en. defense of no consideration is not well takIt will not do to say that this contract was at an end when Foudray, after the default of Fouts, took the deed from escrow, as he had a right to do under that part of the contract, which reads, "Should said note not be paid, then deed shall remain with the State National Bank, subject to the order of party of the first part, and party of the second part forfeits all right to property herein mentioned," for the reason that defendant of his contract, and that defendant must be compelled to accept the same as tendered, and pay the note sued. Finding no error in the record, the judgment of the trial court is affirmed. All the Justices concur. ATCHISON, T. & S. F. RY. CO. v. KIN- (Supreme Court of Oklahoma. Jan. 16, 1912.) 1. RAILROADS (§§ 17, 110*) - CONSTRUCTION OF ROAD-GRADING CONTRACT-FREE TRANS PORTATION. will not be permitted to defeat his contract Where the evidence shows that a railroad had a written contract with a contractor to do grading on its line, which provided for free transportation of men and tools to do the work, and provided for subcontracts to be in terms identical therewith, and it is further shown that plaintiff took a subcontract to do part of the work, which also provided for free transportation, and notified defendant thereof free transportation to and from work would by wire, and defendant's engineer replied that be provided, and thereafter did furnish free transportation of all plaintiff's tools to the work, and when the work was completed furnished the work home, except two car loads thereof, free transportation for all plaintiff's tools from for which, after arrival at destination, it demanded freight charges, and refused to deliver, without payment thereof, held that, in a replevin action, brought by the plaintiff for the tools, there was sufficient evidence to justify the jury in finding that there was a contract for free transportation, and to sustain a judgment awarding plaintiff possession of the tools. Held, further, that whether defendant's engineer had authority to agree to free transportation or not was immaterial, because defendant, having acted on his agreement by shipping all the tools to the work and part of them from the work, ratified the agreement made by its en [Ed. Note. For other cases, see Railroads, Dec. Dig. §§ 17, 110.*] We are therefore of opinion that the judg- 2. EVIDENCE (§ 185*)-BEST AND SECONDARY. ment of the lower court was right, unless, assisting of letters and telegrams, between plainWhere a petition alleges a contract, conis contended, defendant should not in effect tiff and defendant, and that one of the writbe required to specifically perform his con- ings is a telegram sent by plaintiff, and now in tract, where, as here, the transaction between the possession of defendant, and that plaintiff Bainum and Foudray constituted simply a has no copy of it and cannot state definitely its contents, held, that the averments of the petimortgage; and hence Foudray cannot con- tion were sufficient notice to defendant, in posvey him a good legal title. session of the writing, to, in its absence, permit secondary evidence as to its contents. [3] Assuming, but not deciding, that said transaction was, in effect, a mortgage, and [Ed. Note. For other cases, see Evidence, Cent. Dig. § 647; Dec. Dig. § 185.*] Commissioners' Opinion, Division No. 2. Error from Tulsa County Court; N. J. Gubser, Judge. Action by Lindsay Kinkaid against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. for that reason the lots could not be sold by Foudray, so as to pass the title, except pursuant to a judgment of a court of competent jurisdiction in conformity to Snyder's Statutes of Oklahoma, § 5921, and for that reason he cannot convey defendant a good title as urged, there is nothing in the contention, for the reason that, as the contract obligated Foudray, through the escrow, to deliver to defendant a deed only to the lots when the note sued on was paid, which he has offered to do and tendered into court, we are of opin- BREWER, C. This is a suit in replevin ion that Foudray, in making a tender of for possession of certain railroad grading said deed, has lived up to the full measure equipment held by defendant under a claim Cottingham & Bledsoe, Geo. M. Green, and Devereux & Hildreth, for plaintiff in error. of lien for freight charges. It was brought by defendant in error, plaintiff below, who will hereafter be called plaintiff, in a justice of the peace court, against plaintiff in error, who will hereafter be called defendant, and appealed to the county court of Tulsa county, where the cause was tried on October 13, 1909, resulting in judgment for plaintiff, from which judgment the defendant brings error. The defendant assigns 11 specific errors, but seems to group them in the argument in its brief into two propositions, viz.: "Regardless of specifications of error, but included within the same, it is the contention of the plaintiff in error that the trial court, first, had no legal or sufficient evidence before it on which to render any judgment; second, even though the evidence were competent and legally before the court, it was not sufficient to form the basis of a judgment in favor of the defendant in error and against the railway company, considered from any standpoint whatsoever." And to sustain these propositions, it urges two reasons in their support, and, stated in general terms, they are, first, that it is not shown that any one with authority to bind the defendant made a contract with plaintiff for free transportation of his railroad outfit; second, if such contract was made, it was in violation of the statutes of the United States, and therefore void. It will be necessary to state here briefly the facts gathered from the record, as follows: The plaintiff owned a railroad construction outfit, and his business was doing railroad construction work. In March, 1907, he was at Minetare, Neb., and was negotiating with Ransom & Cook, railroad contractors, who had a contract with defendant, to do certain grade construction on defendant's Grand Eastern Division in the state of Illinois, between Toluca and La Rose. Plaintiff and these general contractors agreed on terms, whereby there was sublet to plaintiff certain grading on defendant's line between the points named in Illinois. Ransom & Cook had a written contract with defendant concerning this and other work on its line. This contract provided, among other things, that: "17. The company will furnish free transportation for all machinery, tools and teams necessary to complete the work described and embraced in this contract as follows," etc. Paragraph 8 provides that all subletting of work shall be with the approval of defendant's chief engineer, and: "All contracts shall be written on forms identical in terms and provisions with this contract, and a duplicate original subcontract properly executed by the parties shall be delivered to the chief engineer of the company at the time of his written assent thereto." Paragraph 9 of the contract retains in defendant the right to discharge for certain reasons, men working for either the contractor or subcontractor. It also reserves the right to pay subcontractors any sums due them under their subcontracts. The plaintiff had a written contract with Ransom & Cook. He testified it was on "Santa Fé" paper. In the negotiation between plaintiff and Ransom & Cook, proposing the terms of the subcontract, appears the following: "We will furnish you free transportation for your outfit and men to the work, from any points of the Eastern Grand Division of the Santa Fé, and will return them when your work is finished. Can arrange free billing from K. C. and return to Tulsa, if that is what you wish." That, after reaching an agreement with Ransom & Cook, plaintiff wired defendant, at its general office at Topeka, of the matter, and received in reply the following telegram: "Received at 4-16-1907 dated Topeka, Kans., 4-16. To Lindsay Kinkaid U. D. K. C. care of H. H. Heiser. Your wire sixteenth; free billing to and from work when completed. [Signed] J. M. Meade." The proof shows J. M. Meade was the engineer of the Grand Eastern Division of defendant, but was under a chief engineer of the road. Defendant's proof shows he was without authority to bind it. That after receiving this telegram plaintiff took his railroad outfit of teams, wagons, scrapers, tools, equipment, and men to defendant, at Kansas City, and they were by it billed free, and shipped over defendant's line to the place of work in Illinois, without cost to plaintiff. That plaintiff worked on defendant's line, under his subcontract, from in April until September, 1907; completed his subcontract, and did some extra work under direct contract with defendant. plaintiff, when his work was finished, delivered his construction outfit to defendant at La Rose, Ill., and it was all billed free and transported to Tulsa, Okl., without charge to plaintiff, with the exception of two car loads of dump wagons, etc. (the property replevined in this suit). On the arrival of these two cars of freight at Tulsa, defendant's agent demanded freight on them at the tariff rate, amounting to $232, and refused to release the shipment until the freight was paid. Plaintiff remonstrated, showed the agent papers he had, and claimed the release of his property. After demand, this suit was brought, with result as stated heretofore. That The main question to be determined is this: Is there sufficient legal evidence to sustain the verdict and judgment? The defendant in its brief, perhaps, narrows this inquiry. It admits: "Of course, we do not argue that the railroad company had no right to furnish free transportation to Ransom & Cook, or to any one with whom it had made a direct contract, and where the amount of the freight was taken into consideration, in the price of the work," etc. The proof shows that defendant had a written contract with Ransom & Cook, which provided for free transportation, and that provided for subcontracts, with identical provisions of the main contract, a copy to be filed with the chief engineer; and that defendant could, at its election, pay subcontractors out of funds due the main contractors; and that defendant could discharge men working for subcontractors for certain causes. The proof further shows that plaintiff was a subcontractor, under a contract prepared on "Santa Fé" paper; that it pro- | vided for free transportation of his railroad outfit to place of work and return; that plaintiff wired defendant concerning the provision for free transportation; that one J. M. Meade, an engineer in defendant's employ on the work plaintiff was to do, answered plaintiff's telegram from the general office of defendant at Topeka, agreeing to free transportation going to and returning from work; that plaintiff delivered his outfit to defendant at Kansas City, after receiving Meade's telegram, and it was received by defendant, without question or objection, and transported free to his work; that plaintiff was engaged in the work under his subcontract for several months, and did independent work as well for defendant; that when he had finished he delivered his outfit to defendant, and all of it, except the goods in two cars in suit, was transported to Tulsa free. [1] In our judgment, the facts show that defendant contracted to transport plaintiff's railroad outfit free to and from the work; that there was privity, and a contractual relation, between plaintiff and defendant. If J. M. Meade had authority to bind defendant, the above conclusion could not be questioned; but it is quite immaterial here whether he had such power or not. The defendant ratified fully his action in regard to the matter, and made, by such ratification, his acts its acts. [2] Defendant complains, however, that the telegram from Meade and the letters from Ransom & Cook were incompetent; that no proper foundation had been laid for secondary evidence, as to contents of telegram sent to defendant, which elicited Meade's reply; that such contents, in fact, were not proven; and that Meade's telegram, in the absence of such proof was inadmissible. We do not think this view can be sustained. The petition in this case set out specifically that the telegram sent, to which Meade replied, was in defendant's possession; that plaintiff had no copy of it, and could not state its terms, but that, in a general way, it asked defendant to accept its contract with Ransom & Cook for free transportation to and from work. This allegation in the petition, regarding a telegram which was a link in the contract sued on, was sufficient notice to defendant to have it present at the trial, and, in its absence, to authorize secondary proof as to its contents. In Cummings v. McKinney, 4 Scam. (Ill.) 57, it is said: "Where it appears to the court that the party has the desired paper, notice given on the trial would be sufficient; but when this does not appear the notice should be served a reasonable time before the trial at which it is wanted, unless, indeed, the paper wanted be one which the party must have known would be indispensable to his adversary, and that he could not sustain his action, or make good his defense, without it, in which case it is unnecessary to give any further notice; but the party must take notice himself that the paper will be wanted at the trial, and bring it with him accordingly." "In a suit upon a written instrument, the petition alleged that the writing was either lost, or destroyed, or in the possession of the defendant. Held, that this dispensed with the necessity of notice to produce the writing as a foundation for the introduction of secondary evidence." Cross v. Williams, 72 Mo. 577; Lawson v. Bachman et al., 81 N. Y. 616; Howell v. Huyck, 2 Abb. Dec. (N. Y.) 423; Hooker v. Eagle Bank, 30 N. Y. 83, 86 Am. Dec. 351; Railway Co. v. Cronin, 38 Ohio St. 122; Blevins v. Pope & Son, 7 Ala. 371; Burke v. Stewart & Bro., 9 Heisk. (Tenn.) 175; Niagara F. Ins. Co. v. Whittaker, 21 Wis. 334; Continental Ins. Co. v. Rogers, 119 Ill. 474, 10 N. E. 242, 59 Am. Rep. 810. The plaintiff undertook at the trial to go into the matter of the telegram to Meade and a telegram, relative to free billing, and under which he got free billing, his further testimony regarding which was, on objection of the defendant, refused. The plaintiff ought to have been permitted to furnish secondary evidence as to his telegram, and under the state of the record defendant is in no position to complain that he did not go more fully into it. There was sufficient shown to make the telegram to plaintiff from Meade quite intelligible, and quite certain as to what was agreed to between the parties. The objection to the introduction in evidence of the letter from Ransom & Cook we think without merit. It was on the receipt of this letter that plaintiff telegraphed defendant relative to free transportation. It was one, in a chain of circumstances, tending to show privity of relation between plaintiff, defendant, and the contractors. We find no error to justify a reversal, and the judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. STATE V. BILLINGSLEY et al. (Supreme Court of Oklahoma. Jan. 16, 1912.) (Syllabus by the Court.) APPEAL AND ERROR (§ 773*) — DISMISSAL — FAILURE TO FILE BRIEFS. Where plaintiff in error files no brief, as required by rule 7 of this court (95 Pac. vi), the petition in error will be dismissed for want of prosecution. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3108; Dec. Dig. § 773.*] Commissioners' Opinion, Division No. 2. Error from Caddo County Court; B. F. Holding, Judge. Suit by the State of Oklahoma against Logan Billingsley and Boone D. Hite. Judgment for defendants, and the State brings error. Dismissed. Theodore Pruett, for the State. Bristow & McFadyen, for defendants in error. BREWER, C. The petition in error and transcript of the record in this case was filed in this court February 21, 1910. The plaintiff in error has failed to file any brief in the cause, as required by rule 7 of this court (95 Pac. vi). The petition in error shall therefore be dismissed for want of prosecution. Hass et al. v. McCampbell, 27 Okl. 290, 111 Pac. 543; Maddin v. McCormick et al., 27 Okl. 778, 117 Pac. 200; McClelland v. Witherall (not yet officially reported) 119 Pac. 205. PER CURIAM. Adopted in whole. WHEELER et al. v. DOLAK et al. (Supreme Court of Oklahoma. Jan. 16, 1912.) (Syllabus by the Court.) APPEAL AND ERROR (§ 773*)-DISMISSALFAILURE TO FILE BRIEFS. Where plaintiffs in error file no brief, as required by rule 7 of this court (95 Pac. vi), the petition in error will be dismissed for want of prosecution. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3108; Dec. Dig. § 773.*] Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Suit by James H. Wheeler and Matilda Foss against John Dolak and Marie Dolak. Judgment for defendants, and plaintiffs bring error. Dismissed. Galbraith & McKeown, for plaintiff in error. Currie, King & Duncan, for defendant in error. BREWER, C. The petition in error and transcript of the record in this case was filed in this court March 4, 1910. The plaintiff in error has failed to file any brief in the cause, as required by rule 7 of this court (95 Pac. vi). The petition in error shall therefore be dismissed for want of prosecution. Hass et al. v. McCampbell, 27 Okl. 290, 111 Pac. 543; Maddin v. McCormick et al., 27 Okl. 778, 117 Pac. 200; McClelland v. Witherall (not yet officially reported) 119 Pac. 205. PER CURIAM. Adopted in whole. KIDWELL v. NELSON. (Supreme Court of Oklahoma. Jan. 9, 1912.) (Syllabus by the Court.) APPEAL AND ERROR (§ 1002*)-REVIEW-CONFLICTING EVIDENCE. Where there is a direct conflict in the evidence presented, and the trial court fairly submits the issues raised by the pleadings and the theories advanced by the parties in its instructions to the jury, and there is any competent evidence reasonably tending to sustain the verdict, appellate courts will not weigh the same and reverse the judgment, as the jury is the proper party to determine such disputed facts. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] Error from District Court, Pawnee County; John Caruthers, Judge. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Action by Swan C. Nelson against W. D. of the answer, not putting in issue the exeKidwell. Judgment for plaintiff, and defend-cution of the notes sued on, and again averant brings error. Affirmed. red payment of money to the defendant and an appropriation of plaintiff's property for which credit had not been given. About 30 witnesses were called on behalf of the parties on the trial, and a record is before us of some 450 pages. A verdict was returned in favor of Kidwell for $1,472.55, which, under a stipulation, was reduced to $1,092.96, from which judgment in his favor, Kidwell has duly lodged the action in this court for review. Counsel for plaintiff in error have filed an elaborate brief in which he has with commendable care and detail set forth the various contentions of his client. It is conceded that the case was submitted on proper instructions, as no assignments of error are predicated thereon. The sole claim made is that from the evidence, which was sharply controverted in many important particulars, the jury failed to allow a sufficient judgment. It is not claimed that there is no evidence upon which the jury could base its verdict, provided all the evidence supporting it was believed and that against it was eliminated, but it is contended that the preponderance of the evidence is against the verdict returned and justified a larger judg dence offered pro and con, determine the credibility of the different witnesses, and from the record before us say that the jury's conclusion on these matters was erroneous. That we cannot do this has been decided by this court and our predecessor in so many cases that it would be of no avail to attempt to cite them all. The rule was announced in the case of Grant et al. v. Milam, 20 Okl. 672, 95 Pac. 424: "Where there is a direct conflict in the evidence presented, and the trial court fairly submits the issues raised by the pleadings and the theories advanced by the parties in its instructions to the jury, and there is any competent evidence to sustain the verdict, appellate courts will not weigh the same and reverse the judgment, as the jury is the proper party to determine such disputed facts." Nelson, the plaintiff, was a farmer and horse raiser; the defendant, Kidwell, was a merchant residing in Pawnee. February 10, 1906, Nelson gave Kidwell a note for $113.60. He thereafter made two notes to one Emerson, aggregating $1,175, and, in the same year, notes to the Pawnee National Bank aggregating $1,561.10. The notes to Emerson and the bank were secured by chattel mortgages on a number of breeding horses and other property. In April, 1907, Kidwell purchased these notes, and thereafter secured from Nelson a bill of sale of the live stock mentioned in the mortgages, and took charge of the same. Subsequently Kidwell being about to sell or remove the property from the state of Oklahoma, Nelsonment, and we are asked to weigh the evibrought an action restraining him from so doing, and alleged in his petition that the defendant had received certain service notes aggregating the sum of $2,405 and that he had refused and failed to account to Nelson who claimed property therein, and also that he had paid on the notes held by Kidwell since giying the bill of sale, the sum of $300. In addition thereto he pleaded that defendant had castrated a valuable stallion to plaintiff's damage in the sum of $1,000, and had negligently permitted another animal to become injured in a barbed wire fence and in other ways misused it to his damage in the sum of $300, and that he had abused another stallion to his damage in the sum of $800, and that through negligence and lack of attention, another horse had died of the value of $150, and that Kidwell had appropriated to his own use various The statement of the issues presented by items of personal property belonging to Nel- the pleadings upon which evidence was ofson of the value of $150. The prayer of the fered by both parties is a fair indication petition was that Kidwell be required to of the task presented to the trial court. The come into court, set up his notes and mort- plaintiff supported his claim that he was gages, and to have the rights of the parties entitled to credits on the notes held by the in the controversy determined. To this pe- defendant by not only his own evidence, but tition Kidwell answered by denying all re- by evidence of a number of other witnesses, sponsibility for the torts complained of and in a measure sufficient, which, if the jury for the service notes, and claimed due upon believed them, was sufficient to justify the his notes, principal, interest, and attorney's verdict. These claims were resisted by the fees, $2,996.12, and filed a cross-petition in defendant by his own testimony and likewhich he claimed a balance of $182.25 for wise by the evidence of other witnesses. In feeding, grazing, and taking care of certain cases such as this, where the verdict of the stock, which, with the principal, interest, jury under proper instructions is reasonably and attorney's fees sued for, brought the supported by any competent evidence and total of Kidwell's claim to $3,178.37. In the trial court denies a motion for a new |