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-
ment of live stock, evidence held insufficient to show fraud or op-
pression relieving shipper from compliance with special contract.
St. Louis & S. F. R. Co. v. Taliaferro
6. Same Shipper's Choice of Rates-Notice.
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
7. 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 as 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."
CHATTEL MORTGAGES—See "Alteration of Instruments."
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 circumstances, and the mort-
gage was not void for uncertainty in the description of the prop
erty. Stiles v. City State Bank
CHECKS See "Banks and Banking."
CITATION OF AUTHORITIES-See "Appeal and Error," 19.
CLAIMS See "Assignments"; "Corporations"; "Pleading," 1.
CLERKS OF COURTS-See "Appeal and Error," 50.
COLLATERAL ATTACK-See "Guardian and Ward"; "Judgment," 2.
COLLECTIONS-See "Guardian and Ward."
COMMERCE-See "Interstate Commerce."
COMMERCIAL PAPER-See "Bills and Notes."
COMMISSIONS-See "Brokers."
COMMON CARRIERS-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."
1. Judgment Against One-Torts.
Where an action is brought,
founded upon tort, and it is averred 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 v. White
Though a conspiracy be charged in an
action of tort, the conspiracy is not to be considered as of the
gist of the action.
Where an action of tort is brought, and it
3. Same-Instructions.
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 ..
CONSTITUTIONAL LAW-See "Carriers"; "Homestead"; "Master
and Servant." 10; "Schools and School Districts"; "Telegraphs
and Telephones."
CONTINUANCE -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":
"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. Damages Breach 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"; "Cancellation 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
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.....
COSTS-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-
ment. Idem....
COUNTERCLAIM-See "Set-off and Counterclaim.”
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...
3. Same-Necessity of Bond. The giving of bond required by Rev.
Laws 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 improvement. Idem...
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 Attorneys."
COUNTY STENOGRAPHERS-See "Courts.”
COURTS-See "Appeal and Error." 3; "Bankruptcy"; "Guardian and
Ward"; "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-Transcripts 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-
titled 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—Right 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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