itself was not in fact made, but that only been sustained by the court. In arriving at item 1, which provided for the preliminary survey, was made, in which case parol evidence is always admissible, as it is a wellsettled principle that, where, by reason of fraud or mistake of fact, the execution of an instrument has been secured, parol evidence is admissible to establish such fact, not to vary the terms, but to establish whether or not such contract was entered into. However, the discussion of this question is of no value to us at this time, and we do not rely upon that assignment of error, believing that it is unnecessary, as the case can be disposed of without deciding that point; and therefore we express no opinion as to the merits of that assignment of error, believing, as we do, that the terms of the contract as written, whether made by the city or not, do not warrant or authorize the judgment of the lower court as entered. this conclusion, we have been guided by the fundamental rules of construction of contracts. We have gathered the intentions of the parties from the instrument itself, and have ignored many side questions raised in the briefs; for those questions are all without the case, and can only result in confusion, as they did in the trial below, and in the misapprehension of the issues involved in the case. The assent of the city to the contract was obtained by a proposition coming from plaintiffs; the proposition, whatever it may have been, was included in the instrument, and the parties by signing it thereby agreed that such instrument represented the full and complete agreement, or the meeting of their minds, without which no contract is effective. Lemp Brewing Co. v. Secor, 21 Okl. 537, 96 Pac. 636. must be read together, and, if possible, every part thereof must be made effective. Hanna v. Mosher, 22 Okl. 501, 98 Pac. 358. We therefore find that, by the terms of the contract sued on, plaintiffs were not warranted in performing the services under items 2 and 3 until the preliminary survey, plans, and estimates had been approved by the city, and bonds voted, or funds raised in some other way, for the construction of the proposed waterworks system; that the city had paid plaintiffs for the services rendered under the provisions of item 1, and that no liability, as against the city and in favor of plaintiffs, existed at the time the suit was instituted, under and by virtue of the terms and conditions of items 2 and 3 of said contract, which never did become effective: that the evidence introduced by plaintiff in support of the allegations of their petition clearly shows that they were not entitled to recover; and that the court erred in overruling the demurrer of the city, timely interposed; and for the error of the court in thus overruling the demurrer of the city, as aforesaid, the judgment of the district court of Pottawatomie county should be reversed. [3] In arriving at the intention of the The contract, treated as a whole, and giv-parties to the contract, the whole instrument ing to the words and the terms used therein their ordinary and generally accepted meaning and understanding, convinces us that the intent of the parties, at the time the same was executed, was to employ plaintiffs to make the preliminary survey, and to pay them therefor the sum of $150, when it should be completed and delivered to the city; and that the city council, from this preliminary survey and the report and the estimates accompanying, it, were to determine whether or not the city wanted such a system as that outlined therein, and, if this question should be determined in the affirmative, then the plaintiffs were to proceed with the final survey, plans, and estimates, as provided for in items 2 and 3, and by the very terms of the instrument the services under items 2 and 3 were not to be rendered until the condition precedent to the adoption of the final survey, i. e., the voting of the bonds, or the raising of funds by some other method, had been performed; and that, according to the theory of the case, as tried in the lower court, the plaintiffs were not authorized to perform any work under items 2 and 3 until the bonds had been voted, and none after the notice had been given by the city, on March 10th, that their services would be no longer needed. PER CURIAM. Adopted in whole. VAUGHT v. GATLIN. (Supreme Court of Oklahoma. Nov. 14, 1911.) (Syllabus by the Court.) 1. LIMITATION OF ACTIONS (§ 20*)-PERSON- [2] Had the city council accepted the preliminary plans and estimates of the waterworks system, as prepared and furnished by plaintiffs, and then called an election for the purpose of voting bonds to raise money with which to install the proposed system, and the proposition had carried, and bonds issued, or funds for that purpose raised in some other manner, then, under the terms of the contract, undoubtedly plaintiffs would have been entitled to recover, but even then only in such sum as the services actually rendered would have been reasonably worth. As it is, LIMITATION OF ACTIONS (§ 93*)-REPLEVIN -PROPERTY TAKEN OUT OF JURISDICTION. they were not entitled to recover at all, and The statute of limitations (Mansf. Dig. the demurrer to the evidence should have 4478 [Ind. T. Ann. St. 1899, § 2945]) as to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 2. man in Ft. Worth, in November, 1902, and the next month brought them to Mayesville, where plaintiff found them, and where they had been since brought there. It is urged that the evidence failed to disclose title in plaintiff, as she alleged. The burden was upon plaintiff to make out a prima facie ti personal property stolen and removed from this jurisdiction is suspended by Mansf. Dig; § 4502 (Ind. T. Ann. St. 1899, § 2969) and begins to run in favor of an innocent purchaser for value, so as to bar a recovery against the true owner, from the time the property is returned to this jurisdiction and by such purchaser held openly and notoriously for three [Ed. Note.-For other cases, see Limitation tle. This she did when she proved that aftof Actions, Cent. Dig. § 470; Dec. Dig. § 93.*]| 3. LIMITATION OF ACTIONS (§ 199*)-SUBMISSION TO JURY. years. Where in replevin the statute of limitations had been suspended pending the removal of the property from this jurisdiction and since its return or the starting of the statute three years had not expired at the time of the commencement of the suit, held that the court did not err in refusing to submit to the jury the issue of the running of the statute. [Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 199.*] Error from District Court, McClain County; R. McMillan, Judge. Action by Fannie Gatlin against A. C. Vaught. Judgment for plaintiff and defendant brings error. Affirmed. er the death of her husband, no administrator being appointed, she retained the mules as her own, claiming them presumably under Mansfield's Digest, § 3, which reads, "When any one shall die leaving a widow or children, and it shall be made to appear to the probate court that the estate of the deceased does not exceed three hundred dollars, the court shall make an order that the estate vest absolutely in the widow or children, as the case may be; and in all cases when the estate does not exceed eight hundred dollars the widow or children, as the case may be, shall be entitled to retain the amount of three hundred dollars of the property at cash price," in force at that time in that jurisdiction. J. W. Hocker, for plaintiff in error. Ben As possession of personal property is prima Franklin and W. H. Woods, for defendant in facie evidence of ownership and that the error. TURNER, C. J. This is a suit in replevin, originally commenced on September 19, 1904, before a United States commissioner by Fannie Gatlin, defendant in error, against A. C. Vaught, plaintiff in error, to recover possession of a span of mules. For answer defendant denied, ore tenus, the allegations of the complaint, asserted title in himself, and pleaded the statute of limitations in bar of plaintiff's demand. There was judgment for plaintiff. In the district court of McClain county, to which the case was appealed, a demurrer was sustained to the complaint which was reversed on appeal (Gatlin v. Vaught et al., 6 Ind. T. 254, 91 S. W. 38), and on trial anew in the district court there was judgment for plaintiff. reverse the judgment, defendant brings the case here. possession is lawful, and, in replevin, such possession in plaintiff and a wrongful taking is all that is necessary to maintain the suit (Sumner v. McFarlan, 15 Kan. 600; Branson v. Heckler, 22 Kan. 610; Knox v. Hellums, 38 Ark. 413; Prater, Adm'r, v. Frazier and Wife, 11 Ark. 249; Martin v. Hodge, 47 Ark. 378, 1 S. W. 694, 58 Am. Rep. 763), this was sufficient to make a prima facie case and shift the burden of proof. But, as such evidence was only prima facie, and may be overthrown by other testimony, to maintain the burden, defendant undertook to show that the estate of deceased exceeded $800, in order to show that plaintiff had no right to retain the amount of $300 of the property, and proved that at the death of the husband his entire estate consisted of To these mules, which were then colts and worth about $100 each, four or five head of horses, three head of cattle, two wagons, and some plows and tools, of a total value not shown. We are therefore of opinion that, as plaintiff proved prima facie title, which was not overcome by defendant's proof to the contrary, the court did not err in overruling the demurrer to the evidence. It is assigned that the court erred in refusing, at the close of all the evidence, to instruct the jury to return a verdict for defendant. There is no material conflict in the evidence. It discloses that on the night of March 1, 1901, while plaintiff was the widow of James Churchman, who had died in possession and the owner thereof, the mules in controversy were stolen from her, near Ireton, in what is now McClain county; that, although diligent search was made, they disappeared, and were seen and heard of no more until a short time before this suit, when they were found in possession of one of the defendants Vaught, in said county, at which time plaintiff was living in another part of the state; that said Vaught bought them in good faith, and for value, from a certain [1] Being without title, having received none from their grantor, defendant next urges that this suit is barred by Mansfield's Dig. § 4478 (Ind. T. Ann. St. 1899, § 2945), which reads: "The following actions shall be commenced within three years after the cause of action shall accrue, and not after: First. * Second. * * Third. All actions for taking or injuring any goods or chattels." And by section 4502 (Ind. T. Ann. St. 1899, § 2969), which reads: "If any person, by leaving the county, absconding or con For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes sion of the thief, and if it were brought by an innocent purchaser, it commenced at the time the purchaser took possession by virtue of the sale. And if the buyer be not an in cealing himself, or any other improper act | gan to run. If the statute did not begin to of his own prevent the commencement of run while this property was in the possesany action in this act specified, such action may be commenced within the times respectively limited after the commencement of such action shall have ceased to be so prevented”—and that the court erred in refus-nocent purchaser, if he knew it to be stolen ing to so instruct as requested. property, he was but the receiver of stolen property, and the statute would not begin to run as to him until he should have done with it what a thief is required to do, in order to bring it within the operation of the statute." [3] We are therefore of opinion that, as pending the time the mules were out of this jurisdiction the statute was suspended, and as the time since their return was too short to complete the bar, no matter how peaceable, open, and notorious the same might have been held by defendant, the court did not err in refusing to submit the issue of the running of the statute to the jury as requested, and, finding no error in the record, the judgment of the trial court is affirmed. All the Justices concur. BARNES v. DAVIS et al. (Supreme Court of Oklahoma. Dec. 12, 1911.) (Syllabus by the Court.) TRIAL (§ 152*)—DEMURRER TO EVIDENCE. 1. It is not error to sustain a demurrer to the evidence on behalf of a part of the defendants, when there is no evidence tending to prove a cause of action against them. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 349; Dec. Dig. § 152.*] [2] Concerning this estate, in this same 'cause, in passing on a demurrer to the complaint substantially setting forth the facts as stated, the court, in Gatlin v. Vaught et al., supra, said: "The reported cases involving the question here raised are few; and none, so far as we have been able to find, are exactly in point. In all of them, where the statute has been held to bar a recovery, the defendant (or the defendant and his grantors) was shown to have been in the peaceable, open, and notorious possession of the property for the time named by the statute. In none of them was it held that the thief's possession, especially where he secreted the property, could be tacked to that of the defendant, in order to complete the bar. We do not mean to suggest that a thief could not, in any event, plead the statute in replevin. If he had held the property openly and notoriously in the community where the larceny occurred, he could undoubtedly do so, not so much because he was entitled to the protection afforded by the statute, but because of the laches of the plaintiff. But where he conceals the property, and removes both it and his person from the jurisdiction of the court, and, so long as such acts continue as against him, the running of the statute is certainly suspended. We therefore hold that the statute of limitations, as to personal property in the hands of a thief, who has removed it from the vicinity of the owner, or secreted it from him, does not begin to run until he returns the property to the vicinity, or openly and notoriously holds it, so that the owner may have a reasonable opportunity of knowing its whereabouts and of asserting his title. And when he does this the statute begins to run, although the proof may show it to have been stolen property, not on the theory that the thief is to be protected, but be-prisonment, Dec. Dig. § 40.*] cause of the laches of the owner in not asserting his title for so long a period as the statute gives him. A grantor can convey no better title than he has himself. If the statute has not begun to run, his grantee can claim nothing by virtue of his possession. If the thief, after having concealed the prop-al Bank of Davis, E. J. Henderson, and A. L. McClusky, the Merchants' & Planters' Nationerty, has done nothing in relation to it to start the statute in his favor, his grantee cannot tack the thief's possession, or any part of it, to fill out his unexpired time. It is otherwise if the statute began to run while the property was in the hands of the thief. Then the purchaser may tack to his unexpired time the time the property was in the thief's possession after the statute be 2. PLEADING (§ 345*)—JUDGMENT ON PLEAD INGS. It is not error to overrule a motion for judgment on the pleadings, where the answer is issue all the material averments of the petia general denial, and is sufficient to put in tion. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dec. Dig. § 345.*] 3. FALSE IMPRISONMENT (8 40*)-INSTRUC TIONS. Instructions examined, and held not subject to complaint by the plaintiff. [Ed. Note.-For other cases, see False Im Commissioners' Opinion, Division No. 1. Error from District Court, Murray County; R. McMillan, Judge. Action by T. L. Barnes, plaintiff below, plaintiff in error, against Sam Davis, Sam Pickens, defendants below, defendants in error, to recover damages, actual and exemplary for trespassing and false arrest. Judgment for defendants, and plaintiff brings error. Affirmed. J. P. Lockwood, for plaintiff in error. Fagan & Kendrick and W. N. Lewis, for defendants in error. [3] The other exceptions relate to the giving of instructions, and it would be sufficient to dispose of these by saying that no sufficient exception was taken to them, but, giving the plaintiff the benefit of the doubt on this point, an examination of the instructions discloses that they were liberal to the plaintiff, as appears from the fifth and sixth, as given by the court: "(5) Now, if you find from the evidence that Pickens and Henderson went upon said premises under said process, and in proceed oppressively, and arrested plaintiff, without cause or reason, and kept him in prison for any length of time, and that the action was without probable cause, and that while so AMES, C. The plaintiff was a tenant of | Elev. Co., 26 Okl. 626, 110 Pac. 1096; Mullen Davis, one of the defendants, and had given v. Robison, 120 Pac. 1099, just decided. his note for the rent. Davis transferred the note, in due course, to the Merchants' & Planters' National Bank of Davis, another of the defendants. McClusky, another of the defendants, was cashier of the bank. The defendant Pickens was an officer, and the defendant Henderson was either an officer, or was assisting Pickens in the execution of a writ. The record is in a very unsatisfactory condition. It does not purport to contain the testimony of the witnesses as given on the stand, but only a summary of what was testified; but it appears from this unsatisfactorying to execute the same acted tyranically and record that the bank sued the plaintiff on this note and secured judgment; that the defendants Pickens and Henderson, in executing a writ of attachment or execution on this judgment, went upon the plaintiff's prem-acting they detained the plaintiff and carried ises, where an altercation ensued between them and the plaintiff and his wife, which resulted in the arrest of the plaintiff and his wife. The other defendants were not present, and did not participate in the matter, further than it may be said that the rendition of their judgment and the enforcement of it was a participation. The evidence of the plaintiff and the defendants Henderson and Pickens was conflicting, each side claiming that the other first resorted to force and profanity; and the testimony of the defendants tended to show that the plaintiff, under the advice of counsel, was purposely laying the foundation for a damage suit. At the conclusion of the plaintiff's evidence, the court sustained a demurrer thereto as to the defendants Davis, McClusky, and the bank, and submitted the case to the jury as to the other defendants. At the conclusion of the evidence, the plaintiff moved for a judgment on the pleadings, the answer being a general denial, which was overruled. The brief of the plaintiff in error assigns 17 grounds of error, but does not cite any authorities in support of any of them. The question raised may be said to involve the ruling of the court on the demurrer to the evidence, on the plaintiff's motion for judgment on the pleadings, on the admission of evidence, and on the instructions. [1] There being no evidence connecting the defendants Davis, McClusky, and the bank with the trespass or the arrest, there was, of course, no error in sustaining their demurrer to the evidence. [2] As the answer was a general denial, it was, of course, not error for the court to overrule the motion for judgment on the pleadings. With reference to the admission of evi dence, the plaintiff in error has not complied with the rules of the court, relative to setting out the evidence, about which he complains. Great Western Mfg. Co. v. Davidson Mill & him to Sulphur, and restrained and abused him, without cause or reason, then, in that event, you should find for the plaintiff, and give to him such damages as you may think he is entitled to under the proof for his actual detention, imprisonment, and disgrace; and you may go further, if you so find that the defendants acted so as to deserve it, a damage, known as smart money or punitive damages, to be placed upon the defendants as exemplary damages, to teach them a lesson in their future conduct. "(6) On the contrary, if you find that the defendants herein were acting in good faith under the process that was in their hands, and used no more force than was necessary in the discharge of their duty, and if you also find that they were resisted by the plaintiff and his family, and were arrested for obstructing an officer in the discharge of his duty, and that while under said arrest they and in that event, your verdict should be for were dealt with humanely and fairly, then, the defendants, and you should so find.” Finding no error in the record, the case should be affirmed. PER CURIAM. Adopted in whole. EASTMAN LAND & INVESTMENT CO. v. LONG-BELL LUMBER CO. (Supreme Court of Oklahoma. Nov. 14, 1911.) (Syllabus by the Court.) 1. CONTRACTS (§ 187*) - ENFORCEMENT BY THIRD PERSON-CONSIDERATION. A promise made expressly for the benefit of a third person may be enforced by him, provided it is based upon consideration. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 798-807; Dec. Dig. § 187.*] 2. CONTRACTS (§ 47*)-PROMISES IN Favor of THIRD PARTY-CONSIDERATION. tractor to pay a sum, which the owner owes A promise made by an owner to a con to the contractor to a materialman who has For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes furnished lumber to the contractor, cannot be | pay this balance, which it owed to Marcum, enforced by the materialman, unless this prom- to the Long-Bell Company, and this agreeise is based upon some present consideration. ment was communicated to the Long-Bell [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 220, 221; Dec. Dig. § 47.*] Company. Thereafter the Eastman Company 3. CONTRACTS (§§ 51, 52*)-"CONSIDERATION." claimed that Marcum had negligently per"Any benefit conferred, or agreed to be formed his contract, and declined to pay conferred, upon the promisor, by any other the bill. Suit was then brought by the Longperson, to which the promisor is not lawfully Bell Company against Marcum and the entitled, or any prejudice suffered or agreed to be suffered by such person, other than such Eastman Company, which resulted in a judgas he is at the time of consent lawfully bound ment by default against Marcum and a perto suffer as an inducement to the promisor, sonal judgment against the Eastman Comis a good consideration for a promise." Snypany and a decree foreclosing the lien. The der's Comp. Laws 1909, § 1075. Eastman Company brings the case here by petition in error. The principal inquiry in the case is whether the Long-Bell Company was entitled to a personal judgment against the Eastman Company. [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 223, 224; Dec. Dig. §§ 51, 52. For other definitions, see Words and Phrases, vol. 2, pp. 1444-1447; vol. 8, p. 7612.] 4. MECHANICS' LIENS (8 99*)-NOTICE-NECESSITY OF WRITING. Under section 4403 of Mansfield's Digest (Ind. T. Ann. St. 1899, § 2870), requiring notice of a lien for material to be given the owner at or before the time of furnishing material, it was unnecessary for the notice to be in writing. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 131, 132; Dec. Dig. § 99.*] 5. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-RECEPTION OF EVIDENCE. A cause will not be reversed for error committed by the trial court in permitting secondary evidence of the contents of a written instrument, when it was not necessary in any event to prove such contents. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. 8 1050.*] Commissioners' Opinion, Division No. 1. Error from District Court, Ottawa County; T. L. Brown, Judge. Action by the Long-Bell Lumber Company against the Eastman Land & Investment Company and J. G. Marcum. Judgment for plaintiff, and defendant Eastman Land & Investment Company brings error. Reversed and remanded. F. D. Fulkerson, for plaintiff in error. Basil P. Finley, Wm. R. Cowley, and J. Walter Farrar, for defendant in error. AMES, C. In September, 1906, the Eastman Land & Investment Company (hereafter referred to as "Eastman Company") entered into a contract with one J. G. Marcum for the construction of certain improvements on a mining lease in the Quapaw reservation for a consideration $2,877. Just afterwards Marcum entered into a contract with the Long-Bell Lumber Company (hereinafter referred to as the "Long-Bell Company"), by which it agreed to furnish him lumber. Suitable steps were taken by the Long-Bell Company to procure its lien under the Arkansas statutes then in force in the Indian Territory. After the material had all been delivered, the balance due from Marcum to the Long-Bell Company was ascertained, and a lien statement thereafter was duly filed. Marcum and the Eastman Company also agreed that the Eastman Company should It appears from the evidence that about the time of the completion of the contract Marcum and the Long-Bell Company agreed that the balance due it was $1,130.71. At the same time, Eastman owed Marcum a balance equal to this amount, and it was agreed between Marcum and Eastman that Eastman should pay this sum to the LongBell Company. This agreement was at the time communicated to the Long-Bell Company. A few days later the Long-Bell Company, both verbally and by letter, requested Eastman to remit to cover, which Eastman by letter and by word of mouth promised to do. Some controversy, however, arose between Eastman and Marcum about defects in the performance of the contract, and Eastman did not pay the Long-Bell Company. Eastman assigns as error the giving of the following instruction: "The court further instructs the jury that if you believe from the testimony in this case by a fair preponderance of the testimony that the plaintiff and the defendant Eastman Land & Investment Company entered into a contract or agreement whereby the defendant Eastman Land & Investment Company was to assume the indebtedness of the amount sued for in this case, and agreed to pay the same, it would be your duty to find for the plaintiff and against the Eastman Land & Investment Company for the entire amount agreed to be paid; but, before you can find the defendant Eastman Land & Investment Company indebted upon its verbal promise to pay, you must find by a fair preponderance of the testimony that such verbal promise was based upon some consideration, and that some part of such agreement was carried out and performed." Eastman claims that, as the owner is not liable personally to a subcontractor, his promise to Marcum to pay the Long-Bell Company was without consideration, while the Long-Bell Company claims that "an action will lie on the promise made by the defendant to a third person for the benefit of plaintiff, although the plaintiff may not be privy to the, consideration." |