signee of the mortgage. The mortgagor de│|nied that any sum whatever was due upon the mortgage and alleged that plaintiff was not the real party in interest but merely the agent of Flavell, the mortgagee. He also set up two affirmative defenses, one of which was that Flavell on or about January 10, 1898, entered into an agreement with Guiseppe Cinque, extending the time for the payment of the principal, and waiving the interest upon the mortgage, until after the said Flavell had performed other certain agreements which he entered into with the said Guiseppe Cinque at the same time, that said agreement of extension was made for the benefit of Theresa Cinque, and that said Flavell had not performed the other contemporaneous agreement already mentioned. The court held that the legal effect of the agreement between Flavell and Cinque was to suspend, for the time being, all right to enforce payment of the installments and interest, payable still the owner and holder of the same, the and payable. The plaintiff sued as the asdefendant Roe sold and delivered to said Kelley lumber of the value of $32.75, which sum Kelley agreed to credit on the indebtedness now alleged to be due, without claiming any forfeiture or penalty on the said second note and the said second year's interest and the said taxes being then due; second, that on April 10, 1909, all interest on said notes being due and unpaid up to date, and said taxes and the said note which became due on October 10, 1908, being still unpaid, the said J. B. Roe tendered and the said Kelley accepted the full payment of said note for $100, which became due April 10, 1909, and said Kelley then and there made no demand of these defendants, or either of them, for the immediate payment of said unpaid note, and said unpaid interest and taxes and claimed no forfeiture by reason of said de fault in the payment of said note, interest, or taxes, and that said Kelley is still the owner of the notes and mortgage; third, that on the 1st day of May, 1909, the defend-by the terms of the mortgage, and also to enant J. B. Roe had a conversation with said title the mortgagor to have certain credits Kelley, who was then and there the owner applied upon the mortgage, and held that of said notes and mortgage, in which conver- Nicholson, the assignee of Flavell, was not sation said Roe stated to Kelley that he had entitled to maintain the action in forclosure, some money, but he thought it better for the but that the same was prematurely institutproperty covered by the mortgage that he ed. This is a very strong case in support should paint and make other necessary im- of the contention urged by the plaintiffs in erprovements on the same, and that, in case ror, and seems to be the established rule folthat he did make said improvements, he lowed by the courts in cases wherein similar could not pay the amount overdue on said questions are involved. In Faxton v. Faxon notes, interest, and taxes before October 1, et al., 28 Mich. 158, it was said: "A mort1909, but that he would make full settlement gagee of lands who had persuaded a son of with Kelley by October 10, 1909, or, on fail- the mortgagor, after the death of the latter, ure so to do, would make to said Kelley a and when the land was of little value, and deed to said property covered by said mort- the son contemplated removal to another regage; that at said time and place, and in gion, to remain on the farm and take care said conversation, said Kelley consented that of it and support the family of his deceased said defendant Roe might expend the money father, upon a promise that the mortgages on improvements on said property, and ex- should never be enforced against the family, pressed himself as satisfied with Roe's propo- is estopped thereby, after the lapse of seversition to pay all back interest, taxes, and al years, during which such son had cultivatother amounts due by October 10, 1909, as ed said farm and cared for the family, and aforesaid, or to make the said Kelley a deed the land had grown valuable under his tilto said property on failure to so pay, and|lage, from taking any steps to foreclose the plaintiffs in error, relying on said conversa- mortgage." The court further said: “There tion, and on the conduct of said Kelley, ex- is no rule more necessary to enforce good pended about $100 on said building for paint | faith than that which compels a person to and other improvements. abstain from enforcing claims which he has induced others to suppose he would not rely on. The rule does not rest upon the assumption that he has obtained any personal gain or advantage, but on the fact that he had induced others to act in such a manner that they will be seriously prejudiced if he is allowed to fail in carrying out what he has encouraged them to expect." In the case at bar, it is not denied but that Kelley, the own [1] Nicholson v. Cinque, 51 App. Div. 604, 64 N. Y. Supp. 191, was a case where Cinque made a mortgage to secure the payment to Flavell the sum of $1,200, $15 being payable on the 1st day of each month beginning with August 1, 1897. The action was begun September 21, 1898. The complainant alleged that the mortgagor had failed to comply with the conditions of the mortgage by omitting to pay a sum of $15 interest and install-er and holder of the notes and mortgage sued ment of principal which became due and payable on the 1st day of each month between December 1, 1897, and September 1, 1898, in clusive, and that by reason of such default the plaintiff had elected to consider the entire on, had a conversation with Roe, to the effect that Roe might use the money he then had in the improvement of the mortgaged property, and that Kelley by reason of such improvements being made would forbear fore From an order confirming a sale show that in a certain conversation Roe | other. agreed with Kelley, that in case all past-due under the execution, defendants brings error. payments of principal, interest, and taxes Dismissed. were not met October 10, 1901, he would thereupon give Kelley a deed for the property. This last promise by Roe, of course, would be unenforceable, unless in writing. [2] However, we need not concern ourselves with that phase of the question, for the reason that the making of the improvements on the premises was sufficient consideration for the forbearance on the part of Kelley. [3] The action of Roe in spending the money which he had at the time, and which he intended to apply upon the indebtedness, but which, with the consent and approval of Kelley, he used in the making of improvements on the property, was, without doubt, sufficient consideration in itself, and, if Kelley made such agreement with Roe, he must stand by it. There is no question in this case of attempting to vary the terms of a written instrument by parol evidence. Roe does not seek to change the terms of the notes and mortgage. It is simply a question of an extension of time of payment, and of which Kelley had entire control, and, if he was satisfied to grant the additional time for the consideration hereinabove alluded to, it was his own business. Morgan & Dupree, for plaintiffs in error. John H. Wright and Clarence J. Blinn, for defendant in error. WILLIAMS, J. On August 1, 1911, an execution was issued out of the district court of Oklahoma county in favor of Louisa Adams, as plaintiff, against J. C. Williamson and Emma Williamson, as defendants, which was levied by the sheriff of said county upon certain real estate, and, after notice, sale was had thereon. On September 8, 1911, the plaintiffs in error, J. C. Williamson and Emma Williamson, filed a motion in the lower court to set aside said sale. On September 14, 1911, motion was filed for the sale to be confirmed. On October 28, 1911, after hearing evidence on said motion, the court entered an order confirming said sale and overruling the motion to set aside the same and all objections thereto. On October 28, 1911, motion for new trial was filed. On November 6th, motion for new trial was overruled, and 15 days from November 1, 1911, were allowed in which to make and serve case-made. Case-made was served on November 14, 1911, and settled by the trial judge on November 22, 1911. Counsel for de proceeding in error, on the ground that the case-made was not settled in time. The motion is sustained. Powell et al. v. Nichols et al., 26 Okl. 734, 110 Pac. 762; Bond et al. v. Cook et al., 28 Okl. 446, 114 Pac. 723. All the Justices concur. [4] We are of the opinion that the amend-fendants in error have moved to dismiss this ed answer of Roe and his wife stated facts sufficient to constitute a defense and that the court erred in sustaining the demurrer interposed by the defendant in error, Lorena B. Fleming, and, having reached this conclusion, it necessarily follows that the judgment of the superior court of Pottawatomie county should be reversed, and the cause remanded, with instructions to overrule said demurrer, and for further proceedings not inconsistent CHICAGO, R. I. & P. RY. CO. v. BANKERS' with the views herein expressed. (Syllabus by the Court.) March 12, 1. APPEAL AND ERROR (§§ 281, 564*)-CASE MADE-SERVICE AND SETTLING. Same as paragraph 2 of the syllabus in Bond et al. v. Cook et al., 28 Okl. 446, 114 Pac. 723. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 2501-2506, 2555-2559; Dec. Dig. §§ 281, 564.*] 2. CASE-MADE. Same as paragraph 1 of the syllabus in Powell et al. v. Nichols et al., 26 Okl. 734, 110 Pac. 762. NAT. BANK. 1912.) (Syllabus by the Court.) (32 Okl. 290) March 12, (a) That the claim was assignable. (b) That B. could maintain the action thereon in his own name, and that S. was not a necessary party. ments, Cent. Dig. §§ 40, 41, 200-205; Dec. Dig. [Ed. Note. For other cases. see Assign§§ 23, 121.*] 2. STATES (§ 9*)-TERRITORIAL COURTS-EFFECT OF ADMISSION TO STATEHOOD. When a cause of action was commenced after statehood, the procedure in force in the state applied, although the cause of action arose in the Indian Territory prior to statehood. [Ed. Note.-For other cases, see States, Cent. Dig. § 4; Dec. Dig. § 9.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 3. PLEADING (§ 398*)-VARIANCE-MATERI- | tory), for a consideration of $126, The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4540-4545; Dec. Dig. 8 1170.*] 5. APPEAL AND ERROR (§ 1068*)-INSTRUCTIONS CONSTRUCTION AS A WHOLE. When it appears that the court's instructions only authorize the jury to return a verdict for injury to goods in transportation, and when the full amount of the verdict returned is sustained by the evidence of injury, a cause will not be reversed because the court refused an instruction advising the jury that they could not consider the value of goods which were lost, no claim for such value being made, although there is evidence that some of the goods were lost. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*] 6. APPEAL AND ERROR (§ 1005*)-REVIEWQUESTIONS OF FACT-AMOUNT OF RECOV ERY. Where the evidence of damage is in general terms and of doubtful competency, but is uncontradicted, and its admissibility is not challenged, a verdict of a jury which has been approved by the trial court on motion for new trial will not be disturbed in this court. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 3948-3954; Dec. Dig. § 1005.*] Commissioners' Opinion, Division No. 1. Error from Carter County Court; I. R. Mason, Judge. Action by the Bankers' National Bank against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. C. O. Blake, H. B. Low, R. J. Roberts, and W. H. Moore, for plaintiff in error. Bledsoe & Little, for defendant in error. and that the same were delivered to the defendant at Memphis, Tenn., by said Southern Railway Company, January 9, 1907, and accepted by said defendant to be transported from Memphis, Tenn., to deliver to J. A. Simpson at Ardmore, Okl., in good condition, for the consideration hereinbefore mention ed." The plaintiff recovered and the defendant brings error. [1] The first error assigned is that, as the assignment was intended as collateral security, it did not vest in the plaintiff such an interest as would permit the plaintiff to maintain the action in its own name, and that Simpson was a necessary party in the case. Minnetonka Oil Co. v. Cleveland Vitrified We do not agree with this contention. In Brick Co., 27 Okl. 180, 111 Pac. 326, Mr. Justice Williams, in delivering the opinion of the court, says: "The more serious ques tion in this record to determine is whether the contract was assignable. At common 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 Ry. 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, 145 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. T. 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].” not arising out of a pure tort, was assignable. Simpson's claim against the defendant, 2 Wilson's Rev. & Ann. St. 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 Rev. & 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 AMES, C. This action was commenced in benefit of another, or a person expressly auAugust, 1908. One J. A. Simpson had as- thorized by statute, may bring an action signed to the plaintiff all of his right, title, without joining with him the person for and interest "in and to a certain claim for whose benefit it is prosecuted. Officers may damages to personal property filed by me sue and be sued in such name as is authoragainst the Chicago, Rock Island & Pacific ized by law, and official bonds may be sued Railway Company." The assignment was upon in the same way." In construing this given as security for a note which Simpson statute before it was adopted by us, the owed the plaintiff, amounting to less than Supreme Court of Kansas, in Walburn v. the claim against the defendant. The peti- Chenault, 43 Kan. 352, 23 Pac. 657, in detion alleged that the Southern Railway Com- ciding that the assignee of a judgment pany accepted a shipment of goods at Harri- against a railroad company could sue thereman, Tenn., in January, 1907, "and agreed on in his own name, notwithstanding that a and undertook to transport and deliver the beneficial interest was reserved to third persame to Ardmore, Okl. (then Indian Terri-sons, say: "The consideration for the as signment was a large indebtedness of Tiernan to Chenault's Bank, or the bank of which he was president; and it was agreed that the proceeds of the judgment should be applied in payment of the indebtedness, and to the discharge of an attorney's lien which had attached to the judgment. The assignment was absolute, and is such as to vest in the assignee the whole legal title. He had such a beneficial interest in the proceeds of the judgment that he could bring an action in his 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, it is provided that an action may be brought by a 'person with whom or in whose name a contract 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 embarrassment to the plaintiffs in error. In Williams v. Norton, 3 Kan. 295, it was held that where a note was assigned to one with a beneficial interest in the proceeds of the same, and with an understanding that he was to receive the money on it, such person was the real party in interest, within the meaning of the Code, and might sue in his own name, although he was not entitled to apply to his own use the whole of the proceeds. Allen v. Brown, 44 N. Y. 228; Pom. Rem. § 132. The action was properly brought in the name of the assignee, and no prejudice could result to the plaintiffs in error by his failure to join other parties interested in a part of the proceeds of the judgment, or by his failure to allege his liability to them." It is true here, as in the case of Walburn v. Chenault, 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 like wise 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 of such an assignee to maintain the action without joining the assignor. [2] It is urged, however, that as this cause of action arose in the Indian Territory, and was assigned to the plaintiff prior to state hood, the statutes of Arkansas should govern, and that under the practice then prevailing Simpson was a necessary party. Mans. Dig. §§ 4934 and 473 (Ind. Ter. Ann. St. 1899, §§ 3139, 455); Lanigan v. North, 69 Ark. 62, 63 S. W. 62. As this action, however, was not commenced until after statehood, we think the procedure in force at the time it was instituted would apply. 'Independent Cotton Oil Co. v. Beacham (decided September 12, 1911, not yet officially reported) 120 Pac. 969; Chicago, Rock Island & Pac. Ry. Co. v. Baroni (just decided) 122 Pac. 926. [3] It is next contended that the defendant's demurrer to the plaintiff's evidence should have been sustained, on account of a fatal variance. The petition alleged that the goods were delivered to the Southern Railway Company at Harriman, Tenn., and that the Southern Railway Company accepted the goods and agreed to transport them to Ardmore, while a copy of the bill of lading introduced in evidence by the defendant, on cross-examination of the shipper, shows that it was issued by the Cincinnati, New Orleans & Texas Pacific Railway Company, and it is argued that there was a fatal variance between the pleadings and the proof, and that therefore the plaintiff was not entitled to recover. The petition, however, in addition to alleging the contract with the Southern Railway Company, alleged that the freight was delivered to the defendant at Memphis, Tenn., by the Southern Railway Company, and accepted by the defendant to be transported from Memphis to Ardmore. Sections 4337, 4338, and 4339, Wilson's Rev. & Ann. St. 1903 (Comp. Laws 1909, §§ 5673, 5674, and 5675), are as follows: "No variance between the allegations, in a pleading, and the proof, is to be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just. "When the variance is not material, as provided in the last section, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment without cost. "When, however, the allegation of the claim or defense, to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof." [4] The defendant does not argue that it was actually misled to its prejudice in maintaining its defense on the merits. Indeed, (31 Okl. 521) LILLY v. ST. LOUIS & S. F. RY. CO. (Supreme Court of Oklahoma. March 12, 1912.) (Syllabus by the Court.) CARRIERS (§ 264*)-NEGLIGENCE-RIGHTS OF PASSENGER. should not have been sustained. is appears from the record that the defendant produced this bill of lading, on the crossexamination of Simpson, who testified by deposition taken before the trial, and was asked this question: "I show you a paper which purports to be a copy of the original 1. bill-lading and ask you if you ever saw it before, and if it is a copy of the original bill- Plaintiff, a passenger upon one of defendlading." It is therefore manifest that this ant's trains, had purchased a ticket from defendant's agent at one of its stations to anbill of lading was in the possession of the other station upon defendant's road; but, in defendant, and that it was better informed order for her to reach her destination, it was as to the exact details of the contract sued necessary that she change at an intervening on than was the plaintiff, and therefore was station to another train upon another of defendant's lines of railway. She was without not misled to its prejudice. This presents a knowledge as to her route or where she would proper situation in which to apply the rea- be required to change. Before reaching the sonable and just rule prescribed by our stat- destination at which she was required to ute (Wilson's Rev. & Ann. St. 1903, § 4344; from defendant's servants and employés in change, she made repeated efforts to ascertain Comp. Laws 1909, sec. 5680), which reads as charge of the train information regarding her follows: "The court, in every stage of action, route and as to where she would have to must disregard any error or defect in the and refused to instruct her as to where she change; but they disregarded her and failed pleadings or proceedings which does not af- would have to make the change, on account of fect the substantial rights of the adverse which she was carried beyond the junction party; and no judgment shall be reversed or point off her route and to a town where she affected by reason of such error or defect." railway than defendant's, in order to reach her was required to take passage upon another [5] The next error urged is in refusing to destination, and expended an additional sum give an instruction limiting the plaintiff's for fare and caused her to suffer a loss of time recovery to goods damaged and excluding it and certain inconveniences. Held, that a petition, stating in substance the foregoing facts, from recovery for goods lost; but as the suit stated a cause of action against defendant railwas for loss and injury on account of dam-way company, and a general demurrer thereto age, and as the court's instructions only authorized the jury to return a verdict for damage sustained, and as the evidence tends to show that the full amount of the verdict was sustained in damage to the goods, exIclusive of those lost, we cannot say that there was error in refusing this instruction. [6] It is next urged that the court erred in overruling the defendant's motion for new trial, on the ground that there was not sufficient evidence in the case to support the verdict, and it is argued that there was no evidence sufficiently certain to justify more than nominal damages; the evidence as to the amount of damage being indefinite. Simpson testified that, when the goods were delivered to the railroad company, they were in good condition; that when they were delivered to him at Ardmore, practically everything in the car was demolished, broken, and destroyed, and some of the articles missing; that he and the agent of the company at Ardmore examined the furniture and made an estimate of the damage, which amounted to over $800, "but he agreed to cut this down to $579 and some cents, in order to get a settlement without a lawsuit." No question is raised about the admissibility of the evidence, and as the evidence was offered and no error is assigned on account of its admission, we think it was sufficient to submit to the jury, and that the trial court did not abuse its discretion in overruling the motion for new trial. Cent. Dig. §§ 1037-1039; Dec. Dig. § 264.*] -NEGLIGENCE OF EMPLOYÉS-EXEMPLARY Where defendant's employés willfully neglected and refused to give plaintiff the information requested as stated above, plaintiff may in such case recover exemplary damages. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.*] Error from District Court, Carter County; S. H. Russell, Judge. Action by Lena Lilly against the St. Louis & San Francisco Railway Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded. McNeal & Allen, for plaintiff in error. W. F. Evans, R. A. Kleinschmidt, and J. H. HAYES, J. This suit was brought by plaintiff in error, plaintiff below, to recover damages of defendant in error, defendant below, alleged to have been sustained by her as a passenger on defendant's road by being carried by a station where she had to change cars in order to reach her destination. The judgment of the trial court was against plaintiff upon a general demurrer to her petition. After alleging in her petition that on the 27th day of July, 1908, she purchased from the agent of defendant at Mansfield. Mo., a ticket from that point to Ardmore. Finding no reversible error, we think the Okl., to which latter point she desired to be case should be affirmed. PER CURIAM. Adopted in whole. transported for the purpose of being at the bedside of her mother, who was seriously ill and was not expected to live, she alleges as |