excise board, and, if the county officials incur indebtedness over such amount, they and their bondsmen, and not the county, shall be liable for such indebtedness. There is no question raised as to the power and duty of the board of county commissioners to furnish the county officers necessary blank books, stationery, supplies, etc., at the expense of the county, and provide for their payment; nor that the supplies herein were furnished in pursuance of this power. It is stipulated in the agreed statement of facts that the goods, wares, merchandise, and supplies mentioned in the petition of the plaintiff were purchased for the county of Craig during the period from October 1, 1912, to January 11, 1913, inclusive, at the prices mentioned in the petition, and that said goods, wares, merchandise, and supplies were delivered to the various county officers for use in said offices, and were used by the said various county officials in said county in the transaction of the public business of such county. It is further agreed that on October 1, 1912, there was unexpended of the approved estimate of the supply fund of said county for the fiscal year 1912-13 the sum of $6,000, and for which no warrant has been issued, and on January 11, 1913, there was unexpended of said estimate the sum of $1,500, for which no warrants had been issued. Up to this point, it seems to be conceded that the transaction between the plaintiff and defendant was in all things legal. What subsequently transpired, however, is what caused the difficulty. It seems that the defendant did not file his claim for the goods, wares, merchandise, and supplies furnished by it until the 30th day of April, 1913, at which time the income and revenue provided for the payment of supplies during the fiscal year for which they had been furnished became exhausted, and the claim was disallowed by the board of county commissioners for want of funds. "The people of this state, in erecting the state, wrote into the Constitution section 26 of article sign to place upon the officials of the county a 10. They did so with a purpose; with the debrake upon extravagance. By this provision they limited the power of the county officers to create indebtedness for the taxpayers to pay. By it they declared to the world that the power of these officers over the people's purse-strings is limited; so far may the officers go with county indebtedness, and no farther. As said by the court in Bradford v. City, etc., 44 Pac. 912: For cause which seemed good to the framers of our fundamental law, a barrier against indebtedness by municipal officers and local bodies has been created by the Constitution. The door has been bodies and the key placed in the hands of the locked against all indebtedness of the local electors, who alone can use it, and the judiciary may not arrogate to itself the power to undo what has been solemnly done."" This is all very well, but as the parties have agreed that, as the county was allowed to become indebted for the supplies furnished herein, the income and revenue provided for that year had not been exhausted, either by expenditure of the supply fund, or the creation of prior valid indebtedness, the subsequent exhaustion of the funds of the county by the payment of invalid claims could not possibly have the effect of invalidating an indebtedness which was perfectly legal at the time the obligation was created. Clearly it was the intention of the people that the constitutional "brake upon extravagance" should be applied before the county is allowed to become indebted, not afterwards. The plaintiff herein was under no necessity to present its claim immediately for payment. By section 1570, Rev. Laws 1910, it could have presented it any time within two years after the same accrued. The county commissioners knew a valid indebtedness had been incurred, and they should have made provision for its payment. According to the agreed statement of facts, there was ample money in the supply fund for that purpose at the time the county became indebted for the supplies furnished, and It is quite clear to us that the foregoing the amount of this claim should have been transactions do not constitute a violation of laid aside for its payment. In other words, section 26, art. 10, of the Constitution. The the "brake" should have been applied by the county did not become indebted in any man- board of county commissioners before the ner for any purpose for any amount exceed-county was allowed to become indebted in exing the income and revenue provided for the fiscal year during which the supplies were furnished. The debt was created at the time the contract for the supplies was made, and not when the claim therefor was presented for payment. Thompson Houston Co. v. Newton (C. C.) 42 Fed. 723; Rollins v. Rio Grande Co., 33 C. C. A. 181, 90 Fed. 575; Lake County v. Standley, 24 Colo. 1, 49 Pac. 23; Town Lot Co. v. Lane, 7 S. D. 599, 65 N. W. 17; Huddleston v. Board of Co. Com'rs of Noble County, 8 Okl. 614, 58 Pac. 749; Johnson v. Pawnee County, 7 Okl. 686, 56 Pac. 701; In re Application of the State to Issue Bonds, 33 Okl. 797, 127 Pac. 1065. In support of the action of the trial court, counsel for defendant in his brief says: cess of its income and revenue for that year. But if, as in this case, the county commissioners do allow the county to become indebted in excess of its income and revenue, contrary to the constitutional limitation, the money in the treasury of the county available for the payment of the valid indebtedness of the county should not be applied in payment of the invalid claims. An ordinary debtor may incur indebtedness in excess of his ability to pay, and he may pay them in such order as he chooses; but a county cannot incur valid obligations exceeding in any one year the income and revenue provided for such year without the assent of threefifths of the voters thereof. The moment it oversteps that mark, its contract ceases to be the Peace, Cent. Dig. §8 508-515; Dec. Dig. [Ed. Note. For other cases, see Justices of 150.] 2. APPEAL AND ERROR 1058 HARMLESS valid, and it cannot pay the claim based upon | though the allegations contained in the bill of such illegal contract. Indeed, it is under the particulars are incomplete, indefinite, or conclusions of law. same legal obligation not to pay them as it is to pay its legal and valid obligations. Of course, it is a matter of indifference in what order the legal claims are paid, if they are paid in full, as they necessarily must be if no part of the revenues is misapplied, embezzled, or lost. But it is far from being a matter of indifference if invalid claims founded upon void contracts are paid before valid claims, founded upon valid contracts, are presented for payment. Parties entering into contracts with a county are bound to take notice of the constitutional limitation and to ascertain as to what extent the revenues have been appropriated to existing liability; but they are not bound to anticipate, and no amount of prudence or foresight could enable them to foresee, that illegal claims would be incurred by officers willing to violate the Constitution. In our judgment, the sole question herein is wheth er the indebtedness was valid at the time it was incurred. In determining the validity of such indebtedness, it will, of course, always be necessary to inquire whether, at the date of its assumption, there were unappropriated revenues to meet it, because, if there were not, there would be no liability resting upon the county, and the claimant would not be entitled to judgment. But if, at the time the contract was made, the indebtedness created thereby, together with all previous valid indebtedness, did not exceed the income and revenue of the county provided for such year, the claimant will be entitled to judgment for the amount of his claim. Johnson v. Bd. Co. Com'rs, 7 Okl. 686, 56 Pac. 701; Huddleston v. Bd. Co. Com'rs, 8 Okl. 614, 58 Pac. 749; Bd. of Education v. Bolton, 104 Ill. 220; New Orleans v. U. S., 49 Fed. 40, 1 C. C. A. 148; Holtzhauer v. City, 94 Ky. 396, 22 S. W. 752; Mountain Grove Bank v. Douglas, 146 Mo. 42, 47 S. W. 944; Higgins et al. v. San Diego Water Co., 118 Cal. 524, 45 Pac. 824, 50 Pac. 670. For the reasons stated, the judgment of the court below is reversed, and the cause remanded, with directions to proceed in accordance with the views herein expressed. All the Justices concur. MINNETONKA OIL CO. v. HAVILAND et al. (No. 5542.) Any error in sustaining objections to evidence is rendered harmless, if the witnesses at the trial subsequently testify to the facts sought to be elicited by the questions to which objections were sustained. [Ed. Note.-For other cases, see Appeal and 3. MASTER AND SERVANT 315 A lessee under an oil and gas lease, who contracts with an independent contractor for the not thereby escape liability to the lessor for drilling of a well upon the leased premises, candamage to the property of the lessor by the negligence of such independent contractor in drilling such well. Servant, Cent. Dig. §§ 1241, 1244-1253, 1255, [Ed. Note. For other cases, see Master and 1256; Dec. Dig. 315.] 4. TRIAL 260-REFUSAL OF INSTRUCTIONS COVERED. It is not reversible error to refuse requestwhich fairly states the law applicable to the ised instructions substantially covered by a charge sues of the case. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 5. INSTRUCTIONS. Instructions examined, and held to be free from error. Commissioners' Opinion, Division No. 1. Error from County Court, Pawnee County; Geo. E. Merrick, Judge. Action by Mattie Haviland and another against the Minnetonka Oil Company, a corporation, Judgment for plaintiffs, and defendant brings error. Affirmed. Dillard & Blake, of Tulsa, for plaintiff in error. Hayes & Cleeton, of Cleveland, for defendants in error. RUMMONS, C. This action was commenced in a justice of the peace court in Pawnee county by the defendants in error, hereintiff in error, hereinafter styled "defendant," after styled "plaintiffs," against the plainto recover damages for injuries to a peach orchard on the premises of plaintiff resulting from alleged negligence of the defendant in drilling an oil well on said premises. Judgment was entered for the plaintiffs by default, and defendant appealed to the county (Supreme Court of Oklahoma. Jan. 25, 1916.) court of Pawnee county. The case was there (Syllabus by the Court.) 1. JUSTICES OF THE PEACE PLEADING OBJECTION. 150-APPEAL Where the sufficiency of a bill of particulars is challenged for the first time by an objection to the introduction of evidence thereunder at the trial, upon appeal from a justice of the peace court, it is not error to overrule such objection unless there is a total failure to allege some matter essential to the relief sought, even tried to a jury, resulting in a verdict and judgment for plaintiffs to reverse which defendant prosecutes this appeal. [1] The first error complained of by defendant is the overruling by the trial court of the objection of defendant to the introduction of any evidence on the part of plaintiffs for the reason that the bill of particulars failed to state a cause of action in favor of the plaintiffs and against the defendant. held an oil and gas lease. By the terms of We do not think this assignment is well tak- the lease the defendant was precluded from en, for the reason that this action was in- drilling within 300 feet of any buildings on stituted in a justice of the peace court, where the premises. It was desired to drill a well the rules of pleading are considerably relax- near the southeast corner of said tract, where ed, and no attack was made upon the bill of the residence and buildings of the plaintiffs particulars until the commencement of the were located, and plaintiffs and the defendtrial. The rule is well settled in this state ant entered into an agreement by which the that a challenge to the sufficiency of a peti- terms of the original lease prohibiting the tion, made for the first time by an objection drilling of a well within 300 feet of any to the introduction of the evidence, is not building was waived by the plaintiffs, and favored, and that such objection should be it was agreed that the defendant should drill overruled unless there is a total failure to a well near the southeast corner of said tract allege matters essential to the relief sought, of land. When the well was drilled, it was and should seldom, if ever, be sustained when located just north of the peach orchard, the the allegations are simply incomplete, indefi- | damage to which is the occasion of this suit, nite, or conclusions of law. Abbott v. Ding- and the engine, boiler, and toolhouse were us, 44 Okl. 567, 145 Pac. 365, and cases there cited. We have examined the bill of particulars complained of. It is open to some objection as to being indefinite and uncertain and pleading conclusions of law, yet we think it sufficiently states a cause of action to withstand an attack by objection to the introduction of evidence. located in the peach orchard. The evidence of plaintiffs tended to show that those drilling in the well tore down the fence surrounding the peach orchard and which separated it from the corral of plaintiffs; that plaintiffs caused such fences to be repaired and put in a gate for the use of the drillers; but that such gate was continually left open [2] It is next contended that the court and such fence again torn down; and that, erred in sustaining objections to questions by reason thereof, the stock got into the propounded by counsel for defendant upon orchard and damaged it. The evidence of cross-examination of the witnesses of plain- plaintiffs also tended to show that several tiffs and to questions propounded by counsel trees in the orchard were killed by the heat for defendant to its own witnesses. It is and steam from the boiler used in drilling first insisted that the court erred in sustain- in the well, and that other trees were daming an objection to questions by counsel for aged by teams and wagons used and driven defendant, when cross-examining one of the by persons employed about the well. The plaintiffs, which were intended to elicit the defendant offered to prove that it made an fact that the stock which injured the or- independent contract for the erection of a chard of plaintiffs were owned by the plain- derrick at the place where the well was drilltiffs. Any error there may have been in sus- ed, and that it made an independent containing objections to these questions is ren- tract with one Oscar Childs to complete a dered harmless by the fact that, on the same well on said premises and to furnish all page of the record, it appears that this wit- material in the drilling of the same and all ness testified, without objection, that the men employed in the drilling of said well; stock doing damage were owned by plain- and that the defendant had no supervision tiffs; and it further appears in the evidence or right to exercise any authority over the of the husband of this witness that these means or methods employed in drilling said cattle belonged to the plaintiffs. So that well; and that it could not and did not have the defendant had before the jury the evi- any right or authority to employ or disdence which he sought to elicit by the ques-charge help; and that the well was not to be tions to which objections were sustained, paid for until entirely completed and turned and whether or not the court erred in sus- over to the defendant. To this offer an obtaining such objection is purely an academic jection was sustained. It further appears question. from the evidence that the engine, boiler, and toolhouse used in drilling the well could have been located by the driller at several other places on the premises, outside of the peach orchard. [3] The defendant sought to show by crossexamination of the witnesses of plaintiffs and upon direct examination of his own witnesses that the oil well on the premises of plaintiffs was not drilled in by defendant, but by an independent contractor. Objections were sustained by the court to questions seeking to elicit evidence to establish this fact, and objections were sustained to the offer of the defendant to prove that the work was done by an independent contractor. Defendant complains most seriously of these rulings of the trial court. It seems that the plaintiffs were the owners of a tract of land in Pawnee county upon which the defendant It is the contention of the defendant that, because it employed an independent contractor to drill this well, it is not liable for any damage resulting from the negligent manner in which the same was drilled, or for any damage to the plaintiffs arising from the negligence of the independent contractor or his employés; and that therefore it was error to exclude from the consideration of the jury the facts sought to be established by the defendant. We have examined the au that duty, their liability could be avoided by showing that the work was done under an independent contractor." In M., K. & O. Ry. Co. v. Ferguson, 21 Okl. 266, at page 269, 96 Pac. 755, at page 756, this court, citing 1 Thomas on Negligence, 631, says: arose." 264, 32 L. R. A. (N. S.) 948, the New York In Sciolaro v. Asch, 198 N. Y. 81, 91 N. E. Court of Appeals says: thorities cited in the brief of counsel for defendant in support of this proposition, and we have reached the conclusion that the authorities so cited are not applicable to the facts of this case. The case of Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672, 37 L. Ed. 582, only determines the proposition that an action will lie against an independ"The well-established rule is that: Where a ent contractor for his negligence in the per-enters into a contract with another as an inde person, exercising an independent employment, formance of his contract, and does not de- pendent contractor, and not as a mere servant termine whether or not an action would of the latter for the bestowal of his personal lie against the employer of the independent services according to the will of the latter, the contractor. The other cases cited are ac- and the contractor is alone liable for injuries doctrine of respondeat superior does not apply, tions against one employing an independent arising from the negligence of himself or his contractor in the doing of work, by persons servants, unless (1) the act to be done is unlawhaving no contractual relation with the em- ful; or (2) is intrinsically dangerous, or the inployer, and to whom the employer owed no the work, and not from the lack of care or skill jury resulted necessarily from the nature of legal or contractual duty. We think that on the part of those executing it; or (3) unwhile the rule is well settled that one, who less there be a personal and immediate duty on does work through the instrumentality of an the part of the contractee to prevent independent contractor, is not liable for dam- the act or condition from which the injury ages, caused by the negligent performance of such work by the independent contractor, to third persons, except where the work is inherently dangerous or unlawful, it is equally well settled that, where a person either by contract or by law owes an obligation to another, he cannot escape liability for negligence in the performance of such obligation by delegating the duty to an independent contractor. In the case at bar, by the terms of the oil and gas lease, as subsequently modified, the defendant had agreed with plaintiffs to drill an oil well upon their premises. By reason of this contract, it was the duty of the defendant to drill this well without doing any unnecessary damage to the property of the plaintiffs. The plaintiffs stand in an entirely different relation to the defendant as to their rights and its duty in the premises from a third person who was a stranger to the contract under which the work was done. As the work, the negligent performance of which occasioned damage to plaintiffs, arose out of the contract between plaintiff's and defendant, the defendant is liable for the negligent performance of such work without regard to the means by which it undertook to perform the contract. "One who is personally bound to perform a duty cannot relieve himself from the burden of such obligation by any contract which he may make for its performance by another person. Therefore the fact that he may have used the utmost care in selecting an agent to perform this duty, or that he has entered into a contract with any person by which the latter undertakes to perform the duty, is no excuse to the person upon whom the obligation originally rested, in case of failure of performance. His obligation is to do the thing, not merely to employ another to do it." Shearm. & Redf. Neg. (5th Ed.) § 14. The territorial Supreme Court, in C., O. & W. Ry. Co. v. Wilkin, 16 Okl. 384, 84 Pac. 1086, 3 L. R. A. (N. S.) 595, says: "We do not think that any of these cases would sustain the contention that where a railroad company, under the law, was charged with a duty to the public, and the injury complained National Steam & Operating Company did not "The contract between the appellant and the relieve the former from the duty imposed upon him by the covenant of the lease between him which he could not delegate to another so as to and the plaintiff's employers. It was a duty relieve himself from the consequences of its nonperformance.' Yazoo & M. V. R. R. Co. v. Crawford (Miss.) 65 South. 462, L. R. A. 1915C, 250. We think that under the law the defendant could not thus escape liability to the plaintiffs for negligence in the drilling of the well, resulting in damage to the property of plaintiffs, and that therefore the evidence sought to be introduced by defendant was properly excluded as immaterial. [4] Defendant complains of the refusal of the following instruction requested by it: "You are instructed that if you find from the evidence in this case that the fence between the corral and orchard of plaintiffs was torn down by the defendant, and at the time same was torn down the plaintiffs had knowledge of that fact and knew that the plaintiffs' stock was going through said fence into the orchard of the plaintiffs, and if you further find that the fence could have been constructed connected with the fence at the west side of the boiler house and extending on the north side of the derrick and then connected with the east line of the corral fence, which would have prevented the cattle from going in said orchard, then and in that case the measure of damages would not be the injury done by plaintiffs' stock to the trees in said orchard, but would be the cost of the construction of said fence." We think there was no reversible error committed in the refusal of this instruction, for the reason that instructions Nos. 4 and 5 given by the court presented to the jury the duty of the plaintiffs to minimize their damage even more favorably to the defendant than in the instruction requested. When the proposition covered by a requested instruction is fully covered by the instructions given by the court, it is not error to refuse the requested instruction is open to criticism as ignoring all the evidence in the case and as submitting to the jury just one arbitrary method by which the damage complained of might have been prevented by plaintiffs. Seay v. Plunkett, 44 Okl. 794, 145 Pac. 496; Muskogee, etc., Co. v. Rye, 148 Pac. 100; Chicago, R. I. & P. Ry. Co. v. Carden, 149 Pac. 127. [5] The last error complained of is the giving by the court of instruction No. 3. Counsel for defendant have not set out in their brief the instruction complained of, but we have examined the same, and do not think the court committed any prejudicial error in giving the same to the jury. Finding no error in the record, the judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. M. E. Michaelson and Brennan, Kane & McCoy, all of Bartlesville, and Hutchings & German, of Muskogee, for plaintiff in error. N. A. Gibson, T. L. Gibson, K. S. Murchison, and McRea & McRea, all of Muskogee, for defendants in error. DUDLEY, C. This is an appeal from the superior court of Muskogee county. On and prior to November 30, 1904, Peggie Hudson, a freedman citizen of the Cherokee Tribe of Indians, was the owner and in possession of 50 acres of land, being her surplus allotment; that on said day said allottee executed and delivered to Richard C. Adams a warranty deed covering said premises, which said deed was shortly thereafter recorded; that thereafter, and on February 15, 1906, said Richard C. Adams and his wife executed and delivered to the Adams Oil & Gas Company, a corporation, the plaintiff in error, hereinafter referred to as the defendant company, a quitclaim deed covering said premises and ADAMS OIL & GAS CO. v. HUDSON et al. other premises, which said deed was duly (No. 4731.) [Ed. Note.-For other cases, see Deeds, Cent. Dig. 88 149-155; Dec. Dig. 2. VENDOR AND PURCHASER 220, 242 "BONA FIDE PURCHASER"-WHAT CONSTITUTES BURDEN OF PROOF. To constitute a "bona fide purchaser" three things must exist: (a) A purchase in good faith; (b) for value; and (c) without notice. And, where a subsequent purchaser interposes the defense of a bona fide purchaser, the burden is upon him to show a purchase for value, and, on his failure to do so, he cannot claim the benefits of a bona fide purchaser. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent, Dig. §§ 461-465, 603-605, 720; Dec. Dig. 220, 242. For other definitions, see Words and Phrases, First and Second Series, Bona Fide Purchaser.] 3. DEEDS 210-RECITAL OF CONSIDERATION -EFFECT AS EVIDENCE. The recital in a deed that the consideration has been paid is prima facie evidence as between the parties thereto, but as to strangers and persons claiming in opposition to the deed it is no evidence. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 635, 636; Dec. Dig. 210.] Commissioners' Opinion, Division No. 3. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Frank Hudson and others against Richard C. Adams and others. Judgment for all plaintiffs except William Hudson, and defendant Adams Oil & Gas Company brings error. Affirmed. recorded. This deed recites a consideration of $10,000. Following this, and on November 8, 1906, the said Richard C. Adams and his wife executed and delivered to the defendant company another quitclaim deed covering said premises. This deed was also recorded and recites a consideration of $10,000. There was no new or additional consideration paid for this second deed; it was merely given as confirmatory of the first. At the time these two deeds were executed and delivered Richard C. Adams was the vice president and general manager of the defendant company. From the date of the deed from the allottee to him down to and including the date of the first deed from him to the defendant company he was, in a sense, in possession of The record, how the land in controversy. In December, 1908, said allottee was adjudged insane and duly committed to the Asylum for the Insane at Norman, where she thereafter, and in March, 1909, died, intestate, leaving surviving her as her heirs William Hudson, surviving husband, and Frank Hudson, Annie Hudson, Maggie Hudson, and Mattie J. Dixon (née Hudson), her children, and Peggie Nave and others, her grandchildren. After her death William Hudson was appointed administrator of her estate. In January, 1912, William Hudson, as the surviving husband of said deceased allottee, and as administrator of her estate, and the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |