22 L. Ed. 556; Hart v. Penn. R. Co., 122 U. I contention in the present case based upon S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Adams the fact that the station agent at Waynoka Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. or other agents of the company knew of the Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; condition of plaintiff's cattle. Such knowlMissouri, K. & T. Ry. Co. v. Harriman Broth-edge was not the equivalent, nor did it an ers, supra. In Northern Pacific Ry. Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905, the Supreme Court dealt with a requirement of a bill of lading that the shipper must, as a condition precedent to his right of recovery for injuries to cattle in transit, give notice in writing to some officer or agent of the initial carrier before the cattle were removed from the place of destination, and held that such requirement must be complied with by giving notice to the agent of the delivering carrier, as the Carmack amendment made such carrier, for the purpose of notice, the agent of the initial carrier. In Georgia F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, it was held that a stipulation requiring written notice of a claim for damages was complied with when the notice in writing was given by telegram within the time named in the bill of lading. In Chesapeake & O. R. Co. v. McLaughlin, 242 U. S. 142, 37 Sup. Ct. 40, 61 L. Ed. 207, the live stock contract under which the shipment was made provided that no claim for damages, which should accrue to the shipper under the contract, should be allowed or paid by the carrier, or sued for in any court by the shipper, unless claim for such loss or damage should be made in writing, verified by the affidavit of the shipper or his agent, and delivered to the general claim agent of the carrier at his office in Richmond, Va., within 5 days from the time the stock was removed from the cars. It was held that the contract on its face was unobjectionable, and that there was nothing in the record tending to establish circumstances rendering it invalid, or excusing the failure to comply therewith. In St. L., I. M. & S. Ry. Co. v. Starbird, 243 U. S. 592, 37 Sup. Ct. 462, 61 L. Ed. 917, a stipulation in a through bill of lading for an interstate shipment of peaches, which provided that the carrier issuing the bill of lading should not be liable for damages unless a claim therefor was reported by the consignee in writing to the terminal carrier within 36 hours after the consignee had been notified of the arrival of the freight at the place of delivery, was held valid and not unreasonable. It was also held in the Starbird Case that the failure to comply with the requirement of the stipulation was not excused, where the terminal carrier had a freight agent at the place of delivery in charge of the docks upon which the shipment was delivered, by virtue of the giving of verbal notice of the bad condition of the shipment to the terminal carrier's dock master, or because of the knowledge of such conditions by longshoremen working on the swer the purpose, of a compliance with the provisions of the contract requiring notice in writing of the shipper's claim of damages. [5] Upon the item of damages for shrinkage of weight and decline in the market on account of the shipment from Woodward to Kansas City, the record discloses that the contract was dated October 25, 1913, and that the cattle reached the market October 27th. Plaintiff's action was not filed until May 4, 1914, or more than 6 months next after the loss was sustained. By the contract under which the cattle were transported to market, it was provided in the ninth paragraph thereof as follows: "It is further agreed that no suit or action against the company for the recovery of any damages accruing or arising out of said shipment or of any contract pertaining to the same, or the furnishing of facilities for such shipment, shall be sustained in any court of law or equity unless such suit or action shall be commenced within 6 months next after the loss institute suit within said time shall be deemed or damage shall have occurred. The failure to conclusive evidence against the validity of such claim or cause of action, and shall be a complete bar to such suit." This paragraph of the contract the company pleaded in bar of recovery. There is nothing in the act of Congress controlling the liability of the parties to an interstate shipment which forbids them from providing for a shorter period than the statutory period of limitation, in which the shipper may bring an action for loss sustained, provided the time is not unreasonably short. It was so held in Missouri, K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, which opinion has been followed by this court in St. L. & S. F. R. Co. v. Pickens, 51 Okl. 455, 151 Pac. 1055, C., R. I. & P. Ry. Co. v. Paden, 162 Pac. 727, and St. L. & S. F. R. Co. v. Taliaferro, 168 Pac. 438. We are not prepared to say as a matter of law that the 6 months given plaintiff in which to bring suit as provided in the bill of lading did not afford him sufficient time in which to bring his action. It should be observed that this case arose before. the passage of the act of Congress approved March 4, 1915 (38 Stat. 1196, c. 176 [U. S. Comp. St. 1916, § 8604a), providing, among other things, that it should be unlawful for any common carrier in cases arising within the act"to provide by rule, contract, regulation or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months and for the institution of suits than two years." Because of plaintiff's failure to comply with the terms of his contract in the respects to which we have called attention, the judgment of the trial court is reversed. In re STANDWAITIE'S ESTATE. (No. 8753.) (Supreme Court of Oklahoma. July 23, 1918. Rehearing Denied Oct. 23, 1918.) (Syllabus by the Court.) 1. APPEAL AND ERROR 895(1)-JURISDICTION-HEARING DE Novo-EXTENT. An appeal taken to the district court from an order of the county court under the provisions of section 6501, Rev. Laws 1910, upon questions both of law and of fact, vests jurisdiction in the district court to try and determine the matter de novo. The hearing in the district court upon such an appeal is not simply a review of the proceedings in the county court to determine whether or not error of law had been committed by the county court. 2. APPEAL AND ERROR 983(3)-JUDICIAL REVIEW. GUARDIAN'S SALE CONFIRMATION MENT OF PURCHASE PRICE-RESALE. Upon the confirmation of a guardian's sale of real estate by the county court, the purchase price of such real estate becomes immediately due and payable, and upon a demand and refusal by the bidder to pay such purchase price a resale should be ordered upon the motion of the guardian under the provisions of section 6388, Rev. Laws 1910. Commissioners' Opinion, Division No. 1. Error from District Court, Tulsa County; Conn Linn, Judge. RUMMONS, C. On January 5, 1916, Levi W. Jones, guardian of Toady Standwaitie, an incompetent, pursuant to an order of sale duly entered by the county court of Tulsa county, sold the real estate in controversy at private sale to J. W. Sheppard for the sum of $2,880. Upon the hearing of the guardian's return of sale on February 12, 1916, the plain. tiff in error, George W. Burnett, in open court offered to increase the Sheppard bid 10, per cent. and orally bid for said real estate, provided the title thereto was satisfactory to him, the sum of $3,168. Thereupon the coun ty court announced the land sold to George W. Burnett, and continued the hearing to February 14, 1916, on which day the county court entered an order confirming the sale of said real estate to George W. Burnett. On February 23, 1916, Levi W. Jones, guardian of said incompetent, filed his motion in the county court to set aside and vacate said order of confirmation and order a resale of said real estate for the reason that said purchaser, George W. Burnett, had never paid the sum bid or any part thereof pursuant to said order of confirmation, and had failed and refused to comply with the terms of said sale. Due notice of the hearing of this motion was served on said George W. Burnett. On March 3, 1916, and after the hearing in the county court upon the guardian's motion, the said George W. Burnett paid into court the amount of his bid. On March 3, 1916, the guardian filed an amended and supplemental motion to set aside and vacate the order of sale of said real estate and order a resale thereof, alleging that the bid of said George W. Burnett was not in writing as required by law, but simply an oral statement that said Burnett was willing to pay the sum of $3,168 for said land, provided the title was satisfactory to him; that at said time the purchaser, the the court, and the guardian knew that the title which was sought to be conveyed was not a marketable title, in that it was inherited land and no proof of heirship had ever been made of record, and the oral offer of said Burnett had no binding force or effect. Said motion further alleges that, at the time of the confirmation of said sale, the guardian was of the opinion, and so informed the court, that there was no production of oil or gas upon the land in question, but that he had said sale an oil well was completed and prosince learned that before the confirmation of From an order of the district court sustain-ducing approximately 20 barrels per day, and ing a motion to vacate and set aside an order of confirmation of a guardian's sale of real estate entered by the county court of Tulsa county the purchaser, George W. Bennett, brings error. Affirmed. Prentice & Mason, of Tulsa, for plaintiff in error. Benjamine C. Conner, of Tulsa, for defendant in error. that another well had been commenced upon said land. The motion further alleges that the purchaser had never paid said sum of $3,168 or any part thereof, and had not tendered the same to the guardian until February 29, 1916. Upon the hearing of this motion in the county court the court overruled the same and the guardian took an appeal from such order upon questions of both law and fact to, order of the county court upon questions the district court of Tulsa county. There both of law and of fact, and lodged in the the matter was tried de novo, and an order district court, vested jurisdiction in the disentered by the county court sustaining the trict court to try the matter de novo, and amended and supplemental motion of the hear and determine the same. The hearing guardian, and setting aside and vacating the in the district court was not a review of the confirmation of the sale. Plaintiff in error proceedings in the county court to determine brings this proceeding in error to reverse whether or not error of law had been comsuch order. mitted by the county court in its hearing, but the matter was presented to the district court for trial and determination de novo. There is no doubt, however, that the rule insisted upon by plaintiff in error is applicable to us in our review of the order entered by the district court. Plaintiff in error in his brief makes three assignments of error, which are argued to gether. They are: "The court erred in rendering a judgment against this appellant and in favor of the abovenamed appellee, and in remanding said cause to the probate court, for the reason that a motion to set aside this judicial sale was addressed to the sound discretion of the trial court, and, in the absence of any abuse of that discretion, the district court was without authority to interfere with the proceedings had in said court. The proceedings in the trial court do not disclose an abuse of discretion." "The court erred in rendering a judgment against this appellant and in favor of the abovenamed appellee for the reason that the record discloses that the probate court did not abuse his discretion in finding that the purchaser, George W. Burnett, has not neglected nor refused to comply with the terms and conditions of said sale, and that no statutory ground existed for setting aside the sale confirmed on the 14th of February, 1916, as prayed for in said guardian's amended and supplemental motion filed in said court." "The court erred in sustaining the original amended and supplemental motion of the abovenamed appellee filed in the county court on the 3d day of March, 1916, seeking to set aside the order confirming the sale entered in said court on the 14th day of February, 1916, and over: ruling said motion and the original motion, and vacating and setting aside the order of the court made on the 11th day of March, 1916, and reversing and setting aside said order, and remanding to the county court, with directions to said court to enter an order therein va cating and setting aside the order of confirmation of sale entered on the 14th day of February, 1916, and sustaining the aforesaid motion and supplemental motion of this appellee to set aside said sale, to all of which this appellant at said time then and there duly excepted." These assignments of error practically present two propositions: One that, in the absence of a showing of an abuse of discretion by the county court in refusing to set aside and vacate the confirmation of sale, the district court was without power to set aside and vacate said confirmation. The second is that the judgment of the district court is contrary to the evidence and the law. [1, 2] As to the first proposition it is earnestly contended in behalf of plaintiff in error that the confirming or setting aside of a judicial sale rests within the sound judicial discretion of the trial court, and that, unless an abuse of such discretion appears from the record, an order of the trial court confirming or setting aside the sale will not be disturbed on appeal. We think that counsel for plaintiff in error are mistaken in their application of this rule to the trial in the It is contended by counsel for the guardian that the provision of section 6386, R. L. 1910, that an increased bid of 10 per cent. offered upon the hearing of the return of the sale must be in writing, is mandatory, and that in the instant case the bid of the plaintiff in error not having been in writing, but made orally in open court, the court was without jurisdiction to consider the same, and without authority to confirm the sale to plaintiff in error. It is further considered on behalf of the guardian that the court was without jurisdiction to accept the bid made by plaintiff in error, it being conditioned upon the title of the ward to the land sold being satisfactory to the bidder. It is further urged in behalf of the guardian that the bidder has failed and refused to comply with the terms of his purchase, and that therefore, under the provisions of section 6388, R. L. 1910, the court should have ordered a resale. As to the first proposition, we do not deem it necessary for the determination of this case to decide whether or not the provisions of section 6386, supra, that the increased bid be in writing, is mandatory. [3, 4] Be that as it may, we think the contention in behalf of the guardian that the bid offered by the plaintiff in error was conditioned upon the state of the title of the ward is fatal to the confirmation of this sale. By the great weight of authorities it is settled that the rule of caveat emptor applies to judicial sales. 24 Cyc. 57; King v. Gunnison, 4 Pa. 171; Halleck v. Guy, 9 Cal. 181, 70 Am. Dec. 643; Lewark v. Carter, 177 Ind. 206, 20 N. E. 119, 3 L. R. A. 440, 10 Am. St. Rep. 40; Stonerook v. Wisner (Iowa) L. R. A. It is also settled that a 1915E, 834, note. sale of real estate by a guardian, under the order and subject to the confirmation of the Halleck probate court, is a judicial sale. v. Guy, supra. This being the rule of law, the guardian in the case at bar could offer to sell, and the probate court could order him to sell, only the interest which his ward might have in the real estate in controversy, and any person buying at said sale would buy at his peril; and if he were the successful bidder, and the sale were confirmed to him, he would take only the title that the The record in the instant case discloses chaser could delay for a period of more than that the plaintiff in error, upon his bid being 15 days, withhold the purchase money, and accepted and before the confirmation of the come into court with the bare principal due, sale, demanded an abstract of title to the he might be entitled to the same privilege land in question; that, after the confirmation after a delay of a considerably greater peof the sale, upon demand being made upon riod, thus materially injuring the rights of him for the payment of the purchase money, the ward. We think the record discloses he requested a delay in such payment until such a failure on the part of the plaintiff in an examination of the title could be complet- error to pay the purchase money as to suped. It is clear from the evidence of the port the judgment of the district court. plaintiff in error that he did not consider himself bound to comply with the terms of his bid until the condition precedent which he had attached thereto was satisfied. It seems clear to us that, this being a judicial sale, nothing but an unconditional bid could be considered. The minds of the county court, the guardian, and the purchaser seem never to have met in this sale; for the county court confirmed the sale as though an unconditional bid had been made, the guardian made demand for the purchase price on the same basis, while the purchaser refused to comply with his bid and pay the purchase price until he had fully satisfied himself that the title he was purchasing was good. The fact that the purchaser, after motion had been filed by the guardian to set aside the confirmation and order a resale for his failure to comply with his bid, elected to consider the title good, and tendered the purchase money, if the record may be said to disclose a sufficient tender, would not avail him, and his right must rest upon conditions as they stood at the time demand was made upon him for the payment of the purchase money. [5] We also think that the record sustains the last contention made in behalf of the guardian that the purchaser had failed and refused to comply with the terms of his bid. While under our practice as to guardian sales it seems that the purchaser at such sale is not required to pay the purchase price until the sale has been confirmed, yet, upon the confirmation of the sale, the purchase price should be immediately paid, and upon a demand and refusal a resale should be ordered upon the motion of the guardian under the provisions of section 6388, R. L. 1910. In the instant case, after a considerable time had elapsed from the confirmation of the sale, the guardian made demand for the purchase money. The plaintiff in error was not ready to pay because he had not fully satisfied himself as to the title. After the motion to set aside the confirmation and order resale had been filed and acted on by the county court the purchaser professed himself satisfied, and some 15 days after the confirmation of the sale paid into court the amount of his bid. We do not regard this as a compliance with the terms of his bid for the reason that the purchase money was due upon the confirmation of the sale. The estate of the ward was entitled to interest upon said sum to that date, and if the pur It must be borne in mind that this is a direct attack upon the order, and that cases considering collateral attacks thereon have no bearing upon the instant question. It is true that the rule that courts of record have inherent authority upon motion, at the same term of court at which a judgment is entered, to vacate or modify such judgment, cannot be strictly applied to orders of confirmation of sale, but that the court in vacating or modifying such order of confirmation must rest the exercise of its discretion upon legal grounds for the vacation or modification of such order. We think, however, in the instant case the record discloses sufficient grounds to warrant the district court in the exercise of this discretion. The formalities and regulations provided for the sale of the lands of infants and incompetents were enacted in order that the interests of such infants or incompetents might be subserved. In re Bohanan, 37 Okl. 560, 133 Pac. 44. In the instant case we feel convinced that the best interests of the incompetent would be subserved by vacating the order of confirmation and ordering a resale of said real estate. The judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. MIDLAND SAVINGS & LOAN CO. v. (Syllabus by the Court.) BUILDING AND LOAN ASSOCIATIONS 27(2), 31(3)-"USURIOUS CONTRACT" COMPETITIVE BIDDING-FOREIGN LAW. A foreign building and loan association of the state of Colorado sold certain of its stock to a citizen of Oklahoma Territory, prior to the admission of the state, and made L. a loan secured by the stock and a mortgage covering provided for certain premiums and withdrawal lands in Oklahoma Territory. The contract fees which in total did not exceed 12 per cent. per annum upon the loan. It was provided that the contract should be performed in and conject to the lawful restriction of the territory strued according to the laws of Colorado, subof Oklahoma. Held, that under the laws of Colorado as pleaded and proven, and the laws of the territory of Oklahoma in force at the time the contract was made. the charging and collecting of the premium and withdrawal fees did not make the contract "usurious." Held, further, that it was not necessary that the loan be let or premium fixed by competitive bidding. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Usurious.] Commissioners' Opinion, Division No. 2. Appeal from County Court, Oklahoma County; John W. Hayson, Judge. Action by A. U. Landrum against the Midland Savings & Loan Company to recover penalty for usury. Judgment for plaintiff, and defendant appeals. Reversed, with di rections. L. J. Miller, of Oklahoma City, and A. J. Bryant, of Denver, Colo., for plaintiff in error. H. A. Kroeger, of Oklahoma City, and H. A. King, of Tulsa, for defendant in error. BURFORD, C. This was an action instituted in a justice court and appealed and tried de novo in the county court of Oklahoma county. The petition alleged a loan of money by defendant building and loan association to plaintiff; that usury had been charged, in that the loan was not let by competitive bidding; that certain premiums and withdrawal fees were exacted as a cover for usury; and that demand for the return of the usury had been made and refused. Defendant answered setting up the various stock certificates, loan bond, mortgage, etc., evidencing its indebtedness, and pleaded that by its terms the contract was to be performed in Colorado, the home state of the defendant, and to be governed by the laws of Colorado subject to the lawful restrictions of the territory of Oklahoma. The laws of Colorado and the by-laws of defendant company applicable to the class of stock sold plaintiff were set out in full. It was further pleaded that neither the contract nor the charge made under it were unlawful or usurious, and judgment of dismissal was prayed. The material parts of the contract are hereinafter set out. A trial was had to the court without the interven tion of a jury, resulting in judgment for plaintiff, from which judgment defendant appeals. It appears from the undisputed facts that the plaintiff, A. U. Landrum, purchased certain shares of stock in the defendant com pany which he pledged as collateral security for the loan of $1,000 evidenced by a bond executed by him to the company and further secured by a real estate mortgage. The bond provided for interest upon the loan in the sum of $6.25 per month and premium at the rate of $3.75 per month, and further pro vided: "And this bond may be fully repaid at any time and in case the undersigned shall desire to repay such loan they shall be entitled to a eredit of the withdrawal value of such shares as fixed by the terms of said certificate less all charges for insurance, taxes and other advances that may have been made by the company. * * The stock certificate provided: "The 'cash surrender value of this certificate previous to its maturity shall be the full amount of the monthly installments paid, plus dividends thereon at not less than 6 per cent. per annum, for the actual time the company has had the use of the money during continuance of regular payment, less a fee for the privilege of withdrawing prior to the maturity of the stock of two (2) dollars per share for the benefit of the remaining members to assist in paying expenses of the company." The by-laws of the company were to the same effect. The stock certificate provided that the rights therein given were "subject to the provisions of the laws of the state of Colorado, the articles of incorporation and the by-laws, rules and regulations of this company governing this class of stock and the options and privileges upon the back thereof, all of which are hereby referred to and made a part of this contract." The bond further provided: "This bond is delivered and its conditions are to be performed within the state of Colorado, and it shall in all respects be governed by and construed according to the laws of said state subject, however, to the lawful regulations of the territory of Oklahoma." The mortgage provided: "This mortgage is delivered in the state of Colorado and is to be construed according to its laws, subject to the lawful restrictions of the territory of Oklahoma, so far as it relates to or affects the validity of the first mortgage bond secured hereby." The various contracts of this same company have recently been before this court in a number of cases. In Midland Savings & Loan Co. v. Henderson et al., 47 Okl. 693, 150 Pac. 868, L. R. A. 1916D, 745, there was under consideration a contract made in the Indian Territory prior to statehood. The stipulations of the contract were much the same as in the case at bar, and the same statutes of Colorado were pleaded there as here. However, in the Henderson Case the contract did not contain the stipulation in reference to the restrictions of the laws of Oklahoma, but provided that the contract should be construed according to the laws of Colorado. It was there held that the parties might lawfully agree that the laws of Colorado should govern the contract, there being nothing in the statutes or public policy of the Indian Territory forbidding Colorado interest and premium might be such a contract; that under the laws of charged in accordance with the by-laws of the association; that thereunder there was no necessity for competitive bidding; that the laws of the Indian Territory forbidding cent. did not affect the contract, "for the the charging of interest in excess of 10 per Beats was contingent upon the length of time reason that the rate of interest paid by required to mature the shares of stock"; and that since the contract was valid it remained "unaffected by any change in our form of government brought about by the admission of the state into the Union," or |