DUDLEY, C. This is an action by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, upon an account for goods, wares, and merchandise claimed to have been sold and delivered by it to the defendant, at its special instance and request, during the month of July, 1908. We shall refer to the parties as they were in the trial court. The issues were joined, and the 'case tried to the court and jury, resulting in a judgment in favor of the plaintiff for the full amount sued for, from which the defendant has appealed. [1] The defendant insists that the evidence does not reasonably tend to sustain the verdict of the jury and the judgment based thereon. There is no merit in this contention. The evidence reasonably tends to show that some time prior to February 29, 1908, the defendant entered into a written contract with the O'Neil Engineering Company for the purpose of extending its waterworks. Following this the work was begun, under the directions and supervision of said engineering company, and on February 29, 1908, it ordered, as agent for the defendant, from the plaintiff, ten hydrants, at a cost of $27 each. These hydrants were shipped, delivered to, and received by the defendant, and used in the extension of its waterworks. Following this the plaintiff presented to the defendant a proper claim for said hydrants, but the defendant refused to approve, allow, and pay the same. The original contract between the defendant and the engineering company was lost, and, after showing this fact, the plaintiff introduced evidence reasonably tending to show that under the terms of said contract the engineering company was specifically authorized to order material for the defendant to be used by it in the extension of its waterworks. Aside from this fact, there is evidence reasonably tending to show that the engineering company was specifically authorized by the defendant to purchase these hydrants. We therefore conclude that the evidence reasonably tends to support the verdict of the jury and the judgment based thereon, and the same should not be disturb ed. Texas Co. v. Collins, 42 Okl. 374, 141 Pac. 783; Chicago, R. I. & P. Ry. Co. v. Newburn, 39 Okl. 704, 136 Pac. 174; Chicago, R. I. & P. Ry. Co. v. Brazzell, 40 Okl. 460, 138 Pac. 794; Rice v. Woolery, 38 Okl. 199, 132 Pac. 817. [2] It is next contended by the defendant that the trial court erred in permitting the plaintiff to introduce oral testimony as to the terms and provisions of the written contract between the city and the engineering company as to its authority to buy material to be used in the extension of the waterworks. There is likewise no merit in this contention, because the plaintiff laid the foundation for the introduction of oral testimony by showing that the written contract was lost and could not be produced. The trial court did not err in permitting such oral testimony to be introduced. Redus v. Mattison, 30 Okl. 720, 121 Pac. 253. The defendant also complains of the introduction of other testimony, among which is a letter written by the clerk of the defendant city to the plaintiff asking it to send him an itemized statement of its account against the city for the hydrants in controversy, stating, among other things, that the invoice had been misplaced. The clerk testified that he was directed and authorized to write this letter by the mayor of the defendant city. The introduction of this letter does not constitute prejudicial error sufficient to justify the reversal of the judgment on account thereof. The court's instructions were extremely liberal to the defendant, and, from an examination of the entire record, we think the defendant had a fair trial, and, since the jury determined all controverted questions of fact against it, we think the judgment of the trial court should be affirmed. The provisions of the statute of frauds, or of uses and trusts, against allowing an express trust to establish by parol, do not apply where the trust has been executed, and the object of the evidence is to show the true consideration of the deed by which it was carried out. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. 43.] 3. FRAUDULENT CONVEYANCES 57-FRAUD OF CREDITORS-INSOLVENCY-PROOF. In an action to set aside a deed charged to be fraudulent as to creditors, it must be both alleged and proved, before the deed will be set aside, that at the time the conveyance was made the debtor was insolvent, and the fact that the not raise the presumption that the debtor was insolvency exists at the time suit is brought does insolvent some months prior to that time. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 138–142, 148, 150– 158; Dec. Dig. 57.] CONVEYANCES 4. FRAUDULENT 155 FRAUD OF CREDITORS-GROUNDS FOR SETTING ASIDE DEED-FRAUDULENT INTENT. In order to set aside a deed as fraudulent as to creditors, which has been made to pay an For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes honest debt, the grantee must know of and participate in the fraudulent intent. said John O. Cobb felt that this property should go to his children, and his said wife took her dower from other property owned by John O. [Ed. Note. For other eases, see Fraudulent Conveyances, Cent. Dig. § 493; Dec. Dig. Cobb, and that she is now dead; that, after 155.] Commissioners' Opinion, Division No. 2. Error from District Court, Muskogee County; R. P. De Graffenreid, Judge. Action by the Oklahoma National Bank, a corporation, and another, against H. C. Cobb and others. Judgment for defendants, and plaintiffs bring error. Affirmed. the death of John O. Cobb, Henry C. Cobb was appointed administrator of his estate, and in the administration of said estate did not include said property described as lot 5 and the south 4 feet of lot 6 in block 1 in the city of Muskogee, but recognized said property as belonging to the estate of John O. Cobb, deceased; that no settlement was made by Henry C. Cobb with the heirs of John O. Cobb as to said property, lot 5 and the south 4 feet of lot prior to August 1, 1912, at which time he conveyed by warranty deed to M. B. McCaffrey, one the south 4 feet of lot 6' in block No. 1, in the of the defendants herein, all of lot No. 5 and faction of the claim which the said M. B. McCaffrey had and held against the said Henry C. Cobb for the balance due her from the estate of John O. Cobb, deceased, and that by said conveyance four-fifths was in execution of the trust reposed in him by his father, that onefifth which Henry C. Cobb owned, was in settlement of the claim of Mrs. McCaffrey against him, and that she took the other three-fifths in trust for her three sisters, recognizing at the time that his sisters owned an equitable interest in said property that in administering said estate Henry C. Cobb, as administrator, charged himself and disposed of only such portions of the estate of John O. Cobb where the title of the real property appeared in John O. Cobb and such personal property as belonged to the said John O. Cobb at his death: that the consideration from the said M. B. McCaffrey to the said H. C. Cobb for said conveyance was a valuable and sufficient consideration, and said conveyance was a valuable and sufficient consideration and said conveyance was accepted." This was an action instituted by the plaintiffs in error to subject certain land in the city of Muskogee to the payment of judg-city of Muskogee, in settlement and in satisments they had obtained against H. C. Cobb, the one on November 1, 1912, and the other on November 13, 1912. The notes of H. C. Cobb, on which the judgments were obtained, were dated, the one on January 14, 1912, and the other on June 14, 1912, and were both for money loaned on the days the notes bear date. The defendants in error, Lillie M. Dodson and M. B. McCaffrey, are the sisters of H. C. Cobb, and are some of the heirs of J. O. Cobb, who was their father. After setting out the giving of the notes, that judgment had been obtained on them, and that in December, 1912, executions were issued on these judgments, which were returned unsatisfied, the petition alleges that on August 1, 1912, H. C. Cobb conveyed to M. B. McCaffrey, a sister of the grantor, all of lot 5 and 4 feet of lot 6, block 1, in the city of Muskogee, which was recorded on August 27, 1912, and that this conveyance was made without consideration, and with the intent to hinder, delay, and defraud the plaintiffs, and each of them, in the collection of their several claims, and that this land was received by the defendants, McCaffrey and Dodson, with full knowledge of such intent, and with the intent to assist H. C. Cobb ined that he owned a great deal of real propthe unlawful purpose. Other land was set out in the petition as having been conveyed to Mrs. Dodson with like intent, but the land above set out is all that is embraced in this appeal. The court below made the follow-the ownership by the defendant of this proping finding of fact: It was admitted that the executions issued on the judgments in favor of the plaintiffs had been returned unsatisfied. There was no allegation in the petition that Henry C. Cobb was insolvent. The plaintiffs offered to show that at the time the notes were made the officers of the banks investigated the financial condition of Henry C. Cobb, and learned of the fact that the record show erty in Muskogee county, and particularly knew of such ownership of lot 1 and the south 4 feet of lot 6, block 1, in Muskogee, and that the credit was extended because of erty, and that the legal fee was shown by the records to be in H. C. Cobb without any beneficial interest therein in any other person. This offer was objected to by the defendants in error, and the objection was sustained by the court, and exceptions duly saved. There was a judgment for the defendants, and the plaintiffs bring the case to this court by petition in error and casemade. "That the improvements on and possessory right to the property described in said petition as all of lot 5 and the south 4 feet of lot 6 in block No. 1 in the city of Muskogee, was owned and occupied by John O. Cobb, deceased, seyeral years prior to his death, which occurred in December, 1902, and that John O. Cobb was the father of H. C. Cobb, whose name is Henry C. Cobb, Lillie M. Dodson, and M. B. McCaffrey; that at the oral instance and on the request of John O. Cobb, during his lifetime, said property was by the Muskogee Townsite Commission scheduled to Henry C. Cobb, and patent was issued to the said Henry C. Cobb, conveying said property in fee simple to the said Henry C. Cobb; that John O. Cobb had said property scheduled to Henry C. Cobb for the use and benefit of the said Henry C. Cobb and the four sisters of Henry C. Cobb, including Lillie M. Dodson and M. B. McCaffrey, defendants herein; that John O. Cobb had said lots scheduled to said heirs, so that they could take same at his death; as same had been acquired before above). [1, 2] The plaintiff in error urges his marriage to his second wife, then living, the that the trial court committed error in ad Brainerd & Davis, B. E. Nussbaum, and Leopold & Cochran, all of Muskogee, for plaintiffs in error. Thomas H. Owen, Joseph C. Stone, and Sumner J. Lipscomb, all of Muskogee, for defendants in error. DEVEREUX, C. (after stating the facts as "In an action to set aside a fraudulent conveyance, it must be both alleged and proved, before the plaintiff can succeed, that at the time of the conveyance, and at the time the suit was brought, the debtor did not have enough property left, subject to execution, to pay his debts. The fact that insolvency exists at the time suit is brought to set aside a fraudulent conveyance does not raise the presumption that insolvency existed prior to that time, and does not extend the insolvency back to the time the conveyance was made." mitting parol evidence that John O. Cobb, alleged and proved at the time the conveyhad the patent to this land issued in the ance was made. In Nevers v. Hack, 138 Ind. name of Henry C. Cobb to hold in trust for 260, 37 N. E. 791, 46 Am. St. Rep. 380, it is himself and the other children of John O. held: Cobb by a previous marriage, on the ground that parol evidence is not admissible to prove an express trust. But the trust in this case was fully executed when Henry C. Cobb, the trustee, executed and delivered the deed to his sisters (Logan v. Brown, 20 Okl. 334, 95 Pac. 441, 20 L. R. A. [N. S.] 298), and the evidence was clearly competent to rebut the allegation of fraud. The cause of action set out in the plaintiff's petition, on which they sought to subject this land to the payment of their judgments, was that Henry C. Cobb conveyed it to Mrs. McCaffrey, without consideration, and with intent to hinder and delay the plaintiffs in the collection of their claims, and that the land was received by Mrs. McCaffrey with full knowledge of such intent and to assist Henry C. Cobb in his unlawful purpose. To meet this issue, it was competent for the defendants to show what the true consideration of the deed was. In 2 Moore on Fraudulent Conveyances, p. 904, it is said: "The recitals in a deed are not evidence as to third parties, and when a fact put at issue by the pleadings is particularly within the knowledge of the defendant, such as the consideration of a conveyance or transfer made by him, the burden of proof is on him to show the fact." And see Bump on Fraudulent Conveyances, § 66; Wait on Fraudulent Conveyances, §§ 219 and 221, where it is said that there is a manifest tendency in the courts to admit parol evidence of the true consideration of a deed in almost any case. In Runyon v. Lear, 20 N. C. 373, it is held that matters dehors the deed may be resorted to for repelling as well as founding a presumption of fraud. And see Powell v. Heptinstall, 79 N. C. 207. In the case at bar the uncontradicted evidence shows that J. O. Cobb had the patent issued in the name of Henry C. Cobb to hold in trust for the other children of J. O. Cobb, and at least this imposed on him the moral duty of executing the trust. In 1 Moore on Fraudulent Conveyances, p. 295, it is said that a moral obligation to perform a duty to convey property is sufficient to sustain a conveyance of the property by a debtor as against the debtor's creditors. It is true that the author points out that there is a conflict in the authorities on this question, but in our opinion the weight of reason is with the doctrine as laid down in the text. In the case at bar the evidence shows that Henry C. Cobb held this land under a parol trust from his father, for the benefit of himself and the four other children of his father; that on August 1, 1912, in the execution of this trust, he conveyed land to Mrs. McCaffrey, and there is no evidence that she knew of his pecuniary condition, and there is no contradiction of her evidence that she had no intention of committing any fraud when she took it; and that her brother's onefifth was deeded to her to settle her interest in her father's estate, of which Henry C. Cobb was administrator. This being a case cognizable in equity under the former practice, we have carefully examined the evidence and are satisfied that it sustains the finding of fact by the trial court. Plaintiffs in error rely on Rev. Laws 1910, § 6673, which provides: "Where an express trust is created in relation in the grant to the trustee, or in any instruto real property, but is not contained or declared ment signed by him, and recorded in the same office with the grant to the trustee, such grant must be deemed absolute in favor of the subsethe trust, and in favor of the purchasers from quent creditors of trustee, not having notice of such trustee without notice, and for a valuable consideration." There can be no question that, under the provisions of this statute, Henry C. Cobb held this land, as far as creditors are concerned, just as if there was no trust; and if there had been an allegation of insolvency in the petition, and proof that he was insolvent when the deed was made to Mrs. McCaffrey, the land would have been subject to his debts. But this statute does not make the trust property more liable for his debts than property he owns unincumbered with any trust. The burden of proving Henry C. Cobb's insolvency was on the plaintiffs in error and if he was solvent when he made the deed to Mrs. McCaffrey, he had the undoubted right to fulfill the conditions of his trust, and creditors could not complain, because, if he was solvent, they are not injured. [3] In the case at bar the petition does not allege that Henry C. Cobb was insolvent when he executed the deed to Mrs. McCaf- [4] Again, the evidence shows that, whatfrey. It is true that on November 1st execu- ever might have been the intent of Henry C. tion on one of these judgments issued and Cobb, Mrs. McCaffrey did not participate in afterwards returned unsatisfied. In order to it, and whatever his intent was, it does not reach property voluntarily conveyed in fraud avoid the deed, if made to pay a bona fide of creditors, which is the allegation in this debt, unless the creditor also has such fraudpetition, it is essential that insolvency beulent intent. Reiger v. Davis, 67 N. C. 185, Action by R. B. Thompson against the Pioneer Hardwood Company. Judgment for plaintiff, and defendant brings error. Af Stone v. Marshall, 52 N. C. 300. And in McPherren & Cochran, of Durant, for plaintiff in error. Loden & Maberry, of Durant, for defendant in error. What we have said disposes of the action of the court in rejecting the evidence, offered by the plaintiffs in error, that before making the loan to Henry C. Cobb they investigated the records, and found a large amount of real estate in the name of Henry C. Cobb, with nothing to show that he held this land as trustee. If an allegation had been made in the petition, and evidence offered, that at the time the deed of August 1st was executed Henry C. Cobb was insolvent, a very different question would have been presented; but, in the absence of such allegation and evidence, there was no error in rejecting this evidence. We therefore recommend that the judg-feet long, three feet wide, and three feet ment be affirmed. PER CURIAM. Adopted in whole. (49 Okl. 502) (Supreme Court of Oklahoma. Oct. 12, 1915.) (Syllabus by the Court.) 1. APPEAL AND ERROR 757-PRESENTATION FOR REVIEW-BRIEF-REFUSAL OF CONTINU ANCE. Where, on the day set for the trial of a suit in damages for personal injuries, the cause being at issue, plaintiff amended his petition by making the additional charge that defendant was negligent in failing to provide a belt shifter, contrary to the statute, whereupon defendant, after refiling his answer and plaintiff his reply, moved the court for a continuance supported by affidavit, held that the cause will not be reversed on the ground that the court abused his discre tion in refusing to grant the continuance where defendant has failed to set forth in his brief (contrary to rule) his application for continuance so that this court may be informed wherein such discretion was abused, [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. 757.] 2. MASTER AND SERVANT 286-INJURY TO SERVANT DIRECTION OF VERDICT EviDENCE-VIOLATION OF FACTORY ACT. Evidence examined, and held to disclose a flagrant violation of the Factory Act (Rev. Laws 1910, § 3746), and that the court did not err in refusing to direct a verdict for defendant. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.] 3. TRIAL 194-INSTRUCTIONS - CONTRIBUTORY NEGLIGENCE-QUESTION-JURY. In view of Const. art. 23, § 6, it is not error for the court to refuse to instruct the jury that if they believe from the evidence certain facts exist, such facts, as a matter of law, would constitute contributory negligence, and they should so find. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. 194.] TURNER, J. On September 12, 1912, in the distrct court of Bryan county, R. B. Thompson, defendant in error, sued Pioneer Hardwood Company, plaintiff in error, in damages for personal injuries alleged to have been theretofore sustained by him while employed in a sawmill owned and operated by defendant at Durant. His petition substantially states that on June 2, 1912, while so employed by defendant, it was his duty to operate a ripsaw, which revolved in a longitudinal slot in the top of a table some five high, some four inches of the saw being above and the remainder below the top of the table; that the saw was propelled by steam and run by belts connecting with shafting beneath the table and a countershaft a few feet away on the floor and with other shafting near the ceiling; that in order to stop the saw a loose pulley had been provided on the countershaft, upon which to shift the belt running the saw, but that at the time he was injured the pulley was, and had been for some time to defendant's knowledge, out of repair, and could not be used for that purpose, in consequence of which he was compelled to stop the saw by shifting the belt at the end under the table, by pressing down on it with a stick from the side of the table and underneath the saw, which was unguarded; and that, while so doing, something struck the stick upward and caused his wrist to come in contact with the saw which severed his wrist and cut off his hand-to his damage in a sum certain. The specific acts of negligence charged were a failure to provide a guard for the saw and a loose pulley on the countershaft upon which to shift the belt which ran the saw, contrary to Rev. Laws 1910, § 3746, which reads: "The owner or person in charge of a factory or any institution where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys, whenever practicable. All machines shall be provided with loose pulleys and all vats, pans, planers, cogs, gearing, belting, shafting, set screws and machinery of every deshall remove or make ineffective any safeguard scription shall be properly guarded. No person around or attached to any machinery, vats, or pans, while the same are in use, unless for the purposes of immediately making repairs thereto, and all such safeguards so removed shall be promptly replaced. On October 14, 1912, defendant answered in effect a general denial and pleaded conError from District Court, Bryan County; tributory negligence and assumption of risk. Jesse M. Hatchett, Judge. The cause was set for trial on January 20, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied December 7, 1915. 1913, at which time plaintiff filed a reply, in effect a general denial. At the same time he filed an amended petition identical with the original, except it charged that defendant was also negligent in failing to provide a belt shifter, which he alleged was practical, contrary to the statute aforesaid. After de fendant had, in effect, refiled his answer and here. And authority is cited in support of the correctness of the charge. But our Constitution (article 23, section 6) provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsotimes, be left to the jury." ever, be a question of fact, and shall, at all tributory negligence is no longer to be drawn by the court as a conclusion of law from the Which means that in this jurisdiction con plaintiff thereto replied by general denial, defendant moved the court to continue the facts found, but is in all cases a conclusion cause, which was overruled. Thereupon thereof fact to be drawn by the jury. In other was trial to a jury and judgment for plain- words, the court has no right to tell the jury tiff for $6,000, and defendant brings the case that if they believe, from the evidence, certain facts exist that such facts, as a matter of law, constitute contributory negligence and that they should so find. But it is the duty of the court to also leave to the jury the right to draw the ultimate conclusion from the facts if found whether or not con [1, 2] For the reason the uncontroverted testimony discloses that, although plaintiff complained that the loose pulley on the countershaft was so out of repair that it could not be used to shift the belt and stop the saw, and that defendant promised but fail-tributory negligence exists as a matter of ed to repair it in consequence of which plaintiff was compelled to use the means he did to shift the belt, and that while so doing was brought in dangerous proximity to the unguarded saw which caused the injury, the evidence discloses a flagrant violation of the statute in question, and hence there is no merit in the assignment that the court erred in refusing to instruct the jury to return a verdict in favor of defendant. [3] And plaintiff, though working with knowledge of the violation, did not assume the risk. Curtis & Gartside Co. v. Pribyl, 38 Okl. 511, 134 Pac. 71, 49 L. R. A. (N. S.) 471. But it is contended that, inasmuch as the evidence tends to prove that plaintiff knew it was safe or safer to shift the belt with a stick from the end of the table instead of from the side, as he did, the court erred in refusing to instruct the jury: "You are further instructed that if in the discharge of a dangerous duty an employé voluntarily places himself in a dangerous position unnecessarily, when there is another place that is safer that he could have chosen, and he has time to exercise his judgment, and injury occurs to him by reason of his choice, then he cannot recover for such injury. "You are further instructed that if you find from the evidence that there was a safe manner in which to shift the belt in question and that if the plaintiff had shifted the belt in that manner he could not have been injured in the manner complained of, and, further, that plaintiff did not shift the belt in a safe manner, but chose to shift the said belt in a manner that was dangerous and was thereby injured, that in law the plaintiff would not be entitled to recover for any injury he might suffer as the result of his selection of the dangerous manner of shifting the belt. "And if you believe that the plaintiff attempted to shift the belt on the machine on which he was working from the side of the machine, and that he knew that in such a position he was more unprotected than if he had made the shift from the end of the machine instead, and that by shifting from the end he would have been safe from the saw, while shifting from the side was dangerous, and that the plaintiff voluntarily selected a way which he knew was dangerous instead of the safer way, then the jury shall find for the defendant." fact. As the instruction requested the court to draw such conclusion himself and not leave it to the jury, there was no error in refusing to give the charge. We cannot consider the contention that the cause should be reversed, on the ground that the court abused his discretion in failing to grant a continuance after plaintiff had filed his amended petition, as stated. This for the reason that defendant has failed to set forth in his brief (contrary to rule) his motion for continuance or the substance of it, but invites us to consult the record and ascertain upon what he relies as addressing itself to the discretion of the court, which we decline to do. There is no merit in the remaining assignments of error. Affirmed. All the Justices concur. (52 Okl. 581) MCDONALD v. COBB. (No. 5195.) (Supreme Court of Oklahoma. Nov. 23, 1915.) (Syllabus by the Court.) 1. TRIAL 133 - ARGUMENT OF COUNSEL CURE BY INSTRUCTIONS. Where counsel for the prevailing party, in his argument to the jury, makes remarks which, in effect, advise the jury as to the law on a certain issue of the case, and objections are made thereto by opposing counsel, and sustained by the court, and after the close of the argument the court instructs the jury with reference to such remarks, and admonishes it not to consider the same, but to follow the court's instructions as to the law of the case, held, that such remarks are improper, but not prejudicial error, in view of the court's instructions not to consider them. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. 133.] 2. WITNESSES 56-COMPETENCY-HUSBAND AND WIFE-AGENCY. When, in the absence of the husband from home, the wife acts in protection of property claimed by the husband, and within the circle of the home, although without any express direction, she is acting as his agent, and is a competent witness, in an action by or against him, |