on or before the date such payment would fall due is a sufficient payment to lessor, and it is immaterial whether it is paid in lawful money, or by check, draft, or otherwise." WOLFE v. KILLINGSWORTH et ux. (Supreme Court of Oklahoma. Feb. 14, 1922. Rehearing Denied Sept. 26, 1922.) (Syllabus by the Court.) 1. Appeal and error 1022 (3) - Judgment based on findings of referee, approved by trial court, not disturbed, unless against weight of evidence. Where an action has been referred to a [2] The force and effect of the holding in the cases cited is when the deposit is made to the party's credit, and is subject to his orders, the same constitutes payment within the terms of the lease. Applying the law then to the evidence which is uncontradicted, 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 lease terminated by its own terms, so under the holding of these cases, the payment was not made until the 29th of July, which was too late. These are the only cases or authorities cited and relied upon by plaintiff in error to support their contention, and, by applying the law announced in these cases, the judgment of the superior court is correct. ings of fact, conclusions of law, and report these, together with the testimony, back to the court, and such report of the referee is approved by the trial court and judgment rendered thereon, and on appeal to this court the error complained of is that the findings of fact and conclusions of law of the referee and the judgment of the trial court are not sustained by the evidence, such findings of fact and judgment will not be disturbed on appeal, unless this court can say they are clearly against the weight of the evidence. [3, 4] This court in a long line of cases has held the lessee of an oil lease under an "unless lease," so long as he pays the rental in the manner provided, has an option to con- 2. tinue the lease in force, and is subject to Findings of fact of referee and judgment of court not against weight of evidence. termination at his will, which privilege he findings of fact of the referee and judgment of cases therein cited. In the case of Chapple v. Kansas City Vitrified Brick Co., 70 Kan. 723, 79 Pac. 666, is a case where the facts were very similar to the one at bar, and the court held the same did not amount to a payment nor tender. The plaintiffs in error at the close of their brief state they tendered the $80 to the credit of defendant in the bank. That is the place in the record they rely upon a tender, in their answer they plead payment, and tried the case on the plea of payment. They now say, the facts amount to a tender. No cases are cited to support the contention that mailing a check on another bank, to a bank, amounts to a tender until the check is accepted, and a deposit made. There was no equitable plea tendered, but the defendants plead payment, and the facts found do not amount to payment within the terms of the lease. The judgment is therefore affirmed. PITCHFORD, V. C. J., and JOHNSON, ELTING, and KENNAMER, JJ., concur. The record examined, and held, that no reversible error was committed by the admission of the testimony complained of. Appeal from District Court, Seminole County; J. W. Bolen, Judge. Action by C. Dale Wolfe, trustee in bankruptcy of G. F. Killingsworth, bankrupt, against G. F. Killingsworth and his wife, to subject certain real estate to the payment of the debts of said bankrupt. Judgment for defendants, and plaintiff appeals. Affirmed. See, also, 207 Pac. 443. Fowler & Wilson, of Wewoka, for plaintiff in error. E. L. Harris and Orwig & Cobb, all of We woka, for defendants in error. MILLER, J. This action was commenced in the district court of Seminole county, by C. Dale Wolfe, as trustee in bankruptcy of the estate of G. F. Killingsworth, a bankrupt, against said G. F. Killingsworth and his wife, Mary Etta Killingsworth, to subject 120 acres of land to the payment of said bankrupt's debts. The legal title to the land was in the name of defendant Mary Etta Killingsworth, The record discloses that for several years G. F. Killingsworth was engaged in running a general hardware store in the town of Seminole, in Seminole county, Okl., and during the year 1912 was insolvent. In January, 1913, he made a general assignment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (209 P.) for the benefit of creditors, and some of his creditors filed a petition in bankruptcy against him in the federal District Court in the Eastern District of Oklahoma. On March 14, 1914, he was duly adjudged a bankrupt by said court. C. Dale Wolfe was appointed trustee of said bankrupt estate, and was directed by said federal court to institute this proceeding to subject the land in controversy in this action to the payment of the debts of the said bankrupt. Judgment was rendered in favor of the defend ants and against the plaintiff, and he appeals, appearing here as plaintiff in error. For convenience the parties will be referred to as they appeared in the lower court. Defendants claimed the land in controversy was their homestead, and was purchased with money belonging to Mary Etta Killingsworth. C. Guy Cutlip was by the court appointed as referee, "to take the testimony, hear the evidence, and report his findings of fact, together with his recommendations of law thereon, and the evidence taken, to this court on or before October 1, 1917." The time was afterwards duly extended by order Killingsworths was the property of Mary Etta Killingsworth, and that said real estate above described belongs to and is the property of Mary Etta Killingsworth. "Conclusions of Law. "I conclude as a matter of law that said real estate belongs to and is the property of Mary Etta Killingsworth, and that the prayer of the plaintiff should be denied in both counts of his said petition. "I conclude that said property should be deKillingsworth, as aforesaid, and that plaintiff, creed and adjudged the property of Mary Etta C. Dale Wolfe, trustee in bankruptcy, take nothing by reason of his petition herein. "Dated this June 1, 1918. "C. Guy Cutlip, Referee." [2, 3] The plaintiff, in his petition in error, makes five specific assignments of error, but presents them under two propositions: First. That the referee's findings of fact and conclusions of law are clearly against the weight of the evidence, and that the judgment of the court is against the weight of the evidence. The plaintiff in error seeks to establish of the court. The referee heard the testimony, made findings of fact, and stated his 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 ob 1918. Plaintiff filed his exceptions and obtained, thought they were selling their injections to the report of the referee, which were overruled by the court on June 6, 1918, and judgment rendered in favor of the defendants. On the same date plaintiff's motion for a new trial was overruled, exceptions saved, notice of appeal given, and this appeal perfected. The referee's report is as follows: "And now comes C. Guy Cutlip, the duly qualified and acting referee in the above-entitled action, and makes this his report of findings of fact and conclusions of law: "(1) I find that C. Dale Wolfe was the duly appointed, qualified, and acting trustee in bankruptcy of G. F. Killingsworth, bankrupt. "(2) I find that on March 14, 1913, said G. F. Killingsworth was adjudged a bankrupt under the proper acts of Congress.. "(3) I find that the plaintiff, trustee, has authority and is acting under legal direction in prosecuting this suit. "(4) I find that the title to the north half and the southeast quarter of the northwest quarter of section 23, township 9 north, range 6 east, Seminole county, Oklahoma, is in Mary Etta Killingsworth. “(5) I find that said land was purchased of the heirs of Wilthy Rentie, the first deed of which was procured from John Rentie, on or about August 14, 1912. terest in the land to G. F. Killingsworth. It is immaterial what they thought about it. The deeds were made to Mary Etta Killings worth, and the fact that her husband negotiated the deal does not militate against her title. The plaintiff seeks to discredit the testimony of defendant Mary Etta Killingsworth, and claims she is unworthy of belief. The record in this case does not in any way impeach her. Her testimony was given full faith and credit by the referee, and she stands before this court unimpeached. Plaintiff's attempt to cast reflection upon defendant's testimony is by inferences and innuendoes. She testified that she obtained $1,000 from her grandfather, Dr. B. R. Spurr, and she gave this money to her husband with which to purchase this land. G. F. Killingsworth testified he used her money with which to purchase the land. The fact that some of the heirs of Wilthy Rentie received some goods out of the store in lieu of the cash does not prove that G. F. Killingsworth did not put into the cash drawer from the money received from his wife the value of the goods so delivered in part payment for the deeds. The plaintiff has offered in evidence a statement 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. Killingsworth was insolvent, and that the indebtedness for which he was afterwards adjudged a bankrupt was incurred prior to the execution of said deeds. "(7) I find that the money and purchase price expended to the heirs of Wilthy Rentie by the from January 1, 1912, to September 30, 1912. It was during the summer of 1912 that Mary Etta Killingsworth testified she obtained the $1,000 from her grandfather. This bank statement does not show that he had a balance to the amount of $500 at any time dur {ng the period covered by the statement. But she testified he gave her the cash, and not a check. This does not prove that he did not have a safety deposit box in which he kept money, or that he did not have a bank 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, 1912, and 1913. Dr. Spurr did not return to exceed $300 or $400 valuation of personal property for any one of these years, and in 1913 his return of personal property was only $50. Plaintiff contends these prove conclusively that he did not have $1,000 in cash that he could have given his granddaughter, Mary Etta Killingsworth, at the time she claims he did give the money to her. While we do not agree with counsel for defendant in error that "beating taxes is one of the principal indoor sports of this great land of ours," yet this has but very little probative force as against the testimony of defendant Mary Etta Killingsworth. If Dr. Spurr had testified he gave Mary Etta Killingsworth $1,000 in the summer of 1912, these tax assessment sheets would be admissible as touching upon his credibility, and, if unexplained, would probably very materially affect his credibility. But Dr. Spurr did not testify in this case. The record shows that he died before this case was tried. However, he might have been able to show conclusively that his tax assessment returns were absolutely correct, and yet he had given her the $1,000 claimed. He may have collected some money on a real estate mortgage during the spring of 1912. The mortgage would not be listed on his tax assessment sheet. He may have sold a piece of real estate, or leased a tract of land for oil and gas, and received a cash bonus. There are numerous sources that might be mentioned from which this money could have been obtained by Dr. Spurr, and it would not show up on his list of personal property returned for taxation. [1] We cannot say that the findings of fact and conclusions of law of the referee and the judgment of the trial court are clearly against the weight of the evidence. The referee having passed upon the credibility of the witnesses, his findings of fact having received, the approval of the trial court, and being unable to say that it is clearly against the weight of the evidence, the judgment will not be disturbed on appeal. In plaintin's second contention he complains of the admission of evidence over his objection. We have examined the evidence complained of, as set out in the plaintiff's brief, and we do not think any prejudicial error was committed by the admission of the evidence complained of. Finding no reversible error in the record, the judgment of the trial court is affirmed. PITCHFORD, V. C. J., and KANE, JOHNSON, and KENNAMER, JJ., concur. BANK OF BUCHANNAN COUNTY v. (Supreme Court of Oklahoma. Sept. 12, 1922.) (Syllabus by the Court.) 1. Appeal and error 837 (4)-Pleading 36(1)-Party strictly bound by his pleadings in record; adverse party may take advantage of admissions in pleadings at any stage of trial or on appeal, if preserved in transcript or case-made. Pleadings in a civil case are not merely matters of form, but they are solemn declarations of the parties. They present to the court what the pleader claims the facts to be, and upon such statement asks it to grant him rehis interests made therein, and will not be heard lief, and he is bound by every statement against to question the correctness thereof, so long as they remain a part of the record; and they may be taken advantage of by the adverse party at any stage of the case, either in the trial court or on appeal, if they are preserved in the transcript or case-made. 2. Pleading 417-Taking leave to amend, waiver of error in sustaining demurrer. When a demurrer is sustained to a pleading and the pleader thereupon takes leave to amend, he thereby waives the error, if any has been committed, in sustaining such demurrer. 3. Judgment of trial court affirmed. Being fully convinced that the trial court did not abuse its discretion in striking plaintiff's third amended petition from the files, and that the plaintiff waived the error, if error was second amended petition, it follows that the committed, in sustaining the demurrer to his judgment of the trial court must be affirmed. Appeal from District Court, Washington County; Preston A. Shinn, Judge. Action by Bank of Buchannan County against George C. Priestly. From an order sustaining a motion to strike plaintiff's petition, he appeals. Affirmed. Foster & O'Neil, of Bartlesville, for plaintiff in error. Rowland & Talbott, of Bartlesville, for defendant in error. KANE, J. This was an action for the recovery of money commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below. The sole question for review in this proceeding in error is whether the trial court 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.) A ly ruled on this proposition, and considering the demurrer to the second amended petition, the third amended petition should not be permitted to stand. the files the plaintiff's third amended peti- | the third amended petition was given. 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 of $3,800 upon a certain written instrument, a copy of which, marked "Exhibit A," was attached to the petition. In the second count. which grew out of the same transaction and in which the same relief was prayed, the plaintiff set up a series of letters and oral declarations, which he alleged constituted another purported contract, which was partially in writing and partially oral; the parts in writing being attached to the petition as exhibits. The prayers of both counts were precisely the same; that is, that the plaintiff prays judgment against the said George C. Priestly, defendant in this count, in the sum of $3,800, together with interest thereon at the rate of 6 per cent. per annum. That the plaintiff claimed to have but one cause of action is shown by the statement which followed the prayer to the second count as follows. Plaintiff further states that only one money judgment is demanded for the sums above named, on counts 1 and 2 of this petition, and in the sum of $3,800, with interest thereon at 6 per cent. per annum from the 2d day of March, 1914, and for costs of suit. The trial court properly construed these two counts to comprise but one transaction, and sustained a general demurrer to the petition as a whole, upon the ground that the allegations contained in both counts and the purported contracts thereto attached, when construed together, failed to state facts sufficient to constitute a cause of action against the defendant. After this demurrer was sustained the plaintiff, pursuant to leave granted, amended his petition by striking out the second count and all the exhibits pertaining thereto, whereupon the defendant moved the court to strike from the files the petition thus amended upon the following grounds: First, that the alleged cause of action set forth in the third amended petition is identical with the claims set forth in the original petition and in the first and second amended petitions heretofore filed in this cause, and as to each the court has already sustained demurrers. [1] In our judgment the trial court did not abuse his discretion in sustaining this motion to strike. Pleadings in a civil case are not merely matters of form, but they are solemn declarations of the parties. They present to the court what the pleader claims the facts to be, and upon such statement asks it to grant him relief, and he is bound by every statement against his interests made therein, and will not be heard to question the correctness thereof, so long as they remain a part of the record; and they may be taken advantage of by the adverse party at any stage of the case, either in the trial court or on appeal if they are preserved in the transcript or case-made. Lane Implement Co. v. Lowder & Manning, 11 Okl. 61, 65 Pac. 926. Good faith as well as the statute law required plaintiff to set forth in his petition all the facts constituting his cause of action in plain and concise language. This he did in his second amended petition, but when the court held that the facts alleged in both counts, construed together, failed to state a cause of action against the defendant. he sought to state a cause of action on paper by leaving out the allegations of his second count, although the previous petition clearly showed that there was but one transaction between the plaintiff and the defendant out of which no liability accrued. [2] And by taking leave to amend his second amended petition the plaintiff admitted the insufficiency of the pleading demurred, and he cannot now take advantage of the error, if any there was, in sustaining the demurrer. It is well settled that "When a demurrer is sustained to a pleading and the pleader thereupon takes leave to amend, he thereby waives the error, if any has been committed, in sustaining such demurrer." Guess et al. v. Reed et al., 49 Okl. 124, 152 Pac. 399; Berry et al. v. Parton et al., 12. Okl. 221, 71 Pac. 1074, 66 L. R. A. 513; Campbell 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-al., 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 plaintiff has omitted to refer to and make a part of the petition certain written instruments shown in said second amended petition to have been a part of said transaction, in which the instrument in writing sued on in The trial court, it seems to us, could have done nothing else but strike. the petition, because it brought no new element into the case, and was really not an amendment. [3] Being fully convinced that this trial court did not abuse its discretion in strik ing plaintiff's third amended petition from the files, and that the plaintiff waived the error, if error was committed, in sustaining the demurrer to his second amended petition, it follows that the judgment of the trial court must be affirmed. HARRISON, C. J, and JOHNSON, NICHOLSON, and KENNAMER, JJ., concur. KNEBEL v. RENNIE et ux. (No. 12305.) (Supreme Court of Oklahoma. July 11, 1922. Rehearing Denied Sept. 26, 1922.) (Syllabus by the Court.) 1. Appeal and error 90-Supreme Court has Where a defendant appears in a case by filing a pleading, and invokes the jurisdiction of the court to grant him beneficial relief, and submits to the court for decision nonjurisdictional questions, such action recognizes the general jurisdiction of the court, and operates as a waiver of all irregularities that may have occurred in obtaining jurisdiction of such defendant. 3. Contracts 170(1)-Construction of parties adopted even though susceptible of another construction. Where the meaning of the terms used in a written contract is not clear, but such terms have been construed and acted upon by the parties interested, such construction will be adopted even though the language of the contract may be susceptible of another construction. 4. Contracts 153-Lawful as against unlawful construction will be adopted. Where a contract is susceptible of two constructions, one lawful and the other unlawful, the former will be adopted. This is on the theory that parties to the contract are presumed to have contracted within the law. 5. Mortgages 81-Decree that mortgage is Action by H. F. Knebel against Albert M. Rennie and wife. From an order sustaining demurrer to the petition, plaintiff appeals. Reversed and remanded, with directions. Burford, Miley, Hoffman & Burford and H. W. Harris, all of Oklahoma City, and H. G. Butts, of Pauls Valley, for plaintiff in error. Albert Rennie, of Pauls Valley, and S. A. Horton, of Oklahoma City, for defendants in error. KENNAMER, J. H. F. Knebel, as plaintiff, commenced this action in the district court of Garvin county on the 17th day of January, 1920, against Albert M. Rennie and Edith Rennie, as defendants, to recover the sum of $4,797, with interest and attorney's fees, and to foreclose a mortgage lien upon certain lands located in Garvin county, Okl. The petition of the plaintiff was in the usual form of a petition filed in foreclosure actions, and a copy of the mortgage was attached as an exhibit. The defendants filed a demurrer to the petition upon four grounds. The second and third grounds of the demurrer raised the question of the invalidity of the mortgage as attached to the plaintiff's petition and the jurisdiction of.the court to foreclose said mortgage. The trial court sustained the demurrer upon the second and third grounds, and held that the mortgage was void, and overruled the demurrer as to the first and fourth grounds. From the order of the court sustaining the demurrer holding the mortgage of the plaintiff void, the plaintiff has prosecuted this appeal, and assigned as error the action of the court in sustaining the demurrer. The parties appear here as they appeared in the trial court, and will be referred to as plaintiff and defendants. A motion has been filed by the defendants to dismiss the appeal. The grounds of the motion to dismiss are: First, the court has no jurisdiction because it affirmatively ap pears from the record that the case-made does not contain the entire record necessary to present the error complained of; second, the order appealed from is not a final order; third, because service of summons was made by publication and notice was not dated and under the seal of the court. As to the first ground of the motion, it is quite obvious that the case-made contains all void as compelling mortgagor to pay registra of the necessary record in order for this tion tax held error. Record examined, and held, that the trial court committed reversible error in sustaining the demurrer of the defendants to the plaintiff's petition and decreeing the mortgage contract to be void. court to determine the questions of law presented for review. Section 5241, Revised Laws 1910, specifically authorizes an appealing party desiring to have an order of the district court reviewed to make a case-made 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |