"The petition stating a good cause of action, it was error for the court below to sustain a motion to dismiss the cause and render judgment against the plaintiff upon the opening statement of his counsel. 'Such a motion will not be granted merely because counsel fail to state in his opening statement facts sufficient to constitute a cause of action.'"

No motion for new trial was necessary to present this question to the court. Wagner v. A., T. & S. F. Ry. Co., 73 Kan. 283, 85 Pac. 299; Cowart v. Parker-Washington Co. et al., 40 Okl. 56, 136 Pac. 153; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 149 Pac.

1136.

For the reasons stated, the order dismissing this case is set aside, the cause reinstated, and is reversed and remanded. All the Justices concur.

(54 Okl. 132)

MATTHEWS-LINTON GRAIN CO. v.
SHANNON. (No. 3519.)
(Supreme Court of Oklahoma. Dec. 22, 1914.
Rehearing Denied Dec. 21, 1915.)

(Syllabus by the Court.)

THACKER, C. Plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court. Plaintiff's petition contains the following allegations:

"That heretofore, to wit, on or about the 1st day of October, 1909, the plaintiff and the defendant herein, acting by and through its duly authorized secretary and treasurer, F. R. Linton, entered into an oral agreement, whereby it agreed that the plaintiff herein should use and operate a certain corn sheller, then owned by him, and was to buy certain corn on the open market in Grady county, Okl., the defendant herein to furnish sufficient money with which to purchase said corn, and the plaintiff herein to furnish his machinery and labor; and they were to buy and sell corn in Grady county, Okl. That it was agreed between plaintiff and defend

1. PARTNERSHIP 328-SETTLEMENT OF AC-ant that whatever profits were made by them COUNTS ACTION ON AGREED BALANCE-EVI

DENCE.

Upon a petition for an agreed balance upon a settlement of accounts between partners as contradistinguished from a petition for an accounting and such balance as may be found thereon evidence of the actual state of such accounts prior to such settlement is ordinarily inadmissible.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 779-781; Dec. Dig. 328.] 2. APPEAL AND ERROR 889 TREATED AS AMENDED.

PETITION

A petition will not be treated as amended to conform to the plaintiff's evidence, where defendant objected to such evidence and the case was not submitted to the jury upon the issue made by such evidence, and the same is controverted by the defendant's evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. 889; Pleading, Cent. Dig. § 1355.] 3. PARTNERSHIP 327-SETTLEMENT OF AC

COUNTS-ACTION ON AGREED BALANCE-EVI

DENCE.

Where a petition of one partner against another is for a balance in favor of the petitioner, alleged to have been found and agreed upon in a settlement of the accounts between such partners at a specified time, and the defendant's answer, denying such balance, admits a settlement of such accounts at such time but alleges an agreed balance in his own favor, which plaintiff denies by reply, and, notwithstanding plaintiff produces no evidence in support of his allegation of such agreed balance, but instead and without offer to amend his petition testifies that he is entitled to a balance upon an accounting over defendant's objection, which the defendant controverts by evidence, and the issue made up by such pleadings and not that made up by such evidence, is submitted to the jury by the court, the admission of such evidence will be deemed error.

[Ed. Note. For other cases, see Partnership, Cent. Dig. §8 769-778; Dec. Dig. 327.] Commissioners' Opinion, Division No. 1. Error from Superior Court, Grady County; Will Linn, Judge.

should be divided equally between them after all expenses had been paid. That this plainwith reference to the purchase of said corn on tiff was to communicate with said defendant the open market, and plaintiff says that under said agreement said defendant furnished him the sum of $1,250. That he proceeded to buy corn on the open market, and shelled the same with his sheller, and that he, at the request of the decredit for the purpose of carrying out the terms fendant, borrowed money on his own notes and of said contract. That plaintiff herein, on or about the 4th day of February, 1910, had a settlement with said defendant, and that in said settlement with said defendant the plaintiff and defendant found they had lost in said business transaction the sum of $463.22, and that under said agreement so had the defendants herein were to pay plaintiff one-half of said loss, and that said defendants are at this time indebted to plaintiff in said sum of $231.62 together with interest thereon from the 6th day of February, 1910, amounting to $15.05, making a total due plaintiff from said defendant of $246.67."

Defendant's answer contains the following allegations:

"For further answer defendant admits that on the 4th day of February, 1910, it had a complete and final settlement with the plaintiff, and that on said day and date it was agreed between said plaintiff and defendant that the plaintiff was indebted to defendant in the sum of $500 upon said final settlement, and said plaintiff executed and delivered to defendant its certain promissory note in the sum of $500 due six months after date, and executed a certain mortgage to secure the same, and that on the maturity of said note said plaintiff paid the same; that said note was given in payment of balance due defendant, being said final settlement, on the 4th day of February, 1910; and that all transactions between said plaintiff and defendant prior thereto, and as alleged in plaintiff's petition, were finally settled, and the defendant denies that it is indebted to the plaintiff in the sum of $231.62 and interest in the sum of $15.05, or any other sum, and denies that it ever agreed to pay said amount, as alleged.'

Plaintiff's reply consists of a general denial. There was a verdict and judgment for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the plaintiff for $246.67 under instructions | 388, and especially, 395, 396. Also see 8 Cyc. to the jury, construing the petition as an ac- 516. tion predicated upon the alleged settlement, and thus presenting the issues made by pleadings as above shown.

For the reasons stated, this case should be reversed and remanded for another trial. PER CURIAM. Adopted in whole.

(No. 5991.)

(49 Okl. 609)

(Supreme Court of Oklahoma. Nov. 23, 1915. Rehearing Denied Dec. 28, 1915.)

(Syllabus by the Court.)

Only two propositions are urged under five errors assigned; and these may be stated, we think, in one as follows: The action is predicated upon a settlement of mutual accounts, STREETER et al. v. PONCA STATE BANK. in which a balance of $231.62 in favor of plaintiff was found and agreed upon; and it is urged that it was error to admit evidence of the actual state of such accounts which did not tend to prove such settlement. The evidence of the plaintiff is in a state of confusion, and is somewhat contradictory in respect to whether there was a settlement; but, upon the whole, we think it tends to prove that there was no settlement as to the accounts between the parties nor balance agreed upon. The evidence of the defendant tends to show that there was a settlement of

such accounts, and that in such settlement it was found and agreed that neither party owed the other anything on account of any prior dealings between them, although it further tended to show, and the plaintiff admitted upon the witness stand, that defendant then bought and paid plaintiff $1,000 for a lot of corn, and also loaned him $500, taking his note and mortgage therefor, due six months after date, which he paid at or before maturity.

MORTGAGES 535 FORECLOSURE SALE -
RIGHTS OF PURCHASER-PRIOR MORTGAGE.
The purchaser at a mortgage foreclosure
sale of real estate takes title to the land subject
to a prior mortgage thereon and is not entitled
to deduct the amount of said prior mortgage
from the amount of his bid, nor to apply any
surplus remaining after the satisfaction of his
judgment and costs upon such prior mortgage
indebtedness.

Cent. Dig. § 1556; Dec. Dig. 535.]
[Ed. Note. For other cases, see Mortgages,

Error from District Court, Noble County;
W. M. Bowles, Judge.

Action by the Ponca State Bank against A. L. Streeter and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions.

P. W. Cress, of Perry, for plaintiffs in error. Louthan & Burns, of Ponca City, for defendant in error.

HARDY, J. The Ponca State Bank recovered judgment in the district court of Noble county against plaintiffs in error, defendants below, for $3,610.25 and costs, and for foreclosure of a certain real estate mort

[1] Notwithstanding the defendant in the trial court urged the objection embodied in the foregoing proposition, which it here urges to the admission of evidence as to the actual state of the accounts, and notwithstanding such evidence did not tend to prove that there had been any such settlement as plaintiff alleges, but, to the contrary, his own evi-gage given to secure the payment of the indence shows there was none such, he made no offer to amend his petition.

[2] We, might, perhaps, treat the petition as amended to conform to the evidence if the instructions of the court to the jury had presented for their determination the issues made thereby, instead of that made by the pleadings; but we do not think we could do so when it does not appear from the instructions that the case was determined upon the issue made by the evidence, and plaintiff's evidence in this regard is controverted as in

this case.

[3] We think the court erred in admitting this evidence of the actual state of the accounts between these parties, this being a suit by one partner against the other upon a settlement in the nature of an account stated for an agreed balance ascertained in such settlement, and not for an accounting and such balance as might thereupon be found owing, and such erroneously admitted evidence having a tendency to prejudice the minds of the jurors upon the issue tried. See 1 R. C. L. §§ 18-21, especially section 21; 1 Cyc. 364, 386,

debtedness represented by said judgment, which mortgage was subject to a prior mortgage in favor of one L. W. Clapp, for $800. On November 7, 1912, order of sale in accordance with said decree of foreclosure was issued, directing the sale of the premises, subject to the said prior mortgage. The premises were levied upon, and the interest of defendants therein appraised at $6,000. The property was sold at public outcry, and was bid in by the attorney for the bank, for the sum of $4,001, cash in hand, and on motion duly made the sale was confirmed by the court. On April 11, 1913, the bank caused to be issued an execution against plaintiff in error for an alleged deficiency of $585.45 and costs. Plaintiffs in error filed motion to recall this execution, correct the journal entry approving the sale, and to require the payment of the balance of the sum bid to them. A hearing was had upon this motion, at which considerable testimony was taken tending to contradict the record of the proceedings, at the close of which the court announced that he would sustain the motion of plaintiffs in error and modify the order

As to the right of the bank to retain the amount of its bid over and above its judgment, and to apply same upon the prior mortgage in favor of Clapp, it may be said that Clapp was not a party to this proceed-contract under which the defendant agreed to ing, and the court therefore did not have jurisdiction to inquire into and determine the amount due on said mortgage, or to require the payment thereof. On the contrary, it appears that when the equity of redemption of plaintiffs in error was sold it

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

controversy to arbitration, and, after hearing in error, counsel sets up some fourteen spec the testimony, the arbitrators found that the ifications of error, but in his brief groups defendant was indebted to the plaintiff in the them into four general assignments, as folsum of $969, and so returned their decision and award in writing, upon which the plaintiff prayed judgment for the amount of the award. Held, that the court did not commit error in overruling the defendant's motion to strike the

The original action was to recover upon a ment of his action, for the purpose of perfectbreach of contract for failure to furnish feeding or making better his original cause of ac

for cattle. After the arbitration and amendment to the petition the action was to recover upon the same claim. There was no change of claim nor cause of action. At most, it was an allegation of facts material to the case, accruing after the filing of the first or former complaint. It is also immaterial whether the proceeding was taken under the Oklahoma or Arkansas Code of Civil Procedure, for the reason that they are practically the same.

Section 4795, Rev. Stat. Okl. 1910, Ann., which was in force at the time of filing the amendment, is as follows:

"Either party may be allowed, on notice, and on such terms, as to costs, as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case, occurring after the former petition, answer, or reply."

And section 5084, Mansfield's Digest of the Laws of Arkansas, also in force in the Indian Territory prior to and at the time the case was commenced, is as follows:

"The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the filing of the former complaint, answer or reply." The Oklahoma statute, which in our opinion, effecting only the remedy, if there was a difference, should control, was taken from section 4227, Kansas Code, and, having the subject under consideration, that court, before the adoption of the Kansas Code of Civil Procedure by Oklahoma, in Austin v. Jones, 47 Kan. 565, 28 Pac. 621, uses the following language:

"Section 144 of the Civil Code (Gen. St. 1889, § 4227) provides as follows: 'Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer, or reply, alleging facts material to the case occurring after the former petition, answer, or reply.' This court has repeatedly and uniformly held that supplemental pleadings may be filed within the provisions of the foregoing section. Porter v. Wells, 6 Kan. 453; Clark v. Spencer, 14 Kan. 398 [19 Am. Rep. 96]; Simpson v. Vose, 31 Kan. 227, 1 Pac. 601; Williams v. Moorehead, 33 Kan. 609, 7 Pac. 226; Dreilling v. Bank, 43 Kan. 197, 25 Pac. 94 [19 Am. St. Rep. 126]. See especially the case of Williams v. Moorehead. It would seem that the principal objections urged against this supplemental petition are that the plaintiff asked leave to file it 'precisely four years after the commencement of the action,' and that it constituted a departure from his original case and an attempt to set forth a cause of action which he did not have at the beginning of the suit. We do not think that these objections are sufficient. As long as the suit continues undisposed of the parties have the right, under section 144 of the Civil Code, to file supplemental pleadings, provided, of course, that they can bring themselves within the provisions of such section, even if it should be four or more years after the commencement of the action before they ask to file their supplemental pleading. Besides, the plaintiff in this case did not attempt by his supplemental petition to set up a new or independent cause of action, but simply attempted to set forth facts which took place subsequently to the commence

facts, upon which the plaintiff seeks to recover, tion. The principal facts, and nearly all the took place prior to the commencement of the action; and the facts taking place afterwards were intended to be used only in connection with those which took place prior thereto."

In Cedar Valley Land & Cattle Co. v. Coburn (C. C.) 29 Fed. 586, Justice Brewer, having before the court practically the same question involved herein, said:

"Where it appears that after the issues were joined the parties entered into an agreement of the true meaning and intent of that agreement, compromise, and, a dispute having arisen as to the parties appeared before the court, presented a petition for a decree, and submitted all the facts as clearly and fully as this might have been done under a supplemental bill, no objection on account of form being suggested, and where the court, upon such hearing, construed the agreement of compromise, and entered a decree in accordance therewith, neither party will be permitted thereafter to raise a mere question of form. The decree thus rendered cannot be attacked on the ground that there was no supplemental bill filed."

Upon consideration of the Arkansas statute, in force in the Indian Territory prior to and at the time of the commencement of the action, in Rutherford v. McDonald, in the Court of Appeals of that territory, reported in 3 Ind. T. 512, 61 S. W. 989, Judge Gill says:

"Did the court below err in substituting an action of ejectment for one begun as an action of forcible entry and detainer? An examination of the pleadings in this case shows that the issues tried in the cause were those of an action of ejectment, instead of those in an action in asked for by the plaintiff in the cause below, and forcible entry and detainer. The amendment allowed by the court, was a change in the name of the action, and not such an amendment as changed the issues to be tried. The answer of the defendant in the action is just such an answer as he would have had to have filed in the case to have his title and possession of the premises tried in action of ejectment. He was not surprised by the amendment, but, in fact, had treated the action up to the time that the amendment was asked as though it were an action of ejectment, had produced his witnesses, and was ready to go on with the trial and present his side of the issues in the case. The statute (section 5080, Mansf. Dig.; section 3285, Ind. T. Ann. St. 1899) provides that 'the court may at any time in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. Under this section the court is given a wide discretion, in the furtherance of justice, to allow any mistake made in a pleading to be corrected, where it does not substantially change the claim or defense. In this case the claim and defense remained exactly as they were before the amendment was made. There was not even necessity for delaying the trial of the action, as both parties were ready to try the action as though it were one in ejectment. Under_section 5083, Mansf. Dig. (section 3288, Ind. Ter. Ann. St. 1899), 'the court must, in every stage of an action, disregard any error or defect in the pro