against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Martin & Martin, of Boise, for appellant. Richard H. Johnson, of Boise, for respondent.

RICE, J. This is an action upon a standard fire insurance policy, issued by the appellant company upon the academy and dormatories belonging to the respondent. The property covered by the policy burned No

proof of loss was submitted by respondent January 30, 1912, or 10 days after the 60 days provided for in the policy had expired. The terms of the policy material to this appeal are as follows:

means that it has been kept from the time it is placed in the ballot box, after the voter has marked it, unchanged in any way. It being shown that no opportunity to tamper with the ballot existed, or if one did, they, in fact, were not changed or mutilated, the presumption follows that they are the best evidence as to how the voter voted, and as to the marks he used to indicate his choice. If the marking on the ballot is regular and in strict conformity with the law, it is presumed that it is his mark. What of it, if the bal-vember 21, 1911, and was a total loss. The lot, in addition to being regularly marked, has upon it marks not provided by law? I think the presumption should prevail in the one case as well as the other that the voter, and not some one else, did the marking, and if there be identifying marks upon it, that he put them there. If it can be presumed that some one else put the distinguishing marks on the ballot, that presumption should also go to the proper markings, and thus you have destroyed its integrity. The ballots, where they have been kept inviolate, are the best evidence, and, in a proper case, may be used to overcome the canvass and return of the election board. Quigley v. Phelps, 74 Wash. 73, 132 Pac. 738, Ann. Cas. 1915A, 679. This seems to be the universal rule. Since boards of election act in a ministerial capacity only, the counting or rejecting of ballots by them is not binding upon the courts. Neither is it taken for granted that every ballot counted by them was at the time unexceptionable. If that presumption were indulged, it would be a waste of time for the courts to look to the ballots to determine whether they had been correctly counted or not; for the return would be the best evidence, instead of the ballots.

I might also add that I do not believe the Tebbe v. Smith Case, 108 Cal. 101, 41 Pac. 454, 29 L. R. A. 673, 49 Am. St. Rep. 68, is controlling as to the vote in Pinedale precinct. I think there is a clear distinction between our statute and the California statute. The vote of Pinedale precinct, in my opinion, was properly counted.

SOUTHERN IDAHO CONFERENCE ASS'N
OF SEVENTH DAY ADVENTISTS v.
HARTFORD FIRE INS. CO.

(Supreme Court of Idaho. Dec. 22, 1917.) INSURANCE 612 (2) FIRE INSURANCE PROOFS OF LOSS EFFECT.

In an action on a standard fire insurance policy, where fire occurred resulting in a total loss of the property insured, held, that a failure to submit proof of loss within the time specified in the policy is not fatal to an action on the policy.

*

*

"The Hartford Fire Insurance Company in consideration of the stipulations herein named, and of one hundred twenty-two and 50/100 dollars premium, does insure Southern Idaho Conference Association for the term of three years * * against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding three thousand five hundred dollars. "This policy is made and accepted subject to the following stipulations and conditions printed on the back hereto which are hereby specially referred to and made a part of this policy. * * "If fire occur the insured shall give immediate notice of any loss thereby in writing to this com* * and, within sixty days after the pany; fire, unless such time is extended in writing by this company, shall render a written statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire.

* * *

"This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until after sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.

* * *

"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire."

Other provisions were contained in the policy expressly avoiding the same under certain conditions therein set forth.

The first question submitted on this appeal is whether the failure to submit proof of loss within 60 days is fatal to this action. On this question there are two distinct lines of authorities. The one holds that the submission of proof by the holder of the policy within the time limit stated in the policy is a condition precedent to the right of recovery. Reference may be made to the cases of San Francisco Savings Union v. Western Assurance Co. (C. C.) 157 Fed. 695, and White v.

Appeal from District Court, Ada County; Home Mutual Insurance Co., 128 Cal. 131, 60 Chas. P. McCarthy, Judge.

Pac. 666, as setting forth very clearly the Action by the Southern Idaho Conference position of the courts which so hold. Among Association of Seventh Day Adventists the authorities supporting the view that the

The question of waiver, which was argued at considerable length, becomes immaterial, as well as other errors assigned by appellant. The judgment is affirmed. Costs awarded to respondent.

BUDGE, C. J., and MORGAN, J., concur.

POWELL et al. v. EDWARDS. (Supreme Court of Oklahoma. Nov. 20, 1917.) (Syllabus by the Court.)

failure to submit proof of loss within the time is to be submitted is not made the essence of specified in the policy is not of itself fatal to the contract when strictly construed against the right of recovery are the following: the company. We hold that the failure to Dakin v. Queen City Fire Ins. Co., 59 Or. submit proof of loss within 60 days is not 269, 117 Pac. 419; Nance v. Oklahoma Fire fatal to this action. Ins. Co., 31 Okl. 208, 120 Pac. 948, 38 L. R. A. (N. S.) 426; Dixon v. State Mut. Ins. Co., 34 Okl. 624, 126 Pac. 794, L. R. A. 1915F, 1210; Com. Union Co. v. Schults, 37 Okl. 95, 130 Pac. 572; North British, etc., Ins. Co. v. Edmunson, 104 Va. 486, 52 S. E. 350; Taber v. Royal Ins. Co., 124 Ala. 681, 26 South. 252; Indian River Bank v. Hartford Fire Ins. Co., 46 Fla. 283, 35 South. 228; Continental Fire Ins. Co. v. Whitaker, 112 Tenn. 151, 79 S. W. 119, 64 L. R. A. 451, 105 Am. St. Rep. 916; Welch v. Fire Ass'n, 120 Wis. 456, 98 N. W. 227; Flatley v. Phoenix Ins. Co., 95 Wis. 618, 70 N. W. 828; Munson v. German, etc., Ins. Co., 55 W. Va. 423, 47 S. E. 160; S. M. Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W. Va. 129, 71 S. E. 194; Mason v. St. Paul, etc., Ins. Co., 82 Minn. 336, 85 N. W. 13, 83 Am. St. Rep. 433; Gragg v. Home Ins. Co. (Ky.) 90 S. W. 1045; St. Paul Ins. Co. v. Owens, 69 Kan. 602, 77 Pac. 544; Higson v. North River Ins. Co., 152 N. C. 206, 67 S. E. 509; Northern Assurance Co. v. Hanna, 60 Neb. 29, 82 N. W. 97; Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Steele v. German Ins. Co., 93 Mich. 81, 53 N. W. 514, 18 L. R. A. 85; Coventry Mutual Livestock Ass'n v. Evans, 102 Pa. 281.

When the property was destroyed by fire under conditions which by the terms of the policy did not render it void, the liability of the appellant company accrued. A contract of insurance is not unilateral, as that term is sometimes used, for the insured has paid a consideration therefor. The provision that, if a fire occurs, the insured shall within 60 days after the fire, unless such time is extended in writing by the company, render a statement to the company containing the required proof of loss, has no reference to any condition or stipulation affecting the risk itself, but is a provision requiring an act to be performed after the liability has accrued. We think, if this provision be construed to contain a condition precedent to the right to recover on the policy, a failure to conform to it would result in a forfeiture of a legal right. The provision is therefore to be strictly construed against the company. It does not in terms provide that the penalty for failure to furnish proof within the 60 days shall be a forfeiture of the right to recover. Neither does the provision that "the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required shall have been received by the company" contain the further restriction that such proof must be received within 60 days after the fire. The time within which proof of loss

1230

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SUPERSEDEAS

APPEAL AND ERROR
BOND-ACTION.
After the time has expired for an appeal and
the judgment has become final and not paid, an
bond conditioned for the payment of the con-
action will lie upon a statutory supersedeas
demnation money and costs in case of judgment
or final order shall be adjudged against it, even
though the appeal has not been perfected or fails
for want of prosecution.

Commissioners' Opinion, Division No. 3. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

Proceeding on a supersedeas bond by Rachel Edwards against George K. Powell and the National Surety Company. Demurrer to petition overruled, judgment for plaintiff, Affirmed. and defendants bring error.

N. B. Maxey and Kelly Brown, both of Muskogee, for plaintiffs in error. Moulton & McKoin, of Muskogee, for defendant in error.

HOOKER, C. The defendant in error, Rachel Edwards, filed her petition in the superior court of Muskogee county, alleging that on the 14th day of March, 1913, she recovered a judgment against the defendant George K. Powell, in the sum of $1,218.66, with interest and costs; that the said George K. Powell prayed an appeal from said judgment to the Supreme Court of the state of Oklahoma, which appeal was by the court granted, and he was allowed 90 days in which to make and serve a case-made and 30 days in which to file a supersedeas bond in the sum of $2,438, and that the court did then and there order that, upon the filing and approval of such bond, execution, and further proceeding, said cause should be stayed until the appeal was decided by the Supreme Court, and that an execution in said cause be stayed for 30 days from the date of said order, pending the giving of said bond; that, thereafter, on the 4th day of April, 1913, the said George K. Powell did file a supersedeas bond in said court to secure the payment of said judgment, interest, and cost in the event the same should

be adjudged against him, or affirmed in whole or in part, upon which bond the National Surety Company became the surety, and a copy of the judgment of the court and the order aforesaid, together with copy of the supersedeas bond, is filed as a part of the petition.

for plaintiff, and defendant brings error. Reversed and remanded.

William O. Beall, of Muskogee, and Vaught & Brewer, of Oklahoma City, for plaintiff in error. Ames, Chambers, Lowe & Richardson, of Oklahoma City, for defendant in error.

BLEAKMORE, C. The Southwestern Cotthis action in the district court of Oklahoma county against Joe Abraham, defendant, seeking recovery of $3,150.75. Plaintiff claimed that it had orally contracted with defendant to purchase from him 600 tons of

It is further alleged that the said George K. Powell failed to file his petition in er-ton Oil Company, as plaintiff, commenced ror in the Supreme Court of the state within the time provided by law, or at all, and that by reason of the acts of the defendants, George K. Powell and the National Surety Company, in staying execution on said judgment by having said bond filed and approv-prime, clean cotton seed, to be delivered f. ed, and by reason of the failure to file the petition in error in the Supreme Court within the statutory time, or at all, the liability accrued upon said bond against both of said parties and in favor of defendant in error for the amount of said judgment, interest, and costs. To this pleading a demurrer was filed by George K. Powell and the National Surety Company, and overruled. Thereupon they declined to plead further, and stood upon their demurrer, whereupon judgment was rendered against them as prayed for, from which judgment they have appealed to this

PER CURIAM. Adopted in whole.

o. b. cars at Bristow, Okl., at $22.50 per ton, and paid at the time $1,500, or $2.50 per ton, of the purchase price; that, pursuant to such contract, defendant consigned to it certain cars of seed, drawing on it sight drafts, with bills of lading attached, which were paid; that such shipments were short in weight; that a portion of the seed was in bad condition and of inferior quality; that in honoring such drafts it overpaid defendant a large sum; that defendant had breached the contract to its damage by failure to deliver 205.5 tons of the seed.

Defendant contended that plaintiff had purchased his entire output of seed for the season, as the same came from the gin, regardless of grade, at $22.50 per ton, and had agreed that the seed should be weighed at Bristow and paid for according to weights shown by scale tickets which were delivered; that there was no shortage in the weights; that plaintiff had refused to accept his entire output of seed in accordance with the contract, compelling him to sell 584,800 pounds thereof on the market for less than the contract price, by reason of all of which he sought to recover against plaintiff the sum of $1,940.72.

The case was tried to a jury. The testimony adduced relative to every issue of fact was conflicting; yet at the close of the evidence, the record of which is voluminous, the court directed a verdict for plaintiff in ABRAHAM v. SOUTHWESTERN COTTON the sum of $2,491.64; and defendant has ap

OIL CO. (No. 7952.)

(Supreme Court of Oklahoma. Nov. 27, 1917. Rehearing Denied Jan. 8, 1918.)

(Syllabus by the Court.)

TRIAL 143-DIRECTING VERDICT.

"The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it."

Commissioners' Opinion, Division No. 3. Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by the Southwestern Cotton Oil Company against Joe Abraham. Judgment

pealed.

Plaintiff in its brief here says:

"It may be the amount for which the court instructed the verdict is not correct; yet the evidence conclusively shows that we were entitled to an instructed verdict for a certain sum less than the amount fixed by the court, and we are willing that the judgment be modified to that extent, and we take it the court will so modify the judgment in giving us this opportunity; in other words, as the uncontradicted testimony clearly indicates that we would be entitled to a judgment for a definite amount, and we are willing to accept that amount, will this court so modify the judgment to that extent. rather than put the parties to the expense of another trial? While we feel we were entitled to the amount fixed by the court, and more, rather than go to the expense and take the time of another trial, we would sacrifice a reasonable amount and accept what the evidence of plain

We are of opinion that the action of the trial court directing a verdict for plaintiff was prejudicially erroneous.

tiff in error clearly indicates. we were en- HOOKER, C. This suit was filed in the titled to." justice court by defendant in error against plaintiff in error to recover $25 for damages for the wrongful injury to one hog, which injuries caused its death. Judgment was rendered in said court by verdict of a jury for defendant below, from which plaintiff be

Section 4993, Revised Laws 1910, provides: # Issues of fact arising in actions for the recovery of money * shall be tried by a jury, unless a jury trial is waiv-low appealed to the county court, where a trial de novo was had, and defendant in error recovered a judgment for $15 against plaintiff in error, and to reverse which an appeal is had to this court.

ed. * * * ""

"The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it." Moore v. First Nat. Bank of Iowa City, 30 Okl. 623, 121 Pac. 626.

In Midland Valley R. Co. v. Featherstone, 32 Okl. 837, 123 Pac. 1123, it is held:

"The plaintiff sued for $2,000. The testimony was conflicting as to just what amount, if any, was due the plaintiff. The court in structed the jury as follows: 'If you find for the plaintiff in this case, he is entitled to recover the sum of $1,565.96.' This instruction

was erroneous, in that it was an invasion of the jury's province to determine what amount, if any, was due to plaintiff."

It follows that the judgment of the trial court should be reversed, and the cause remanded.

Where there is some evidence reasonably supporting the verdict of the jury, the Supreme Court cannot disturb it on appeal.

Commissioners' Opinion, Division No. 3. Error from County Court, Atoka County; W. M. Rainey, Judge.

Suit by J. H. Buff against W. F. Clark. From a judgment in the county court in favor of the plaintiff, on appeal from a judgment in justice's court for defendant, defendant brings error. Affirmed.

Humphreys & Cook and Ira J. Banta, both of Atoka, for plaintiff in error. Jones & McCasland and Baxter Taylor, all of Atoka,

for defendant in error.

It is asserted that the county court never acquired jurisdiction of this cause on appeal from the justice court for two reasons: (a) That the amount involved did not exceed $25 in value, and, as the judgment was rendered by a verdict of the jury, an appeal would not lie. (b) That no judgment was rendered in the justice court as fully appears from the docket of the justice.

[1] These positions are not tenable. Plaintiff below instituted his suit to recover the sum of $25, and when the verdict of the jury was adverse to him he had the right of appeal to the county court. St. Louis & S. F. R. Co. v. Tolbert, 47 Okl. 228, 148 Pac. 128.

[2] The record of the justice before whom this cause was tried, while incomplete, was sufficient to show the conclusion reached by the jury and the justice and a final determination of the case. Fooshe & Brunson v. Smith, 34 Okl. 247, 124 Pac. 1070; U. S. & F. G. Co. v. Alexander, 30 Okl. 224, 120 Pac. 632.

[3] The evidence here was sufficient to take this case to the jury as to the damages to the hog having been inflicted by the plaintiff in error, and by his direction and in his presence, and under the established rule of this court, there being some evidence which reasonably supports the verdict of the jury, we cannot disturb the same on appeal.

A necessity to protect the property of the plaintiff in error by injuring this hog was not shown by this evidence, and, there being no error shown here prejudicial to the rights of the plaintiff in error, this cause is affirmed.

PER CURIAM. Adopted in whole.

SCHENBECK v. FIRST NAT. BANK OF
GRANDFIELD et al. (No. 8378.)
(Supreme Court of Oklahoma. Nov. 20, 1917.
Rehearing Denied Jan. 8, 1918.)

(Syllabus by the Court.)
1. GARNISHMENT 235(2)-INTERVENTION-
SATISFACTION OF JUDGMENT-EFFECT.

Where one intervenes in a garnishment proceeding and claims the funds in possession of the garnishee and withdraws his petition of intervention, and fails to prosecute his claim for the funds garnisheed, the garnishee is under no obligation to such claimant to serve notice upon him of the garnishment proceeding or to inter

PRYOR, C. This action was commenced in the district court of Tillman county by William Schenbeck against the First National Bank of Grandfield, Armour & Co., and J. C. Eversole to recover the sum of $743.70, the agreed purchase price for certain hogs sold and delivered to the said Eversole by the plaintiff, William Schenbeck. The parties appear in this court as they appeared in the trial court, and will be referred to as plain-proceeds of the particular hogs purchased by tiff and defendants.

proceeds of the sale the bank should be fully reimbursed for the checks drawn on it by the said Eversole; that on said date the said Eversole bought from the plaintiff a certain number of hogs, the agreed purchase price thereof being $658, and on the same date he bought hogs from C. W. Lowrey, the agreed purchase price amounting to $19.60, and from On the 15th day of December, 1915, the Rob Cox a certain number of hogs, the agreed cause came on for trial before the court and purchase price amounting to $66.10, and all jury, and after plaintiff had introduced his of said hogs were delivered to the said Ever-evidence the defendants the First National sole, who issued his check to the several par- | Bank and Armour & Co. interposed a de