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sign same without the consent of the lessors. The lessee, G. W. Garrison, claims that prior to the signing of said lease and the delivery thereof he had entered into a separate and collateral agreement with the lessors, whereby it was agreed, stipulated, and understood that, in case said lessee assigned said lease, and was not in arrears with the rent at the time of assignment, he should be relieved, personally, from all liability under and by virtue of the terms of said lease contract; that this agreement was a condition precedent to the signing of said lease contract; and that the same would not have been signed and accepted by him but for the oral stipulations above referred to. The plaintiff in the court below brought an action against Garrison for the rent in arrears on said contract. The trial court refused to permit the defendant Garrison to testify as to the terms of said oral agreement, or to testify as to whether there was an oral agreement between the parties. The trial court also refused to permit defendant to show that the plaintiff's had assumed control of the premises by attempting to lease them to other parties, to which ruling of the court the defendant excepted. At the conclusion of the testimony, the court directed the jury to find a verdict for the plaintiff, which was done, to which defendant excepted. Motion for new trial was filed, overruled, and exceptions allowed, and the case is brought here for review.

Grant & McAdams, for plaintiff in error. J. H. Everest and C. F. Smith, for defendants in error.

IRWIN, J. (after stating the facts as above). The sole and only question raised in this case by the brief and argument of plaintiff in error, and the only ground assigned as error for a reversal of this case, is the action of the court in refusing the evidence as to the oral agreement. We take the proposition to be elementary that all prior and contemporaneous oral agreements as to matters involved in a written contract are merged in the written contract, and that the written contract cannot be changed or varied by such prior and contemporaneous parol agreements. Our statute, in our judgment, conclusively settles this proposition. Section 781, Wilson's Rev. & Ann. St. Okl. 1903, is as follows: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." The Supreme Court of this territory, in the case of Deming Investment Company v. Shawnee Fire Insurance Co., 16 Okl. 1, 83 Pac. 918, 4 L. R. A. (N. S.) 607, says: "A contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless

in case of fraud or mutual mistake of facts." The same doctrine is laid down by this court in the case of Liverpool & London & Globe Insurance Company v. Richardson Lumber Co., 11 Okl. 585, 69 Pac. 938.

On the strength of this statute and these cases, the decision of the probate court is affirmed, at the costs of the plaintiff in error. All the Justices concurring, except PANCOAST and GARBER, JJ., absent.

MEMORANDUM DECISIONS.

CASE v. FRAIIM. (Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 5, 1907.) Error from District Court, Rawlins County; A. C. T. Geiger, Judge. Action by Thomas Frahm against J. B. Case. Judgment for plaintiff. Defendant brings error. Affirmed. Fred Robertson, for plaintiff in error. W. E. Saum, for defendant in error.

PER CURIAM. We are unable to distinguish this case from the cases of Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862, and Robidoux v. Munson (decided by this court February, 1907) 88 Pac. 1085, and are satisfied with the conclusions reached in those cases. The judgment of the trial court is therefore affirmed.

CHICAGO, R. I. & P. RY. CO. v. MORRILL. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Smith County; R. M. Pickler, Judge. Action by Jesse Morrill against the Chicago, Rock Island & Pacific Railway Company. From a judgment in favor of plaintiff, defendant brings error. firmed. M. A. Low and Paul E. Walker, for plaintiff in error. J. T. Reed, for defendant in

error.

PER CURIAM. The defendant in error was a section hand in the employment of the plaintiff in error at the station of Kensington, in Smith county. The company had a pumphouse and well there in charge of H. L. Worley. December 31, 1902, Worley had occasion to be absent, and requested Joseph Giroux, who was the section boss, to look after the pumphouse, build a fire, sweep out, and see that everything was all right. Morrill was directed by Giroux to do this. Worley had also requested him to do so whenever he was away. Morrill went to the pumphouse as directed, and before leaving lifted a trap-door and looked down in the well to see if everything was right. He heard a noise, which he thought might be escaping steam. The well was 60 feet deep, and about 20 feet across. It was provided with ladders so constructed that the pumper could descend into the well to examine the pipes, which he did every day. The plaintiff went down to ascertain the cause of the noise, and the ladder gave way, and he fell on a cross-timber and was injured. August 3, 1903, the plaintiff commenced this action in Smith county district court, where he recovered a judgment for $2,000 on September 12, 1905. The railway company brings the case here. It is claimed that the plaintiff, when injured, was not engaged at work which he was employed by the company to do, and therefore he has no cause of action against it. It is also claimed that no negligence on the part of the company was shown. Numerous other questions have been presented, but they are all involved in these two. The only evidence on the subject

shows that the plaintiff was sent to the pumphouse to look after things, and see that they were all right, by the pumper, Worley, and the section boss, Giroux, who were authorized by the company to do so. It is also amply shown that the structure by which descent was made in the well had been erected some 15 years before, and was thoroughly decayed and rotten. It did not appear that it had ever been inspected. The decayed condition was not apparent from the upper surface of the timbers, but was easily seen by a casual look at the under side. The jury, by its general verdict, found that the company was negligent. We are unable to find error, and the judgment is affirmed.

CITY OF TOPEKA v. PERT. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Shawnee County; A. W. Dana, Judge. Action by Rebecca A. Pert against the city of Topeka. From a judgment in favor of plaintiff, defendant brings error. Affirmed. F. G. Drenning and W. C. Ralston, for plaintiff in error. Hazen & Gaw, for defendant in error.

PER CURIAM. No substantial error was committed in requiring the city to go to trial at the term the trial was had. Both parties mistakenly proceeded on the theory that the defendant was in default; but the demurrer of the city, which was filed by consent of the plaintiff, was adjudged to be frivolous, and hence the case then stood as if no demurrer had been filed. Neither the ruling on the demurrer, nor in denying the motion for continuance, furnish ground for complaint. The time subsequently given for answer and preparation for trial was brief; but an examination of the record satisfies us that no injustice was done to the city in requiring a trial at that term. The affidavit for continuance, setting forth the absent testimony, was treated as a deposition, which the city was privileged to introduce, but did not. No error was committed in the admission of testimony, nor in the rulings on instructions. Judgment affirmed.

FURBECK v. HOLMAN. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Trego County; J. H. Reeder, Judge. Action by B. E. Furbeck against S. J. Holman. Judgment for defendant, and plaintiff brings error. Affirmed. W. E. Saum, for plaintiff in error. A. D. Gilkeson, for defendant in error. PER CURIAM. The contract introduced in evidence over the plaintiff's objection corroborated the defendant's testimony. All other matters discussed depend upon what the facts were. The facts were found generally by the trial court adversely to the plaintiff upon conflicting oral testimony, and under the well-known rule this court cannot interfere. The judgment of the district court is affirmed.

HASTINGS v. FOX et al. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Rawlins County; A. C. T. Geiger, Judge. Action by N. N. Hastings against Rosewell Fox and others. From a judgment in favor of defendants, plaintiff brings error. Affirmed. J. P. Noble, for plaintiff in error. J. H. Briney and Langmade & Caster, for defendants in er

ror.

PER CURIAM. N. N. Hastings brought an action to quiet title against several defendants, and, failing to recover, prosecutes error. Various questions are argued in the briefs, which cannot be considered, as it is impossible to ascertain from the record whether they were passed upon by the trial court. The petition alleged that plaintiff was in the possession of the property in controversy. This allegation was a material one, inasmuch as the action was brought under the statute (Gen. St. 1901, §

5081); the pleading being too general to be sufficient upon any other theory. No special findings were made or asked. The judgment may have been based upon a decision against the plaintiff on the issue as to possession; the .evidence thereon being conflicting. Under such circumstances we can only affirm it.

MILLS v. HARKIN et al. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Miami County; W. II. Sheldon, Judge. Action by Blanche Hogan Harkin and another against W. M. Mills. From a judgment in favor of plaintiffs, defendant brings error. Affirmed. L. S. Harvey and Frank M. Sheridan, for plaintiff in error. Shendon & Simpson, for defendants in error.

was.

PER CURIAM. The action was brought by Blanche Hogan Harkin to set aside and cancel an oil and gas lease executed by Thomas Hogan, her father, to W. M. Mills. The title to the land was in the daughter, to whom the parents had conveyed it when she was an infant 18 months old. The conveyance was recorded when it was executed, and the lessee had constructive notice that the grantor of the lease had no title to the land. Believing, however, that Thomas Hogan was the owner, Mills expended $500 in developing oil and gas, and thereby increased the value of the land to double what it The daughter may have known all about the lease. There were some circumstances in proof tending to show that she did; but the court made special findings of fact covering evfinding of the jury, to which certain issues of ery disputed point in the case, setting aside the fact had been submitted merely to aid the court. The court's findings are that the conveyance to the daughter was in good faith, for value; that the deed was placed on record, and afterwards delivered to the daughter; that the daughter had possession of the land at the time the lease was executed, and had no knowledge or notice of the lease. These findings cannot be disturbed on the ground that in the opinion of plaintiff in error they are against the weight of evidence, or that the evidence is not sufficient to support each and all of them. There were two jury trials, and the court set aside the special findings at the first, and granted a new trial. It was, therefore, wholly unnecessary and uncalled for to incumber the record in this case with the proceedings of the first trial, and to assign as error rulings of the court thereon, or, in commenting upon the evidence, to quote from the evidence at the first trial, because the first trial was set aside. This practice is condemned, as well as the practice indulged in here of making unnecessary and useless assignments of error. There are 29 separate errors assigned. Two relate to errors occurring at the first trial; 13 relate to the giving or refusal to give instructions, and are argued at length in the brief, although the court set aside all the findings of the jury; and 10 of the others relate to rulings upon the admission of evidence, and none are well taken. The questions asked were not proper cross-examination. Many of them were afterwards asked of and answered by the same witness, when placed upon the stand by the defendant. The other errors are predicated upon the refusal to set aside the findings made by the court, and denying the motion for a new trial. No errors being found in the record, the judgment is affirmed.

STATE ex rel. COLEMAN, Atty. Gen., v. CITY OF PITTSBURG. (Supreme Court of Kansas. July 5, 1907.) Quo warranto by the state, on the relation of C. C. Coleman, Attorney General, against the city of Pittsburg. Judgment for the state. F. S. Jackson, Atty.

Gen., C. D. Shukers, Sp. Asst. Atty. Gen.. for the State. J. L. Kirkpatrick, J. J. Campbell, and B. S. Gaitskill, for defendant.

PER CURIAM. Action of quo warranto, brought by the state on the relation of the Attorney General, to oust the city of Pittsburg from the exercise of certain assumed and unwarranted corporate powers, namely, the imposition and collection of a license tax upon the business of selling and keeping for sale intoxicating liquors in a manner forbidden by law, and also authorizing and licensing bawdy houses and houses of ill fame and the collection of money from the keepers and inmates of these places for the privileges of carrying on the illicit busi

It was alleged that the city officers exercised these unwarranted powers and collected license taxes for these prescribed privileges as fines and forfeitures in simulated prosecutions, brought at stated times under certain invalid city ordinances. The report of the commissioner appointed to take the testimony has been made, and the case finally submitted on the evidence and a brief in behalf of the state. though the charges in the petition are not directly admitted, the testimony sustaining them is abundant and convincing. No one appears here in behalf of the city to contest the sufficiency of the evidence, or to defend or excuse the unlawful actions of the city officers. Judgment I will be rendered in favor of the state against the city as prayed for in the plaintiff's petition.

TOWNS v. MILLER. (Supreme Court of Kansas. July 5, 1907.) Error from District Court, Lane County; Chas. E. Lobdell, Judge. Action between H. E. Towns and G. F. Miller. From the judgment, Towns brings error. Affirmed. J. D. Lafferty, for plaintiff in error. W. H. Russell, for defendant in error.

PER CURIAM. Under the decision in the case of Bushey v. Hardin (Kan.) 86 Pac. 146, the proceedings for the sale of the land in controversy were invalid from the beginning, because a lawful sale could not be consummated during the term of the existing lease. It would open the door to juggling in the disposition of school lands if proceedings to sell could be commenced in the lifetime of one lease on the theory that a second lease might be made to effectuate them. The proceedings to sell and the sale being invalid, the second lease was valid, and the judgment of the district court is affirmed.

UNION PAC. R. CO. v. McCULLOUGH et ux. (Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 5, 1907.) Error from District Court, Dickinson County; O. L. Moore, Judge. Action by Samuel H. McCullough and wife against the Union Pacific Railroad Company. There was a judgment for plaintiffs, and defendant brings error. Affirmed. N. H. Loomis, R. W. Blair, and H. A. Scandrett, for plaintiff in error. C. E. Pugh and Geo. E. Overmeyer, for defendants in error.

PER CURIAM. In this case the defendants in error recovered judgment for $3.375 for the negligence of the railroad company's trainmen, which resulted in the killing of their son at a crossing in Solomon. The defense was a general denial and contributory negligence. The evidence has been examined and found sufficient to sustain the finding of negligence on the part of the trainmen. It appears from the evidence and findings that the heads of the team the boy was driving were over or across the first rail of the track, upon which the train which killed him was approaching, when it was first possible for him to see the approaching train; that he immediately whipped up and attempted to cross ahead of the train, but his wagon was struck by the engine, and he was killed. The circumstances were such that it is peculiarly a ques

tion of fact for the jury whether the boy exercised reasonable care to discover the approach of the train, and whether he did what a reasonably prudent person would do under all the circumstances to avoid the danger after he discovered the approaching train. We cannot say that their findings were not supported by evidence, nor under undisputed facts that the boy was guilty of contributory negligence. The trial errors assigned have been examined, and we find nothing to justify a reversal of the case. The judgment is therefore affirmed.

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1906.) Original application for writ of quo warranto. R. E. Hammond, for relators.

PER CURIAM. Nothing appearing in the application herein why this court should take original jurisdiction of this cause, the same is hereby dismissed.

STATE ex rel. WILLIAMS. Respondent, v. CALKINS, Appellant. (No. 2,263.) (Supreme Court of Montana. April 3, 1906.) Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge. On motion to dismiss appeal. James E. Healy, for appellant. Mackel & Meyer, for respondent.

PER CURIAM. Upon motion of the respondent herein, this appeal is hereby dismissed.

STORY, Appellant, v. PITMAN, Respondent. (No. 2,265.) (Supreme Court of Montana. May 14, 1906.) Appeal from District Court, Carbon County; Frank Henry, Judge. H. C. Crippen, for appellant.

PER CURIAM. The appeal herein is hereby dismissed, as settled.

SULLIVAN, Respondent, v. BANK et al., Appellants. (No. 2,325.) (Supreme Court of Montana. June 27, 1906.) Appeal from District Court, Silver Bow County; John B. McClernan, Judge. Maury & Hogevoll, for appelR. B. Smith, for respondent.

PER CURIAM. Respondent's motion to dismiss the appeal herein is sustained, and the appeal dismissed.

VUKSINICH, Respondent, v. GRAND LODGE A. O. U. W. OF MONTANA, Appellant. (No. 2.346.) (Supreme Court of Montana. Dec. 20, 1906.) Appeal from District Court, Silver Bow County; John B. McClernan, Judge. Massena Bullard, for appellant.

PER CURIAM. It is ordered that the appeal herein be, and the same is, hereby dismissed, in accordance with præcipe on file.

TERRITORY ex rel. SIMONS, Atty. Gen., v. DIVERS, Mayor. (Supreme Court of Oklahoma. Sept. 20, 1907.) Mandamus by the territory, on relation of P. C. Simons, Attorney General, against William H. Divers, mayor of Anadarko. Dismissed. P. C. Simons, E. E. Grinstead, L. E. McKnight, and A. T. Boys, for relator. Carl Glitsch and Rush & Steen, for respondent.

PER CURIAM. The petition in this case was filed in this court April 1, 1904. No briefs by either party having been filed, in accordance with the rules of this court the case is dismissed, at the costs of the plaintiff.

WHITE v. WHITE. (Supreme Court of Oregon. Aug. 6, 1907.) Appeal from Circuit Court, Washington County; T. A. McBride, Judge. Suit by Emma G. White against Eugene D. White. From the decree for plaintiff, defendant appeals. Affirmed. H. K. Sargent, for appellant. S. B. Huston, for respondent.

PER CURIAM. This is a suit by the wife for a divorce on the ground of desertion. The answer denies the abandonment, and alleges that the defendant was obliged to leave his home by reason of the plaintiff's cruel and inhuman treatment, the facts of which are stated by way of cross-bill, and the prayer is that her suit may be dismissed, that he may have the divorce, and also be allotted an undivided one-third of her real property, a description of which is given.

The allegations of new matter in the answer and cross-complaint were denied in the reply, on which issues the cause was tried and a decree rendered as prayed for in the complaint, from which the defendant appeals. No good purpose can be promoted by setting out any part of the testimony, a perusal of which persuades us that no error was committed in granting the plaintiff the divorce, which decree is affirmed.

AMES v. KINNEAR et al. (Supreme Court of Washington. Sept. 6, 1907.) Appeal from Superior Court, King County; Arthur E. Griffin, Judge. Action by Edgar Ames against George Kinnear and others. Judgment for defendants, and plaintiff appeals. Affirmed. Bausman & Kelleher and Sachs & Hale, for appellant. Jas. M. Epler and Chas A. Kinnear, for respondents.

PER CURIAM. This is the second appeal in this case. For the former opinion, see 42 Wash. 80. 84 Pac. 629. Reference is here made to that opinion for a full statement of the nature of the controversy. By that decision the trial court was directed to overrule the demurrer to the answer, and upon the return of the cause to that court the demurrer, was overruled, and the plaintiff replied to the answer. With the issues thus formed the cause was tried before the court without a jury, and resulted in a judgment dismissing the cause, from which the plaintiff has appealed. The findings of the court are substantially in accordance with the facts averred in the affirmative defense, the scope of which may be seen by reference to the former opinion. The only matter urged upon this appeal is the insufficiency of the evidence to sustain the findings. We have carefully read the testimony, and we find evidence fully supporting the court's findings. We are satisfied that under the record we would not be justified in disturbing the findings as made. It is true there is conflict in the testimony upon some material points; but we shall not undertake to say from the record before us that the trial court erred in finding the greater weight of the evidence to be with the respondents. The findings do not necessarily reflect upon the integrity of any witness. Years had elapsed between the happening of the events and the time of the

trial. Under such circumstances it is a common experience with the best of men to remember particular facts somewhat imperfectly. The conflict in this case we believe is due to such fact, rather than to any intentional misstatement on the part of any of the witnesses. Upon the whole evidence we are satisfied with the findings of the trial court. The conclusions of law follow therefrom, and the judgment is affirmed.

COLBY v. MONTANA STABLES. (Supreme Court of Washington. July 26, 1907.) Appeal from Superior Court, King County; Geo. E. Morris, Judge. Action by G. E. Colby against the Montana Stables. From a judgment for plaintiff, defendant appeals. Affirmed. Brown, Leihey & Kane, for appellant. McBurney & Cummings, for respondent.

PER CURIAM. The facts and issues in this case are the same as in the case of Weaver v. Montana Stables (decided March 23, 1907), 89 Pac. 154. No new questions are presented. For the reasons there stated, the judgment in this case must be affirmed. It is so ordered.

ILLINOIS REFRIGERATOR CO. v. RICE. (Supreme Court of Washington. Sept. 5, 1907.) Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge. Action by the Illinois Refrigerator Company against E. L. Rice. From a judgment for plaintiff, defendant appeals. Affirmed. A. E. Barnes, H. M. Brooks, and E. L. Rice, for appellant. Belden & Losey, for respondent.

PER CURIAM. This action was brought by the respondent to recover from appellant the value of certain goods alleged to have been wrongfully appropriated by the appellant, who was acting as agent for respondent in the sale of the goods. Upon issues joined the cause was tried to the court without a jury. Findings and a judgment were entered in favor of the respondent. The questions presented on this appeal are wholly questions of fact. We have carefully examined the evidence, and are satisfied that the trial court arrived at a correct judgment in the case. It is needless to discuss the evidence. The judgment is affirmed.

END OF CASES IN VOL. 91.

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