not be innocent and the defendant company "In an action for damages for personal inju- See, also, Doremus v. Root et al., 23 Wash. PER CURIAM. Adopted in whole. WASHINGTON v. COLVIN et ux. (No. 5824.) 1. PRINCIPAL AND AGENT 171-ACTS OF efits. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. 171.J 2. FRAUDS, STATUTE OF 116 EXCHANGE Where an agent, not authorized in writing [Ed. Note.-For other cases, see Frauds, Stat- 3. CANCELLATION OF INSTRUMENTS 37 [Ed. Note.-For other cases, see Cancellation 4. SUFFICIENCY OF EVIDENCE. Upon consideration of the whole record and a careful reading of the evidence, we find the judgment of the court is sustained by the weight of the evidence. Commissioners' Opinion, Division No. 1. Action by Susan Washington against E. A. Cornelius J. Jones, of Muskogee, for plain- COLLIER, C. This action was brought by Susan Washington, hereinafter called "plaintiff," against E. A. Colvin and wife, hereinafter desiguated "defendants," to rescind a transaction entered into by said parties for the exchange of real estate; the title to the trustees. The evidence shows that a written real estate of plaintiff being at the time in contract was entered into by said parties for the exchange of certain lands, in which transaction defendants were represented by an agent; that by said contract plaintiff was to assume the payment of a mortgage in the sum of $300, which was upon the city property to be deeded to her trustees by defendants, "to be paid to said agent of defendants within three years from the 3d day of March, 1912, in installments of $8 per month"; that on May 23, 1913, J. C. Long, assignee of said agent, foreclosed said mortgage, and title and possession to said lands were lost to plaintiff. It is shown by the pleadings that the parties deeded to each other the lands as agreed; that defendants went into possession of the property deeded by plaintiff's trustees to them; that at the time this action was brought defendants were in possession of and claiming said property by virtue of said deed executed to them by plaintiff's trustees, in accord with said contract. There is no allegation or proof in the case that said agent was authorized in writing to act as the agent of defendants in making said deal. It further appears from a decree introduced in evidence that, after the execution of said deed by defendants to plaintiff's trustees, said trustees were relieved as trustees, and the property deeded to them as trustees was decreed to belong to and vest in said plaintiff. Defendants filed an answer and crosspetition, in which they admit that the agent making the deal was their agent, and deny that said agent had authority to make the representations as to the time and manner of payment of said mortgage to be paid by plaintiff, alleged to have been made, and aver that they had no knowledge of such representations, and that plaintiff had filed of record a caveat, which was a cloud upon their title to the lands in controversy, and prayed that same be canceled, and introduced evidence fully supporting the allegations of their said cross-action. To said cross-petiDefendants tion, plaintiff filed an answer. demurred to the evidence of plaintiff in the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes case in chief, which demurrer was sustained gage contracted in said contract, notwithand judgment rendered for defendants, which was duly excepted to. The court also rendered judgment for the defendants on their cross-action, awarding the relief prayed; to which plaintiff excepted. Motion was filed for new trial, which was overruled and exceptions saved. To reverse the judgments rendered this appeal is prosecuted. [1, 2] While it is true that the agent was not authorized in writing to make the transaction made between the parties, there is no question but that defendants ratified his action by accepting the benefits thereof, and must bear its burdens, if any. Defendants armed their agent by appointing him as their agent to make the deal; and whether or not they authorized, or had knowledge of, the misrepresentations averred to have been made by such agent as to maturity and manner of payment of the mortgage assumed to be paid by plaintiff, is entirely immaterial, as defendants accepted the benefits of the deal made by their agent. If It is a rule of general application that: "He who would avail himself of the advantages arising from the act of another in his be half must also assume the responsibilities. the principal has knowingly appropriated and enjoyed the fruits and benefits of an agent's act, he will not afterwards be heard to say that the act was unauthorized. One who voluntarily accepts the proceeds of an act done by one assuming, though without authority, to be his agent, ratifies the act, and takes it as his own with all its burdens, as well as all its benefits. He may not take the benefits and reject the burdens, but he must either accept them or reject them as a whole." Mechem on Agency, § 148. See, also, United States Fidelity & Guaranty Co. v. Shirk et al., 20 Okl. 576, 95 Pac. 218. To entitle one to a rescission upon the ground of fraud, the party seeking the rescission must, by clear and convincing evidence, establish the fact that the fraud charged has been perpetrated. This the plaintiff in the instant case has failed to do. The only fraud charged by plaintiff is that said agent made fraudulent representations as to the time of maturity of the mortgage and the time in which it was to be paid. The mortgage in question was not put in evidence, and a careful examination of the contract of sale fails to disclose the date, of maturity of the mortgage and the conditions thereof. Consequently, we are unable to say from the evidence that defendants' agent misrepresented the date of maturity of the mortgage. Regardless of the time that the mortgage assumed was to become due, it was not incompetent for said agent who owned the mortgage to agree that the terms of payment of the mortgage be three years, payable in installments of $8 per month; and we think that a proper construction of this feature of the contract was that the time of maturity of the mortgage was to be three years, provided plaintiff paid each month thereon the sum of $8. The stipulation as to the payment of said mort standing said mortgage was foreclosed about 15 months after the payment thereof was assumed, may have been made in the utmost good faith, and hence not an agreement or misrepresentation of the agent of defendants upon which to predicate a rescission. The decree of foreclosure was rendered more than one year after said contract was entered into, and it shows that not one of the monthly installments, stipulated to be paid by plaintiff, was paid; and it is a reasonable presumption to be drawn from this evidence that such failure to pay said monthly installments brought about said foreclosure and the resultant loss sustained by plaintiff. In short, that the laches of plaintiff, and not the fraud of defendants' agent, were the active factors that resulted in the loss of the property to plaintiff. [3] It is earnestly argued in brief of defendants that the failure of plaintiff to offer in her petition to do equity is fatal to her right to prevail in this action. To this contention we cannot agree. In Stevens v. Elliott et al., 30 Okl. 41, 118 Pac. 407, Judge Sharp, speaking for this court, holds adversely to this contention of plaintiff, and quotes with approval the case of Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533, in which it is said: "It was one of the rules of pleading in courts of equity, in suits where the court might impose conditions on the plaintiff, or give the defendant affirmative relief, as in suits for specific performance, cancellation of instruments, rescission of contracts, or for accounting, that the plaintiff in his bill should offer to do whatever the maxim that he who seeks equity must do equity. court might deem equitable. This was upon the But, although at one time a bill was demurrable if it omitted this offer, the requirement was in its nature formal. The offer was not one of the facts constituting the cause of action, any more than was the prayer for process. It may be doubted that the rule referred to still exists in courts where equity forms of pleading are re94; Wells v. Strange, 5 Ga. 22. tained. Columbia Govt. v. Rothschild, 1 Sim. These were suits for accounting. Jarvis v. Berridge, L. R. 8 Ch. App. 351, was a suit for cancellation or rescission, and the offer in the bill was held not necessary. However it may be where equity forms of pleading are retained, it cannot be so under the Code system, which requires a complaint to contain only a statement of the facts for relief. See Coolbaugh v. Roemer, 32 Minn. constituting the cause of action, and the prayer 445, 21 N. W. 472. The willingness of the party to perform those terms which the court may think it right to impose as the price of any relief is sufficiently shown by his submitting his cause to the court, which has the power to impose the proper terms." We think the rulings in Stevens v. Elliott, supra, and in Knappen v. Freeman, supra, in harmony with section 4737, Rev. Laws 1910, which provides that: "The petition must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition." [4] This being a case of purely equitable cognizance, we have examined all the evidence, and agree with the court that plaintiff utterly failed to establish the fraud alleged. BLEAKMORE, C. This action was comConsequently, the court did not err in sus-menced in the district court of Washita taining the demurrer of defendants to plain- county by Kitty Hood, as plaintiff, against tiff's evidence, and the judgment rendered in F. E. Herring and O. H. Young, as defendthe original action did not result in a mis- ants, for damages on account of personal incarriage of justice. Success Realty Co. v. juries alleged to have sustained by reason Trowbridge, 150 Pac. 898. of the negligence of the defendants in failing to maintain in a safe condition the floor of a building in the town of Foss, owned and occupied by them as a retail store, through which she fell while a customer therein. The parties will be referred to as they appeared in the trial court. With the judgment rendered for defendant in the original action, it necessarily follows that the judgment in the cross-action, canceling the caveat filed of record by plaintiff in regard to the lands in controversy, was free from error. This case should be affirmed. PER CURIAM. Adopted in whole. HERRING et al. v. HOOD. (No. 5254.) (Supreme Court of Oklahoma. Feb. 1, 1916. Rehearing Denied Feb. 29, 1916.) (Syllabus by the Court.) On March 13, 1913, on trial to a jury, plaintiff recovered judgment for $4,000, and the defendants have brought the case here for review. Defendants urge as ground for the reversal of the judgment: (1) Error in overruling the motion for new trial on the ground of newly discovered evidence; (2) error in the admissions of certain evidence; (3) that the judgment is excessive; and (4) error in 1. NEW TRIAL 97-Grounds-SurPRISE- the giving of a certain instruction. WAIVER. It is the duty of a party surprised at a trial, immediately upon discovery of the ground of his surprise, to take the proper steps to continue or delay the trial in order to protect his interests. He may not neglect this duty in the hope of securing a favorable decision in spite of such surprise, and, failing in this, obtain a new trial on account thereof. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 195-198; Dec. Dig. 97.] 2. NEW TRIAL 102 NEWLY DISCOVERED EVIDENCE-DILIGENCE. To entitle one to a new trial on the ground of newly discovered evidence he must show, in addition to other essential facts, that he has exercised due diligence to discover the same in time. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. 102.] 3. EVIDENCE 118-RES GESTE-ADMISSI BILITY-DETERMINATION. The question of the admissibility of statements as part of the res gestæ should, in a great measure, be left to the determination of the trial court. 118.] [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 297-302; Dec. Dig. 4. EVIDENCE 123-RES GESTE. Record examined, and held (1) that there was no error in the admission of certain evidence, and (2) that the instructions fairly state the law of the case. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. 123.] Commissioners' Opinion, Division No. 3. Error from District Court, Washita County; Swan C. Burnett, Special Judge. Defendants owned and occasionally visited the store in question, but the business and premises were under the control of their manager, a Mr. Childress. While plaintiff was in the store as a customer, one of the boards of the floor gave way under her weight, and her left limb was forced through the floor, injuring her. It was shown that the boards of the floor had broken through at other times and places from the weight of a heavy truck; that they were rough and uneven; that the particular board which broke under plaintiff's weight was at the time so worn as to be only from an eighth to a quarter of an inch in thickness. One Crowley, a witness called on behalf of plaintiff, testified to the occurrences at the time of the injury, and that defendants' manager, Childress, appeared on the scene almost immediately after plaintiff was extricated from broken floor and while she was yet in the building, and stated that "he knew the floor needed fixing, but had just neglected it." the Among the affidavits filed in support of a motion for new trial is that of R. A. Billups, one of the attorneys for defend ants, wherein it is stated that before the trial he talked with the manager, Childress, who informed him that he was absent from the store when the injury occurred and came in after it was all over and did not see the same; that the witness Crowley, during Her-fied, had stated to him (Billups) under oath, the progress of the trial and before he testi Action by Kitty Hood against F. E. ring and another. Judgment for plaintiff, and defendants bring error. Affirmed. Rutherford Brett, of Oklahoma City, Richard A. Billups, of Cordell, and Echols & Merrill, of Elk City, for plaintiffs in error. Massingale & Duff, of Cordell, for defendant in error. that he helped the plaintiff out of the broken place in the floor, had some talk with her, and that she went down the aisle to buy some goods, and soon thereafter Childress came into the store and remarked, "I knew the floor was defective and I neglected to fix it;" that defendants were surprised at the to show inferentially that he never made such statement, by offering to establish the fact that he was not in the building at the particular time to which the witness testified. In McCants v. Thompson, 27 Okl. 706, 115 Pac. 600, it is said: "The first duty of a party, surprised at the trial, upon the discovery of a mistake that will prejudice his interest, is to take proper legal steps to continue or delay the cause. He cannot neglect this duty in the hope of securing a verdict in spite of such surprise and then obtain a new trial. Shipp v. Suggett, 9 B. Mon. (48 South, 990; Hoskins v. Hight, 95 Ala. 284, 11 Ky.) 5; Simpson v. Golden, 114 Ala. 336, 21 South. 253, and authorities therein cited. The defendant, having failed to comply with this rule, is not entitled to a new trial on such ground." change in the testimony of said witness, etc. | ment attributed to him when he arrived at There is also an affidavit of one Gregg stat- the scene of the injury, but there is an effort ing that he was present at the time plaintiff was injured; that Childress was not there and did not know thereof until some ten minutes later and after the plaintiff had left the store. There is the further affidavit of one Payne, who was in attendance upon the trial as a witness for, but not used by, the plaintiff, in which he states that he was present when the injury was received, and assisted in freeing plaintiff from the broken floor; that Childress was not in the store at the time, but came in some five minutes after plaintiff had left the building. He also stated that he did not disclose his knowledge of such matters to defendants or their attorneys until the 20th day of March, 1913. There is also the affidavit of a physician, J. W. Kerley, who was called to testify as a witness on behalf of defendants, in which he states that he discovered from an examination of the plaintiff during the progress of the trial, before he testified, that there were some scars on her injured leg, the evidence of a burn, and which plaintiff informed him at the time were the result of burns; and of this he failed to apprise defendants until after the trial. Upon hearing of the motion defendant Herring testified that he saw and talked with the affiant Payne during a recess of the court taken for supper on March 13, 1913, when Payne told him substantially what was set forth in his affidavit; that at the time he (Herring) thought that the evidence was closed; that when the court convened after supper, he informed his attorneys with regard to such witness and was told to hunt him up, but that he learned that such witness had left town; that he might have found him earlier but for the fact that he was under the rule. [1] The affiant Gregg was an employé of defendants in the store at the time of the injury, and it does not appear that they made any effort to avail themselves of his evidence prior to the trial or to procure his attendance. Their attorney consulted with Childress, but did not see fit to have him present. Defendants and their counsel knew all it is asserted Payne would testify to before the close of the trial, but failed to request a continuance or a postponement until he could be procured as their witness. It is not claimed that defendants or their attorneys attempted to acquaint themselves with the proposed testimony of the witness Crowley until during the progress of the trial. It is doubtful whether the alleged "change" in the testimony of this witness constitutes ground for a plea of surprise. Under the showing made they were certainly not misled as to the testimony of this witness before, or at the time, they announced ready for trial. By the newly discovered evidence it is not attempted to establish the fact directly that Childress did not make the state [2] To entitle a party to a new trial on account of newly discovered evidence, it must appear in addition to other essential facts, that he has exercised due diligence to discover the same in time, and to negative a failure in this regard on his part. We are not favorably impressed with the showing of diligence made by the defendants in this respect. The granting or refusing of a new trial is a matter very largely in the discretion of the trial court; and in our opinion such discretion was not abused in overruling the motion in this case. ror. [3, 4] The admission of the evidence of the witness Crowley to the effect that the defendants' manager stated immediately or shortly after plaintiff's injury, that he knew the floor was defective and had neglected to repair it, does not constitute prejudicial erWhether he was present at the precise time of the occurrence, or reached the place a few minutes afterward, is not the controlling feature upon the question of the admissibility of his declaration as a part of the res gestæ, for it is apparent that the statement was contemporaneous with his arrival and acquaintance with the manner of the injury. It was the instinctive, spontaneous utterance of the fact of his previous knowledge of the unsafe condition of the premises under his control, which had caused such injury. Under the circumstances of this case we conclude that the statement was properly admitted. In St. L. & S. F. Ry. Co. v. Fick (not yet officially reported), 149 Pac. 1126, it is held: "The question of admissibility of statements as part of the res gestæ should, in a great measure, be left to the determination of the trial court." Smith v. Chicago, R. I. & P. R. Co., 42 Okl. 577, 142 Pac. 398; Wigmore on Evidence, 1750. To review the evidence relative to the character and extent of the injuries suffered by plaintiff would unnecessarily lengthen this opinion. She received them in September, 1911, the case was tried in March, 1913, and the probable permanency of such injuries was clearly established. Whether or not the sum awarded exceeds the damages to which the plaintiff, in our opinion, is entitled, be comes unimportant, unless we may properly infer from the verdict, under all the circumstances of the case, that the same was the result of passion or prejudice. Ordinarily this court will not substitute its opinion in this regard for the verdict of a jury approved by the trial court, and we cannot do so in the instant case. The instruction of which complaint is made, considered with others, constituting the charge of the court, fairly states the law applicable. The judgment should be affirmed. RENIKER v. KANSAS CITY, FT. S. & M. (Supreme Court of Oklahoma. Nov. 30, 1915. (Syllabus by the Court.) 1. ESTOPPEL 118-SUFFICIENCY OF EVI- -- Estoppel, WATTS, C. The plaintiff in error, plaintiff below, sued the defendant in error, defendant below, to quiet his title and possession of certain real estate. The case was tried to the court without the intervention of a jury, and on the 24th day of June, 1913, a decree was entered for plaintiff for want of plea against the Miami Town Company, a corporation, which will hereafter be referred to as the "Miami Company," J. E. Tutten, A. H. Skidmore, trustees, and Franklin M. Smith, and for defendant Kansas City, Ft. Scott & Memphis Railway Company, which will hereafter be referred to as the "Memphis Company," St. Louis & San Francisco Railway Company, which will hereafter be referred to as the "Frisco Company," against plaintiff. Motion for new trial was denied, and plaintiff appeals and assigns numerous errors, which he crystalizes into two propositions, to wit: "Under the agreement and arrangement made with appellant by the town company, and the railroad company, by which appellant was to receive one lot free from them and buy one lot from them and buy other lots and build this elevator, are not the defendant Railroad Company, and their lessee estopped from asserting title to half this alley, on which part of the elevator is built? "Are the defendants railroad company and their lessee not barred by the statute of limitation from asserting any title to this portion of the vacated alley on which the elevator is built and the adjacent lots thereto purchased by appellant from the town company and railroad company?" The pleadings are quite lengthy, but substantially the petition charges: A fee-simple title to and possession in plaintiff of a certain strip of land, formerly an alley 20 feet wide running north and south through block No. 70, in the city of Miami, which was vacated by proper resolution of the city authorities August 15, 1897, at which time plaintiff was the owner and in possession of lots 1 to 6, inclusive, abutting the alley on the west, and defendant Memphis Company's right of way abutting the alley on the east, which right of way was held by said company by virtue of a deed from the Miami Company. The deed provided: In an action to quiet title and possession of real estate, where plaintiff alleges and relies upon adverse possession for more than seven years, and the plaintiff's evidence is uncontradicted that under a claim of title he improved the property at a cost of several thousand dollars, which from the very nature thereof was permanent and lasting, and defendant made no objection, held: (a) That the construction of such improvements, possession, and control of the property, under the evidence, were hostile and inconsistent with defendants' claim of ownership and a high class of notice of adverse possession. (b) The test is as to whether the original entry was exclusive and adverse to defendants, and whether it so continued uninterruptedly for a space of more than seven years from its inception to November 16, 1907, advent of statehood and expiration of the statute then in force. Section 2938, Ind. Ter. Stat. If so, there was complete constructive ouster, which under the statute was sufficient and conferred a valid fee simple title in the property to the plaintiff. (c) The evidence examined, and held to meet the required emergency, and the court erred in entering judgment against the plain[Ed. Note.-For other cases, see Adverse Pos-way Company, so long as said grantee or its session, Cent. Dig. §§ 124, 125, 604-623, 682, same for railway purposes." successors or assigns shall use or occupy the 683, 685, 686; Dec. Dig. 29, 106, 114.] tiff. Commissioners' Opinion, Division No. 4. Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by H. F. Reniker against the Kansas City, Ft. Scott & Memphis Railway Company, a corporation, and others. Judgment for defendants, and plaintiff brings error. Reversed, and new trial granted. Vern E. Thompson and A. C. Towne, both of Miami, for plaintiff in error. W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and Fred E., Suits, both of Oklahoma City, for defendants in error. said Kansas City, Ft. Scott & Memphis Rail "To the full use and benefit and behoof of That on vacation of the alley, so much thereof as abutted plaintiff's lots, on the theory of accession, reverted and became his property, and not the Memphis Company's, because it only held an easement, nor had the Miami Company, its trustees or assigns, any interest. That he had open, peaceable, exclusive, undisputed, adverse possession for more than seven years before admission of the state into the Union, during which time he had openly and notoriously claimed possession and ownership thereof in exclusion of defendants, and further charging the Memphis Company had leased its property |