stock in any manner change or alter the terms of the contract of guaranty.

We find no other error in the record, and the judgment of the court below, as modified, is affirmed; costs of this appeal taxed to the defendant in error.

PANCOAST, J., who tried the cause in the court below, not sitting. All the other Justices concurring, except IRWIN, J., absent.

(19 Okl. 100)

DEMING INV. CO. v. MEYER et al. (Supreme Court of Oklahoma. Sept. 4, 1907.) BROKERS REAL ESTATE AGENT-FRAUD.

Where a real estate agent, having authority to make a sale of his principal's land, reports to another agent of the principal that he can sell the land so as to net the principal a certain sum, and that he is making the sale for a greater sum, thereby disclosing that the amount which will be paid to the principal is not the full purchase price, but that the excess will be retained by the agent as his commission, and no contract is shown between the principal and agent that he shall receive any specified amount for his services, although the amount of the excess is not disclosed, the agent commits no fraud or deception by not disclosing the amount of such excess.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 48-50.]

(Syllabus by the Court.)

Error from District Court, Canadian County; before Justice C. F. Irwin.

Action by the Deming Investment Company against Frank Meyer and James Sackett. Judgment for defendants, and plaintiff brings error. Affirmed.

This is an action brought by the plaintiff in error against the defendants in error, in the district court of Canadian county, to recover the sum of $197.50. The record discloses that the plaintiff was a corporation doing business at Oswego, Kan., and had a branch office at Oklahoma City in charge of salaried employés, whose names were, at the time of the transaction in question, R. P. Carpenter, manager, and H. W. Rule, 'the officeman. The plaintiff had a tract of land in Canadian county at the time which they placed on the market for sale. The defendants were real estate agents. The employés at Oklahoma City had no general authority to make sales, and what authority was given them was specifically delegated in each particular instance. At a time prior to the transaction in question, but at what time is not disclosed by the record, the defendants had authority to sell the tract of land for the sum of $700. The conditions under which they had the authority are not disclosed by the record, nor is there anything disclosed as to what their commission would be if such sale was made. About August 1, 1900, one of the defendants communicated to the plaintiff's employé Rule, at Oklahoma City, over the telephone, that he could sell the land in question so as to net the

plaintiff in error $900. This, it seems, was a larger sum by $100 than the defendants had recently been authorized to sell the place for. In the conversation between the defendant Meyer and Rule over the telephone, Rule suggested that he would rather report the deal to the plaintiff in a different form, and suggested that the sale be reported at $950, with commission at 5 per cent. To this suggestion Meyer stated, in substance, that he did not care how Rule reported the sale, but that his proposition was $900 net to the company. He was then asked by Rule if he was getting any more, and he stated that he was; that he (Rule) could notify Mr. Deming any way he pleased, either as a commission sale or not; but that the proposition that he made was that he was to sell the place so as to net the company $900. Rule's idea seems to have been that Mr. Deming would be better satisfied with a sale reported at a certain commission, and that it would be more readily accepted in that form. There is nothing contained in the record from which it can be determined that there was any contract for any specified commission, or that the defendants were to receive in case of sale any specified amount for their services. The sale was reported to the plaintiff by Rule at $950, with 5 per cent. commission, $47.50. The deed was forwarded, payment made to the defendants, and settlement made by them upon the basis of $900 net to the company. Subsequently the plaintiff learned that the land had been sold for $1,100, and this action is brought to recover the excess between $950 and $1,100, as well as the commission of $47.50 paid. Snyder & Clark, for plaintiff in error.

PANCOAST, J. (after stating the facts as above). The theory upon which this action was brought was that there was fraud practiced upon the plaintiff by the defendants; and that, as the agents of the plaintiff, the defendants were bound to disclose to the plaintiff all the facts and circumstances within their knowledge in any way calculated to enable the plaintiff to judge of the value of the property, as well as the propriety of accepting the offer made for it; and that, in failing to make such disclosure, the defendants had deceived the plaintiff, and because of such deception were not even entitled to any commission for the sale. A considerable number of authorities are cited in support of the position taken by the plaintiff in error to the effect that an agent who is authorized by his principal to sell the property of the latter upon specified prices and terms is in duty bound, upon learning that a more advantageous sale or exchange can be made, the facts concerning which are unknown to the principal, to communicate the same to him before the sale, as expressly authorized, and his failure to do so amounts to a fraud in law. The trial court found against the plaintiff in error upon the facts

disclosed in the case. In fact, there is no contradictory evidence contained in the record. The finding must have been based entirely upon the defendant Meyer's evidence, and, if there is any fraud or deception disclosed in the record, it is shown by his evidence alone.

There is no question as to the correctness of the law cited by the plaintiff, but is the rule contended for applicable to the facts disclosed in this case? These defendants were simply real estate agents. They reported the facts, as far as the facts are disclosed at all, to the branch office of the plaintiff. In this report they disclosed the fact that the purchaser was paying more than $900 for the land, and that the excess was what they expected to receive for their labor. If this land had been put into the hands of these agents to sell at a specified price, and they had contracted to sell the same at that price and take for their services a specified sum or commission, then they would have been in duty bound to have reported to their principal any excess which they might have received, and take for their services the commission agreed upon. But the record does not disclose such a state of facts, and although it does disclose that they had, prior to the sale, been authorized to sell the land for a smaller sum than they did sell it at, and at a still smaller sum than the plaintiff received from the sale, yet there is nothing to indicate what their commission was to be, or that it was to be any specified sum. The report in the telephone conversation between Meyer and Rule was sufficient to show that the defendants were receiving some greater sum that $900 for the land, and the plaintiff therefore had notice of the nature of the transaction. The only deception, if any at all, was practiced by Rule in reporting to the home office, but the defendants were in no wise responsible. as they left the manner of Rule's reporting the sale to his own judgment, specifically giving him to understand that he would report it as he pleased, but that they were to make the sale so as to net the company $900. The evidence as disclosed by the record is very distinct upon this proposition. We must therefore conclude that the rule of law sought to be invoked by the plaintiff in error in this case is not applicable here, because of the fact that some of the essential elements are lacking, and that there was no fraud or deception practiced on the part of the defendants in error. We see no reason why. a person may not report a sale of a piece of land to his principal for a certain sum, when it is understood that the property is being sold for a greater amount, and that the excess will be retained as a commission for the services performed.

There being no error in the record, the judgment of the court below is affrmed. All the Justices concurring. except IRWIN, J., who tried the cause below, not sitting.

(19 Okl. 235)

SCHOOL DIST. NO. 57 OF LOGAN COUN TY et al. v. EAGER. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. BILLS AND NOTES - BANK CHECK-TIME FOR PRESENTMENT.

The holder of a bank check is entitled to a reasonable time in which to present it for payment; and, where the holder of a check lives in the same place that the bank on which the check is drawn is located, he has during the banking hours of the next day after receiving it in which to present it for payment. [Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1091-1103.] 2. SAME-MISTAKE IN SIGNATURE.

It is the duty of one, when signing a check, to see to it that he signs it properly; and where a treasurer of a school district, in paying a debt of the district, delivers a check signed in his individual name, and the bank refuses to cash it, because the maker of the check had no funds on deposit in the bank, and several days afterwards the check was changed by the maker, by adding his official character, as treasurer of the school district, to his signature, and be fore the close of the banking hours of the second day after the check was corrected the bank on which it was drawn failed (the next day after the correction of the check being Sunday), the loss will fail upon the maker of the check, which in this case was the district.

(Syllabus by the Court.)

Error from Probate Court, Logan County; J. C. Strang, Judge.

Action by W. P. Eager against school district No. 57 of Logan county and others. Judgment for plaintiff. Defendants bring error. Affirmed.

Devereux & Hildreth, for plaintiffs in error. Cotteral & Hornor, for defendant in

error.

BURWELL, J. The appellant school district owed W. P. Eager $248.72, as evidenced by certain school district warrants. On March 8, 1904, the treasurer of the district gave to Mr. Eager a check for these warrants, and on March 12, 1904, he discovered that he had written the check for some $5 too much money, and on that day he took up the original check, which was destroyed at the time, and issued in lieu thereof another check for the correct amount. This check, like the other one, was drawn on the Guthrie National Bank, but was signed by the treasurer in his individual name. Mr. Eager presented this check for payment, but payment was refused, because the treasurer of the district, Mr. M. L. Scovill, signed the check in his individual name, instead of signing it as treasurer of the school district. The account with the bank was in the name of M. L. Scovill, as treasurer of the school district and he had no individual account with the bank. On April 2, 1904, the check was corrected by Mr. Scovill, by affixing to the check his official character, and on April 4, 1904, the bank failed before the close of banking hours. April 3d was Sunday. The contention is that the appellee, W. P. Eager, was guilty of laches, and therefore should suffer the loss occasioned by the failure of

Chambers & Taylor, for plaintiff in error. W. O. Cromwell, Atty. Gen., and Don C. Smith and J. H. Cline, Asst. Attys. Gen., for the Territory.

BURFORD, C. J. The plaintiff in error, Jake Barnes, was jointly charged by information with one D. C. Stout with the crime of carrying on certain gambling games. The case was tried to a jury, and Barnes was convicted and Stout acquitted. After judgment of conviction, Barnes filed his petition in error and case-made in this court.

There are but two alleged errors presented for our consideration. In support of his motion for new trial the defendant offered to prove by one of the jurors that after they had been considering the case a portion of two days and nights, and the jury had been balloting eleven for conviction and one for acquittal, it was agreed by the jurors that they would all vote for acquittal of Stout and all for conviction of Barnes, and that pursuant to such agreement they arrived at the verdict which was returned. The court excluded the offered evidence, and it is contended that this is error. This court settled this question adversely to the contention of plaintiff in error in the case of Colcord v. Conger, 10 Okl. 458, 62 Pac. 276, and there is nothing in this case that calls for a modification of the rule there stated. It is there stated in the syallabus: "Upon grounds of public policy jurors will not be heard, by affidavit, deposition, or other sworn statement, to impeach or explain their verdict, or show on what ground it was rendered, or that they made a mistake, or misunderstood the law or the result of their finding, or to show what items entered into the verdict, or how they arrived at the amount. Jurors will only be heard in support of their verdict or conduct when the same is attempted to be impeached." At that time we stated that the only courts which had adopted a different rule were Kansas, Iowa, and Tennessee. To these should now be added Idaho. We are content with the rule as then stated, and adhere to it. There was no error in excluding the testimony of the jurors as to the manner in which they reached their verdict.

The next contention of plaintiff in error is that the court, during the progress of the argument by counsel for the defendant, engaged in a friendly colloquy as to the law defining the crime for which the plaintiff in error was being tried, and in the course of such colloquy the trial judge made the statement in the presence of the jury "that it did not make any difference whether anything was played for or not, but under our statute faro, monte, poker, roulette, and craps are absolutely prohibited, even though the games are played for fun." It may be conceded that 91 P.-54

roneous statement of the law, the question as to whether it was reversible error depends upon whether or not in any state of the case it might have prejudiced the jury and influenced their verdict. The territory introduced a number of witnesses, all of whom testified that the room over the defendant's saloon, known as the "Southern Club," was a gambling room, and that on the day charged in the indictment and for a long time previous thereto the games of craps, faro, roulette, and klondyke were played there for money, and that the defendant usually received the money from the tables or games. Every witness testified that the games were dealt or played for money, and there was not a particle of evidence to the effect that any games were played or conducted in said gambling house for fun or amusement. The only controverted or uncertain question in the proof was as to who were the owners or managers of the place. The defense introduced no testimony. Upon this state of facts the statement of the court could not have in any manner prejudiced the defendant's case before the jury, and hence was not such error as will warrant a reversal of the judgment.

The judgment of the district court of Oklahoma county is affirmed, at the costs of the plaintiff in error. All the Justices concur, except BURWELL, J., who tried the case below, not sitting, and IRWIN, J., absent.

(19 Okl. 77)

NETTOGRAPH MACH. CO. v. BROWN et al.

(Supreme Court of Oklahoma. Sept. 7, 1907.) 1. WRIT OF ERROR-BRIEF-FAILURE TO FILE -REVERSAL.

Where the plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, the alleged errors will be taken as confessed, and the judgment may be reversed without an examination of the record. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3108-3110.] 2. SAME.

By rule 6 of this court, where the defendant in error in a civil cause fails to file a brief in support of the judgment attacked by the appeal. the court is given the discretion to either affirm or reverse the cause, and may reverse the judgment without examining the record.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, §§ 3108-3110.] (Syllabus by the Court.)

Error from Probate Court, Oklahoma County; Ledru Guthrie, Special Judge.

Action by the Nettograph Machine Company against A. J. Brown and E. C. Trueblood. Judgment for defendants, and plaintiff brings error. Reversed.

Grant & McAdams, for plaintiff in error.

BURFORD, C. J. The Nettograph Machine Company, a corporation organized under the laws of the state of Missouri, brought its action in the probate court of Oklahoma county against the defendants, A. J. Brown and E. C. Trueblood, administrators of the estate of Jennie Brown, deceased, to recover judgment upon a promissory note in the sum of $500 executed by the defendants on the 24th day of September, 1903, to the Oklahoma Trust & Banking Company, due in 90 days fr a date, with 6 per cent. interest from maturity, and $50 attorney's fees, and by the payee assigned to the Nettograph Machine Company, of St. Louis, the plaintiff in the action. The defendants set up by way of answer that the note was executed for 60 Nettograph machines and the right to use them in Oklahoma and Indian Territory, and alleged that the agent of the plaintiff made certain false and fraudulent representations by which the defendants were induced to execute the note, and they seek to either rescind and recover damages, or to recoup damages against the note if the sale is affirmed. It appears that the contract was in writing and is full and complete, but contains no warranty or representations as to the character of the machines or the work that they can accomplish. On the trial the defendants were permitted, over the objection of the plaintiff, to introduce evidence tending to establish certain oral representations in the nature of warranties or of representations as to the qualities of the machines or the character of the work they were capable of performing, also of the earning capacity of the machines, which were operated by the "nickel-in-the-slot" device. The cause was tried to a jury, and verdict returned for the defendants. The plaintiff filed his motion for new trial, which was overruled, and judgment rendered in favor of defendants for the costs. The plaintiff brings the cause to this court by petition in error, and has filed a brief in which a number of specific errors are alleged and authorities cited in support of its posi tion.

The defendants have filed no brief and offered no excuse for their default.

The failure of the defendants in error to appear or file any brief must be taken as a confession of the alleged errors, at least sufficient to warrant a reversal of the judgment. Enc. Pl. & Pr. 729; Parson v. Haskell, 30 III. App. 444; Mattoon v. Holmes, 14 Ill. App. 392; Green v. Blalack, 25 Tex. 417; Richter v. Fresno Canal Co., 101 Cal. 582, 36 Pac. 96; Davis v. Hart, 103 Cal. 530, 37 Pac.. 486. This court has by rule required briefs to be filed in all civil causes, and has given the court the right to exercise its discretions as to the disposition to be made of the case when no brief is filed. The rule is as follows: "Rule VI. In each civil cause filed in this court, counsel for plaintiff in error shall serve his brief on counsel for defendant in error within forty days after filing his petition in error, and

shall at the same time file fifteen copies of said briefs with the clerk of the Supreme Court. And the defendant in error shall have thirty days after service on him of plaintiff in error's brief, in which to serve and file answer briefs. Proof of service of brief must be filed with the clerk of this court within ten days after service. In case of failure to comply with the requirements of this rule, the court may continue or dismiss the cause, or reverse or affirm the judgment." 82 Pac. xiii. From a reading of plaintiff's brief and a casual inspection of the record, we feel so confident that there is fatal error in the record that we are satisfied no injustice is being done by a reversal.

The judgment of the probate court of Oklahoma county is reversed, and a new trial or dered, at the costs of defendants in error. All the Justices concur, except IRWIN, J., absent.

(19 Okl. 302) DROVERS' LIVE STOCK COMMISSION CO. v. CUSTER COUNTY STATE BANK et al.

(Supreme Court of Oklahoma. 1. ATTACHMENT ACTION THEREON. In an action on an undertaking given by the defendant in an attachment case under section 4107 of the Statutes of Oklahoma of 1893 to secure the release of the attached property, it is necessary to aver and show by the evidence that the attached property was restored to the defendant, or there can be no recovery on the undertaking.

Sept. 5, 1907.)

BOND TO PAY JUDGMENT—

2. REFORMATION OF INSTRUMENTS - EQUITABLE RELIEF.

Equity will not subject the property of one party to the payment of the debt of another and a mistake will not be corrected in an equitable action, unless the plaintiff shows by his bill that without such correction it will suffer loss or injury, but even then the court will not enter a decree that will injure another, in order that the plaintiff may not suffer loss. (Syllabus by the Court.)

Error from District Court, Custer County; before Justice C. F. Irwin.

Action by the Drovers' Live Stock Commission Company against the Custer County State Bank and others. Judgment for defendants, and plaintiff brings error. Affirmed.

I. H. Lookabaugh, H. H. Howard, and George R. Jobson, for plaintiff in error. S. H. Reid, M. D. Libby, and Fred Gillette, for defendants in error.

BURWELL, J. The plaintiff in error commenced suit against the Custer County State Bank, E. W. Crane, and J. W. Winans for money on an account. A writ of attachment was sued out and certain property seized thereunder. The Custer County State Bank then executed a bond under the statute, which recited the bringing of the suit, the levying of the attachment on property belonging to the Custer County State Bank, describing the property, and then the bond closed with