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CARRIERS-Continued.
4. Same-Action for Damages to Live-Stock Shipment—Contract Limi-

tation-Waiver. An allegation in a petition in an action for in:
juries to live stock shipped under a contract requiring suit within
a certain time, that the delay in suing was due to pending nego-
tiations between plaintiff and connecting carriers, held not to
state an implied waiver of the contract limitation by the initial

carrier. Harrington v. Wichita Falls & N. W. Ry. Co.
5. Same-Special Contract—Validity. In action for delay in ship

meirt of live stock, evidence held insufficient to show fraud or op-
pression relievirg shipper from compliance with special contract.

St. Louis & S. F. R. Co. v. Taliaferro
6. Same-Shipper's Choice of Rates—Notice. Where carrier has

published and filed two rates for shipment of live stock, one
based on special contract and higher rate on unrestricted lia-
bility, shipper is charged with knowledge of two rates and may

exercise option between them. Idem
g. Same-Non-Compliance With Contract-Liability of Carrier. Where

live stock are shipped under special contract relating to notice
of claim and time for suit, at reduced rate published and filed
with Interstate Commerce Commission, carrier is not liable in
absence of fraud, attempted rebating or unlawful billing, where

shipper failed to comply with provision of contract. Idem ....
CASE-MADE-See "Appeal and Error," 7, 10-16; "Courts."
CHAMPERTY AND MAINTENANCE:
1. Deeds—Right to Relief-Validity Against Third Parties.

Though deed is void as champertous under Rev. Laws 1910, sec.
2260, as against party in adverse possession, it is not void as be-
tween parties, and where parties joined in action to cancel deed
of adverse claimant a judgment for plaintiffs. notwithstanding

such champertous deed, should be sustained. Tyler v. Roberts..
CHARGE TO JURY_See "Instructions."
('HATTEL MORTGAGES--See “Alteration of Irstruments."
Validity — Description of Property. Where in a chattel mortgage

the property, excluding the description added. was described as
"three new Michigan automobiles, forty horse power, No.-"
and the mortgage provided that the property should not be moved
from Oklahoma county, and the property was replevied in Okla-
homa county as the property of the mortgagor. held, that the
description is sufficient under the circumstarces, and the mort:
gage was not void for uncertainty in the description of the propr

erty. Stiles v. City State Bank
('HECKS-See “Banks and Banking."

519

as

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572

CITATION OF AUTHORITIES-See “Appeal and Error," 19.

CLAIMS-See “Assignments"; "Corporatiors"; "Pleading," 1.

CLERKS OF COURTS–See "Appeal and Error," 50.

COLLATERAL ATTACK-See "Guardian and Ward"; "Judgment,” 2.

COLLECTIONS-See "Guardian and Ward."

('OMITY—See “Courts."

('OMMERCE-See "Interstate Commerce."

('OMMERCIAL PAPER-See "Bills and Notes."

COMMISSIONS-See “Brokers."

('OMMON ('ARRIERS-See “Carriers."

COMPLAINT-See “Intoxicating Liquors."

COMPROMISE AND SETTLEMENT--See "Evidence," 8.

CONDITIONAL SALES-See “Sales." .

CONSIDERATION—See “Bills and Notes," 1; "Cancellation of Instru-

ments."

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CONSPIRACY:
1. Judgment Against One-Torts. 'Where an action is brought,

founded upon tort, and it is a verred in the petition that the acts
complained of were done in pursuance of a conspiracy on the part
of the defendants, and plaintiff fails in his proof of the con-
spiracy charged, he may, nevertheless, recover damages against
such of the defendants as are shown to be guilty of the tort.

Harbison y. White
2. Same-Gist of Action. Though a conspiracy be charged in an

action of tort, the conspiracy is not to be considered as of the

gist of the action. Idem
3. Same--Instructions. Where an action of tort is brought, and it

is averred in the petition that the wrong complained of was in
pursuance of a conspiracy, it is reversible error to instruct the
jury that if the conspiracy is not shown by the evidence to exist,
they should find a verdict for the defendants, if there is any evi-
dence reasonably tending to sustain the allegations of wrong

alleged against any one of the defendants. Idem ..
('ONSTITUTIONAL LAW-See “Carriers"; "Homestead"; "Master

and Servant.” 10; "Schools and School Districts"; “Telegraphs

and Telephones.”
('ONTINUANCE -See “Appeal and Error," 34.
CONTRACTS–See “Accord and Satisfaction"; "Assignments"; "Banks

and Banking"; "Bills and Notes"; "Bonds" ; "Brokers”; Carri-
ers" : "Chattel Mortgages" ; Corporations" ; "Counties"'; “Courts" :
“Depositions"; "Estoppel" ; "Evidence,” 9; "Exchange of Prop-
erty"; "Frauds, Statutes of" ; "Gaming"; "Indians" : “Infants" :

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CONTRACTS.--Continued.

"Insurance"; "Master and Servant,” 1, 2; "Mechanics' Liens" ;
"Mortgages" ; "Pleading," 1; “Principal and Surety”; “Sales" ;

"Subrogation”; “Trusts"; "Usury."
1. Validity-Location of Post Office-Public Policy. A contract con-

templating the establishment and maintenance of a post office at
a certain place for the private advantage of the signers thereof,
as contradistinguished from the interest of the general public, and
providing that certain payments should be made contingent upon
the accomplishment of such purpose, is contrary to the public
policy of the state and void. Whitaker v. First Nat. Bank of

Sapulpa
2. ***Condition Precedent." A "condition precedent" of a contract is

one which calls for the performance of some act, or the happen-
ing of some event, after the contract is entered into, and upon the
performance or happening of which its obligations are made to

depend. Northwestern Nat. Life Ins. Co. v. Ward....
3. “Condition Subsequent.” A "condition subsequent” of a contract

is one which follows the performance of the contract and
operates to defeat or annul it upon the subsequent failure of

either party to comply with the condition. Idem. ..
4. DamagesBreach of Contract. Where A. contracts to perform

work for B., and in order to fulfill his contract A. hires machinery
and employs skilled men to operate it, and without fault on his
part A. is delayed in his work by B.'s failure to furnish material
as agreed, A is entitled to recover damages for delay proximately
caused to him, and the rent of the machinery and the hire of the
men are proper elements of damage in this character of case.

City of Chickasha v. Hollingsworth.
CONTRIBUTORY NEGLIGENCE-See "Master and Servant," 10.
CONVERSATIONS-See “Evidence,” 3-5.
CONVEYANCES-See “Assignments" ; "('ancellation of Instruments" ;

"Deeds"; "Fraudulent Conveyances"; "Indians"; "Infants" ;

"Mortgages."
CORPORATION COMMISSION-See “Telegraphs and Telephones."
CORPORATIONS-See "Assignments"; Banks and Banking"; "Carri-

ers” ; “Execution" ; "Fraud" ; "Railroads”; “Telegraphs and Tele-

phones.”
1. Corporate Stock-Purchase From "Surplus Profits." "Surplus

profits," within Comp. Laws 1909, sec. 1268, poviding that a cor-
poration may purchase its own stock from such profits, implies
the difference above the capital stock, debts and liabilities, re-
gardless of whether the surplus was created by the stockholders
or from earnings. Western & Southern Fire Ins. Co. v. Mur-
phey

341

702
702

702

CORPORATIONS.—Continued.
2. Same-Action on Purchase-Money Notes–Utlra Vires-Estoppel.

Where a corporation purchased its president's stock and released
him from stock subscriptions in consideration of his resignation,
it was estopped in an action on its notes given therefor to plead

that the contract was ultra vires. Idem..
3. Same-Defense of Ultra Vires-Burden of Proof. Where the de-

fense is that the corporation in executing the notes sued on ex:
ceeded its powers, the burden of proving such want of power is

on the party alleging same. Idem. ...
4. Sale of Stock-Action on Purchase-Money Notes—Defense-Breach

of Contract. An answer in a suit on purchase-money notes given
for corporate stock, which alleged that plaintiff made a contract
for such sale of stock, and that the same was broken by him,
causing damage to another, which claim has been transferred to
the pleader before suit, held to state a defense, and that it was

error to sustain the demurrer thereto. Stringer v. Kessler...
5. Process Service of Summons-Officers. Service of summons on a

corporation is limited to the class of officers and agents specified

in Rev. Laws 1910, sec. 4715. M. Rumley Co. v. Bledsoe....
6. Same-Amendment of Return. Where service is actually made on

the proper officer or agent of a corporation a return, failing to
to show this fact, may be amended. Idem. .

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278

('OSTS-See "Courts" ; "Justices of the Peace," 9.
1. Taxation of Costs-Judgment. In an action to recover money only,

it is error to give judgment against defendant for costs unless
judgment be rendered for plaintiff in some amount. Ranson v.

Capron Hardware Co.......
2. Same-Tender Pending Suit-Settlement. Where pending suit

plaintiff accepts a sum not as a settlement but only as a tender,
and this is found to be the amount actually due, defendant is liable

only for costs accruing prior to the tender. Idem .....
3. Same. In the absence of a stipulation to the contrary, where pend-

ing suit plaintiff accepts a certain sum as a settlement, he is
liable for all costs, including those accruing before the settle-
memt. Idem..

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('OUNTERCLAIM-See "Set-off and Counterclaim."

COUNTIES:
1. Contracts Failure of Commissioners to Require Bond-Liability

to Materialman. Members of the board of county commissioners
contracting for bridge to cost over $100 are not liable to person
furnishing materials to contractor because of failure to require

him to give bond. Bushnell v. Haynes..
2. Same. One selling material to contractor for public improvement

for county before bond has been given cannot recover damages
from officer who failed to require bond. Idem. .

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COUNTIES.-Continued.
3. Same-Necessity of Bond. The giving of bond required by Rev.

Law's 1910, sec. 3881, is condition precedent to obligation of con-
tract for public improvement to cost more than $100, and is

implied if not expressed in contract. Idem..
4. Same. One who contracts with public officer for public improve-

ment to cost more than $100 has no right to proceed till he has
given bond indemnifying persons who furnish labor and material

for construction of the improvemert. Idem. ...
5. Remuneration for Services-Petition-Sufficiency. Petition in

action against a county for services of a detective agency held
not to state a cause of action on express contract or quantum

meruit. Smith v. Board of Com'rs of Oklahoma County..
COUNTY ATTORNEYS—See “Prosecuting Attorreys."
COUNTY STENOGRAPHERS-See "('ourts."

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672

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38

COURTS-See "Appeal and Error." 3; "Bankruptcy"; "Guardian and

Warı"; "Judgment"; "Justices of the Peace."
1. Jurisdiction—Title and Custody of Property. A court having pos-

session of property may determine all questions relative to title,
possession, and control of same. Darrough v, First Nat. Bank of

Claremore
2. County Stenographer-Compensation—Transeripts of Testimony.

Under the provisions of sections 20, 21, and 22, c. 69, Session
Laws 1910, and of sections 1833, 1836, and 1838, Rev. Laws 1910.
the only compensation to which the county stenographer is en-
itled for making transcripts of shorthand notes of testimony
taken and proceedings had in the county court and for making
transcripts of the records of causes in such county court to con-
stitute a case-made is the salary prescribed by the statute.

Waide v. Atchison, T. & S. F. Ry. Co......
3. Rule of Court-Dismissal of Appeal. The county or district court

has no authority to promulgate a rule requiring a party appeal-
ing a cause from the justice of the peace court to make a deposit
with the clerk of the appellate court to apply on costs accruing
in said court. nor has the court any right or authority to dismiss
the appeal upon failure to comply with such rule. St. Louis &

S. F. R. Co. v. McAllister .....
4. Federal Courts-Ancillary Jurisdiction-Rigbt of Property. The

ancillary jurisdiction of a court to determine all questions as to
rights in property of which it has taken possession, may be ex:
ercised by federal courts, though not authorized by statute.

Darrough v. First Nat. Bank, Claremore.
5. Comity-Foreign Contracts-Enforcement. Comity does not re-

quire that Oklahoma uphold foreign contracts violative of the
penal statutes or public policy of Oklahoma. Coffe & Carkener
V. Wilhite

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