ant exclusive agency in the territory named. The court properly refused to permit that contract to be modified by parol testimony, and, accordingly, rightfully directed the jury to return a verdict against the defendant on its cross-petition. plaintiff's petition, and therein alleged to be its products was in writing. It is clear and correct. The defendant, by answer, denied unambiguous, and did not grant the defendunder oath the correctness of this account and filed a cross-petition, wherein it sought to recover from the plaintiff damages for an alleged breach of contract, whereby the defendant claimed the plaintiff had given unto the defendant the exclusive right to sell its products, in certain designated counties of the state. The court directed the jury to re-dict and rendering a judgment in favor of the turn a verdict in favor of the plaintiff, and thereupon it rendered judgment accordingly. The defendant appeals to this court. We will refer to the parties according to the position they occupied in the lower court. For error of the court in directing à ver plaintiff upon the account, upon which the plaintiff's petition is based, the judgment of the lower court is reversed, and remanded for a new trial in accordance with this opinion. MCNEILL, C. J., and NICHOLSON, HARRISON, BRANSON, JOHNSON, WARREN, and GORDON, JJ., concur. (Syllabus by the Court.) Divorce 152-Granting divorce in absence of competent evidence reasonably tending to establish grounds alleged, reversible error. The plaintiff offered in evidence a written statement of a part of the account sued on, which had been prepared by inserting there on the substance of the entries appearing upon the books of the plaintiff company. The defendant sufficiently objected to the competency of this evidence, but the court admitted BROCKHAUS v. BROCKHAUS. (No. 14829.) the same in evidence and the defendant ex-(Supreme Court of Oklahoma. Oct. 28, 1924.) cepted. This was error. See section 653, C. O. S. 1921. Thereupon counsel for plaintiff asked of the witness who produced the statement of account a question calling for the consideration of this statement and certain other proven payments made thereon, after the statement of account had been written, and a determination by the witness there from of the net amount then due. The question and the answer of the witness thereto amount to a recital by the witness that the sum designated by the question was then due and owing by the defendant to the plaintiff. No objection to this particular question was made by the defendant, but the objection to the admission in evidence of the statement of account was sufficient to constitute an objection to this question. Where a document, incompetent as evidence, is erroneously received in evidence, over sufficient objections and exceptions of a party to the action, every subsequent question which involves the consideration of such document is likewise incompetent, and the action of the court in permitting such question to be propounded and answered may be urged as error on appeal, without objection having been specifically made thereto in the lower court. See 3 C. J. p. 823, par. 734; Metropolitan Nat. Bank v. Commercial State Bank, 104 Iowa, 682, 74 N. W. 26; Vaughan v. Wm. F. Davis & Sons (Mo. App.) 221 S. W. 782; Jordan v. Kavanaugh, 63 Iowa, 152, 18 N. W. 851. The question and answer referred to constitute incompetent evidence, and it was error of the court to admit the same. There is no other evidence to support the judgment in favor of the plaintiff upon this account, and the judgment therefore cannot stand. The agency contract by which the plaintiff granted to the defendant the right to sell In a divorce proceeding, it is reversible error to grant the decree in the absence of legal and competent evidence being offered which reasonably tends to establish the legal grounds alleged. Commissioners' Opinion, Division No. 3. Appeal from District Court, Woodward County; James B. Cullison, Judge. Action by Mattie Brockhaus against Herman A. Brockhaus. From a judgment for remanded for new trial. defendant plaintiff appeals. Reversed and Edward Dewes Oldfield, of Oklahoma City, and Eben L. Taylor, of Tulsa, for plaintiff in error. S. M. Smith, of Woodward, and Horton & Horton, of Oklahoma City, for defendant in error, JONES, C. This action was instituted in the district court of Woodward county, Okl., by the plaintiff in error, plaintiff in the trial court, and against the defendant in error, defendant in the trial court, for separate maintenance and support. The plaintiff, Mattie Brockhaus, and the aefendant, Herman A. Brockhaus, were married in 1918, and lived together as husband and wife until 1921; while the plaintiff was absent from home in the state of Washington, where she owned some property, attending to her affairs, the defendant instituted a divorce proceeding, and shortly after the said Mattie Brockhaus returned from the state of Washington to her home, plaintiff and defendant entered a property settlement, and (230 P.) it is now alleged by the plaintiff in this cause of action, that the consideration for such an agreement was that the divorce proceeding then pending, in which Mattie Brockhaus, who was the defendant in that case, and the plaintiff in this case, had filed a cross-petition asking for divorce and alimony, should be dismissed, and their marital relations should be restored. Plaintiff further alleges cruel treatment and gross neglect of duty, but does not pray for a divorce. The defendant filed his answer in the nature of a general denial and cross-petition, and prays that a divorce be granted said defendant, and that the former property settlement be set aside, alleging same to be void and against public policy. And, among other things which he alleges as grounds for a divorce, charges that the plaintiff, his wife, seasons her cooking too highly, and that she is a woman of much language, that she claims to be a sister of one Joe Wigham, to whom she gave some old clothes, and while it is possible that she is the sister of said Wigham, said cross-petitioner has always doubt ed the statement. The above said excerpts are quoted as being samples of the allegations or averments of defendant's cross-petition, and we deem it unnecessary to incumber the record with a copy of same, as it is rather lengthy. The case was submitted to the court, and judgment rendered in favor of the defendant on his cross-petition, granting him the divorce, and also set aside the former property agreement made between the plaintiff and defendant; and judgment was rendered in favor of the plaintiff, allowing her certain alimony or maintenance money, from which judgment of the court the plaintiff prosecutes this appeal, and sets forth various assignments of error. Appellant first contends that the judgment | should be reversed for the reason that the court was without jurisdiction to render same, because of the fact that the cross-petition upon which the divorce was granted was not verified, and calls attention to various authorities, and the statutes requiring verifications of petitions and answers in divorce proceedings; but there seems to be some conflict as to whether or not this contention is correct. Appellees contend that the answer was properly verified, and we are not passing on the merits of this contention, as we deem it unnecessary, in view of the fact that we think the second proposition alleged entitled appellant to a reversal of this case, to wit, that: "There was neither evidence nor law to support the judgment for divorce in favor of the defendant." The record discloses that on the trial of the case, and after the plaintiff had rested her case, the following colloquy occurred be tween counsel for defendant and the court: I don't wish to impose on your time or pa"Mr. Robertson: May it please the court, tience; but would you care to hear his story of their married life or do you want to enter into the question of their property alone?" Whereupon the court stated: "The Court: No; I don't want to hear it. You set it out in your pleadings, and I will take it for granted that you both told me the truth about this." The defendant, Brockhaus, was then placed on the stand and proceeded to testify concerning the property rights, but was not asked to make proof of any of the allegations contained in his cross-petition set up as grounds for a divorce, and no proof was made of any kind or character to establish the allegations of his cross-petition in this particular, and in the findings of facts delivered by the court, we find this statement: "As a conclusion of law, or as a legal proposition, one is just as much to blame as the where. It is a very serious mistake to marry other, if there is any blame to be placed anyunder the circumstances and conditions under which they married. That is all passed and gone, and they ought to be divorced." Which we think is evidence of the fact that no testimony had been offered to establish the grounds alleged for a divorce by the defendant. The court may have felt that these people made a mistake in marrying, but there is no law which authorizes the granting of a divorce, we are glad to say, merely for mistake, and knowledge possessed by the court, outside the record, will not justify the granting the decree. Section 515, C. S. 1921, provides: "But no divorce shall be granted without proof." The appellant discusses other propositions as to the rights of the court to cancel the property contract, formerly made, and also that the award for maintenance and support was inadequate, and error of the court in refusing to permit the introduction of certain evidence on the part of the plaintiff, but we deem it unnecessary to pass on these matters at this time, and recommend that the case be reversed and remanded for a new trial on all of the issues involved. tiff's petition on each cause of action and DE LOZIER v. COLLIER, Drainage Com'r. the dismissal of same. There have been a (No. 13379.) number of cases before this court, in which various sections of the drainage act have (Supreme Court of Oklahoma. Oct. 28, 1924.) been construed, but in no case, so far as Drains (Syllabus by the Court.) we have been able to find, or that has been 20-Suit for damages will not lie called to our attention, has the court passed against drainage district. Under chapter 38, Compiled Laws 1921, entitled "Drains and Ditches," there is no authority for a drainage district to sue or be sued, and a suit for damages will not lie against such drainage district. Commissioners' Opinion, Division No. 1. Appeal from District Court, Lincoln County; Hal Johnson, Judge. Action by Emma De Lozier against D. 'W. Collier, Drainage Commissioner of Deep Ford Drainage District No. 1, Lincoln County. From a judgment for defendant, plaintiff appeals. Affirmed. Emery A. Foster and Jas. A. Embry, both of Chandler, for plaintiff in error. Embry, Johnson & Tolbert, of Oklahoma 'City, for defendant in error. MAXEY, C. The parties appear in this court as they did in the court below, and will be referred to as plaintiff and defendant. This is an action by the plaintiff, Emma De Lozier, to recover damages which she alleged was caused to her crops from the overflow of a ditch or drainage constructed through her lands by said drainage district. In her petition she alleges that she is the owner and possessed of the fee-simple title in and to the south one-half of the southwest quarter of section 10, township 14, range 6, and the north one-half of the northwest quarter of section 15, township 14, range 6, Lincoln county, Okl.; that heretofore the county commissioners of Lincoln county, Okl., as drainage commissioners, under and by virtue of section 6039, Com piled Laws of 1921, known as the Oklahoma 'State Drainage Act, the same being chapter 38 of Compiled Laws of 1921, entitled "Drains and Ditches." She alleges a failure on the part of the commissioners to comply with certain sections of the statute relating to the formation of drainage districts, and alleges defective construction of the ditch which caused the water to overflow and damage her crops for the years 1918, 1919, and 1920, amounting to several thousand dollars for the three years. A demurrer was sustained to her petition. She excepted and elected to stand on her petition, and in due time this appeal was lodged in this court. The only error assigned is to the sustaining of defendant's demurrer to plain upon the question of whether an action for damages will lie. Some of the cases that have been brought to this court for damages are very similar to the petition in this case, and have reached this court on a demurrer to the petition, and the judgment of the court sustaining the demurrer has been affirmed. There have been other cases based on other sections of the statute, but, as before said, none of them decide the question as to whether damages can be recovered from a drainage district on count of overflow of the land and damage to the crops of persons living along said ditch. ac An examination of the provision of all the statutes will show that the object and purpose of the statute is to reclaim swamps and land subject to overflow, and make it suitable for cultivation and production of crops therefrom. In the first place, it is presupposed that the land is unfit for cultivation, and for that reason the Legislature in its wisdom saw fit to enact laws that would enable the owners of the lands to form a quasi corporation or organization by which they could ditch the land along and through said swamps or overflow district, and by ditches and drains reclaim the land and reduce it to a state of cultivation for agricultural purposes. The statutes provide how a drainage district can be created or organized. It provides for a petition of the property owners and the appointment of viewers to act under the county engineer, and making estimate of the cost of drainage, and report to the board of county commissioners. The board of county commissioners must give notice by publication of the proposed formation of the drainage, district, and that there will be a hearing on a day certain, and warning all people interested to appear and file their objection, if any, to the formation of such districts, and, in failing so to do, they shall be forever barred and estopped from setting up any claim on account of the organization of said drainage district. The statute then provides for an assessment against the property to be made, and a notice is required to be published of the amount assessed against each piece of property, and the owners are again warned to appear at the hearing and file their objections, if any, and, upon such objection being filed, the board of county commissioners shall investigate such objection, and may reduce the assessment on some and increase it on others. (230 P.) The purpose of this being that each par- Counsel thinks that the Illinois court has ticular piece of land shall be taxed and re- receded from the decision in the Elmore quired to pay its proportional part of the Drainage Case, and lays down a different expense of constructing the drainage ditch rule in Bradbury v. Vandalia Levee & Drain. based on the benefit said land will derive Dist., 236 Ill. 36, 86 N. E. 163, 19 L. R. A. from the construction of such ditch. Either (N. S.) 991, 15 Ann. Cas. 904. An examinaparty may appeal from the decision of the tion of the drainage act of Illinois will disboard of county commissioners to the dis- close an amendment to the drainage laws trict court, and have the case tried in the between these two decisions, which probdistrict court as other cases. If no appear- ably accounts for the conflict, if there is ance is made, the judgment of the board of a conflict, in the two cases. Counsel for county commissioners becomes final, and the defendant in error has cited a great many parties must pay the amount of taxes levied cases from other states, and especially the against their respective properties. All state of Arkansas, which seems to have these provisions of the statutes must be had a great many cases over their drainage substantially complied with in order to le- districts. The road improvement legislation gally form a drainage district. in the various states has produced a lot of litigation. But an examination of the statutes of the various states creating drainage district and road improvement districts and like legislation will show that the decisions of other states are not very helpful to us, because we find that the statutes are somewhat different in all of the states. As befor stated our court has never passed on the question of whether damages can be recovered against the drainage district. We can find nothing in the drainage act that authorizes a suit for damages against the drainage district. In other words we seem to adhere to the common-law rule, and as decided in Montgomery v. Krouch, supra, the general rule is that drainage districts can neither sue nor be sued unless provided by statute, and our statute does not provide for their suing or being sued. It appears from the petition in this case that the plaintiff got notice in some way that a drainage district was being organized. She found out that there was a tax levied against her land, and she alleges that she paid taxes under protest. The petition alleges in a general way irregularities in the formation of said drainage district. The case of Mulligan v. Johnson, 77 Okl. 68, 186 P. 242, was a case from Grady county, whereby the plaintiff Johnson sought to restrain the county treasurer from calling the assessments levied against his land. This case raised the question of irregularities of assessments against the property of plaintiff, and the court held that under the showing made in that case the commissioners had no jurisdiction to create the district, and therefore no valid assessment could be levied against the property of the plaintiff for the construction work. The case of Montgomery v. Krouch, 77 Okl. 51, 186 P. 218, is a case where the plaintiff claimed damages for a failure to keep the drainage ditch in repair and for damages for causing his land to be overflowed. The trial court sustained a demurrer to the evidence of plaintiff on the first cause of action, and laid down the procedure for a person who claims damages for a failure to keep the drainage ditch in proper repair, and points out the sections of the statute under which he shall proceed. Counsel for plaintiff in error says that our court seems to follow a line of decisions based upon Elmore v. Drainage Commissioners, 135 Ill. 269, 25 N. E. 1010, 25 Am. St. Rep. 363. 230 P.-16 Since the institution of this suit, the Legislature, no doubt having in mind the defects of our drainage act by Act of March 28, 1924, being chapter 139 of Session Laws of 1923-24 have almost completely rewritten our drainage law, and in this new act they have provided for just such cases as this, and laid down the procedure by which a person who is damaged by the construction or maintenance of drainage ditches may recover damages, and it also provides a means of paying such judgments, so that the defects that plaintiff met with in this case have been provided for, but too late to help him in the present case. Th judgment of the trial court sustaining the demurrer to the petition in this case should be affirmed. KUHARA TRADING CO., Ltd., v. RUSSELL JOBBERS MILLS. (No. 13366.) (Supreme Court of Oklahoma. Oct. 21, 1924.) (Syllabus by the Court.) Sales 182(1)-Counterclaim, based on failure of goods to comply with contract, held properly submitted to jury. Defendant contracted with plaintiff for 50 tons of Chinese shelled peanuts of a certain count per ounce, average quality, at $12.90 per hundredweight on board cars for Pacific Coast ports to be paid for on presentation of bill of lading, invoice, and certificate of quality of the Chamber of Commerce at the place of shipment; and plaintiff shipped 20 tons of Chinese shelled peanuts, and drew sight draft on defendant, with bill of lading attached, invoice, and Seattle Chamber of Commerce certificate of quality attached; and defendant paid said draft before the arrival of the peanuts at Oklahoma City, and upon the arrival they were unloaded and inspected, and it was found that the peanuts did not come up to the terms of the contract in quality or count, but were of an inferior quality and unfit for the use and purposes for which the defendant purchased them; and upon receipt of the peanuts and inspection, defendant within a day or two notified plaintiff and sent it a sample of the peanuts, and notified plaintiff that it would hold it for any loss sustained by reason of the peanuts not coming up to standard and quality, and the defendant in the same letter canceled the balance of the order, and thereafter plaintiff shipped the remaining 30 tons to defendant at Oklahoma City, and drew on it for same, and defendant refused to receive said peanuts, and plaintiff sold them to other parties, and sued defendant for the difference between the contract price and the amount it received for the 30 tons,. and defendant answered and counterclaimed and set up the damages that it sustained on the 20 tons it had paid for, and recovered judgment on its counterclaim. Held, that the trial court was right in submitting the counterclaim to the jury and entering judgment on their verdict. Commissioners' Opinion, Division No. 1. Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by Kuhara Trading Company, Limited, against Russell Jobbers Mills. From a judgment for defendant, plaintiff appeals. Affirmed. is in writing, was for 50 tons of Chinese shelled peanuts 38/40 count per ounce, fair average quantity, of the season of 1919, to be shipped from the Orient within the months of December, 1919, January, February, and March, 1920, at $12.90 per hundredweight delivered aboard cars for Pacific Coast ports to be paid for on presentation with bill of lading, invoice, and certificate of quality at port of entry attached. About January 10, 1920, plaintiff delivered 20 tons of said nuts f. o. b. Seattle, Wash., and presented sight draft therefor with bill of lading, invoice, and Seattle Chamber of Commerce certificate of quality attached. The defendant did not pay this sight draft until about March 12, 1920, and shipment did not arrive until a day or two afterwards. The defendant unloaded said peanuts, and then had them inspected and found that they did not come up to the quantity or quality mentioned in the contract. But, with the exception of a few sacks, said peanuts were all of lower grade and inferior quality than that described in contract. The defendant, after inspecting said shipment, notified the plaintiff that the peanuts did not come up to the grade mentioned in the contract, nor were they of the quality mentioned in the contract, and notified the plaintiff that it would hold plaintiff for the difference in nuts at the, contract price which it paid, and price they were able to get for the nuts, and.canceled the order for the balance of the nuts contracted for. Defendant filed answer to plaintiff's petition, and filed a counterclaim for the difference between the nuts contracted for and what they were enabled to sell the nuts for and claimed the difference amounted to $3,075.16. The plaintiff filed a reply to the answer and cross-petition in the nature of a general denial, and the case went to trial before the court and a jury, and the jury found for the defendant on its counterclaim and assessed its damages at $1, and after unsuccessful motion for new trial, plaintiff gave notice of appeal and took time to prepare and serve case-made, and the case was duly appealed to this court. The plaintiff in error groups its assignment of errors under two heads: "First. Permitting defendant to introduce evidence as to the quality of the 20 tons deterKeaton, Wells & Johnston, of Oklahoma mined by its inspection and examination thereCity, for plaintiff in error. Shirk, Danner & Fowler and Clarence Mills, all of Oklahoma City, for defendant in error. MAXEY, C. The parties appear in this court as they did in the court below, and will be referred to as plaintiff and defendant. This action is brought for the recovery of the value of 30 tons of Chinese shelled peanuts which plaintiff sold to defendant on December 1, 1919. The contract of sale, which of on delivery at destination. "Second. Refusal to instruct that the defendant was estopped to prosecute its counterclaim based upon the alleged inferior quality of the 20 tons delivered, because of its refusal to arbitrate the dispute as to quality." The contract is in writing, but we will only refer to such parts of it as apply to the controversy in this case. The contract provides for 50 tons of 2,000 pounds each, Chinese shelled peanuts, new crop 38/40 count, $12.90 per hundredweight net Orien |