brought suit on the policy, urging among other things a waiver of proof of loss as to the oath. There was judgment for plaintiff, and defendant appealed. The Supreme Court in affirming the judgment of the trial court said; "The requirement of the policy that the proof of loss shall be signed and sworn to by the insured means, by general understanding and practice in matters requiring such verification, that the oath, or

tiff to recover, which the court declined to do, but charged “that said detailed statement was a compliance with said by-laws," to which defendant excepted. There was verdict for plaintiff. On appeal the court held that there was no waiver of proof of loss in the case, and in passing said: ""The by-laws require a statement of the loss-that is, of the property destroyed or damaged-to be signed by the owner, and verified by the oath of the owner, with the additional oath a certificate thereof, shall be in writing. that the party making such statement was, This present certificate does not state that at the time of the loss, the owner of said the affiant made oath before the notary. property. It turns out that of the property This defect seems to be fatal to its suffi

ciency. Proff. Not. § 68; Smart v. Howe, 3 Mich. 590. But the company did not include it among its grounds of objections, and thus excluded and waived it. The only objections specified on the head of the oath were that there was 'no venue and no affidavit signed by the insured.' There being no requirement in the policy that the in

lost Cloe, the wife, was the sole owner. The statement was not sworn to by her. It does not appear that any oath was made by either as to the ownership of the property.' The court told the jury explicitly that that statement was a substantial compliance with the by-laws. This we think erroneous. The failure of the owner of the property to make oath to the statement rendered the state-sured shall sign the affidavit, the latter is ment defective in a material respect. It may be true that such defect might be waived by the company, but there was no evidence in the case tending to show that the company did waive it"-and reversed and remanded the cause.

McManus v. Western Assur. Co., 22 Misc. Rep. 269, 48 N. Y. Supp. 820, was a suit to recover on a fire insurance policy. The plaintiff, among other things, alleged that she duly served proofs of loss on the defendant, and that she had complied with all the other conditions of said policy on her part. The answer was a general denial. The policy, among other things, provided that in case of loss the insured, within 60 days after the fire, "shall render a statement to this company signed and sworn to by the insured," stating, among the other things, "the interest of the insured in the property." Proof of loss was duly furnished. It was signed by the insured, and under her signature was the following certificate of oath, not signed by her, and without venue:

untenable. Proff. Not. § 67; Millius v. Shafer, 3 Denio (N. Y.) 60. But the former was good; absence of a venue making an affidavit a nullity. Thompson v. Burhans, 61 N. Y. 52; Proff. Not. § 66. The affidavit of the notary subsequently made and served upon the company did not supply the lack of a validly certified oath by the insured. It was her oath in writing, or a valid certificate thereof, which the company was entitled to. The proofs of loss were thus fatally defective, and the plaintiff may not prevail unless such defect were waived by the company. It now seems to me as matter of law that it was." But since forfeitures are not favored, we hold that the giving of this instruction is not reversible error, for the reason that, as the condition insisted on was one inserted in the policy for the bene fit of the insurer, the same was one which the insurer might, and in this instance did, waive. 16 Am. & Eng. Enc. of Law, 934, says: "Since the conditions of a policy, a breach of which by the assured will give rise to a forfeiture, are inserted for the benefit of the insurance company, they may be waived either pending the negotiations

"Personally appeared Mrs. Ann McManus, signer of the foregoing statement who made solemn oath of the truth of the same. "Witness my hand and official seal this for the insurance, or after such negotiations eighth day of April, 1896.

"Michael A. Burdett,

"Notary Public N. Y. Co."

In reply thereto the insurer notified the insured "that the papers offered as proof of loss are defective," and "to serve new papers in proper form," and urged as objections thereto, among other things, that "the statement prefixed to the schedule is not properly verified." "There seems to be no venue and no affidavit signed by the insured, but merely a certificate of the notary that the insured made oath to the truth of the same." The defects thus pointed out were never corrected by the insured, who claimed the same to be sufficient. Both parties stood on their rights on this point, and plaintiff

have been completed and during the currency of the policy, and this either before or after the forfeiture is incurred; and, since forfeitures are not favored in the law, the courts are always prompt to seize hold of any circumstances that indicate an election to waive." There is no conflict in the evidence.

On this point the record disclosed that the loss sued for accrued May 26, 1905; that soon thereafter plaintiffs notified defendant thereof, who in a short time sent its adjuster to the scene; that he with one of the insured examined the injury sustained to the crops, and on a blank furnished by the company prepared proof thereof, showing a loss of 40 per cent. to the wheat, 30 per cent. to

lis Co., 11 Colo. App. 264, 53 Pac. 242; Error from District Court, Love County; Dwelling House Ins. Co. v. Dowdall, 159 S. H. Russell, Judge. Ill. 179, 42 N. E. 606; Spring Garden, etc., Ins. Co. v. Evans, 9 Md. 1, 66 Am. Dec. 30; Pretzfelder v. Merchants', etc., Ins. Co., 123 N. C. 164, 31 S. E. 470, 44 L. R. A. 424); that upon the undisputed facts plaintiffs were entitled to have the law declared to be that defendant by retaining, without objection, the proof of loss furnished by them waived all objections thereto, including the objections that the same was not sworn to by the insured, and a verdict directed for plaintiffs. Under this view of the case the error complained of was harmless. Ins. Co. v. Allis Co., supra.

The judgment of the lower court is af- attachment was sued out and levied upon 60 firmed. All the Justices concur.

(Supreme Court of Oklahoma. Sept. 14, 1909.) he signed and delivered the promissory note 1. CONTRACTS (§ 245*) - DISCHARGE AGREEMENT.

|

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

tract may be discharged at any time before the performance is due, by a new agreement with the effect of altering the terms of the original agreement or of rescinding it altogether; and a claim under the original contract may then be met by the new agreement, so far as the latter operates to alter or rescind the former." 9 Cyc. 593. This was the theory of the defense, and the theory upon which the case was tried by both sides. But even though the facts alleged in the answer may not have constituted a defense,

cannot see how the plaintiff was harmed by the order overruling it. "Although a demurrer may have been improperly overruled, yet, if the demurrant was not harmed by such ruling, judgment will not be reversed on ac count of the harmless error." 6 Enc. of P. & P. p. 368. After the demurrer was overruled, the issues were joined, and the parties proceeded to trial, fully understanding the issues involved in the case.

tution of this suit, or at any time prior or subsequent thereto, about to remove his property, or any material part thereof, out of what was then the Indian Territory, and not leave enough to satisfy the claim of plaintiff; that defendant had not removed, nor was not about to remove, his property, or any part, from said territory at or prior to the issuance of the attachment, not leaving enough therein to satisfy the plaintiff's claim; that defendant had not sold, conveyed, or otherwise disposed of any property, or permitted it to be sold with the aim of defrauding and cheat-yet under the circumstances of this case we ing his creditors, and defendant was not at said time about to sell or otherwise dispose of his property with any such intent. On the 15th day of January, 1908, the defendant | moved the court to pass upon his motion to discharge the attachment, and the controverting affidavit of defendant to advance it ahead of the trial upon its merits was by the court overruled, and said motion was not passed upon until the case was tried upon its merits. Upon the issues thus joined the case was tried to a jury, which returned a verdict in favor of the defendant in the sum of $55, upon which judgment was duly entered by the court as follows: "It is therefore ordered, adjudged, and decreed by this court that the plaintiff, J. S. Mullen, take nothing in this behalf, that the attachment herein be| 52 Pac. 391; Noble v. Worthy, 1 Ind. T. 458, dissolved and held for naught, and that the 45 S. W. 137; Citizens' Bank v. Carey, 2 Ind. defendant, S. H. Thaxton, do have and recov- T. 84, 48 S. W. 1012. We have looked the er of plaintiff, J. S. Mullen, the sum of $55, record over carefully, and are of the opinwith legal interest from date, together with ion the rights of the plaintiff were in no all of his costs in this behalf incurred or ex- way prejudiced by any rulings of the court pended, and that execution issue therefor." in excluding or admitting evidence. The plaintiff, being dissatisfied with the judgment rendered against him, prosecuted his appeal to this court by case-made and petition in error.

A great many errors are assigned, but we will only notice those argued by counsel for plaintiff in error in their brief, and will take them up in the order therein set out.

The first and second assignments of error are argued together. The first is that the court erred in overruling the first ground of the plaintiff's demurrer to the defendant's answer, and the second is that the court erred in overruling the second ground of the plaintiff's demurrer to the defendant's answer. Counsel insist that by his answer the defendant seeks to claim a rescission of a written contract, and a note signed and delivered by himself to the plaintiff, without the payment of any consideration of any character, and without either party surrendering the written obligation in his possession, and with the plaintiff in possession of the rental note and rental contract, insisting upon the defendant's liability thereon, and that this is insufficient to constitute rescission. It seems to us the answer states facts sufficient to constitute a mutual abandonment of the original contract. "As a contract is the result of agreement, so an agreement may

The next four assignments argued are based upon the rejection and admission of evidence by the trial court. The rule is well established that the improper admission or rejection of evidence, if not prejudicial to the party complaining, is not ground for reversal. Frick v. Reynolds et al., 6 Okl. G3S,

The first assignment of error on this ground is a fair example of all the rest. It is as follows, as copied from the brief of counsel for plaintiff in error: "The tenth assignment of error is as follows: Because the court erred in permitting the following question to be asked, and the following answer given: 'Q. Do you know whether or not he ever canceled any contracts as Mr. Mullen's agent? A. He canceled one with me.' The plaintiff objected to this question and answer, and the court overruled the objection, stating directly that he would permit the defendant to answer that 'He (plaintiff) canceled one with me.' The chief question in controversy in this action was whether or not the contract entered into between the plaintiff and defendant had been canceled. That was the chief issue for the jury to try. Certainly it was incompetent and highly prejudicial to permit the defendant himself to testify to as a conclusion what was the net result of the transactions he claimed had been had looking toward the cancellation of the contract, as it was the very issue that was being tried by the jury. It is respectfully submitted that this was clearly erroneous." It is not entirely clear that this question was inadmissible. It was presumably offered for the purpose of show

with this method of doing business, yet he reluctantly concurred in it, and so far as the evidence shows he never, except in the case at bar, refused to approve the judgment of his agent in the matter of the cancellation of these contracts, and his refusal then occurred long after the rental contract should have been executed. "The authority of an agent

len's agent; and, as that was one of the questions in the case, it was quite important to establish it. If the evidence was incompetent for that purpose, the foregoing excerpt from the brief of counsel, and we have quoted their argument on this proposition in full, does not point out with sufficient clearness wherein it was incompetent, and how the plaintiff was injured by its admission. in any given case * * * is an attribute The question and answer may be objectionable in form, but that is not a sufficient ground upon which to reverse the case.

of the character bestowed upon him in that case by the principal. Thus if the principal has by his express act, or as the logical and The next and last assignment of error ar- legal result of his words or conduct, impressgued by counsel is that the court erred in ed upon the agent the character of one aurefusing to sustain the demurrer to the thorized to act or speak for him in a given evidence at the close of the defendant's evi- capacity, authority so to speak and act foldence. Considerable of the evidence taken lows as a necessary attribute of the charat the trial is copied into the brief of coun-acter, and the principal having conferred the sel for plaintiff in error in support of this character will not be heard to assert, as assignment. It is claimed that this evi- against third persons who have relied theredence shows that Mr. Harper, the agent of on in good faith, that he did not intend to Mr. Mullen, the plaintiff, acted beyond the impose so much authority, or that he had scope of his authority in canceling the orig- given the agent express instructions not to inal rental contract and the promissory note exercise it. The latter question is one to given in consideration thereof. The appoint- be settled between the agent and himself. ment of the agent being by parol, it was for It rested with the principal to determine in the jury to determine from the facts as the first instance what character he would developed by the evidence, and the instruc- impart, but, having made the determination tions of the court, whether an agency exist- and imparted the character, he must be held ed, and if so, its nature and extent. Mechem to have intended also the usual and legal on Agency, § 106; Law v. Cross, 1 Black, 533, attributes of that character." Mechem on 17 L. Ed. 185. In the case at bar it was Agency, § 278; Smith v. Armour Packing not contended that Mr. Harper was not the Company, 6 Ind. T. 479, 98 S. W. 165. “The agent of Mr. Mullen for the general purpose apparent authority of an agent is to be of renting certain lands belonging to Mr. gathered from all the facts and circumstances Mullen, and after the lands were rented, acin evidence, and is a question of fact for the cording to Mr. Mullen's testimony, “If a jury." Ricker National Bank v. Stone, 21 man wanted to change his contract, as, for Okl. 833, 97 Pac. 577. instance, from money rent to a third or fourth, or if Mr. X. lived upon the place, and he desired to go to Mexico, and let Mr. Y. move there, or Mr. Z., he had to get my consent to do it. Along in the summer he was to report to me from time to time what farmers on the places were neglecting to cultivate their crops, so that close attention would be paid to the collection of that particular rent from that particular person in the fall. In the fall of the year he was

We have examined all of the assignments of error presented by counsel for plaintiff in error, and are satisfied that none of them affect any of his substantial rights. Section 4344, Wilson's Rev. & Ann. St. 1903, provides that: "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." The judgment of the court below is affirmed.

DUNN and TURNER, JJ., concur. WIL LIAMS and HAYES, JJ., dissent.

(24 Okl. 662)

authorized to receive the rents and send them to me. He had no right or authority to revoke, annul, or amend a contract without my consent." It is true Mr. Mullen testified that his agent's authority stopped short of the act he performed in this particular case, but to our mind there was sufficient evidence aside from that introduced at the trial to justify the court below in submitting the case to the jury. It appears from the evi- STATE ex rel. WEST, Atty. Gen., v. COBB, dence that Harper, in the course of his appointment, in the discharge of his duties, changed and canceled rental contracts al ready made, when in his judgment he deemed it best. This practice continued for at least three years: and, while it seems that his principal was not always entirely pleased

County Judge. Sept. 14, 1909.) (Supreme Court of Oklahoma. 1. COURTS (§ 206*) - SUPREME COURT ORIGINAL JURISDICTION-LEAVE TO PROCEED.

When the ordinary original jurisdiction of the Supreme Court is invoked, leave to proceed must in all cases be first obtained from the

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes