ble by retaining the right to direct and control the time and manner of executing the work" (1 Lawson, Rights, etc., § 299), although the proprietor may inspect and supervise the work to the extent necessary to produce the result intended by the contract without incurring such liability (Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550; Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672, 37 L. Ed. 582; note in 65 L. R. A. 475). The usual test is whether the owner reserves the right of direction and control of the means and method of executing the work. Note in 76 Am. St. Rep. 382. The will of the owner is represented in the result of the undertaking, rather than in the particular methods or means by which it is to be accomplished. Cases where a limited or partial control is reserved to the employer or owner while the general control over means and methods is given to the contractor were referred to in Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990, where it was said: "It is not essential that one who engages a contractor to produce a given result should reserve, or should interfere and take, complete or exclusive control over all features of the work to render him liable as master of the contractor's servants; but the fact that he possesses a limited or partial control will not entail such a liability if the contractor is still left free to exercise his own will generally respecting the methods and means of accomplishing the result." Syl. 5. The principles governing this subject as generally applied are stated in Roddy v. Missouri Pacific Ry. Co., 104 Mo. 234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333; Larson v. American Bridge Co., 40 Wash. 224, 82 Pac. 294, 111 Am. St. Rep. 904; Note in 22 Am. St. Rep. 459, 463; note in 65 L. R. A. 445; Blake v. Thirst, 32 L. J. Exch. N. S. 189. See, also, St. L., Ft. S. & W. R. Co. v. Willis, Adm'x. 38 Kan. 330, 16 Pac. 728. 123 its option if a failure to observe its direc- The contractor does not appear to be in- It is true that the effect of a contract is not to be determined by the phraseology of detached parts, but by the entire instrument as a connected whole, and each part as afWithout further citation from the multi- fected by every other part, yet in view of the tude of authorities on this subject, it only re- provisions referred to and the spirit and purpose of the agreement as we interpret it in mains to apply these principles to the con the light of the business to be operated under tract in question. First as to time: The con tractor may have the benefit of the agree- it, it is held that Barrett is not an independment for five years or five days, or any short- ent contractor, and that the contract referHe red to is not a defense to this action. er period at the will of the company. must quit should "the working of the mines not be agreeable" to the company, with no further right than to load the product mined in 60 days. But this provision so destructive of independence is not limited in its effect to time merely, for the right to thus summarily annul the agreement necessarily carries with it the potency of compelling such means and methods as will make the conduct of the While the work agreeable to the company. contract does not state that Barrett shall observe the methods and use the means prescribed by the company or suffer forfeiture, yet the company may annul the contract at The appellant presents an argument for reversal on another ground, viz., that coal mining is recognized by our statutes as inherently dangerous, and therefore the owner cannot be relieved from liability, in a case like this, merely because the mine is operated by an independent contractor. In the view taken of the contract in question, it is not deemed necessary to examine this proposition. The judgment is therefore reversed, with directions to render judgment for the appellant against the Coal Company as provided in the stipulation. All the Justices concurring. (86 Kan. 620) SUTTER v. INTERNATIONAL HARVESTER CO. OF AMERICA. (Supreme Court of Kansas. March 9, 1912.) Appeal from District Court, Graham County. Action by Carl F. Sutter against the International Harvester Company of America. Judgment for plaintiff, and defendant appeals. Affirmed. (31 Okl. 433) MCKINNON v. LIVELY et al. (Supreme Court of Oklahoma. March 12, 1912.) (Syllabus by the Court.) (§ 301*) CRIMINAL LAW (§ WITNESSES IMPEACH1170%*) CROSS-EXAMINATION MENT. Where, on cross-examination in a replevin suit, plaintiff was compelled to answer, over ob Z. C. Millikin, for appellant. W. L. Sayers,jection, that he stood indicted for perjury, held, for appellee. PER CURIAM. Carl F. Sutter sued the International Harvester Company for damages alleged to have been sustained by its failure to deliver with promptness two headers and binders for which he had contracted. He also asked judgment upon a similar claim asserted by H. N. Gillen, which had been assigned to him. He recovered, and the defendant appeals. The facts are more fully stated in the opinion upon a former appeal. Sutter v. Harvester Co., 81 Kan. 452, 106 Pac. 29. Complaint is made of the refusal of the court to submit to the jury several specific questions asked by the defendant. We think no prejudicial error is shown in this regard. Some of the questions were objectionable, because they had reference to knowledge by the defendant that loss would result from delay. Some were objectionable because they related to the defendant's knowledge of the possible effect of the failure to deliver the machines by a specified date. The precise effect of others cannot be determined without the evidence, which is not before us. In any event, we do not discover that any substantial prejudice resulted to the defendant in this connection. In one instruction the amount of recovery was spoken of as measured by the number of acres of grain that could have been cut if the machines had been delivered promptly. It is argued that the word used should have been "would." In view of the entire charge, it does not seem that the jury could have been misled. As was mentioned in the opinion on the earlier appeal, the original petition referred only to the number of acres on which the loss was alleged to have occurred. By amendment reference was made to the total acreage owned by the plaintiff and Gillen. The jury were told that recovery could be had, according to the loss occasioned, whether or not it occurred on the acres described in the first petition. In one instance where this was said, the word "first" was omitted; but it does not appear upon the whole record that any prejudice resulted therefrom. A question was submitted to the jury substantially in this form: "For how many days prior to" July 3d could the grain have been harvested by cutting and binding with the machines used as binders? They answered: "Seven workdays." In answer to other questions they found that the machines could have been used as binders on June 16th, and until June 26th. The defendant maintains that these findings are inconsistent, because they indicate that the machines could have been used as binders from June 16th until July 3d, a period of more than seven days. This interpretation results from assuming that the jury meant that the machines could have been used as binders for seven workdays immediately prior to July 3d. What they seem to have meant was that prior to July 3d there was a period including seven workdays in which the machines could have been so used, namely, from June 16th to June 26th. The judgment is affirmed. that the error of the court violated his right to a fair trial. Held, further, that the sting of the error was not removed when he testified on re-examination that he had been informed through his counsel by the county attorney that there was nothing in that case, and that the county attorney would dismiss it. Cent. Dig. §§ 1043-1046; Error from District Court, Garvin County; R. McMillan, Judge. Action by G. G. McKinnon against Wheeler Lively and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded. J. S. Garrison and J. B. Thompson, for plaintiff in error. O. W. Patchell, Marion Henderson, and F. E. Rice, for defendants in error. TURNER, C. J. This is an action in replevin originally brought by G. G. McKinnon, plaintiff in error, against Wheeler Lively and Tom Lively, defendants in error, before a United States Commissioner for the Southern District, Indian Territory, to recover two hogs. There was trial to a jury and judgment for McKinnon and an appeal by defendants to the United States Court for the Indian Territory at Pauls was pending on Valley, where the cause After transfer the advent of statehood. thereof to the district court of Garvin county, the proceedings were such as to result On March 12, 1909, there in a mistrial. was trial to a jury and judgment for defendants, and plaintiff brings the case here. The error complained of is that the court erred in admitting incompetent evidence over objection. The ruling of the court complained of is specifically that plaintiff was compelled to answer on cross-examination certain questions, among which were: "Hadn't he had a number of lawsuits since he had been in the country? How many lawsuits he had in the courts now? If he had not had some lawsuits over at Wallville? If he didn't have some criminal cases pending in the court now? If he wasn't under indictment now, and to state what he was indicted for; and, when the witness answered that it was for perjury, counsel then asked if that indictment didn't grow out of a lawsuit. If he hadn't been run off from the country where he lived prior to moving to this country? If he wasn't a court citi fense, we do not understand it to be competent to discredit him by showing that he has been indicted"-citing a number of New York cases. zen; or, in other words, if he did not establish his right to citizenship through the courts; and if that didn't occur by reason of his running away? If he hadn't been charged with murder, and if there had been This error of the court was not cured a year since he lived in the Chickasaw Na- when on re-examination plaintiff testified tion that he hadn't had a lawsuit." This that he had been informed through his was an abuse of defendants' right of cross- counsel by the county attorney that there examination and deprived plaintiff of his was nothing in that case and that the counright to a fair trial. The cause having met ty attorney would dismiss it. This for the with one mistrial in the district court, stand- reason that it was plain to see the sting ing thus on an equipoise, we can readily of the error was not thereby entirely resee how the testimony of the plaintiff was moved. This should have been done as inin a measure discredited when he was com- dicated in City of Shawnee v. Sparks, 26 pelled to answer on cross-examination that Okl. 655, 110 Pac. 884, where we said, in he was then under indictment for perjury. effect, that the retraction of counsel and By thus discrediting plaintiff, presumably an instruction of the court to disregard the a principal witness, since the case turned objectionable matter would have been propupon the identity of the hogs, we can read- er. This was not done or attempted. The ily see how this kind of testimony might so affect his credibility as to unjustly tip the scales in favor of defendant. fact that the prosecution for perjury was still pending and might or might not be dismissed by the county attorney was not removed by this testimony from the minds of the jury. While we are loath to reverse this case, pending as it has been for some time, yet, plaintiff being entitled to a fair trial in the assertion of his rights to the property in question, and it being our duty to see that he gets it, the case is reversed and remanded for that purpose. All the Justices concur, except WILLIAMS, J., absent and not participating. In Slader v. United States, 1 Okl. Cr. 275, 98 Pac. 110, held, that for the purpose of affecting the credibility of witnesses it was improper to ask one on cross-examination if he had been indicted, arrested, or imprisoned, before conviction, for any offense whatever. Quoting approvingly from Glover v. United States, 147 Fed. 429, 77 C. C. A. 454, 8 Ann. Cas. 1184, the court, speaking to the subject of cross-examination said: "Whatever may be the limit in this respect, nothing short of a conviction of a crime is admissible for the purpose of impeachment. A mere accusation or indictment will not FARMERS' LOAN & TRUST CO. v. McCOY & SPIVEY BROS. (Supreme Court of Oklahoma. 1912.) (Syllabus by the Court.) (32 Okl. 277) March 12, 1. BILLS AND NOTES (§ 146*)-"NEGOTIABLE INSTRUMENT"-WHAT CONSTITUTES. As defined by sections 4626 and 4627, only, and without any condition not certain of fulfillment. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 361; Dec. Dig. § 146.* be admitted for the reason that innocent men are often arrested charged with a criminal offense. 1 Greenleaf on Evidence (16th Ed.) 461b, 461c, pp. 579, 580. The proper evidence of a conviction of a crime is the record thereof. See Baltimore & Ohio Railroad Company v. Rambo, 59 Fed. 75-80, 8 C. C. A. 6; Bise v. United States (recently Comp. Laws 1909, a "negotiable instrument" decided by this court) 144 Fed. 374, 74 C. is a written promise or request for the payC. A. 1 [7 Ann. Cas. 165]. The practice of ment of a certain sum of money to order or proving the former conviction by cross-ex-bearer, and must be made payable in money amination is recognized in many states, usually by statute, and occasionally by judicial decisions. 1 Greenleaf on Evidence (16th Ed.) par. 461b, note 8. But where this practice is recognized, the proper question would be as to whether or not the being interrogated had been convicted of a crime, and not whether he had been arrested or indicted." To the same effect is the cause of Van Bokkelein v. Berdell, 130 N. Y. 141, 29 N. E. 254. There the court said: "The defendant, upon his cross-examination, was asked if he was under indictment for perjury. This question was objected to, the objection overruled, and an exception taken. He was compelled to answer that he had Commissioners' Opinion, Division No. 1. been told so, but that he had not seen the Error from Oklahoma County Court; Sam papers. While a witness may be discred-Hooker, Judge. ited by showing his conviction for an of- Action by the Farmers' Loan & Trust Com For other definitions, see Words and Phrases, vol. 5, pp. 4767-4770; vol. 8, p. 7731.] 2. BILLS AND NOTES (§ 157*)-"NEGOTIABLE INSTRUMENT." A note given December 16, 1908, payable in installments three months apart, which contains a stipulation that, if it is paid within 15 days from date, a discount of 5 per cent. will be allowed, being uncertain as to the amount necessary to satisfy it at the time of its execution, is nonnegotiable. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 399, 400; Dec. Dig. § 157.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes pany against McCoy & Spivey Bros. Judg- ute, arriving at the conclusion that the court ment for defendants, and plaintiff brings error. Affirmed. Dumars & Vaught and R. E. Gish, for plaintiff in error. Welty & Price and Berry H. Randolph, for defendants in error. SHARP, C. The sole question necessary for determination of this case is whether or not the note sued on is a negotiable instrument. Omitting indorsements, the note is as follows: Oklahoma City P. O. Chicago, Ill., Dec. 16, '08. For value received we promise to pay to the order of the Equitable Manufacturing Company (Not Incorporated), Chicago, Ill., three hundred seventyfour dollars and forty cents ($374.40), at Chicago, Ill., in four installments, payable as below: [1, 2] The question was before the Supreme Court of the territory in Randolph v. Hudson, 12 Okl. 516, 74 Pac. 946, in which it was held that a note in the following language was nonnegotiable: "$275.00. Enid, O. T., May 15, 1894. Thirty days after date I promise to pay to the order of J. H. Thomas two hundred and seventy-five dollars ($275.00), with interest at the rate of twelve per cent. from date if not paid at maturity. Value received. N. Randolph." The opinion is by Irwin, J., and a number of authorities were there reviewed, including cases from California and South Dakota, decided under statutes the same as here, and, after reviewing these authorities and considering the statute, the court used this language: "From a careful consideration of all the authorities, we think the true rule as to negotiable paper is that certainty as to payor and payee, the amount to be paid, and the terms of payment is an essential quality of a negotiable promissory note; and that it is not sufficient that the amount necessary to liquidate the note on the day when due can be determined, but that certainty must continue until the obligation is discharged." The court proceeded to cite various authorities, including the Supreme Court of the United States, in Stutsman County v. Wallace, 142 U. S. 312, 12 Sup. Ct. 227, 35 L. Ed. 1018, on the question of the binding effect of the construction of an adopted stat was bound, in that instance, by the construction of the Supreme Court of the state of South Dakota of the statute then under consideration. The decision of the Supreme Court of that state deemed binding on the court was Hegeler v. Comstock, 1 S. D. 138, 45 N. W. 331, 8 L. R. A. 399. To this case we may add Merrill v. Hurley, 6 S. D. 592, 62 N. W. 958, 55 Am. St. Rep. 859; National Bank of Commerce v. Feeney, 12 S. D. 156, 80 N. W. 186, 46 L. R. A. 732, 76 Am. St. Rep. 594. While a different result was reached in the first-mentioned case, the rule adopted in Hegeler v. Comstock, supra, was followed. The court there observed, in both Merrill v. Hurley and First National Bank of Commerce v. Feeney, supra, that the court of that state had placed itself in line with the class of authorities which require such a degree of certainty that the exact amount to become due and payable at any future time could be clearly ascertainable at the date of the note, uninfluenced by any conditions not certain of fulfillment. In National Bank of Commerce v. Feeney, supra, the provision in the note destroying its negotiability was: "This note to be discounted at 12 per cent. if paid before maturity." True this case was decided after the adoption of the statute by the Legislature; but it will be noted that it is based upon the former decision of the court in Hegeler v. Comstock, decided before the adoption of the statute by the territory of 'Oklahoma. Other cases are This court has repeatedly held that a stipulation in a promissory note, providing for attorney's fees, etc., destroyed the negotiable character of the instrument, and thereby made it nonnegotiable. Cotton v. John Deere Plow Co., 14 Okl. 605, 78 Pac. 321, in which it was held that the instrument must not contain any condition that is not capable of certainty of fulfillment. Dickerson v. Higgins et al., 15 Okl. 588, 82 Pac. 649; Clevenger v. Lewis, 20 Okl. 837, 95 Pac. 230, 16 L. R. A. (N. S.) 410, 16 Ann. Cas. 56; Clowers et al. v. Snowden et al., 21 Okl. 476, 96 Pac. 596; Adams v. Seamans et al., 82 Cal. 636, 23 Pac. 53, 7 L. R. A. 224; Findlay v. Pott, 131 Cal. 385, 63 Pac. 694. On the authority of the foregoing opinions and the principle announced therein, we are of the opinion that the note in question was nonnegotiable. It should be kept in mind that the present Negotiable Instrument Act of June 11, 1909, is not involved in the present consideration, having been enacted subsequent to the date of the note in question. We find no error in the record, and conclude that the judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. (31 Okl. 436) CAMPBELL ▼. HARSH. (Supreme Court of Oklahoma. March 12, 1912.) (Syllabus by the Court.) 1. DEEDS (§ 47*)-ATTESTATION-CERTIFICATE OF ACKNOWLEDGMENT. An officer's certificate of the grantor's acknowledgment of the execution of a deed filed for record is a sufficient compliance with a requirement of attestation by witnesses to the grantor's signature by mark. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 104-110; Dec. Dig. §,47.*] 2. VENDOR AND PURCHASER (§ 129*)-TITLE OF VENDOR-SUFFICIENCY "PERFECT TITLE." A perfect title is one free from litigation, palpable defects, and grave doubts, and consists of both legal and equitable title fairly deducible of record. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 238-244, 249; Dec. Dig. § 129; Specific Performance, Cent. Dig. § 273. For other definitions, see Words and Phrases, vol. 6, pp. 5290, 5291; vol. 8, p. 7751.] 3. VENDOR AND PURCHASER (§ 129*)-PERFORMANCE BY PLAINTIFF-SUFFICIENCY OF TITLE. A purchaser under a contract to make a perfect title is not required to resort to evidence dehors the record. It is not sufficient that the title tendered is capable of being made good by the production of affidavits or other oral testimony. It must be good of record. And where specific performance is granted of a contract upon the tender of an abstract capable of being made good by the production of affidavits or other oral testimony only, held, that the purchaser should not have been required to accept such title, and that the court erred in granting specific performance. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 238-244, 249; Dec. Dig. § 129: Specific Performance, Cent. Dig. 8 273.] Error from District Court, Kay County; W. M. Bowles, Judge. Action by Thomas Campbell against L. C. Harsh. Judgment for defendant, and plaintiff brings error. Reversed, and remanded for new trial. Everest, Smith & Campbell, for plaintiff in error. A. W. Comstock and J. F. King, for defendant in error. | submitted four abstracts, which were rejected on advice of plaintiff's attorneys; that the title was shown therein to be defective in certain particulars (naming them); that by reason thereof the title to said land was unsafe, and by reason of defendant's failure to comply with his contract plaintiff was entitled to and had demanded a return of the $500 aforesaid, and to a lien upon said land to secure a return thereof; and closed with a prayer to that effect. For answer, defendant admitted the execution of the contract and the payment of the $500, but denied the breaches, as alleged. He further denied that the title tendered by abstract was defective, but alleged the same to be good, perfect, and indefeasible, and complied with the contract; that he is, and had always stood, ready, willing, and able to convey said lands to plaintiff with good title thereto as agreed, and thereby tendered plaintiff, attached thereto and a part thereof, a deed, together with said abstract and certain affidavits, and prayed that said title be by the court held perfect, and said deed to convey a good and perfect title; that plaintiff be required to accept same; and for specific performance of said contract, with judgment for the balance of the purchase money, etc. After demurrer to the answer filed and overruled, and reply thereto, there was trial to the court, and judgment for defendant as prayed. Plaintiff brings the case here. [1] After plaintiff had proved a prima facie case, assuming the burden of proof, de fendant, in order to show a tender of such title as he agreed to make, introduced in support of his abstract of title to the lands, and as the basis of his title thereto, four certificates of trust or "patents" from the therein, an Indian residing on the Otee resUnited States, in effect, that the allottee ervation, had been allotted the lands therein described, to be held by the United States in trust for him, his heirs, etc., for 25 years, after which a patent was to issue therefor to him or his heirs in fee, discharged of said trust, etc. He then, for the purpose of establishing the first link in the chain of his title, introduced in evidence, over objection, deeds from Maude E. Pipestem, John PipeTURNER, C. J. On June 28, 1907, Thom- stem, Charles Six Bits Pipestem, Mary H. as Campbell, plaintiff in error, sued L. C. Coonskin, and Maude E. Pipestem, each deed Harsh, defendant in error, in the district being in usual form, reciting the grantor court of Kay county. The petition substan- therein to be the heir or heirs of the allottee tially states that on March 23, 1907, they of the land therein conveyed, and acknowlentered into a certain contract in writing edged both before the Indian agent and a for the purchase by plaintiff from defendant notary public, and approved by the Secretary of a certain tract of land situate in Noble of the Interior, and duly filed for record. county for $13,704, payable $500 cash, which The specific objection to the introduction was paid, the remainder to be paid "upon of these deeds is that the separate deed of delivery of a deed conveying good sufficient Maude E. Pipestem, dated September 15, title to said premises, accompanied by an 1903, to the S. E. 4 of section 21, township abstract of title, showing perfect title"; 22 N., range 2 E. of the I. M., being allotthat possession had never been delivered; ment No. 16, reciting her to be "daughter that plaintiff had received no rents and and sole heir of Missouri Chief, deceased, profits; that on March 29, 1907, defendant an Otee Indian," the original allottee or For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |