The plaintiff in error in his brief says: "The petition shows affirmatively that the instruments sued on were illegal contracts, and that they were void, being against public policy. They showed that the promise to pay was made, not to the railroad company, but to a third party." There is nothing in the petition which justifies this statement. The notes sued on were plain promissory notes, payable to the defendant in error, and recite a particular consideration therefor, which was the building of a railroad by the defendant in error as stipulated, and the petition averred full compliance with such consideration. There was no third party mentioned. There was no railroad named to be influenced. There is nothing in the petition or contract which shows that any particular railroad company or official was to be or might be influenced by it. It was simply a contract to pay so much money when a certain thing was done, and the petition averred a full compliance with the terms of the agreement. To have held the demurrer good it would have been necessary for the court to have read into the petition and contract sued on what was not there written, and which could not be legally presented in considering the demurrer. The authorities cited are not applicable. In Enid Right of Way & Town Site Company v. Lyle, the company agreed, in consideration of $75, to secure the location of a depot on the line of the Denver, Enid & Gulf Railroad at a point named, which amount was to be due and payable to the company when its road was constructed to the point named. In McGuffin v. Coyle & Guss, McGuffin contracted to pay Coyle & Guss, in consideration of the Atchison, Topeka & Santa Fé Railroad building a line of railroad to Cushing, Okl., by a time fixed; while in Piper v. Choctaw Northern Town Site & Improvement Co., the contract was with the Watonga & Northwestern Railroad Company, and was given as a matter of inducement to the building of that company's line of road to Watonga. In this last-named case, the contract was held valid and enforceable. In the other two cases, the contracts were held invalid and not enforceable. In the case under consideration, the contract was executed and made payable, as stated, in consideration of benefits to be derived by plaintiff in error from the construction of a line of railroad and the location of a depot and yard facilities at a point named. and was not therefore a contract in consideration of some third party doing the thing contracted to be done: nor was any third party by the terms of the contract to be influenced to do the thing desired. There was no room therefore in the allegations of the contract or petition for the court, upon considering the demurrer, to conclude that the contract was void upon the ground of being against public policy. If it was void for such reason, it would be necessary to show sufficient fact to that end by answer. The line of road to be built was from Blackwell, Okl., to Hoyle, Okl. The ownership of the road is not disclosed by the contract sued on, if there was an owner of the same at the time, and the contract by its terms and tenor appears to be simply an inducement to such construc- tion. This was the controlling consideration of the court in the case of Piper v. Choctaw Northern Town Site & Improvement Co. supra, wherein an obligation to pay $250 was held to be payable to the company building the road; such sum having been offered as an inducement to build the line of road by a time specified to a point designated. The demurrer having been overruled, we think, correctly, the defendant answered as herein before stated. No question of the nonenforceable character of the instrument sued on upon the ground of public policy was presented by the answer. To a more complete understanding of the questions the trial court had before it to consider in the trial of the cause and upon the introduction of the testimony, we will reca pitulate the defenses set up in the answer of defendant to the contracts sued upon. The execution and delivery of the contract was admitted, but it was alleged that the railroad was not built or in operation August 1, 1901, and that no depot and yard facilities had been established at the point required by the contract. This was the only defense stated in the answer touching the particular provisions of the contract sued on. A second and further defense was pleaded based upon a separate contract purporting to have been given by the construction company to defendant, which by its terms provided for the execution and delivery to defendant of four lots in the town of Ames. Okl. (a changed name for Hoyle), to be selected by lottery, which deeds, it was alleged, had never been executed, and execution of them upon demand therefor had been refused. Touching the direct defense stated that the railroad was not built with depot and yard facilities on August 1st, there was presented simply a question of fact, to which much testimony was addressed, and from which it appears that the road was constructed to the point required on the day required, and much evidence was offered upon the question as to whether or not a depot and yard facilities was on that day provided at that point. point. On behalf of the plaintiff, it was contended that a temporary depot was, at the time, provided, and that the plaintiff was at that time ready with depot facilities to discharge the business incident to the operation of a line of railroad, and that an agent had been supplied for that purpose. The conflicting testimony in this respect was settled by the general finding of the court that the road was constructed and in operation at the time and place required by the contract. A more perfect construction would, no doubt, follow with the lapse of time and necessity therefor, but that the road was constructed and fixed permanently at that point at that time there can be no question, and this probably was the only requirement of the contract, although it is specified in the contract, as a part of the consideration therefor, that a depot and yard facilities should be built, but the date upon which the depot and yard facilities should be built is not specified. Touching the second ground of defense, to wit, the conveyance of lots, it is shown that two contracts were executed; the first for three lots, 13 days after the execution of the first contract sued on, and the second for one lot 25 days after the second note sued on was executed. In fact, the dates of the instruments themselves show this to be true. As to the date of the delivery of the instrument sued on and the delivery of the instrument set out in the answer, or whether or not there was a simultaneous delivery of each of such instruments, the record is silent. Numerous questions were asked tending to develop this fact, but under the rule of the court such questions were not answered. Exceptions were taken to the ruling of the court in this respect. The order of the court was based upon the fact that the instruments sued on were each a complete contract requiring no explanation because of ambiguity, and expressed a consideration moving therefor. It is true that a written instrument may be varied by an instrument in writing or by an executed parol agreement. Here it was sought to vary a written agreement by an instrument in writing, to wit, Exhibits A and B, to the answer. The execution and delivery of these instruments were not admitted. In fact, their execution and delivery by plaintiff were denied under oath in the reply to the answer, as well as the authority of the person purporting to have executed the same. This status placed the burden upon the defendant to show that the written instruments presented by the answer were obligations of the plaintiff, and, until such fact was established they could not, under the denial of the reply, be received in evidence or brought forward as contracts varying the terms of the written instrument sued on, and the rule of the court excluding them and any evidence touching their terms and tenor, until authority for their execution was shown, was correct. to the defendant, which left his defense standing alone upon the proposition that the road was not constructed in time and in accordance with the instrument sued on, and, as we have observed, such issue of fact was determined by the trial court upon conflicting testimony, which, under the rule of this court, cannot be disturbed. The judgment of the court below must therefore be affirmed, with costs. All the Justices concurring, except PANCOAST, J.. who presided in the trial of the case, not sitting, and IRWIN, J., absent. (19 Okl. 257) WOODS COUNTY BANK v. BENSING. This court will not reverse, vacate, or modify a judgment which is supported by competent evidence, nor consider, in connection with error based upon such grounds, questions of erroneous procedure which were not presented to the consideration of the trial court in the motion for new trial. [Ed. Note. For cases in point, see Cent. Dig. vol. 25. Guaranty, § 3928.] (Syllabus by the Court.) Error from District Court, Woods County; before Justice J. L. Pancoast. Action by H. C. Bensing against the Woods II. A. Noah, for plaintiff in error. Snoddy & Son, for defendant in error. GILLETTE. J. This action was commenced in the district court of Woods county, Okl., by the defendant in error filing therein his petition, as plaintiff, against the plaintiff in error. Woods County Bank, a corporation, in which he prayed judgment against the plaintiff in error in the sum of $675 and interest from January 1. 1902, upon an account for money deposited, in the sum of $3,747. To which petition the defendant answered by a general denial. The case was tried to a jury on the 14th of February, 1905, resulting in a verdict for defendant in error in the sum of $660.11, which is confessed to be a sum in excess of the plaintiff's right of recovery in the amount of 1 per cent. interest, the jury haying computed the interest at 8 per cent.. when 7 per cent. only were allowable, and the defendant in error consents to remit $15 of such judgment, being a sum in excess of the 1 per cent. interest illegally computed and allowed by the jury. Special questions of fact were by the plaintiff in error submitted to the con No attempt was made to show that such instruments were executed or delivered by authority of the plaintiff, or to show that one T. S. Chambers, by whom they were signed, was either an officer or agent of the plaintiff, or had power or authority to execute or deliver the same. This lack of necessideration of the jury to be answered with sary evidence on behalf of the defendant to their general verdict, as follows: (1) Was bring the instrument relied upon before the $150 check (Exhibit C) signed by plaintiff? court for consideration was sufficient to ex- A. No. (2) Was $50 check (Exhibit B) signed clude the same as evidence or proof of their by plaintiff? A. No. (83) Was check $332.28 contents. With such failure of proof on be- (Exhibit N) signed by plaintiff? A. No. (4) half of defendant, the entire ground of de- Was plaintiff's account with defendant equalfense based upon such instruments was lostly balanced December 23, 1901, with no bal ance due either party? A. No. (5) How much money did plaintiff pay into the bank altogether? A. $4,422.80. (6) How much money did plaintiff draw out of the bank altogether? A. $3,890.42." A motion for a new trial was filed in due time by plaintiff in error, which was afterwards considered by the court and overruled; seven grounds being stated in the motion, only one of which is argued in the brief of the plaintiff in error, to wit, the fourth ground, which is that the verdict is not sustained by sufficient evidence. which objection was by the court sustained, and the court at the time instructed the jury not to consider it. Where, as in this case, there is evidence which unquestionably supports the verdict, this court cannot conclusively determine that an erroneous question propounded to the jury, which was objected to at the time and objection sustained, was nevertheless so prejudicial as to justify the reversal of a judgment supported by competent evidence, and especially so since such alleged error was not presented to the trial court in the motion for a new trial. The judgment of the trial court should be credited with $15, the rebate thereon tendered by the defendant in error, on account of the erroneous computation of interest, and when so credited the judgment of the court below will be affirmed. All the Justices concurring, except PANCOAST, J., who presided in the court below, not sitting, and GARBER and IRWIN, JJ., absent. Counsel for plaintiff in error in their brief say: "The rule is familiar that the finding of a jury will not be disturbed if there is any competent evidence to support it. In spite of this, other circumstances may be taken into account in reaching a conclusion." That there was evidence to support the verdict there can be no question. The case turned upon the validity of three checks, one for $50, one for $150, and one for $332.28. These checks were each drawn in favor of the bank the name of defendant in error being signed to each of them. The defendant in error upon the witness stand denied ever having executed the same, denied ever having (Supreme Court of Oklahoma. Sept. 5, 1907.) seen the last one until upon the trial of the case, and affirmed that the $150 check given, as claimed by the officers of the bank, for the satisfaction of a promissory note, was not so given, because in fact he had satisfied that note in cash, which he paid to the president of the bank some months before the date of the check, and that when he paid it the president tore it up and put the fragments in the stove. The testimony of the officers of the bank was square at right angles with this testimony of the defendant in error, but the jury gave credence to his testimony, and the trial court, having seen the witnesses and having heard all the testimony adduced, overruled the motion for a new trial. There is therefore nothing left for this court to determine, unless we pass upon the disputed question of fact, and in doing so usurp the functions of a trial court and jury, which would be the violation of a rule so often stated that it is not necessary here to repeat. In presenting this matter, the plaintiff in error complains of the conduct of opposing counsel in the cross-examination of the cashier of the bank. The misconduct of counsel is not made a ground for setting aside the verdict in the motion for a new trial, but the consideration of it is asked in connection with the consideration of the other grounds referred to. In the presentation of a case to this court by case-made, it is a well-settled rule that grounds for a new trial will not be considered in this court which were not, on the motion for new trial, presented for the consideration of the court below. It appears from the record that questions asked by the opposing counsel, which are alleged to be erroneous and prejudicial because of the insinuation of the existence of irrelevant facts, was objected to when propounded by counsel, (19 Okl. 429) SCARRITT-COMSTOCK FURNITURE CO. v. HUDSPETH. 1. PRINCIPAL AND AGENT — AUTHORITY AGENT. OF Authority to an agent to sell goods does not of itself and alone apparently give to the agent authority to collect pay for the goods thus sold. [Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 301.] 2. SAME BURDEN OF PROOF. Where a traveling salesman sells goods by sample or from catalogues and price lists, sending the orders to his principal to be filled, the presumption is that such agent has not the authority to collect for such goods; and where a purchaser, subsequent to the date of ordering goods through such an agent, makes payments thereon to him, he does so at his peril, and in litigation for the value of the goods, the authority of the agent to make such collections being denied by his principal, the burden is on the purchaser to prove that the agent had such authority; and where the court instructs that such purchaser should be given credit for all payments made to such agent, unless he had notice or knowledge of the fact that such agent had no authority to collect for goods so sold, and judgment is rendered charging such payments to the seller, it will be presumed that the erroneous instructions operated to the prejudice of the seller, and a new trial should be granted by reason thereof. [Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent. § 397.] 3. SAME AUTHORITY TO COMPROMISE. Authority to an agent to sell goods does not carry with it authority to compromise differences which may arise between his principal and those to whom he sells goods, by reason of the goods not coming up to the standard represented; and, where a purchaser relies upon a compromise with such an agent, the burden is on him to establish the agent's authority (if such fact be in dispute) to effect compromises in such cases. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 326.] (Syllabus by the Court.) Error from District Court, Canadian County; before Justice Clinton F. Irwin. Action by the Scarritt-Comstock Furniture Company against John C. Hudspeth. Judgment for defendant, and plaintiff brings error. Reversed and remanded. Blake, Blake & Low, for plaintiff in error. Joseph G. Lowe and W. T. Beeks, for defendant in error. BURWELL, J. One George B. Barron, as the traveling salesman for the Scarritt-Comstock Furniture Company, sold a bill of goods to John C. IIudspeth amounting in all to $645.87, consisting of chairs, centertables, dressers, bedsteads, mattresses, and other household furniture. The bill of goods was sold from price lists and catalogue which showed pictures or cuts of the articles ordered. When the goods were received. it was found that the wholesale house had made certain substitutions where the patterns ordered were out of stock, and Hudspeth claimed that the goods were not of the quality ordered. Complaint was made to the house, and Hudspeth alleges that a settlement was made with the salesman, Barron, whereby the appellant was to knock off 25 per cent. of the price, and also that he had paid Barron on the goods subsequent to the sale, in all, $160 on the account, and for which he held Barron's receipt. The appellant denied the receipt of this money by Barron, and also denied his authority to compromise the matter with Hudspeth. On the question of presumption regarding the authority of the agent, Barron, to receive the money, the court instructed as follows: "The jury are instructed that if they believe from the evidence that the George B. Barron mentioned in evidence came to El Reno as the agent of the Scarritt-Comstock Furniture Company, and as such agent made the sale of the furniture mentioned in evidence, then the defendant will be entitled to credit on the account for any payments that he had made to said Geo. B. Barron as the agent of said company on said furniture, unless the jury believe from the evidence that the defendant had notice of the fact, or had knowledge that the said Geo. B. Barron was not authorized to collect for said company for said furniture, or that the circumstances and surroundings of such payment were such as to have given the defendant notice of the fact that said Barron had no authority to collect." The instruction, in effect, tells the jury that if George B. Barron, the alleged agent of the company, made the sale in question to the defendant, then the defendant should have credit for all payments made to such agent, unless the jury believe from the evidence that the defendant had notice or knowledge of the fact that Barron was not authorized to collect for the furniture for the company, or that the circumstances and surroundings of such payment were such as to have given the defendant notice of the fact that Barron had no authority to collect. The giving of the instruction was reversible error. The presumption of law is that one who is not in possession of goods, and who sells the same on credit, has not the authority to subsequently collect therefor, and the burden is on one making such payment to such an agent to establish by a preponderance of the evidence that the agent has authority to collect. The presumption is that such authority has not been conferred, unless the agent is in possession of the goods sold. In 1 Am. & Eng. Enc. of Law (2d Ed.) p. 1014, it is said: "Where the principal has clothed the agent with the indicia of authority to receive payment as by intrusting him with the possession of the goods to be sold, the purchaser is warranted in paying the price to the agent at the time of the sale. But when the agent has not the possession of the goods, and no other indicia of authority, and is only authorized to sell, the purchaser pays the agent at his peril, and it devolves upon him to show that the agent was authorized to receive payment. An agent selling on credit has no implied authority to subsequently collect the price, unless the principal has held him out to third persons as having authority to receive payments." And again, on page 1016 of the same book, it is declared: "Independent of a controlling usage to the contrary, a traveling salesman or agent merely to solicit orders for goods has no implied authority to receive payment therefor." The following cases support the rule above declared: Kane v. Barstow, 42 Kan. 465, 22 Pac. 588, 16 Am. St. Rep. 490; Graham v. Duckwall, 8 Bush (Ky.) 12; Butler v. Dorman, 68 Mo. 298, 30 Am. Rep. 795; Chambers v. Short, 79 Mo. 204; Abrahams v. Weiller, 87 Ill. 179; Kohn v. Washer, G 64 Tex. 131, 53 Am. Rep. 745; Higgins v. Moore, 34 N. Y. 417; Crosby v. Hill, 39 Ohio St. 100; McKinley v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740; Kornemann v. Monaghan, 24 Mich. 36; Meyer, Bennerman & Co. v. Stone & Co., 46 Ark. 210, 55 Am. Rep. 577; Diversy v. Kellogg, 44 Ill. 114, 92 Am. Dec. 154; Clark v. Smith, SS III. 298; Law v. Stokes, 32 N. J. Law, 249, 90 Am. Dec. 655; Seiple et al. v. Irwin et al., 30 Pa. 513; Janney v. Boyd, 30 Minn. 319, 15 N. W. 308. The burden was also on the defendant to show by a preponderance of the evidence that the salesman, Barron, had authority to compromise the difference with Hudspeth. It may be that the evidence was sufficient to authorize the jury in finding for the defendant even under the rule announced in this opinion. This, however, is not necessary to decide. The authority to collect from Hudspeth and to make the compromise or settlement claimed by him to have been made were issues of fact, and, the burden having been placed on the appellant under the instructions, when the law placed it upon Hudspeth. the presumption is that the appellant had been prejudiced by reason thereof. Whether a contract of guaranty has been materially changed or altered is a question of fact for the court or jury, and the finding thereon will not be disturbed on appeal, where it is reasonably sustained by the evidence. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3912.] 2. INTEREST-GUARANTY-JUDGMENT. Where a contract of guaranty limits the amount of the indebtedness to be paid, and provides that it shall be without interest, it is error to include interest before judgment in the assessment of the amount of recovery. (Syllabus by the Court.) Error from District Court, Kiowa County; before Justice J. L. Pancoast. Action by F. H. Stannard, doing business as F. H. Stannard & Co. against A. J. Dunlap and others. Judgment for plaintiff, and defendant Dunlap brings error. Modified and affirmed. Keys, Rummons & Cline, for plaintiff in error. Tolbert, Berry & Hays, for defendant in error. HAINER, J. This is an action brought by F. H. Stannard, doing business under the firm name of F. H. Stannard & Co., against Jones Bros. & Co., and A. J. Dunlap, to recover the sum of $1,450, together with interest, on a verified account and a written contract of guaranty executed by A. J. Dunlap. A jury having been waived, the cause was tried to the court, and judgment was rendered in favor of the plaintiff and against the defendants for the sum of $1,717.29. From this judgment the defendant A. J. Dunlap appeals. The written instrument of guaranty upon which the plaintiff in error was held liable is as follows: "November 6, 1902. I hereby guarantee that the firm of Jones Brothers & Company, of Hobart, O. T., will pay in cash to F. H. Stannard & Co., of Ottawa, Kansas, a sum not to exceed one thousand four hundred and fifty dollars, without interest. Onehalf to be paid December 1, 1902, and onehalf April 1, 1903. The consideration for said sum of money being nursery stock of the value wholesale of of above-mentioned amount. To be shipped to said Jones Brothers & Company, at Hobart, O. T., as per contract. This guarantee to take the place of a similar one, dated October, 1902, and supposed to be lost in the mails. A. J. Dunlap." It is contended by the plaintiff in error that the contract between Stannard & Co. and Jones Bros. & Co. was materially changed or altered, and that thereby Dunlap was relieved from liability. Whether .the contract of sale was materially altered or changed was a question of fact that was submitted to the court, and its finding, if reasonably sustained by the evidence, will not be disturbed by this court. We think the evidence fully sustains the finding of the trial court upon this point, and no other reasonable conclusion could have been reached by the court upon the evidence submitted. It is contended by the plaintiff in error that the court committed error in assessing the amount of the plaintiff's recovery. It appears that the court included in its judgment interest at the rate of 7 per cent. per annum from the time of the maturity of the obligations. The contract of guaranty expressly provided that the plaintiff in error should not be liable in a sum exceeding $1,450, without interest. Manifestly, when the defendant in error accepted the contract of guaranty, he accepted it subject to all the terms, conditions, and limitations contained in the instrument, and the plaintiff in error I could not be held for a greater sum. It follows that the court erred in including interest in the judgment against the plaintiff in error, and to that extent the judgment of the court below is hereby modified. It is also contended by the plaintiff in error that, if he is liable at all on his contract of guaranty, then he is entitled to a credit of the sum of $342.37. It appears that at the time of the purchase of the nursery stock by Jones Bros. & Co. the bill amounted to the sum of $1,792.87, on which amount Jones Bros. & Co. at the time paid in cash the sum of $342.87, thus reducing the amount of the bill to $1.450, the amount mentioned in the contract of guaranty. Plaintiff in error contends that he only guaranteed the payment of the sum of $1,450, and that on that amount he should have credit for the said sum of $342.87. There is no merit in this contention. The plaintiff in error expressly obligated hintself to pay the sum of $1,450, one half of which was to be paid on December 1,' 1902, and the other half on April 1, 1903. There was no limitation in the contract of guaranty upon the amount of nursery stock to be purchased by Jones Bros. & Co., but only a limitation upon the amount to be guaranteed by Dunlap, which was the sum of $1,450, payable one half on December 1, 1902, and the other half on April 1, 1903. Hence the plaintiff in error is liable for the sum of $1,450, the amount of credit extended by Stannard & Co. to Jones Bros. & Co. at the time of the purchase of the stock, and for which the written guaranty of the plaintiff in error was given, together with interest at the rate of 7 per cent. per annum from the date of the rendition of the judgment until the same is paid. Nor does the fact of the payment of the said sum of $342.87 by Jones & Co. upon receipt of the shipment of the |