After the decree of the divorce was introduced, Mrs. Gater was interrogated further, whereupon she stated that she had an attorney, and desired that he be present when she testified. After her attorney appeared, the examination proceeded, and in several instances she claimed exemption from answering the question because the answers might tend to incriminate her, and she was not required to answer. No exceptions were taken to any of these questions or to the conduct of the witness. Finally, the plaintiff's attorney in his closing argument stated to the jury, in substance, that the refusal of Mrs. Gater to testify on the ground that her testimony might tend to incriminate her was a strong circumstance proving adultery with the defendant. Counsel for the defendant saved exceptions to the remarks just referred to, and asked the court to instruct the attorney that the matter then being discussed was not a proper subject for argument before the jury. The court did not comply with the request of counsel just at the time, but later called the jury's attention to these remarks in the following instruction: "The fact that Mrs. Gater, a witness in this case, refused to testify, should in no way be taken into consideration by you. You are to be guided solely by the evidence permitted to go to you by the court, and determine the case upon such evidence." The exact language used by the plaintiff's attorney is not presented by the record. substance of his statement is set out in an affidavit of defendant's attorney. The court heard the remarks, and had full opportunity to weigh their effect, so far as such matters can be determined by a trial judge. The court, perhaps, should have instructed the jury and admonished counsel at the time, but the jury were instructed most positively before they retired, and were fully advised that the refusal of the witness, Mrs. Gater, to answer questions could not in any way be considered by them. The record will not justify this court in concluding that the jury probably disregarded this instruction.

The

The last contention of the appellant is that some of the jurors one night, while the case was on trial, visited a saloon and drank intoxicants and played cards, and that while in the saloon some one made the remark, "That man Easterly cannot be stuck," and that the juror Simons replied, "That man Easterly will be stuck." Affidavits were filed in which the deponents verified the claims of the defendant as to the misconduct of these

A careful review of all of these affidavits convinces one that the remark attributed to the juror Simons, to the effect that "Easterly would be stuck," was never made by him or any other juror. But it is clear that the jurors drank some intoxicating liquors, but not to excess. None of them showed the effects of the liquor. Did this constitute such misconduct as will require the setting aside of their verdict? We think not. The jury had separated for the night. They were not in charge of a bailiff, although one was with them at the time. In Mr. Thompson's work on Trials, vol. 2, § 2566, it is said: "Some courts have held that the use of intoxicating liquors in quantities, however small, without leave of court, will be good ground for setting aside the verdict, without inquiry as to what effect it had upon the jurors who drank it, and this rule has been applied in civil as well as criminal cases. But the courts generally have adopted the more reasonable rule that the fact that members of a jury did. during the trial of a cause or while deliberating on their verdict, drink intoxicating liquors, will not be ground for a new trial, unless there is some reason to suppose that such liquors were drunk at such time or in such quantities as to unfit them for the performance of their duties, or unless they were furnished by the party in whose favor the verdict was afterwards rendered, or, at least. unless the circumstances were such as to create a reasonable suspicion that the drinking may have improperly influenced the verdict." It was an impropriety for the jurors to go into the saloon and drink under the circumstances of the case, but, so far as the record discloses, it did not in any way effect their capacity to serve and deliberate. Their conduct was not such as to warrant the granting of a new trial.

The judgment of the lower court is affirmed, at the cost of the appellant. All the Justices concurring, except IRWIN, J., who presided at the trial of the court below, not sitting.

(17 Okl. 586)

MARTIN et al. v. HARTSHORNE. (Supreme Court of Oklahoma. Sept. 7, 1906.) FORCIBLE ENTRY AND DETAINER-NOTICE.

On a trial of an action of forcible detainer, where it appears from the evidence that notice to quit was served on the defendants personally, and a copy of the notice so served was introduced in evidence, which shows that the notice complied with all the requirements of the statute, held, that such evidence is sufficient on the question of notice.

(Syllabus by the Court.)

Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by Alfred W. Hartshorne against Jacob T. Martin and others. Judgment for

plaintiff before a justice was affirmed on appeal, and defendants bring error. Affirmed.

W. K. Moore, for plaintiffs in error. C. W. Ransom, for defendant in error.

PANCOAST, J. This was an action of forcible detainer, originally brought by the defendant in error, as plaintiff, before a justice of the peace of Kay county. Judgment there being for the plaintiff below, the case was appealed to the district court, and, judgment again being rendered for the plaintiff, this appeal is brought here.

An answer was filed by the defendant below, John T. Martin, no answer being filed by the other defendants, but the case seems to have been abandoned by them. Upon the trial of the case in the district court, the defendant in error, Hartshorne, introduced his testimony, which showed he was entitled to recover. At the conclusion of his testimony the defendants announced that they had no evidence to offer, but would simply demur to the evidence of the plaintiff. The demurrer was overruled by the court, and the jury directed to return a verdict for the plaintiff. A motion for new trial was filed, containing one ground only; that is, for errors of law occurring at the trial and excepted to by the defendants. While only a single ground is set forth in the motion for new trial, several alleged errors are contained in the petition in error. However, but one question is argued in the brief, and that is that the court erred in not sustaining the demurrer to the evidence, for the reason it wholly failed to show that Hartshorne had complied with the 'aw in regard to serving the three-days notice before suit was commenced.

There is so little merit in this contention that it does not require any extended comment. On the trial the plaintiff, Hartshorne, testified that he served each of the defendants with a notice; that he had a copy of the notice which he served upon the defendants, which copy was produced and introduced in evidence. An examination of this Copy shows that it complied with all the requirements of the statute. Mr. Hartshorne testified he served the notice on Martin personally, giving the time and place, and upon the defendant Vierson, by leaving a copy at his house with a girl, and upon defendant Young by giving him notice personally at his own house. No attempt at cross-examination was made, and, if the notice was not served by copy upon Martin, it could have been easily determined by cross-examination of Hartshorne. We think there is ample evidence to support the verdict, and that the court took the proper course in directing the jury to find a verdict for the plaintiff below. Seeing no error in the record, the judgment of the court below is affirmed. All the Justices concurring, except HAINER, J., who tried the case below, not sitting.

(17 Okl. 538)

FIRST NAT. BANK OF POND CREEK v. COCHRAN.

(Supreme Court of Oklahoma. Sept. 7, 1906.) 1. PLEADING-MOTION TO STRIKE FROM FILES. Objection to a petition on the ground that it does not state facts sufficient to constitute a cause of action can be made only by demurrer, or by the objection to the introduction of evidence at the trial. It cannot be raised by motion to strike the petition from the files.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 433, 1092.]

2. REPLEVIN-PLEADINGS AND ISSUES.

In an action in replevin, where both an affidavit and a petition or bill of particulars are filed, the office of the affidavit ceases when the property is delivered and jurisdiction conferred, and the action thereafter proceeds upon the petition. The affidavit is not a part of the pleadings in the district court, necessarily, and the facts set forth therein form no part of the issues triable there, unless such facts are again set forth in the petition or other pleadings.

3. SAME — AFFIDAVIT AND PETITION-VARIANCE.

In general there must be a substantial, though not a technical, correspondence between the petition and the affidavit in replevin. Where, however, the property has been delivered under the affidavit, and jurisdiction conferred, the trial thereafter proceeds in the district court upon the issues raised by the petition, and not those of the affidavit; and the question of a variance between the allegations of the affidavit as to the character of the ownership of plaintiff, and those of the petition, becomes immaterial.

4. PLEADING - OBJECTION TO EVIDENCE FOR INSUFFICIENCY OF PLEADING.

An objection to the introduction of any evidence under a petition is good only when there is a total failure to allege in the petition some matter essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite, or statements of conclusions of law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1433-1436.]

5. SAME.

When the only objection made to a petition is by objection at the trial to the introduction of any evidence thereunder, its allegations will be liberally construed for the purpose of sustaining them; and when there is not a total failure of averment as to some essential matter, but the allegations are simply incomplete, indefinite, or statements of conclusions of law, held, an objection to the introduction of any evidence is properly overruled.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1433-1436.] (Syllabus by the Court.)

Error from the District Court, Grant County; before Justice James K. Beauchamp.

Action by Vernon Cochran against the First National Bank of Pond Creek. Judgment for plaintiff, and defendant brings error. Affirmed.

C. S. Ingersoll and Sam P. Ridings, for plaintiff in error. C. M. Keiger, for defendant in error.

in error against the plaintiff in error before a justice of the peace of Grant county. Cochran filed his petition on the 28th of January, 1904, alleging therein special ownership in the property by virtue of a certain chattel mortgage, and at the same time filed his affidavit in replevin, which contained the averment that he was the owner of the property mentioned. Judgment was rendered against the bank by default, and the cause appealed to the district court. There the bank filed a motion to strike the petition from the files, for two principal reasons: First, because of a variance, as it claimed, between the petition and the affidavit in respect to the character of the ownership alleged; and, second, because the petition failed to state facts sufficient to constitute a cause of action. This motion was overruled, and exception saved. No demurrer was tued, but at the trial the bank objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, which objection was overruled, and exception noted. At the conclusion of the introduction of plaintiff's evidence, the bank demurred thereto, and, upon the demurrer being overruled, saved its exception, and permitted the case to go to the jury on the plaintiff's evidence. The verdict was for Cochran. From an order overruling a motion for new trial, the bank has appealed, assigning as error the action of the trial court in overruling the various objections above enumerated.

We may state at the outset that we think the evidence in the case amply sufficient to sustain the essential features of the plaintiff's case. There is evidence bearing upon the proposition of the right of the plaintiff to possession, the character of his ownership, the taking, detention, and value of the property, demand therefor, together with evidence of damages sustained by reason of the detention; and this, we think, is all that is necessary to be proved in such a case. There was no error committed by overruling the demurrer to the evidence.

The main questions involved in this appeal arise upon the overruling of the motion to strike and the objection to the introduction of evidence. The motion to strike the petition from the files, however, is not well tak

In the first place, objection to a petition on the ground that it does not state sufficient facts can be made only by demurrer or on the trial; it cannot be raised by motion. 6 Enc. P. & P. 316; Finch v. Finch, 10 Ohio St. 505; Bradley v. Parkhurst, 20 Kan. 462; Richmond v. Brookings (C. C.) 48 Fed. 241.

As to the question of variance between the affidavit and the petition, in general it may be said that there must be a substantial, though not a technical, correspondence between the petition and the affidavit in replevin. The office, however, of the affidavit in replevin, if a petition is filed, ceases when

the property has been delivered thereunder and jurisdiction conferred. The action thereafter proceeds upon the petition. The affidavit is not necessarily a part of the pleadings in the district court, and its allegations do not and cannot control in offering evidence upon matters essential to be proved; but the court will look only to the contents of the petition, and not to those of the affidavit, in that particular. The facts set forth in the affidavit form no part of the issues in the case, unless such facts are again set forth in the pleadings. Hoisington v. Armstrong, 22 Kan. 119; Kerrigan v. Ray, 10 How. Prac. (N. Y.) 213; Nollkamper v. Wyatt, 27 Neb. 565, 43 N. W. 357; Mills v. Mills, 39 Kan. 455, 18 Pac. 521. The office of the affidavit having been completed, and the issues raised being upon the facts alleged in the petition, the question of a variance between its allegations and those of the affidavit becomes immaterial. As before stated, objection was made to the introduction of any evidence, for the reason the petition failed to state a cause of action, and the argument is made that the defects of the petition are that no copy of any mortgage or other instrument is set out, and that, in effect, sufficient facts are not pleaded to enable the court to determine whether there was or was not a chattel mortgage, and, if any, whether it created such a lien on the property in favor of the plaintiff as could give the plaintiff a right to possession. The petition is not challenged in other respects, and, following the rule laid down by this court in case No. 1,741, Haffner v. Dobrinski (Okl.) 88 Pac. 1042, the allegations which are questioned here will be liberally construed by this court for the purpose of sustaining them. Robbins v. Barton, 50 Kan. 120, 31 Pac. 686.

51

The method of attack by objection to the introduction of any evidence is not favored by the courts, and while it is the proper procedure when there is a total failure to allege in a petition some matter essential to the relief sought, yet it is not good when the allegations are simply incomplete, indef inite, or statements of conclusions of law. Johnson v. Anderson, 60 Kan. 582, 57 Pac. 513; Laithe v. McDonald, 7 Kan. 254, 262; Moody v. Arthur, 16 Kan. 426. In the case at bar, the allegations of the petition characterizing the special ownership of the plaintiff below are: "That plaintiff is the owner and holder of one certain chattel mortgage lien against the following personal property," describing it, "and is entitled to the immediate possession of the same, by reason of the fact that the conditions of said mortgage have been broken, and that the note for which said chattel mortgage was given as security is long past due, and the said payor has neglected and refused, and does now neglect and refuse, to pay the same," followed by statements of the amount due, and an allegation of a demand for the return of the property. While the language

used is not, perhaps, the most definite, succinct, and complete by which to set up the plaintiff's claim to the property or his interest therein, yet it is, so far as it goes, a plea of special ownership, or, at least, the plaintiff's conclusions in that respect, and is not a total failure of averment of any ownership at all, either special or general. Liberally construed, in the absence of a motion. to make more definite and certain, or to require the plaintiff below to attach his mortgage, by copy, to the petition, the allegations quoted seem to us entirely sufficient to apprise the bank of the nature of the ownership which plaintiff below claimed in the property and of his rights thereunder. It follows, therefore, that the trial court committed no error in overruling the objection to the introduction of evidence.

From a careful reading of the record, we believe that no material error was committed by the court below. That being true, the judgment of the trial court should be affirmed. It is so ordered. All the Justices concurring.

(17 Okl. 119)

SULLINS et al. v. FARMERS' EXCHANGE BANK.

(Supreme Court of Oklahoma. Sept. 6, 1906.) 1. USURY-INTEREST ON NOTES.

In the computation of interest at the full legal rate upon promissory notes negotiable in form due in six months, it is not usurious to compute the same for a period of six months and three days, notwithstanding a provision which renders them nonnegotiable, because of an agreement to pay attorney's fees if the same are placed in the hands of attorneys for collection.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, § 107.]

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Usury, §§ 23, 24, 107.]

(Syllabus by the Court.)

Error from District Court, Noble County; before Justice Bayard T. Hainer.

Action by the Farmers' Exchange Bank against John P. Sullins and Walter D. Sullins. From judgment for plaintiff, defendants bring error. Affirmed.

On the 18th of July, 1902, the parties to this action entered into an agreement partly in writing and partly in parol, the written part of which is in the following words: "E. E. Van Slyke. President, W. L. Atherton, Cashier, Farmers Exchange Bank. Ceres, Oklahoma, July 18, 1902. This is to certify that J. P. Sullins has this day deposited with the Farmers Bank of Ceres, Oklahoma, $1,600 to be paid to the grantors on their order, upon the presentation of a deed duly ap

proved by the Secretary of the Interior, or by the President of the United States, to the S. W. (4) quarter of section (7) seven, township twenty-three (23) range 1 east of the Indian meridian. [Signed] E. E. Van Slyke, President." The circumstances under which the above certificate was executed and delivered were these: J. P. Sullins having ascertained that he could purchase the allotment of a deceased Indian for the sum of $1,600, applied to Van Slyke, the president of the bank, to make arrangements for procuring the money when needed, to pay for the land in case it should be awarded to him upon the bid he was about to submit, and, having furnished acceptable security, the above certificate was given him by the president of the bank. The securities furnished at the time of executing the above certificate were two promissory notes; one given for the sum of $1,000, and the other for the sum of $750, and a chattel mortgage securing the same, and this action is brought to enforce payment of these notes and the foreclosure of the chattel mortgage. The defendants answered by a general denial; and, second, by setting out an oral agreement, in which it is alleged that it was agreed between the parties at the time the said several writings were executed and delivered, that, in the event of defendant John P. Sullins not obtaining said Indian land, he was to return the said certificates, and the said plaintiff would thereupon cancel and return to him his said notes and chattel mortgage. notes and mortgage bear date of July 18, 1902, and were due and payable six months after date. At the time of the execution and delivery of these various papers, the bank also issued and delivered to Sullins an ordinary deposit slip for $50, and entered a general credit on its books to him in that sum separate and apart from the $1,600, which last amount was to be drawn upon by Sullins only in the event that he obtained the land then in contemplation. Interest was computed upon the total amounts of credit given him; i. e.. $1,650, at the rate of 12 per cent. per annum for six months, the interest being figured at $100, and this being added made the total of the notes and mortgage $1,750. It further appears from the record that Sullins failed to obtain the land as contemplated, and therefore never drew any money out of the bank, and at no time made. any use of the credits thus given him. to just when Sullins notified the bank of his failure to obtain title to the land, and that he would therefore not need the money thus contracted for, and also at what time he offered to return the certificate and deposit slip, are both matters upon which the evidence in conflicting. The plaintiff bank replied to the answer of defendant by a qualified general denial, and, at the March, 1904, term of the court, the cause came on for trial before the court without a jury, and at its conclusion the court rendered

The

judgment in favor of the bank, and against plaintiff in error, Sullins, in the sum of $65, from which judgment, the cause comes to this court by case-made.

H. B. Martin, for plaintiffs in error. S. H. Harris, for defendant in error.

GILLETTE, J. (after stating the facts). Three propositions are presented by the argument of counsel for the plaintiff in error, upon which they ask for a reversal of the judgment on this case: "First. The notes sued on were nonnegotiable upon their face. *** Second. Upon the undisputed evidence the only consideration for these notes was a promise on the part of the bank to pay $1,600 to a third person for the benefit of Sullins, and to pay to Sullins the sum of $50. * * * The sum of $100 is an excess of 12 per cent. interest on $1,650 for six months and the contract is therefore usurious. Third. Under the undisputed evidence the original contract was impossible of performance, for the reason that Sullins did not procure, and could not procure, the deed of the Indian with the approval of the Secretary of the Interior for the land described in the contract."

Touching the first and second of these propositions, it must be understood that only a question of interest upon notes aggregating $1,650 is involved, to which was, added $100 for interest for six months. Counsel for plaintiff in error contend that such contract for interest was usurious, being $1 in excess of 12 per cent. upon $1,650 for six months, and therefore no interest was collectible upon the notes. From the record it appears that the president of the plaintiff bank, in deter mining the amount of interest that should be added to the notes, used an interest table which includes in such computation days of grace, which, added to the length of time the notes were to run, made the total interest $100.65. The 65 cents was thrown off, and an even $100 was charged as the interest, while interest at 12 per cent. for even six months was $99. Counsel for plaintiff in error in their brief admit that interest is chargeable, in proper cases, on the period of grace allowed; which is probably correct, because of the fact that the law concerning contracts enters into and forms a part thereof, and as no remedy is allowed for its enforcement until the lapse of the three days of grace, the end of such three days of grace might properly be taken into consideration in the computation of interest. But it is argued that, with reference to the notes under consideration, there were no days of grace authorized under our statute, because the notes were nonnegotiable under the provisions of our statute, and the determination of this court. We may concede that they were nonnegotiable, because of a provision authorizing the collection of 10 per cent. attorney's fees if the notes were placed in the hands of

attorneys for collection; but we are unable to agree with counsel that such fact defeats the right of the debtor to days of grace allowed by the statute. The notes were negotiable in form. They were a promise to pay to the order of E. E. Van Slyke the amount specified.

There are two provisions of our statute which bear directly on this subject. Section 3660, Wilson's Rev. & Ann. St. 1903, provides: "Days of grace, to be computed as above, shall be allowed for the payment of all promissory notes, bills of exchange and drafts. on the face of which time is given or specified." And section 3698 provides: "A promissory note is an instrument negotiable in form whereby the signer promises to pay a specified sum of money." As the notes in question were made payable to the order of E. E. Van Slyke, they were negotiable in form. notwithstanding the subsequent provision in the notes for attorney's fees. The language "to the order of E. E. Van Slyke" gave to them the character of negotiability, and, we think. satisfied the definition of section 3698, defining a promissory note, and brought the instruments directly within the provisions of section 3660, which provides that days of grace shall be allowed for the payment of all promissory notes on the face of which time is given or specified. We are not satisfied, however, that if the contention of the plaintiff in error was admitted, to wit, that $1 in excess of 12 per cent. per annum was contracted for, the same would forfeit the right of plaintiff to collect interest on the notes, under the facts and circumstances of this case; for it was manifestly not the intention of either party to enter into a usurious agreement. The manner in which the amount of interest was determined, to wit, the use of an interest table, showing the amount of interest that would accumulate upon the amount of money involved at the rate of 12 per cent. for the space of six months, and the adoption of such computation negatives an intent or purpose to charge, demand or receive a sum in excess of 12 per cent. on the amount for which notes were given. In the case of The Bank of the United States v. Waggener et al., 34 U. S. 379, 9 L. Ed. 163, the Supreme Court of the United States, in an opinion by Mr. Justice Story, held as follows (quoting from the syllabus): "In construing the usury laws, the uniform construction in England has been, and it is equally applicable here, that to constitute usury within the prohibitions of the law. there must be an intention knowingly to contract for and take usurious interest; for, if neither party intend it, and act bona fide and innocently, the law will not infer a corrupt agreement."

The subject has been passed upon by sev.. eral of the states as follows: "In determining the question of usury the intention of the parties should govern, without regard to the form of the contract." Cooper v. Nock, 27