were made thereon which were used for the purpose of paying the purchase price, and was either used for partnership purposes or was placed as an asset of the partnership. The defendant further alleged that on the 18th day of March, 1912, said partnership was dissolved by mutual consent by an agreement in writing, and a correct copy of said agreement was attached as a part of said answer; and it is further alleged that at the time of this dissolution the plaintiff and defendant settled up and adjusted all of the property rights between the parties, and paid each other all that was due either of said parties by the other under said copartnership agreement, except the two items of in Plaintiff further alleged that said defendant | dividual name of the partners, and loans negotiated on behalf of the partnership for the purchase of the N. W. 4 of Sec. 20, etc., known as the allotment of Benjamin Fixico, and that the same was purchased and acquired for a consideration of $800, which was paid with partnership money, and that the defendant claims the same as his own property, and has executed an oil lease thereon for which he received the sum of $2,000, and that he has failed and refused to account to the partnership for the value of said land or for the rental thereon, and is attempting to sell the same; that said defendant is wholly insolvent, and could not respond to any action at law to the partnership for the value of said land, or any part thereof, or for the use thereof; and that said defendant debtedness sued on in case No. 1675, herein has instituted an action in the proper court to quiet his title to same, and is threatening to bring other actions, and will do so, unless restrained by the court from so doing. Plain-nership, but denied that said partnership was after referred to. The defendant further alleged that after the 18th day of March, 1912, no further sums were advanced to said partcontinued for the purpose of winding up its business; and further alleged that on the 18th day of March, 1912, all of the business of said partnership was adjusted and the property distributed, save and except that part thereof mentioned in cause No. 1675. tiff further alleges that the defendant is indebted to the partnership, and that the only adequate relief that the partnership or the plaintiff can have or obtain is by an order of this court to said defendant to turn in all of the land owned or held by him. to the part-It further alleges that, upon the dissolution nership which he acquired with partnership funds, and that said defendant be enjoined from prosecuting his claim to any interest to the N. W. 4 of Sec. 20, aforesaid, and that he be restrained from issuing execution upon the judgment aforesaid, or having an execution levied upon the property of this plaintiff to satisfy the same, and that the sheriff of Okfuskee county be directed to return said execution until final disposition of this cause. To this petition the defendant, M. B. Flesher, filed an answer wherein he denied all the allegations of the plaintiff's petition, except that he admitted that on or about the 10th day of January, 1910, he and said plaintiff entered into a partnership agree ment for the purpose of buying land, but alleged that under the terms thereof said plaintiff was to furnish any additional money necessary to carry on said business whenever the partnership did not have the same, and that the said Flesher and Dill were each to devote their time to said business, and that they would share the profits therein equally. He denied that Dill advanced the sum of $20,000, and denied that he had failed and refused to advance his part of said money necessary to carry on said business. He further alleged that during the life of the partnership it became necessary for said copartnership to borrow money, and that the money was usually borrowed from the Citizens' State Bank of Okemah, Okl., in the name of M. B. Flesher, and that all of the money thus borrowed had been repaid; and further alleged that the said W. H. Dill at no time advanced his own individual money in said matter. He further stated that frequently when a piece of land was purchased of said partnership, the said M. B. Flesher took certain real estate belonging to him, and that the said W. H. Dill took certain real estate as his part of the partnership, and on that date they entered into a written contract as hereinbefore stated, whereby all of the partnership affairs were completely settled up except as stated hereinabove. Defendant further alleged that at the time of the dissolution of said copartnership all of the aforesaid affairs were completely settled except the two mentioned in plaintiff's petition in cause No. 1675, which were overlooked, involving the N. E. 4 of Sec. 36, which had been sold by Dill to John Bean, wherein the sum of $2,850 profit was made by Dill thereon, one-half of which the defendant alleged to belong to him, and another tract of land which was sold to one Henshaw by said Dill, which was the property of the partnership, and upon which a profit of $2,900 was made by Dill, and one-half of which Flesher alleged to belong to him, and the defendant, Flesher, alleged that Dill failed and refused to settle or to pay him his part of these two items, and on the 5th day of December, 1914, he brought suit in the district court of Okfuskee county against Dill, asking for a judgment for one-half of the profits of the interest thereon, and a copy of said petition was filed as a part of the answer here, and said Flesher further stated that he filed an amendment to said petition alleging that at the time of the dissolution of the copartnership the plaintiff and the defendant settled up and adjusted all property rights between them, and paid each other all that was due either party by the other under said copartnership agreement, action; and it is further alleged that said | said judgment and decree of pleadings and amendment was attached to the original contract, from asserting to the contrary. petition, which has been lost or misplaced, The defendant further denied being indebtbut that notice thereof was served upon Dilled to the partnership or to Dill, and further on the 9th day of January, 1915, and service asserted that the N. W. 4 of Sec. 20, menaccepted by his attorneys, and that there- tioned in the petition, was a part of the after, on the 29th day of January, 1915, property of the copartnership, and under the Dill filed an answer in said cause No. 1675, settlement and distribution, made on the 18th by the terms of which he admitted that a day of March, 1912, he acquired the same as copartnership existed between the plaintiff his part of the partnership business, and deand the defendant, which lasted until March nied that Dill had any right, title, or interest 18, 1912, when it was dissolved by mutual therein, and that he thereby became the consent, and that the said W. H. Dill in owner in fee thereof. The defendant further said answer further alleged that all of the alleged that the district court of Okfuskee copartnership affairs were adjusted and set- county had full and complete jurisdiction of tled on the 18th day of March, 1912, and that the person and the subject-matter of the parthe plaintiff and defendant then and there ties in cause No. 1675, and that in said acentered into a settlement in writing, which tion there was duly rendered a judgment embraced all of the transactions, debts, liabil- upon the issues in said cause which is still in ities, and claims of every kind existing be- force and effect and unsatisfied, and that at tween them, and the said W. H. Dill further said time and place, if this copartnership denied that the indebtedness sued upon in had not been dissolved, and if the said M. B. cause No. 1675 was excepted from said agree Flesher had then and there owed in any ment, and specifically alleged that said in- manner the said W. H. Dill, the said Dill debtedness sued upon in said cause No. 1675 had a full and a complete remedy by an anwas included in said contract, together with swer setting up said facts in said cause, and all the indebtedness of every kind between the then and there failed and refused to plead parties thereto, and a copy of said answer further facts than heretofore set out; that and the exhibits thereto were made a part said copartnership was dissolved by mutual of the pleading here. The defendant, further consent and completely settled and all matanswering, alleged that on the 30th day of ters adjusted; and the said Dill havJanuary, 1915, he filed a reply to the de- ing elected to either a dissolution or settlefendant's answer, in which he admitted that ment of the copartnership, and filed his ansaid contract was made and executed, and swer and cross-petition for an accounting, he denied that the debts sued upon in said ac- then and there elected to stand upon the tion mentioned in his petition were included plea of the former, and having taken his in said contract, and he further stated that chances to the court and jury upon the idention the 9th day of February, 1915, cause No. cal subject-matter at issue in said cause, and 1675 was duly tried in the district court of the same having been determined against Okfuskee county, and that the said Dill al- him, he is therefore barred and estopped leged that the settlement on March 18, by said judgment from pleading or asserting 1912, was a full and complete settlement, said matters again in a new action. The and that the said Flesher insisted that it defendant further alleged that as a part of was full and complete except the two items the consideration, or the transfer of said involved in cause No. 1675, and that both the real estate to him, and to that part of the plaintiff and defendant admitted that a dis- real estate transferred to said W. H. Dill, solution of said partnership had been had by that he, Flesher, as provided in said contract, mutual consent, and that in cause No. 1675 agreed to make, execute, and deliver to Dill the only question was that issue. The de- a note for $2,000 as consideration for all the fendant further alleged that thereafter a ver- right, title, and interest Dill had in and to dict was duly returned in cause No. 1675 in said land described in said contract, and, as his favor and against Dill, finding that the a further consideration therefor, the said M. two items were not included in said final B. Flesher agreed to pay a $500 note due by settlement and dissolution, and that Dill said partnership, and, in consideration of the was indebted to him therefor, and that a payment of these two notes and other conjudgment was rendered in his favor and siderations, the said Dill agreed to turn over against Dill which is in full force and now to this defendant all notes, claims, and evia valid and binding judgment; and that by dence of indebtedness due by this defendant reason thereof, and by reason of the contract at the Citizens' State Bank and elsewhere, and the pleadings in cause No. 1675, the to this defendant, except two certain notes testimony thereof given, the verdict of the for $2,000 and $635.30; and this defendant jury, that the said W. H. Dill is estopped further states that, in pursuance to said confrom denying the dissolution of said copart- tract, he has paid the debts and obligations nership and final settlement of its affairs, named, and Dill had the benefit thereof, and and that the same is thereby conclusively ad- he pleads the same as an estoppel against judicated, and that the final dissolution of Dill. said copartnership is conclusively adjudicated by a court of competent jurisdiction, and To this answer the plaintiff, W. H. Dill, filed a reply, wherein he alleged that on the The partnership agreement referred to in these pleadings as having been executed on the 18th day of March, 1912, is as follows: "This agreement, made and entered into this 18th day of March, 1912, by and between W. H. Dill, party of the first part, and M. B. Flesher, homa, Witnesseth that in and for a valuable party of the second part, both of Okemah, Oklaconsideration, the receipt of which is hereby acknowledged, the party of the first part hereby agrees to sell, transfer, and quitclaim all his right, title and interest to the party of the second part in and to the following described real estate situate in Okfuskee, Seminole, and Creek counties, state of Oklahoma, to wit: fers, and quitclaims to the party of the first "The party of the second part sells, transpart all his right, title, and interest in and to the following described real estate situate in Okfuskee, Creek, and Seminole counties, state of Oklahoma, to wit: * ** made to settle the partnership affairs, and, plaintiff has accepted the said construction, the contract referred to in the defendant's and therefore alleges that the partnership answer, and also referred to in the answer was not dissolved by said contract, and its of W. H. Dill in cause No. 1675, was signed business affairs and relations were not setby the parties thereto, but that it was the tled, and that the affairs ought to be finally understanding at the time that this plain- wound up, and a final distribution and actiff signed said contract, and he signed the counting adjudged. same believing that both of the parties thereto had consented to said contract, because same was in final settlement and discharge, but that subsequent to the execution thereof said defendant in cause No. 1675 claimed that the same was not in full settlement of the partnership, and it was so adjudicated and adjudged by the court in the trial of said cause, and that therefore said contract became an unexecuted contract in this, that is, said plaintiff herein never assented thereto as a part settlement of the affairs of said partnership, and the minds of the parties so contracting never came together in said contract. The plaintiff further alleged that the contract was expressly repudiated by the defendant in said action, and, having been so repudiated and rescinded, this plaintiff hereby consents to such rescission and repudiation, and the parties hereto are not bound or obligated by the terms and conditions thereof. The plaintiff further denied that the petition purporting to be attached to the defendant's answer is a correct copy of the petition filed in said action or of any amended petition filed therein, but alleged that the following matters found in said petition were not a part of the petition filed or any amendment thereto, to wit: "Plaintiff further states that as an amendment to this petition, that at the time of the dissolution of the copartnership the plaintiff and the defendant settled up and adjusted all property rights between the parties, and paid each other all that was due either of said parties by the other, under said copartnership agreement, except the indebtedness sued upon in this action." Plaintiff alleges that the part quoted was not a part of said petition, and was not an issue in the trial of said cause; that the only issue in the trial of said cause was presented by the pleadings, to wit, whether or not the said contract attached to the defendant's answer therein was a settlement of the partnership affairs; and it was held and determined, and a judgment of decree rendered therein adjudging, that the same was not a settlement of the partnership affairs. Plaintiff further alleges that the said contract of settlement was never performed by the said defendant herein. The plaintiff further alleges that after the execution of the contract in March, 1912, the defendant treated the contract as being a mere settlement of certain lands therein stated, and not a final settlement of the partnership property, and not a dissolution of the partnership affairs and relations, and that, upon finding that the said defendant was so treating the "The parties to this contract hereby mutually agree that all expenses incurred upon said lands hereinafter, and all profits accruing from said against and for said lands in whose name the lands hereinafter, shall be borne and received lands are held. "The party of the second part hereby agrees to make, execute, and deliver to the party of the first part one note, amounting to $2,000.00, drawing interest at the rate of 8% from date, payable July 1st, 1912, as consideration for all the right, title, and interest the party of the above in this contract and quitclaimed to the first part has in and to the land first described party of the second part, and, as a further consideration by party of the second part to the party of the first part, the party of the second part hereby agrees to pay one $500.00 note to Mrs. M. F. Flesher which both parties to this contract owe. "The party of the first part hereby agrees dence of indebtedness due by M. B. Flesher to to turn over all notes, claims, and every evithe Citizens' State Bank, Citizens' Bank and Trust Company, and W. H. Dill, all of Okemah, Okla., to M. B. Flesher, except the above note of $2,000.00 and personal note for $645.38 due Citizens' State Bank July 1, 1912. "The party of the second part agrees to pay Sec. 12, Twp. 11, Rge. 8, in case the title fails one-third of the purchase price of the N. W. 14 in W. H. Dill, providing the purchase price is paid by W. H. Dill. "Party of the second part, his heirs and assigns, agree and bind himself to make, execute a quitclaim deed to party of the first part, his heirs and assigns, for any lands situate in Okfuskee, Okmulgee, Seminole, Hughes, and Creek counties, state of Oklahoma, that are in the name of the party of the second part, except the lands heretofore mentioned in this contract that are in the name of M. B. Flesher, by and in accordance with the terms of this to this date by the party of the second part." contract, and also the land acquired subsequent In the petition filed in cause No. 1675 Flesher alleged the formation of the partnership with Dill in January, 1910, and the dissolution in March, 1912, and that in December, 1911, while the partnership existed, it owned a certain tract of land the title to same at a profit of $2,850, and likewise that Dill held in his own name the title to another tract belonging to the partnership which he had sold at a profit of $2,900; that he refused to pay to Flesher his part or to account therefor, and Flesher sued Dill to recover the same. The defendant, Dill, filed an answer to said petition, wherein he denied all the allegations of said petition except certain admissions, and therein admitted that said partnership was formed and dissolved about the dates mentioned; and further alleged that all the matters of said partnership were adjusted by written contract on March 18, 1912, and expressly denied the matters mentioned in said petition in cause No. 1675 were omitted from said settlement, but alleged the fact to be that they were included therein, and said contract heretofore set out was attached to and made a part. And in his answer Dill alleged that by the terms of the dissolution contract Flesher was indebted to him in the sum of $2,000, as shown therein, which he had failed to pay, for which judgment was asked by way of cross-petition. Flesher filed a reply to this answer, wherein he denied that said contract was a full settlement of all the partnership matters, and alleged the same to be only a division of partnership lands, and was not intended to include debts due by Dill to him; and in said reply it was further alleged that in said partnership settlement of said lands, in order to arrive at a fair adjustment, he agreed to pay Dill $2,250, as the land he acquired was worth more than the land acquired by Dill, and in order to equalize the settlement he had paid said sum to the order of Dill and for his use and benefit in manner and form stated in said reply. Said cause was afterwards tried and judgment rendered for Flesher against Dill for one-half of the profits accruing by virtue of the sale of said property. [1, 2] The only question to determine here is whether the plea of former adjudication has been sustained; that is, was the trial court justified in holding that the matters in controversy in this action were concluded by the judgment rendered in cause No. 1675? The trial court so held. Plaintiff in error says this was wrong, for that where separate actions are prosecuted for different causes of action, which might have been united in one petition, a judgment in one is not available as a bar to the other. The defendant in error contends that the general rule was properly applied by the court here, and that the judgment in the former action settled all matters litigated, or which could have been litigated, within the issues in said announced therein is not at variance with our views here. In the case of Flesher v. Dill one of the issues was whether there had been a final settlement of the partnership of all matters except the definite items involved in the petition, as otherwise the plaintiff in said action could not have maintained his suit against his partner. Cobb v. Martin, 32 Okl. 588, 132 Pac. 422. Therefore a finding in his favor in cause No. 1675 was a finding that all the partnership affairs had been settled except the specific items sued on in said cause, and that, judgment having become final, the same is an adjudication of the issue, and is a complete bar to any other action between the parties wherein the same question is sought to be litigated. In Baker v. Leavitt, 54 Okl. 73, 153 Pac. 1100, this court said: "A final judgment of a court of competent jurisdiction is conclusive between the parties volving the same subject-matter, not only as and their privies, in a subsequent action into all matters actually litigated and determined in the former action, but as to all matters gerlitigated and determined therein. mane to issues which could or might have been "The purpose of an action to quiet title, under section 6121, Comp. Laws 1909 (Rev. Laws 1910, § 4927), is to determine who is the real owner of the property and to put to rest all adverse claims. In such an action all matters affecting the title of the parties thereto may be litigated and determined, and the judgment rendered therein is final and conclusive as against the parties thereto and their privies." The rule announced is supported by the following cases: Norton v. Kelley, 156 Pac. 1164; E. Walker D. G. Co. v. Smith, 160 Pac. 898; Johnson v. Gillett, 168 Pac. 1033. The judgment of the lower court is af firmed. MINES AND MINERALS 118-ABANDONED MINE-NEGLIGENCE-PLEADING. cause of action when challenged by a general The petition examined, and found to state a demurrer. On Rehearing. 8. MINES AND MINERALS 92-TEMPORARY SUSPENSION OF OPERATIONS-DANGER SIGNALS CONSTRUCTION OF STATUTE. was of rare value to deceased; that the beforementioned piece of jewelry lodged on a cage some 30 or 40 feet down in said shaft or entrance; that defendant, its agents, servants, That part of section 3976, Rev. Laws 1910, allowed the said unused and abandoned mine to and employés, had negligently and carelessly which provides that in all mines where opera- remain uninclosed, and had failed entirely to tions are temporarily or indefinitely suspended, the superintendent and mine foreman shall see post cautionary notices on the premises around that a danger signal be placed at the mine ensaid shaft or entrance, and had negligently and trance or entrances, which shall be a sufficient carelessly allowed said grounds to be used as warning to persons not to enter the mine, was a playground for said community; that deceasnot intended to protect persons engaged in' min-ed went down in said shaft or entrance to proing only, but was intended to afford protection to the public generally. 4. NEGLIGENCE 6-NEGLIGENCE PER SENONPERFORMANCE OF STATUTORY DUTY. It is well settled that the failure to perform a statutory duty, imposed by a valid statute under the police power of the state for the protection of the public, is negligence per se. Owen, J., dissenting. Commissioners' Opinion, Division No. 2. Appeal from District Court, Okmulgee County; Earnest B. Hughes, Judge. Action by John Pinkston against the White head Coal Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed. Wm. M. Matthews, of Okmulgee, for plaintiff in error. H. M. Ledbetter, of Dustin, and E. W. Smith, of Henryetta, for defendant in error. GALBRAITH, C. This is an appeal from an order of the trial court overruling a demurrer to a petition in an action for damages for wrongful death. The petition, omitting the caption, reads as follows: "John Pinkston, father of Claude Pinkston, deceased, plaintiff, complaining of the Whitehead Coal Mining Company, a corporation, defendant, represents: "(1) That on the 5th day of September, A. D. 1915, one Claude Pinkston, a single son of the plaintiff's, was killed by reason of the negligence of the defendant, the Whitehead Coal Mining Company, a corporation, and that no administrator or executor or other personal representative has been appointed to administer upon the estate of the said Claude Pinkston; that at the time hereinbefore mentioned, and for a long time prior thereto, the above-named defendant, the Whitehead Coal Mining Company, was a duly organized and existing corporation under and by virtue of the laws of the state of Arizona, and that said corporation was duly authorized to transact business with the state of Oklahoma, and that said defendant was at the time hereinbefore mentioned, and for a long time prior thereto, the owner of an unused or abandoned mine about one half mile east of the city of Henryetta, Okmulgee county, Okl., which said mine is known and designated as the 'Whitehead No. 1,' and that said defendant is the owner of a certain camp of miners' quarters in the vicinity of said Whitehead No. 1 mine; that said defendant maintains an office in the city of Henryetta, said county and state. cure the aforesaid piece of jewelry, and that by reason of the defendant's negligence in allowing dangerous gases or damps to accumulate in an uninclosed or unmarked, yet easily accessible and dangerous, unused or abandoned mine, deceased was cruelly and savagely suffocated by said gases or damps in such a manner as to cause his death. "(3) That deceased was an ignorant, uncouth country boy, and was not aware of the dangerous gases or damps that accumulate in abandoned and unused mines, and that by reason of the defendant's negligence and carelessness in allowing said premises around an abandoned or unused mine to be used as a playground for the community, of which they had due notice, and in leaving the entrance or shaft to said mine uninclosed, and in totally failing to post cautionary notices on the premises, so as to cause the ignorant and untutored as to the due notice of the dangers thereof, deceased was dangers of unused and abandoned mines to take cruelly and savagely suffocated in said shaft or entrance to Whitehead No. 1 mine, as aforesaid. "(4) That by reason of all the acts of negligence of defendant as aforesaid deceased was cruelly and savagely suffocated in said abandoned and unused mine in such a manner as to cause his untimely death as aforesaid. "(5) That at the time of his death deceased was a young man of 21 years of age, strong, healthy, vigorous, and energetic, and bid fair to live to an old age, to wit, the age of 80 years, but for his untimely death as aforesaid; that in the capacity of farm hand or farm laborer his services were worth and he earned large sums of money, to wit, $50 per month, and he would have continued to earn said sums and larger sums by reason of his becoming more thoroughly learned and efficient in the intricate science of agriculture. "(6) That deceased left surviving him his father the plaintiff, John Pinkston, and three sisters, two of whom are married and one of whom is single, about ten years of age; that he used his earnings in supporting his father, the plaintiff, and his little sister, Myrtle; and that he has at all times resided with his father, the plaintiff, and family. "(7) That by reason of the death of the deceased as aforesaid plaintiff has been damaged in actual damages in the sum of $15,000. "Wherefore plaintiff prays judgment against the defendant for the sum of $15,000, his actual damages as aforesaid, and for the costs of this suit and for such other proper and equitable relief as to the court may seem just." The grounds of the demurrer were as follows: "(1) Because plaintiff has no legal capacity to bring or maintain this suit. "(2) Because there is a defect of parties plaintiff. "(3) Because the petition fails to state facts sufficient to constitute a cause of action in favor of the plaintiff and against defendant." "(2) That heretofore, to wit, on the 5th day of September, A. D. 1915, Claude Pinkston, hereinafter referred to as 'deceased,' in company with three young ladies and one young man, visited the premises of the said Whitehead No. 1, as was the custom of the camp or [1] This demurrer raises two questions: community; that one of the young ladies dropped a piece of jewelry into the entrance or (1) Under the facts alleged could the plainshaft to said mine, which said piece of jewelry tiff maintain the action? (2) Were the facts |