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bank to recover the amount of an overdraft is not barred by the statute of limitations short of four years. The case is not to be deemed a precedent upon that point.

founded upon an instrument in writing executed in this state may be commenced within four years after the right of action accrues. Section 337, Code Ciy. Proc. There is in every check two implied promises: (1) That the money is in the bank with which to pay it; and (2) that, if the money is not there, the drawer of the check will repay the money to the bank. Everything implied in a writing is as much a part of it as though it were expressed therein. Bancroft v. S. F. Tool Company, 120 Cal. 228, 52 Pac. 496. As there is here a written contract into which the law imports a promise to repay, and this promise created by law, being an element of the contract, enters into and forms a part of this written check, the statute of limitations governing written contracts to pay money is the only one that applies. Long v. Straus, 107 Ind. 94, 6 N. E. 123, 7 N. E. 763, 57 Am. Rep. 87. In an action to recover the money paid on an overdraft, the check or overdraft, and not oral testimony, would be relied upon as the proof. In Meherin v. Saunders, 131 Cal. 681. 63 Pac. 1084, 54 L. R. A. 272, one Ambrose bought property at a constable's sale, paid part cash and gave a check for the balance, but afterward had payment thereon stopped. The check was dated October 24, 1891. Suit was brought against Ambrose for the amount of the check on September 28, 1895, and the court said this was "less than a month prior to the date when an action on the check would have been barred by the statute of limitations."

The obligation of the maker of a note to reimburse his security for having paid the note is not founded upon the note, but upon the new promise made when the security pays the note (Chipman v. Morrill & Webster, 20 Cal. 131 ; Thomas v. Pacific Beach Company, 115 Cal. 136, 46 Pac. 899); and therefore the uthorities presented on that point have no bearing on the question here.

Judgment reversed.

(7 Cal. Unrep. 316) JONES V. WATERMAN. (Civ. 158.) (Court of Appeal, Second District, California. Aug. 17, 1906. Rehearing Denied

Oct. 11, 1906.) 1. APPEAL-FINDINGS OF COURT-CONFLICTING EVIDENCE-REVIEW.

A finding of a trial court based on conflicting evidence will not be disturbed on appeal where there is sufficient evidence in the record to support it.

[Ed. Note.For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 3983.] 2. PRINCIPAL AND AGENT - AGENCY — EviDEX('E.

In an action to recover an agreed rent for certain reamers used by a well driller in drilling a well under contract with defendant, the memorandum of agreement between defendant and the driller, and evidence of the oral agreement between them, by which the driller agreed to furnish all tools necessary for the work, was admissible to show that no authority could be implied from the transaction by which the driller was authorized to obtain the reamers on defendant's credit.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, $8 402-412.1 3. SAME-UNAUTHORIZED ACTS-RATIFICATION.

Where defendant employed a well driller to drill a well on his ranch and to furnish all required tools, the fact that one of defendant's employés paid the expressage on certain reamers hired by the driller from plaintiff for use in drilling the well, and agreed to pay $30 toward such hire, without defendant's knowledge, was insufficient to establish that the driller had authority to contract for the reamers on defendant's behalf.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, $ 412.]

Appeal from Superior Court, Santa Barbara County; J. W. Taggart, Judge.

tation by Fred W. Jones against Isaac G. Waterman. From a judgment for defendant, plaintiff appeals. Affirmed.

Wm. Griffith, for appellant. Canfield & Starbuck and H. C. Booth, for respondent.

ALLEX, J. Action for money. Judgment for defendant, and a motion for new trial denied. Plaintiff appeals from the judgment and order.

The action was brought in the court below by plaintiff to recover a sum for the hire of two certain under reamers, alleged to have been furnished by him to defendant for use in drilling a well. The complaint is based upon an express contract upon the part of defendant to pay for the reasonable value of such hire. The answer denies the contract and also the hire or the use by defendant of said tools. The court finds in favor of defendant upon all of the issues.

There is no evidence in the record tending to support the issue as to the express promise to pay for such hire, and were we to assume that under the issues evidence was ad

We concur in the judgment: CHIPJAN, P. J.; MCLAUGHLIN, J.

· Cal. App. 201) DU BRUTZ v. BANK OF VISALIA. (Sac.

1,458.) (Supreme Court of California. Oct. 3, 1901.)

In bank. Action by Sarah J. Du Brutz against the Bank of Visalia. Judgment for plaintiff, and defendant appeals to the District Court of Appeal, where the judgment was reversed. 87 Pac. 467.

87 Pac. 467. Proceeding to transfer from District Court of Appeal to the Supreme Court. Transfer denied.

PER CURIAM. In denying a transfer of this cause to the Supreme Court for hearing and decision, we desire to qualify the order by saying that we do not approve that portion of the decision of the District Court of Appeal which holds that an action by a

Error from District Court, Kiowa County ; before Justice Frank E. Gillette.

Lee Hazelwood was convicted of larceny, and brings error. Reversed and remanded.

Welty & Harrison and C. A. Morris, for plaintiff in error. P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

missible to show an implied agreement to pay therefor, the record discloses a conflict in such evidence, and that there is sufficient in the record to support each and every finding of the court below, and under the wellestablished rule such findings will not be disturbed.

There was no error in admitting in evidence the memorandum of agreement between defendant and the well driller, nor in admitting the oral agreement between the parties in reference to the driller's obligation to furnish all tools necessary in the prosecution of the work. It was competent as tending to show that no obligation rested upon defendant to furnish such tools, and that no authority could be implied from the transaction between defendant and the party who made the order. The order for such under reamers was made by the driller, and he did not, in terms, represent that he was acting for defendant. He simply ordered the tools, and directed them to be shipped to defendant's ranch, where he was then employed, and defendant is not shown to have had any knowledge of such order, or to have acquiesced therein; and it was competent for him to show that he gave no authority for the order, but, on the contrary, that the tools were to be furnished by the driller, and the driller's use thereof in no wise established any implied promise on defendant's part to pay for the hire. The mere fact that one of defendant's employés paid the expressage, and had, without authority from defendant, agreed to pay $30 toward such hire, would not render defendant liable on account of such hire, he having no knowledge either of the payment of expressage nor of the arrangement between the driller and his employé.

We perceive no prejudicial error in the record, and the judgment and order are affirmed.

BURWELL, J. Lee Hazelwood was indicted jointly with one Jerry Winningham, for stealing three cows. Hazelwood was tried and convicted, and sentenced to a term of two years in the territorial penitentiary. He has appealed to this court praying a reversal of the judgment.

We have read the entire record, and are fully convinced that a new trial should be granted, on the ground that the evidence is not sufficient to support the verdict. It is true that there are some circumstances that, are somewhat suspicious, but this is the most that can be said of them. The evidence was entirely circumstantial, and the jury was not justified in finding that it was sufficient to exclude every reasonable hypothesis of his innocence. In fact, the great weight of the evidence was in favor of the defendant. He not only denied the commission of the crime himself, but offered strong evidence by other witnesses. No one ever saw the cattle in defendant's possession, or saw him commit any act in relation to their taking. Counsel for the defendant insist with vigor that there is no evidence to support the verdict. The brief, for the territory, in discussing this point, simply says: “We contend that where there is some appreciable evidence connecting a person charged with crime, with the commission of the offense, that so far as the evidence is concerned, that is a matter for the jury under the proper instructions from the trial court.” Citing Howland v. Territory, 13 Okl. 575, 76 Pac. 143. The representatives of the territory do not pretend to point out the evidence which they assume justified the verdict. It cannot be found in the record.

For the reasons stated, the judgment of the trial court is hereby reversed at the cost of the territory, and a new trial ordered. All of the Justices concurring except GILLETTE, J., who presided at the trial below, not sitting.

We concur: GRAY, P. J.; SMITH, J.

(17 Okl. 515)

HAZELWOOD V. TERRITORY. (Supreme Court of Oklahoma. Sept. 7, 1906.) CRIMINAL LAW-STEALING DOMESTIC ANIMALS -CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY.

On a trial of one for stealing domestic animals, where a conviction is sought upon circumstantial evidence, such evidence must be such as to exclude every reasonable hypothesis of innocence; and while this court will not ordinarily weigh the evidence, if there is sufficient evidence to reasonably support the verdict, it will not permit a verdict of conviction to stand in a criminal case when it is clearly against the great weight of the evidence, and rests upon circumstances which are reasonably consistent with innocence and form an unsatisfactory basis for a verdict of guilty.

[Ed. Note.--For cases in point, see vol. 15, Cent. Dig. Criminal Law, $ 3080.]

(Syllabus by the Court.)

(17 Okl. 264) ST. LOUIS & S. F. R. CO. v. PHILLIPS. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. PLEADING VERIFICATION - NECESSITY JUDGMENT ON PLEADING.

Where an action is brought against a railroad company to recover damages for the killing and injury of certain horses shipped over the road, and where the petition alleges that the horses were shipped under the terms of a written contract between the plaintiff and defendant evidenced by a bill of lading, and where the same is attached to the petition, marked "Exhibit A" and made a part thercof, and where said bill of lading contains the provision, “No

carrier shall be responsible for loss or damage not go in person, or send an agent, with the of any of the freight shipped, unless it is proved stock, as in such cases he should have sent a to have occurred during the time of its transit copy of his contract to the consignee, in order over the particular carrier's line, and of this, that the latter might have complied with the notice must be given within 30 hours after the stipulation. arrival of the same at destination," and where [Ed. Note.-For cases in point, see vol. 9, written across the face of such bill of lading are Cent, Dig. Carriers, 8 938.] the words “released per contract," and where the contract thus referred to is set up in the

5. SAME-TIME FOR GIVING NOTICE. answer of the defendant, and a copy thereof

Whether the time provided by the contract is attached to said answer as an exhibit, and

for giving notice of loss is reasonable or unreawhere such contract contains a provision “that,

sonable is a question of fact to be determined as a condition precedent to a recovery for any

by the circumstances of the case. damages for delay, loss or injury to live stock [Ed. Note.For cases in point, see vol. 9, covered by this contract, the second party will Cent. Dig. Carriers, $ 732.] give notice in writing of the claim therefor to

(Syllabus by the Court.) some general officer, or the nearest station agent of the first party, or to the agent at destina

Error from Probate Court, Oklahoma tion, or some general officer of the delivering line, before such stock is removed from the point Copnty; Wm. P. Harper, Judge. of shipment or from the place of destination, Action by D. M. Phillips against the St. and before such stock is mingled with other Louis & San Francisco Railroad Company. stock, such written notification to be served

Judgment for plaintiff, and defendant brings : within one day after the delivery of such stock : at destination, to the end that such claim shall

error. Reversed and remanded. be fully and fairly investigated; and that a failure to comply with the provisions of this clause

On June 28, 1904, D. M. Phillips commenshall be a bar to the recovery of any and all

ced this action in the probate court of Oklasuch claims.” And, where it is alleged in said homa county against the St. Louis & San answer that this provision of the contract has not been complied with, and where the plaintiff

Francisco Railroad Company, by filing his files a reply setting up only a general denial,

petition therein, claiming damages in the unverified, such written contract is thereby ad- sum of $300 for the killing of one horse and mitted, and where neither the petition or the

the injuring of three others while being reply contains an allegation of compliance with the conditions of the bill of lading or contract,

transported by the railroad company from and the said pleadings on the part of the plain

Oklahoma City, 0. T., to Hoxie, Ark. On tiff contain no allegation of waiver of such con- April 21, 1905, Phillips filed an amended tract, and no facts are alleged therein tending to show an actual or substantial compliance

tion, setting out in addition to the foregoing with the said bill of lading or contract and no

allegations, a copy of the bill of lading, and excuse is offered or set up in the pleadings for on it was indorsed, “released per contract.” their noncompliance, said pleadings do not state

One of the provisions of said bill of lading a cause of action in favor of the plaintiff, and a motion for judgment for the defendant on the

is as follows: "No carrier shall be responsipleadings should be sustained in the absence of ble for loss or damage of any of the freight any allegation for leave to amend by the plain- shipped, unless it is proved to have occurred tiff.

during the time of its transit over the par[Ed. Note.--For. cases in point, see vol. 39, ticular carrier's line, and of this, notice must Cent. Dig. Pleading, $ 1067.]

be given within thirty hours after the arrival 2. CARRIERS-LIMITING LIABILITY.

of the same at destination." On the 29th of The responsibility of a common carrier may be limited by an express agreement made with

April, 1905, the railroad company filed its his employer at the time of his accepting goods answer in said cause, which, after containing for transportation, provided the limitation be

a general denial, set up by way of further desuch as the law can recognize as reasonable, and not inconsistent with sound public policy.

fense the execution of a live stock contract Hence, an agreement that, in case of failure by

with Phillips covering said shipment, copy the carrier to deliver goods, he shall not be lia- of which was attached to said answer and ble, unless a claim shall be made by the bailor or by the consignee within a specified period, if

marked "Exhibit A.” It is alleged in said that period be a reasonable one, is not against

answer "that, by the terms of said contract, the policy of the law, and is valid.

it is, among other things, specifically provid[Ed. Note.-For cases in point, see vol. 9, ed that, as a condition precedent to a recovCent. Dig. Carriers, 88 669, 670.]

ery for any damages for delay, loss, or injury, 3. SAME-SPECIAL CONTRACT.

the shipper must give notice in writing to the The common-law liability of a common car- nearest agent of the company within one day rier for the safe carriage of goods may be limited and qualified by special contract with the

after the delivery of such stock at destinaowner, provided such special contract does not

tion, and before the removal of the same attempt to cover losses occasioned by neglect from such destination, and defendant specifior misconduct.

cally avers that such notice in writing was (Ed. Note.-For cases in point, see vol. 9,

not given as required, and plaintiff did not Cent. Dig. Carriers, 88 637, 654-659.)

attempt to give such notice or make claim 4. SAME-NOTICE OF CLAIM FOR DAMAGES.

to any agent or officer of the company before A stipulation in a contract of affreightment of live stock, requiring the owner to give

said stock were removed from destination notice in writing of his claim for damages to or mingled with other stock, and defendant some officer of the company or its nearest sta- had no notice of the alleged damage, or option agent, before the stock is removed from the

portunity to investigate the same before said place of destination, is a reasonable stipulation and binding on the owner, and he cannot recover

stock were so mingled and removed, and that on failure to give such notice, though he did therefore plaintiff is not entitled to recover under such contract for the injury, if any, of the court overruling a motion for new sustained.” The provision of the contract trial, the plaintiff in error brings this appeal. referred to is section 11, and reads as follows: "That, as a condition precedent to a

Flynn & Ames and R. A. Kleinschmidt,

for plaintiff in error. T. F. McMechan, for recovery for any damages for delay, loss, or

defendant in error. injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer

IRWIN, J. (after stating the facts). The or nearest station agent of the first party,

plaintiff in error seeks a reversal of this or to the agent at destination, or to some gen

judgment on six different grounds: First.

That plaintiff in error was entitled to judgeral officer of the delivering line, before such

ment on the pleadings in said cause, and the stock is removed from the point of shipment

court erred in overruling his motion therefor. or from the place of destination, and before

Second. The court erred in not sustaining such stock is mingled with other stock, such

the objection of the plaintiff in error to the written notification to be served within one day after the delivery of such stock at desti

introduction of any evidence by the defend-.

ant in error, on the grounds that the pleadnation, to the end that such claim shall be

ings did not state a cause of action in favor fully and fairly investigated; and that a fail

of the plaintiff. Third. The court erred in ure to comply with the provisions of this

overruling the demurrer of the plaintiff in clause shall be a bar to the recovery of any

error to the evidence. Fourth. The court and all such claims.” To that part of the

erred in refusing the peremptory instruction answer setting up this defense, the plaintiff

asked by plaintiff in error, and in giving the filed a demurrer, which demurrer was over

instructions to the jury that were given. ruled on the 27th day of May, 1905. There

Fifth. The court erred in not sustaining the upon plaintiff filed a reply to said answer,

motion of plaintiff in error for judgment which was a general denial, unverified. On

on the special findings, notwithstanding the the 9th day of June, 1905, plaintiff in error

general verdict. Sixth. The court erred in filed his motion in said cause for judgment on

overruling the motion of plaintiff in error the pleadings, which motion was overruled by

for a new trial in said cause. the court and exceptions noted. The cause

The first and second assignments of error came on for trial on the 9th day of June,

may very properly be discussed as one, as 1905, a jury being impaneled. Plaintiff in

the same proposition of law is involved in error objected to the introduction of any evi

both, and practically the same state of facts dence on the part of the defendant in error,

is presented thereby, to wit, that the pleadon the ground that the petition and reply did

ings of the defendant in error were wholly not state facts sufficient to constitute a cause

insufficient to state a cause of action, and of action, which objection was overruled by

for this reason the defendant was entitled to the court and exceptions noted. The plain

a judgment on the pleadings. The amended tiff introduced his evidence and rested, and

petition set up a copy of the bill of lading the railroad company, defendant, demurred

for the shipment in question which contained thereto, which demurrer was overruled by

a clause requiring the shipper, as a condithe court, and exceptions saved. Thereupon

tion precedent to claiming damage, to give evidence was introduced on behalf of the de

notice thereof within 30 hours after the arfendant, and at the conclusion thereof, plain- rival of the same at destination, and said bil] tiff in error requested the court to give the

of lading specially referred to another conjury a peremptory instruction to return a ver

tract in these words, “released per contract," dict for the defendant railroad company, which words were written plainly across the which was overruled by the court, and ex

face of the bill of lading. Record, p. 10. The ceptions sa ved. The defendant also request

answer of the railroad company set up a ed the court to give to the jury instructions

copy of the contract referred to, alleged its numbered 1 to 13, which the court refused

execution by the plaintiff, Phillips, and speto give, to which the plaintiff in error ex- cially alleged the failure of the plaintiff to cepted. At the request of plaintiff in error,

comply with the condition precedent in his the court submitted to the jury 28 special said contract. The reply filed to this answer interrogatories. The case having been sub

by plaintiff was a general denial, unverified, mitted to the jury, they returned into court a and therefore admitted the execution of said verdict in favor of the defendant in error in contract as alleged, under the statutes of the sum of $186.25, and also returned special this territory. Wilson's Rev. & Ann. St. Okl., findings of fact to the special interrogatories 1903, § 4312, reads as follows: "In all acsubmitted to them. Thereafter, and on the tions, allegations of the execution of written 13th day of June, plaintiff in error filed its instruments and indorsements thereon, of motion in said cause for judgment on the the existence of a corporation or partnership, findings notwithstanding the verdict of the

or of any appointment or authority, or the jury, which motion was overruled, and ex- correctness of any account duly verified by ceptions noted, and judgment was thereupon the affidavit of the party, his agent or atentered for the defendant in error on the gen- torney, shall be taken as true unless the denieral verdict. From said order, and the order al of the same be verified by the affidavit of the party, his agent or attorney." There- vision requiring notice in writing to be given fore, the execution of the contract being ad- of the loss or injury within a reasonable time mitted, and the bill of lading referring there- as a condition precedent to the shipper's to and containing practically the same pro- right of action has been so repeatedly and vision in regard to notice as a condition pre- often supported by the decisions of the varicedent to any claim for damage accruing to ous courts of this country as to become a the shipper, the compliance with said condi- well-recognized and settled rule of law. tion precedent, and with the terms of said In the case of Southern Express Co. v. contracts, could not be predicated or gathered Caldwell, reported in 21 Wall. 264, 22 L. from a general denial. It would certainly Ed. 556, the Supreme Court of the United seem to be the duty of the defendant in error, States say: "The responsibility of a common upon admitting. the execution of the contract, carrier may be limited by an express agreeto either especially allege compliance with ment made with his employer at the time of the terms thereof, or to especially plead some his accepting goods for transportation, proof the facts, if any such there were, which vided the limitation be such as the law can might tend to show a substantial compliance recognize as reasonable, and not inconsistent with the terms of said contract, and which with sound public policy. An agreement that, might tend to relieve him from compliance in case of failure by the carrier to deliver therewith, or he should, in some form, have goods, he shall not be liable, unless a claim alleged a waiver of the terms of said con- shall be made by the bailor or by the contract on the part of the defendant. Neither signee, within a specified period, if that of these things were done by the defendant period be a reasonable one, is not against the in error. Now it is a well-recognized princi- policy of the law, and is valid.” In 6 Cyc. ple of pleading, that where a party relies 508, it is held that a stipulation that the for his cause of action upon a breach of a claim for damages shall be made before the written contract, the burden is upon him to animals are removed from the place of deallege and prove every material element nec- livery, and mingled with other animals, is essary to his recovery thereunder. In other valid. Other stipulations for a short time, words, before he can complain of a breach of of giving notice of damages in case of live contract on the part of the other party, he stock, have been sustained, and numerous must show that he has actually or substan- authorities are therein cited to sustain this tially complied with the terms of the contract proposition. In the case of Texas Central himself, or has been released therefrom by R. Co. v. Morris, 1 White & W. Civ. Cas. Ct. the other party. Now, in this case, this bill App. $ 374, it is said: “A railroad company of lading, and the reference of the shipping may, by special contract, require a shipper contract contained therein, was first brought of cattle to serve a written notice of a claim into the case by the plaintiff in his petition, for damages for loss or injury to the cattle and was attached to the petition of the plain

while in transit, before the cattle are retiff as an exhibit, and made a part thereof. moved from the place of delivery and mingled Upon this bill of lading, and its accompany

with other stock, as a condition precedent ing contract of shipping, the plaintiff based to his right to recover for such damages." his cause of action. This, of itself, would In the case of Galveston, H. & S. A. Ry. Co. put upon the plaintiff the responsibility of v. Harman, 2 Willson's Civ. Cas. Ct. App. $$ proving compliance with the material parts 136, 137, it is said: "A stipulation in a conof said contract on his part. This is peculiar- tract of affreightment of live stock, requiring ly true when we remember that the noncom- the owner to give notice in writing of his pliance with the essential parts of this con- claim for damages to some officer of the comtract was alleged in the answer of the de- pany or its nearest station agent, before the tendant. The plaintiff's attention was called stock is removed from the place of destinato the particulars in which he had failed tion, is a reasonable stipulation, and binding to comply with the contract, and his atten- on the owner, and he cannot recover on failtion was challenged to that proposition by ure to give such notice, though he did not go the answer of the defendant. Then no legal in person, or send an agent, with the stock, denial of the contract was pleaded, no claim as in such cases he should have sent a copy of compliance, either actual or substantial, of his contract to the consignee, in order that and no claim of waver was made. Now, if the latter might have complied with the this provision of the bill of lading and the stipulation." In the case of A., T. & S. F. R. shipping contract was such a provision as Co. v. Crittenden, 44 Pac. 1000, the Court was reasonable, valid, and enforceable as a of Appeals of Kansas say: "So far as it matter of law, then the burden was upon the required the shipper to give notice in writplaintiff, not only to prove, but to allege in ing of his loss or injury, it is a valid, binding his pleadings, a compliance with the terms contract. By its terms Crittenden was comof the contract for a breach of which he sues. pelled to give notice in writing to the comNow, the proposition presents itself, was this pany of his claim for loss or injury to such provision of the bill of lading and shipping stock before said stock was removed from contract a reasonable one, and one which the the place of destination on delivery, and belaw would enforce? The validity of a con- fore said stock was mingled with other stock. tract of this nature and of this special pro- Failing to comply with the terms of this con

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