The mere fact that it purports to have been record offered by defendant in error to show written by him is not sufficient.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1648-1655; Dec. Dig. 378.] Commissioners' Opinion, Division No. 1. Error from County Court, Stephens County; J. W. Marshall, Judge.

Action by the McCall Company, a corporation, against the Comanche Mercantile Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed and

remanded.

Defendant in error commenced this action before a justice of the peace of Stephens county to recover from plaintiff in error the sum of $92.89 for goods sold and delivered, and the sum of $67.93 for damages for breach of contract. From the judgment of the justice of the peace an appeal was taken to the county court of Stephens county, where the case was tried de novo. At the conclusion of the testimony of the defendant in error plaintiff in error demurred to the evidence, which demurrer being overruled by the trial court, plaintiff in error rested; and thereupon the court instructed the jury to return a verdict in favor of defendant in error for the amount sued for. In due time plaintiff in error moved for a new trial, which being denied, judgment was entered upon the verdict, to reverse which plaintiff in error brings this appeal.

H. B. Lockett, of Comanche, for plaintiff J. P. Speer, of Comanche, for defendant in error.

in error.

RUMMONS, C. (after stating the facts as above). We need only consider two assignments of error in determining this case: First, the court admitted incompetent evidence; and, second, the court peremptorily instructed the jury to find for the defendant in error for the total sum sued for. Both of these assignments may be considered together.

ހ

a breach of the contract before the expiration thereof by plaintiff in error consists of a letter, which is as follows:

"The McCall Company, New York, N. Y.Gentlemen: The condition of our account with you and the general condition of business in this you suspend shipment of any further patterns part of the country renders it necessary that or supplies of any kind whatever until further notice. What patterns are needed to take care of our trade can be ordered by mail. The patterns that you have been sending for some time are merely being stacked up in the case and it cannot be of any value to you or us either to increase the amount, so we desire you not to make any further shipments until we notify you. "Yours truly, "Comanche Mercantile Company.

"HBL. CJM."

This letter was offered in evidence over the objection of plaintiff in error as a part of the deposition of a witness for defendant in error. It is not identified as having been written by plaintiff in error or by its authority in any manner, except that it is upon the stationery of plaintiff in error, and refers to the dealings between plaintiff and defendant in error.

The record does not disclose any other breach of the contract than the renunciation of it claimed to be shown by this letter. It does not appear that defendant in error, after the receipt of this letter, tendered the delivery of any further goods to the plaintiff in error, or had any further correspondence with them with reference to this contract. We do not think the identification of this letter was sufficient to authorize the trial court to admit it in evidence. There is no scintilla of evidence tending to show that this letter was written by any one having authority to represent plaintiff in error in the matter, and no attempt in any way to connect the letter with plaintiff in error.

The mere fact that it purports to have been written by him is not sufficient. 17 Cyc. 409, and authorities there cited.

The rule is well established that, to render a letter not in response to a letter previously sent to the alleged writer admissible Defendant in error sued upon a contract in evidence, its authenticity must be estabbetween plaintiff and defendant in error en-lished either by proof of the handwriting or tered into May 5, 1909, and running for a by other proof establishing its genuineness. term of three years, by the terms of which plaintiff in error was to take from defendant in error certain patterns and fashion sheets and other fashion publications, in quantities as described in the contract, to be delivered monthly, and sought to recover from plaintiff in error the amount due it for goods sold and delivered to plaintiff in error, and also sought to recover from plaintiff in error for damages by reason of a breach of the contract by plaintiff in error before the expira-competent evidence to warrant such an intion thereof, such damages consisting of the loss of profits of defendant in error upon the patterns and fashion sheets and publications which should have been accepted by plaintiff in error during the unexpired term of said contract. The only evidence in the

We think the admission in evidence of this letter was reversible error. And, as this letter was the only evidence of the breach of the contract, the court also erred in directing a verdict for defendant in error for the sum of $67.93 as damages for the breach of the contract, since there was no

struction or to sustain a verdict for such damages.

The cause should therefore be reversed and remanded for a new trial.

PER CURIAM. Adopted in whole.

(52 Okl. 769)
COURTNEY v. GIBSON et al. (No. 5361.)
(Supreme Court of Oklahoma. Dec. 7, 1915.)

(Syllabus by the Court.)

1. APPEAL AND ERROR 1097-LAW OF THE CASE-DECISION ON FORMER APPEAL.

All questions of law determined in a former appeal become the law of the case, both for the trial court and on appeal, where the evidence is substantially the same.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427; Dec. Dig. 1097.]

2. APPEAL AND ERROR 1097-LAW OF THE CASE-DECISION ON FORMER APPEAL.

Where a case was tried before statehood in the Indian Territory, and carried by appeal to the Appellate Court of that Territory, in which appeal questions of law were determined, and the judgment reversed and the case remanded for a new trial, which was had after statehood, and substantially the same evidence was introduced as on the first trial, held, that the questions of law determined by the appellate court of the Indian Territory became the law of the case.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4358-4368, 4427; Dec. Dig. 1097.]

3. TRIAL 155-DEMURRER TO THE EVIDENCE -JUDGMENT-SUBMISSION OF ISSUES.

Upon sustaining a demurrer to the evidence, the court should render such judgment as the state of the pleadings and proof demand, and it is improper to submit any issue to the jury, for the effect of a demurrer to the evidence is to take from the jury and refer to the court the application of the law to the admitted facts. [Ed. Note.-For other cases, see Trial. Cent. Dig. §§ 346, 352, 353; Dec. Dig. 155.] 4. APPEAL AND ERROR 1170 HARMLESS ERROR-SUBMISSION OF ISSUES JUDGMENT. In such case, however, it is not prejudicial error to submit the issues to the jury, when the same judgment is rendered on the verdict as should have been rendered on the demurrer.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. 1170.]

Commissioners' Opinion, Division No. 2. Error from District Court, Craig County; Preston C. Davis, Judge.

Action by J. L. Courtney against A. H. Gibson and another. Judgment for defendants, and plaintiff brings error. Affirmed.

W. H. Kornegay, of Vinita, for plaintiff in error. James S. Davenport, of Vinita, for defendants in error.

DEVEREUX, C. (after stating the facts as above). We have carefully examined the record in this case, and the report of the same case when heard by the Court of Ap peals for the Indian Territory, and the evidence appears to be substantially the same. In fact by stipulation of the parties, a large part of the evidence on this trial was read from the bill of exceptions on the former appeal. This being the condition of the record, the law of the case was settled by the decision of the Court of Appeals for the Indian Territory.

[1, 2] In Sovereign Camp of Woodmen of the World v. Bridges, 37 Okl. 430, 132 Pac. 133, the case was first tried, as in the case at bar, in a court of the Indian Territory, and carried by appeal to the Circuit Court of Appeals for the Eighth Circuit, where the judgment was reversed and the case remandcourts. The court says: ed for a new trial, which was had in the state

"It is well settled that all questions of law determined in a former appeal became the law of the case, both for the trial court and the Court of Appeals, on a second hearing, provided the facts presented in the second hearing are substantially the same as presented in the first. Okl. C. Elect., G. & P. Co. v. Baumhoff, 21 v. Fonville, 36 Okl. 76 [125 Pac. 1125]; A., Okl. 503 [96 Pac. 758]; Metropolitan R. Co. T. & S. F. R. Co. v. Baker, 37 Okl. 48 [130 Pac. 577]."

And see, also, Leonard v. Showalter, 41 Okl. 122, 137 Pac. 346; Kirby v. Hardin, 41 Okl. 609, 134 Pac. 854; St. L. & S. F. R. Co. v. Clark, 42 Okl. 638, 142 Pac. 396; Corder v. Purcell, 151 Pac. 482 (not yet officially report

ed).

court committed no error in sustaining the On the authority of the above cases, the demurrer to the evidence.

the court in directing a verdict for the defend[3, 4] Objection is also made to the action of ants. This was not proper, for the effect of a demurrer to the evidence is to take from the jury and refer to the court the application of the law to the admitted facts, and if the demurrer is sustained, the defendant is entitled to a judgment in his favor. Rev. L. 1910, § 5002, subdiv. 3, provides:

This action was brought prior to statehood in the United States Court for the Northern District of the Indian Territory, and resulted in that court in a judgment for plaintiff, which was reversed on appeal by the Court of Appeals for the Indian Territory, in Bartles v. Courtney, 6 Ind. T. 379, 98 S. W. 133, and the case remanded for a new trial. Prior to the new trial, statehood intervened, and the case was properly transferred to the state district court. On the trial in that court, substantially the same evidence was offered by the plaintiff, and at the close of the evidence a demurrer thereto was sustain-dence.' ed as to both defendants, and a verdict directed in their favor, and from the judgment the plaintiff brings the case to this court by petition in error and case-made.

"The party on whom rests the burden of the issues must first produce his evidence; after he has closed his evidence the adverse party may interpose * * a demurrer thereto, upon the ground that no cause of action or defense is proved. If the court shall sustain the demurrer, such judgment shall be entered for the party deproof shall demand. If the demurrer be overrulmurring as the state of the pleadings or the ed, the adverse party will then produce his evi

And this was the rule at common law. See United States Bank v. Smith, 11 Wheat. 171, 6 L. Ed. 443; Suydam v. Williamson, 20 How. 427, 436, 15 L. Ed. 978. But the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

We, therefore, recommend that the judg- plaintiff is entitled, and enable the court to ment be affirmed.

(Supreme Court of Oklahoma. Dec. 7, 1915.) ther of the candidates was entitled to or had

defendant or making any terms as to 'costs, | prescribe, to file a supplemental petition, angranted leave to file instanter a supplemental swer or reply, alleging facts material to the petition alleging, in effect, that subsequent case, occurring after the former petition, answer to filing his original petition the defendant or reply." entered into actual possession of the office, and is now performing the duties thereof. The trial court also entered an order requiring the defendant to file his answer to the supplemental petition within 24 hours. At the expiration of the 24-hour period the court overruled a motion for a continuance filed by the defendant, and upon his refusal to answer the supplemental petition ordered that his answer to the original petition be refiled as an answer to the supplemental petition, to all of which the defendant objected and excepted. Upon the trial to the court which immediately followed there was judgment to the effect that neither party was entitled to the office of sheriff, and the same was declared vacant, whereupon both parties instituted separate proceedings in error for the purpose of reviewing the action of the trial court.

In view of the conclusion reached by the court, the foregoing statement is sufficient to present all questions necessary for a review. The plaintiff in error contends: (1) That the petition was prematurely filed; (2) that, inasmuch as no cause of action existed in favor of the plaintiff, and no relief could be granted on the facts stated in the original petition, the subsequently occurring facts could not have been material to the plaintiff's case, and therefore it was error to permit him to file a supplemental petition setting up such additional facts to enable him to maintain his action. We are of the opinion that both these contentions are well founded. In a very early case, R. v. Whitewell, 5 T. R. 85, Mr. Justice Buller said:

"No instance has been produced where the court has granted an information in nature of quo warranto, where the party against whom it was applied for has not been in actual pos

session of the office."

The same may be said to-day. From that time to this an unbroken line of authorities, both in England and this country, are to the same effect.

[1] The prevailing modern rule is stated in 17 A. & E. Enc. Pl. & Pr. 407, where the authorities are collected, as follows:

In support of this position they cite several Kansas and one Iowa case, which states, it seems, have similar statutes. Williams v. Moorehead et al., 33 Kan. 609, 7 Pac. 226; Simpson v. Vose, 31 Kan. 227, 1 Pac. 601; Flint v. Dulany, 37 Kan. 332, 15 Pac. 208; Gribben v. Clement, 141 Iowa, 144, 119 N. W. 596, 133 Am. St. Rep. 157. We have examined these cases, and are of the opinion that in the Kansas cases cited the statute is properly construed and applied, but we do not believe the cases are in point. There seems to be some confusion in the Iowa cases touching the question. If the case from that state cited by counsel for the defendant can be said to be an authority supporting his contention, it is difficult to reconcile it with Dennison v. Soper et al., 33 Iowa, 183, and Zalesky v. Home Ins. Co., 102 Iowa, 613, 71 N. W. 566, which seem to support a contrary view.

Undoubtedly, the general rule governing the right to file supplemental pleadings is as

follows:

"If, on the facts stated in the complaint, no cause of action exists against the defendant, those facts, subsequently occurring facts canand no relief can be granted against him on not be made a part of the plaintiff's case, and he will not be permitted to file a supplemental able him to maintain the action which he has petition alleging such additional facts to eninstituted, as the office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have is to bring into the record new facts which will been omitted from the original complaint, but enlarge or change the kind of relief to which the plaintiff is entitled, and enable the court to render a final judgment upon the facts existing at the time of its rendition."

& Pr. 18, is supported by a great array of auThis text, which is taken from 21 Enc. Pl. thorities, among which we find the case of 732. This was an action to recover upon a Rogers v. Hodgson, 46 Kan. 276, 26 Pac. promissory note and to foreclose a mortgage which was given to secure the same. dertook to allege such defaults as would By a supplemental petition the plaintiff unentitle him to recover 12 per cent. interest from the date of the mortgage, instead of the

"Quo warranto, or a proceeding in the na-7 per cent. rate stipulated therein, which ture thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto."

[2, 3] This proposition, however, is not seriously disputed by counsel for the plaintiff, but they take their stand more firmly upon the second, and insist that, if the original petition was immaturely filed, then that matter was cured by the filing of the defendant's supplemental petition, which, they say, was pursuant to section 4795, Rev. Laws 1910, which provides:

"Either party may be allowed, on notice, and on such terms, as to costs, as the court may

the trial court refused to permit him to file. This ruling was not disturbed on appeal; the Supreme Court holding that the record did not disclose any abuse of discretion on the part of the trial court. Mr. Justice Johnson, who delivered the opinion for the court, stated, however, that the trial court would have been warranted in allowing the supplemental petition to be filed, alleging additional defaults which would have entitled the plaintiff to recover a greater amount, but he also further says that:

"If there had been no default before the commencement of the action, the plaintiff would

hardly be entitled to enlarge his action by a All the Justices concur, except SHARP, J., supplemental petition setting forth subsequent who delivers an opinion expressing his defaults or grounds of forfeiture which did not exist at the commencement of the suit."

"The pleadings all relate to the time of the commencement of the suit, the same as if filed at that time, and the rights of the parties are to be determined as they existed when suit was commenced. An amended petition in a suit stands in the place of and as a substitute for the original petition, which is superseded by it, and must be based on the facts and causes of action as they existed at the time the original petition was filed; and, if a right of action did not exist when the original petition was filed, one cannot be created by filing an amended petition."

It seems perfectly reasonable and logical to us that, if the cause of action which it was sought to enforce by the original petition did not exist at the time that pleading was filed, it cannot be created, cured, or aided by matters subsequently occurring and set up in a supplemental petition. By the terms of the statute the facts alleged must be "material to the case," clearly indicating that they must relate to a cause of action which had previously accrued, and be pertinent to the rights or liabilities of the parties connected with that cause of action. A few cases in addition to those hereinbefore cited holding to this effect are Cont. Const. Co. v. Vinal, 48 Hun, 620, 1 N. Y. Supp. 200 (Sup. Ct. Gen. T.); Bostwick v. Menck, 4 Daly (N. Y.) 68; Farmers' L. & T. Co. v. U. S. Lines Tel. Co., 47 Hun (N. Y.) 315; Mitchell v. Taylor, 27 Or. 377, 41 Pac. 119; Meyer v. Berlandi, 39 Minn. 438, 40 N. W. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663; Smith v. McGaughey, 13 Tex. 464; Orton v. Noonan, 29 Wis. 541; Hill v. Den, 121 Cal. 42, 53 Pac. 642; Barker v. Prizer, 150 Ind. 4, 48 N. E. 4.

views.

SHARP, J. (dissenting). With the rule that quo warranto, or a proceedings in the nature thereof, lies only against one who is in the possession and user of the office, and not against one who merely lays claim to the office, or who has never been admitted thereto, I have no disposition to take issue. By section 4919, Rev. Laws 1910, the writ of quo warranto and proceedings by information in the nature of quo warranto are abolished, but it is there provided that the remedies theretofore obtainable in those forms may be had by a civil action, and, as held in Newhouse v. Alexander, 27 Okl, 46, 110 Pac. 1121, 30 L. R. A. (N. S.) 602, Ann. Cas. 1912B, 674, permits a private person to contest with another private person the right on title to a public office. The remedy afforded being that of a civil action, under the statute the pleadings in such an action are governed in general by the rules applicable to pleadings in ordinary civil actions. 32 Cyc. 1447. Statutes relating to amendments in civil suits are generally held applicable to quo warranto, or to a proceedings in the nature thereof. Commonwealth v. Commercial Bank, 28 Pa. 386; State ex rel. Ballard v. Greene, 87 Vt. 94, 88 Atl. 515; State v. Gleason, 12 Fla. 190; West End v. State ex rel. O'Leary, 138 Ala, 295, 36 South. 423; Hinze v. People ex rel. Halbert, 92 Ill. 406; Kelly v. State ex rel. Kierskey, 79 Miss. 168, 30 South. 49; Gunton v. Ingle, 4 Cranch, C. C. 438, Fed. Cas. No. 5,870; High's Extraordinary Legal Remedies, § 737; Spelling, Injunctions and Extraordinary Remedies, § 1856.

De

The right of the plaintiff to file an amended petition in a proceedings in the nature of quo warranto, for the same reason, in proper cases, would afford the right to file supplemental pleadings, as authorized by section 4795, Rev. Laws 1910. The only material change found in the supplemental petition from that contained in the original petition is the allegation that on the 4th day of January, 1915, the defendant qualified and took possession of the office of sheriff, and was continuing to exercise the authority of that office conferred upon him by law. fendant's entrance into office was pursuant to the certificate of election issued to him by the county election board of McClain county November 6, 1914. The statute, as we construe it, makes the filing of supplemental pleadings a matter of discretion with the trial court. This discretion was exercised in favor of the plaintiff, by permitting him to file the supplemental petition. In Smith v. Smith, 22 Kan. 699, in an opinion For the reasons stated, the judgment of by Judge Brewer, the application for leave the court below is reversed, and the cause to file a supplemental petition was denied, remanded, with directions to take such fur- and the question presented was whether rether proceedings therein not inconsistent versible error had been committed. It is

It is probable that if the court had required the plaintiff to give the notice and make reasonable terms as to costs, as required by the statute, and allowed the defendant such a reasonable time to answer the supplemental petition and get ready for trial as to make it appear that his action did not result in a miscarriage of justice, or deprive the defendant of any substantial constitutional or statutory right, the court would be justified in applying the harmless error statute (section 6005, Rev. Laws 1910). But such is not the case, and no useful purpose would be subserved by further speculating on what might have been.