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the plaintiff, and that it contained the follow- , was sufficient evidence to sustain the verdict ing provision:

as to the amount of damages. "It is understood and agreed that the Guten- [2] 2. As to the second proposition the berg Machine Company guarantees the above plaintiff in error contends that the trial court described linotype to have been carefully repaired and to be capable of doing as good work

misdirected the jury as to the measure of as can be done with a new machine of the same damages. A portion of the instruction comkind, when in the hands of a competent work- plained of is as follows: man."

"Unless you should further find that at the Also that there were a number of defective time the mortgage and notes were given there parts, and that a considerable sum of money

was a contract entered into for the purchase of

certain property, and that under the terms of was soon expended on it for repairs and

that contract this plaintiff warranted that propnew parts, and that it was capable of doing erty to be of certain character and certain qualabout 50 or 60 per cent. as much work as a ity, and that there has been a breach of said new machine of the kind would do. That

warranty in that it was not of that quality, and

that breach is sufficient to reduce the value of the purchase price agreed to be paid was $2,- that property to the extent that there is not 250, and witnesses testified that its value in due now over the sum of $250, then in that the condition in which it was received was

event it would be your duty to find for the defrom $500 to $1,200, the jury evidently find

fendant. In other words, where a contract is

entered into and express warranty in the coning that it was of the value of $1,000.

tract that the property will be of certain charSection 2865, Revised Laws 1910, is as fol acter, the party who makes these warranties lows:

must live up to them, and, if the property

proves to be of a character different to that"The detriment caused by the breach of a war

that is, defective, and not of the quality warranty of the quality of personal property, is

ranted-and by reason of that the property is of deemed to be the excess, if any, of the value

less value that it would have been if it had been which the property would have had, at the time

of the character and quality warranted in the to which the warranty referred, if it had been

contract, then the party sued would only have complied with, over its * • • value at that time."

to pay what the property was actually worth if

he retained it." And the rule in this state, as well as the

As an abstract proposition of law, this ingreat weight of authority of the other states, I struction is clearly erroneous. It is tantais that the measure of damages for the breach

mount to saying that the measure of damof a warranty of the quality of personal prop

ages would be the difference between the purerty is the difference between the value of the

chase price and the actual value of the prop property if it had been as warranted and its

erty as received, and we have held the rule actual value with the defects. Wiggins V.

to be that the measure of damages is the Jackson, 31 Okl. 292, 121 Pac. 662, 43 L. R. diff.

difference between the value of the property A. (N. S.)' 153; Spaulding Mfg. Co. v. Holi

if it had been as warranted and its actual day, 32 Okl, 823, 124 Pac. 35; Spaulding Mfg.

value as received; but in this case the only Co. v. Cooksey, 34 Okl. 790, 127 Pac, 414;

evidence of the value of the machine, if it Burgess et al. v. Felix, 42 Okl. 193, 140 Pac.

had been as it was warranted to be, is the 1180; 35 Cyc. 468, and authorities there cit- purchase price. The jury must have found ed. But the purchase price is competent evi

that the purchase price was its value if it dence of the value of the article purchased as

had been as warranted. Therefore there is warranted. Burgess et al. v. Felix, supra; no distinction in this case between the pur35 Cyc. 468 471, and authorities cited.

chase price and the value of the machine ir In Burgess et al. v. Felix, supra, it is said:

it had been as warranted, and, so far as the "Proof of the purchase price of the mares by evidence here goes, there is no difference bethe plaintiff, and that proof not being controverted in any manner, is strong and convincing

tween the two rules for the measure of damproof of the value of the mares as warranted, ages. We therefore hold that while, as an aband, in the absence of other evidence as to the stract proposition of law, the instruction was value of said mares, the purchase price is prima

erroneous, as applied to the evidence in this facie their value as warranted.”

case, it did not prejudice the rights of the In the instant case there was no evidence

plaintiff. See authorities above cited. The of the value of the machine as warranted, ex

plaintiff requested an instruction which gave cept the purchase price of $2,250, and under

the true measure of damages, but the court the rule announced in the last-cited case that

refused to give it, and gave the one above was prima facie the value of the machine if

quoted instead, but we hold in this case that it had been as warranted in the contract of

it was not prejudicial error. sale. See, also, J. I, Case Plow Co. v. Niles

[3] 3. On the proposition that the court & Scott Company, 90 Wis. 590, 63 N. W. 1013;

admitted incompetent evidence over the obAsk v. Beck (Tex. Civ. App.) 68 S. W. 53;

jection of the plaintiff, it seems that the conBeard v. Miller (Tex, App.) 16 S. W. 655 ;

tract of sale included the following warTatum v. Mohr, 21 Ark. 349; C. Aultman &

ranty: Co. v. Ginn, 1 N. D. 402, 48 N. W. 336.

"It is understood and agreed that the GutenSo we hold that in this case there was suffi-| berg Machine Company guarantees the abovecient evidence for the jury to find the value described linotype to have been carefully repairof the machine as warranted, and, there be- ed ang

ed and to be capable of doing as good work as

can be done with a new machine of the same ing proof of the breach of warranty and the kind when in the hands of a competent work: value of the machine with its defects, there man,"

Evidence was admitted to the effect that! The letter was dated May 13, 1909, and the machine was defective, and in the hands the contract of sale was made on June 10, of a competent operator it would not do sub | 1909. We do not think the letter was comstantially as much work as a new machine. petent evidence in the case. When the same The plaintiff contends that evidence as to the was offered and objection properly made, the quantity of work that this machine would do record shows that the court asked this ques was incompetent under this warranty. While tion: the terms of the warranty are not as precise “Do you introduce this as being part of the as they could have been made vet we be. contract? Mr. Stewart: This shows the rela

tionship of the parties; that's a letter from lieve that they were intended to mean that the company explaining this transaction." this machine would do as efficient work as a

Whereupon the court overruled the objecnew one, and certainly the efficiency of the

tion and allowed it to be introduced. It machine would cover the amount of work

seems to us that the only purpose of introthat could be done on it or the speed with

ducing it was' to use it to supplement the which it would do its work. We think that

written contract of purchase. The contract no error was committed by the court in per

purported to be complete within itself, and mitting this evidence to be introduced.

could not be varied by extraneous evidence. The plaintiff further contends that the

But, after a careful reading of the letter, we court committed error in allowing the de

cannot see anything in it which could have fendant to introduce in evidence the fol

prejudiced the plaintiff in the minds of the lowing letter:

jury. It seems only to inform the purchaser "Chicago, Ill., May 13, 1909. as to how these secondhand machines were “Mr. R. G. Hardy, The Husonian, Hugo, Okl. taken apart, repaired, and put together, and ---Dear Sir: In accordance with our promise, we give you herewith proposition on our rebuilt

the terms of sale, etc., and contains nothing linotype machines.

which could tend to enlarge or extend the "We bave a number of model 1 two-letter lino warranty in the contract of sale, except the types that we are thoroughly rebuilding. These following: machines when received in our shop are completely taken apart and immersed in a chemical

| “Al rebuilt machines are guaranteed to do solution, which removes the paint and grease,

| as much work and as good work, in the hands enabling us to see the true condition of the ma- | OLå

of a competent workman, as can be had from chine. The parts of the machines are then as

a new machine." sembled in exactly the same manner as they Having held that the warranty in the conwere when being built originally. All worn parts are thrown away and are replaced by new

tract of sale that this machine is "capable ones.

of doing as good work as can be done with "We will sell one of these machines, with one a new machine" means also “as much work," magazine, one font of new two-letter matrices, we do not think the statement in the letter that you may select from the specimen book of

was different in effect from the warranty in the linotype company 30 new spacebands and universal mold, for $2,250.00, f. o. b. Chicago.

the contract. Therefore the admission of the Terms to responsible parties-$500.00 cash and letter in evidence, while error, was not prej. the balance in monthly 6% notes of $50.00 each, udicial to the substantial rights of the plainthe deferred payments being secured on the machine.

tiff, and therefore not reversible error. "The model 1 machine will carry all matrices Having arrived at the above conclusions, from 5 pt to 11 pt, inclusive. The Universal we recommend that the judgment of the trial mrold is exactly the same mold that is sent out I court be affirmed. at this time with new machines. It can be adjusted by the means of liners from 5 pt to 14

PER CURIAM. Adopted in whole. pt in body and to any measure up to and includ. ing 30 ems pica in length.

"We inclose herewith, a list showing the new and improved parts added to all rebuilt ma

(54 Okl. 354) chines.

REED V. MOORE. (No. 4797.) “We can furnish a heater for either gas, gasoline or coal oil.

Bus (Supreme Court of Oklahoma. Jan. 4, 1916.) “We also have a model 3 two-letter linotype

.. (Syllabus by the Court.) machine that will be in first-class condition. is machine will carry all matrices from 5 pt

1. LANDLORD AND TENANT 28 – LEASE to 14 pt, inclusive. We will thoroughly over FRAUD - ORAL AGREEMENT TO REPAIR haul it and sell it, with new matrices, new BREACH. spacebands, one magazine and Universal mold, Where a lessor agrees orally to make cer for $2,600.00 f. o. b. Chicago, taking part cash tain repairs and improvements on a building in and the balance on time.

the future, and the lessor and lessee enter into "All rebuilt machines are guaranteed to do as a lease contract in writing which makes no mer. much work and as good work, in the hands of a tion of such repairs, and the evidence shows competent workman, as can be had from a new a failure to comply with such oral agreement, machine.

that does not constitute fraud sufficient to set "We can make shipment of a rebuilt machine aside the written instrument, in the absence of at this time within two or three days from re

evidence that the lessor at the time he made ceipt of order.

such agreement did not intend to carry it out, "Hoping to hear further from you and to be or that he made it with intent to deceive the lavou avored witn your order for one of our machines. | lessee. which will have our best attention, we are, yours! [Ed. Note.-For other cases, see Landlord very truly, Gutenberg Machine Company, Will and Tenant, Cent. Dig. 88 82-84; Dec. Dig. S. Menamin, President. S-ES Enc."

m28.]

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2. EVIDENCE 442 - PAROL - WRITTEN | evidence at the time of its Introduction, LEASE-ORAL AGREEMENT FOR REPAIRS. I

but the court permitted it to be introduced, Parol evidence that, several days prior to the execution of a written lease, the lessor

then at the close of the evidence, upon moorally agreed to make certain repairs and im- tion, struck the same out, and rendered judgprovements on the building is not competent in

ment for the plaintiff for $150 and costs, and à suit brought on the written lease contract for rent, where the written lease purports to be

the defendant has appealed to this court. a complete contract and does not include any There are two contentions presented: First, agreement to make such repairs,

that the evidence ruled out showed that the [Ed. Note.- For other cases, see Evidence,

contract was procured by fraud; and, secCent. Dig. $$ 1874–1897; Dec. Dig. 442.]

ond, that it showed a failure or partial fail8. EVIDENCE ww443 - PAROL – WRITTEN LEASE-CONSIDERATION-ORAL AGREEMENT.

Nure of consideration.
Although such an agreement to make re-l [1] Some authorities held that a pr

[1] Some authorities held that a promise pairs may have been a part of the consideration, or expression of intention, when there is no it was a contractual act, and parol evidence

present intent to carry out same, and it is thereof was not competent, for if it were per-. mitted it would add by parol another term to

made with intent to deceive, will amount to the contract as written.

fraud; but it is not necessary for us to pass [Ed. Note.-For other cases, see Evidence, on that question. There is no evidence in Cent, Dig. 88 2048–2051; Dec. Dig. 443.)

this record that the deceased did not intend 4. EVIDENCE 443_PAROL-WRITTEN LEASE to make the repairs at the time he said he -CONSIDERATION-ORAL AGREEMENT. A ruling of the trial court striking out such

front ouch I would do so, or that he promised to do so in evidence, which was introduced over the objec order to deceive or mislead the defendant. tion of the ondosing party, is not error.

The promise was made several days before (Ed. Note.--For other cases, see Evidence, the contract was executed, and the deceased Cent. Dig. 88 2048–2051; Dec. Dig. Om 443.) 1

died some time after the contract was made; Commissioners' Opinion, Division No. 6. and if fraud can be predicated upon a false Error from Superior Court, Muskogee Coun- representation of intention as to a future act, ty; Farrar L. McCain, Judge.

the evidence here is not sufficient to show Action by Carrie A. Moore, administratrix such a false representation. of the estate of John J. Moore, against R. E. [2] We pass to the second question, as to Reed. Judgment for plaintiff, and defendant whether the evidence which was stricken out brings error. Affirmed.

was competent to show a failure or a partial Balley, Wyand & Moon, of Muskogee, for

| failure of consideration. The general rule plaintiff in error. Jay A. Anderson, of Mus

is well established that, where a contract has kogee, for defendant in error.

been reduced to writing, parol evidence is

not admissible to vary the terms of the writ'HATCHETT, C. Carrie A. Moore, as ad

ing. It is equally well established that where ministratrix of the estate of John i Moore | a recital of the consideration received is put deceased, as plaintiff, sued R. E. Reed, as de

ed gode in a written contract, and amounts only to fendant, in the justice of the peace court in an ack

pt in an acknowledgment of the payment thereof, Muskogee to recover $100 for rent on a cer

parol evidence as to the true consideration is tain building which the deceased, John J.

admissible, although it may tend to vary the Moore, had by written contract rented to writing in that respect. But when the stateReed for a term of one year for $50 per ment of the consideration is “itself an opermonth. The defendant answered by general ative part of a contractual act—as when in denial, and further that the deceased repre

the same writing the parties set out their sented to him orally that if he would sign

mutual promises as consideration for each the rental contract deceased would make cer

other-here the word 'consideration' signifies tain repairs and improvements on the build- a term of the contract," and parol evidence ing; that said repairs and improvements

is not admissible to alter or contradict it. were never made, and the contract was there

Wigmore, Ev. 8 2433; Alsterberg v. Bennett, fore procured by fraud and was without con

14 N. D. 596, 106 N. W. 49; Neville v. sideration. Judgment was rendered in the Hughes, 104 Mo. App. 455, 79 S. W. 735; justice of the peace court for the defendant. Howe v. Walker, 4 Gray (70 Mass.) 318; Mcand the plaintiff appealed. '

Ninch v. N. W. Thresher Co., 23 Okl. 391, 100 Thereafter the cause was tried in the su- Pac. 524, 138 Am. St. Rep. 803. perior court of Muskogee county without a [3,4] In the case at bar the defendant conjury. The defendant introduced evidence to tends that the deceased agreed orally to imthe effect that, several days prior to the date prove and repair the building, and that was on which the contract was executed, the de-a part of the consideration for the written ceased agreed with the defendant that he rental contract; that the agreement to rewould repair and improve the building in a pair was not performed, and the considerasubstantial way; that up to that time the de- tion failed to that extent. The plaintiff confendant had been paying $25 per month rent, tends that the written contract was complete and by the written contract the monthly rent in itself, and parol evidence was not compewas doubled. The plaintiff objected to this tent to vary its terms. The authorities seem

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

to hold that a written lease cannot be altered fendants, and plaintiff brings error. Re by proving by þarol that the lessor agreed to versed and remanded. make repairs and improvements. Johnson v.

J. B. Lucas and Britton H. Tabor, both of Witte (Tex. Civ. App.) 32 S. W. 426; McLean Cheer

Checotah, for plaintiff in error. Claude A v. Nical, 43 Minn. 169, 45 N. W. 15; Hall v. | Niles of

· Niles, of Checotah, for defendants in error. Beston, 16 Misc. Rep. 528, 38 N. Y. Supp. 979. We are of the opinion that parol evidence

HATCHETT, C. The plaintiff in error, that the deceased agreed to repair and im

Nancy Deere, née James, brought this suit in prove the building was incompetent, for that

the district court of McIntosh county it would tend to vary the terms of the writ

against Mary A. Neumeyer, and Mary A. ten contract of lease, and the fact that such

Neumeyer as executrix of the estate of Joha promise may have been a part of the consid

G. Neumeyer, deceased, and Frank Britton, eration did not take it without the rule, be

for the recovery of 80 acres of land, the same cause it was a contractual act, and to prove

being a portion of the surplus allotment of it by parol would be adding another term to

the plaintiff, and for the cancellation of a the written contract.

deed from the plaintiff to John G. Neumeyer, The plaintiff in her bill of particulars sues

a deed from said Neumeyer to Britton, and a for only $100, and the judgment is for $150.

mortgage from Britton back to Neumeyer to In her brief she offers to remit $50. We

secure the balance of the purchase price therefore recommend that the remittitur be

| which remained unpaid, and for rents on the accepted, and the judgment be reduced to

land during the time it had been in the pos $100, and the judgment affirmed.

session of the defendants. PER CURIAM. Adopted in whole.

The defendants in the trial court set up and relied upon a warranty deed executed by

the plaintiff to John G. Neumeyer on July (54 Okl. 377)

31, 1906. A demurrer was sustained to the DEERE V. NEUMEYER et al. (No. 5062.) | reply filed by the plaintiff, and by agreement (Supreme Court of Oklahoma. Jan. 4, 1916.) the cause was submitted on the petition and

the answer, and judgment was rendered (Syllabus by the Court.)

thereon for the defendants. 1. INDIANS Om 15-INDIAN LANDS-REMOVAL OF RESTRICTIONS-ORDER OF SECRETARY.

It appears that the plaintiff is a full-blood An order of the Secretary of the Interior Creek Indian; that the 80 acres of land sued removing the restrictions upon the alienation of for is a portion of her surplus allotment; that Indian lands, which order provides that same

on the 21st day of April, 1906, the Secretary shall not become effective until 30 days after date, does not have the effect of removing re

of the Interior made an order removing the strictions until the 30 days have expired. restrictions on the surplus lands of the plain

(Ed. Note.-For other cases, see Indians, Cent. tiff, to become effective 30 days from that Dig. $$ 17, 29, 34, 37-44; Dec. Dig. 15.) date. On April 26, 1906, Congress passed 2. INDIANS Om 15—SURPLUS ALLOTMENT-RE- an act relative to the Indian Territory, in MOVAL OF RESTRICTIONS - SUSPENSION OF which is the following provision (section 19): ORDER-OPERATION OF STATUTE.

"That no full-blood Indian of the Choctaw, Where the Secretary of the Interior made

Chickasaw, Cherokee, Creek or Seminole Tribes such order as to the surplus allotment of a

shall have power to alienate, sell, dispose of, or full-blood Creek Indian on April 21, 1906, same

incumber in any way, any of the lands alhad not taken effect on April 26, 1906, and the

lotted to him for a period of twenty-five years act of Congress of the latter date, extending re

from and after the passage and approval of this strictions upon the alienation of the allotments

act, unless such restrictions shall, prior to the of full-blood Indians for a period of 25 years,

expiration of said period, be removed by act of superseded the order of the Secretary of the In

Congress.” 34 Stat. 144, c. 1876. terior, and such order was indefinitely suspended and never took effect.

On July 31, 1906, the plaintiff, under the [Ed. Note. For other cases, see Indians, Cent. name of Nancy Robeson, joined by her husDig. 88 17, 19, 34, 37-44; Dec. Dig. Om15.] band, executed a warranty deed to the land 3. INDIANS Omm15 – SURPLUS ALLOTMENT -sued for to John G. Neumeyer, for a purportALIENATION-VALIDITY.

ed consideration of $800. While the petition A deed made on July 31, 1906, by a fullblood Creek Indian after the Secretary of the

alleges that the plaintiff signed the deed unInterior had made such an order on Åpril 21. der the belief that it was a lease, and had 1906, is absolutely void because of the act of never received the consideration mentioned Congress of April 26, 1906; and a subsequent therein, still the principal question, and the deed executed by the Indian's vendee, as well as a mortgage taken by such vendee to secure a

one which under our view disposes of this part of the purchase price of the land, are also

appeal, is whether the land in controversy void.

was restricted at the time the plaintiff exe [Ed. Note.-For other cases, see Indians, Cent.cuted the deed on July 31, 1906. Dig. $$ 17, 19, 34, 37-44; Dec. Dig. 15.]

[1] That the provision in the order of the Commissioners' Opinion, Division No. 6. Secretary of the Interior that the same Error from District Court, McIntosh County; should not become effective until 30 days aftR. C. Allen, Judge.

er its date (April 21, 1906) was valid is no Action by Nancy Deere against Mary A. longer an open question, as this court has Neumeyer and another. Judgment for de-heretofore decided that the Secretary had

the power to insert that provision in his order

(54 Okl. 766) of removal, and that thereunder restrictions MARKER V. GILLAM. (No. 5128.) are not removed until the expiration of the (Supreme Court of Oklahoma. Oct. 5, 1915. 30 days. Simmons v. Whittington, 27 Okl.

On Rehearing, Jan. 25, 1916.) 356, 112 Pac. 1018; Rogers v. Noel, 34 Okl. 238, 124. Pac. 976; Lanham et al. v. McKeel,

(Syllabus by the Court.) 148 Pac. 844.

| 1. ASSIGNMENTS Om 20,,129_DAMAGES 120

-CONTRACT OF SALE-BREACH OF BUILDING 12. 31 It is conceded that prior to the order CONTRACT-MEASURE OF DAMAGES. of the Secretary of the Interior the land in On the 28th day of March, 1908, Marker controversy was restricted, and the plaintiff made and entered into a written contract with could not sell the same. Under the above

Garretson, in which he agreed to, and did, sell

him a certain tract of land, for the consideration authorities the order of the Secretary of the

of $2,500, $1 cash in hand, and $2,499, to be Interior did not become effective until 30 paid within two years, subject to an existing days after its date. So that on April 26, mortgage of $1,200. On the 21st day of July 1906, when Congress passed the act placing

stolovine of the same year, Garretson assigned and de

livered said contract, for the sale and purchase additional restrictions upon the allotted lands of said land. to Gillam, as collateral security of full bloods, the original restrictions had for the faithful performance of a building connot been removed from this land. That Con- tract, in which Garretson undertook the congress had the power to, and did by such act,

struction of a house for Gillam. On the 28th

day of July, Marker sold the land to a man by extend the restrictions on the alienation of the name of Dillard for $6,500. Thereafter, allotted Indian lands, was decided by the Su-Garretson breached his contract with Gillam for preme Court of the United States in the case the construction of the building, whereby Gillam of Tiger v. Western Investment Co., 221 U. S.

was damaged in the sum of $1,195.79. The dif

ference between the price at which Marker 286, 31 Sup. Ct. 578, 55 L. Ed. 738, and Heck

agreed to sell the land to Garretson and its man et al. v. United States, 224 U. S. 413, 32 actual value at the time he sold it to Dillard, Sup. Ct. 424, 56 L. Ed. 820.

was $4,000. Held: First, that said contract of

sale was assignable; second, that Gillam, could The act of April 26, 1906, says that no full

maintain an action for damages against Marker blood of either of those tribes shall have for a breach of said contract of sale, without power to dispose of any of the lands allotted making Garretson a party to the suit; third, to him for a period of 25 years. Whether the

that Gillam's measure of damages would be the

amount of damages actually sustained by him by act in question reimposed restrictions on the

reason of Gillam's failure to keep and perform allotment of a full blood which was free the terms and conditions of his building contract. therefrom on the date the act was passed, is [Ed. Note. For other cases, see Assignments, not involved in this case and is not here de

Cent, Dig. $8 32-34, 213-219; Dec. Dig. 20,

129; Damages, Cent. Dig. $8 291-305; Dec. cided. The language of the act includes all

Dig. 120.) of the allotted lands of a full-blood member | 2. APPEAL AND ERROR 970, 1071 - FINDof the tribes named remaining in his hands INGS OF FACT-FOUNDATION FOR SECONDARY and from which restrictions had not thereto-| EVIDENCE-DETERMINATION OF SUFFICIENCY. fore been removed; and we conclude that, the

When evidence is introduced tending to order of the Secretary of the Interior not

show the loss of a written contract, for the pur

pose of laying a foundation to introduce sechaving become effective when the act of Con- ondary evidence, as to the contents of said congress was passed, this was restricted land tract, the trial court is required to pass upon the when said act took effect, and upon its tak sufficiency of such evidence, and its findings of ing effect on April 26, 1906, the order of the unless clearly erroneous, and it appears there

he fact thereon will not be disturbed by this court, Secretary of the Interior removing the re from that a manifest injustice has been done the strictions upon the alienation of this land complaining party. was superseded and indefinitely suspended,

nondod e d Note-For other cases.

anote: -
D

ses, see Appeal and

at and never went in force, and we conclude,

Dec. Dig. Om970, 1071.) therefore, that on July 31, 1906, when the

3. APPEAL AND ERROR 1005—VERDICT-Evplaintiff executed the deed to John G. Neu

ne ceea 1 Jou . NeusIDENCE. meyer, the land sued for was restricted, Where the evidence reasonably tends to susand the deed was absolutely void. It follows tain the verdict, and when the jury has been that the other instruments sought to be can- | properly instructed as to the law, and a motion

for new trial has been denied, and the verdict of celed are as to the plaintiff also void, and th

the prame also vold, and I the jury approved by the trial court, this court plaintiff is entitled to have same canceled will not invade the province of the jury to weigh and recover possession of the land sued for the evidence and disturb the verdict. While it is not binding on this court, and [Ed. Note.-For other cases, see Appeal and probably not even persuasive, yet there is sat

Error, Cent. Dig. 88 3860–3876, 3948–3950;

Dec. Dig. Om1005.] isfaction in knowing that the Interior Department arrived at the same conclusion on Commissioners' Opinion, Division No. 4. the question involved.

Error from District Court, Comanche CounWe therefore recommend that the judg-ty; J. G. Johnson, Judge. ment of the trial court be reversed, and the Action by E. O. Gillam against George cause remanded for further proceedings in Marker, and, defendant dying, Albert Markaccord with this opinion.

er, administrator of his estate, was substi

tuted. Judgment for plaintiff, and defendPER CURIAM. Adopted in whole. ant brings error. Affirmed.

ded and indo

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

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