778 it to be done, connives at it, or does not prevent it." error. The admission of such testimony was not We have examined the record and find that there is no error in the admission of testimony prejudicial to the defendant, nor do we find any prejudicial error in the exclusion of testimony. Most of the testimony of fered by the defendant and excluded by the court consisted of hearsay or of self-serving statements, and was not competent. The lower court should be instructed to cause such modification to be entered of recThe evidence in this case sustains the al-ord in the proceedings below, and in all other legations contained in the petition, and shows respects the judgment of the lower court that the defendant was engaged in a busi- should be affirmed, at the cost of the defendness which annoyed, injured, and endangered ant. the comfort, repose, and safety of others, and also offended public decency. It shows that the defendant was engaged in the violation of the prohibitory liquor laws of the state of Oklahoma, was guilty of selling cig PER CURIAM. Adopted in whole. (63 Okl. 298) SADDLER v. SCOTT. (No. 4665.) arettes to minors, and of permitting lewd, (Supreme Court of Oklahoma. April 24, 1917.) profane, and lascivious characters, both men and women, to congregate about his business, and indulge in lewd, boisterous, and indecent acts, greatly to the annoyance of the good citizenship of the small town of Moore. unhesitatingly say that the judgment of the lower court was righteous and in the interest of good morals and public decency. We [4] We would be inclined to let the order of the lower court stand without modification, but the county attorney in his brief has cited the case of Hill et al. v. State, 45 Okl. 367, 145 Pac. 492, a case in which Justice Kane modified the order of the court below (Syllabus by the Court.) MISSAL. Where plaintiff in error fails to file brief as required by rule 7 of this court (38 Okl. vi, 95 Pac. vi), the appeal will be dismissed for want of prosecution. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108.] Action between J. Le Roy Saddler and E. F. Scott. Judgment for the latter, and the former brings error. Appeal dismissed. OWEN, J. The petition in error and case 1912. The plaintiff in error has failed to file brief as required by rule 7 of this court (38 Okl. vi, 95 Pac. vi). For failure to comply with this rule this appeal is dismissed for All the Justices conwant of prosecution. in a case similar to the one at bar by allow-made were filed in this court December 19, ing, under conditions imposed by the court, the building to be used for legitimate purposes. The brief for the state, in this case, suggests a modification of the order of the lower court which we think would meet the ends of justice, which suggestion we have decided to adopt. The order of the lower court, with reference to the building and property, is therefore modified to read as follows: cur. SADDLER v. LEAHY. (Supreme Court of Oklahoma. (63 Okl. 242) (No. 4666.) April 24, 1917.) (Syllabus by the Court.) WANT OF APPEAL AND ERROR 773(2) PROSECUTION-RULE OF COURT-DISMISSAL Where plaintiff in error fails to file brief as required by rule 7 of this court (38 Okl. vi, 95 Pac. vi), the appeal will be dismissed for want of prosecution. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108.] "That the sheriff of Cleveland county, Okl., take an invoice of all stock and fixtures now in said building, and return the invoice of all goods of an intoxicating or contraband nature to the board of county commissioners of Cleveland county, Okl.; that said board may make such disposition of said stock and fixtures and furniture in any manner as provided by law; that all personal property seized and found not to be of an intoxicating or contraband nature nor used in keeping or maintaining such nuisance shall be returned to the owner thereof; that the building in controversy should be restored to plaintiff in error by the sheriff of Cleveland county upon the condition that said A. R. Balch should observe in all respects the order of the court, and shall not at any time either in person or by agents, tenant, or subtenant enter in or upon or conduct any unlawful business of any nature whatsoever in or upon the premises, or permit any person to conduct any such unlawful concur. Action between J. Le Roy Saddler and W. T. Leahy. Judgment for the latter, and the former brings error. Appeal dismissed. OWEN, J. The plaintiff in error having failed to comply with rule 7 of this court (38 Okl. vi, 95 Pac. vi), this appeal is dismissed for want of prosecution. All the Justices For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (65 Okl. 139) dence was insufficient to warrant any re WESTERN UNION TELEGRAPH CO. v. covery as exemplary damages, and that the CATES. (No. 7011.) (Supreme Court of Oklahoma. Jan. 2, 1917. Rehearing Denied May 15, 1917.) (Syllabus by the Court.) trial court erred in refusing to require the plaintiff to accept the offer made by the defendant at the trial, and in permitting any recovery as exemplary damages. [1] Under section 2851, Rev. Laws 1910, 1. DAMAGES 91(1)-PUNITIVE DAMAGES-exemplary or punitive damages can be reGROUNDS. In an action for the breach of an obligation covered in an action for the breach of an not arising from contract, exemplary or punitive obligation not arising from contract only damages can be recovered, in addition to the where the defendant has been guilty of opactual damages, only where the defendant has pression, fraud, malice, actual or presumed. been guilty of oppression, fraud, or malice, ac-This action cannot be treated by the plaintiff tual or presumed. [Ed. Note. For other cases, see Damages, as one for breach of a contract and the reCent. Dig. §§ 193-198.] covery of exemplary damages upheld on any 2. DAMAGES 91(1) — PUNITIVE DAMAGES-theory, for to do so would do violence to the TORT EVIDENCE. To authorize a recovery for exemplary or punitive damages, in an action sounding in tort, the evidence must show some element of oppression, fraud or malice; i. e., the act which contuated by or accompanied with some evil intent, or must have been the result of such gross negligence as is deemed equivalent to such intent. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 193-198.] stitutes the cause of action must have been ac 3. TELEGRAPHS AND TELEPHONES 66(4) FAILURE TO DELIVER MESSAGE-GROSS NEGLIGENCE-PUNITIVE DAMAGES. The evidence in this case fails to show that the conduct of the defendant, which is alleged as the cause of action, was actuated by or accompanied with any evil intent, or was such gross negligence as is deemed equivalent to such intent. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 63.] Commissioners' Opinion, Division No. 5. Error from District Court, Osage County; R. H. Hudson, Judge. general rule that exemplary damages can never be recovered for the mere breach of contract irrespective of the motive on the part of the defendant which prompted the breach, except in certain cases which are exceptions to the general rule and in cases where the statute specifically authorizes such recovery. This case comes within none of such excepted cases. Therefore the action, so far as the exemplary damage feature of it is concerned, must be treated as one sounding in tort. [2] Treating the action as being one in tort, can a recovery of exemplary or punitive damages be sustained under the evidence in the case? Under the section of the statute, supra, as construed by the decisions of this court, which are in harmony with the leading decisions upon this question, to authorize a recovery of exemplary or punitive damages, the evidence must show some eleAction by J. W. Cates against the Western ment of oppression, fraud, or malice; that is, Union Telegraph Company. Judgment for the act which constitutes the cause of action plaintiff, and defendant brings error. Re must have been actuated by or accompanied versed. with some evil intent, or must have been the result of such gross negligence as is deemed equivalent to such intent. Chicago, R. I. & P. Ry. Co. v. Wells, 156 Pac. 314 (not yet officially reported); Western Union Telegraph Co. v. Garrett, 158 Pac. 619 (not yet officially reported); Western Union Telegraph Co. v. Reeves, 34 Okl. 468, 126 Pac. 216, and cases cited therein. in the case of Western Union Telegraph Co. v. Garrett, supra, the court held the evidence sufficient to warrant the submission of the question of exemplary damages to the jury for determination, but there is nothing in that case which militates against the general and uniform rule as above stated. that case the court, in passing upon the sufficiency of the evidence, said: Preston A. Shinn, of Pawhuska, and George H. Fearons, of New York City, for plaintiff in error. H. P. White, of Pawhuska, for defendant in error. CAMPBELL, C. In the court below, J. W. Cates, who was the plaintiff, recovered exemplary damages against the Western Union Telegraph Company, the defendant, for the failure to deliver a death message. From that recovery, the defendant has appealed and presents to this court the question of the sufficiency of the evidence to sustain such a recovery. In addition to such exemplary damage, actual damage in the sum of 32 cents was presumably allowed by the jury. The defendant at the trial offered to pay the amount of actual damages claimed by the plaintiff and the costs accrued to the time of such offer, but such offer was refused, and the trial resulted in a judgment for the plaintiff for $500, which amount, less 32 cents, was exemplary damages. It is true that In "Taking into consideration the intimate ac that he was in the office two or three times a quaintance of defendant's agent with plaintiff, day, and no mention ever made of this telegram or explanation offered for a failure to deliver, we think the weight of authority authorized the court and jury to conclude that defendant was guilty of gross negligence amounting to a The contention in this court is that the evi-wanton disregard of the rights of plaintiff." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes As we read the decisions, it is not every case of grossly negligent conduct which will warrant the infliction of exemplary or punitive damages, but the authorities seem to uniformly require that the conduct which constitutes the gross negligence must have been actuated by or accompanied with some evil intent, or such conduct must have been of a character so grossly negligent as to be deemed equivalent to such intent. We have read the evidence in this case with a view of determining whether the conduct of the defendant's agent, in the matter of delivering the death message, constituted gross negligence. There can be no question but that the defendant's agent was guilty of negligence under the evidence in this case. But such determination does not materially assist in the solution of the question presented in this appeal. It must be determined from the evidence that the defendant's agent was guilty of gross negligence before the question becomes complex to any degree. Our statute (section 2919, R. L. 1910) defines gross negligence as follows: "Gross negligence is the want of slight care and diligence." Section 2917, R. L. 1910, defines slight care and diligence as follows: "Slight care or diligence is such as persons of ordinary prudence * exercise about their own affairs of slight importance." * [3] Taking these definitions as a guide, and measuring the conduct of the defendant's agent by them, what conclusion must we reach? The evidence upon the question as to what was done by the defendant's agent in attempting to make delivery of the message in question is not disputed. The telegram was addressed to W. T. Williams. The messenger boy testified that he was given the message by the agent for delivery to the addressee, and that after he received it he took it to a person living on Ninth street in the city of Pawhuska by the name of Williams, and tried to deliver it, but was told that it was not for such person; that he did not leave the message there, but brought it back with him, and made inquiries on the streets if anybody had seen the man Williams whose name was on the message; that he did not know the man whose name was on the message; that he brought the message into the office and told the agent that he could not locate the man anywhere; that the agent told him to try again, and he took the message and tried to deliver it the second time, and after inquiring around he took the message back to the office, and had never seen the message since then; that he took the message to the person on Ninth street because inquiry had been made at the office for a message for a Mrs. Williams who was visiting on Ninth street just a day or two before this message came, and when it came he thought it was the message which this woman was expecting, and he took it to the house where she was visiting, and she signed for it, but when she opened it she said it was not for her, and gave it back to him. There was introduced in evidence the delivery sheet showing the delivery of the message to Mrs. Williams on the morning the message was received, which she gave back to the messenger boy after reading it and finding out that it was not for her. The plaintiff showed that the addressee had lived in Pawhuska for two years prior to the date of the receipt of the message, and had all that time worked at the light plant, and was the engineer of the plant; that his name was in the city directory, and that a phone was in the office of the light plant; that the message was not delivered to him for five or six days after it was received at the office in Pawhuska; and that he had to call at the office of defendant before he got the message. The evidence showed that the message as received gave the address of the sendee as being Pawhuskee, % Electric Light Plant, but such address was not placed upon the copy which was made and which was attempted to be delivered. Neither the messenger boy nor the agent knew W. T. Williams to whom the message was addressed. We must say that the agent of the defendant made some effort to deliver the message in good faith. He perhaps did not make the effort that a person of ordinary prudence would have made, but he did exercise slight diligence to make the delivery of the message to the addressee, and acted in the matter of making delivery of the message as if it were a matter of slight importance. His conduct was such as might reasonably be expected of ordinary prudent persons in matters of slight importance to themselves. We therefore are of the opinion that the defendant exercised slight care and diligence in endeavoring to make delivery of the message in question, and that no exemplary damages were recoverable under the rule announced in the case of Western Union TeleWe arrive at graph Co. v. Reeves, supra. this conclusion from the uncontradicted evidence in the case, and hold that the evidence is insufficient to support any verdict for exemplary or punitive damages. The trial court should have required the plaintiff to accept the offer of the defendant to pay the actual damages which were sued for by the plaintiff, and the defendant should have paid the costs to that date, and judgment should have been rendered for such amount only. The judgment appealed from is reversed, and this cause remanded to the trial court, with directions to enter judgment in accordance with this opinion. PER CURIAM. Adopted in whole. OF EVIDENCE-ERROR-REVIEW. An order of the trial court, sustaining an objection to the introduction of evidence by the defendant for the reason that the answer fails [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2367, 2368, 2370, 2371.] 2. TRUSTS 70 "RESULTING TRUST"-TITLE TO PROPERTY. plaintiff and cross-petitioners, and defendant A. W. Boyd brings error. Reversed and remanded. Wilson, Tomerlin & Buckholts, of Okla. homa City, for plaintiff in error. Keaton, Wells & Johnston and S. A. Horton, all of Oklahoma City, for defendants in error. RUMMONS, C. This action was commenc to state facts constituting a defense, is a part ed in the district court of Oklahoma county of the record proper, and an error in making by the defendant in error, Chas. Winte, such order may be reviewed in this court upon against T. M. Daniel and wife, and the plaintranscript accompanied by a petition in error tiff in error, to recover upon a promissory duly presenting the same. note executed by T. M. Daniel and wife and to foreclose a mortgage upon real estate in Oklahoma county to secure the same. The defendants in error H. F. Vulbrock and S. M. Gloyd filed cross-petitions to recover upon notes executed by T. M. Daniel and wife and to foreclose a mortgage upon said real estate to secure the same. Recovery was sought against the plaintiff in error because he had assumed the payment of said debts in a conveyance of said real estate to him from Daniel and wife. The answer of Boyd alleged that the insertion of the assumption of the mortgages in the deed was without his knowlthat he permitted the title to be transferred edge or consent and without consideration; "Resulting trusts" are those which arise where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition or from accompanying facts and cir: cumstances that the beneficial interest is not to go or be enjoyed with the legal title. In such a case a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real owner. [Ed. Note. For other cases, see Trusts, Cent. Dig. $$ 95-97. For other definitions, see Words and Phrases, First and Second Series, Resulting Trust.] 3. TRUSTS 632, 88-RESULTING TRUSTS-to him by Daniel as an accommodation to STATUTE OF FRAUDS-PAROL EVIDENCE. Resulting trusts are not within the statute of frauds, and may be established by parol evidence, where such evidence is not otherwise incompetent. [Ed. Note.-For other cases, see Trusts, Cent. Dig. $$ 93, 130, 131, 133.] 4. TRUSTS DENCE. 89(1)—RESULTING TRUST-Evi The conveyance to the plaintiff in error in this case of the real estate involved herein under the circumstances alleged in his answer held to create a resulting trust, and held, further, that the plaintiff in error took no beneficial interest in said real estate. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 134.] 5. MORTGAGES 280(2) ASSUMPTION IN CONVEYANCE-CONSIDERATION. the latter, and that there was no consideration passing from him to Daniel or from Daniel to him for said conveyance; that the deed was made under the following circumstances: Some time prior to its execution, Daniel and one Williams were engaged in the mercantile business in Packingtown, and were indebted to certain merchandise creditors; that they were in failing circumstances, and sold out their merchandise and business and prorated the proceeds to their creditors, leaving a deficiency; that thereafter Daniel came to the plaintiff in error Boyd, and stated that he intended to leave Oklahoma City, and asked permission to convey the legal title to the real estate to plainA clause in a deed of conveyance of real estiff in error, subject to certain outstanding tate, providing that the grantee assumes the mortgages, and further requested that he payment of the mortgage indebtedness described (plaintiff in error) attempt to negotiate a therein, in order to be enforced against the sale of the equity and apply the proceeds grantee, must be supported by a consideration, and where the facts and circumstances sur upon the amount remaining due to the merrounding the conveyance are such that a result-chandise creditors, and any amount remaining trust is thereby created, and the grantee ing to be turned over to Daniel; that plaintakes no beneficial interest in the real estate conveyed, such conveyance is not a sufficient tiff in error, relying upon the understanding consideration to support the agreement to as with Daniel that said deed should be subject sume the payment of such mortgage indebted to the mortgages and not to contain any assumption thereof, did not read the deed, and was ignorant of the assumption clause until he was so informed by one of the mortgagees; that upon being so informed he immediately repudiated said assumption of said mortgages, explaining to the mortgagees that he Action by Charles Winte against A. W. was not the beneficial owner of said property Boyd and T. M. Daniel and wife, in which and had never parted with or received any H. F. Vulbrock and another filed cross-peti- consideration for the deed; that he, plaintions against defendants. Judgment fortiff in error, was trying to accommodate and ness. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 743.] Commissioners' Opinion, Division No. 1. Error from District Court, Oklahoma County; Geo. W. Clark, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The favor Daniel, and that the assumption clause I made was not served in time. While we are was inserted fraudulently and without au- inclined to agree with the contention of dethority. Plaintiff in error further alleged fendants, yet we do not deem it necessary to that at the time of the delivery of said deed determine that proposition, for the reason he had not examined the property and had that the appeal was lodged in this court never seen it since; that plaintiff in error within six months from the date the trial was acting without any consideration or court sustained the objection to the introduccompensation, and that the deed was made to tion of evidence, and it is properly certified him merely as a matter of convenience and as a transcript by the clerk of the district accommodation to Daniel. Plaintiff in error court. It has been held by this court that further alleged that he never received any the record proper is made up of the petition, beneficial use of said property; that if he the process, the return, pleadings subsequent had received any rents or profits he would thereto, reports, verdicts, orders, and judghave held same for the benefit of Daniel and ments, and an error appearing upon the face his merchandise creditors, and disclaimed thereof may be raised for the first time in any interest in said real estate. Plaintiff in this court on a transcript thereof, accomerror further alleged that at most the deed panied by a petition in error duly presenting was intended only as security for the benefit the same. Tribal Development Co. v. White of the merchandise creditors of the said Dan- Bros., 28 Okl. 525, 114 Pac. 736; Baker v. iel, and that the parties in interest have not Hammett, 23 Okl. 480, 100 Pac. 1114. changed their position or been injured in any ruling of the trial court upon the objection manner by such assumption in said deed. to the introduction of evidence was an order Plaintiff in error prayed that the mortgagees of the court and a part of the record as much take nothing as against him, that he be re- as if said order had been made upon a deleased and discharged from any personal lia-murrer to the answer, and is therefore propbility by reason of the assumption clause in erly reviewable by this court upon a transaid deed, and that said deed be reformed script. The motion of defendants in error to and said assumption clause contained there- dismiss should therefore be overruled. in be decreed to be void. At the trial, after the plaintiff below and the cross-petitioners had rested, the defendant Boyd offered evidence in support of his answer, whereupon the plaintiff and cross-petitioners interposed an objection to the introduction of any evidence by the defendant Boyd because his answer failed to state facts constituting a defense. This objection was by the trial court sustained, to which defendant Boyd excepted, and thereupon the court directed the jury to render a verdict in favor of the plaintiff and cross-petitioners against him. Defendant Boyd thereafter moved for a new trial, which was overruled by the court more than 15 days after the rendition of judgment upon the verdict of the jury. Plaintiff then asked for and was granted an extension of time in which to make and serve a case-made for appeal to this court. It seems from the record that the trial court sustained the objection to the introduction of evidence for the reason that the allegation of fraud set up in the answer is merely a conclusion of law, and that no facts were set up therein showing fraud. If fraud were the only ground in the answer upon which plaintiff in error sought to escape liability upon the assumption of the notes and mortgages contained in the deed from Daniel and wife to him, we would have no hesitancy holding the judgment of the trial court correct. But it is contended by plaintiff in error that the facts alleged in the answer show that the assumption of the notes and mortgages contained in the deed and upon which the defendants in error relied for a recovery against him was without consideration, in that he took the title to the real estate involved herein, not as the beneficial [1] We are met at the threshold of this owner, but for the convenience of Daniel cause by a motion of defendants in error to and in order to sell the same and apply the dismiss the appeal for the reason that the proceeds to the satisfaction of Daniel's debts. case-made was not served within the time It is first urged by plaintiff in error that the allowed by the statute or any lawful exten-deed from Daniel to him constituted a mortsion thereof. It is contended by defendant gage. We are unable to agree with this conin error that, the judgment of the court being tention for the reason that the facts set up rendered on sustaining an objection to the in the answer do not show that any defeasintroduction of any evidence because the ance of said conveyance was in the contemanswer failed to state facts constituting a plation of the parties, or that a redemption defense, no motion for a new trial was nec- thereof by Daniel was ever contemplated. essary, and, being unnecessary, the filing of a motion for a new trial did not operate to extend the time in which to make and serve a case-made for appeal, and, as the only errors assigned in the brief of plaintiff in error are based upon such ruling of the trial court, the motion for a new trial was wholly unnecessary to present the questions sought to be reviewed here, and therefore the case [2-4] Plaintiff in error next contends that he held title to said real estate in trust, that Daniel was the beneficial owner, and that plaintiff in error was the mere holder of the naked legal title. The defendants in error meet this contention by urging the statute of frauds, which provides: "No trust in relation to real property is valid, unless created or declared: First. By a written |