knowledge of the Cline-Hawk land trade for bequest to the plaintiff. The application was which the note was given to his clients, his denied, and the plaintiff appealed to the disemployment and efforts to settle the contro-trict court. After a trial the district court versy about the land trade-every pertinent sustained the action of the probate court, fact necessary to determine the question of and the plaintiff appeals. notice to plaintiff was in evidence. The two questions which brought the affirmative responses from the witness added no additional facts to what had been already developed. They were objectionable as merely calling for the affirmative assent of the witness to mere conclusions couched in the form of leading questions by plaintiff's counsel. The district court made very full findings of fact. The last finding reads as follows: "From the evidence I find as a fact that by the eleventh paragraph of said will Mr. T. J. Small Memorial Home for Aged Women at Collins did not intend to give to the William Leavenworth, Kan., $8,000, or any other sum." It is argued that this finding is merely a conclusion of fact derived from specific facts previously found. The finding is a finding of the ultimate fact in issue, the intention of the testator. Conceding that the validity of the finding might be affected by other findings, there is none which is inconsistent with it. The plaintiff argues that the will must be interpreted to prevent intestacy if possible, and then argues from other provisions of the will and the facts and circumstances stated in the findings that the plaintiff sufficiently identified itself as the beneficiary named in the will. No useful pur It is urged that appellant relied upon the statement of Mrs. Hawk's counsel: "If she has given a note, she will have to pay it." Mrs. Hawk's attorney heard of the note for the first time in that conversation, and his answer was based upon the theory, as he testified, "that the payment of the note was by way of compromise to secure the cancellation of the contract." The facts were sub-pose would be subserved by debating the facts with the plaintiff. mitted to the jury under careful and appropriate instructions to which no exceptions were taken, and the result cannot be dis turbed. This court is satisfied with the conclusion reached by the district court, and its judgment is aflirmed. All the Justices concurring. VAN HORN v. WETTERHOLD. (Supreme Court of Kansas. Jan. 8, 1916.) RIGHT TO COMMISSION BROKERS 54, 65 Dig. 88 48-50, 75-81; Dec. Dig. ~54, 65.1 [Ed. Note. For other cases, see Brokers, Cent. Action by W. L. Van Horn against George Wetterhold. From judgment for defendant, plaintiff appeals. Affirmed. Fred K. Hammers, of Wichita, for appel- Chas. W. Garrison and Manford Schoon-lant. over, both of Garnett, and W. W. Hooper, of lee. Leavenworth, for appellant. Noah L. Bowman, of Garnett, for appellee. BURCH, J. The will of T. J. Collins, deceased, contained the following bequest: "Eleventh. I give, devise, and bequeath to the Old Ladies' Home of Leavenworth, Kansas, the sum of eight thousand ($8,000.00) dollars." WEST, J. The plaintiff sued to recover a commission for procuring a contract of exchange between the defendant and G. A. Rucker for certain real properties. He averred that under the contract Rucker was to convey a certain tract of land free and clear of all incumbrances, except a mortgage of $6,000, all water rights to be paid and all tax Claiming to be the beneficiary intended, the plaintiff made application to the probate courtes up to date. for an order for payment of the amount of the The defendant answered that G. A. Rucker For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes No brief had been filed in either case, and no appearance made on behalf of the plaintiff in error, when the cases were called for final submission. The Attorney General has filed motions to dismiss the appeals, on the ground that the same have been abandoned. The motions to dismiss the appeals are ap was not able to carry out the terms of the | to pay a fine of $100. From the judgments, contract, and charged fraud in its procure- appeals were taken. ment and alteration. The testimony showed that the land in question had been sold at foreclosure, and the only conveyances offered to the defendant consisted of a general warranty deed from the fee owner to Glen A. Rucker conveying the land subject to a mortgage of $7,063, with interest thereon from October 2, 1911, back taxes $207.63, and wa-parently well taken. The appeals herein are ter tax $298.07, and a general warranty deed from Glen A. Rucker to the defendant conveying the land subject to an incumbrance of $6,000, which, by the terms of the deed, the grantee was to assume and agree to pay. It appeared that the incumbrances above the $6,000 could not be taken care of until Rucker procured the money for that purpose, and that he desired to use the property to be conveyed by the defendant as a basis for a loan to raise such money. The jury found for the defendant generally, and also in answer to special questions that the defendant did not agree to pay the plaintiff for procuring the contract, that the contract had by the plaintiff been materially altered since its execution by changing a name and inserting approval, and that G. A. Rucker was not ready, willing, and able to carry out his part of the agreement for the exchange of properties. Findings were made in relation to other matters which need not be considered. Various questions are argued, but the findings referred to, sufficiently supported by the evidence, preclude recovery by the plaintiff. The judgment is affirmed. All the Justices concurring. KELLER v. STATE (two cases). (Criminal Court of Appeals of Oklahoma. Appeals from County Court, Coal County; P. E. Wilhelm, Judge. M. E. Keller was convicted of violations of the prohibition law in two cases, and appeals. Appeals dismissed. therefore dismissed, and the causes remanded (No. 6091.) LINDSEY et al. v. GOODMAN. Commissioners' Opinion, Division No. 4. Action between L. W. Lindsey and another and Elizabeth Goodman, administrator of the estate of Charles D. Goodman, deceased. From the judgment, the parties first menMotion to dismiss overtioned bring error. ruled, and time allowed to prepare and file briefs. Chas. L. Fildes, of Tulsa, for plaintiffs in error. John Y. Murry, Jr., of Tulsa, for defendant in error. WATTS, C. It is hereby recommended that the motion of defendant in error to dismiss the appeal be overruled, and defendant in error allowed 30 days in which to prepare and file briefs in this court. PER CURIAM. Adopted in whole. EMPORIA FEEDING & ELEVATOR CO. v. (Supreme Court of Colorado. Feb. 7, 1916.) Trice & Moore, of Coalgate, for plaintiff in City and County of Denver; Charles C. But error. R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. M. E. Keller, plaintiff in error, was tried and convicted in the county court of Coal county on two separate informations, each charging the unlawful sale of intoxicating liquor. In case No. A-2472, he was sentenced to be confined in the county jail for 30 days and to pay a fine of $50. In case No. A-2473, he was sentenced to be confined in the county jail for 30 days and ler, Judge. Action between the Emporia Feeding & Elevator Company and J. B. Manby. Judgment for Manby, and the Elevator Company brings error. Application for supersedeas denied, and judgment affirmed. George P. Steele, of Denver, for plaintiff in error. H. A. Hicks and Charles Roach, both of Denver, for defendant in error. PER CURIAM. Application for supersedeas denied, and judgment affirmed. BOLEN v. STATE. (No. A-2475.) (Criminal Court of Appeals of Oklahoma. March 11, 1916.) Appeal from County Court, Nowata County; F. A. Calvert, Judge. Harve Bolen was convicted of a violation of the prohibitory law, and appeals. Affirmed. H. O. Bland, of Nowata, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. On information filed in the county court of Nowata.county, charging that in said county on the 11th day of November, 1914, the plaintiff in error, Harve Bolen, did unlawfully have in his possession intoxicating liquors, to wit, one-half pint of whisky and six one-half pints of alcohol, with the intent to sell the same, he was tried, convicted, and sentenced to be confined in the county jail for 60 days and to pay a fine of $100. From the judgment, he appeals. No brief has been filed and the case was submitted on the merits. From a careful examination of this case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain. HOY v. GORST. (Supreme Court of Oregon. March 7, 1916.) APPEAL AND ERROR 1170-REVERSAL-ERRORS. Under Const. art. 7, § 3, requiring affirmance of judgments in law actions notwithstandbeen rendered, a judgment in replevin will be afing errors if the judgment is such as should have firmed in spite of unsubstantial errors. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4034; Dec. Dig. 1170.] Department 2. Appeal from Circuit Court, Coos County; John S. Coke, Judge. Action by Harry G. Hoy against V. G. Gorst. Judgment for defendant, and plaintiff appeals. Affirmed. Harry G. Hoy, of Marshfield (Hoy & Miller, of Marshfield, on the brief), for appellant. John D. Goss, of Marshfield (John C. Kendall, of Marshfield, on the brief), for respondent. PER CURIAM. This is an action in replevin to recover a Ford machine, called in the complaint an automobile. The evidence shows that plaintiff paid $35 for it, and that it was probably worth $90. There was a verdict for defendant, and plaintiff appeals. There are some unsubstantial errors, but from the whole testimony we are satisfied that the verdict and judgment are such as The judgment is therefore affirmed. Man- should have been rendered, and under the date forthwith. provisions of section 3, art. 7, of the Constitution, are affirmed. BOLEN v. STATE. (No. A-2476.) (Criminal Court of Appeals of Oklahoma. March 11, 1916.) BROTHERHOOD OF LOCOMOTIVE FIRE- Appeal from County Court, Nowata Coun- (Supreme Court of Colorado. Jan. 3, 1916.) ty; F. A. Calvert, Judge. Harve Bolen was convicted of a violation of the prohibitory law, and appeals. Affirmed. H. O. Bland, of Nowata, for plaintiff in error. R. McMillan, Asst. Atty. Gen., for the State. PER CURIAM. On information filed in the county court of Nowata county, charging that in said county on the 7th day of December, 1914, the plaintiff in error, Harve Bolen, did unlawfully have in his possession intoxicating liquors, to wit, six one-half pints of whisky, with the intent to sell the same, he was tried, convicted, and sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment, he appeals. No brief has been filed, and the case was submitted on the merits. From a careful examination of this case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain. The judgment is therefore affirmed. 1. INSURANCE INSURANCE JURY. 825 FRATERNAL BENEFIT EVIDENCE QUESTION FOR In an action to recover on a policy of fraternal benefit insurance, on the issue whether the insured had been expelled from the lodge, it was a question for the jury whether entry in the minutes indicating such expulsion had been made subsequent to the meeting at which it purported to have been made. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. 825.] 2. APPEAL AND ERROR 1002-SCOPE OF REVIEW - CONCLUSIVENESS OF FINDING BELOW. Where the proper issues are submitted to plaint is made, the evidence upon those issues the jury under instructions to which no combeing conflicting, the court on appeal cannot disturb the finding below. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.] Error to District Court, Las Animas County; A. W. McHendrie, Judge. Action by Florence McHenry against the Brotherhood of Locomotive Firemen and Enginemen. To review a judgment for plaintiff, defendant brings error. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A. C. McChesney, of Trinidad, for plaintiff | ment of dues or otherwise, as the secretary in error. J. C. Bell, of Trinidad, for defend- testified he had mailed to him there; that ant in error. at the time deceased brought these receipts home, which was in November, 1912, he told his mother that that made him good until January 14th. HILL, J. This writ is to review a judgment for $1,500 in favor of the defendant in error upon an insurance policy issued by the There is also testimony showing a payment plaintiff in error upon the life of Walter Mc- of $10 for him by the mother January 15, Henry, a son of the defendant in error, who 1912, and $25 by the deceased November 11, died January 21, 1913. The assignment urged 1912, when the receipts were issued. There is that the verdict of the jury was manifestly was also a letter bearing date October 2, against the weight of the evidence. The con- 1911, written by the father of the deceased to tention is over whether McHenry paid his Stewart (the financial secretary of the local assessment for the month of December, 1912. lodge), inclosing $10 to apply upon the son's It stands admitted that, if this payment was assessments. October 3, 1911, Stewart remade, his mother is entitled to recover; oth-plied as follows: erwise not. The evidence is conflicting. To establish this payment the mother produced in evidence receipts for the months of November and December, 1912. It was proven and is admitted that they are upon the regular blanks of the association sent to the local office by the general office; that they were signed by the proper officer, whose signature is admitted; that the receipts upon their face purport to be receipts for the assessments for these two months. There is no dispute concerning these matters. Counsel in his reply brief says: "We admit that Plaintiff's Exhibits A and B, unexplained, would be prima facie evidence that the deceased, Walter McHenry, had paid bis assessments for the months of November and December, 1912." On cross-examination, by deposition, Mr. Hawley (the general secretary and treasurer of the association) was requested to take two blank receipts, such as were used in November and December, 1912, and punch them to show the payment made for assessments during these months and attach them to his deposition. The copies thus furnished are in the same amounts and otherwise similar to those which it is conceded were delivered to the deceased by the proper officials of his local lodge. "Find herein receipts to the amount of $9.25. There being a deposit of 75c. to apply on next time." The plaintiff claims this meant that he was then paid up to that date with 75 cents to apply on next time, as the letter states. If this is correct, then the amount admitted to have been paid thereafter was more than sufficient to pay all the assessments up to the time of his death. There is also testimony that soon after the payment of October 3, 1911, Stewart returned to McHenry 75 cents, which the plaintiff claims is another fact tending to prove that he was then paid up to date. Upon cross-examination, when it was pointed out to Stewart that his books showed this return, he admitted it, and in explana tion says: "10/14/11. Returned 75c. What does that entry mean? It means I returned him 75c. I notice here on 10/3/11 he paid some months, and then this one he paid 75 cents too much, and next day I gave him back his 75 cents." The plaintiff claims that this explanation does not explain. There is also testimony that soon after the $25 payment of November 11, 1912, to wit, on November 19th following (when the deceased attended a meeting of the lodge), Stewart, the financial secretary, returned to him 50 cents, presumably upon acThere was also testimony by others famil- count of another overpayment. It is concediar with such receipts that they were fur-ed that, if Stewart's letter of October 3, 1911, nished by the Grand Lodge to the financial meant that the deceased was then paid up secretary of the local lodge, who delivered to that date with 75 cents to apply on next them to the deceased; also that a member time, as the letter states, the amount admitcould not obtain them except upon the pay-ted to have been paid thereafter was more ment of his assessments; that the password than sufficient to pay all assessments up to of the lodge changes quarterly, and that a member expelled for nonpayment of dues could not attend lodge thereafter; that expelled or suspended members and the public generally cannot attend the meetings of the lodge when the ceremony of initiating a member is being conducted; that during the month of November, 1912, the deceased attended a meeting of his local lodge and participated in initiating other members; that he lived with his mother at Trinidad and received his mail at a boarding house conducted by her; that his mother looked after his mail, and that at no time during several months preceding his death did he receive any letters from the officials of the local lodge calling for the pay the time of his death, and the plaintiff claims this fact is established, not only by this letter and the receipts thereafter given, but by the return of the other 50 cents to the deceased during the month of November, 1912. The testimony upon behalf of the defendant includes the deposition of the witness Hawley, general secretary and treasurer, as to what the records in his office show, which is to the effect that the last remittance received at the general office, account assessments of McHenry, was for the month of July, 1912, received July 19th; that in the month of August he received notice from Stewart, the financial secretary of the local lodge, that McHenry had made default in the payment of the assessment against him, and that McHenry was expelled from the association August 2, 1912, for the nonpayment of assessment for that month, and that he was never reinstated. This testimony is accompanied by copies of the by-laws relating to subordinate lodges, which gave to it this right upon the nonpayment of assessments, etc. some further words over it. The president did not testify. The witness Miller, who was being initiated at the time, testified that Turner was not present and did not come up to the lodgeroom until after the ceremonies were over, or nearly so. Turner is also contradicted by Leslie McHenry, a brother of the deceased, who was present and being initiated at the time. His testimony is to the Arthur Stewart, the financial secretary of effect that Turner was not there. The witthe local lodge, testified that McHenry had ness Stewart admits that a this meeting he been a member of the local lodge; that returned to the deceased 50 cents; that this he was usually in arrears in paying his as- was done in his official capacity. Stewart sessments; that, as a matter of accommoda- further testified that the deceased knew he tion, the lodge would advance his assess- was in arrears, asked him what it would ments and send them to the Grand Lodge; cost to be reinstated, and was told; also that that the local lodge remitted for him for 12 he had repeatedly mailed him letters to Trinimonths, August, 1911, to July, 1912; that he dad demanding dues, etc. This was denied had paid no part of these assessments; that by the mother; that is, that any such letters the local lodge refused to advance his assess- were ever received. The receipts for the ment for the month of August, 1912, and that November and December, 1912, assessments, on August 2, 1912, he was expelled from the held by the deceased, were for $2.25 each, and order; that on the 11th of November, 1912, stated they were in full for these months. after his expulsion, he paid to the lodge 11 Stewart testified that the dues for the months months' back assessments, which it had ad- of November and December, 1912, were $2.50 vanced for him; that the receipts offered in per month, but for the same months during evidence by the plaintiff were given for the 1911 were only $2.25 per month. This testiamounts in arrears for the months of No- mony is in apparent conflict with that of Mr. vember and December, 1911, which the lodge | Hawley, the general secretary, who, in markhad advanced for him; that other receipts, ing the receipts as to how they would read for which the witness produced stubs, had were they given for November and December, been issued showing payments on the same 1912, marked them for the sum of $2.25 each, date and were for the months of August to and not $2.50, as testified to by the witness December, 1911, and from January to June, Stewart. Plaintiff claims that Stewart's 1912. He produced his monthly statements books also show that the assessments for to confirm his testimony, duplicates of which some other members for December, 1912, were forwarded to the General Secretary, were $2.25, and not $2.50, as testified to and also other books, to show that no assess- by Stewart. We think this latter immaments had been made against McHenry after terial; for, if we understand Mr. Hawhis expulsion, August 2, 1912. ley's testimony, a member's assessments to [1] The records of the local lodge were the Grand Lodge depends upon the amount produced, which disclosed a meeting August and classification of the insurance carried, 12, 1912. They were kept by a Mr. Tom Tur- and in this respect his testimony does not ner, and showed that at this meeting Stew- agree with the contention of his counsel, who art, the financial secretary, had reported the claims that the $2.25 marked by him was inexpulsion of McHenry; Stewart testifying tended for the Grand Lodge assessment only, that he had notified the lodge of the delin- for the reason that he states the Grand Lodge quency. The plaintiff contends that the orig- assessment for a member carrying a policy inal record shown to the jury discloses that of the class and the amount Mr. McHenry's the portion referring to McHenry had been was would be $2 for the month of December, written in thereafter; that it was crowded 1912, and, having marked his copy $2.25, he in just over the signature of Turner, and that must have intended to include therein someTurner hunted his records in vain for anoth-thing more than the Grand Lodge assessment. er place therein where an entry of this There is also testimony of other witnesses, sort had been made after the close of the former officials and members of the lodge, entire business of the lodge, but was una-that, in case the transaction was as testified ble to find one. This, of course, was a ques-to by Stewart, the receipt for the money paid tion for the jury to consider. The witness to the local lodge by McHenry for advanceTurner admitted that the deceased sat in the lodge about the 19th of November, 1912, but claims that he called the attention of the president to the fact that he had been expelled and had no right to sit in the lodge; that the president simply said, "Oh, well, he says that he is going to be reinstated again, and he says his brother is being initiated, and I will just leave him in ;" and that they had ments to him for Grand Lodge assessments would not have been the kind used at all, but would have been of another character; that the blanks for assessments are sent out for only one purpose, and are never to be used for any other, viz., to be given for the payment of assessments only, and not otherwise. [2] Many reasons are presented by each side setting forth why and how the testimo |