C. K. Lucas, of Huntington, Ind., and Par-1 menter & Lenertz, of Lawton, for plaintiff in error. Johnson & Stevens, W. C. Henderson, and J. E. Michaleson, all of Lawton, for defendant in error. ROBBERTS, C. This case comes from the district court of Comanche county, and is an action to recover for breach of contract for sale of real estate. The record shows that on the 21st day of March, 1908, George Marker, who was the original defendant in the case below, was the owner of a certain quarter section of land in that county, and on that day he entered into a written contract with one Francis Garretson to sell to him said land at the agreed price of $2,500, subject to a mortgage of $1,200, payments to be made as follows: One dollar at the date and time of the execution of the contract, which was paid, and $2,499 on or before two years from the date of the deed, upon payment of which said Marker agreed to convey to said Garretson, or his heirs or assigns, said land, by good and sufficient warranty deed. The contract was acknowledged and delivered to Garretson, on the 11th day of June, 1908, and is as follows: On the 21st day of July, 1908, Garretson, who was still the owner of the contract, sold and assigned said contract to E. O. Gillam, who was the plaintiff below, and the defendant in error herein. The assignment of said contract, from Francis Garretson to E. O. Gillam, which was legally acknowledged, is as follows: "Know all men by these presents: That I, Francis Garretson, as the owner and holder of, and the person named in a certain article of agreement for deed to the northwest one quarter (4) of section six (6) in township one (1) north of range twelve (12) west, I. M. and containing one hundred and sixty acres of land, dated March 21st, 1908, by and between George MarkGarretson, party of the second part, subject to er, party of the first part, and the said Francis all of the conditions in said article of agreement, I, the said Francis Garretson, in consideration of one dollar in hand paid, by E. O. Gillam, and other valuable considerations hereinafter mentioned, do hereby assign all my right, title, and interest in and to said article of agreement to the said E. O. Gillam, upon the following conditions: That, whereas, the said E. O. Gillam has this 21st day of July, A. D. 1908, entered into an agreement with one J. F. Piercy and F. M. Garretson, the assignor herein, to build, furnish material and perform all labor necessary in constructing a certain dwelling as will more fully appear in said contract, and subject to the conditions in said contract. Now, if the said J. F. Piercy and F. M. Garretson shall perform and keep all of the conditions, terms and obligations on their part to be kept and performtions in said contract, then this assignment of ed by them according to the terms and condithis contract for deed shall be null and void, otherwise to be in full force and virtue. "In witness whereof, I, the said Francis Garretson, have hereunto set my hand on this 21st Francis Garretson." day of July, 1908. "Articles of agreement, made this 21st day of March, in the year A. D. 1908, by and between George Marker, party of the first part and Francis Garretson, party of the second part, witnesseth: That said party of the first part hereby covenants and agrees that if the party of the second part, shall make the payments and perform the covenants hereinafter mentioned, on his part to be made and performed, the said party of the first part will convey and assure to the party The plaintiff alleges that: of the second part, in fee simple, clear of all "The consideration for the execution and delivincumbrances whatever, by good and sufficient ery of the sale and assignment of the original warranty deed and abstract of title, the follow-contract of sale of said real estate, by the said ing lot, piece or parcel of real estate, with the Francis Garretson to him (E. O. Gillam), was appurtenances thereunto belonging, situate in the faithful performance by said Garretson of a the county of Comanche and state of Oklahoma, certain building contract, made and entered into to wit, the northwest quarter of section six (6), by and between Francis Garretson, J. F. Piercy, in township one (1) north, of range twelve (12) and E. O. Gillam, on the 21st day of July, 1908, west, I. M. And the said party of the second for the construction and erection of a certain part hereby covenants and agrees to pay to five-room concrete dwelling, including cellar, to said party of the first part, the sum of twenty- be built on lot 6 in block 56, in the city of five hundred dollars, and assume the $1200.00 Lawton, in accordance with the plans and specimortgage now on the land and in the manner fications made and prepared by one T. F. following: One dollar cash in hand paid, the re- Brodie, architect." ceipt whereof is hereby acknowledged, and the balance as follows, twenty-four hundred and Plaintiff further alleges, in substance, that ninety-nine dollars on or before two years, with he is, and at all times since he purchased interest at the rate of six per cent. per annum, payable annually or the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said land subsequent to the year 1907. And in case of the failure of said party of the second part to make either of the payments, or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and owing to the fact that we are unable to ascertain the amount of damages at this time, it is mutually agreed that all payments made on this contract shall be retained by party of the first part in full satisfaction and liquidation of all damages by him sustained, and said party of the first part shall have the right to re-enter and take possession of the premises aforesaid. It is mutually agreed that all the covenants and agreements herein contained shall extend to and he obligatory upon the heirs, executors, administrators, and assigns of the respective parties." said contract of sale of said land, on the 21st day of July, 1908, has been, the owner of said contract of sale, and entitled to all the rights and benefits thereunder. And as, and for a breach of said contract, the plaintiff alleges that: "The said F. M. Garretson failed to keep and perform the terms of said building contract and failed and neglected to construct and erect said house in accordance with the terms of said contract and deliver the same free and clear of all liens as provided therein, but that the said plaintiff was obliged to, and did in fact, pay out the sum of $1,195.79 on and prior to the 1st day of March, 1909, which said sums the said F. M. Garretson was by his contract bound to pay, but which said sums the said plaintiff was compelled to pay in order to discharge the liens and claims that were entitled to be liens upon said above-described building and the lot upon which the same was situated, and that by reason of the breach of the said contract by the said F. M. Garretson, the said plaintiff suffered damages in the sum of $1,195.79 with interest thereon at the rate of 6 per cent. per annum from the 1st day of March, 1909." For, and as a breach of the contract of sale of the land, the plaintiff alleges: "That before the time within which the plaintiff had the right to pay said sum of money and to receive such deed, the defendant, unlawfully and without the knowledge or consent of the plaintiff, breached his said contract and sold and transferred said land to one W. F. Dillard, for the sum of $6,500, which said deed was executed and delivered to said Dillard on the 28th day of July, 1908. That when said defendant conveyed said land to W. F. Dillard on the said date, defendant was aware and well knew that said contract for deed was in existence, and that the same was legally assignable, and defendant conveyed said land without the knowledge or consent of the plaintiff, and thereby breached his said contract for deed and by his said act defendant failed and refused, and still fails and refuses, to comply with his said contract to convey said land to said Francis Garretson, or to the plaintiff. That on the date when said deed was made to said Dillard by defendant, on, to wit, the 28th day of July, 1908, the said land was of value the sum of $6,500 and the said Dillard paid said sum for said land, as shown by said deed, which deed is of record in the office of register of deeds of Comanche county, Okl., in Book No. 94, page 61, Deed Records of said county, to which reference is hereby made, and the same is referred to and made a part hereof." The plaintiff further alleges that: "The difference between the actual value of the land and the price at which defendant agreed to, and did, sell said land to the plaintiff is $4,001 and that he was obliged to and did, on and prior to the 1st day of March, 1909, pay out the sum of $1,195.79, which said sums the said F. M. Garretson was by his building contract bound to pay, but which said sums the said plaintiff was compelled to pay in order to discharge the liens and claims that were entitled to be liens upon said above-described building and the lot upon which the same was situated; and that by reason of the breach of the said contract by the said F. M. Garretson, the said plaintiff suffered damages in the sum of $1,195.79, with interest thereon at the rate of 6 per cent. per annum from the 1st day of March, 1909." Wherefore plaintiff prays for damages, because of the breach of both of said contracts, in the sum of $1,195.79, with interest at 6 per cent. from the first day of March, 1909. A demurrer was filed to the petition, which was overruled and exceptions saved. The principal question raised by the demurrer is the defect of parties, which will be considered hereafter. The defendant answered first by general denial, and as a second and further defense set up many other matters, which amount mostly to specific denials, and would be included in the general denial, and will not be necessary to mention here, except the question of misjoinder of parties, or rather, the failure of plaintiff to make E. O. Gillam, the vendee in the original contract of sale, a party to the action. We will say, however, that all questions raised by the answer have been fully considered. The case was tried to a jury, and verdict and Judgment in favor of plaintiff for $1,195, 154 P.-23 and interest, as damages. Motion for new trial was overruled by the court, and defendant brings error. It appears from the record that the defendant, George Marker, died after the commencement of the suit, and on suggestion of his death, Albert Marker, the administrator of his estate, was substituted as defendant below, and is plaintiff in error herein. To obtain a reversal of the case, counsel for plaintiff make 33 assignments of error, but in their arguments, as stated in their briefs, they group them into three propositions in the following language: "There are three main points involved in this case. The first is that a building contract with specifications was the basis of the cause of action that Gillam had against Garretson, and for which he was trying to hold plaintiff in error liable, and the specifications were not introduced in evidence, nor sufficient grounds laid for the introduction of secondary evidence, and it was never attempted to prove the contents nor terms of the specifications. The second is that Garretson was a necessary party to these proceedings; he being the assignor of the contract for deed to Gillam as security for the faithful performance of the building contract. The third is that the undisputed evidence in the case shows that Garretson and Piercy had a building contract with Gillam, with specifications attached, whereby they were to build and furnish the material and complete a house according to the contract and specifications; that Garretson, to secure the faithful performance of said building contract, assigned as collateral security the contract for deed; that Garretson and Piercy defaulted on their contract to build, but the amount of the default was never ascertained in evidence is insufficient to sustain the verdict, an action they were parties to; therefore the and judgment should have been for defendant." [2] The first general error complained of is the failure of the plaintiff to produce and introduce in evidence the written plans and specifications describing the material and manner in which the building referred to in the assignment contract should be constructed, and the admission of secondary evidence as to said plans and specifications without proper foundation therefor. The answer to that assignment is that the record shows some evidence, at least, that the written plans were lost. The trial court passed upon the sufficiency of that proof; and, under the well-established rule, his findings of facts, upon which the secondary evidence was admitted, will not be disturbed by this court, and for that reason that contention cannot be sustained. [1] The second contention of counsel is that Garretson, the vendee in the original contract of sale, who was also the assignor of said contract, was not made a party to the suit. That proposition must stand or fall upon the question as to whether he was a necessary party to the action, which, as we view it, must be answered in the negative. The contract of sale was unquestionably assigned by Garretson to Gillam, as collateral security for the faithful performance of the building contract. Gillam was the absolute owner of the contract, and his title could only be defeated upon full completion of the building, according to the terms of the contract. Garretson's interest was only an equity of redemption, or such surplus, if any, that might be left after paying whatever damage, Gillam, as the assignee, might sustain by failure to complete the building. This case comes clearly within the rule laid down in C., R. I. & P. Ry. Co. v. Bankers' Nat'l Bank, 32 Okl. 290, 122 Pac. 499, and is decisive of the question in hand. In that case, Simpson assigned to the bank, as collateral security, his claim against the railway company for damages on account of injuries to freight received by it in transportation under a written contract. The amount of the claim exceeded the face of the debt. The bank brought suit in its own name without joining Simpson. The court held that the claim was assignable, and that the bank could maintain an action thereon, in its own name, and that Simpson was not a necessary party. The language used in that case, applicable here, is as follows: and it was agreed that the proceeds of the judg ment should be applied in payment of the indebtlien which had attached to the judgment. The edness, and to the discharge of an attorney's assignment was absolute, and is such as to vest in the assignee the whole legal title. He had judgment that he could bring an action in his such a beneficial interest in the proceeds of the own name, without joining other parties, who by collateral agreement might be entitled to a share of the proceeds. Under section 28 of the Code, a "person with whom or in whose name a conit is provided that an action may be brought by tract is made for the benefit of another, * without joining with him the person for whose benefit it is prosecuted." The assignee was authorized to receive the proceeds of the judgment, and the assignment is such as to afford complete protection to the plaintiffs in error against a second action by other persons interested in the Proceeds of the judgment, and to whom the assignee may be required to account. The plaintiffs in error were not limited or cut off from any defense by reason of the assignment, and the absence of parties to whom the assignee must account cannot cause any future embar rassment to the plaintiffs in error. In Williams v. Norton, 3 Kan. 295, it was held that where terest in the proceeds of the same, and with an a note was assigned to one with a beneficial inunderstanding that he was to receive the money "The first error assigned is that, as the as- on it, such person was the real party in intersignment was intended as collateral security, est, within the meaning of the Code, and might it did not vest in the plaintiff such an interest sue in his own name, although he was not entias would permit the plaintiff to maintain the tled to apply to his own use the whole of the action in its own name, and that Simpson was proceeds. Allen v. Brown, 44 N. Y. 228; Pom. a necessary party in the case. We do not agree Rem. Sec. 132. The action was properly brought with this contention. In Minnetonka Oil Co. v. in the name of the assignee, and no prejudice Cleveland Vitrified Brick Co., 27 Okl. 180, 111 could result to the plaintiffs in error by his Pac. 326, Mr. Justice Williams, in delivering failure to join other parties interested in a part the opinion of the court, says: "The more seri- of the proceeds of the judgment, or by his failous question in this record to determine is wheth-ure to allege his liability to them.' er the contract was assignable. At common "It is true here, as in the case of Walburn v. law no chose in action was assignable. In equity, however, every chose in action, except a tort, was assignable, but subject to all equities that might be set up against it. McCrum v. Corby, 11 Kan. 467 (2d Ed. 353); Kansas Midland Railway Co. v. Brehm, 54 Kan. 751, 39 Pac. 690; Barringer v. Bes Line Constr. Co., 23 Okl. 131, 99 Pac. 776, 21 L. R. A. (N. S.) 597; Glenn v. Marbury, 146 U. S. 499, 12 Sup. Ct. 914, 36 L. Ed. 790. Under our statute, every chose in action, not founded upon a tort, is assignable, and right of action is conferred upon the assignee. See section 4224, Wilson's Rev. & Ann. St. 1903; St. Okl. 1893, § 3898; K. C., M. & O. Ry. Co. v. Shutt, 24 Okl. 96, 104 Pac. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255.' 2 "Simpson's claim against the defendant, not arising out of a pure tort, was assignable. Wilson's Rev. & Ann. Stat. 1903, §§ 4163, 4224 (Comp. Laws 1909, §§ 7349, 5558); K. C., M. & O. Ry. Co. v. Shutt, 24 Okl. 96, 104 Pac. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255; 2 Wilson's Rec. & Ann. St. 1903, § 4226 (Comp. Laws 1909, § 5560), provides: 'An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Of ficers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.' Chenault, supra, that a recovery by the plaintiff is a complete protection to the defendant against any other claim which Simpson might assert, and that any defense which it might urge against Simpson it might likewise urge against the plaintiff. While there is some conflict in other jurisdictions as to whether the assignee may sue when the assignment is intended merely as collateral security (4 Cyc. 99-101, and notes), we think the previous decisions of this court, and of the Supreme Court of Kansas construing our statute, are sufficient to establish the right to such an assignee to maintain the action without joining the assignor." It must be apparent from the foregoing case, and authorities therein cited, that Garretson was not a necessary party, and there was error in the court so holding. [3] The third contention is that: "The evidence in the case shows that Garretson and Piercy had a building contract with Gillam, with specifications attached, whereby they were to build and furnish the material and complete a house according to the contract and specifications; that Garretson, to secure the faithful performance of said building contract. assigned as collateral security the contract for deed; that Garretson and Piercy defaulted on their contract to build, but the amount of the default was never ascertained in an action they were parties to. Therefore the evidence is insufficient to sustain the verdict, and judgment should have been for defendant." "In construing this statute before it was adopted by us, the Supreme Court of Kansas, in Walburn v. Chenault, 43 Kan. 352, 23 Pac. 657, in deciding that the assignee of a judgment against a railroad company could sue thereon in his own name, notwithstanding that a beneficial interest was reserved to third persons, says: "The consideration for the assignment was a large indebtedness of Tiernan to Chenault's rule has been established and followed in a great many cases in this court. We might further add here that we have carefully gone over the briefs and record in this case, and are entirely satisfied that the verdict and judgment are fully sustained by the evidence. Many questions have been raised by counsel for plaintiff in error, and the case has been briefed and argued with much more than ordinary care and ability, and the writer of this opinion has given them all consideration, but it must be apparent that it would be impracticable for the court to discuss each one separately. Upon full consideration of the whole case, we are of opinion that no prejudicial error has been committed, and that it should be affirmed. On Rehearing. The judgment in the lower court was in favor of plaintiff for $1,195, with interest at the rate of 6 per cent. per annum, from the 1st day of March, 1909. That judgment was affirmed by this court on the 5th day of October, 1915. On motion for rehearing, the original opinion is modified in this: The judgment in the district court is reduced to the sum of $1,080, to draw interest at the rate of 6 per cent. per annum from the date thereof, which was January 27, 1913. The case is, in all other respects, affirmed and further rehearing denied. 1. PLEADING 166 IN ANSWER. New matter in an answer, which does not constitute a defense, does not require a reply. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 3212-328; Dec. Dig. 2. PLEADING 343 ANSWER 166.] REPLY JUDGMENT ON PLEADINGS. An allegation in an answer that the plaintiff, in an action by an assignee upon a promissory note, did not pay the defendant or any one else anything for the note, does not constitute a defense if true, and judgment on the pleadings should not be granted on the ground that no reply was filed. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1048-1051; Dec. Dig. 343.] Commissioners' Opinion, Division No. 6. Error from District Court, Osage County; R. H. Hudson, Judge. Action by the Farmers' & Merchants' Bank of Duke against J. A. Owens. Judgment for plaintiff, and defendant brings error. Affirmed. Robert S. Stuart, of Pawhuska, for plaintiff in error. Jos. D. Mitchell, of Pawhuska, and Robinson & Hamilton, of Altus, for defendant in error. HATCHETT, C. The Farmers' & Merchants' Bank of Duke brought this suit in the district court of Osage county against J. A. Owens, upon a promissory note executed by the defendant, Owens, to the Duke State Bank of Duke, alleging that after the execu tion of said note the Duke State Bank sold, assigned, and transferred the same to the plaintiff. The defendant answered as follows, omitting the caption: "Comes now the defendant, J. A. Owens, and in answer to petition of plaintiff filed herein, alleges and states that the defendant denies each and every allegation contained in the plaintiff's petition except such as are hereinafter admitted. The defendant admits that he executed the note sued upon and set forth in plaintiff's petition. legal holder and owner of said note, or that the "The defendant denies that the plaintiff is the same was ever legally transferred or assigned to said plaintiff. "For a further defense the defendant alleges that the plaintiff paid nothing for said note, and the plaintiff for said note to this defendant or that no consideration whatsoever passed from any other party. (Italics ours). "Wherefore the defendant having fully answered prays that the plaintiff take nothing by hence with the costs herein expended." this action, and that the defendant be dismissed, The cause thereafter came on for trial, and the defendant, Owens, moved for judgment on the pleadings for the reason that no reply had been filed by the plaintiff to the answer. The court overruled the motion for judgment on the pleadings, proceeded with the trial, and judgment was rendered for the plaintiff, and the defendant appealed. The only question presented is whether or not a reply was necessary to the answer filed The plaintiff in error contends that the following paragraph of his answer: "For a further defense the defendant alleges that the plaintiff paid nothing for said note, and that no consideration whatsoever passed from the plaintiff for said note to this defendant or any other party" was new matter and required a reply, else it should have been taken as confessed, and judgment entered for him in the trial court. [1, 2] It will be noticed that this is not a plea of want of consideration when the note was executed by the defendant, Owens, to the Duke State Bank, but it is a plea that the plaintiff, the Farmers' & Merchants' Bank of Duke, paid nothing for the said note either to the defendant or any other person. Section 4779, Revised Laws of Oklahoma 1910, is as follows: "Every material allegation of the petition, not controverted by the answer, and every material troverted by the reply, shall, for the purposes of allegation of new matter in the answer, not conthe action, be taken as true. * But where the new matter alleged in the answer does not constitute a defense to the action, then it does not require a reply West v. Cameron, 39 Kan. 736, 18 Pac. 894; Hickey v. Anheuser-Busch Brewing Ass'n, 36 Colo. 386, 85 Pac. 838. So if the above-quoted paragraph of the defendant's answer did not constitute a de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fense to the action, then no reply was necessary. The said paragraph amounts to an allegation that the plaintiff did not pay anything for the assignment of the note from the Duke State Bank to it. If this were a suit between the two banks upon the assignment, then the question of consideration might be material; but it is a suit between the assignee and the maker of the note, and so far as the latter is concerned, it is not material whether the plaintiff paid anything for the note or not just so the plaintiff was the legal owner and holder thereof. Geisreiter et al. v. Sevier, 33 Ark. 522; Shane et al. v. Lowry, 48 Ind. 205; Musselman et al. v. Hays, 28 Ind. App. 360, 62 N. E. 1022; Gould v. Leavitt, 92 Me. 416, 43 Atl. 17. So, admitting the truth of the paragraph of the answer in question, that the plaintiff did not pay anything for the said note, that would not have constituted a defense, and therefore it was not necessary for the plaintiff to file a reply thereto. We conclude, therefore, that the action of the trial court in overruling the motion of the defendant for judgment on the pleadings was correct, and recommend that the judg ment be affirmed. PER CURIAM. Adopted in whole. (54 Okl. 779) CITY OF ARDMORE v. SAYRE. (No. 5176.) (Supreme Court of Oklahoma. Oct. 12, 1915. Rehearing Denied Jan. 25, 1916.) (Syllabus by the Court) 1. OFFICERS 7-REMOVAL OF APPOINTEE APPOINTING POWER. who was in actual possession of it, under color of title. Dig. § 61; Dec. Dig. 39. First and Second Series, De Facto Officer.] Where one person is holding an office by le de jure, the mere fact that another person may gal appointment, and claiming to be such officer take possession of said office, and perform some of the duties and functions of said office, under a pretended appointment by an officer or public of the statute, and without any color of right, board, or body acting against a plain provision power, or jurisdiction to remove the de jure officer, or to appoint such pretending officer, such pretended appointee is not a de facto offcer, for the reason that, under such circumstanc es, there cannot be two different officers, de jure and de facto, in possession of an office at the same time, where one incumbent only is provided by law." Corporations, Cent. Dig. §§ 324, 325; Dec. Dig. [Ed. Note.-For other cases, see Municipal 147.] 5. OFFICERS 95-DE JURE OFFICER-RIGHT TO SALARY-PAYMENT TO USURPER. The rule that, where the salary of an office is paid to a de facto officer, this defeats the right of the de jure officer to recover the legal salary of such office, does not apply to a mere usurper of said office or one pretending to hold such office without any color of title thereto. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 134, 139; Dec. Dig. 95.] 6. PLEADING 290-ALLEGATIONS NOT DENIED UNDER OATH-APPOINTMENT AND AuTHORITY OF OFFICER-ADMISSIONS. In all actions allegations of appointment or authority of a public officer shall be taken as true, unless the denial of the same be verified by the contending party, his agent or attorney, and such allegations will be construed as stating that such officer is a duly and regularly authorized officer, with full power, right, and authoroffice; and the failure to deny such allegations under oath will be taken as an admission of the title to such office as alleged, with full power and authority to perform the duties and functions thereof. Where an officer holding under appoint-ity to perform the duties and functions of such ment, is guilty of malfeasance or maladministration in office, as a general rule, the appointive power carries with it the inherent power of removal, unless prohibited by law. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 8, 9; Dec. Dig. ~7.] 2. MUNICIPAL CORPORATIONS CERS-POWER TO REMOVE. 155-OFFI Where a city charter provides for an officer, known as city engineer of said city, and also provides that "said engineer shall be appointed by the mayor, by and with the consent. of the board of city commissioners, and shall hold his office for a term of two years, unless sooner removed, as provided in this charter," and said charter contains no provision for the removal of officers, held, that the fact that the charter fails to provide for the removal of city officers is by implication an inhibition upon the power of the mayor and board of commissioners to remove the city engineer of such city from office. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 342-345; Dec. Dig. ~ 155.] 3. OFFICERS 39-"DE FACTO OFFICER." An "officer de facto" is one whose acts, though not those of a lawful officer, the law, up on principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where such duties and functions of the office are exercised by one [Ed. Note.-For other cases, see Pleading, Cent.Dig. §§ 859-863, 8862; Dec.Dig. 290.] Commissioners' Opinion, Division No. 4 Error from District Court, Carter County; S. H. Russell, Judge. Action by H. H. Sayre against the City of Ardmore. Judgment for plaintiff, and defendant brings error. Affirmed. F. M. Adams, of Ardmore, for plaintiff in error. Potterf & Walker, of Ardmore, for defendant in error. ROBBERTS, C. This action was commenc ed in the district court of Carter county by H. H. Sayre, defendant in error herein, against the city of Ardmore, plaintiff in error, to recover the sum of $1,500 alleged to be due him as one year's salary as city engineer of said city. On motion of plaintiff for judgment on the pleadings, the court rendered judgment against the city, and in favor of the plaintiff, for the full amount claimed. |