record, it is clearly apparent that defendant in error was trying to fix the liability upon plaintiff in error, on whose line the injuries occurred, because it had accepted the shipment of hogs under said contract from the connecting carrier. Defendant in error might have waived the contract and elected to bring his action upon the basis of plaintiff in error's common law liability, without referring to the contract or setting out the same in his petition. If he had done so, then in order for plaintiff in error to have availed itself of the special conditions in the contract limiting its liability, it would have been necessary for it to have pleaded the contract in its answer; but, when plaintiff based his action upon the contract which contains the stipulation that as a condition precedent to his right to recover any damages for loss or injury occurring to the live stock during transportation, written notice within 91 days from the date of loss shall be given to the carrier, it was necessary for him to show in his petition that the condition had been performed; and, in the absence of such averment, his petition does not state facts sufficient to constitute a cause of action. Louisville, New Albany & Chicago Ry. Co. v. Widman, 10 Ind. App. 92; United States Express Co. v. Harris, 51 Ind. 127; Kalina v. The Union Pac. Ry. Co., 69 Kan. 172. Nor did plaintiff make any effort to show by his evidence that such condition had been complied with. The demurrers to the petition and the evidence should have been sustained. There are other assignments of error; but, since in all probability the questions already considered will dispose of the case and the matters complained of in the other assignments will not likely occur in any subsequent trial of the case, we forego a consideration of them. The judgment of the trial court is reversed and the cause remanded. Turner, C. J., Williams, Kane and Dunn, J. J., concur. ST. L. & S. F. R. R. CO., Plaintiff in Error, VS. C. W. LADD, Defendant in Error. (Filer 9th day of May, 1911.) Error from County Court of Grady County. No. 835. Reversed and Remanded. 1. A shipper of live stock cannot, in the absence of fraud by the carrier, avoid limitations of the carrier's liability contained in the bill of lading or shipping contract by showing that he executed the contract hurriedly, or without due care, or that he was ignorant of its contents, or failed to read the same. 2. By the laws in force in the territory of Oklahoma prior to statehood, a provision in a live stock contract or bill of lading to the effect that as a condition precedent to a recovery for any damages for delay, loss or injury to the live stock covered by such contract, the shipper will give notice in writing of the claim therefor to some general officer or the nearest station agent of the carrier or to the agent at destination or to some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such notice to be served within one day after the delivery of such stock at destination, was valid. 3. Where, from the nature of the injury alleged and proved to have been inflicted upon the cattle, it must have been apparent at once upon their arrival at destination that they were seriously damaged and that there was nothing to prevent the shipper from making the necessary claim and giving the railroad company an opportunity to examine the live stock within the time and in the manner limited in the shipping contract, the question of the reasonableness of such a provision is a question of law for the court. 4. The act of the claim agent of a common carrrier in receiving without objections notice of the injury to a shipment of live stock after the time limited in the bill of lading for the service of the notice had expired, and in making some effort to adjust said claim, does not amount to a waiver of its right to rely upon the provision as to notice contained in the contract, where there is nothing in the record to indicate that the carrier did not intend to insist upon its rights under the contract or that tends to show that the shipper suffered any loss or damage or was injured in any respect or was placed in any worse attitude by what was done. (Syllabus by the Court.) HERBERT G BURT, Plaintiff in Error. VS. N. A. THOMPSON, Defendant in Error. (Rendered May 9th, 1911.) Error from District Court of Osage County. J. J. Shea, trial Judge. No. 2019 Reversed and Remanded That portion of section 3, art., 1, ch. 27, Sess. Laws of Okla. 1907-8, providing that the County court shall have concurrent jurisdiction with the district court, appellate jurisdiction of judgments of justices of the peace, not being correllated to the subject expressed in the title to the act nor appearing to follow as a natural and legitimate complement, is in violation of section 57, art. 5, of the constitution of Oklahoma, providing that every act of the legislature shall embrace but one subject and which shall be clearly expressed in the title, and is therefore unconstitutional, inoperative and void; and the district court, by reason section 14 and 19 of Art, 7 of the constitution, cannot acquire any jurisdiction on appeal from a judgment of a justice court. (Syllabus by the Court.) Grinstead, Mason & Scott, Att'ys for plaintiff in error. No appearance for defendant in error. OPINION of the Court, by HAYES, J. This is an action of forcible entry and detainer originally brought in a justice's court of Osage county. From the judgment in that court, an appeal was taken to the district court of that county. To reverse the judgment of the latter court, this proceeding in error is prosecuted. One of the questions presented by this proceeding is identically the same as was considered and determined by this court in Holcomb v. C. R. I. & P. Ry Co. (recently decided by this court, but not yet officially reported), 112 Pac. 1023, 9 Okla. Law Journal, page 269, January Number; and upon the authority of that case the cause must be reversed and remanded with diection to the district court to dismiss the appeal therein. Turner, C. J., Williams, Kane, and Dunn, JJ. concur. FRANKLIN KING and GEORGE M. KING, Plaintiffs in Error, VS. No. 865 H. F. STEPHENSON and J. P. BELLINGHAUSEN, Defendants in Error. (Rendered May 9th, 1911.) Error from County Court of Kingfisher County. Hon. John M. Graham, trial Judge. Reversed. Where plaintiff, a real estate agent, brings an action for commission alleged to have been earned on the sale of land and relies upon a special contract, he cannot recover upon 'quantum meruit,' and it is error to admit evidence establishing the same and to instruct the jury that it may return a verdict in a sum customary for services shown to have been rendered. (Syllabus by the Court.) D. K. Cunningham, Attorney for plaintiffs in error. Opinion of the Court by DUNN, J. This case presents error from the county court of Kingfisher county. Plaintiffs in their petition set out that they are in the business of selling real estate for a commission and that the defendants employed them to find a purchaser for certain property and orally agreed to give them for their services, the sum of five per cent. on the sale made, which was in the sum of $9,000.00, and prayed for judgment under the said averments for $450. 00. After the issues were made up the cause was tried to a jury which returned its verdict in favor of plaintiffs in the sum of $165.00. Plaintiffs over objection and exception of defendants, were permitted to offer evidence of the usual and customary price for the services rendered and in its instructions the court in effect told the jury that in the event that the plaintiffs should fail to establish the contract as pleaded, that if it found that services were performed by plaintiffs, that there was an implied contract to pay, and that the jury might allow a sum customary for such services. To reverse the judgment which was rendered the case has been duly and regularly lodged in this court. Counsel for plaintiffs in error contend that in the foregoing proceedings the court committed error which was prejudicial to their rights and in this, in our judgment, they are correct. Action in this case was not brought to recover on quantum meruit for services rendered but was on a contract which was an entire thing and indivisable. Wheeler v. Reed et al. 36 Ill. 81; Hammers et al. v. Merrick et al. 42 Kan. 32. And where plaintiff declares upon an express contract, he must, except in those cases where on the introduction of evidence by consent a departure is permitted, succeed or fail upon the issue which he thus tenders. Walker's Law of Real Estate Agency, $587, p. 402; 9 CYC. 748; Emery v. Atlanta Real Estate Exchange, 88 Ga. 321; Miller v. Insurance Co., 1 Abbott's New Cases, 470; Oliver v. Morawets, 95 Wis. 1; Dorrington et al. v. Powell, 52 Neb. 440; Veatch v. Norman, 109 Mo. App. 387; McDonald v. Ortman, 98 Mich. 40; Thuner v. Kanter, 102 Mich. 59; Smith v. Stewart et al., an opinion delivered at this term of court. There was no evidence on which the jury could find in the sum they did, and we cannot conclude otherwise than that it was misled by the |