ion. To the same effect, see Ryndak v. Seawell, 13 Okl. 737, 76 Pac. 170, where the court in the syllabus said: "Where M. enters into a contract with E., agreeing to furnish all material and construct a building for R., and S., a materialman, having knowledge of

tion thereto with M. to furnish the material for such building, with the understanding that the material is to be used by M., becomes a subcontractor within the meaning of the mechanics' lien law, and if the material is actually used in the construction of the building, S. is entitled to a mechanic's lien as a subcontractor."

shown by the item of March 9, 1908, con- | held it to have been fairly submitted to the sisted of six screen doors. Concerning them jury by an instruction set forth in the opinthere is no conflict in the testimony. The evidence discloses : That after Jarbo had contracted with Cox to erect the building Jarbo made arrangements with plaintiff as subcontractor to furnish the material therefor. That the material was so furnished from September 25, 1907, up to and includ- the contract of M., makes a contract in relaing the item of January 7, 1908, and amounted at that time to $1,020.50. That shortly before that date the house was completed, all but furnishinng five screen doors, and possession thereof delivered to Cox, who moved in. That on February 6, 1908, Cox settled with Jarbo for the contract price, $1,425.10, "less two screen doors, $3 each, $6; three screen doors, $1.65 each, $4.95; four transom lifts, 50 cents each, $2 adn. pay carpenters to fix porches, $4," and payed him the balance due, leaving unpaid plaintiff's account for $510.20. That a few days thereafter plaintiff's auditor was informed by Cox that he had settled with Jarbo. That on March 2, 1908, Jarbo ordered of plaintiff the doors in question, or so its auditor said, which, on the 6th day of March, 1908, were hauled to the building for the purpose of delivery. That Jarbo was not there (he left a few days later); but defendant intercepted the load as it drove up, and was told that the doors were not wanted and would not be received, whereupon, after defendant had passed on, the drayman unloaded and left them on the back porch where the same are now, so far as this record discloses, the same never having been accepted by any one or used in the building. The doors were not "furnished" within the contemplation of the statute. To be furnished so that a lien can exist, the material must be actually used in the construction of the building. In order to recover in an action of this kind it is necessary to so allege and prove.

In McGarry v. Averill, 50 Kan. 362, 31 Pac. 1082, 34 Am. St. Rep. 120, the court in the syllabus said: "In an action by a subcontractor for building material sold by him to a contractor to be used in the construction of a building upon the land of another, and to foreclose a mechanic's lien, the landowner proposed to prove that the building material for which suit was brought had not been used in the construction of the building, but the offer was refused. Held, that the refusal was error. Hill v. Bowers, 45 Kan. 592, 26 Pac. 13." See, also, Rice et al. v. Hodge et al., 26 Kan. 164; Cunningham et al. v. Barr et al., 45 Kan. 158, 25 Pac. 583; Shaw et al. v. Stewart, 43 Kan. 572, 23 Pac. 616.

We are therefore of opinion that said doors, in that they were not used in the construction of the building, were not furnished by plaintiff in error as subcontractor within the contemplation of the statute, and that the same constituted no proper item of charge on the lien statement; that the item of January 7, 1908, was the date upon which material was last furnished by it as subcontractor, within such contemplation; that thereafter and not from said later date, the statute of 60 days began to run, and, having run at the time of the filing of lien statement herein, plaintiff failed to fasten a lien upon the property.

Finding no error, the judgment of the trial court is affirmed. All the Justices concur.

(29 Okl. 341)

Harness v. McKee-Brown Lumber Co., 17 Okl. 624, 89 Pac. 1020, was an action brought by said company against Harness for balance due on account for lumber and material furnished Gillespie & Son, contractors and builders, with which to build a dwelling house for the plaintiff in error. The court said: "In order for the lumber company to recover in this action, it was necessary for it to establish by a preponderance of the evidence the existence of a state of facts that in law would give it the right to file a lien against the premises of the defendant for the lumber furnished, and plaintiff in error contends that there is no evidence in the record showing that the lumber furnished by the company to Gillespie & Son was ever used in the conThe following clause in a lease of real esstruction of defendant's house; and that, tate construed to be a covenant for quiet enif the lumber and material were not used in joyment: "The said party of the first part (the its construction, the company had no right lessor) agrees that during the term of this lease to defend the party of the second part in peaceat any time to file a lien"-and, after char-able possession of said premises. In case the acterizing the same to be a material issue, party of the second part should be molested, the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

BROWN v. INTERNATIONAL LAND CO. (Supreme Court of Oklahoma. July 11, 1911.). (Syllabus by the Court.)

1. LANDLORD AND TENANT (§ 130*)-LEASECONSTRUCTION COVENANT FOR QUIET EN

JOYMENT.

party of the first part and the party of the second part choose a man each to arbitrate the difference. Should they disagree they choose a third man, and the decision of the three be

final without remark."

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 472; Dec. Dig. § 130.*] 2. LANDLORD AND TENANT (§ 130*)-LEASE COVENANT FOR QUIET ENJOYMENT-ACTION FOR BREACH.

To sustain an action for the breach of a covenant for quiet enjoyment in a lease, it is necessary for the plaintiff to show that he has been prevented from taking possession of the leased premises, or that his quiet enjoyment has been hindered or disturbed by the lessor, or some person deriving their right or title through him, or from a paramount title; a hindrance or disturbance by a mere intruder is not sufficient. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 470-481; Dec. Dig. § 130.*]

Some time before the 1st day of January, 1908, the subtenant of Brown, the plaintiff, whose sublease expired with the rental season of 1907, moved off the place, and the premises were entirely vacant and unoccupied, although there was a house thereon. About the 1st of January, 1908, the husband of the allottee, who was himself an Indian, moved into the house, and took possession of the premises. This he did without the consent of the original lessee, and without any resistance or objection by the plaintiff, who had left the premises unoccupied. The plaintiff took no steps whatever to get Washington off, or to recover possession of the leased land. Instead he came to the officers of the International Land Company, and insisted that it was their duty to put him back into possession. They denied that such was the duty of the company; and while they did everything they could to recover peaceable possession of the premises for the plaintiff they declined to institute any legal proceedings, claiming that under the circumstances they owed no duty to the plaintiff to place him again in possession. The plaintiff KANE, J. This is an appeal from a judg- also testified that he offered to name arbiment of the county court of Muskogee coun-trators, but that the president of the defendty in favor of the defendant in error, who was defendant below. The action was for the breach of a certain covenant in a lease of farming land.

Error from Muskogee County Court; W. C. Jackson, Judge.

Action by W. H. Brown against the International Land Company. Judgment for defendant, and plaintiff brings error. Affirmed. W. D. Halfhill, for plaintiff in error. Rodgers & Clapp, for defendant in error.

The evidence of the plaintiff in error, plaintiff below, discloses the following facts: On the 25th day of November, 1905, the defendant, as lessor, made a lease to W. H. Hall, as lessee, covering 160 acres of land in what is now Muskogee county, the lease to run for four years; the stipulated rental was $100 a year, payable on the 1st day of November of each year, commencing in the year of 1906. In other respects the lease was the ordinary form of agricultural lease. The covenant sued upon is as follows: "The said party of the first part (the lessor) agrees that during the term of this lease to defend the party of the second part in peaceable possession of said premises. In case the party of the second part should be molested, the party of the first and the party of the second part choose a man each to arbitrate the difference. Should they disagree they choose a third man, and the decision of the three be final without remark." On the 9th day of July, the lessee under said lease, W. H. Hall, assigned the lease to the plaintiff, with the consent of the lessor. Hall, the original lessee, paid the rental for the year 1906, and Brown, the plaintiff, for the year 1907.

No further rentals were ever paid. The defendant's title, at the time it made the lease to Hall, was as follows: It held a five-year agricultural lease from the allottee of the land, one Polly Coffee, or Washington, which lease had a duration extending beyond the term of the lease to Hall.

ant company refused to do so.

The judgment appealed from was the result of a verdict of the jury, which was directed by the court, upon the ground that the evidence of the plaintiff did not establish any cause of action against the defendant, for the reason that it failed to show that there had been a breach of the covenant sued upon. To reverse this judgment, this proceeding in error was commenced.

The only question presented to us for review is, Did the court below, under the facts above disclosed, commit error in directing the jury to return a verdict in favor of the defendant, and in rendering a judgment thereon?

[1] We think the ruling of the court below was correct. To our mind the covenant sued upon is in effect a covenant for quiet enjoyment, which does not operate to protect the tenant from the act of a stranger disturbing him in his quiet enjoyment and possession. As far as the record discloses, Washington, the husband of the lessor, did not claim the right of possession by reason of any paramount title, or by reason of any defect in the title of the original lessee or its assignee.

[2] "The general rule is that an express or an implied covenant for quiet enjoyment should be interpreted to mean a covenant to secure the lessee against the acts or hindrances of the lessor and persons deriving their rights or title through him, or from a paramount title, and it will not be regarded as operating to protect the tenant from the acts of strangers disturbing him in his quiet enjoyment and possession." 24 Cyc. p. 1058.

The same work, volume 2, p. 1118, under the | reinstate the cause he again excepted and title "Covenants," states the rule as follows: brings the same here. "To sustain an action for the breach of an absolute or unlimited covenant for quiet enjoyment, it is necessary for the plaintiff to show that he has been prevented from taking possession, or has been evicted, by a person having a lawful and paramount title existing at the time of the defendant's covenant, as this covenant for quiet enjoyment applies only to the acts of those claiming title at the time it was entered into.

To constitute a breach of a full covenant for quiet enjoyment against all persons, there must be a union of the act of disturbance and lawful title. A possession or disturbance by a mere intruder is not sufficient." Having reached the conclusion that the covenant sued upon is a covenant for quiet enjoyment, to multiply authorities on the rights and liabilities of the parties thereunder would be a work of supererogation. The text above quoted succinctly states the rule laid down by the courts of nearly every state in this country.

The judgment of the court below is affirmed. All the Justices concur.

(29 Okl. 241)

WOOD v. BOND et al.

The court erred. Wilson's Stats. of Okla. 1903, § 4773, was adopted from Kansas. Comp. Laws 1879, c. 80, § 580a. Prior thereto, it was construed in Henry D. Carr, Ex'r, v. Sarah Osterhout, 32 Kan. 277, 4 Pac. 318. There the court in the syllabus said: "Where the plaintiff in a suit in the district court, a resident of the county in which suit is brought, before the issue of a summons, deposits with the clerk of the court the sum of $15 as security for costs, pursuant to section 580a, c. 80, Compiled Laws of 1879, neither he nor his legal representatives or successors in interest can be required to make any further deposit, or give any further or other security for costs in that suit in that court."

The cause is reversed and remanded. All the Justices concur, except WILLIAMS, J., not participating.

(29 Okl. 209)

POTTAWATOMIE COUNTY v. REASOR. (Supreme Court of Oklahoma. May 9, 1911.) (Syllabus by the Court.) STATUTES ( 125*) - TITLE OF ACT-SUFFI

CIENCY.

The act of the Legislature, approved March 19, 1910 (Laws Ex. Sess. 1910, c. 69), entitled

(Supreme Court of Oklahoma. July 11, 1911.) “An act relating to certain county and district

(Syllabus by the Court.)

Costs (§ 118*)-SECURITY-DEPOSIT-AMOUNT. Where, in a suit in the district court, plaintiff, a resident of the county in which the suit is brought, before the summons issues, deposits with the clerk of the court $15 as security for costs, pursuant to Wilson's Stats. of Okla. 1903, § 4773, he cannot be required to make a further deposit.

[Ed. Note. For other cases, see Costs, Dec. Dig. § 118.*]

officers," does not violate that portion of section
57, article 5, of the Constitution, requiring that
"every act of the Legislature shall embrace but
its title," and is not for such reason void.
one subject, which shall be clearly expressed in

[Ed. Note.-For other cases, see Statutes,
Cent. Dig. §§ 187-191; Dec. Dig. § 125.*]
Error from Superior Court, Pottawatomie
County; George C. Abernathy, Judge.

Action by E. D. Reasor against Pottawatomie County. Judgment for plaintiff, and defendant brings error. Reversed and re

Error from District Court, Pittsburg Coun-manded. ty; Preslie B. Cole, Judge.

Action by John Wood against R. I. Bond and others. From a judgment of dismissal

and denial of a motion to reinstate the cause, plaintiff brings error. Reversed.

Eubanks & Elder and C. R. Hunt, for plaintiff in error.

C. P. Holt, Co. Atty., Huner L. Johnson, and W. B. Crossan, for plaintiff in error.

HAYES, J. The judgment which this proceeding in error is brought to reverse was rendered in the superior court of Pottawatomie county, in an action between defendant in error, as plaintiff, and plaintiff in error, as defendant, upon an agreed statement of facts. Defendant in error, plaintiff below, is the county judge of said county; and as such, he performed certain marriage ceremonies, and the clerk of his court collected the fees therefor and paid the same into the county treasury of the county, and the same were disbursed by the county and have not been paid or returned to defendant in error, and he brought this action in the court below to recover the amount of said fees, claiming that they belong to him for the services rendered in performing the marriage ceremonies.

TURNER, C. J. On February 13, 1908, John Woods, plaintiff in error, a resident of the county and state, sued R. I. Bond and T. W. Hunter, defendants in error, in the district court of Pittsburg county, and before the summons issued made a cash deposit with the clerk of the court of $15, for costs. On April 12, 1909, he was ordered by the court to deposit additional costs or security therefor within 30 days. Failing to comply with the order, the court, on April 16, 1909, on defendant's motion, dismissed the cause at plaintiff's cost, whereupon he excepted, and his motion being overruled to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-51

(Supreme Court of Oklahoma. June 27, 1911.) judge instructed the jury to return a verdict

[1] Judgments of the trial court in this court will be deemed correct. Error will not be presumed, but must always be shown, and if it is not shown it will be assumed Rule 25 of the Supreme Court (20 Okl. that no error was committed. Grand Lodge xii, 95 Pac. viii), which provides in substance A. O. U. W. v. Furman, 6 Okl. 649, 52 Pac.

Rule 25 of this court (20 Okl. xii, 95 Pac. viii) requires that where a party complains of instructions given or refused he shall set out jects or may save exceptions, and where this in totidem verbis the portions to which he obis not observed alleged errors in instructions will not be reviewed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 3. DAMAGES (§ 132*)-AMOUNT-PERSONAL IN

JURIES.

932; Grand Lodge A. O. U. W. v. Edmond- manent, and standard tables of mortality are son, 6 Okl. 671, 52 Pac. 939; Board of admissible in evidence upon this question. Com'rs v. Hubble, 8 Okl. 169, 56 Pac. 1058. Cent. Dig. 88 487-489; Dec. Dig. § 167: Evi[Ed. Note.-For other cases, see Damages, [2] The claim is made for plaintiff in er- dence, Cent. Dig. § 1520; Dec. Dig. § 364.*] ror that evidence sufficient was introduced 2. APPEAL AND ERROR (8 757*)-REVIEW-INwhich under the issues would have entitled STRUCTIONS-BRIEFS. him to a verdict, or at least which required the submission of the cause to the jury for its decision, and that the court erred in instructing a verdict for plaintiff. It is further insisted that the court erred in not giving certain instructions offered by plaintiff. If such errors were committed, however, plaintiff in error has not availed himself of the method prescribed and required by rule 25 of this court (20 Okl. xii, 95 Pac. viii) in order to secure a consideration thereof at our hands. This rule requires substantially that the brief of plaintiff in error shall contain an abstract setting forth the material parts of the pleadings, proceedings, and facts upon which he relies and which may be necessary to a full understanding of the questions presented to the court for decision, so that no examination of the record itself need be made in this court. And, in reference to error in instructions given or refused, it provides that he shall set out in totidem verbis in his brief, separately, the portions to which he objects or may save exceptions. Counsel have failed to observe either of these mandatory requirements.

Where the evidence discloses that defendant, in the construction of a sewer ditch, left the same unguarded and without a light or other danger signal to warn travelers thereof, and and received injuries which the evidence tends a party acting with due care fell into the same to show are permanent by having his shoulder thrown out of place, his ankle badly injured, agony, and where the evidence further shows and his knee sprained, suffering great pain and that the injured party had no other means of support than his manual labor, a verdict in the sum of $2,000, returned by a jury on a trial will not be set aside in this court on which appears to have been free from prejudice, ground that it is not supported by sufficient evidence, and is excessive.

the

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385; Dec. Dig. § 132.*] 4. PLEADING (§ 236*)-APPEAL AND ERROR (8 959*)-REVIEW-DISCRETION OF COURT-ALLOWANCE OF AMENDMENTS.

This court has had occasion in a number of instances to pass on briefs presenting a similar situation, and has uniformly declined to consider contentions of parties where failure to observe this rule has existed. Terra-substantially the claim or defense, rests in the pin v. Barker, 26 Okl. 93, 109 Pac. 931; Roof et al. v. Franks, 26 Okl. 392, 110 Pac. 1098; Lynn et al. v. Jackson, 26 Okl. 852, 110 Pac. 727; Indian Land & Trust Co. v. Taylor, 25

Okl. 542, 106 Pac. 863. The court lacks the time and cannot, with the volume of work before it, search records for error; it needs, and must have, the assistance of counsel in order to do even a reasonable percentage of the work before it, and of necessity the administration of this rule must be impartial; and, as counsel have failed to show in their brief any error committed by the court below, the judgment will be affirmed.

TURNER, C. J., and KANE and HAYES, JJ., concur. WILLIAMS, J., absent and not participating.

(29 Okl. 133)

CITY OF SHAWNEE et al. v. SLANKARD. (Supreme Court of Oklahoma. June 27, 1911.)

(Syllabus by the Court.)

The allowance of amendments to pleadings, either before or after judgment, in the furtherance of justice, when the same do not change sound discretion of the trial court, and the allowance of the same will not be disturbed on appeal, unless it is made to affirmatively appear that its exercise by the court has operated to the prejudice of the rights of the complaining party.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236;* Appeal and Error, Cent. Dig. §§ 3825-3833; Dec. Dig. § 959.*]

Error from District Court, Pottawatomie County; W. N. Maben, Judge.

Action by J. O. Slankard against the City of Shawnee and another. Judgment for plaintiff, and defendants bring error. Affirmed.

J. H. Maxey and C. J. Benson, for Chas. T. Derr Const. Co. F. H. Reily, for defendant

in error.

DUNN, J. This case presents error from the district court of Pottawatomie county, and is an action wherein defendant in error, as plaintiff, sued the city of Shawnee and the Chas. T. Derr Construction Company for damages growing out of certain personal injuries which he avers arose by and through | their negligence.

1. DAMAGES (§ 167*) -- EVIDENCE (§ 364*) — EXPECTATION OF LIFE-MORTALITY TABLES. In the petition filed, plaintiff averred that The expectation of life of one injured by the Chas. T. Derr Construction Company was, another's negligence may be shown as a basis for the estimation of damages in a case where on the 5th day of March, 1908, building a the evidence tends to show the injury is per- sewer through, across, and over certain *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes