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on or before the date such payment would fall due is a sufficient payment to lessor, and it is

WOLFE V. KILLINGSWORTH et ux. immaterial whether it is paid in lawful money,

(No. 10126.) or by check, draft, or otherwise."

(Supreme Court of Oklahoma. Feb. 14, 1922.

Rehearing Denied Sept. 26, 1922.) [2] The force and effect of the holding in

(Syllabus by the Court.) the cases cited is when the deposit is made to the party's credit, and is subject to his or 1. Appeal and error 1022(3) Judgment ders, the same constitutes payment within

based on findings of referee, approved by

trial court, not disturbed, unless against the terms of the lease. Applying the law

weight of evidence. then to the evidence which is uncontradicted,

Where an action has been referred to a the deposit was not made to plaintiff's cred-referee to hear the testimony, make his findit until July 29th, or nine days after the ings of fact, conclusions of law, and report lease terminated by its own terms, so under these, together with the testimony, back to the holding of these cases, the payment was the court, and such report of the referee is not made until the 29th of July, which was approved by the trial court and judgment rentoo late. These are the only cases or au-dered thereon, and on appeal to this court the thorities cited and relied upon by plaintiff in

error complained of is that the findings of fact error to support their contention, and, by ap and conclusions of law of the referee and the plying the law announced in these cases, the judgment of the trial court are not sustained by

the evidence, such findings of fact and judge judgment of the superior court is correct.

ment will not be disturbed on appeal, unless [3,4] This court in a long line of cases has this court can say they are clearly against the held the lessee of an oil lease under an "un- weight of the evidence. less lease," so long as he pays the rental in the manner provided, has an option to con- 2. Findings of fact of referee and judgment of

court not against weight of evidence. tinue the lease in force, and is subject to termination at his will, which privilege he findings of fact of the referee and judgment of

The record examined, and held, that the may exercise by failure to pay the stipulated the trial court are not against the weight of the rental, in which event the lease automatical evidence. ly terminates. See Eastern Oil Co. y. Smith, 80 Okl. 207, 195 Pac. 775; Mitchell v. Probst, 3. Admission of testimony not error. 52 Okl. 10, 152 Pac. 597; Garfield Oil Co. v.

The record examined, and held, that no Champlin, 78 Okl. 91, 189 Pac, 514. This reversible error was committed by the admis

sion of the testimony complained of. court has announced the following rule:

"When contracts are optional in respect to Appeal from District Court, Seminole one party, they are strictly construed in favor County; J. W. Bolen, Judge. of the party that is bound and against the party that is not bound."

Action by C. Dale Wolfe, trustee in bank

ruptcy of G. F. Killingsworth, bankrupt, See Eastern 011 Co. v. Smith, supra, and against G. F. Killingsworth and his wife, to

subject certain real estate to the payment of cases therein cited.

the debts of said bankrupt. Judgment for In the case of Chapple v. Kansas City Vit- defendants, and plaintiff appeals. Affirmed. rified Brick Co., 70 Kan. 723, 79 Pac. 666, is

See, also, 207 Pac. 443. a case where the facts were very similar to the one at bar, and the court held the same Fowler & Wilson, of Wewoka, for plaintiff did not amount to a payment nor tender. in error.

The plaintiffs in error at the close of their E. L. Harris and Orwig & Cobb, all of Webrief state they tendered the $80 to the cred-woka, for defendants in error. it of defendant in the bank. That is the place in the record they rely upon a tender, MILLER, J. This action was commenced in their answer they plead payment, and in the district court of Seminole county, by tried the case on the plea of payment. They C. Dale Wolfe, as trustee in bankruptcy of now say, the facts amount to a tender. No the estate of G. F. Killingsworth, a bankcases are cited to support the contention that rupt, against said G. F. Killingsworth and mailing a check on another bank, to a bank, his wife, Mary Etta Killingsworth, to subamounts to a tender until the check is ac-ject 120 acres of land to the payment of cepted, and a deposit made. There was no said bankrupt's debts. The legal title to the equitable plea tendered, but the defendants land was in the name of defendant Mary Etplead payment, and the facts found do not

ta Killingsworth. amount to payment within the terms of the

The record discloses that for several years lease.

G. F. Killingsworth was engaged in running The judgment is therefore affirmed.

a general hardware store in the town of

Seminole, in Seminole county, Okl., and PITCHFORD, V. C. J., and JOHNSON, during the year 1912 was insolvent. In JanELTING, and KENNAMER, JJ., concur. uary, 1913, he made a general assignment

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

(209 P.) for the benefit of creditors, and some of his | Killingsworths was the property of Mary Etta creditors filed a petition in bankruptcy Killingsworth, and that said real estate above against him in the federal District Court in described belongs to and is the property of the Eastern District of Oklahoma.

On Mary Etta Killingsworth. March 14, 1914, he was duly adjudged a bankrupt by said court. C. Dale Wolfe was

Conclusions of Law. appointed trustee of said bankrupt estate,

I conclude as a matter of law that said real and was directed by said federal court to estate belongs to and is the property of Mary institute this proceeding to subject the land Etta Killingsworth, and that the prayer of the in controversy in this action to the payment plaintiff should be denied in both counts of his of the debts of the said bankrupt. Judg- said petition. ment was rendered in favor of the defend

"I conclude that said property should be deants and against the plaintiff, and he ap- Killingsworth, as aforesaid, and that plaintiff

,

creed and adjudged the property of Mary Etta peals, appearing here as plaintiff in error: C. Dale Wolfe, trustee in bankruptcy, take For convenience the parties will be referred nothing by reason of his petition herein. to as they appeared in the lower court.

"Dated this June 1, 1918. Defendants claimed the land in controver

"C. Guy Cutlip, Referee." sy was their homestead, and was purchased with money belonging to Mary Etta Killingsworth. C. Guy Cutlip was by the court ap

[2, 3] The plaintiff, in his petition in erpointed as referee, "to take the testimony, ror, makes fire specific assignments of error, hear the evidence, and report his findings of

but presents them under two propositions:

First. That the referee's findings of fact fact, together with his recommendations of law thereon, and the evidence taken, to this and conclusions of law are clearly against court on or before October 1, 1917." The the weight of the evidence, and that the time was afterwards duly extended by order judgment of the court is against the weight

of the evidence. of the court. The referee heard the testimony, made findings of fact, and stated his

The plaintiff in error seeks to establish recommendations of law, which he embodied his case by showing that the heirs of Wilthy in his report and filed in court on June 1,

Rentie, from whom various deeds were ob1918. Plaintiff filed his exceptions and obtained, thought they were selling their injections to the report of the referee, which terest in the land to G. F. Killingsworth. It were overruled by the court on June 6, 1918, is immaterial what they thought about it

. and judgment rendered in favor of the de The deeds were made to Mary Etta Killings fendants. On the same date plaintiff's mo- tiated the deal does not militate against her

worth, and the fact that her husband negotion for a new trial was overruled, excep-title. The plaintiff seeks to discredit the testions saved, notice of appeal given, and this

timony of defendant Mary Etta Killingsappeal perfected.

worth, and claims she is unworthy of belief. The referee's report is as follows:

The record in this case does not in any way “And now comes 0. Guy Cutlip, the duly impeach her. Her testimony was given full qualified and acting referee in the above-enti- | faith and credit by the referee, and she tled action, and makes this his report of find stands before this court unimpeached. Plainings of fact and conclusions of law:

tiff's attempt to cast reflection upon defend"(1) I find that C. Dale Wolfe was the duly ant's testimony 'is by inferences and innuenappointed, qualified, and acting trustee in does. She testified that she obtained $1,000 bankruptcy of G. F. Killingsworth, bankrupt. from her grandfather, Dr. B. R. Spurr, and

“(2) I find that on March 14, 1913, said G. she gave this money to her husband with F. Killingsworth was adjudged a bankrupt under the proper acts of Congress..

which to purchase this land. G. F. Killings"(3) I find that the plaintiff, trustee, has worth testified he used her money with authority and is acting under legal direction which to purchase the land. The fact that in prosecuting this suit.

some of the heirs of Wilthy Rentie received “(4) I find that the title to the north half some goods out of the store in lieu of the and the southeast quarter of the northwest cash does not prove that G. F. Killingsworth quarter of section 23, township 9 north, range did not put into the cash drawer from the 6 east, Seminole county, Oklahoma, is in Mary money received from his wife the value of Etta Killingsworth.

“(5). I find that said land was purchased of the goods so delivered in part payment for the heirs of Wilthy Rentie, the first deed of the deeds. which was procured from John Rentie, on or The plaintiff has offered in evidence a state about August 14, 1912.

ment from the bank records, showing the con"(6) I find that, at the time of the procure- dition of the bank account of Dr. B. R. Spurr ment of the said deeds aforesaid, G. F. Killings- from January 1, 1912, to September 30, 1912. worth was insolvent, and that the indebtedness it was during the summer of 1912 that Mary for which he was afterwards adjudged a bankrupt was incurred prior to the execution of said Etta Killingsworth testified she obtained the deeds.

$1,000 from her grandfather. This bank "(7) I find that the money and purchase price statement does not show that he had a balexpended to the heirs of Wilthy Rentie by the ance to the amount of $500 at any time during the period covered by the statement. Finding no reversible error in the record, But she testified he gave her the cash, and the judgment of the trial court is affirmed. not a check. This does not prove that he did i not have a safety deposit box in which he PITCHFORD, V. C. J., and KANE, JOHNkept money, or that he did not have a bank SON, and KENNAMER, JJ., concur. account in some other bank or banks. Dr. Spurr resided in Lincoln county, and they have introduced certified copies of the tax assessment list returned by him to the assessor of Lincoln county for the years 1911, BANK OF BUCHANNAN COUNTY v. 1912, and 1913. Dr. Spurr did not return to

PRIESTLY. (No. 10706.) exceed $300 or $400 valuation of personal property for any one of these years, and in (Supreme Court of Oklahoma. Sept. 12, 1922.) 1913 his return of personal property was

(Syllabus by the Court.) only $50. Plaintiff contends these prove conclusively that he did not have $1,000 in 1. Appeal and error m837(4)—Pleading cash that he could have given his grand

36(1)-Party strictly bound by his pleadings

in record; adverse party may take advantage daughter, Mary Etta Killingsworth, at the

of admissions in pleadings at any stage of trial time she claims he did give the money to

or on appeal, if preserved in transcript or her. While we do not agree with counsel for case-made, defendant in error that "beating taxes is Pleadings in a civil case are not merely one of the principal indoor sports of this matters of form, but they are solemn declaragreat land of ours," yet this has but very lit- tions of the parties. They present to the court tle probative force as against the testimony what the pleader claims the facts to be, and of defendant Mary Etta Killingsworth.

upon such statement asks it to grant him reIf Dr. Spurr had testified he gave Mary lief, and he is bound by every statement against Etta Killingsworth $1,000 in the summer of to question the correctness thereof, so long as

his interests made therein, and will not be heard 1912, these tax assessment sheets would be they remain a part of the record; and they admissible as touching upon his credibility, may be taken advantage of by the adverse parand, if unexplained, would probably very ty at any stage of the case, either in the trial materially affect his credibility. But Dr. court or on appeal, if they are preserved in Spurr did not testify in this case. The rec- the transcript or case-made. ord shows that he died before this case was 2. Pleading 417–Taking leave to amend, tried. However, he might have been able waiver of error in sustaining demurrer. to show conclusively that his tax assessment

When a demurrer is sustained to a pleadreturns were absolutely correct, and yet he ing and the pleader thereupon takes leave to had given her the $1,000 claimed. He may amend, he thereby waives the error, if any has have collected some money on a real estate been committed, in sustaining such demurrer. mortgage during the spring of 1912. The 3. Judgment of trial court affirmed. mortgage would not be listed on his tax as- Being fully convinced that the trial court sessment sheet. He may have sold a piece did not abuse its discretion in striking plainof real estate, or leased a tract of land for tiff's third amended petition from the files, and oil and gas, and received a cash bonus. that the plaintiff waived the error, if error was There are numerous sources' that might be second amended petition, it follows that the

committed, in sustaining the demurrer to his mentioned from which this money could have judgment of the trial court must be affirmed. been obtained by Dr. Spurr, and it would not show up on his list of personal property re- Appeal from District Court, Washington turned for taxation.

County; Preston A. Shinn, Judge. [1] We cannot say that the findings of fact and conclusions of law of the referee

Action by Bank of Buchannan County and the judgment of the trial court are clear- against George C. Priestly. From an order ly against the weight of the evidence. The sustaining a motion to strike plaintiff's peti

Affirmed. referee having passed upon the credibility of tion, he appeals. the witnesses, his findings of fact having re- Foster & O'Neil, of Bartlesville, for plain. ceived the approval of the trial court, and tiff in error, being unable to say that it is clearly against Rowland & Talbott, of Bartlesville, for dethe weight of the evidence, the judgment fendant in error. will not be disturbed on appeal.

In plaintiff's second contention he com- KANE, J. This was an action for the replains of the admission of evidence over his covery of money commenced by the plaintiff objection. We have examined the evidence in error, plaintiff below, against the defendcomplained of, as set out in the plaintiff's ant in error, defendant below. brief, and we do not think any prejudicial The sole question for review in this proerror was committed by the admission of the ceeding in error is whether the trial court evidence complained of.

erred in sustaining the motion to strike from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.) the files the plaintiff's third amended peti- | the third amended petition was given. A tion.

demurrer having been sustained as to the It seems that the trial court sustained de second amended petition, the court should not murrers to the first and second amended now permit the plaintiff to select an isolated petitions, in each instance granting the plain- instrument in writing, when it has already tiff leave to amend. The second amended set forth in this action other instruments in petition was drawn in two counts. The first writing, which show that the plaintiff has no count alleged, in substance, that the defend- cause of action, and, the court having direct. ant was indebted to the plaintiff in the sum ly ruled on this proposition, and considering of $3,800 upon a certain written instrument, the demurrer to the second amended petia copy of which, marked "Exhibit A," was tion, the third amended petition should not attached to the petition. In the second be permitted to stand. count. which grew out of the same transac- [1] In our judgment the trial court did tion and in which the same relief was not abuse his discretion in sustaining this prayed, the plaintiff set up a series of let- motion to strike. Pleadings in a civil case are ters and oral declarations, which he alleged not merely matters of form, but they are constituted another purported contract, solemn declarations of the parties. They which was partially in writing and partially present to tbe court what the pleader cléims oral; the parts in writing being attached the facts to be, and upon such statement to the petition as exhibits.

asks it to grant him relief, and he is bound The prayers of both counts were precisely by every statement against his interests the same; that is, that the plaintiff prays made therein, and will not be heard to ques. judgment against the said George C. Priest- tion the correctness thereof, so long as they ly, defendant in this count, in the sum of remain a part of the record; and they may $3,800, together with interest thereon at the be taken advantage of by the adverse party rate of 6 per cent. per annum. That the at any stage of the case, either in the trial plaintiff claimed to have but one cause of court or on appeal if they are preserved in action is shown by the statement which fol- the transcript or case-made. Lane Implelowed the prayer to the second count as fol- ment Co. v. Lowder & Manning, 11 Okl. 61, lows:

65 Pac. 926. Plaintiff further states that only one mon- Good faith as well as the statute law reey judgment is demanded for the sums quired plaintiff to set forth in his petition above named, on counts 1 and 2 of this peti- all the facts coustituting his cause of action, and in the sum of $3,800, with interest tion in plain and concise language. This he thereon at 6 per cent. per annum from the did in his second amended petition, but when 2d day of March, 1914, and for costs of suit. the court held that the facts alleged in both

The trial court properly construed these counts, construed together, fajled to state a two counts to comprise but one transaction, cause of action against the defendant. he and sustained a general demurrer to the pe- sought to state a cause of action on paper by tition as a whole, upon the ground that the leaving out the allegations of his second allegations contained in both counts and the count, although the previous petition clearpurported contracts thereto attached, when ly 'showed that there was but one transaction construed together, failed to state facts suffi- between the plaintiff and the defendant out cient to constitute a cause of action against of which no liability accrued. the defendant. After this demurrer was sus- [2] And by taking leave to amend his sectained the plaintiff, pursuant to leave grant- ond amended petition the plaintiff admitted ed, amended his petition by striking out the the insufficiency of the pleading demurred, second count and all the exhibits pertaining and he cannot now take advantage of the thereto, whereupon the defendant moved the error, if any there was, in sustaining the court to strike from the files the petition demurrer. It is well settled thatthus amended upon the following grounds:

"When a demurrer is sustained to a pleading First, that the alleged cause of action set and the pleader thereupon takes leave to amend, forth in the third amended petition is identi-he thereby waives the error, if any bas been cal with the claims set forth in the original committed, in sustaining such demurrer." petition and in the first and second amended Guess et al. v. Reed et al., 49 Okl. 124, 152 petitions heretofore filed in this cause, and Pac. 3.99; Berry et al. v. Barton et al., 12 as to each the court has already sustained Okl. 221, 71 Pac. 1074, 66 L. R. A. 513; Campdemurrers.

bell v. Thornburgh et al., 57 Okl. 231, 154

Pac. 574, 156 Pac. 1152; Cabell v. McLish et Second, that the facts set forth in plain-lal., 61 Okl. 224, 160 Pac. 592; Cates v. Miles tiff's third amended petition are identical et al. (Okl. Sup.) 169 Pac. 888. with those set forth in plaintiff's second amended petition, excepting that the plain- The trial court, it seems to us, could have tiff has omitted to refer to and make a part done nothing else but strike the petition, beof the petition certain written instruments cause it brought no new element into the shown in said second amended petition to case, and was really not an amendment. have been a part of said transaction, in [3] Being fully convinced that this trial which the instrument in writing sued on in court did not abuse its discretion in striking plaintiff's third amended petition from Action by H. F. Knebel against Albert M. the files, and that the plaintiff waived the Rennie and wife. From an order sustaining error, if error was committed, in sustaining demurrer to the petition, plaintiff appeals. the demurrer to his second amended petition, Reversed and remanded, with directions. it follows that the judgment of the trial

Burford, Miley, Hoffman & Burford and court must be affirmed.

H. W. Harris, all of Oklahoma City, and

H. G. Butts, of Pauls Valley, for plaintiff in HARRISON, C. J , and JOHNSON, NICHOLSON, and KENNAMER, JJ., concur.

Albert Rennie, of Pauls Valley, and S. A. Horton, of Oklahoma City, for defendants in error.

error.

KENNAMER, J. H. F. Knebel, as plainKNEBEL V. RENNIE et ux. (No. 12305.)

tiff, commenced this action in the district (Supreme Court of Oklahoma. July 11, 1922. court of Garvin county on the 17th day of Rehearing Denied Sept. 26, 1922.) January, 1920, against Albert M. Rennie and

Edith Rennie, as defendants, to recover the (Syllabus by the Court.)

sum of $4,797, with interest and attorney's 1. Appeal and error 90-Supreme Court has fees, and to foreclose a mortgage lien upon

jurisdiction to review order sustaining de certain lands located in Garvin county, Okl. murrer involving part of merits of action. The petition of the plaintiff was in the usual

Under section 5236, Rev. Laws 1910, the form of a petition filed in foreclosure actions, Supreme Court is vested with jurisdiction to and a copy of the mortgage was attached as review an order of the district court sustaining an exhibit. a demurrer to the plaintiff's petition which in- The defendants filed a demurrer to the pevolves some part of the merits of the action. tition upon four grounds. The second and 2. Courts ww37(3)—Defendant invoking ju- third grounds of the demurrer raised the

risdiction by pleading waives irregularities question of the invalidity of the mortgage as in obtaining jurisdiction of him.

attached to the plaintiff's petition and the Where a defendant appears in a case by jurisdiction of the court to foreclose said filing a pleading, and invokes 'the jurisdiction mortgage. The trial court sustained the deof the court to grant him beneficial relief, and murrer upon the second and third grounds, submits to the court for decision nonjurisdic- and held that the mortgage was void, and tional questions, such action recognizes the overruled the demurrer as to the first and general jurisdiction of the court, and operates fourth grounds. From the order of the court as a waiver of all irregularities that may have sustaining the demurrer holding the mortoccurred in obtaining jurisdiction of such de- gage of the plaintiff void, the plaintiff has fendant.

prosecuted this appeal, and assigned as error 3. Contracts em 170(1)-Construction of par. the action of the court in sustaining the de

ties adopted even though susceptible of an murrer. The parties appear here as they ap other construction.

peared in the trial court, and will be referred Where the meaning of the terms used in a to as plaintiff and defendants. written contract is not clear, but such terms have been construed and acted upon by the to dismiss the appeal. The grounds of the

A motion has been filed by the defendants parties interested, such construction will be adopted even though the language of the con motion to dismiss are: First, the court has tract may be susceptible of another construc- no jurisdiction because it affirmatively ap tion.

pears from the record that the case-made

does not contain the entire record necessary 4. Contracts w153–Lawful as against un to present the error complained of; second, lawful construction will be adopted.

the order appealed from is not a final order; Where a contract is susceptible of two con- third, because service of summons was made structions, one lawful and the other unlawful, the former will be adopted. This is on the by publication and notice was not dated and theory that parties to the contract are pre- under the seal of the court. sumed to have contracted within the law, As to the first ground of the motion, it is

quite obvious that the case-made contains all 5. Mortgages Om81-Decree that mortgage is

void as compelling mortgagor to pay registra- of the necessary record in order for this tion tax held error.

court to determine the questions of law preRecord examined, and held, that the trial sented for review. Section 5241, Revised court committed reversible error in sustaining Laws 1910, specifically authorizes an appealthe demurrer of the defendants to the plaintiff's ing party desiring to have an order of the petition and decreeing the mortgage contract district court reviewed to make a case-made to be void.

containing so much of the proceedings of the

trial court as may be necessary to present Appeal from District Court, Garvin Coun- the error complained of to the Supreme ty; W. L. Eagleton, Judge.

Court. This appeal being presented for the Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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