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tion, and judgment is entered for $127.91 debt the property, whether for necessary repairs and $100 attorney's fees."

or otherwise. The court allowed defendants In presenting its assignments of error credit for the full nine months, or $180. It plaintiff urges that the defenses sought to is impossible from the evidence to determine be interposed, were they otherwise good, can- what amount, if any, should be credited not avail defendants in this case; and this upon the debt by reason of such rentals. is the only question we deem necessary to! The judgment should be reversed and the consider. The undisputed facts are that de- cause remanded, with directions to the trial fendants purchased the mortgaged property court to ascertain the exact amount due expressly subject to the mortgage of plain- plaintiff under the terms of its contract, to tiff. Under such circumstances they are require an accounting of the rental value of precluded from questioning the validity of the property while in possession of plaintiff', such mortgage on any of the grounds as- allow defendants credit therefor, less any serted by them to defeat its enforcement. sums actually expended for necessary repairs, This doctrine is established in this jurisdic- and render judgment accordingly. tion by Jones v. Perkins, 43 Okl. 734, 144 Pac. 183, and U. S. Bond & Mtg. Co. v. Keahey

PER CURIAM. Adopted in whole. et al., No. 5945, 155 Pac. 557 (not yet officially reported). In the latter case, Mr. Justice Hardy, speaking for the court said:

(54 Okl. 651)

CHENAULT V. MAUER MERCANTILE CO. "When one purchases land subject to a mortgage thereon, the land conveyed is effectually

(No. 6006.) charged with the incumbrance to the same effect | (Supreme Court of Oklahoma. Jan. 11. 1916.) as if the purchaser had expressly assumed the payment of the debt or had himself made a mort

(Syllabus by the Court.) gage on the land to secure it, and under such circumstances the purchaser is not allowed to 1. SALES Om6+CONTRACT OF SALE_OPTION. defend against the mortgage he has assumed to A contract worded as follows: "The seller pay on the ground that it is not valid against his agrees to sell and the buyer agrees to buy upon grantor; for having purchased the premises the terms as stated herein," is not an optional subject to the mortgage, he is precluded from as- contract upon the part of the buyer, but is bindsailing its validity. Jones et al. v. Perkins, 144 ing upon both parties. Pac. 183; 1 Jones on Mortgages, $$ 336, 744.

_[Ed. Note. For other cases, see Sales, Cent. Having purchased the equity of redemption in Dig. $ 156: Dec. Dig. 64.1 the mortgaged premises and agreed to take the land subject to the mortgage, the amount of the 2. APPEAL AND ERROR 173.- CHANGE OF mortgage indebtedness entered into the consider- CONTENTION-DEFENSE-SALES. ation therefor, and if he be permitted to defeat A party entered into a contract to purchase the mortgage on the ground of its invalidity, he a certain amount of goods by a certain date. would thus defraud his grantor and the mort-Sixty days before the expiration of said time gagee. This would be speculation upon the va- the seller shipped to the buyer the total amount lidity of a contract from which he had suffered of said goods. The buyer refused to accept the no barm, and would permit him to withhold same and, after the expiration of said time menmoney to which he had no right, and without tioned in the contract, suit was instituted upon any consideration. In theory he has deducted the account. The party set up as his defense the amount of the mortgage from the purchase that the contract gave him an option to purchase price, and it would clearly be inequitable to the goods by said date and was not binding upallow him to urge the invalidity of the mortgage, on him until he elected to exercise the same. and retain the amount thereof which was in Held, where the defense was based upon that effect furnished by his grantor, and not apply it ground alone in the trial court, he will not be to the discharge of mortgage. Selby v. Sanford | heard

Sanford heard for the first time to urge upon appeal that [7 Kan. App. 781) 54 Pac. 17; Green v. Hous- the goods were prematurely shipped. ton, 22 Kan. 38; Johnson v. Thompson, 129 LED Note

[Ed. Note.-For other cases, see Appeal and

For othe Mass. 398; Foy v. Armstrong (113 Iowa, 629] 85 N. W. 753; Trusdell v. Bowden, 47 N. J.

* Error, Cent. Dig. $$ 1079-1089, 1001-1093, Eg. 396. 20 Atl. 972: Fuller & Co. v. Hunt. 48 1090-1098, 1101-1120; Dec. Dig. Om 173.] lowa, 163; Brosseau v. Lowy [209 Ill. 405] 3. APPEAL AND ERROR 1027 - HARMLESS 70 N. E. 901: Hiner v. Whitlow [66 Ark. 121] ERROR-INTERPRETATION OF CONTRACT. 49 S. W. 353'[74 Am. St. Rep. 74]; Gerdine v. Ordinarily it is the sole province of the Menage (41 Minn. 417] 43 N. W, 91; Gregory court to interpret a contract introduced in eviv. Arms 548 Ind. App. 562) 96 N. E. 196; Idence: but who

dence; but where the court erroneously leaves Batts v. Middlesex Banking Co. (26 Tex. Civ. the interpretation to the jury, and the jury placApp. 515] 63 S. W. 1046."

es the correct construction thereon, the error of See, also, Higbee v. Ætna Bldg. & Loan

the court does not prejudicially affect the rights

of the complaining party. Ass'n, 26 Okl. 327, 109 Pac. 236, Ann. Cas.

[Ed. Note.-For other cases, see Appeal and 1912B, 223.

Error, Cent. Dig. $ 4033; Dec. Dig. Om 1027; It appears from the evidence that the Trial,' Cent. Dig. 124.] plaintiff in some manner had acquired pos

4. APPEAL AND ERROR 273 - PRESENTAsession of the mortgaged property nine

TION BELOW--INSTRUCTIONS GENERAL Exmonths prior to the trial, the rental value! CEPTION. of which is shown to be $20 per month. A general exception to the entire instrucThere is also the statement of its agent that

tions saves nothing for review here. he collected $110 rentals therefrom,. which

[Ed. Note.-For other cases, see Appeal and

Error, Cent. Dig. $$ 1590, 1606, 1620-1623, "went into the property." However, no show- 1625-1630, 1764; Dec. Dig. 273; Trial, ing is made as to how the same went into | Cent. Dig. 88 690, 965.]

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

Commissioners' Opinion, Division No. 4. , province of the court to construe and interError from County Court, McIntosh County; pret written contracts when introduced as Ben D. Gross, Judge.

evidence in the case; but even if defendant Action by the Mauer Mercantile Company, be correct that the court should have cona corporation, against G. S. Chenault. Judg strued the contract in the case at bar, yet, ment for plaintiff, and defendant brings er as we view it, the construction the jury plat ror, Affirmed.

ed on the contract was the proper one, and Charles R. Freeman, of Checotah, for plain

therefore the action of the court here comtiff in error. McLaury & Hopps, of Oklahoma

plained of, if error, did not prejudicially alCity, for defendant in error.

fect the rights of the defendant.

[4] The defendant next urges that if the

plaintiff was entitled to recover at all it · MATHEWS. C. The parties will be desig

could only recover the difference in the marnated here as in the trial court. On the 14th

ket value of the goods and the contract price day of May, 1910, plaintiff and defendant

for which they were sold to defendant, and executed a contract wherein it was stipulated

complains of the court's instruction on this that the plaintiff agreed to sell, and the de

point to the effect that if the jury found fendant agreed to buy, certain merchandise,

for the plaintiff that the measure of its damand the contract contained a clause to the

ages would be the contract price of the mereffect that the goods should be shipped "as

chandise in controversy. An examination of ordered out by December 30, 1911." The de

the record reveals that the only exception to fendant buyer having failed to "order out"

the court's instruction reserved by the de the merchandise, on October 30, 1911, the

fendant was a signed stipulation between the plaintiff seller shipped the same to the de

attorneys to the effect that a general excepfendant which the defendant refused to ac

tion may be reserved to all of the instruc cept, whereupon in June, 1912, the plain

tions given by the court. It has long since tiff instituted suit upon the account. The

become the settled law of this jurisdiction case was tried to a jury, which found for

that such an exception saves nothing for re plaintiff, and defendant prosecutes this ap

view here. peal.

[1] This brings us to the controlling propo [2] The main question in this case is wheth- sition in this case, and that is. Was the coner or not the written contract between the

tract an optional one? In interpreting this parties bound the defendant to purchase the

de contract we see'no room for argument. The merchandise mentioned in the contract by the

language used is clear and unequivocal, and said date of December 30, 1911, or merely

to the effect that the parties thereto bind gave him an option to purchase said mer

themselves in positive terms. The language chandise by said date at the price stated in

used therein is as follows: "The seller agrees the contract. Other questions arise in the

to sell, and the buyer agrees to buy, upon the case, but a decision on this point practically

terms as stated herein." If there had been decides the whole case; but we will discuss

an omission of the words, "the buyer agrees the assignments in the order in which de

to buy," then appellant's contention that it fendant presents the same in his brief.

was an optional contract upon the part of Defendant first complains that the plain

the buyer might be correct; but the buyer tiff shipped the merchandise in controversy

bound himself here in almost the same lan60 days before the expiration of the contract

guage that bound the seller. In all the cases and without any order from the defendant.

cited by appellant we find the contracts to If defendant had based his defense upon this

have been unilateral, and not bilateral, as is point in the trial court, it is possible he might

the contract under consideration. The only have been entitled to relief of some nature;

option the buyer was given here was the but the evidence in the case shows that de

right to order out the merchandise at such fendant informed plaintiff, prior to the ship

time as he might elect up to December 30, ment, that he would not comply with the

1911. contract or accept the merchandise. This

We recommend that the judgment be afbeing his state of mind we are unable to see firmed. how he could take advantage of the fact that the goods were prematurely shipped. No PER CURIAM. Adopted in whole. where in the record is it shown that the defendant rejected the merchandise on that

(54 Okl. 647) ground, but his only contention throughout THOMPSON, County Judge, v. STATE er rel the trial was that the contract was an op

FICKLIN et al. (No. 5807.) tional one, and that he was not bound by the (Supreme Court of Oklahoma. Jan. 11, 1916) contract to take the merchandise, unless he elected to do so."

(Syllabus by the Court.) [3] The defendant next complains of the 1. EXECUTORS AND ADMINISTRATORS C 20 action of the court in leaving to the jury the

APPOINTMENT OF ADMINISTRATOR-RIGHT OF

APPEAL-PARTIES. duty of interpreting a certain clause in the

Where an administrator is appointed by a contract in controversy. Ordinarily it is the county court, a party in interest who is not a party to the proceeding, but who is entitled by , James Welch, deceased, and Helen Welch, law to be heard therein, by making affidavit, who claimed to be the widow of said deceasgiving notice of appeal and tendering a solvent

ed, upon an appeal from an order of the counbond with sureties, the sufficiency of which said bond is unobjectionable, and thus duly complies ty court of Ottawa county, appointing J. S. with sections 6503 and 6505, Rev. Laws 1910, Cheyne as administrator of the estate of said is entitled to an appeal to the district court.

deceased. [Ed. Note.-For other cases, see Executors

A careful examination of the notice of apand Administrators, Cent. Dig. $8 83–105; Dec. Dig. Om 20.]

peal, the affidavit made therefor and filed by 2. MANDAMUS 57-REMEDY AGAINST COUN

said petitioners, shows that said notice of apTY JUDGE-APPEAL FROM APPOINTMENT OF | peal and affidavit were in strict accord with ADMINISTRATOR.

the requirements of sections 6503 and 6505, Where a judge of a county court in the ex. Rev. Laws 1910, and that at the time of filercise of probate jurisdiction refuses to comp with section 6513, Rev. Laws 1910, a party in

ing said notice of appeal petitioners tendered terested in a matter adjudged by said court, a bond in the amount fixed by the county where the party taking the appeal has fully com- judge of said county, which bond was in plied with sections 6503 and 6505, Rev. Laws strict conformity with section 6506. Rev. 1910, and tendered a bond, which is unobjectionable as to form, sufficiency, or solvency of

Laws 1910, and was un'objectionable as to sureties thereon, mandamus will lie to compel form and substance and solvency of the him to comply with said section.

sureties thereon. Said county court refused Ed. Note. For other cases, see Mandamus, to permit said appeal and to send to the clerk Cent. Dig. 88 68, 114-120; Dec. Dig. Om 57.)

of the district court of Ottawa county a cerB. MANDAMUS 163–PETITION-DEMURRER

tified copy of the order sought to be appealed EFFECT AS ADMISSION. The only defense that can be interposed to a

from, and of the matter, records, papers, and

rom, petition for writ of mandamus is by answer. proceedings in the case, as he was required to Where a demurrer is interposed to a petition for do by section 6513, Rev. Laws 1910. From writ of mandamus, the same will be treated as the order granting said writ of mandamus an answer and the allegations of the petition thereby admitted to be true,

" this appeal is prosecuted. (Ed. Note.-For other cases, see Mandamus, [1-3] Section 6503, Rev. Laws 1910, proCent. Dig. 88 341-343; Dec. Dig. w163.] vides: Commissioners' Opinion, Division No. 1. | fected by the decree or order, who was not a

“A person interested in the estate or funds afError from District Court, Ottawa County; party to the special proceeding in which it was Preston S. Davis, Judge.

made, but who was entitled by law to be heard Mandamus by the State, on the relation of

therein, upon his application, or who has ac

quired, since the decree or order was made, a E. D. Ficklin, administrator of the estate of

right or interest which would have entitled him James Welch, deceased, and another, against to be heard, if it had been previously acquired, Vern E. Thompson, Judge of the County may also appeal as prescribed in this article. Court of Ottawa County. From an order

The facts which entitle such person to appeal, granting writ of mandamus, defendant brings filed with the notice of appeal.”

must be shown by an affidavit which must be error. Affirmed.

Therefore it was the duty of said county Vern E. Thompson and E. C. Fitzgerald, judge to send to the district court of Ottawa both of Miami, for plaintiff in error. James county a certified copy of the order appealed S. Davenport, of Vinita, for defendants in from, and of the minutes, records, papers, error.

and proceedings in the cause, regardless of

whether or not there was any merit in the COLLIER, C. This is an appeal from an appeal, as to which he had no jurisdiction to order of the district court of Ottawa county, determine. awarding a peremptory writ of mandamus, Plaintiff in error demurred to the petition, directed to and commanding Vern E. Thomp- which demurrer was overruled. Section 4915, son, as county judge of said county, “to cer- Rev. Laws 1910, provides: tify to the district court all the papers and “No other pleading or written allegation is alfiles which he has in his court relating to lowed than the writ and answer; these are the the appointment of administrator in probate pl

pleadings in the case, and have the same effect, No. 641 of said county court of Ottawa coun

and are to be construed and may be amended in

the same manner as pleadings in a civil action; ty, the same being the appointment of an ad and the issues thereby joined must be tried, and ministrator in the matter of the estate of the further proceedings thereon had, in the same James Welch. deceased. wherein the county | manner as in a civil action.” court appointed J. S. Cheyne administrator, As will be seen, this statute does not proand that the said papers be certified and vide for raising an issue by demurrer; but transmitted to the district court of Ottawa where one has been interposed, it will be county as of the date the said petitioners fil-treated as an answer, admitting all the facts ed their affidavit, notice, and bond, and that stated in the petition, with a challenge of the bond of the said appellants be approved their sufficiency to authorize the writ. See as of the date it was presented to the county the following cases: Ellis et al. v. Armcourt for approval." Said writ was granted strong, 28 Okl. 311, 114 Pac. 327; Kerr v. upon the relation of E. D. Ficklin, who had State ex rel., 33 Okl. 111, 124 Pac. 284; Bd. been appointed administrator of the estate of Med. Examiners v. Gulley, 41 Okl. 63, 136

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

Pac. 1083; McLeod v. Graham, 6 Okl. Cr. 197,, the defendant was to guarantee the weigbts 118 Pac. 160.

at compresses, and the grade of said cotSection 6516, Rev. Laws 1910, provides: | ton should be determined by the classifica

"If the judge of the county court neglect or tions given by the plaintiffs when the cotton refuse to make or transmit such certified copies reached Dallas, Tex.; that when the cotton as are hereinbefore required to be transmitted to the clerk of the district court in cases of

| purchased from J. A. Farris during said seaappeal, he may be compelled by the district court son had been classed by them that the by an order entered, upon motion, to do so; and amount that had been paid on drafts drawn he may be fined, as for contempt, for any such by J. A. Farris was $1,921.80 in excess of neglect or refusal. A certified copy of such order may be served upon the county judge by the

the value of said cotton as classed. To this party or his attorney."

petition an answer was filed, setting up a This statute (section 6516), while not de- counterclaim on each cause of action. It nominating the order to be issued thereunder was denied that under the terms of said a mandamus, is a provision for an order in contract the plaintiffs were to arbitrarily effect the same as mandamus, being an order grade or classify said cotton or any part requiring to be done some particular thing thereof; that said cotton was to be graded therein specified, and which appertains to the and classed at its full or actual grade or office or duty of an official. Opinion of Mar- classification under the American standard shall, C. J., in Marbury v. Madison, 1 Cranch, of classification of cotton; that the defend137, 168, 2 L. Ed. 60.

ant was to be allowed the same grade or The court did not err in granting the per classification on cotton sold to plaintiffs as emptory writ.

plaintiffs put upon said cotton under the Finding no error in the record, this cause American standard of classification wher should be affirmed.

they resold the same; that notwithstanding

said verbal contract and agreement as afore PER CURIAM. Adopted in whole.

said to grade and classify all cotton accord

ing to the American standard of classifica(54 Okl. 594)

tion, and give the defendant full, true, and KING et al. v. FARRIS. (No. 5326.)

correct grades and classifications upon said (Supreme Court of Oklahoma. Jan. 11, 1916.)

standard classification, and to pay said de

fendant for said cotton under said classifica(Syllabus by the Court.)

tion; that these plaintiffs did falsely, knowAPPEAL AND ERROR 1012 – FINDINGS or ingly, and arbitrarily grade and classify COURT-EVIDENCE.

said cotton much lower than its actual and Where an action at law is tried to the court without the intervention of a jury upon contro

real value, had it been graded according to verted questions of fact, and there is any sub the American standard of classification for stantial evidence reasonably tending to support grading cotton, and much lower than the the findings of the trial court, such findings will

grade or classification placed upon said cot not be disturbed on the weight of the evidence. (Ed. Note.--For other cases, see Appeal and

ton by these plaintiffs when they resold the Error, Cent. Dig. 88 3990-3992; Dec. Dig. Om same, and that the returns made by said 1012.)

plaintiffs to this defendant as to the grades Commissioners' Opinion, Division No. 3.

of said cotton were false and untrue, and

not according to said American standard of Error from Superior Court, Pottawatomie

classification, and that said returns were County; George C. Abernathy, Judge.

known to be false, untrue, and incorrect at Action by S. W. King, Jr., and others, a

the time they were made by the plaintiffs to copartnership doing business as King, Col

the defendant, and that said returns and lie & Co., against J. A. Farris. Judgment

classifications of said cotton made as aforefor defendant, and plaintiffs bring error.

said were for the purpose of cheating and de Affirmed.

frauding the defendant out of his lawful Burwell, Crockett & Johnson, of Oklahoma and legitimate profits in said cotton; and City, for plaintiffs in error. L. G. Pitman, E. praying in said cross-petition for a judgment E. I ood, and J. D. Lydick, all of Shawnee, against the plaintiffs in the sum of $2,729.93. for defendant in error.

Upon a trial before a referee, a finding vas

made and judgment subsequently rendered RITTENHOUSE, C. This suit was insti- in favor of defendant, J. A. Farris, for $2.tuted upon 27 causes of action arising out 226.31. Motion for a new trial was overrul. of a contract between King, Collie & Co., of ed, and the cause brought here for review, Dallas, Tex. and J. A. Farris, for the cot- wherein the plaintiff's rely upon but two ton season of 1908-09, wherein it is alleged questions: First, “What the contract was? that H. B. Sherman was the agent of the and, second, “What was the grade of the cotplaintiffs, and that all purchases from J. A. ton?” Farris should be made through such agent | The trial court found that in the fall of at Shawnee at prices to be designated by 1908 the plaintiffs entered into an oral conhim, the cotton so purchased to be shipped tract with J. A. Farris, whereby the defendto compresses designated by plaintiffs; that/ ant was to purchase cotton during the sea. son of 1908 and 1909 at prices furnished by the cotton, and that he reduced the grade the plaintiffs, such cotton to be shipped to under the American standard of classificacompresses to be designated by plaintiffs, tion. Objections were made to this evidence, samples to be drawn from each bale and sent because the cotton was classed under the to W. H. Sherman, at Shawnee, Okl., drafts classifications contemplated by the contract; with bills of lading attached showing num- but the plaintiffs could not be heard to comber of bales and weight at compress to be plain, as the classifications were more famade upon such agent; that the defendant vorable to them than to the defendant. Had was to guarantee weights; that in final set-the grading been above the American standtlement the weights at the compress should ard of classifications, then the plaintiffs govern; that afterwards he was to furnish would have a just complaint. W. A. Thompan additional sample to be sent from the son, a witness for the defendant, also testicompress from each bale, and said cotton to fied that the cotton was graded according be classed according to the American stand to the American standard of classification, ard of classification, and the defendant in and N. B. Sherman testified that the cotton settlement was to receive the benefit of such he examined met the required test, and the classification under which they resold or re- drafts were paid upon such grades. Several shipped the same; that in addition thereto witnesses testified as to whether the cotplaintiffs were to pay the costs of exchange. ton was spotted or not. There was evidence It was further found by the court that dur- in support of each cause of action set forth ing said cotton season Farris bought 2,278 | in the counterclaim. bales of cotton, shipping the same in the The contention which was urged before the name of the plaintiffs to different compress- trial court, and which is advanced here, is that es; that he complied in all things with the grading of the cotton by the plaintiffs at the terms of his contract; that all cotton its office in Dallas is binding upon the defendpurchased by Farris was received by the ant. The trial court had before it the testiplaintiffs, and statements, called "out-turns," mony relative to the contract, it heard the showing the number of bales, weight, class, evidence of the plaintiffs as to how the cotton and price, were given to the defendant, un- was graded, and it also heard the evidence on der which out-turns he was made to appear behalf of the defendant as to how it was greatly in debt to plaintiffs, but that the said graded by him. There was a positive identiout-turns were false, and did not give the fication by the defendant and his witnesses proper classification as agreed upon-that is, of the grade and condition of each shipment the American standard of classification, and of cotton. This was not true as to the witthat said out-turns did not grade as shown nesses for the plaintiffs, as it was admitted by the evidence; that, if the plaintiffs had by each witness offered by the plaintiffs that classed the cotton in their out-turns to Far- they did not remember having graded the ris according to the shipping class given it, identical cotton in controversy, but merely they would have been largely indebted to the testified to the general system of grading, exdefendant; that the plaintiffs by letter in- plaining how they arrived at the classificaformed the defendant that they had given tion, and procured the balance of their inhim the benefit of their shipping class, but formation to which they testified from the the court found that the statement was not records in their office, not knowing whether true at the time when made, and the fail- they had personally graded the cotton or not. ure of the plaintiffs to produce the invoices While the evidence is by no means concluor copies of invoices under which they sive, and in some respects very unsatisfacshipped the said cotton, showing its class, tory as to fraud having been perpetrated, yet and the total failure of the plaintiffs to we feel that there was some competent evimake any explanation between their out-dence supporting the contention of the deturns and shipping class, rendered the evi-fendant that there was a mistake in the clasdence of the plaintiffs in support of their sification of this cotton, and the trial court petition almost worthless. The court also was justified in finding for the defendant. found that, under the contract as shown by This case was tried without the intervention the evidence, none of the plaintiffs' causes of a jury upon the controverted questions of of action were sustained.

| fact as to the proper classification of this The plaintif's contend that the evidence of cotton, and as there was evidence offered by J. A. Farris as to the grade given the cot- the defendant showing a classification sufton by himself and witness W. A. Thompson ficient to support the findings of the trial was incompetent, because the grade was not court, such findings will not be disturbed by made under the American standard of clas- this court on the weight of the evidence. sification, and therefore it is urged that We therefore conclude that there is evithere is a failure of sufficient evidence on dence in this record reasonably tending to this vital point to support the judgment of support the findings of the court, and the the trial court. This is not so. J. A. Farris judgment should therefore be affirmed. testified that he had in mind the American standard of classification when he graded' PER CURIAM. Adopted in whole.

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