F. H. Hurst, of Frederick, for plaintiff in error. J. O. Counts, of Frederick, for defendant the attorney makes no objection to the hear- HARRISON, J. Judgment in the aboveentitled cause was rendered April 22, 1919. The purported appeal was filed in this court October 28, 1919. June 4, 1920, defendant in error filed a motion to dismiss the appeal upon several different grounds, among which is that the appeal was not filed within six months from date of final judgment. Service of copies of such motion were duly made and acknowledged June 3, 1920, and no response has been made to same. It appears from the files that no record was filed in this court until after the expiration of six months from the date of final judgment in the trial court. The appearance without notice although not under the same facts, but under circumstances that may be considered analogous, is discussed by this court in the case of Pioneer Tel. & Tel. Co. v. Davis, 28 Okl. 783, 116 Pac. 432, and it is likewise discussed by the Supreme Court of Nebraska and Missouri Section 1, c. 18, Session Laws 1910-11; in the following cases; Schaberg's Estate v. McDonald, 60 Neb. 493, 83 N. W. 737; Craw-section 5255, Bunn's Ann. Sup., reads as folford v. Chicago, Rock Island & Pacific Ry., 171 Mo. 68, 66 S. W. 350. We are therefore of the opinion that, when the city attorney appeared at the time of hearing the motion to revive, filed no objection to the revivor, and asked for no time to file objections nor objected to the court hearing the motion at that time, the notice provided by statute was waived, and that failing to except to the order of revivor waived any irregularities therein, and that the court erred in vacating the order of revivor. For the reasons stated, the judgment of the trial court is reversed and remanded. RAINEY, C. J., and HARRISON, JOHNSON, KANE, PITCHFORD, HIGGINS, BAILEY, and COLLIER, JJ., concur. (80 Okl. 45) BOARD OF COM'RS OF TILLMAN COUN- (Syllabus by the Court.) Appeal and error ~356-Appellate proceedings not begun within six months from rendition of judgment or order dismissed. All proceedings for reversing, vacating, or modifying judgments, or final orders by appeal, shall be commenced within six months from the rendition of the judgment or final order complained of. Appeal from District Court, Tillman County; Frank Mathews, Judge. Action between the Board of County Commissioners of Tillman County and Pearl A. Little. There was a judgment for the latter, and the former appeal. Writ dismissed. lows: "All proceedings for reversing, vacating or modifying judgments, or final orders shall be commenced within six months from the rendition of the judgment or final order complained of; 'provided, that in case the person entitled to such proceedings be an infant, a person of unsound mind or imprisoned, such person shall have six months, exclusive of the time of such disability, to commence proceedings.' ” Under the foregoing statute, this court has no jurisdiction over the subject-matter in therefore the motion to discontroversy; miss is sustained, and the appeal dismissed. All the Justices concur. (80 Okl. 45) STONE v. DANIELS et al. (No. 9856.) (Supreme Court of Oklahoma. Dec. 14, 1920.) (Syllabus by the Court.) 1. Escrows 14(1)—Grantee obtaining deed without performing conditions acquires no title. Where a deed is delivered merely as an escrow, to be delivered upon the performance of certain conditions, it is, until such performance, a mere scroll; and, if the grantee obtains possession of the deed before the performance of the conditions, he acquires no title thereby. 2. Sufficiency of evidence. Record examined, and held, that the judgment rendered by the trial court is sufficiently sustained by the evidence. Appeal from District Court, Ellis County; T. P. Clay, Judge. Action by Charles E. Daniels and another against J. A. Stone and others. Judgment for plaintiffs, and the defendant named appeals. Affirmed. (193 P.) Scothorn & McRill, of Oklahoma City, for,sequently the deed, contrary to the instrucplaintiff in error. tions of Mr. Daniels, was delivered to Mr. C. B. Leedy, of Arnett, for defendants in Stone, who placed the same of record, whereupon this action was commenced. error. As we understand the contention of counsel KANE, J. This was an action to quiet for plaintiff in error, they concede that the title to certain tracts of land situated in evidence clearly shows that Mr. Landers did Ellis county, commenced by Charles E. Dan- not comply with the terms of the contract iels and Lottie F. Daniels, two of the de- on his part, but they say that the evidence fendants in error herein, against J. A. Stone, was not sufficient to support the judgment J. E. Armstrong, Bert Harris, and T. E. rendered because it did not show performLegoe. Landers, Armstrong, Harris, and Le-ance or a willingness to perform on the part goe not appearing, judgment was rendered by of Mr. Daniels. In support of this contendefault against them, whereupon the cause tion they quote from 9. Cyc. 723, as follows: proceeded to trial between Charles E. Daniels and Lottie F. Daniels as plaintiffs and J. A. Stone as defendant. After hearing all the evidence, the court rendered judgment in favor of the plaintiffs, to reverse which J. A. Stone appealed to this court, joining Landers, Armstrong, Harris and Legoe as defendants in error. As counsel for plaintiff in error concede in their brief "that the only question in this case is whether or not the judgment of the trial court is warranted by the evidence," an extended review of this becomes unnecessary. In our view of the case there is no material conflict in the evidence, which may be summarized briefly as follows: Some time during the month of June, 1916, Charles E. Daniels and Roy Landers entered into a contract whereby the former was to exchange certain lands belonging to them situated in Ellis county, Okl., for certain lands belonging to Landers situated in the state of Iowa. About this time Landers and Stone were also engaged in a land deal whereby Landers was to convey to Stone the Oklahoma lands involved in the contract with Daniels as soon as he acquired title thereto. For convenience Stone and Daniels agreed that Daniels would execute the deed to the Oklahoma lands direct to Stone, and that this deed, together with the contract between Daniels and Landers hereinbefore mentioned, was placed in escrow with Mr. Legoe until the terms of the contract were fully complied with. Pursuant to this arrangement, the deed and contract were placed in escrow, where they remained until after the time of performance by Mr. Landers had expired, whereupon, Mr. Landers not having performed the provisions of the contract according to its terms, Mr. Daniels notified all the parties of the failure of Mr. Landers to perform and of his intention to cancel the contract and withdraw the deed from escrow. Mr. Daniels also requested Mr. Legoe to return to him the papers placed in escrow, which the latter refused to do. Sub "In an action on a contract containing mutual and dependent or concurrent promises or covenants, the plaintiff must allege his readiness and willingness to perform his part of the agreement at the time and place stipulated." "Neither party to a contract can maintain an action for damages for its violation, without showing a readiness and ability to comply with his own engagements under the contract, etc." We do not deem these authorities to be in point. This is neither an action on a contract containing mutual and dependent promises, nor an action for damages for the violation of such a contract, but is, as we have seen, an action to quiet title upon the ground that the grantee in the deed obtained possession thereof without the performance of the condition upon which a delivery to the grantee was to [1] The rule is well established that where a deed is delivered merely as an escrow, to be delivered upon the performance of certain conditions, it is, until such performance, a mere scroll; and if the grantee obtains possession of the deed before the performance of the conditions he acquires no title thereby. Powers et ux. v. I. J. Rude et al., 14 Okl. 381. 79 Pac. 89. In another case it was held that where possession of an escrow is obtained, without performance of the condition upon which delivery to the grantee was to be made, no title passes. Hunter Realty Co. et al. v. Spencer et al., 21 Okl. 155, 95 Pac. 757, 17 L. R. A. (N. S.) 622. As these cases seem to sustain the action of the trial court, the judgment appealed from is affirmed. All the Justices concur. (80 Okl. 41) to plaintiff's account, without their knowlSKIEN et al. v. JUNCTION OIL & GAS CO. edge and consent and against their instruc et al. (No. 9908.) tion, and that they used the same, not know (Supreme Court of Oklahoma. Dec. 7, 1920.) ing the same had been deposited to their ac (Syllabus by the Court.) I. Mines and minerals 78 (2)-Lease cannot be terminated while lessee tenders rentals. Under an "unless" lease the lessor has no right to terminate the lease, while the lessee has paid or tendered the rentals according to the terms of said lease. 2. Trial 383-Demurrer to evidence in action to cancel lease held properly sustained. In an action by the lessor to cancel an oil and gas lease for failure to comply with the terms of the lease, and the lease is an "unless" lease, and the lessor admits plaintiff has paid or tendered all the rentals and royalties according to the terms of said lease, it is not error to sustain a demurrer to the evidence offered on behalf of the plaintiff. 3. Demurrer to evidence properly sustained. The record examined, and held that the court did not err in sustaining a demurrer to the evidence of plaintiffs. count, and they tendered the same into court, to wit, the sum of $16. The defendant anterms of the lease and during the term of the swered, claiming it had complied with all the ducing gas well, and had paid and tendered lease had completed and now owned a proall the rentals and royalties due thereon. Upon the trial of the case to the court it was admitted there was a mutual mistake in the lease, and the same was intended as a 5-year oil and gas lease, instead of a 20-year lease. The plaintiffs then introduced their evidence, and the defendant demurred to the same, and the court sustained the demurrer, and dismissed plaintiffs' cause of action in so far as it attempted to cancel the lease. From said Judgment the plaintiffs have appealed. It was admitted that the plaintiffs had brought their suit originally upon the theory that the lease was an optional contract, and under the holding of this court in the case of Brown v. Wilson, 58 Okl. 392, 160 Pac. 94, L. R. A. 1917B, 1184, the same might have been canceled, but since the case of Brown v. Wil Appeal from District Court, Kay County; son has been overruled, this proposition has W. M. Boles, Judge. Suit by H. B. Skien and Irene R. Skien against the Junction Oil & Gas Company and another. There was a judgment for defendants, and plaintiffs appeal. Affirmed. been eliminated from the case. It is, however, contended that the court erred in sustaining the demurrer to the evidence for the reason the evidence disclosed that the rentals had not been paid according to the terms of the lease, and the same was null and void. J. E. Curran, of Blackwell, for plaintiffs in The clause in the lease providing for the pay error. H. O. Caster, Hayes McCoy, S. N. Hawkes, C. C. Julian, and Warren T. Spies, all of Bartlesville, for defendants in error. MCNEILL, J. H. B. Skien and Irene R. Skien, the owners of 160 acres of land situated in Kay county, brought this suit on the 30th day of December, 1915, to cancel an oil and gas lease owned by the Junction Oil & Gas Company, and to reform said oil and gas lease, alleging that the oil and gas lease was for a period of 20 years, and that there was a mutual mistake, and the word "twenty" should have read "five" years. Thereafter A. J. Diescher intervened, claiming an interest in said oil and gas lease. On December 4, 1916, the plaintiffs filed their amended petition, praying for a cancellation of said lease on the grounds the same was unilateral and contained a surrender clause, and that the lessee reserved the right to surrender the lease at any time, and that a corresponding right existed in favor of the lessor. That the lessee had paid the rentals according to the terms of the lease in the Bank of Braman, Okl., but that the lessors had directed the bank not to accept the same, but the cashier did accept the same, and deposited the same ment of rentals is as follows: "If no well is commenced within two years and carried on without unnecessary delay of the above-described land then this grant shall become null and void unless second party shall pay annually thereafter in cash the sum of The same to be $16.00 on said land leased. deposited to the credit of first party in the bank at Braman, Oklahoma." The lease contained the further provision: of twenty years from this date, or so long as "This lease shall be operative for a period gas, oil or other minerals are found in paying quantities in, under or upon said land." [2, 3] It was admitted that the "twenty years" was left in said lease by inadvertence and mistake, and should read "five years." The plaintiffs admitted that they had received three payments of rentals, and under the terms of the lease there was none due for the first 2 years. Plaintiff testified as follows: "Q. Then it is paid up to March, 1916? A. Yes, sir; that is correct. "Q. And you have accepted it? A. Yes, sir." It was admitted then as follows: "The Court: I understand that but you had received the money for the rental? (193 P.) "Mr. Curran: Yes; they had come on there, murree, the demurrer should be overruled." during the time for which the rental was Lyon v. Lyon, 39 Okl. 111, 134 Pac. 650. paid. * * We concede that the rent was paid during the time." The further testimony is as follows: "Mr. Curran: Mr. Skien, during the last year for which rental was paid, was a well commenced? A. Yes, sir. "Q. Do you know the date of the commencement of that well? What was the date of the commencing of the well with reference to the starting of the suit, Mr. Skien? A. It was later. "Q. The well was commenced after this suit was started? A. Yes, sir. "Q. But was during the rental period for which the rent had been paid? A. Yes, sir. "Q. Mr. Skien, are you ready and willing at this time to pay back the rental money received for the year in which they made entrance and drilled this well? A. Yes, sir. "Q. Mr. Skien, as I understand it, you admit that you received the rental for the year on which the well was drilled on this land? A. Yes, sir; I admit that, but I would like to state "Q. We don't ask for anything further. All right; I admit it. A. "Q. On February 8, 1916, weren't you offered $100 for this well? A. I think it was the 3d of February. "Q. The 3d of February? A. Yes, sir. "Q. It was in February, however, 1916? Yes, sir. A. "Q. You had already accepted the rental on that for the year ending in March, 1916? A. Yes, sir. "Q. In February, 1916, you were offered $100? A. Yes, sir. "Q. You refused to accept it? A. Yes, sir. "Q. You didn't refuse to accept it because it was a check instead of the money? A. No, sir. "Q. You would have refused it even if the company had offered you the money, would you? A. Yes, sir. "Q. It wouldn't have made any difference if the money had been tendered to you in gold? A. No, sir." This evidence shows conclusively a full This rule is correct, but where a party admits or stipulates in the record certain facts, certainly a demurrer to the evidence does not withdraw the stipulation or admission from the record, and when the admissions and stipulations are conclusive on a question of fact, the court cannot indulge in inferences for the purpose of avoiding the binding effect of the admissions or stipulations. [1] The lease was a 5-year lease from March 29, 1911, and, it being an "unless" lease, the right of the lessee to pay the rental to lessor is settled by the case of Northwestern Oil & Gas Co. v. Branine, 175 Pac. 533, 3 A. L. R. 344, wherein this court stated as follows: "Under an 'unless lease,' the lessee of oil lands, so long as he pays the rentals in the manner provided, has an option to continue the lease in force, and it is subject to termination at his will, which privilege he may exercise by a failure to pay the stipulated rental, in which event the lease automatically terminates. The lessor has no right to terminate the lease while the lessee complies with its terms." By applying this rule, the petition of plaintiffs did not state a cause of action in so far as it attempted to cancel the lease, and the lessor had no right to refuse to accept the rental. Under the terms of the lease, the lease would expire March 29, 1916, unless the lessee had produced oil and gas on said premises prior to said time. It is admitted that gas was produced from the premises on or before said date, and the lessee had tendered to the lessor the royalty which would extend the lease for one year from March, 1916. It is, however, suggested that no rental or royalty was tendered for the year 1917, and by the peculiar terms of the lease, it is necessary to pay the rental after the discovery of oil or gas, and the case was not tried until November, 1917; therefore it was error to sustain the demurrer. This question was not an issue in the case. The amended petition was filed December 4, 1916, and the plaintiffs did not seek to cancel the lease for nonpayment of rentals. There is no allegation in the petition that the lease should be canceled and declared null and void for failure to pay rentals or royalties. That not being an issue compliance with the terms of the lease by the in the case, and plaintiffs failed to file a suplessee. It is contended, however, by plain-plemental petition alleging that the rentals tiffs in error that the following rule shall be applied: "A demurrer to evidence not only admits all facts the evidence tends to prove, and every reasonable deduction therefrom in favor of the demurree, but it withdraws and requires the court to ignore unfavorable evidence adduced by the demurrant; and, if the evidence is sufficient to sustain a judgment for the de or royalties for 1917 had not been paid, they cannot now claim that the lease should be canceled for that reason. It being admitted by the plaintiff that both the rentals and royalties had been paid or tendered for all rentals or royalties due prior to the commencement of the action, no supplemental pleadings were filed. There was no issue of fact presented to the trial court, nor any evidence to support any material allegation of the petition. Therefore the trial court did not err in sustaining the demurrer to the evidence. (80 Okl. 28) PINE BELT LUMBER CO. v. RIGGS. (No. 9655.) For the reasons stated, the judgment of the (Supreme Court of Oklahoma. April 6, 1920. trial court is affirmed. All the Justices concur. (80 Okl. 40) Rehearing Denied Dec. 14, 1920.) (Syllabus by the Court.) 1. Appeal and error 171(1)-Parties trying case on definite theory cannot change on appeal. HALL V. BANK OF COMMERCE OF OK- their case or defense to the trial court upon a The parties to an action, having presented MULGEE. (No. 11568.) certain, definite theory, are bound thereby, and (Supreme Court of Oklahoma. Dec. 7, 1920.) the case either at any subsequent stage in the will not be permitted to change the theory of (Syllabus by the Court.) Appeal and error 356-Writ of error dismissed, where petition is not filed within six months from judgment. Where petition in error is not filed in this court until after the expiration of more than six months from the date of the judgment appealed from, this court has no jurisdiction over the subject-matter, and the appeal will be dismissed. Appeal from District Court, Okmulgee County; Mark L. Bozarth, Judge. Action between T. L. Hall and the Bank of Commerce of Okmulgee. Judgment for the latter, and the former appeals. On motion to dismiss appeal. Appeal dismissed. trial court or in the appellate court upon appeal. 2. Master and servant 101, 102(1)-Reasonable care must be taken to provide reasonably safe conveyance when supplied. The master is bound to exercise reasonable care and diligence to provide a reasonably safe place in which the employee or servant is to work, and also reasonably safe machinery, tools, and appliances with which to work, and, where the master engages to convey the servant back and forth from his house to his work, to supply the servant with a reasonably safe means of conveyance. 3. Master and servant 100(1)-Contract re leasing liability for negligence void. A contract between master and servant, before the happening of an injury, whereby the Grant Gillespie and Graham & Barnett, servant, in consideration of the employment, or all of Okmulgee, for plaintiff in error. of the wages, agrees to release and discharge Roy A. Hockensmith, of Okmulgee, for de his master from liability on account of injuries fendant in error. BAILEY, J. It appears from the record in the above-entitled cause that the judgment sought to be reviewed was rendered by the trial court November 6, 1919, and that motion for new trial was overruled January 3, 1920. This appeal was filed July 6, 1920, more than six months after rendition of judgment and said final order. Defendant in error has filed its motion to dismiss on this ground, to which motion plaintiff in error has filed no response. It is essential, in order to have a judgment reviewed in this court, that the proceedings should be commenced here within six months from the date of the final order or the rendition of the judgment appealed from. Section 4452, St. 1893 (Sess. Laws 1910-11, c. 18, p. 35); Ham et al. v. Veasey (decided August 31, 1920) 191 Pac. 1094; Dickerson v. Moore, 76 Okl. 249, 185 Pac. 101; First State Bank of Warner v. Porter, 63 Okl. Pac. 672. 182 The motion is therefore sustained, and the appeal dismissed. RAINEY, C. J., and KANE, PITCHFORD, JOHNSON, MCNEILL, and HIGGINS, JJ., concur. caused by the negligence of his master or of the latter's servants, is forbidden by the Constitution (article 23, §§ 5, 7, and 8) and statutes of this state (Rev. Laws 1910, § 972), and is void as against public policy. Appeal from District Court, Choctaw County; C. E. Dudley, Judge. Action by Clifford Riggs against the Pine Belt Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed. McDonald & Jones, of Hugo, for plaintiff in error. Howe & Stanley, of Hugo, for defendant in error. JOHNSON, J. This action was commenc ed in the district court of Choctaw county by defendant in error, Clifford Riggs, plaintiff below, filing his petition against the plaintiff in error, defendant below, to recover damages upon the grounds which are substantially as follows: That at all of the times hereinafter mentioned the defendant owned and operated a lumber manufacturing establishment, including mills, dry kilns, and planers at Ft. Towson, in Choctaw county, state of Oklahoma, and in connection wherewith and as part |