said premises and to seize all liquors, together to prove that the property seized was of with the vessels, implements, furniture, and fixtures used or kept for such illegal purposes. On the next day the premises were searched and the following property seized, to wit:

contraband character. In the view we take of this case it becomes immaterial whether the witnesses for the state who made the seizure knew for what purpose the property in question was being used. There was evi$5.00 dence that in making the search seven sacks $1.00 of beer and three quarts of whisky, together .$ 14.05 with the property in controversy, were seiz.10 ed. And, where there is evidence that the premises were used in violation of such laws, and the property seized as implements, furniture, and fixtures used or kept for the illegal manufacture, sale, barter, giving away, and otherwise furnishing liquors, the sworn complaint upon which the search warrant contraband character of the property and was issued is prima facie evidence of the things seized, and the burden rests upon the interveners to show by competent evidence their right or interest in the things claimed; that the same were not used in violation of any of the provisions of the prohibitory laws of this state, and were not in any of violating such provisions (section 10, c. manner kept or possessed with the intention 70, Session Laws 1910-11).

Subsequently the Diamond Drug Company and the National Cash Register Company, intervened, alleging that the Diamond Drug Company was a corporation organized for the purpose of carrying on a drug business in Tulsa, Okl., and the owner of the property seized, except the liquor and the cash register; that the title to the cash register was retained by the National Cash Register Company until the balance due of $95 was paid. The evidence shows that the front part of the building was used for a drug store; while back of the partition was a bar with liquor and glasses and the other property seized in this proceeding. The beer was found in a "plant" under the floor. The check and money were found in the cash register the keys of which bore the inscription "1⁄2 pint," "pint," "quart." There was also proof that the Diamond Drug Company had the reputation of being a place where intoxicating liquors were illegally sold.

The court held that, as the slot machine was a gambling device, the same was not properly seized under the prohibitory laws. The remaining property was ordered confiscated and destroyed, except that property which was of value and adaptable to a lawful use, which was ordered delivered to the proper officials for sale.

It is argued that the judgment is not sustained by the evidence and is contrary to law, and it is to this question that we will direct our attention. A sworn complaint was filed stating that liquors were being manufactured, sold, bartered, given away, and otherwise furnished, and were being kept for the purpose of selling, bartering, giving away, and otherwise furnishing, the same in violation of section 3612, Rev. Laws 1910, at the Diamond Drug Store, operated by Billy Miles at No. 15, East Second street, in the city of Tulsa, Oklahoma. Upon such sworn complaint a search warrant was issued and the property hereinbefore described seized.

stant case, we find that the sworn complaint Applying this rule to the facts in the incharacter of the things seized, and the court was prima facie evidence of the contraband properly entered a judgment of forfeiture. The cause should therefore be affirmed.

T., a broker, was employed by D. to find some one with whom D. could exchange a stock of merchandise for live stock. T. brought D. and H. together for the purpose of negotiating such exchange. After some negotiations the exchange fell through, because D. was not satisfied that the value of the live stock he was to receive in the proposed exchange was equal to

the value of his stock of merchandise.

Held, that T. was not entitled to recover commissions from D. because of such proposed exchange.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 81, 94-96; Dec. Dig. 63(1).]

Commissioners' Opinion, Division No. 1. Error from County Court, Pawnee County; George E. Merritt, Judge.

Action by R. H. Tullock against J. A. Daboling. Judgment for defendant, and plaintiff brings error.

Affirmed.

L. V. Orton, of Pawnee, for plaintiff in error. L. N. Kimrey, of Hallett, for defendant

The interveners failed to introduce any in error. evidence in support of their plea of intervention, but rely upon a demurrer to the evidence, on the theory that the state failed

RUMMONS, C. Plaintiff commenced this action in a justice of the peace court in Paw

nee county to recover from defendant the [ations were directly between the parties. It sum of $123 as commission for procuring is true that the evidence offered by plaintiff for defendant a trade for defendant's stock of hardware and implements. The cause was tried on appeal in the county court, and at the conclusion of plaintiff's evidence the court sustained the demurrer of defendant thereto and directed a verdict for the defendant. Plaintiff brings this proceeding in error to reverse the judgment for defendant rendered by the court upon such directed verdict.

shows that the parties orally agreed that defendant would trade his stock of merchandise for the land, the horses, mules, and cattle listed by Hedges, and it is argued by plaintiff that this constituted such a trade as to render the defendant liable for commissions when he repudiated it. On the other hand, it is argued by defendant that he is not liable because no written agreement was ever entered into by either of the parties to the trade. The tentative contract between the parties to the trade fell within the statute of frauds, both as to the land and as to the chattels, for the reason that the chattels were of a value in excess of the sum of $50. Therefore it follows that all of the talk between defendant and Hedges prior to the time of the drawing up of a written contract was merely a preliminary negotiation. The written contract was never executed; therefore no trade was ever made. In this class of cases, the broker must procure a trade satisfactory to his principal in order to earn his commission, because the principal proposed no definite trade to the broker. We conclude, therefore, that the minds of the parties to this trade never met, and no trade was ever procured for the defendant by the plaintiff.

The record discloses that the plaintiff was a real estate broker living at Yale, Okl., and that the defendant was the owner of a stock of hardware, implements, and buggies at Hallett, Okl.; that the defendant employed plaintiff to procure a trade for his stock of goods, agreeing to pay a 3 per cent. commission. The plaintiff found one Hedges, who was the owner of 40 acres of land and some horses, mules, and cattle which he desired to trade for a stock of merchandise. Plaintiff brought defendant and Hedges together, and, after considerable negotiation, a tentative trade was orally agreed upon. Hedges made a list of the horses, mules, and cattle which he proposed to trade, together with the price thereof, and delivered the same to the defendant. The defendant invoiced his stock of goods, and the parties met at the store of defendant to conclude the trade. Hedges and his wife had signed and acknowl-case, however, the principal fixed clear and edged a deed conveying the 40 acres of land to defendant, and he had the deed with him, ready for delivery, at the time of this meeting. Defendant sent for his attorney to prepare a contract covering the trade, and while the attorney was drawing the contract it was discovered that the list of property proposed to be exchanged by Hedges for defendant's stock of goods lacked $98 of equaling the invoice value of defendant's stock. Defendant refused to proceed with the trade or to execute the contract, unless Hedges paid him the $98. This Hedges refused to do. The trade was abandoned and never consummated.

Plaintiff relies upon the case of Bleecker v. Miller, 40 Okl. 374, 138 Pac. 809. In that

definite terms for the sale of his property, and the broker procured a purchaser who accepted the terms proposed and offered to pay the price asked, but in the meantime the principal had sold the property to another and put it out of his power to carry out the deal. The broker was allowed to recover because he had found a purchaser ready, able, and willing to buy. In the case at bar the broker never found a satisfactory trade for his principal, and, being bound by the terms of his employment in this particular case to find a satisfactory trade, he was not entitled to his commission.

The judgment of the court below is right, and should be affirmed.

PER CURIAM. Adopted in whole.

(59 Okl. 87) FARRIS v. HODGES et al. (No. 7594.) June 6, 1916.)

(Syllabus by the Court.)

Plaintiff seeks to maintain this action upon the theory that he found for defendant a purchaser ready, willing, and able to take his stock of goods upon the terms proposed by defendant, and that, when the defendant refused to consummate the trade, he became liable to plaintiff for the commission agreed upon. The difficulty of applying this rule (Supreme Court of Oklahoma. lies in the fact that this was a trade, and not a sale. The evidence of plaintiff discloses that the only terms proposed by defendant were that he was desirous of trading his stock of goods for some horses and cattle. No definite proposition was made by defendant, and the only task imposed upon plaintiff by defendant was to find some one with horses and cattle with whom defendant could [Ed. Note.-For other cases, see Appeal and trade. The plaintiff brought the defendant Error, Cent. Dig. § 2899; Dec. Dig. w and Hedges together, and most of the negoti- | 690(4).]

1. APPEAL AND ERROR 690(4) — RECORD QUESTIONS PRESENTED FOR REVIEW.

The court cannot review alleged errors of the trial court in refusing admission of certain proffered evidence, unless such evidence, or the substance thereof, be in some proper manner incorporated in the case-made, thereby enabling this court to determine whether or not there was error in its exclusion.

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

Where the evidence is sharply conflicting, the instructions should be correct. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. 232(1).] 3. BANKS AND BANKING 67 CORPORA TIONS-SALE-LIABILITIES.

Where one bank purchases the business and takes over the deposits of another bank, in the absence of an expressed contract to that effect, it cannot be held for the liabilities of the bank purchased, other than its deposit liabilities. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 129; Dec. Dig. 67.] Commissioners' Opinion, Division No. 4. Error from 'District Court, Custer County; James R. Tolbert, Judge.

Action by R. J. Hodges against Butler State Bank and another. Judgment for plaintiff, and against defendant R. B. Farris, and he brings error. Reversed and remanded for new trial.

ted by the Guaranty State Bank, and denied that the Butler State Bank had assumed lia

bility for such wrongs, if any, committed by the said Guaranty State Bank. Plaintiff replied by general denial. The case was tried to a jury, which returned a judgment in favor of plaintiff and against defendant Farris in the sum of $275, and, upon peremptory instruction of the court, found for the Butler State Bank.

[1] The defendant complains of a ruling of the court in sustaining objections to a line of questions asked a witness by defendants relative to whether he had heard the Hodges boys make any statements as to the ownership of the stock, and as to whether he had heard any one claim that old man Hodges owned some of the mules. While the defendants saved exceptions to the court's ruling on these questions, yet there was no offer of what the answers of the witness might be, and for that reason there is nothing presented on this point for our consideration.

R. J. Shive, of Butler, and E. R. Hastings, of Oklahoma City, for plaintiff in error. Darnell & Darnell, of Arapaho, for defend-Offutt et al. v. Wagoner et al., 30 Okl. 458,

ant in error.

This action was instituted by plaintiff against defendant R. B. Farris, who was one of the managing officials of the Guaranty State Bank, and the Butler State Bank, to recover the value of certain live stock which plaintiff alleged was owned by him and was taken by said parties and sold, and the pro

ceeds of said sale converted to their own use.

120 Pac. 1018; St. Louis, I. M. & S. Ry. Co. v. Weldon, 39 Okl. 369, 135 Pac. 8.

[2] The court instructed the jury that if they found from a preponderance of the evidence that the plaintiff was the owner of the stock sued for, and that the defendant R. B. Farris, either acting alone or with the Guaranty State Bank, took possession of said property without the consent of the plaintiff and had the stock sold and converted the proceeds to their own use, then the plaintiff would be entitled to recover.

up a claim to the stock after they had sold the same under a chattel mortgage given by one of his sons to the defendant bank.

It is evident that the giving of this indid not attempt to disprove plaintiff's construction was prejudicial error. Defendants The defendants answered by general denial, tention that he was the owner of the live and further alleged that, if plaintiff was the stock involved in the controversy, but based owner in fact of the stock in controversy, in controversy were left in the custody of their defense upon the ground that the stock he left the same in the custody of his sons and authorized them to mortgage the same plaintiff's sons, and that he authorized them to trade or, mortgage the same, or, having and to represent to the public that they were the owners thereof, and that said sons, with full knowledge that they were mortgaging plaintiff's knowledge and consent, had mort- and trading the same, acquiesced therein, and gaged said stock in controversy to the Guar-that he was thereby estopped from setting anty State Bank of Butler, and that said bank, relying upon the representation of said sons of plaintiff that they owned said property and relying upon the fact that they were in possession and exercising ownership thereof, loaned money to said sons of plaintiff and took a mortgage from said sons upon said stock to secure the payment of said loans, and when the said loans matured said bank took possession of said stock covered by said mortgages and sold the same as by law provided; that plaintiff had full knowledge that said stock was going to be sold by said bank for said purpose, but he made no claim that he was the owner of the same until long after said sale. Defendants further answered that, if any legal wrong had been committed against plaintiff, the same was commit

An instruction to return a verdict for the plaintiff if the jury found from a preponderance of the evidence that the defendants took possession of the stock without the consent of the plaintiff was the equivalent of a peremptory instruction for the plaintiff, because there was no controversy over that proposition, and it was not an issue in the case, but the evidence was sharply drawn and very conflicting upon the actual issues, and where such is the case the instructions should be accurate. Chickasha Cotton Oil Co. v. Brown, 39 Okl. 245, 134 Pac. 850.

[3] The court instructed the jury that the Butler State Bank was not liable to the

ERROR-RECEPTION OF EVIDENCE-Order. proper foundation being laid, and thereafter eviWhere evidence is admitted, without the dence is introduced properly laying such foundation the premature admission of such evidence will not ordinarily constitute reversible error. Error, Cent. Dig. 8 4174; Dec. Dig. 1052 [Ed. Note.-For other cases, see Appeal and (4).]

plaintiff for conversion of his property, if | 2. APPEAL AND ERROR 1052(4)—HARMLESS any, made by the Guaranty State Bank or its representatives, and the plaintiff complains of this instruction. If this ruling was error, the defendant is in no position to complain of it, because the instruction is in conformity with the allegations in their petition on this subject; but in the case of Ezzard v. State National Bank (No. 6018) 157 Pac. 127, not yet reported, the court had this exact question under consideration, and it was held there:

"A purchasing corporation does not become liable for the prior debts or obligations of the vendor corporation, in the absence of either express contract or statutory provisions therefor.

The defendant bank herein assumed none of the liabilities of the Oklahoma City National Bank except deposit liabilities, and no other liability of the constituent corporation has been imposed upon it by law."

3. USURY 142(3)-REMEDIES OF PARTIESPLEADING.

Petition in a suit for usury examined and held to state a cause of action. [Ed. Note.-For other cases. see Usury, Cent. Dig. § 432; Dec. Dig. 142(3).] Commissioners' Opinion, Division No. 2. Appeal from District Court, Dewey County; G. W. Brown, Judge.

Action by J. S. Harris against the First State Bank of Putnam. Judgment for plaintiff, and defendant appeals. Affirmed. Adams & Smith, of Taloga, for plaintiff in W. P. Hickok, of Taloga, for defend

error.

There was no evidence tending to prove that the Butler State Bank had agreed to assume the liabilities of the Guaranty State Bank of Butler, or that there was a consoli-ant in error. dation of the two banks, or that the Butler State Bank was a mere continuation of the said Guaranty State Bank. Therefore the Butler State Bank could not be held for a liability incurred by the said Guaranty State

Bank.

It appears from the record that the sons of plaintiff entered into a rather extensive scheme of swindling by mortgaging live stock to various parties in the surrounding towns and actually executed 56 chattel mortgages before their career was checked. The court excluded defendants' offer to show this fact and refused to permit the introduction of these mortgages. If the stock claimed by plaintiff was included in these mortgages, or any of them, we believe such mortgages were admissible for the jury's deduction, whether or not the plaintiff had knowledge or information that his sons were pursuing such a

The amount which a party who has paid interest in excess of 10 per cent. per annum may recover, after due demand therefor, in an action brought under section 1005, Rev. Laws 1910, is twice the amount of the unlawful interest so paid by him, and is not limited to twice the amount paid in excess of 10 per cent. per annum upon the principal debt.

[Ed. Note.-For other cases, see Usury, Cent. Dig. § 424; Dec. Dig.

138.]

BURFORD, C. This was an action by J. S. Harris against the First State Bank of Putnam, to recover double the amount of various payments made by him to said bank, alleged to have been paid as interest in excess of 10 per cent. per annum. The defendant set up: First, a general denial; and, second, that it had tendered to said plaintiff the sum of $100, which was more than the amount due, and was more than the interest received in excess of 10 per cent. per annum. There was a trial to a jury, and judgment rendered for the plaintiff, from which the defendant appeals.

[1] The principal contention in the case is that the amount recoverable by a party, who has paid interest in excess of 10 per cent. per annum, and who brings his suit after proper demand under section 1005, Rev. Laws 1910, is not twice the whole amount of unlawful interest so paid, but twice the amount of the excess over 10 per cent. per annum, upon the principal sum loaned, and, further, that if upon the demand being made for the return of the unlawful interest the lender pays or tenders to the borrower the excess collected by him over 10 per cent. per annum upon the principal sum, the borrower cannot thereafter maintain an action for twice the amount of the whole unlawful interest paid. This contention must be resolved against the plaintiff in error, by reason of the decision of this court in Miller et al. v. Oklahoma State Bank of Atlus, No. 4397, 157 Pac. 767 (not

yet officially reported, rehearing denied May 19, 1916). It is unnecessary to further discuss this assignment of error than to call attention to the principles laid down in that

decision.

[3] It is further contended that the petition did not state a cause of action, in that it did not allege when the unlawful interest was paid. It is urged that if this allegation

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

the amount allowed by the jury, fifty dollars, was the minimum fixed by the witnesses as a fair value of the services of the attorney for plaintiff. The trial court could not have allowed a less amount if he had followed the testimony, and we, therefore, think that the fact that this was left to the jury did not prejudice the defendant's rights.

Finding no prejudicial error in the record, the judgment is affirmed.

PER CURIAM. Adopted in whole.

(59 Okl. 225)

be lacking there is nothing from which the court can determine that the amount actually received as distinguished from the amount charged constituted interest in excess of the lawful rate. The petition of the plaintiff was laid in eight different counts. It alleges in detail the execution of certain notes, and that certain amounts of interest for specified periods were at the time of the execution of said notes then and there paid. It did not definitely state the time of the payment of the principal amount of the notes, but it is apparent from the petition that some of the causes of action were based upon notes and payments given as renewals or extensions of the notes set out in previous causes of action; and, by taking this fact into consideration, together with the allegations made in the petition that the principal amount and interest had been paid, and taking also into 1. LIMITATION OF ACTIONS 30—FRAUDUconsideration the date of the filing of the petition in connection with the maturities of the various notes, and that the payment alleged in the petition to have been made must necessarily have been made at a time prior to the filing of the petition, we think the time of payment of the various amounts of illegal interest and of the principal amount of the notes are sufficiently alleged to show that such payment of interest was in excess of

the lawful rate.

[2] It is also alleged as error that the trial court allowed a copy of the demand made by the plaintiff to the defendant for the return of the unlawful interest to be introduced in evidence without it being shown that the original was not available. The introduction of this copy at the time, without the proper foundation being laid, was improper, but later in the trial the plaintiff produced evidence to show that the original demand had been delivered to the cashier of the defendant bank; that by him it had been delivered to the president of the said bank, who thought he had delivered it to one of the attorneys. Both the cashier and president of the bank testified that they did not have the original demand in their possession, and both the attorneys testified that they could not produce it. Upon this evidence being adduced a proper foundation was laid for the admission of the copy, and the fact that it had been previously admitted, the proper foundation being now supplied, did not constitute reversible error.

Finally, it is contended that the amount of the attorney's fee to be recovered by the plaintiff was left to the jury when it should have been fixed by the court. This contention is correct under the terms of the statute. Nevertheless we think the rights of the defendant were not prejudiced by this action of the court. The court rendered judgment on the verdict, and then in effect adopted the finding of the jury. Furthermore, there was evidence as to the value of the services and

TRIPP v. ENGLISH et al. (No. 7030.) (Supreme Court of Oklahoma. June 27, 1916.) (Syllabus by the Court.)

LENT CONSPIRACY-TWO-YEAR STATUTE. Where E. is insured in a number of fire insurance companies in the aggregate sum of $18.500, and his stock of merchandise upon which the insurance was taken out is totally destroyed by fire, and he is thereafter adjudged a bankrupt, but before the adjudication in bankfendant 80 per cent. of such loss as a comproruptcy such insurance companies paid the demise settlement, and more than two years thereafter the trustee in bankruptcy brings an action alleging a fraudulent conspiracy between said insured and the insurance companies to conceal the assets of said bankrupt, held, such action is barred by the two-year statute of limitations.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 141; Dec. Dig. 30.] 2. LIMITATION OF ACTIONS 30-PLEADING

-DEMURRER.

Where the petition alleges a fraudulent conspiracy between certain insurance companies and the bankrupt and others to conceal the ason its face that it was filed more than two sets of the bankrupt, such petition showing upyears after the date of the alleged tort, held, that it was not a liability created by statute, but that the gist of the action is the tort, and is barred by the two-year statute of limitations, and that the demurrer to the petition was properly sustained.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 141; Dec. Dig. 30.]

Commissioners' Opinion, Division No. 5. Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by H. F. Tripp, trustee in bankruptcy, against S. C. English and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

Nicholas & Lyle and W. C. Hughes, all of Oklahoma City, for plaintiff in error. Scothorn, Caldwell & McRill and Burwell, Crockett & Johnson, all of Oklahoma City, for defendants in error.

CLAY, C. The parties in this case will be referred to as they appeared in the trial court, plaintiff and defendant, respectively. Plaintiff, as trustee in bankruptcy of the estate of S. C. English, brought suit in the district court of Oklahoma county against S.