Opinion of the Court.

found to the title, not in good faith, but in bad faith, and for the purpose of finding one's way out of an unsatisfactory deal, such would not deprive the brokers of their commission, but the question of bad faith, being a question of fact, is a question that must be determined by the jury, unless waived by the parties. We are of the opinion that the court committed prejudicial error in sustaining the motion for a directed verdict and then directing a verdict for the defendants in error.

The point is made that the court committed error in excluding the town ordinance providing for the payment of a license tax. We have examined the ordinance in the record, and are clearly of the opinion that the primary purpose of the ordinance was to raise revenue. That the payment by a real estate broker of a license fee provided for under such an ordinance as the one in the record is not a prerequisite to the making of a valid agreement for the sale of real estate and the collection by the broker of his commission, is too well settled to admit of debate. Hughes v. Snell, 28 Okla. 828, 115 Pac. 1105, 34 L. R. A. (N. S.) 1133, Ann. Cas. 1912D, 374; Calhoun v. Eysenbach, 34 Okla. 185, 124 Pac. 978. The court, therefore, did not err in excluding the ordinance.

The court committed prejudicial error in directing a verdict for the plaintiffs, requiring a reversal of this case. The case is therefore reversed, with directions to the trial court to set aside the verdict and judgment rendered thereon, and to proceed in said matter not inconsistently with this opinion.

By the Court: It is so ordered.

Crudup et al. v. Oklahoma Portland Cement Co.

2.

CRUDUP et al. v. OKLAHOMA PORTLAND
CEMENT CO.

No. 6852. Opinion Filed March 28, 1916.

(156 Pac. 899.)

1. SUNDAY-Validity of Contracts-Execution of Instrument. The bond sued on bore date Monday the 5th day of May, but was signed on Sunday and delivered on a day other than Sunday. Held that said bond did not become effective until delivery, and was not invalid on the ground that it was signed on Sunday. PRINCIPAL AND SURETY—Obligation of Principal—Signature. In the body of the bond sued on it purported to have been made by D., as principal, and B. C. M. and I., as sureties. The principal failed to sign the bond, but the same was signed by the sureties. Under the law as applied to the facts of this case, the principal was bound as fully for the obligation secured by the bond, without signing it, as if it had been signed by him. The facts fail to show that it was the intention of the sureties that they should not be liable unless the principal signed. Held, the omission of the obligor to sign said bond did not have the effect of releasing the sureties of any liability.

3.

4.

5.

SAME—Discharge of Surety-Alteration of Contract. The court found there were some slight changes made in the plans of the building and in its construction, the proof showing that such changes did not increase the cost of construction. These changes were made between the contractor and the builder without the knowledge and consent of the sureties or of the plaintiff, one of the beneficiaries in such bond. The court further found that the building contract provided for changes to be made between the contractor and builder. Held, that under the findings of the court the sureties were not released by reason of such changes.

SAME-Estimate of Architect. The court further found that the
architect in charge of said building in accordance with the build-
ing contract gave the contractor estimates in amounts not to ex-
ceed 90 per cent. of material and work furnished, except in one
instance, where the estimates exceeded 90 per cent., which were
made unintentionally and upon representations made by the con-
tractor. Held, such facts did not have the effect of releasing the
sureties.

MECHANICS' LIENS-Indemnity Bond Person Entitled to
Maintain Suit. One provision of the bond specially provided se-

6.

Opinion of the Court.

curity for persons who might furnish material or labor in the construction of said building, without regard to whether such claims were to be a lien upon said building or not. Plaintiff furnished cement which was sold and delivered for the purpose of being used in the construction of said building, and was one of the beneficiaries in the contract; and one provision of the contract was intended as security for the claim sued on. Held, plaintiff was authorized to maintain this suit.

NO PREJUDICIAL ERROR. Upon an examination of the entire record, we find there was no prejudicial error, affecting the substantial rights of the defendants or causing a miscarriage of justice, requiring a reversal.

(Syllabus by Linn, C.)

Error from District Court, Bryan County;

Jesse M. Hatchett, Judge.

Action by the Oklahoma Portland Cement Company against R. L. Crudup and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Utterback & McDonald, for plaintiffs in error.

Hayes & McIntosh, for defendant in error.

Opinion by LINN, C. The Oklahoma Portland Cement Company, defendant in error and plaintiff below, by proper proceedings in the district court, sought a recovery against defendants as sureties upon a certain obligation executed in favor of the independent school district of Celeste, Tex., and primarily for its benefit, but with a provision intended as security for parties who might furnish material, labor, etc.

In substance, among other things, it was alleged in the petition that plaintiff had furnished cement to the value of $503.10 which was used in the construction of a certain school building, and that defendants had refused to pay the same or any part thereof. A copy of the instrument sued on was attached to and made a part of the peti

Crudup et al. v. Oklahoma Portland Cement Co.

tion. Plaintiff prayed judgment for said amount with interest and a reasonable attorney's fee, which was provided for in said bond. The defendant Sam Dane filed a separate answer. The other defendants, the sureties, filed a joint answer. But both answers were substantially to the same effect. After a general denial, it was alleged, in substance: That the bond was signed on Sunday; that plaintiff was not entitled to recover under the law, for the reason that no lien could attach in its favor upon the building constructed; that the material furnished to the amount of $250 was not used in the construction of the building; that the architect for the school district, in violation of the building contract, and without the knowledge of the defendants, made certain changes in the plans, increasing the cost in material used in said building; that the said obligee, in violation of the building contract, paid the contractor in excess of 90 per cent. of the estimate provided for therein; that the directors of the school district, without a good cause, discharged the contractor and took charge of the building; that said bond was not signed by the principal obligor.

The obligation, the basis of this suit, among others, contains the following provision, to wit:

"It is also understood that this bond shall be considered as made to all creditors and conditioned that said contractor shall pay all indebtedness incurred for labor or material furnished in the construction of a certain 63 ft. x 107 ft. brick school building in accordance with plans, specifications and contract and any person or persons to whom there is due any sum of money for labor or material furnished as stated in said specifications and contract, or his assigns, may bring action on this bond for said indebtedness in the sum of $10,000.00, lawful money of the United States of America to be paid to the said superintendent of the school district of Celeste, Tex., through

Opinion of the Court.

the school board and parties who may be entitled to any moneys as aforesaid, their executors, administrators or assigns, for which payment well and truly to be made, we bind ourselves and each of our heirs, executors, administrators, jointly and severally firmly by these presents."

The cause was tried to the court, and separate findings of fact and law, being requested, were made and filed, and judgment based thereon was rendered in favor of plaintiff in the sum of $253.10, and the further sum of $50, attorney's fee. Motion for a new trial was filed, overruled, and exceptions saved, and error has been prosecuted to this court by defendants filing their petition in error with case-made attached.

Various assignments of error are alleged, which we deem unnecessary to set out at length, but counsel for plaintiffs in error present certain questions for our determination, in substance, as follows: (1) What constitutes a bond, and what is a proper and legal execution thereof? (2) What changes in the original contract will release the sureties on the bond? (3) Will payment made to the contractor in excess of the amount specified in the contract release the sureties? (4) Did the obligation sued on secure the plaintiff a right of action against the sureties, said plaintiff under the law not having a lien against the building constructed? These questions will be considered in the order in which they are presented.

First. It is the contention of the plaintiffs in error that the purported obligation sued on is not a legal bond; (a) For the reason it was not signed by the purported obligor; and (b) that it was signed by the sureties on Sunday, hence is void.