only be defeated upon full completion of the and it was agreed that the proceeds of the judgbuilding, according to the terms of the con-ment should be applied in payment of the indebttract. Garretson's interest was only an eq-lien which had attached to the judgment. The edness, and to the discharge of an attorney's uity of redemption, or such surplus, if any, that might be left after paying whatever damage, Gillam, as the assignee, might sustain by failure to complete the building. This case comes clearly within the rule laid down in C., R. I. & P. Ry. Co. v. Bankers' Nat'l Bank, 32 Okl. 290, 122 Pac. 499, and is decisive of the question in hand. In that case, Simpson assigned to the bank, as collateral security, his claim against the railway company for damages on account of injuries to freight received by it in transportation under a written contract. The amount of the claim exceeded the face of the debt. The bank brought suit in its own name without joining Simpson. The court held that the claim was assignable, and that the bank could maintain an action thereon, in its own name, and that Simpson was not a necessary party. The language used in that case, applicable here, is as follows: assignment was absolute, and is such as to vest in the assignee the whole legal title. He had judgment that he could bring an action in his such a beneficial interest in the proceeds of the own name, without joining other parties, who by collateral agreement might be entitled to a share of the proceeds. Under section 28 of the Code, a "person with whom or in whose name a conit is provided that an action may be brought by tract is made for the benefit of another, * * without joining with him the person for whose benefit it is prosecuted." The assignee was authorized to receive the proceeds of the judgment, and the assignment is such as to afford complete protection to the plaintiffs in error against a second action by other persons interested in the proceeds of the judgment, and to whom the assignee may be required to account. The plaintiffs in error were not limited or cut off from any defense by reason of the assignment, and the absence of parties to whom the assignee must account cannot cause any future embarrassment to the plaintiffs in error. In Williams v. Norton, 3 Kan. 295, it was held that where a note was assigned to one with a beneficial interest in the proceeds of the same, and with an understanding that he was to receive the money on it, such person was the real party in interest, within the meaning of the Code, and might sue in his own name, although he was not entitled to apply to his own use the whole of the proceeds. Allen v. Brown, 44 N. Y. 228; Pom. Rem. Sec. 132. The action was properly brought in the name of the assignee, and no prejudice could result to the plaintiffs in error by his failure to join other parties interested in a part of the proceeds of the judgment, or by his fail "The first error assigned is that, as the assignment was intended as collateral security, it did not vest in the plaintiff such an interest as would permit the plaintiff to maintain the action in its own name, and that Simpson was a necessary party in the case. We do not agree with this contention. In Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 27 Okl. 180, 111 Pac. 326, Mr. Justice Williams, in delivering the opinion of the court, says: "The more serious question in this record to determine is wheth-ure to allege his liability to them.' er the contract was assignable. At common law no chose in action was assignable. In equity, however, every chose in action, except a tort, was assignable, but subject to all equities that might be set up against it. McCrum v. Corby, 11 Kan. 467 (2d Ed. 353); Kansas Midland Railway Co. v. Brehm, 54 Kan. 751, 39 Pac. 690; Barringer v. Bes Line Constr. Co., 23 Okl. 131, 99 Pac. 776, 21 L. R. A. (N. S.) 597; Glenn v. Marbury, 146 U. S. 499, 12 Sup. Ct. 914, 36 L. Ed. 790. Under our statute, every chose in action, not founded upon a tort, is assignable, and right of action is conferred upon the assignee. See section 4224, Wilson's Rev. & Ann. St. 1903; St. Okl. 1893, § 3898; K. C., M. & O. Ry. Co. v. Shutt, 24 Okl. 96, 104 Pac. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255.' "Simpson's claim against the defendant, not arising out of a pure tort, was assignable. 2 Wilson's Rev. & Ann. Stat. 1903, §§ 4163, 4224 (Comp. Laws 1909, §§ 7349, 5558); K. C., M. & O. Ry. Co. v. Shutt, 24 Okl. 96, 104 Pac. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255; 2 Wilson's Rec. & Ann. St. 1903, § 4226 (Comp. Laws 1909, § 5560), provides: An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Of ficers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.' "In construing this statute before it was adopted by us, the Supreme Court of Kansas, in Walburn v. Chenault, 43 Kan. 352, 23 Pac. 657, "It is true here, as in the case of Walburn v. Chenault, supra, that a recovery by the plaintiff is a complete protection to the defendant against any other claim which Simpson might assert, and that any defense which it might urge against Simpson it might likewise urge against the plaintiff. While there is some conflict in other jurisdictions as to whether the assignee may sue when the assignment is intended merely as collateral security (4 Cyc. 99-101, and notes), we think the previous decisions of this court, and of the Supreme Court of Kansas construing our statute, are sufficient to establish the right to such an assignee to maintain the action without joining the assignor." It must be apparent from the foregoing case, and authorities therein cited, that Garretson was not a necessary party, and there was error in the court so holding. [3] The third contention is that: "The evidence in the case shows that Garretson and Piercy had a building contract with Gillam, with specifications attached, whereby they were to build and furnish the material and complete a house according to the contract and specifications; that Garretson, to secure the faithful performance of said building contract, assigned as collateral security the contract for deed; that Garretson and Piercy defaulted on their contract to build, but the amount of the default was never ascertained in an action they were parties to. Therefore the evidence is insufficient to sustain the verdict, and judgment should have been for defendant." A ciency of the evidence to sustain the verdict This proposition simply goes to the suffiin deciding that the assignee of a judgment against a railroad company could sue thereon in of the jury and judgment of the court. his own name, notwithstanding that a beneficial verdict or findings of the jury based upon interest was reserved to third persons, says: evidence reasonably tending to support them "The consideration for the assignment was a large indebtedness of Tiernan to Chenault's will not be disturbed on appeal. Lucas v. Bank, or the bank of which he was president; | Brokefield, 8 Okl. 284, 57 Pac. 166. That rule has been established and followed in a great many cases in this court. We might further add here that we have carefully gone over the briefs and record in this case, and are entirely satisfied that the verdict and judgment are fully sustained by the evidence. Many questions have been raised by counsel for plaintiff in error, and the case has been briefed and argued with much more than ordinary care and ability, and the writer of this opinion has given them all consideration, but it must be apparent that it would be impracticable for the court to discuss each one separately. Upon full consideration of the whole case, we are of opinion that no prejudicial error has been committed, and that it should be affirmed. On Rehearing. The judgment in the lower court was in favor of plaintiff for $1,195, with interest at the rate of 6 per cent. per annum, from the 1st day of March, 1909. That judgment was affirmed by this court on the 5th day of October, 1915. On motion for rehearing, the original opinion is modified in this: The judgment in the district court is reduced to the sum of $1,080, to draw interest at the rate of 6 per cent. per annum from the date thereof, which was January 27, 1913. The case is, in all other respects, affirmed and further rehearing denied. PER CURIAM. Adopted in whole. 1. PLEADING 166 IN ANSWER. New matter in an answer, which does not constitute a defense, does not require a reply. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 3212-328; Dec. Dig. 2. PLEADING 343 ANSWER 166.] REPLY JUDGMENT ON PLEADINGS. An allegation in an answer that the plaintiff, in an action by an assignee upon a promissory note, did not pay the defendant or any one else anything for the note, does not constitute a defense if true, and judgment on the pleadings should not be granted on the ground that no re ply was filed. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1048-1051; Dec. Dig. 343.] Commissioners' Opinion, Division No. 6. Error from District Court, Osage County; R. H. Hudson, Judge. Action by the Farmers' & Merchants' Bank of Duke against J. A. Owens. Judgment for plaintiff, and defendant brings error. Affirmed. Robert S. Stuart, of Pawhuska, for plaintiff in error. Jos. D. Mitchell, of Pawhuska, and Robinson & Hamilton, of Altus, for defendant in error. HATCHETT, C. The Farmers' & Merchants' Bank of Duke brought this suit in the district court of Osage county against J. A. Owens, upon a promissory note executed by the defendant, Owens, to the Duke State Bank of Duke, alleging that after the execution of said note the Duke State Bank sold, assigned, and transferred the same to the plaintiff. The defendant answered as follows, omitting the caption: "Comes now the defendant, J. A. Owens, and in answer to petition of plaintiff filed herein, aland every allegation contained in the plaintiff's leges and states that the defendant denies each petition except such as are hereinafter admitted. The defendant admits that he executed the note sued upon and set forth in plaintiff's petition. legal holder and owner of said note, or that the "The defendant denies that the plaintiff is the same was ever legally transferred or assigned to said plaintiff. "For a further defense the defendant alleges that the plaintiff paid nothing for said note, and the plaintiff for said note to this defendant or that no consideration whatsoever passed from any other party. (Italics ours). "Wherefore the defendant having fully answered prays that the plaintiff take nothing by hence with the costs herein expended." this action, and that the defendant be dismissed, and the defendant, Owens, moved for judgment on the pleadings for the reason that no reply had been filed by the plaintiff to the The cause thereafter came on for trial, answer. The court overruled the motion for judgment on the pleadings, proceeded with the trial, and judgment was rendered for the plaintiff, and the defendant appealed. The only question presented is whether or not a reply was necessary to the answer filed. The plaintiff in error contends that the following paragraph of his answer: "For a further defense the defendant alleges that the plaintiff paid nothing for said note, and that no consideration whatsoever passed from the plaintiff for said note to this defendant or any other party" was new matter and required a reply, else it should have been taken as confessed, and judgment entered for him in the trial court. [1, 2] It will be noticed that this is not a plea of want of consideration when the note was executed by the defendant, Owens, to the Duke State Bank, but it is a plea that the plaintiff, the Farmers' & Merchants' Bank of Duke, paid nothing for the said note either to the defendant or any other person. Section 4779, Revised Laws of Oklahoma 1910, is as follows: "Every material allegation of the petition, not controverted by the answer, and every material troverted by the reply, shall, for the purposes of allegation of new matter in the answer, not conthe action, be taken as true. * * " But where the new matter alleged in the answer does not constitute a defense to the action, then it does not require a reply. West v. Cameron, 39 Kan. 736, 18 Pac. 894; Hickey v. Anheuser-Busch Brewing Ass'n, 36 Colo. 386, 85 Pac. 838. So if the above-quoted paragraph of the defendant's answer did not constitute a de fense to the action, then no reply was necessary. The said paragraph amounts to an allegation that the plaintiff did not pay anything for the assignment of the note from the Duke State Bank to it. If this were a suit between the two banks upon the assignment, then the question of consideration might be material; but it is a suit between the assignee and the maker of the note, and so far as the latter is concerned, it is not material whether the plaintiff paid anything for the note or not just so the plaintiff was the legal owner and holder thereof. Geisreiter et al. v. Sevier, 33 Ark. 522; Shane et al. v. Lowry, 48 Ind. 205; Musselman et al. v. Hays, 28 Ind. App. 360, 62 N. E. 1022; Gould v. Leavitt, 92 Me. 416, 43 Atl. 17. So, admitting the truth of the paragraph of the answer in question, that the plaintiff did not pay anything for the said note, that would not have constituted a defense, and therefore it was not necessary for the plaintiff to file a reply thereto. We conclude, therefore, that the action of the trial court in overruling the motion of the defendant for judgment on the pleadings was correct, and recommend that the judg ment be affirmed. PER CURIAM. Adopted in whole. CITY OF ARDMORE v. SAYRE. (No. 5176.) (Supreme Court of Oklahoma. Oct. 12, 1915. Rehearing Denied Jan. 25, 1916.) (Syllabus by the Court.) 1. OFFICERS 7-REMOVAL OF APPOINTEE APPOINTING POWER. who was in actual possession of it, under color of title. [Ed. Note. For other cases, see Officers, Cent. Dig. 8 61; Dec. Dig. 39. First and Second Series, De Facto Officer.] Where one person is holding an office by lede jure, the mere fact that another person may gal appointment, and claiming to be such officer take possession of said office, and perform some of the duties and functions of said office, under a pretended appointment by an officer or public of the statute, and without any color of right, board, or body acting against a plain provision power, or jurisdiction to remove the de jure officer, or to appoint such pretending officer, such pretended appointee is not a de facto offi cer, for the reason that, under such circumstanc es, there cannot be two different officers, de jure and de facto, in possession of an office at the same time, where one incumbent only is provided by law." Corporations, Cent. Dig. §§ 324, 325; Dec. Dig. [Ed. Note.-For other cases, see Municipal 147.] 5. OFFICERS 95-DE JURE OFFICER-RIGHT TO SALARY-PAYMENT TO USURPER. The rule that, where the salary of an office is paid to a de facto officer, this defeats the right of the de jure officer to recover the legal salary of such office, does not apply to a mere usurper of said office or one pretending to hold such office without any color of title thereto. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 134, 139; Dec. Dig. 95.] 6. PLEADING 290-ALLEGATIONS NOT DENIED UNDER OATH-APPOINTMENT and AuTHORITY OF OFFICER-ADMISSIONS. In all actions allegations of appointment or authority of a public officer shall be taken as true, unless the denial of the same be verified by the contending party, his agent or attorney, and that such officer is a duly and regularly author such allegations will be construed as stating Where an officer holding under appoint-ity to perform the duties and functions of such ized officer, with full power, right, and authorment, is guilty of malfeasance or maladministra- office; and the failure to deny such allegation in office, as a general rule, the appointive tions under oath will be taken as an admission power carries with it the inherent power of re- of the title to such office as alleged, with full moval, unless prohibited by law. power and authority to perform the duties and functions thereof. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 8, 9; Dec. Dig. 7.] 2. MUNICIPAL CORPORATIONS CERS-POWER TO REMOVE. 155-OFFI Where a city charter provides for an officer, known as city engineer of said city, and also provides that "said engineer shall be appointed by the mayor, by and with the consent of the board of city commissioners, and shall hold his office for a term of two years, unless sooner removed, as provided in this charter," and said charter contains no provision for the removal of officers, held, that the fact that the charter fails to provide for the removal of city officers is by implication an inhibition upon the power of the mayor and board of commissioners to remove the city engineer of such city from office. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 342-345; Dec. Dig. ~ 155.] 3. OFFICERS 39-"DE FACTO OFFICER." [Ed. Note. For other cases, see Pleading Cent.Dig. §§ 859-863, 8862; Dec.Dig. 290.] Commissioners' Opinion, Division No. 4. Error from District Court, Carter County; S. H. Russell, Judge. Action by H. H. Sayre against the City of Ardmore. Judgment for plaintiff, and deAffirmed. fendant brings error. F. M. Adams, of Ardmore, for plaintiff in error. Potterf & Walker, of Ardmore, for defendant in error. ROBBERTS, C. This action was commenc ed in the district court of Carter county by H. H. Sayre, defendant in error herein, against the city of Ardmore, plaintiff in error, to recover the sum of $1,500 alleged to be An "officer de facto" is one whose acts, due him as one year's salary as city engineer though not those of a lawful officer, the law, up- of said city. On motion of plaintiff for judgon principles of policy and justice, will hold valid, so far as they involve the interests of ment on the pleadings, the court rendered the public and third persons, where such duties judgment against the city, and in favor of and functions of the office are exercised by one the plaintiff, for the full amount claimed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes For the facts involved we must depend entirely upon the pleadings. Therefore, in order to obtain a better understanding of the case, we will set out the pleadings in full, which are as follows: "Comes now said plaintiff, leave of the court first being had and obtained, and files this, his first amended petition, and pleads as follows, to wit: "(1) That during the times hereinafter mentioned, the city of Ardmore was, and has ever since continued to be, a municipal corporation of the state of Oklahoma, and duly incorporated under the laws governing cities of the first class. "(2) That the city of Ardmore has what is known as a commission form of government, the elective officers of said city being mayor, together with four commissioners, who derive their authority from the charter of said city, which charter has been duly approved as by law required. (3) In addition to the elective officers provided for in said charter as aforesaid, the said charter further provides for an officer known as city engineer of said city, section 5, article 3, of said charter providing that he shall be appointed by the mayor by and with the advice and consent of the board of commissioners, and shall hold his office for a term of two years, unless sooner removed as provided in this charter; that, in pursuance of said authority, the mayor, on or about May 18, 1909, appointed this plaintiff city engineer of the city of Ardmore, and the said appointment was by the commissioners duly approved as by the charter provided; that by virtue of the said appointment the said plaintiff, Sayre, had a right to hold said position for the term of two years from the date of his appointment as aforesaid. "(4) Plaintiff further states that on April 20, 1910, without any authority of law, or without any right or color of right, and without any notice to this plaintiff, or without any charges being filed against him, James A. Cotner, then the mayor of the city of Ardmore, handed this plaintiff a notice in the form of a letter, announcing that this plaintiff was dismissed from the service of the city for insubordination, a copy of which letter is attached hereto, and made a part of this amended petition as Exhibit A; that upon receipt of this letter plaintiff at once wrote a letter to the then mayor, stating, in substance, that he did not recognize the authority of the mayor to dismiss him from office, a copy of which letter is hereto attached and made a part hereof as Exhibit B. "(5) Plaintiff further states that subsequent to the date of the receipt of the notice from the mayor in which the said mayor attempted to usurp his official authority as set out in the preceding paragraph, that is to say, on the 25th day of April, 1910, the said mayor preferred charges in writing against the said plaintiff and announced that the matter would be heard at the city hall on the evening of April 27, 1910; that at the appointed time and place plaintiff was on hand protesting against the authority of the mayor and commissioners to expel him from his office as city engineer, without hearing one word of testimony, and in the face of the fact that the charter in no manner provides for removal of an appointive officer, and in no place, directly or indirectly, gives authority to the mayor and board of commissioners to remove an appointive officer, the said commissioners at said meeting on said date passed a resolution to the effect that it is the sense of the board of commissioners that they have power to suspend or dismiss any appointive officer at any time they deem such action expedient, a copy of which resolution is hereto attached and made a part hereof as Exhibit C. "(6) Plaintiff further states that it is not within the power or authority of the mayor and ter of the city of Ardmore, it being provided in said charter that the citizens can change the tors of the city, and the said resolution was of same on an initiative vote of the qualified elecno effect, and, as this plaintiff believes and alleges, was fraudulently passed by said board for the purpose of illegally delegating to themselves power and authority which they did not possess. "(7) Plaintiff 'further states that immediately after the passage of the resolution made a part hereof as Exhibit C the board passed another resolution, a copy of which is attached hereto as a part hereof and marked Exhibit D, in which resolution they stated that on account of the proven inability of the present engineer, this plaintiff, to act in harmony with the mayor and commissioners, that said friction seems to be caused by the malicious interference of parties on the outside, which resolution was pure dictum, and not warranted by the facts as shown at said hearing, for the reason that in no way was any testimony offered to substantiate said allegations, the said resolution further requesting this plaintiff to tender his resignation; it being the intent of said resolution to say to said plaintiff in an indirect way that his serv ices were no longer required by the city, and that it was the purpose of the board of commissioners to dismiss him by virtue of said resolution in the event the said plaintiff did not resign his office as city engineer on or before May 1, 1910. "(8) That, notwithstanding this, plaintiff was legally in possession of and exercising the functions of the office of city engineer under and by provisions of the city charter of the city of Ardmore, and, without any warrant or right or law, the mayor and commissioners, at a meeting held at the city hall in the city of Ardmore on or about the 6th day of May, 1910, peremptorily undertook to dismiss this plaintiff from his office, and since that time has not recognized him as city engineer nor permitted him to perform his duties as such, and all this was done without the consent and over the objections of this plaintiff, and without any warrant of law, the said plaintiff at that time and now contending that he is the legally qualified city engineer of the city of Ardmore, Okl., his office expiring May 18, 1911, according to the terms of said charter as aforesaid. "(9) That since the action of the said mayor and commissioners wherein they delegated to themselves, without warrant of law, the right to declare the office of the city engineer vacant, this plaintiff, although legally entitled thereto, has not been receiving the emoluments of said office, which are the sum of $125 per month, which amount is payable monthly to this plaintiff. "(10) Plaintiff states that at all times since the action of the mayor and board of commissioners as aforesaid he has resided in Ardmore, Okl., and has considered himself the legally qualified city engineer, and has been ready and willing to perform the duties of said office, but the said mayor and board of commissioners have not recognized him as city engineer nor permitted him to perform the functions of said office, and, as this plaintiff is informed, the said mayor and board of commissioners have not attempted to appoint any other person as city engineer since their action in which they attempted to remove this plaintiff as aforesaid. "(11) Plaintiff further states that by virtue of his being city engineer as aforesaid he is entitled to the sum of $125 a month salary as aforesaid, and the same has not been paid to him since the 1st day of May, 1910; that the amount due him now at this date is for the 12 months beginning May 1, 1910, and ending April 30, 1911, that is to say, 12 months' salary, which amounts to $1,500. "Wherefore plaintiff prays that he have judg Also attached to said petition, and marked says: Exhibit B, appears the following: "Ardmore, Okl., April 20, 1910. "Hon. Jas. A. Cotner, Mayor of Ardmore, Ardmore, Oklahoma-Dear Sir: I have your letter of even date herewith, in which you advise me that I am dismissed from the service of the city of Ardmore for insubordination. "In reply, I beg to state that I do not recognize the authority of the mayor of the city of Ardmore to peremptorily discharge me without any action of the board of commissioners and without any opportunity for being heard in defense of myself. (1) That it denies all and singular the allegations contained in plaintiff's petition, except those herein admitted. "(2) That it admits that it is a municipal corporation, as is alleged in paragraph 1 of said petition, and that Exhibits A, B, C, and D of said petition are true copies of the instruments mentioned therein. "(3) That it admits that on the 25th day of April, 1910, the mayor of the city of Ardmore preferred charges in writing against the said plaintiff and announced that the same would be heard on the evening of April 27, 1910, at which meeting the plaintiff asked for further time and for a copy of the charges against him, which charges were furnished him, and the same were heard at a subsequent meeting of the commissioners, and said plaintiff appeared in person "Until I am discharged by the board of com- and refused to give any testimony whatever in missioners, after a hearing in which I am allow-reference to whether or not he should be dised to defend myself, I shall consider that I hold charged as said engineer. the office of city engineer of Ardmore, and will act accordingly. "If I have been guilty of insubordination, 1 demand, as an American citizen, that I be presented with the charges against me and be given an opportunity to be heard in my defense. "Yours very truly, H. H. Sayre, "City Engineer." Also attached to said petition, and marked Exhibit C, appears the following: "Be it resolved by the board of commissioners of the city of Ardmore that the right to suspend or dismiss any appointive officer or employé of the city goes with the power to appoint or employ, and it is the sense of the board that the commissioners of the city of Ardmore have the power to do so at any time that they may deem such action expedient and necessary." Also attached to said petition, and marked Exhibit D, appears the following: "Whereas, on account of the proven inability of the present city engineer, H. H. Sayre, to act in harmony with the mayor and commissioners of the city of Ardmore; and "Whereas, this friction seems to be caused by the malicious, unwarranted, and unauthorized interference of parties on the outside, who have not the best interests of the city at heart, by their influence have caused Mr. Sayre to become suspicious of the integrity of the mayor and rebellious in executing the wishes of the board, as expressed through the mayor, thereby rendering him [the engineer] unfitted to act in this capacity: Therefore be it resolved by the board of commissioners that Mr. Sayre is hereby requested to tender to the board of commissioners his resignation, same to take effect on the completion of this month's [April] services, and that this action is taken without prejudice in the premises. "Passed and approved this 27th day of April, 1910. "[Seal.] [Signed] Jas. A. Cotner, Mayor. "[Signed] G. H. Bruce, City Clerk." Afterwards the defendant filed its general demurrer to the amended petition of the plaintiff, as follows: "Comes now the defendant in the above styled and numbered cause and demurs to plaintiff's amended petition, and says that the same does not contain allegations sufficient to constitute "(4) That on the 6th day of May, 1910, the mayor and board of commissioners of the city of Ardmore dismissed the plaintiff as its city engineer, which they had a lawful right to do, and passed a resolution dismissing him as such engineer, which resolution is hereto attached, made a part hereof, and marked Exhibit A. (See Exhibit D, plaintiff's petition.) missed as city engineer, to wit, ou or about the "(5) That since the plaintiff herein was dis1st day of May, 1910, that L. J. Meyers has been both in law and in fact the duly qualified and acting city engineer and drawing the emoluments of said office, and has at all times since said date exercised within the said city all the duties of said office of said engineer, performing all the work and duties that were performed by the plaintiff herein before his dismissal, and has made his reports to the commissioners of the city of Ardmore, and has received the salary of said office since said dismissal up to and until the 18th day of May, 1911, during all of which time he performed all the duties devolving upon the city engineer, and was recognized by the defendant herein as such officer and as performing all the duties, and was paid all the salary and emoluments of said office during said time, and the said plaintiff herein has not performed any of the duties whatever of said office during said time, and has not been in possession of said office from the date of his dismissal up to and until this time, but has been engaged in the general insurance business, and has earned more than $1,500 in said business during said period, and that during none of said time has the plaintiff been in the possession of the office of city engineer, but the said office has been in the possession of the said L. J. Meyers at all times since the 1st day of May, 1910, until he ceased to be said officer as alleged above. for the year ending June 30, 1911, has been ex"(6) That the income and revenue provided hausted, and there is no income or revenue for the year ending June 30, 1912, out of which plaintiff's claim could be paid, and there was no levy made for the same, and that at all times from May 1, 1910, to May 1, 1911, the outstanding indebtedness of the city of Ardmore in the aggregate exceeded 5 per cent. of the debt limit at and prior to the time that the plaintiff herein was appointed said engineer by the mayor and board of commissioners of the city of Ardmore, and the said city of Ardmore, while |