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stock in any manner change or alter the plaintiff in error $900. This, it seems, was

. terms of the contract of guaranty.

a larger sum by $100 than the defendants We find no other error in the record, and the had recently been authorized to sell the juďgment of the court below, as modified, is place for. In the conversation between the affirmed; costs of this appeal taxed to the defendant Meyer and Rule over the teledefendant in error.

phone, Rule suggested that he would rather

report the deal to the plaintiff in a different PANCOAST, J., who tried the cause in form, and suggested that the sale be reportthe court below, not sitting. All the other ed at $950, with commission at 5 per cent. Justices concurring, except IRWIN, J., ab- To this suggestion Meyer stated, in subsent.

stance, that he did not care how Rule reported the sale, but that his proposition was

$900 net to the company. He was then (19 Okl. 100)

asked by Rule if he was getting any more, DEMING INV. CO. V. MEYER et al.

and he stated that he was; that he (Rule) (Supreme Court of Oklahoma. Sept. 4, 1907.)

could notify Mr. Deming any way he pleased, BROKERS-REAL ESTATE AGENT-FRAUD.

either as a commission sale or not; but that Where a real estate agent, having authority to make a sale of his principal's land, re

the proposition that he made was that he ports to another agent of the principal that he was to sell the place so as to net the comcan sell the land so as to net the principal pany $900. Rule's idea seems to have been a certain sum, and that he is making the sale

that Mr. Deming would be better satisfied for a greater sum, thereby disclosing that the amount which will be paid to the principal is

with a sale reported at a certain commission, not the full purchase price, but that the ex- and that it would be more re:dily accepted cess will be retained by the agent as his com- in that form. There is nothing contained in mission, and no contract is shown between the

the record from which it can be determined principal and agent that he shall receive any specified amount for his services, although the

that there was any contract for any specified amount of the excess is not disclosed, the agent commission, or that the defendants were to comunits no fraud or deception by not disclosing receive in case of sale any specified amount the amount of such excess.

for their services. The sale was reported to [Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, $$ 48-50.]

the plaintiff by Rule at $950, with 5 per cent. (Syllabus by the Court.)

commission, $17.50. The deed was forward

ed, payment made to the defendants, and setError froni District Court, Canadian

tlement made by them upon the basis of County; before Justice C. F. Irwin.

$900 net to the company. Subsequently the Action by the Deming Investment Com

plaintiff learned that the land had been pany against Frank Meyer and James Sack

sold for $1,100, and this action is brought to ett. Judgment for defendants, and plaintiff

recover the excess between $950 and $1,100, brings error. Affirmed.

as well as the commission of $17.50 paid. This is an action brought by the plaintiff

Snyder & Clark, for plaintiff in error. in error against the defendants in error, in the district court of Canadian county, to PANCOAST, J. (after stating the facts as recover the sum of $197.50. The record dis- | above). The theory upon which this action closes that the plaintiff was a corporation was brought was that there was fraud pracdoing business at Oswego, Kan., and had a ticed upon the plaintiff by the defendants ; branch office at Oklahoma City in charge and that, as the agents of the plaintiff, the of salaried employés, whose names were, at defendants were bound to disclose to the the time of the transaction in question, R. plaintiff all the facts and circumstances withP. Carpenter, manager, and H. W. Rule, the in their knowledge in any way calculated to officeman. The plaintiff had a tract of land enable the plaintiff to judge of the value of in Canadian county at the time which they the property, as well as the propriety of acplaced on the market for sale. The defend- cepting the offer made for it; and that, in ants were real estate agents. The employés failing to make such disclosure, the defendat Oklahoma City had no general authori- ants had deceived the plaintiff, and because ty to make sales, and what authority was of such deception were not even entitled to given them was specifically delegated in each any commission for the sale. A considerable particular instance. At a time prior to the number of authorities are cited in support transaction in question, but at what time is of the position taken by the plaintiff in ernot disclosed by the record, the defendants ror to the effect that an agent who is auhad authority to sell the tract of land for thorized by his principal to sell the projthe sum of $700. The conditions under erty of the latter upon specified prices and which they had the authority are not dis- terms is in duty bound, upon learning that closed by the record, nor is there anything a more advantageous sale or exchange can disclosed as to what their commission would be made, the facts concerning which are unbe if such sale was made. About August known to the principal, to communicate the 1, 1900, one of the defendants communicated same to him before the sale, as expressly to the plaintiff's employé Rule, at Okla- authorized, and his failure to do so amounts homa City, over the telephone, that he could to a fraud in law. The trial court found sell the land ii question so as to net the against the plaintiff in error upon the facts disclosed in the case. In fact, there is no

(19 Okl. 235) contradictory evidence contained in the rec- SCHOOL DIST. NO. 57 OF LOGAN COUNord. The finding must have been based en

TY et al. V. EAGER. tirely upon the defendant Meyer's evidence, (Supreme Court of Oklahoma. Sept. 5, 1907.) and, if there is any fraud or deception dis- 1. BILLS AND NOTES BANK CHECK TIME clused in the record, it is shown by his evi- FOR PRESENTMENT. dence alone.

The holder of a bank check is entitled to

a reasonable time in which to present it for There is no question as to the correctness

payment; and, where the holder of a check of the law cited by the plaintiff, but is the lives in the same place that the bank on which rule contended for applicable to the facts

the check is drawn is located, he has during disclosed in this case? These defendants

the banking hours of the next day after re

ceiving it in which to present it for payment. were simply real estate agents. They re

[Ed. Note.-For cases in point, see Cent. Dig. ported the facts, as far as the facts are dis- vol. 7, Bills and Notes, 881091-1103.) closed at all, to the branch office of the

2. SAME-MISTAKE IN SIGNATURE. plaintiff. In this report they disclosed the It is the duty of one, when signing a check, fact that the purchaser was paying more

to see to it that he signs it properly; and than $900 for the land, and that the excess

where a treasurer of a school district, in paying

a debt of the district, delivers a check signed was what they expected to receive for their

in his individual name, and the bank refuses to labor. If this land had been put into the cash it, because the maker of the check had no hands of these agents to sell at a specified

funds on deposit in the bank, and several days

afterwards the check was changed by the makprice, and they had contracted to sell the

er, by adding his official character, as treasurer same at that price and take for their services of the school district, to his signature, and be a specified sum or commission, then they fore the close of the banking hours of the secwould have been in duty bound to have re

ond day after the check was corrected the bank

on which it was drawn failed (the next day ported to their principal any excess which

after the correction of the check being Sunday), they might have received, and take for their the loss will fail upon the maker of the check, services the commission agreed upon. But which in this case was the district. the record does not disclose such a state of

(Syllabus by the Court.) facts, and although it does disclose that they Error from Probate Court, Logan County ; had, prior to the sale, been authorized to J. C. Strang, Judge. sell the land for a smaller sum than they Action by W. P. Eager against school disdid sell it at, and at a still smaller suin trict No. 57 of Logan county and others. than the plaintiff received from the sale, yet | Judgment for plaintiff. Defendants bring there is nothing to indicate what their com- error. Affirmed. mission was to be, or that it was to be any

Derereux & Hildreth, for plaintiffs in erspecified sum. The report in the telephone

ror. Cotteral & Hornor, for defendant in conversation between Meyer and Rule was

error. sufficient to show that the defendants were receiving some greater sum that $900 for BURWELL, J. The appellant school disthe land, and the plaintiff therefore had no- trict owed W. P. Eager $248.72, as evidenced tice of the nature of the transaction. The by certain school district warrants. On only deception, if any at all, was practiced March 8, 1.901, the treasurer of the district by Rule in reporting to the home office, but gave to Mr. Eager a check for these warthe defendants were in no wise responsible. rants, and on March 12, 1904, he discovered as they left the manner of Rule's reporting that he had written the check for some $5 the sale to his own judgment, specifically too much money, and on that day he took giving him to understand that he would re- up the original check, which was destroyed port it as he pleased, but that they were to at the time, and issued in lieu thereof anmake the sale so as to net the company other check for the correct amount. This $900. The evidence as disclosed by the rec- check, like the other one, was drawn on the ord is very distinct upon this proposition. Guthrie National Bank, but was signed by We must therefore conclude that the rule the treasurer in his individual name. Mr. of law sought to be invoked by the plaintiff Eager presented this check for payment, but in error in this case is not applicable here, payment was refused, because the treasurer because of the fact that some of the essen- of the district, Mr. M. L. Scovill, signed the tial elements are lacking, and that there was check in his individual name, instead of no fraud or deception practiced on the part signing it as treasurer of the school district. of the defendants in error. We see no rea- The account with the bank was in the name son why. a person may not report a sale of of M. L. Scovill, as treasurer of the school a piece of land to his principal for a certain district and he had no individual account sum, when it is understood that the property with the bank. On April 2, 1904, the check is eing sold for a greater aniount, and that was corrected by Mr. Scovill, by affixing to the excess will be retained as a commission the check his official character, and on April for the services performed.

4, 1904, the bank failed before the close ot There being no error in the record, the banking hours. April 3d was Sunday. The judgment of the court below is affirmed. All contention is that the appellee, W. P. Eager, the Justices concurring. except IRWIN, J., was guilty of laches, and therefore should who tried the cause below, not sitting. suffer the loss occasioned by the failure of

the bank. It was the duty of the treasurer of the school district, when delivering the check, to see that it was in form and properly signed, and for his negligence in failing to attach to his signature his official character the appellee is not chargeable. The appellee never received a check against the deposit of the school district until April 2, 1904. The check before that time was drawn against an account of M. L. Scovill, but who, in fact, had no account there.

The appellee, under the record, was not guilty of laches in presenting the check of the treasurer of the school district after receiving the same duly signed. Wilson's Rev. & Ann. St. 1903, provide: Section 3703: "A check is a bill of exchange drawn upon a bank or banker, or a person described as such upon the face thereof, and payable on demand without interest." Section 3701: "A check is subject to all the provisions of this chapter concerning bills of exchange, except that, first, the drawer and endorsers are exonerated by delay in presentment, only to the extent of the injury which they suffer thereby." Section 3605: “When a bill of eschange is payable at a specified time after sight, the drawer and endorser are exonerated if it is not presented for acceptance within ten days after the time which would suffice, with ordinary diligence, to forward it for acceptance, unless presentment is excused.” Section 3680: "If a bill of exchange, payable at sight, or on deinand, without interest, is not duly presented for payment within ten days after the time in which it could, with reasonable diligence, be transmitted to the proper place for such payment, the drawer and endorsers are exonerated unless such presentment is excused." It will be observed that, on a bill of exchange payable on sight or demand, the payee has 10 days in which to present it for payment.

The appellee insists that the law also gives to the holder of a check 10 days in which to present it for payment. We are not willing to give the language of the statute the interpretation contended for. The Legislature have said that the drawers or indorsers of a check are exonerated by delay in presentment only to the extent of injury occasioned thereby, and with this and certain other exceptions a check is subject to all of the provisions of the Code concerning bills of exchange. Checks as a rule are used in paying obligations that are due, and take the place of the cash itself; and, while a check is not an assignment of the fund against which it is drawn until accepted by the drawee, still the law recognizes that the funds are placed in bank for the purpose of paying checks drawn by the depositor on the bank. Hence the law requires one holding a check to use reasonable diligence in pré senting it for payment. By the weight of authority, where the holder of a check is in the same place where the bank is located, it must be presented before the close of the

banking hours of the bank on the day following the day of its receipt. California has the same statute this territory regarding checks, and the Supreme Court of that state have adopted the rule stated herein. In the case of Ritchie, Osgood & Co. y. Bradshaw & Co., 5 Cal. 228, it is said: “The payee of a check, in presenting it for payment, in order to hold the drawer, is bound to the exercise of reasonable diligence. That reasonable diligence in the presentation of a check drawn upon a banker has, by the uniform current of authority, been held to have been sufficiently exercised by the presentation for payment upon the next day during the usual banking hours." To the same effect are the following cases: Himmelmann v. Hotaling, 40 Cal. 111, 6 Am. Rep. 600; Simpson v. Pacific Mutual Life Ins. Co., 44 Cal. 139; Holmes v. Roe, 02 Mich. 199, 28 N. W. 864, 4 Am. St. Rep. SH; and Tiedeman on Comercial Paper, p. 725, 8 413. See, also, 5 Cyc. p. 531.

The statute expressly excepts checks from the operation of this law on bills of exchange, in that a check must be presented without delay; but, if the holder delays be yond a reasonable time for presentment, the drawer is exonerated only to the extent of his injury. The check las properly signed, as stated before, on April 2d, and the appellee should have presented it for payment on the 3d of April, but for the fact that that day was Sunday. Therefore he had all of the banking hours of the 4th of April in which to present it. Under the statutes of this territory, when the performance of an act falls on Sunday, it may be performed on the following Monday. The appellee was entitled to recover under the law and the facts as found by the trial court and the admissions of the parties.

The judgment of the trial court is hereby affirmed, at the cost of appellant. All of the Justices concurring, except IRWIN, J., absent.

(19 Okl. 373) BARNES v. TERRITORY. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. CRIMINAL LAW-VERDICT – IMPEACIIMENT BY JUROR.

Upon the trial of a criminal cause, a juror who participates in the verdict will not be per• mitted to impeach his verdict by affidavit, deposition, or sworn statement. Public policy forbids that a juror should be heard to discredit his verdict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2392.] 2. SAME-HARMLESS ERROR.

An erroneous statement of the law, made by the trial judge in a colloquy with counsel during the argument to the jury, will not be sufficient ground upon which to set aside the verdict, where it is obvious from the entire record that it could not have prejudicially influenced the verdict.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3085.]

(Syllabus by the Court.)

Error from District Court, Oklahoma Coun- , this statement was equivalent to a declaraty; before Justice B. F. Burwell.

tion by the court of the law relating to the Jake Barnes was convicted of gaming, and crime in question, and, while it was an erbrings error. Affirmed.

roneous statement of the law, the question Chambers & Taylor, for plaintiff in error.

as to whether it was reversible error depends W. 0. Cromwell, Atty. Gen., and Don C.

upon whether or not in any state of the case Smith and J. H. Cline, Asst. Attys. Gen., for it might have prejudiced the jury and inthe Territory.

fluenced their verdict. The territory intro

duced a number of witnesses, all of whom BURFORD, C. J. The plaintiff in error, testified that the room over the defendant's Jake Barnes, was jointly charged by infor-saloon, known as the “Southern Club," was mation with one D. C. Stout with the crime a gambling room, and that on the day charged of carrying on certain gambling games.

in the indictment and for a long time previous case was tried to a jury, and Barnes was thereto the games of craps, faro, roulette, and convicted and Stout acquitted. After judg- klondyke were played there for money, and ment of conviction, Barnes filed his petition that the defendant usually received the money in error and case-made in this court.

from the tables or games. Every witness tesThere are but two alleged errors presented | tified that the games were dealt or played for our consideration. In support of his mo- for money, and there was not a particle of tion for new trial the defendant offered to evidence to the effect that any games were prove by one of the jurors that after they had played or conducted in said gambling house been considering the case a portion of two for fun or amusement. The only controverted days and nights, and the jury had been bal- or uncertain question in the proof was as to loting eleven for conviction and one for ac- who were the owners or managers of the quittal, it was agreed by the jurors that they place. The defense introduced no testimony. would all vote for acquittal of Stout and Upon this state of facts the statement of all for conviction of Barnes, and that pur- the court could not have in any manner preju. suant to such agreement they arrived at diced the defendant's case before the jury, the verdict which was returned. The court and hence was not such error as will warexcluded the offered evidence, and it is con- rant a reversal of the judgment. tended that this is error. This court settled The judgment of the district court of Oklathis question adversely to the contention of homa county is affirmed, at the costs of the plaintiff in error in the case of Colcord v. Con- plaintiff in error. All the Justices concur, ger, 10 Okl. 458, 62 Pac. 276, and there is except BURWELL, J., who tried the case nothing in this case that calls for a modifica- below, not sitting, and IRWIN, J., absent. tion of the rule there stated. It is there stated in the syallabus: "Upon grounds of public policy jurors will not be heard, by

(19 Okl. 77) affidavit, deposition, or other sworn state

NETTOGRAPH MACH. CO. v. BROWN ment, to impeach or explain their verdict, or

et al. show on what ground it was rendered, or that (Supreme Court of Oklahoma. Sept. 7, 1907.) they made a mistake, or misunderstood the 1. WRIT OF ERROR-BRIEF-FAILURE TO FILE law or the result of their finding, or to show

-REVERSAL.

Where the plaintiff in error has completed what items entered into the verdict, or how

his record and filed it in this court, and has they arrived at the amount. Jurors will only served and filed a brief in compliance with the be heard in support of their verdict or conduct rules of this court, and the defendant in error when the same is attempted to be impeached.” | has neither filed a brief nor offered any excuse

for such failure, the alleged errors will be takAt that time we stated that the only courts

en as confessed, and the judgment may be rewhich had adopted a different rule were versed without an examination of the record. Kansas, Iowa, and Tennessee. To these [Ed. Note. For cases in point, see Cent. Dig. should now be added Idaho. We are content

vol. 3, Appeal and Error, $$ 3108-3110.) with the rule as then stated, and adhere to 2. SAME. it. There was no error in excluding the tes

By rule 6 of this court, where the defend

ant in error in a civil cause fails to file a timony of the jurors as to the manner in

brief in support of the judgment attacked by which they reached their verdict.

the appeal, the court is given the discretion to The next contention of plaintiff in error

either affirm or reverse the cause, and may reis that the court, during the progress of the

verse the judgment without examining the rec

ord. argument by counsel for the defendant, en

[Ed. Note.--For cases in point, see Cent. Dig. gaged in a friendly colloquy as to the law | vol. 3, Appeal and Error, $$ 3108-3110.] defining the crime for which the plaintiff in

(Syllabus by the Court.) error was being tried, and in the course of

Error from Probate Court, Oklahoma Counsuch colloquy the trial judge made the statement in the presence of the jury "that it

ty ; Ledru Guthrie, Special Judge. did not make any difference whether anything

Action by the Settograph Machine Comwas played for or not, but under our statute

pany against A. J. Brown and E. C. Truefaro, monte, poker, roulette, and craps are

blood. Judgment for defendants, and plain• absolutely prohibited, even though the games

tiff brings error. Reversed. are played for fun." It may be conceded that Grant & McAdams, for plaintitr in error.

91 P.-54

BURFORD, C. J. The Nettograph Jachine 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 und E. C. Trueblood, administrators of the estate of Jennie Brown, deceasel, to recover jul meilt upou a promissory note in the sum of $300 executed by the defendants on the 2!th day of September, 190:3, to the Oklahoma Trust & Baking Company, due in 90 days ir ild::te, with li per cent. interest from maturiiy, and $.31) attorney's fees, and by the 12:yee assigned to the Nettograph Machine ('oupany, of St. Louis, the plaintiff in the ition. 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 danages 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

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 oli 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. Sept. 5, 1907.) 1. ATTACHMENT BoxD TO PAY JUDGMENTACTION THEREOX.

In action on by

were permitted, over the objection of the the defendant in an attachment case under see

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 à 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 allegedl and authorities (ited in support of its position. The defendants have filed no briet and offered no excuse for their default.

The failure of the defenilants 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. Ilaskell, 30) III. App. 444; Mattoon v. IIolmes, 14 Ill. pr. 392; Green v. Blalack, 23 Tex. +17; Richter v. Fresno ('anal Co., 101 (al. .S2, 36 Par. 98; Davis v. Hart, 10:3 ('al..5:3), 37 Pac.. 186. This court has by rule required briefs to be filed in all civil (auses, 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 shull serve his brief on coumel for defendant in error within forty days after filing his petition in error, and

the of 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. 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 show's 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. Alfirmed.

1. H. Lookabaugh, H. H. IIoward, and George R. Jobson, for plaintiff in error. II. Reid, J. 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 boud closed with

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