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gle of about 45 degrees. The distance on a line from the edge of the company's right of way to the center of its track is 50 feet, but following the meanderings of the dirt road, after it enters upon said right of way, the distance is 90 feet. On the day of the injury plaintiff was driving westward on this road, but, owing to an intervening orchard and locust grove on his right, failed to see the approaching train on the company's road, as it sped southward, until after he had driven his team upon the right of way and to within a short distance of the crossing. At that time, discovering its approach, he whipped up and sought to cross ahead of the train, when a rear wheel of his wagon was caught by the pilot, and he was thrown out and injured. His suit is upon the theory that he is entitled to recover upon proper application of the doctrine of the last clear chance. At the close of the testimony, the company requested the court to instruct peremptorily for defendant, which was refused, and this is its first assignment of error. In support of this contention, it is urged "that there was no proof offered by plaintiff to show that after his position of peril was discovered the train could have been stopped by defendant in the exercise of ordinary care and the injury thereby averted." In other words, that there was no evidence reasonably tending to prove that the negligence of the company was the proximate cause of the injury.

feet apart. The train consisted of four cars and an engine of a total length of 270 feet, and was running about 25 miles per hour when the brake was applied. Although both fireman and engineer testify that the break was immediately applied at an estimated distance of between 400 and 320 feet from the crossing, some of the passengers on the train testified positively that they first felt the grip of the break as they were passing over the crossing. While one of the brakeman on the train at the time testified that it could have been stopped in 190 feet, the engineer says he made the stop in 440 with the rear end of the train just about at the crossing; while the conductor testified that the rear was 180 feet past the crossing and the engine 450 and that the stop was made in 900 feet. This was sufficient to take the case to the jury. But the case must be reversed.

[2] Defendant excepted to the following instruction: "It is the duty of the driver of a team and wagon when approaching a railway crossing to make use of his senses of sight and hearing, and to look and listen for an approaching train, and if such person fails to exercise such ordinary and reasonable precautions, and goes upon the track in front of a train, and is injured, when by the exercise of such precautions he could have avoided the danger and remained in a place of safety, he is guilty of contributory negligence, and cannot recover damages for any injuries that he may sustain under such [1] At the time plaintiff was first seen by circumstances, unless the persons in charge the engineer if he knew or ought to have of the train, after having discovered the known that the plaintiff would be upon the negligence of the plaintiff, or by the exercrossing when the train reached it, and could cise of ordinary care and caution they could have avoided the collision, his failure so to have discovered such contributory negligence, do was the proximate cause of the injury, thereafter failed to exercise due and proper and plaintiff is entitled to recover, otherwise care and diligence to avoid the injury to the not. And if, in applying this rule to the plaintiff, and by the exercise of such care and evidence, reasonable men might differ, the diligence, in the use of the appliances and question is one of fact for the jury. The evi- equipment of the train, such accident would dence on this point discloses that from the have been avoided." The particular part of crossing the track was straight to the north- the instruction of which the company comeast for half a mile, and lay on an embank-plains reads: "Or by the exercise of ordiment of from 8 to 12 feet high, and that nary care and caution they could have disthe road led up to the crossing on a gradual incline; that, after coming on to the right of way, the view in the direction of the train was practically unobstructed, and that the same could have been seen for half a mile by plaintiff when within 20 feet of the track and that the injury occurred about 9 o'clock on a clear day; that, when first seen by the fireman, plaintiff was 40 or 50 feet from the crossing, whipping up and driving in that direction. There is conflict in the testimony as to how far away the engine was at that time. The fireman says 480 feet from the crossing or 3 poles distant, that he immediately called to the engineer, who applied the emergency break at a distance of 2 poles from the crossing. The poles are 200

covered such contributory negligence." This was the precise objection to an instruction given in Oklahoma City Ry. Co. v. Barkett, 118 Pac. 350. There in the syllabus we said: "In an action for damages on account of the alleged negligent act of defendant, it is error for the court to charge the jury that the plaintiff may recover notwithstanding his contributory negligence, if the defendant failed to exercise reasonable care to avoid the injury after it is discovered, or by the exercise of reasonable care might have discovered that an accident was imminent."

The cause is reversed and remanded for a new trial. All the Justices concur, except WILLIAMS and DUNN, JJ., absent, and not participating.

(33 Okl. 561)

DRENNAN v. WARBURTON.

from party of the second part at any time for the prevailing market price at such time,

(Supreme Court of Oklahoma. March 12, deducting for storage as above stated. Party

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[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3825-3833; Dec. Dig. § 959.*]

2. PLEADING (§ 259*)-AMENDMENT.

It is not error to refuse an amendment which will permit the party requesting the same to introduce evidence tending to establish a usage or custom which contravenes a written contract upon which the cause of action is predicated.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 783-792; Dec. Dig. § 259.*] 3. APPEARANCE (§ 9*) - SPECIAL APPEAR

ANCE.

An appearance, in order to be special, must be shown to be such by a proper designation and entitlement.

of the second part has the privilege of selling such wheat to pay person he may desire upon the payment to first party of the sum of two cents per bushel for loading such wheat into cars." The answer of the defendant was to the effect that the defendant was only liable as bailee, and that as the elevator in which the wheat was stored was destroyed by fire through no fault of his, and as the offer to sell the wheat was not made until after the fire, he was absolved from all liability. The reply was a general denial. On the trial the evidence conclusively showed that the elevator was destroyed by fire prior to the time the plaintiff offered his wheat for sale to the defendant and demanded payment therefor. The case, however, was tried upon the theory that, if the evidence showed that all the wheat belonging to the plaintiff was shipped from the elevator and sold by the defendant prior to the fire, the plaintiff was entitled to

recover.

The following instruction was given by the

[Ed. Note. For other cases, see Appear-court without objection or exception by either ance, Cent. Dig. §§ 42-52; Dec. Dig. § 9.*] Error from District Court, Alfalfa County; M. C. Garber, Judge.

Action by D. C. Warburton against R. H. Drennan, doing business as the R. H. Drennan Grain Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Everest, Smith & Campbell, for plaintiff in error. George W. Partridge and Talbot & Owen, for defendant in error.

KANE, J. This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover the market value of certain wheat. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

party: "There being no evidence in this case that the fire which destroyed the defendant's elevator was caused by any negligence upon his part, he is not liable to the plaintiff for any of plaintiff's wheat which he has shown by the evidence to have had stored in his elevator at the time of the fire and which was destroyed thereby." There was evidence tending to show that a large portion, if not all, of the plaintiff's wheat had been sold and shipped by the defendant prior to the fire, whereupon the defendant asked leave to amend his answer as follows: "Now, if the court please, at this time, the defendant asks leave to amend its answer in order to conform with the facts, showing the custom of mingling this grain with other grain, and keeping wheat on hand at all times in order to meet storage contracts. sufficient grain of like kind and quality to It seems that the petition was filed upon meet those contracts, and that this defendant the theory that the defendant was bound to at all times did that, complied with that buy the wheat from the plaintiff at any time custom and practice, and that, furthermore. at the option of the plaintiff for the prevail- it was the prevailing custom for elevator and ing market price, under the following con- warehousemen generally and particularly at tract: "This contract witnesseth, by and be- Ingersoll, Okl., and in that neighborhood, to tween R. H. Drennan Grain Company, party mingle the grain deposited under contracts. of the first part, and D. C. Warburton, party such as the contracts sued upon in this case, of the second part: Party of the second part with the grain of others and with the grain has this day stored with party of the first purchased by the defendant himself, and that part one thousand, six hundred and twelve it was known and understood by the public bushels and fifty pounds of wheat testing generally in their dealings with elevator men sixty pounds, for which party of the first and warehousemen that the particular grain part agrees to keep for party of the second which was deposited under those contracts part at the rate of one cent per bushel for would not be returned to the holder of the the first thirty days and one-half of one cent contract, but that the custom and practice for each succeeding thirty days thereafter was for the elevator men or warehousemen until such time as party of the second part to return to them the same quality of grain, desires to dispose of said wheat. Party of same quantity, of like quality and kind." the first part hereby agrees to buy said wheat This request was refused by the court, and *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

that is one of the grounds of error assigned. | substantial ground upon which to base our It is quite apparent that the case by the con- ruling herein. It seems that no exception sent of the parties finally resolved itself into was taken to the ruling of the court on the an action for conversion. The foregoing in- original motion to quash, and thereafter the struction was given without objection, and defendant filed a motion to set aside the the request of counsel for leave to amend former order, wherein it is set out that the conclusively points to that conclusion, and defendant appears by his attorneys and upon that theory we will examine the record. moves the court to set aside the ruling of the [1] Leave to amend pleadings at any stage court, etc. This does not pretend to be a of the proceedings is a matter that rests special appearance. Practically all the aulargely in the sound discretion of the court. thorities hold that an appearance, in order We would be justified in holding that the to be special, must be shown to be such by a record does not show an abuse of discretion proper designation and entitlement. Collier in the present case, and decide this assign- v. Falk, 66 Ala. 223; Flake v. Carson, 33 Ill. ment upon that ground alone. 518; Deshler v. Foster, 1 Morris (Iowa) 403; Kleinschmidt v. Morse, 1 Mont. 100; Baxter v. Arnold, 9 How. Prac. (N. Y.) 445; Coatsworth v. Thompson, 5 N. Y. St. Rep. 809; Godfrey v. Douglas County, 28 Or. 446, 43 Pac. 171; Lowe v. Stringham, 14 Wis. 222; Pry v. Hannibal, etc., Ry. Co., 73 Mo. 127; Montague v. Marunda, 71 Neb. 805, 99 N. W. 653.

[2] But, in addition, the amendment asked, if granted, would permit the defendant to lay a predicate for establishing a custom in direct conflict with the terms of the contract of storage, and this, as is well settled, cannot be done. The contract stipulated that the defendant for a fixed compensation should keep | the wheat for the plaintiff until such time as the plaintiff should desire to dispose of it. Finding no reversible error in the record, There is no ambiguity about this language, the judgment of the court below must be afand it is therefore not subject to construc-firmed. All the Justices concur. tion. If the contract involved is regarded as a contract of bailment, which it probably is, the defendant became liable for the conversion of the wheat stored immediately upon selling and shipping it out contrary to the (Supreme terms of the contract, as the jury must have found he did.

Several other assignments of error are predicated upon rulings of the court relative to instructions given by the court and instructions requested by the defendant and refused. As rule 25 of this court (95 Pac. viii) in relation to setting out instructions objected to and refused has not been complied with, the court will not review any of the instructions given or refused.

[3] The assignment of error based upon the action of the court in overruling defendant's motion to quash the summons cannot be sustained, for the reason that the action of the defendant in the premises constituted a general appearance. The record discloses that the defendant entered what he called a special appearance for the purpose of the motion only, and moved the court to quash the summons, and dismiss the cause, upon the ground that the defendant was a resident of Oklahoma county, and jurisdiction over his person could not be had by service of summons on his agent in the county where the suit was commenced; it appearing that the defendant is an individual doing business under the name, and style of R. H. Drennan Grain Company, and not a partnership or corporation. There are some authorities to the effect that a defendant who separately or in conjunction with a motion going only to the jurisdiction of the court over his person invokes the power of the court on the merits, or moves to dismiss, appears generally, but we think there is another and more

LAIRD v. BANNON. Court of Oklahoma. 1912.)

(31 Okl. 627)

March 12,

(Syllabus by the Court.) APPEAL AND ERROR (§ 528*)-RECORD-REVIEW OF MOTIONS.

Motions presented in the trial court, including a motion for a new trial and the ruling thereon and exceptions taken, are not a part of the record proper, and can be preserved and presented for review on appeal only by incorporating the same into a bill of exceptions or case-made.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2374, 2384-2388; Dec. Dig. § 528.*]

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DUNN, J. This case presents error from the superior court of Oklahoma county. The proceeding is not instituted by either case-made or bill of exceptions, but is here upon a transcript of the record. The only assignment of error contained in the petition in error is that the court erred in overruling the motion of plaintiff in error for a new trial. A motion to dismiss has been filed by counsel for defendant in error for the reason that the record before us presents no error subject to review. This motion must be sustained. That motions are no part of the record proper and are not brought to this court on a transcript there

of, see McMechan v. Christy, 3 Okl. 301, 41 | alleges was due him for services in obtaining Pac. 382, Tribal Development Co. et al. v. White Bros. et al., 28 Okl. 525, 114 Pac. 736, and cases therein cited.

The cause is, accordingly, dismissed.

TURNER, C. J., and KANE and HAYES, JJ., concur. WILLIAMS, J., absent.

(36 Okl. 396)

KING V. COOMBS.

an oil and gas mining lease covering the lands of one Bushyhead, in the Cherokee Nation. From the case-made it appears that the plaintiff was engaged in taking oil and gas leases on lands in the Cherokee Nation, and that the defendant told plaintiff he understood plaintiff was taking some leases; that the plaintiff spoke to defendant about the land concerning which this controversy arose, and defendant told plaintiff he would like to have it; that plaintiff told defendant he could get the lease for $11 per acre, and defendant said he would examine the records

(Supreme Court of Oklahoma. Oct. 3, 1911.) and notify plaintiff through Mr. Murray, his

(Syllabus by the Court.)

1. MINES AND MINERALS (§ 74*) MINING

LEASE-ASSIGNMENT.

Where a person knowing of lands upon which an oil and gas mining lease can be obtained, and knowing the price at which he can obtain it, offers to sell it to another at a fixed sum, which offer is accepted by the other, and he then procures the lease, the transaction is not one of agency, and the person offering the lease occupies the position of an assignor of the lease, though the lease is made direct from the landowner to the person to whom he has offered to sell it.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 202; Dec. Dig. § 74.*] 2. MINES AND MINERALS (§ 74*) SALE OF LEASE COVENANT FOR QUIET ENJOYMENT.

agent. Plaintiff also promised to examine the records. A short time afterwards plaintiff received a letter from Mr. Murray, as follows: "I send you under separate cover blank leases, with company's name printed in, affidavit and other papers. Be careful and see that everything is 0. K." Accompanying this letter was the lease, or leases, already filled out with the description of the land. On the same day the plaintiff received a telegram from Murray, as follows: "Will take lease. Await instructions. Affidavit and papers mailed to-day." After receiving this telegram and letter, plaintiff obtained the lease from Bushyhead, expending in the course of obtaining it, according to his testimony, a little over $400. He then took the instrument, and delivered it to the defendant at Bartlesville. When the lease was deliver

Where a party prices a lease to another at a fixed sum, without any agreement as to what covenants the lease should contain, the law will imply a covenant by him that the lease will be one under which the lessee can enter upon and hold the property during the termed to the defendant, he stated to the plaincontained in the lease.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 202; Dec. Dig. § 74.*] 3. MINES AND MINERALS (§ 74*) LEASE-RECOVERY OF PRICE.

SALE OF

Where a party contracts to sell another a lease at a fixed sum, and procures the lease direct from the supposed allottee to the person with whom he contracts, he cannot recover the price, where there was at the time of the delivery of the lease a contest threatened, as to the lands described in the lease, which was afterwards instituted and in which the contestants prevailed, and in which the allotment of the lessor was canceled.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 202; Dec. Dig. § 74.*]

Commissioners' Opinion, Division No. 2. Error from District Court, Washington County; T. L. Brown, Judge.

Action by John Coombs against R. N. King. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Veasey & Rowland, W. H. Kornegay, and W. A. Sipe, for plaintiff in error. H. H. Montgomery, J. J. Shea, and J. P. O'Meara, for defendant in error.

tiff that they would go and see defendant's attorneys, and let them pass on it. They went together to see Mr. Veasey, who was the at torney for the defendant, and Mr. Veasey said he was afraid that they would have trouble over it, and advised the defendant not to accept the lease and pay for it, and defendant declined to pay for it. Defendant or his attorney, however, kept the instrument.

It is admitted that the lease was in proper form, and complied with the regulations of the Secretary of the Interior as to all matters of formality. The lease was afterwards filed with the Commission to the Five Civilized Tribes at Muskogee. The defendant and his attorney, Veasey, testify that it was filed by a stenographer in Veasey's office, contrary to the order of both defendant and his attorney. It was never returned to either party, and was never approved by the Interior Department. The defendant denies having employed the plaintiff to obtain a lease, and alleges that he agreed to accept an oil and gas lease on certain lands described in his answer, which are admitted to have been the same lands as that covered in the lease taken, but says that the agreement was that the lease should be in such condition that it would convey good title, and that the title would be without question. He states, further, that Tate Brady was contesting the

ROSSER, C. In this case the defendant in error, John Coombs, hereinafter called plaintiff, brought this action against the plaintiff in error, R. N. King, hereinafter called defendant, to recover the sum of $847, which he For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

right of Bushyhead to the lands described in the lease, and that that contest was pending at the time of the filing of the answer. It is agreed that the contest was tried before the trial in this case, and that the contestants, the children of W. T. and R. C. Brady, prevailed in the contest, that Mrs. Bushyhead's filing was canceled, and that the certificate of allotment was issued to the Brady children.

In arriving at a decision in this case, it becomes necessary to determine what the actual contract between the plaintiff and defendant was. If the defendant employed the plaintiff as his agent to go and get this lease on this particular land from Mrs. Bushy head, taking the risk of the title himself, and not placing any burden upon the plaintiff to ascertain whether or not the title was good, then the judgment of the court below is correct. If, however, the agreement was to sell to the defendant the lease upon the land, then, in the absence of express agreement as to what the covenants of the lease would be, the law would imply a warranty of title to the land in controversy for the term of the lease. In ascertaining what the contract actually was, it will be necessary to set out a portion of the testimony verbatim.

The plaintiff, after stating that he was introduced to the defendant by Mr. Murray, said: "And he said he understood I was taking some leases, and this lease I spoke to him about, down close to Tulsa. He said he would like to have the lease, and I told him that I could get the lease for-could get it for $11 an acre, and he said he would like to have the lease, and said he would take the lease. He would go back and examine the records, and he would notify me through Mr. Murray, his agent, and I got a letter and telegram from Mr. Murray saying to take the lease." The plaintiff then produced the telegram and letter referred to in his testimony. He testified then to having taken the lease, and to the amount that he paid for it, and then says that he took the instrument of lease to the defendant. The examination proceeds as follows: "Q. Did you have any further conversation about it with Mr. King,

woman. Q. Did you communicate to Mr. King the offer that Mr. Byrd had made to you, or did you say nothing about that? A. I didn't say anything about that. Q. How did you and Mr. King arrive at the price of $11 an acre? A. I just told him how much I wanted for the lease. Q. And you told him you wanted $11 an acre? A. Yes, sir. Q. What do you mean by $11 an acre? Now what was the idea that you had when you told him you wanted $11 an acre for the lease? A. Well, you know that leases have a price on them, and I just priced this land at $11 an acre. Q. Well, was he to get the oil that was in the ground just for $11 an acre? A. No, sir; he was to pay a bonus, that was the bonus part." He then goes on to tell what he would make on it after taking out his expenses, and explains that it would have been something about $400 for his trouble. Then the examination proceeds: "Q. You never made any account of that in dealing with Mr. King, you just said $11 an acre? A. Well, it was customary for people to price the lease. Sometimes they made a small profit on them."

The witness then makes his statement with reference to the amount paid Mrs. Bushy head for the lease. He explains that it was made through one Mr. Byrd, and that Byrd was her administrator, and that she agreed for him to take part of the money paid and that she get part of it. The examination then proceeds: "Q. Well, in what way was he her administrator, by what power of appointment? A. Well, he had taken care of her, and he had his papers. Q. Had

he actually filed her on the land? A. Yes.

sir; he had actually filed her on the land.

Mr. Coombs, how do you know that he had filed her on that land? A. Well, I went over there and examined the records myself.

Q. When did you do that? A. I went over there just the day before I went to take this lease. I told Mr. King that I would go over and examine the records, and see if there was anything against it. Q. Did you examine the records in person? A. I did. I went over there and asked the people that then? A. Yes; he was at the Almeda Hotel, were in charge of the commission if there and I went there to give him the lease, and was anything against this land, and if it he said, 'We'll go over and see my attorneys was straight." Further in the cross-examinaand let them pass on it.' So he went over tion occurs the following: "Q. Well, how did to see Mr. Veasey, and, when he got there, you know that you could get this lease so Mr. Veasey said he was afraid they would you could make a profit, Mr. Coombs, when have trouble on it, and they wouldn't take did you find that out? A. I found it out it, but they kept the lease." In his cross-ex- after I went down there to buy it. Mr. amination he was asked: "Q. How did you Byrd said what I could buy it at. Q. Well, find out that Mr. King wanted the lease? A. when was that? That is what I want to well, he asked me if I had anything, any know. A. That was before I met Mr. King." good leases, and I showed him this. I told Further in the examination: "Q. Did you him about this lease that had been offered to deliver to him the lease in the Almeda Home, and he looked the matter over and he tel, or rather the papers signed by the allotsaid he would like to have the lease. Q. tee? A. I think I told him that I had it, Who was it that had offered you the lease but I think I told him on the way from the on these grounds? A. Well, there was a hotel to Mr. Veasey's office. Q. When was

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