"We do not understand that a party may | the action as a bar to any personal judgment, commence suit before a cause of action accrues, where proper application was made therefor and then, after it accrues, as a matter of right, within a reasonable time. Other cases bearfile a supplemental petition alleging the facts showing this. A party may not sue on a note ing upon the question at issue are: Clevetwo months before it matures, and then upon land, etc., R. Co. v. Hadley, 179 Ind. 429, 101 maturity demand, as a right, the filing of a N. E. 473, 45 L. R. A. (N. S.) 796; Milliken supplemental petition showing the maturity. We do not mean that a court may not allow V. McGarrah et al., 164 App. Div. 110, 149 N. this, or that it may never be done; but it is Y. Supp. 484; Henry v. Montezuma W. & L. not a matter of right." Co., 55 Colo. 182, 133 Pac. 747; Gribben v. Clement, 141 Iowa, 144, 119 N. W. 596, 133 Am. St. Rep. 157. that the order is invalid." And, further, that: "A peremptory writ commanding such compliance at this time ought not to be withheld on the ground that, when the matter was first brought to the attention of the court, it was still possible for the defendants to obey the order within the statutory period. Even an ordinary civil action brought before the plaintiff's right has fully matured may be proceeded with, in the discretion of the court, upon the filing of a supplemental pleading (Smith v. Smith, 22 Kan. 699, 703; King v. Hyatt, 51 Kan. 504, 32 Pac. 1105 [37 Am. St. Rep. 304]), and an action for damages for breach of contract may be maintained before the arrival of the time for its performance, where its obligation is denied. (Caley v. Mills, 79 Kan. 418, 100 Pac. 69)." In State ex rel. Dawson v. Railroad Companies, 85 Kan. 649, 118 Pac. 872, it was urged that the action had been prematurely The statute authorizing the filing of supbrought, for the reason that the defendants plemental petitions has been construed and had 87 days remaining in which to comply given effect by this court in Wade v. Gould, with the order in question, and that hence 8 Okl. 690, 59 Pac. 1; Reynolds v. Hill, 28 it was impossible for them to have already Okl. 533, 114 Pac. 1108; Prince v. Gosnell, failed to obey. It was held that the allega- 149 Pac. 1162. Our statute permitting tions of the petition fairly showed a present amendments is very broad, and that permitdetermination not to perform, and that the ting the filing of supplemental pleadings, it defendants expressed no willingness to obey seems, vests in the trial court a full discrethe order when sued, but contested its va- tion in the matter of filing a supplemental lidity, and under the circumstances the ac- petition, and leaves to the court the authortion was not premature. It was said that the ity to permit the same to be done, upon such 90 days allowed by the statute for compliance terms as to costs as the court may prescribe. with the order of the board of railroad com- In the case at bar the supplemental petition missioners— brought into the case no fact not known to has now long since passed, and the the defendant. Indeed, at every stage of the defendants still refuse performance, and under-proceedings, he had urged the precise objectake to justify their course by the contention tion that was met by the supplemental pleading. The trial was begun on March 25th, or almost three months after defendant had qualified and assumed the duties of the office. The court had already acquired jurisdiction of the action, though the original petition was defective. There was no change of parties, the subject-matter remained the same, and the object of the proceedings was the same. State ex rel. Wood v. Baker, 38 Wis. 71; State ex rel. Rose et al. v. Job et al., 205 Mo. 1, 103 S. W. 493; Hunnicutt v. State ex rel. Witt, 75 Tex. 233, 12 S. W. 106. I believe the majority opinion of this court is in conflict with both the spirit and letter of section 6005, Rev. Laws 1910; for it certainly cannot be said that by reason of the action of the trial court in permitting the supplemental petition to be filed a miscarriage of justice resulted, or that in doing so the trial court violated a constitutional or statutory right of the defendant. This statute, and section 4791, providing that errors or defects in the pleadings or proceedings, not affecting the substantial rights of the adverse party, should furnish no grounds for reversal on account of such error, were intended to prevent the reversal of judgments upon mere technicalities, and to give regard to the merits of a controversy. The purpose of the former provision of the statute is recognized by the majority opinion, but it is said, in effect, that because the court refused to allow the defendant a reasonable time to answer the supplemental petition, and to prepare for trial, the court would not be justified in applying the statute. That the court may or may not have committed an error in ruling the defendant to answer on the following day, presents another and dif In Brown v. Stuart, 90 Kan. 302, 133 Pac. 725, it was held to be wholly within the sound discretion of the court to permit the filing of a supplemental petition; while in Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579, citing Howard v. Johnston, 82 N. Y. 271, it was said that the provision of the Code allowing supplemental pleadings authorizes the court to permit a defendant to set up a set-off or counterclaim based upon facts arising since the filing of the original petition. After citing the statute of that state permitting the filing of supplemental pleadings, the court, in Halfmoon Bridge Co. v. Canal Board, 213 N. Y. 160, 107 N. E. 344, held that the trial court had a discretion to permit or refuse a supplemental pleading, but that such discretion must be exercised reasonably, and not capriciously or willfully. In Jensen v. Dorr, 159 Cal. 742, 116 Pac. 553, it was held to be an abuse of discretion to refuse leave to defendant to set up by supplemental answer the bankruptcy discharge obtained subsequent to the commencement of ferent assignment of error from that under consideration. The point I urge is that, upon the record, no error or abuse of discretion was committed by the trial court in permitting the filing of the supplemental petition. The opinion takes no account of the former decision of the court in Lewis v. Bandy, 144 Pac. 624, where it is said in the syllabus: "Where the original petition alleges an intent upon the part of defendant to usurp the duties and functions of a particular office, it is not error for the court to permit an amendment to allege that such usurpation had, in fact, occurred." The statement of the case is somewhat involved, though it appears that the action was begun November 20, 1912, and we may fairly assume from the statement in the syllabus and from the law fixing the time that the term of office of county commissioners shall begin that the "amendment" was filed after the defendant had entered upon the discharge of the duties of his office. In such circumstances a supplemental, and not an amended, petition would have been the proper pleading, though the point does not appear to have been made. (52 Okl. 761) ALBRIGHT v. BLALOCK. (No. 5253.) (Supreme Court of Oklahoma. Dec. 7, 1915.) (Syllabus by the Court.) DAMAGES 120 BREACH OF CONTRACT- In an action for damages arising upon an alleged breach of contract for the use of a team of mules, the measure of damages is the reasonable market value of the use of such animals. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 291-305; Dec. Dig. 120.] Commissioners' Opinion, Division No. 3. Error from County Court, Washita County; | R. L. Shean, Judge. Action by P. B. Blalock against Fred Albright. Judgment for plaintiff, and defendant brings error. Reversed and remanded. Rutherford Brett, of Oklahoma City, and Richard A. Billups, of Cordell, for plaintiff in error. A. M. Beets and T. A. Edwards, both of Cordell, for defendant in error. BLEAKMORE, C. This case presents error from the county court of Washita county. The defendant in error, P. B. Blalock, plain I am, for the reasons stated, unable to con- tiff below, sued Fred Albright for damages, cur in the opinion of the court. Error from District Court, McClain County; W. M. Bowles, Special Judge. Action by Frank Farriss against Mark Reader. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions. alleging that on the 15th day of April, 1912, the parties entered into a contract, by the terms of which plaintiff agreed to break for service a team of mules owned by defendant, in consideration whereof he was to have the use of said mules until the 1st day of January, 1913; that pursuant to said contract plaintiff broke said mules to service, but, in violation thereof, defendant thereafter deprived him of the use of said mules for 22 weeks. The cause was tried to a jury, and plaintiff recovered. The plaintiff was entitled to recover only the reasonable market value of the use of the property for the time he was deprived thereof in violation of said contract. To establish his damages in this regard he was permitted, over the objection of defendant, Dorset Carter, of Oklahoma City, for plain- to introduce evidence of the usable value of tiff in error. Franklin & Mauldin, of Purcell, the mules to himself alone. We do not conand P. S. Nagle, of Kingfisher, for defend-ceive this to be the rule. The true measure ant in error. of his damage was the reasonable market value of the use of such animals during the time he was deprived thereof. In Thomas v. First State Bank of Tecumseh, 32 Okl. 115, 121 Pac. 272, Ann. Cas. 1914A, 376, it is said: KANE, C. J. This controversy presents the same questions involved in cause No. 7575, Reader v. Farriss, 153 Pac. 678, in which the opinion has just been handed down. This was a proceeding instituted by the plaintiff in error in the former case, plaintiff below, who was also dissatisfied with the judgment of the trial court, holding that neither party was entitled to the office of sheriff and declaring the same to be vacant. For the reasons stated in the former opinion, the judgment herein is also reversed and remanded, with directions to proceed as directed in the former opinion. All the Justices concur, except SHARP, J., who delivers an opinion expressing his views. See 153 Pac. 680. "Horses broken and trained to do work would have, under ordinary circumstances, such usable value,' and, where such property has been wrongfully taken by one, and detained from another, such other has the right to recover as damages the reasonable value of the use of such property during the period of its detention; and this value is to be estimated by the ordinary market price of the use of such property." The admission of such evidence constitutes prejudicial error. The court instructed the jury: "You are instructed that in case you find from a preponderance of the evidence that defendant breached his contract with the plaintiff, then your verdict should be for the plaintiff her for such sum as will compensate the plaintiff hand, in presence of the witnesses named befor all damages sustained by him on account of low, this 22nd day of November, 1910. the breach of said contract." "[Signed] Dorothy X King. "Signed and delivered in our presence: "[Signed] John F. Wonderly. "J. B. Sapp. In the light of the evidence such instruction was erroneous. The damages recoverable should have been limited to the reasonable market value of the use of the mules. The judgment should be reversed and the cause remanded. PER CURIAM. Adopted in whole. (54 Okl. 16) SIBENALER et al. v. WEIDERHOLT. (No. 5565.) (Supreme Court of Oklahoma. Dec. 7, 1915.) (Syllabus by the Court.) INDEFINITE GIFTS 15 TRUSTS 21 Commissioners' Opinion, Division No. 1. Error from District Court, Oklahoma County; Geo. W. Clark, Judge. mark On the 15th day of December, 1910, said Dorothy King departed this life, and in due course, Frank Sibenaler was appointed and qualified as administrator of the estate of Dorothy King, deceased. On the 14th day of July, 1911, said George Weiderholt, hereinafter called plaintiff, brought an action against Frank Sibenaler and R. R. Brandt, hereinafter called defendants, based upon the instrument of writing made by said Dorothy King, alias Dorothea Koenig, to him, hereinbefore set out, and averred, for cause of action against the defendants, that the said Dorothy King, or Dorothea Koenig, made and executed to him (plaintiff) the instrument herein before. set out; that prior to the 31st day of March, 1910, the said Dorothy King, or Dorothea Koenig, owned certain property, and that she did, on that date, sell and convey the same to the said R. R. Brandt, for an agreed consideration of $1,662, payable monthly at the rate of $20 per month; that there had been paid to said Dorothy King upon said contract the sum of $234, leaving a balance due thereon of $1,428 and interest; that said defendant Frank Sibenaler, as administrator of the estate of said Dorothy King, is claiming a right to receive from defendant Brandt the sum of money due by him under said contract of sale, made by Dorothy King to him, and to receive such other choses in action, credits, and other properties, which the said Dorothy King, or Dorothea Koenig, owned at the time of the COLLIER, C. On the 22d day of Novem- execution by her to said plaintiff of the inber, 1910, Dorothy King executed an instru- strument hereinbefore set out, and has inment in writing to Georgie Weiderholt as fol-structed the said Brandt and other creditors lows: "Know all men by these presents, that I, the to refuse to pay to plaintiff the sums of monundersigned, Dorothy King, alias Dorothea ey due him; or to deliver to him the propKoenig, of Jefferson township, Nodaway county, erty conveyed to him by the said Dorothy state of Missouri, have this day given all my King, or Dorothea Koenig. personal property, consisting of money, notes, and anything else that I call my own, to my sonin-law, George Weiderholt, of the county of Nodaway and state of Missouri, and that I have him fully empowered, and hereby do him empower, to recover the said property from any persons whatever, in whose hands the same, or a portion of the same, may be found; the said George Weiderholt to dispose of the said property according to my secret instructions, but to render no account to anybody of these instructions or of the property he is to dispose of, nor of the manner of the said disposition. Action by George Weiderholt against Frank Sibenaler, administrator of the estate of Dorothy King, and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions to dismiss. E. G. Wilson, of Tulsa, for plaintiffs in error. Mont F. Highley, of Oklahoma City, for defendant in error. "In witness whereof, I have hereunto set my After a motion to make the petition more definite and certain had been in part sustained and in part overruled, plaintiff failing to make the petition more definite and certain, as required by the court, defendants demurred to the petition, upon the ground that same did not state a cause of action; and that the court was without jurisdiction of the subject-matter of the action, which demurrer was overruled, and exceptions saved. From the view we take of this case, it is un For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes necessary to state any of the proceedings had in the trial thereof, except the pleadings hereinbefore set out. The case was tried to the court, and resulted in a judgment for plaintiff in the sum of $202, with interest and costs, quieting title to all of said property in said George Weiderholt, to which defendants duly excepted. To reverse said judgment this appeal is prosecuted. ceeds of the sale of his freehold property, after payment of legacies, upon trust to pay, apply, and distribute the same to and for such charitable or other purposes as they should think fit, without being answerable or accountable for the disposition thereof, it was held that the executors were not absolutely to be entitled to the property, as the direction that they should not be held answerable or accountable would be superfluous, had it been his intention to give them the property absolutely. In Fenton v. Nevin, Ir. L. R. 31 Eq. 478, where the testator, after making various legacies and directing his property to be sold, added, "I will my executors shall apply the overplus, if any, as they think fit," it was held that, there being no direct gift, and the legacy being to the executors as such, they did not take beneficially, but upon a trust, too indefinite to be carried into effect. The instrument executed to plaintiff by deceased does not constitute a gift inter vivos, as the phraseology utterly fails to disclose any purpose on the part of Dorothy King to make an absolute gift of her property to the plaintiff for his personal benefit. Fitzsimmons v. Harmon, 108 Me. 456, 81 Atl. 667. A gift, whether in the form of a trust or otherwise, always involves the intention of the donor. Farleigh v. Cadman, 159 N. Y. 169, 53 N. E. 808; Green v. Sutherland, 40 Misc. Rep. 559, 82 N. Y. Supp. 878. To constitute a gift, there must be a purpose to give, expressed in words or signs. Appeal of Walsh, 122 Pa. 177, 15 Atl. 470, 9 Am. St.lowing provision: Rep. 83, 1 L. R. A. 535; Flanagan v. Nash, 185 Pa. 41, 39 Atl. 818. The most forcible construction that can be given to the instrument executed by Dorothy King to plaintiff is that it was an attempt to create a trust; but the instrument is so indefinite and uncertain as it cannot be executed. In Fitzsimmons v. Harmon, supra, it is said: "Where the character of a trust is impressed upon the gift, and it fails, because ineffectually declared, and the cestuis que trust are not clearly designated, the trustee is not entitled to the gift for his own benefit." See, also, Ingram v. Fraley, 29 Ga. 553; Condit v. Reynolds, 66 N. J. Law, 242, 49 Atl. 540. In Sims v. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. Rep. 772, where the testator gave a share of his estate to a nephew, "to be disposed of by him as a private trust, about which I shall give him specific verbal directions, having full confidence in his honesty to carry out my wishes in regard to this bequest," it was held that the will on its face showed plainly and unequivocally that the bequest to the nephew was a gift to him upon trust, in which he was not to take any beneficial interest. In Gross v. Moore, 68 Hun, 412, 22 N. Y. Supp. 1019, affirmed on opinion of the court below in 141 N. Y. 559, 36 N. E. 343, it was held that under the following testamentary provision, "I give, devise and bequeath unto my executor hereinafter named all the rest, remainder and residue of my personal estate, to be distributed by him according to instructions given to him by me," the executor did not take an absolute interest for his own use personally, but upon a trust which was void for uncertainty. In Ellis v. Selby, 1 Myl. & C. 286, testator directed that his trustees should retain to themselves what should remain from the pro Minot v. Atty. Gen., 189 Mass. 176, 75 N. E. 149, involved the interpretation of the fol "I give and devise to my executors and the survivor of them, or whomsoever shall lawfully due and remainder of my property and estate, have the execution of this my will, all the resito be distributed by them to charitable or worthy objects, or such as I may designate during my lifetime. But my said executhe matter of the distribution of said residue, tors or executor shall have full discretion in and shall not be under any legal accountability or subject to any trust, or be liable to any person or corporation by reason of any memorandum which I may leave." It was held that it was the intention of the testator to create a trust in some form, and not to make a limited bequest to his executors. It follows that the trial court erred in overruling the demurrer to the petition, and this cause should be reversed and remanded, with instructions to dismiss the cause, with prejudice. PER CURIAM. Adopted in whole. (60 Colo. 362) (No. 8432.) Dec. 6, 1915.) 26-INDICTMENT-SUFFI CURRENT v. PEOPLE. CIENCY. taining money by false pretenses read that, the particular false pretense submitted by the charge was concerned. [Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 31; Dec. Dig. 26.] Error to District Court, City and County of Denver; H. S. Class, Judge. W. D. Current was convicted of obtaining money by false pretenses, and he brings error. Judgment reversed, and cause remanded. Mel Emmerson Peters, O. N. Hilton, and Caesar A. Roberts, all of Denver, for plaintiff in error. Fred Farrar, Atty. Gen., and Clarence M. Hawkins and Wendell Stephens, Asst. Attys. Gen., for the People. BAILEY, J. The first count of the information upon which defendant was tried and convicted charges him with obtaining from one W. J. Sproul, by various false and felonious pretenses and representations set forth therein, the sum of $5,300.00. The count in the main is as follows: of New York, for the State of Colorado, or any other state or place * • and the said W. D. Current did not have any agency and was not the agent of the said the Equitable Life Assurance Society and had nothing to sell or dispose of to the said W. J. Sproul of any value whatever, and he the said W. D. Current was the agent of the said the Equitable Life Assurnot then the agent of and was not appointed ance Society of New York for the State of Colorado or any other place or state, to succeed the said W. W. Booth or any other person, all of which he the said W. D. Current at the time of the making thereof knew to be false, felonious in such case made and provided, and against the and untrue; contrary to the form of the statute peace and dignity of the People of the State of Colorado." At the instance of the District Attorney, as appears from the record, it seems that the Court submitted the whole case upon the question of obtaining, on the 30th day of December, 1912, upon the false and felonious pretenses and representations that the defendant was then and there the agent of the Equitable Life Assurance Society of New York, the sum of $350. The first paragraph of the count, it being the only one submitted to the jury for its consideration, omitting the formal parts, reads as follows: "Gives the Court to understand that W. D. Current, on, to wit, the first day of November in the year of Our Lord One Thousand Nine Hundred and Twelve, at the City and County of Denver, in the State of Colorado, with intent to cheat and defraud another, to wit, W. J. Sproul, that he, the said W. D. Current, was then and there appointed and was the agent of the Equitable Life Assurance Society of New York for the State of Colorado to take the place of one W. W. Booth, who was and had been the agent of said company in said State of Colorudo." The Court instructed the jury as follows: "You are further instructed that the second and third count is withdrawn from your consideration; and that this case is to be submitted to you on the first count alone. The item selected for your consideration by the District Attorney is that the defendant obtained from the prosecuting witness, W. J. Sproul, three hundred and fifty dollars, on the 30th day of December, 1912, by feloniously and falsely pretending and representing to the said W. J. Sproul that he, the said W. D. Current, was the agent of the Equitable Life Assurance Society of New York on said 30th day of December, 1912, as charged in the information." "Comes now John A. Rush, District Attorney within and for the Second Judicial District in the State of Colorado, and in the name and by the authority of the People of the State of Colorado informs the Court and gives the Court to understand that W. D. Current, on, to wit, the first day of November in the year of Our Lord One Thousand Nine Hundred and Twelve, at the City and County of Denver, in the State of Colorado, with intent to cheat and defraud another, to wit, W. J. Sproul, that he, the said W. D. Current, was then and there appointed and was the agent of the Equitable Life Assurance Society of New York for the State of Colorado to take the place of one W. W. Booth, who was and had been the agent of said company in said State of Colorado, and did then and there falsely and feloniously pretend and represent to the said W. J. Sproul that he, the said W. D. Current, would assume the duties as said agent of said company and charge of said office of said company in the said State of Colorado on the 10th day of December, A. D. 1912 * * * and did then and there urge upon and persuade, in the manner aforesaid, the said W. J. Sproul to buy from him, the said Current, a half interest in his said agency of the said the Equitable Life Assurance Society of New York for the sum of Eight Thousand Dollars, and the said W. J. Sproul, then and there believing the said false and felonious pretenses and representations so made by the said W. D. Current, and relying thereupon, and being deceived thereby, did then and there agree to and did purchase from said Current a half interest in said Current's agency in the said the Equitable Life AsThis instruction does not correctly state surance Society of New York and the said the charge made. The paragraph in the inSproul did then and there and at divers and formation does not contain the words "by numerous times thereafter, between the said first feloniously and falsely representing and preday of November, A. D. 1912, and the 25th day tending to the said W. J. Sproul," or anyof February, A. D. 1913, pay over and deliver to the said W. D. Current the sum of Fifty-Three thing equivalent thereto. They are supplied Hundred Dollars, of the moneys and personal by the Court. That part of the instruction property of the said W. J. Sproul, and he, the said W. D. Current, did then and there unlaw upon which the guilt or innocence of the defully, feloniously, designedly and knowingly, by fendant was determined makes no charge means of the said false and felonious pretenses of any offense whatever. No false pretense and representations aforesaid, obtain from the is charged, no fraudulent pretense is charged, said W. J. Sproul, the said Fifty-Three Hun- and no felony is charged. dred Dollars in money of the value of FiftyThree Hundred Dollars, of the moneys and personal property of the said W. J. Sproul, with intent to cheat and defraud the said W. J. Sproul; whereas, in truth and in fact the said W. D. Current was not then and there the agent of the said the Equitable Life Assurance Society It is fundamental that an information which attempts to charge a felony by false pretense must at least allege that the false pretense was made, and it must also state to whom made and if it does not state that |