for defendant.

reasonable care was exercised to prevent inter

ference with the property or business of the HAINER, J. This is an original proceed- adjacent owner, were question of fact for the

jury to determine under all the circumstances ing in mandamus to compel the defendants to

of the case. restore the county seat to Cloud Chief, in

3. APPEAL-HARMLESS ERROR. the county of Washita, Okl., from which

A statement by counsel for plaintiff in the place it was removed to the town of New course of the closing argument, that the plainCordell, after the question had been submit

tiff had recovered a fixed amount in the court

below, was improper, but under the circum ted to a vote of the qualified electors of

stances of this case it is held to be insufficient said county and duly carried, and the county to warrant a reversal of the cause, seat ordered removed, in accordance with the (Syllabus by the Court.)

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