rer v. Security Co., 131 Ind. 35, 30 N. E. 879. [2] The trial court, on a consideration of all the evidence for and against the motion, after seeing the witnesses and observing their demeanor, reached the conclusion that the sheriff's return was correct. We are urged to disturb this finding on the theory that it is not reasonably supported by the evidence. turned by the sheriff, showing that the defendant could not be found in said county. On June 7th an alias summons was issued, and on June 16th was returned by the sheriff showing personal service upon the defendant in said county on June 8, 1912. On August 12, 1912, a default judgment was rendered in favor of the plaintiff against her father, the defendant, for the possession of said real | The sheriff's return, showing service, is prima estate, canceling a deed made by her to him, and quieting her title to said premises. After the rendition of said judgment, the plaintiff sold said real estate to J. W. Myers, who in turn sold the same to one W. A. Lamon, who later sold the same to Thomas C. Harrell. On January 31, 1913, a writ of possession was issued by the clerk of said court in favor of the plaintiff and her assigns, directing the sheriff of said county to dispossess the defendant of said premises. On February 12, 1913, the defendant filed a verified motion in said court in said cause to set aside and vacate the said default judgment, on the sole ground that he was not served with summons in said cause, and that he had no notice of the institution of said cause and the rendition of said judgment, pleading a valid defense to said cause of action. The plaintiff filed a response to this motion, and on March 25, 1913, the court, on consideration of the evidence of both parties, overruled said motion, holding that the sheriff's return showing personal service upon the defendant was correct, and from this judgment defendant has appealed. facie evidence of its truthfulness. The deputy sheriff, who served the summons according to the return, testified positively that he served the summons personally on the defendant, as stated in the return. The defendant testified that he was not served. The evidence discloses other circumstances, which, to some extent, support the defendant's statement; but, taking the testimony as a whole, we are satisfied that the evidence reasonably supports the finding of the trial court. This being true, it should not be disturbed, on ap peal. Conrath v. Johnston et al., 36 Okl. 425, 128 Pac. 1088; Semple v. Baken, 39 Okl. 563, 135 Pac. 1141; Mullin v. Brown, 40 Okl. 137, 137 Pac. 107; Board of Com'rs Woodward County v. Thyfault, 43 Okl. 82, 141 Pac. 409. The judgment should be affirmed. PER CURIAM. Adopted in whole. MURRAY CO. v. PALMER. (Supreme Court of Oklahoma. (55 Okl. 480) (No. 6344.) Jan. 11, 1916. Rehearing Denied Feb. 15, 1916.) (Syllabus by the Court.) 1. SALES 428-ACTION ON PURCHASE-MONEY NOTE-DEFENSE-BREACH OF WARRANTY. In an action on a promissory note given maker of the note may defend on the ground of as part payment for machinery purchased, the breach of warranty as to fitness of the machinery to do the work for which it was intended damages sustained by reason of such breach. and recover on a cross-petition the amount of [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1214-1223; Dec. Dig. 428.] 2. SALES 442 BREACH OF WARRANTY MEASURE OF DAMAGES. The measure of damages for breach of warranty as to fitness of machinery to do certain work is the difference in the value of such machinery as warranted to be and its actual value. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. 442.] 3. APPEAL AND ERROR [1] The sole question presented is whether the sheriff's return showing personal service on the defendant on June 8, 1912, is true or false. The summons and the return thereon are regular. The judgment is regular upon its face. The common-law rule as to the conclusiveness of an officer's return is not in force in this state, but a more liberal rule, to the effect that, while not conclusive, yet it is prima facie evidence of its truthfulness, and it requires strong and convincing proof to overcome it. Ray v. Harrison, 32 Okl. 17, 121 Pac. 633, Ann. Cas. 1914A, 413. This is a just and wholesome rule, for under it an officer by his return cannot make that which is false true. Where a judgment, regular upon its face, based upon an officer's return showing personal service, is sought to be vacated and set aside, public policy demands that it should not be overcome, except upon clear and convincing proof that the return is false. Especially is this true where, as in the instant case, the rights of presumably innocent third parties are involved. Kavanagh et al. v. Hamilton, 53 Colo. 157, 125 Pac. 512, Ann. Cas. 1914B, 76; Manson v. Duncanson, 166 U. S. 533, 17 Sup. Ct. 647, 41 L. Ed. 1105; Ferguson v. Crawford, 86 N. Y. 609; Owens v. Ranstead, 22 Ill. 161; Davis v. Dresback, 81 Ill. 395; Connell v. Galligher, 36 Neb. 749, Action by the Murray Company against J. Judgment for defendant, and 55 N. W. 229; Wilson v. Shipman, 34 Neb. C. Palmer. Affirmed. -INSTRUCTIONS. 263-PRESENTATION court, although copied in full in the case-made, Instruction given to the jury by the trial are not brought to the Supreme Court for review unless excepted to as provided by section 5003, Rev. L. 1910. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. 263.] Commissioners' Opinion, Division No. 2. Error from County Court, Love County; J. H. Hays, Judge. 573, 52 N. W. 576, 33 Am. St. Rep. 660; Mur-plaintiff brings error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-72 A. Eddleman and J. C. Graham, both of Marietta, for plaintiff in error. Cruce & Potter, of Ardmore, and R. A. Keller, of Marietta, for defendant in error. GALBRAITH, C. This was an action on a promissory note for $512.85, and to foreclose a chatter mortgage given to secure the same. The defendant filed an answer and crosspetition, in which the execution of the note and mortgage were admitted, but prayed that the same be canceled on account of a breach of warranty given on the property for which the note and mortgage were executed, and judgment over against the plaintiff for damages resulting therefrom. There was a trial to the court and a jury, and a verdict returned for the defendant, canceling the note and mortgage and fixing the defendant's damages in the sum of $500. On this verdict, judgment was rendered, and from that judgment this appeal was prosecuted. or money paid thereon refunded pro rata, neither of the purchasers, a man is sent to operate the It was the breach of this warranty on the part of the plaintiff that gives rise to the defendant's claim for damages set out in his cross-petition. The second paragraph of the answer and There was a demurrer to the answer as cross-petition, to which the demurrer was follows: directed, reads as follows: "Plaintiff demurs to the second paragraph or cause of action set up in defendant's answer in which the defendant alleges a promise or understanding from the plaintiff that plaintiff would make said machinery work, etc., and state that the same states no cause of action against the plaintiff, in that no consideration for such alleged promise is shown, and of this plaintiff prays judgment of the court." This demurrer was overruled, and exception saved, and this ruling is assigned as error. [1] It appears from the record that the defendant below purchased from the plaintiff a gin outfit for the agreed price of $2,551.40; that under the contract of sale $500 of the purchase price was paid upon the delivery of the machinery, and the balance was evidenced by four promissory notes for $512.85; that three of these notes had been paid, as well as the $500 cash payment; and that the note in suit was the last of the notes given for the purchase price of said gin machinery. He "Second. He says that, at the time said machinery was delivered to this defendant, he paid to the plaintiff the sum of $500, and executed four notes of the same size of the one sued upon herein, to wit, $512.85 each. That when the first, second, and third of said notes fell due, he paid same with the distinct understanding and promise from the plaintiff that he would make said machinery work as they had agreed it would work, and perform the functions that the contract guaranteed it should perform, and perform the work for which it was purchased. Isaid that relying upon these promises, and in good faith, believing that the plaintiff would make said machinery good, he paid said notes when they fell due. He says that he now sees that the plaintiff does not intend to try to make said machinery work or to replace it with machinery that will work. He says that, by reason of these promises made by the plaintiff, he was induced to and did pay the plaintiff by reason of said false representations at least $1,000 more than said machinery was worth and that by reason thereof he is entitled to and should recover of the plaintiff the said $1,000 that he has paid thereon more than said machinery was worth." It is evident from a reading of the allega The contract of sale contained the follow- tions of this part of the cross-petition that it ing warranty: alleges the essential elements constituting a claim for damages for breach of warranty, and therefore the demurrer to the same was properly overruled by the trial court. "Said machinery is warranted to be good material, to perform well, if properly operated by competent persons. Upon starting, if the purchasers, at any time within ten days, are unable to make same operate well, telegraph or Again, error is assigned to the ruling of written notice, stating wherein it fails to con- the trial court denying the motion presented at form to the warranty, is at once to be given by the purchasers to the Murray Company, Dallas, the close of the evidence to exclude and withTex. (and not verbally to some of its traveling draw from the consideration of the jury all the men), and reasonable time shall be given to the testimony introduced in the case relative to a Murray Company to send a competent person subsequent promise or promises made by the to remedy the difficulty, the purchaser rendering all necessary and friendly assistance to the plaintiff to remedy or repair the machinery. Murray Company, which reserves the right to The uncontradicted testimony in the record is replace any defective part or parts, but such to the effect that, immediately after the madefective part or parts shall not condemn the machine to which it belongs; and if such ma- chinery was installed, it did not work to the chine cannot be made to fulfill the warranty, satisfaction of the defendant, and that he and the fault is in the machine, it is to be re-notified the plaintiff of that fact and made turned to place where received, and then another, as soon as practicable, substituted therefor, which shall fulfill the warranty, or the amount complaint to it, and it sent a man to the village of Orr, where the gin was located, out in section 2866. The application of these statutory rules for the measure of damages is illustrated in many decisions of this court. Osborne & Co. v. Walther, 12 Okl. 20, 69 Pac. 953; Continental Gin Co. v. Sullivan, 150 Pac. 209; Kansas City Hay Press Co. v. Williams et al., 151 Pac. 570, and Parsons v. Smith et al., 151 Pac. 862; Rogers Lbr. Co. v. Judd Lbr. Co., 153 Pac. 150. It therefore appears that the refusal of this instruction was not error. ther complaint was made, and another repre-, of the article sold, as in the case at bar, sentative of the plaintiff was sent to repair the rule for measuring the damage is set the gin, and still later another man was sent there; that the second year after the purchase the defendant went to Dallas, the headquarters of plaintiff, and took up the matter of the defects of the machinery with the plaintiff there, and the defendant was then assured that the defects in the machinery would be perfected and the gin would be made to operate as good or better than any other gin the defendant had ever controlled; that there was continuous complaint of the working of the gin by the defendant from [3] Again, it is assigned as error, and urgthe time of its purchase until the trial of ed in the brief, that the court erred in the this action; and that the gin turned out instructions given to the jury. A casual an inferior sample, that it was "nappy," and reading convinces us that instructions Nos. 6 had an excess of dirt mixed with the cotton, and 7 of the court's instructions to the jury and cotton from this gin sold for 1 and are inconsistent and are not applicable to 11⁄2 cents less per pound than cotton from the issues in the case, and neither of them the other gin at Orr. It clearly appears states the correct measure of damages prefrom the record that the defendant made fre- scribed in this character of action. Howquent complaint of the defects in the gin and ever, it appears from the record that these its defective work. One of the defendant's instructions were not excepted to by the dewitnesses, an expert gin constructor, said fendant, and therefore they are not brought that these complaints made by the defend-up for review in this cause. Section 5003, ant would fill "a volume." This testimony Rev. L. 1910. was competent and relevant to show a breach of the warranty, and also the amount of injury sustained by the defendant on account thereof, and the ruling of the trial court in denying said motion was correct. Again, it is complained that the court erred in refusing to direct the jury to return a verdict for the plaintiff. This was not error, inasmuch as the answer and cross-petition stated a cause of action for breach of warranty and damages, and the evidence offered in support thereof tends to support this pleading. [2] Again, it is complained that the court refused the plaintiff's second requested in struction. This instruction was in words and figures as follows: The other assignments made do not seem to require specific mention. Upon consideration of the whole record, it seems that substantial justice was done by the verdict returned in this cause, and, inasmuch as none of the exceptions urged are well taken, we recommend that the judgment appealed from be affirmed. PER CURIAM. Adopted in whole. (55 Okl. 24) JONES V. THOMPSON et al. (No. 4905.) (Supreme Court of Oklahoma. Jan. 25, 1916.) (Syllabus by the Court.) APPEAL AND ERROR 966-CONTINUANCE 20-DISCRETIONARY RULING. on account of the absence of counsel is a matter The granting or refusing of a continuance of discretion with the trial court, and, unless it appears that such discretion was abused to the prejudice of the substantial rights of a litigant, the action of such court will not be disturbed upon appeal. "That under the contract in evidence in this 1. cause the measure of the defendant's damages against the plaintiff, if any, is the price of any defective article of said machinery, and, if you find that any particular article of said machinery was defective, it would not void the contract nor entitle the defendant to plead a failure of consideration; but you will find the value of such defective article or said part or parts, and the defendant would be allowed the price thereof as a credit on his indebtedness to plaintiff." It was not error to refuse this instruction, inasmuch as it was not applicable to the issues raised by the pleadings, in this, that the cross-petition was not based upon a failure of consideration, but upon a breach of warranty and damages resulting therefrom, and this instruction did not correctly state the measure of damages in an action for breach of warranty of contract of sale. The measure of damages in an action for breach of warranty "in quality" is set out in section 2865, Rev. L. 1910, and where damages are claimed for breach of warranty "in fitness" [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3837; Dec. Dig. 966; Continuance, Cent. Dig. §§ 51, 53-57; Dec. Dig. 20.] 2. APPEAL AND ERROR 1009, 1175-REVIEW -WEIGHT OF EVIDENCE-FRAUD-EQUITY. While the rule prevails in this jurisdiction that in cases of purely equitable cognizance it is within the power of this court to consider the entire record, weigh the evidence, and, where the weight of the evidence, to render or cause to be judgment of the trial court is clearly against the rendered such judgment as should have been awarded by the trial court; yet the doctrine is equally well established that where fraud is relied upon as a basis for equitable relief, and the trial court, after hearing the evidence, finds that fraud has not been established, this court For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes will not disturb such findings, unless it is clearly against the weight of the evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978, 4573-4587; Dec. Dig. 1009, 1175.] Commissioners' Opinion, Division No. 3. Error from District Court, Pawnee County; L. M. Poe, Judge. Action by Julia A. Jones against E. M. Thompson and others. Judgment for defendants, and plaintiff brings error. Affirmed. Harris & Nowlin and Burford, Robertson & Hoffman, all of Oklahoma City, for plaintiff in error. William Blake, of Tulsa, and Burwell, Crockett & Johnson, of Oklahoma City, for defendants in error. to his home, where she ate dinner and thereafter executed to the defendant Emma M. Thompson, the wife of the doctor, in consideration of $500 cash, a contract for the conveyance of an undivided one-half interest in said land and the royalties therefrom, to be executed and delivered at any time within 9 months upon the payment to her of an additional sum of $3,500; and also a deed to such one-half interest in said land and royalties which it was agreed should be placed in escrow to be delivered upon the payment to the plaintiff of said additional sum within a period prescribed. The instruments were prepared by one Stanley Edmister, a lawyer and notary public, who resided at Cleveland. At the Thompson home at the BLEAKMORE, C. This action was com- time of the execution of said instruments menced in the district court of Pawnee coun- were the plaintiff, the defendants Dr. Thomp ty by the plaintiff in error against the de- son and his wife, a Mrs. Moore, who, on acfendants in error, seeking the cancellation count of the illness of Mrs. Thompson, had of certain written instruments on the ground been called in to prepare the meals and perthat at the time of the execution thereof form the general household duties, her plaintiff had been stupified by some drug daughter, a child of about 11 years, and surreptitiously administered by one of the Stanley Edmister, who arrived at about the defendants, which rendered her mentally time the others had concluded the noon meal incapacitated to understand and appreciate and who brought with him the contract and the nature of the transaction, and, while her conveyance, which he had previously prefaculties were thus impaired, she was fraud- pared. Shortly after eating dinner plaintiff ulently induced to execute such instrument. signed such instruments and received a The plaintiff, a woman 65 years of age, check for $500 from Mrs. Thompson, and also was the owner of 155 acres of land in what copies of such instruments. Edmister then is known as the Cleveland oil field in Pawnee retired, taking with him the original incounty, which she had theretofore leased to struments to be deposited in escrow, and the the Minnetonka Oil Company for a royalty doctor also left, ostensibly to see a patient. of one-eighth of the oil; such royalty, from Thereafter, about 3 o'clock, he returned and three wells, having for some 5 years afforded took the plaintiff in his buggy to the bank, her an average monthly income of about $50, upon which the check was drawn, where she and for the month of March, 1912, $114. The alighted from the buggy, entered the bank, land was practically valueless for agricultur- indorsed and deposited the check, and real purposes. An oil well then being drilled ceived a passbook, upon which she was given to a deeper sand on an adjoining tract was credit therefor, and was driven by the docproducing a large amount of gas and spray- tor to her home in the town of Cleveland ing some oil. On March 19, 1912, while plain-The contract and deed were placed in escrow tiff was visiting her daughter, who resided in the bank by Edmister. on the land involved, the defendant E. M. On March 27th, seven days thereafter, Thompson, a physician, called upon her plaintiff went to the office of the defendant there and offered $500 for an option Dr. Thompson and informed him that she to purchase a one-half interest in said had previously executed deeds to the land in land and royalty; such option to be exer- question conveying 80 acres thereof to her cised within 9 months by the payment of daughter, Mrs. Kinney, and 80 acres therean additional sum of $3,500. Plaintiff de- of to another daughter, Mrs. Neuman, who clined to enter into any contract at the time, at the time had reconveyed the same to her, stating that she desired to consult her chil- and that their conveyances were in the posdren in regard to the matter. She and de-session of a Mr. Gilbert for her whenever she fendant Thompson had some conversation desired them. Whereupon the following inover the phone that night or the following strument was prepared, which plaintiff diemorning relative to such proposition; she tated and acknowledged and signed: still refusing to make any agreement for the sale of the property. On the next day de- "Statement of Julia A. Jones Concerning Home fendant Thompson again called upon her at the same place, stating that he was on his way to see an oil well upon the adjoining tract, and asked her to be ready upon his return to accompany him to the town of Cleveland, where they both resided. He came back from the well, and the plaintiff went stead. Range eight (8) East I. M., in Pawnee counts. "Section twenty, Township twenty-one (21), Oklahoma, containing 155 acres. The west half (W. 2) of the said land was deeded to Grace L Kinney and the east half (E. 2) to Virgie A tection. It was for a protection of an enormous Newman. The object, an assignment for proattorney fee. They gave me a deed which is in JONES v. THOMPSON 1141 the collection of what I considered an unjust| ants, and although she had been told that claim for attorney fee. I did not make this as a transfer of my interest, only for that reason. It was understood by the girls that I held the ownership of the land, while they held the naked legal title, and for my protection the girls made deeds back to me, which are with Mr. Gilbert and which I was to have the privilege of securing for the purpose of placing on record at any time. Mr. Gilbert understanding this and I trusting him fully in the matter. "Julia A. Jones." "Witnesses: "Berta Arnett. "S. C. Edmister. "State of Oklahoma, County of Pawnee, ss. "Before me, Berta Arnett, a notary public, in and for said county and state on this 27th day of March, 1912, personally appeared Julia A. Jones, to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that she executed the same as her free and voluntary act and deed for the uses and purposes therein set forth. "Witness my hand and notarial seal the day and year last above written. "[Seal] "My commission expires March 21, 1915." Berta Arnett, Notary Public. Immediately thereafter plaintiff accompanied the defendant Dr. Thompson to the office of Mr. Gilbert and procured said deeds and delivered them to him. Later defendant deposited to the credit of the plaintiff in the Cleveland National Bank $3,500, and the deed involved was delivered. Thompson thereupon conveyed to the deEmma M. fendant Mullendore a one-fourth interest in said property, he having been previously informed of the transaction with plaintiff and agreeing to purchase the same for $2,000. Wells upon the adjoining property were drilled into deeper sands, as were the wells upon the property in controversy, which greatly increased the value thereof, at the time of the trial in October, 1912; various opinions as to such value being offered, ranging from $20,000 to $80,000. she sold too cheap, yet she was satisfied. home when the instruments in question were executed, as well as a Mrs. Long, who called All the persons present at the Thompson there a short time thereafter and saw and talked with the plaintiff, and S. A. Bryant, vice president of the Cleveland National Bank, who received the deposit of the $500 check and conversed with the plaintiff at the time, testified that there was nothing unusual in her appearance or demeanor. among which are: this option contract, there were three produc- been drilled five or six years prior to said date XXII. "That the plaintiff at the time of the execution of the option contract had knowledge of the fact that one of these old wells that had knowledge of the fact that the Miller well had ducing gas and spraying oil, and with knowledge was being drilled to deep sand, and she had of this condition and without misrepresentation been drilled into the deep sand and was proupon the part of the defendant, she voluntarily executed this option." she deceived, nor was there any undue influence Plaintiff insisted that she had been drug- before the plaintiff, by her attorneys, Harris The cause had been regularly set for trial on October 8, 1912. On that and the day ged by some substance administered to her by & Nowlin, applied to the court for a postDr. Thompson or at his instance, in the food ponement until some day after October 15th, or drink of which she had partaken at his because of the alleged unavoidable absence home shortly before making the said contract of her counsel, Hon. S. H. Harris, whose and deed, the effect of which rendered her duties as general counsel for the Pioneer dizzy, partially blind, sleepy, and dull, and Telephone & Telegraph Company required affected her mentally to such an extent that, his attendance before the Corporation Comas expressed by her, she did not have mind mission of the state of Oklahoma in another enough to know what she wanted to do, and proceeding. Such application was supported after she reached her home she lost con- by the affidavit of the plaintiff, in which sciousness entirely; that in the execution of it is set forth that while she had nominally the contract and during the entire trans-employed the law firm of Harris & Nowlin action she was not acting of her own volition, but was dominated entirely by the defendant Dr. Thompson. Some days after the transactions involved plaintiff stated to E. G. Todd, mayor of the town of Cleveland, who desired to purchase an interest in the royalty derived from the land in question, that she had sold a portion thereof to defendants and did not care to sell any more. Shepherd, an acquaintance residing in CleveShe also stated to one land, that she had made the sale to defend to represent her, that in fact she had em- |