court overruling said demurrer. Other, and J. Berry King, of Tahlequah, for defendreasons are urged why said appeal should be ant in error. dismissed, but it is only necessary to consider this one proposition named above. In Union Pac. Ry. Co. v. Estes, 37 Kan. 229, 15 Pac. 157, the Supreme Court of Kansas said: "A party who seeks to have the ruling of the district court on a demurrer to the petition reviewed in this court must elect to stand on the demurrer, and at once bring the case to this court, or an answer may be filed, and, when the case is finally tried, if it is tried on the original petition, and then brought to this court by the party demurring, the demurrer will be passed on here. If, after an adverse ruling on a demurrer to the petition, the defendant files an answer, he cannot be permitted to file a petition in error in this court to reverse the adverse * * * ruling; he must await the result of the final trial." Our statute allowing an appeal from an order overruling a demurrer was taken from Kansas. In Hale v. Broc, 18 Okl. 147, 151, 90 Pac. 5, 6, this court said: * * "We think, however, that no case can be found where a party will be allowed an appeal from a decision overruling a demurrer to a petition before final judgment is rendered, where a party has plead over or otherwise proceeded with the If, therefore, the plaintiff had any right of appeal from the decision upon the demurrer, he certainly should be held to have waived the same by reason of his not standing thereon, and because of the fact that he proceed ed with the case in everything," etc. case. WELCH et al. v. OWENBY. (No. 8411.) (Supreme Court of Oklahoma. Oct. 22, 1918.) (Syllabus by the Court.) BILLS AND NOTES 168-NEGOTIABILITY— The negotiability of a promissory note, given in payment for a stallion, is not destroyed by a subjoined statement that the note is given in payment for a certain stallion, which is delivered to maker with the agreement that said stallion shall remain the property of payee with full power of disposition, without notice, until the note is fully paid. Commissioners' Opinion, Division No. 3. Error from District Court, Haskell County; W. H. Brown, Judge. Action by C. A. Owenby against Harry Welch and others. Judgment for plaintiff upon а directed verdict, and defendants bring error. Affirmed. A. L. Beckett, of Okmulgee, for plaintiffs in error. Geo. S. Ramsey, of Muskogee, Edgar A. De Meules, of Tulsa, Malcolm E. Rosser, of Muskogee, Villard Martin, of Tulsa, PRYOR, C. This is an action brought by C. A. Owenby against Harry Welch, M. Van Matre, and J. N. Moore, on a promissory note in the sum of $600. The defense to the note was that the execution of the same was procured by fraud and deceit. At the close of the evidence the trial judge directed the jury to return a verdict for the plaintiff, which the jury did, and judgment was rendered thereon. From this judgment defendants appeal. The plaintiff became the holder of the note in due course before maturity, for a valuable consideration, and without notice of any deThe defendants admit that fenses or equities. the correctness of the judgment of the trial court depends upon whether or not the note is negotiable. The note is as follows: "$600.00. Ft. Smith, Ark., Sept. 20, 1911. "On or before the 1st day of October, 1914, for value received, the undersigned promise to pay to Ark. Valley Breeding Co. or order six hundred 00/100 dollars with 8 per cent. interest per annum from date until paid, negotiable and payable at Little Rock, Ark.; it being given for Percheron stallion named Robert, No. 40681, and this day delivered to the maker of this note, with the understanding and agreement between the maker of this note and Ark. Valley Breeding shall remain in said Ark. Valley Breeding Co., Co. that the above described property is and with full power of disposition without notice, in such manner as he may see fit, until paid for. This note is the first of a series of three, and if default is made in the payment of one, then all shall become due and payable at once. "P. O.-Keota, Okl. "[Signed] Harry W. Welch. "M. Van Matre. "J. N. Moore. "T. D. Smith." Indorsed: "Ark. Valley Breeding Co., W. H. McMurray, Sec't." It will be observed that this note is certain as to amount, date of maturity, and the promise to pay is unconditional; that it is a perfect negotiable instrument in every particular, unless the subjoined statement that the note is given for stallion which is delivered to the maker of the note with the understanding that the stallion shall remain the property of the payee with full power to dispose of the same, until the note is paid, renders it nonnegotiable. There is nothing in this subjoined statement that makes any of the provisions of the note conditional or qual ifies them; it is just a mere statement of what the note is given for and the security for the payment of the note. There is nothing in the statement which accelerates or retards the maturity of the note. This note was executed after the taking effect of the Negotiable Instruments statute. Section 4053, Revised Laws of Oklahoma of 1910, provides that promise to pay is unconditional, though coupled with a statement of the transaction which gives rise to the instrument. This court has held in several cases that a promissory note is not rendered nonnegotiable by the fact that it provides for attorney fees. Potts v. Crudup, 48 Okl. 124, 150 Paa 170, L. R. A. 1916B, 672; Seton v. Exchange Bank of Perry, 50 Okl. 323, 150 Pac. 1079; City National Bank v. Kelly, 51 Okl. 445, 151 Pac. 1172. In the case of Chicago Ry. Equipment Co. v. Merchants' Bank, 136 U. S. 268, 10 Sup. Ct. 999, 34 L. Ed. 349, the Supreme Court of the United States, in holding that a subjoined statement in a promissory note similar to the one in the note under consideration would not affect its negotiability, used the following language: "The agreement that the title should remain in the payee until the notes were paid-it being expressly stated that they were given for the price of the cars sold by the payee to the maker, and were secured equally and ratably on the property -is a short form of chattel mortgage. The transaction is, in legal effect, what it would have been if the maker, who purchased the cars, had given a mortgage back to the payee, securing the notes on the property until they were all fully paid. The agreement by which the vendor retains the title, and by which the notes are secured on the cars, is collateral to the notes, and does not affect their negotiability. It does not qualify the promise to pay at the time fixed, any more than would be done by an agreement, of the same kind, embodied in a separate instrument, in the form of a mortgage. So far as the notes upon their face show, the payee did not retain possession of the cars, but possession was delivered to the maker. The marks on the cars showed that they were to go into the possession of the maker, or of its transferee, to be used. The suggestion that the maker could not have been compelled to pay if the cars had been destroyed before the maturity of the notes is without any foundation upon which to rest. agreement cannot properly be so construed. The cars having been sold and delivered to the maker, the payee had no interest remaining in them, except by way of security for the payment of the notes given for the price. The reservation of the title as security for such payment was not the reservation of anything in favor of the maker, but was for the benefit of the payee and all subsequent holders of the paper. The promise of the maker was unconditional." The While the note in that case was executed under the statute of Illinois, the court specifically held that the note was not rendered nonnegotiable by the subjoined statement, under the Illinois statute or the law of merchants. In the case of Heard v. Dubuque County Bank, 8 Neb. 10, 30 Am. Rep. 811, the Nebraska Supreme Court had under consideration a promissory note which contained a subjoined statement in effect the same as the note under consideration, and the additional provision that the payees may declare the note due at any time they deem themselves insecure, and the court held that such statement or provision did not affect the negotiability of the note. In the light of the statute and the foregoing authorities, the subjoined statement in said note did not render said note conditional or uncertain as to any of the essentials of a negotiable instrument. The statement merely specifies for what the note is given and the security for the payment of the same. The court therefore committed no prejudicial error in holding that the defenses interposed were not good against said note in the hands of an innocent purchaser. The judgment of the trial court therefore should be affirmed. PER CURIAM. Adopted in whole. LUSK et al. v. McBRIDE. (No. 7523.) (Supreme Court of.Oklahoma. July 25, 1916. Rehearing Denied Oct. 31, 1916. Second Petition for Rehearing Denied, Nov. 14, 1918.) -- (Syllabus by the Court.) CARRIERS 242, 280(5), 331(3)-TRANSPORTATION OF PASSENGERS WHO ARE PASSENGERS-DUTIES AND LIABILITIES. Plaintiff made and entered into a special shipment contract with the railroad company covering transportation of a car of household goods and live stock. As consideration for the feeding, watering, and caring for the live stock, the plaintiff was given free transportation. The contract provided, among other things, that plaintiff should have the sole care of said live stock, and should feed, water, and otherwise care for them; that he would remain in the caboose attached to said train while the train was in motion, and would not get on or off any freight car while switching was being done at stations. Held: (a) That plaintiff was a passenger; the consideration for his passage being the care giv en the stock. (b) That as such he was entitled to the highest reasonable and practicable skill, care, and diligence from the railroad company. (c) That in the discharge of his imposed duty under the contract he had a right to enter the car at a station, in the morning, for the purpose of feeding and caring for the stock. (d) That he, having no control of the movement of the cars or the train, violated no valid term of said contract by being in said car, as aforesaid, while the same was being switched. St. L. & S. F. R. Co. v. Kerns, 41 Okl. 167, 136 Pac. 169, followed. Commissioners' Opinion, Division No. 2. Appeal from District Court, Pontotoc County; Geo. W. Crump, Judge. Action by T. J. McBride against James W. Lusk and others, receivers of the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed. W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt. and E. H. Foster, both of Oklahoma City, for plaintiffs in error. Robert Wimbish and W. C. Duncan, both of Ada, for defendant in error. BURFORD, C. This was an action brought by T. J. McBride to recover damages for certain personal injuries sustained by him at a time when he alleged he was a passenger on the line of the defendant railroad. The defendants relied upon a general denial as to the negligence, a plea of contributory negligence on the part of the plaintiff, and that at the time the injury occurred plaintiff was traveling with an emigrant outfit, and was upon the train by virtue of a special, or otherwise, and agrees that the company shall written contract, under the terms of which he was permitted to accompany the shipment; that one of the conditions of the contract was as follows: "Will not get on or be on any freight car while switching is being done at stations or other places" -and that the plaintiff was injured at a time the car was being switched. There was a trial to a jury, and judgment for the plaintiff, from which judgment the defendants appeal. It appeared from plaintiff's evidence that he started with an emigrant outfit, included in which were several head of stock, from Thackerville, Okl., on the line of the Santa Fé Railway Company, to Ada, Okl., on the line of the Frisco. He reached Ardmore on the Santa Fé about 11 o'clock on March 13, 1914, and remained in the Santa Fé yards at that point until about sundown, at which time the car was switched over to the Frisco yards, and remained there until it was started for Ada about 6:30 in the morning. During the time the car was in the Santa Fé yard plaintiff testified that he had a conversation with the conductor of the Frisco train which hauled him to Ada on the following morning, in which he told the conductor that he intended to spend the night in his car, and that the conductor did not reply. After the car was switched into the Frisco yard, the plaintiff, his son, and another relative occupied the car during the night. Plaintiff was awakened about 5 or 5:30 in the morning by the car being switched. He knew that the car must necessarily be remov not be liable for any loss or damage to said stock while being so in the shipper's charge or so cared for or attended to by the shipper or his agents." The errors alleged may all be predicated upon one proposition. Under the circumstances, and in view of the plaintiff's contract that he would not be in the car while it was being switched, is the plaintiff entitled to recover? This proposition governs the instructions as well as the demurrer to the evidence, for if the plaintiff was rightfully in the car at the time he was injured, there appears to be no error in the court's instructions. The case is not distinguishable upon the facts or principles of law involved from St. L. & S. F. R. Co. v. Kerns, 41 Okl. 167, 136 Pac. 169. The second paragraph of the syllabus in that case reads: "Kerns made and entered into a special shipment contract with the railroad company covering transportation of a car of household goods As consideration for the feedand live stock. ing, watering, and caring for the live stock, Kerns was given free transportation. The special contract provided, among other things, that Kerns should have the sole care of said live stock, and should feed, water, and otherwise care for them; that he would remain in the caboose attached to said train, while the train was in motion and would not get on or off any freight car while switching was being done at the stations. Held: "(a) That Kerns was a passenger, the consideration of his passage being the care given the stock. "(b) That as such he was entitled to the highest reasonable and practicable skill, care, and diligence from the railroad company. "(c) That in the discharge of his imposed duty under the contract he had a right to enter the car at a station, at noon, for the purpose of feeding and caring for the stock. "(d) That he, having no control of the movement of the cars, or the train, violated no valid term of said contract by being in said car, as aforesaid, while the same was being switched." ed from the track where it was and be placed in the train which was to take it to Ada, and knew the leaving time of the train. At the time he was first awakened by the car being So far as the case at bar is concerned we switched he got up, dressed, and proceeded to feed and care for his stock. After he had think we may lay out of the case entirely completed these duties he went to the door the question of any action of the defendant's of the car and opened it, and, as he testified, agent consenting to the plaintiff remaining in started to get out, and about that time anoth- the car, if the action of the conductor could er car struck the car in which he was stand-be construed to be such consent, or could ing in such a violent manner that the stock bind the company to a waiver of the terms of We may also lay out were knocked down and the partitions brok- the written contract. en, and the door of the car which he had of the case the fact that the plaintiff remainpartially opened was slammed shut, catching ed in the car during the night. This for the reason that he was not injured by reason of his sleeping in the car during that time. We may assume that he was in the car for the purpose of caring for his stock, prior to the time he was injured, and that he was at his head between the door and the side of the car. The contract upon which plaintiff was traveling was the usual form of drover's pass, and contained, besides the stipulation set out in the answer, the following agree ment: tempting to leave the car after performance of such duties at the time the injury occurred. We may further assume that he knew that the car had been switched, but that he did not know that the particular switch would be made which injured him. Under these facts the doctrine of St. L. & S. F. R. Co. v. Kerns, supra, is clearly to the effect that McBride had a right to go into the car "That at his own expense the shipper will load the goods, articles and stock at the firstnamed station, take care of, feed and water, and attend to same while in the stockyards of the company or lots where awaiting shipment, and while the same are being loaded, transported, unloaded and reloaded, and to load, unload and reload the same at feeding and transfer or other points, wherever the same may be unloaded for any purpose whatever, and will properly attend to and care for the stock, and attend to his stock, and to perform the goods and articles while in the car in transit, duties imposed upon him by his contract, and that, having no control over the switching | the amount thereof. This action was to reoperations, he was not liable therefor, nor cover one-eighth of the cost of drilling well can he be denied a recovery because he was No. 3 on this lease and operating expenses on the car at the time the switching opera- subsequent to the account presented with the tions took place, and that if the injury was claim for well No. 2, and amounted to $1,a result of the negligent handling of the 272.48; the account of expenses for well No. car by the defendant, the defendant is liable 1 on the lease having been paid, and the forto him. The fact of the negligence was mer suit being for the costs of well No. 2 concluded by the verdict of the jury. The and the expenses of operating the lease up principles of law applicable are settled in to the completion of that well. The case St. L. & S. F. R. Co. v. Kerns, supra. was tried before the court and a jury, resultThe judgment should be affirmed. ing in a judgment for the full amount of the claim, to review which this appeal has been prosecuted. PER CURIAM. Adopted in whole. UNCLE SAM OIL CO. v. RICHARDS. (No. 9006.) (Supreme Court of Oklahoma. Sept. 10, 1918. Rehearing Denied Oct. 22, 1918.) (Syllabus by the Court.) 1. JUDGMENT 713(1), 720-ESTOPPEL-PUBLIC POLICY. When a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps, or the groundwork upon which it must have been founded. 2. JUDGMENT 744-BAR-ISSUES. The existence of the contract involved in this action and its legality having been determined in a former action between the same parties, these issues are settled, and cannot be relitigated in the instant case. Commissioners' Opinion, Division No. 2. Error from District Court, Pawnee County; Conn Lynn, Judge. Action by A. M. Richards against the Uncle Sam Oil Company. Judgment for plaintiff, and defendant brings error. Affirmed. Redmond S. Brennan, of Kansas City, Mo., for plaintiff in error. Wm. Blake, of Tulsa, for defendant in error. [1, 2] A number of errors are urged, but the one most stressed is the one alleged to have been committed in giving instruction No. 2 to the jury. This instruction reads as follows: "You are further instructed that, under the pleadings, proof, and law applicable to this case, there was a contract between the plaintiff and the defendant, made on the 12th day of September, 1912, by the terms and conditions of which the plaintiff was to go upon the leasehold estate as described in the plaintiff's petition and furnish the necessary materials, labor, and expenses in the development of said lease in exploring for oil and gas, and that the defendant obligated and bound itself to pay its one-eighth part of said expense, and that under the said contract that the amounts sought to be recovered herein by plaintiff against the defendant were under the terms and conditions of said contract, and that the only issue presented for the consideration and determination of the jury is what amount the plaintiff is entitled to recover. In this connection you are further instructed that you are to determine and by your verdict fix the amount sued for that the plaintiff is entitled to recover, not exceeding, however, in all, the amount claimed, that is, one-eighth of the total expense alJuly 1, 1914; and in determining this amount leged, or $1,272.48, with interest thereon from you are authorized to consider each and all of the terms stated and claimed in the plaintiff's account attached to its petition and the exhibits offered in evidence, and determine from all the testimony offered in evidence which terms are just, true, and correct, and have not been paid, and return your verdict for such amount as you find it to be, with interest thereon at 6 per cent. per annum from June 1, 1914." It will be remembered that the issues raised GALBRAITH, C. This action was based by the pleadings are practically the same in upon the same contract involved and con- the instant case as in the former case, exstrued by this court in an action between cept the amount of the account sued upon. the same parties, Uncle Sam Oil Co. v. Rich- The making of the contract and its legality ards, reported in 158 Pac. 1187, and was on were denied, in this suit as in that, and an account for further development of the these two issues were raised in this case as lease under that contract. A reference to in that. These propòsitions were settled that case will show that the contract was an against the contention of the plaintiff in eroral one entered into between cotenants of ror on the first appeal. It was there deteran oil and gas lease on 80 acres of land; mined that the contract in suit had been Richards owning seven-eighths interest and entered into as alleged by Richards, and that the Uncle Sam Oil Company owning one- the contract was a legal and binding obliga. eighth interest therein. By the terms of the tion. These questions, having been litigatcontract Richards was to furnish all labor ed and settled in the former suit between and material, and was to develop and op- these parties, cannot be relitigated in this erate the lease, and to render to the Uncle action. The applicable rule announced in Sam Oil Company monthly statements of the the third paragraph of the syllabus in Johnexpenses, and it was to pay one-eighth of son v. Gillett, 168 Pac. 1031, is as follows: "When a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps, or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion." The existence of the contract and its legality having been settled in the former appeal, the only question remaining for determination in the instant case was the amount of the account and its correctness. This question was presented in the instructions under consideration with reasonable clearness. We do not find that the instruction is properly subject to the criticism leveled against it. We have gone over the other assignments of error urged with care, and do not find that any of them presents prejudicial error. The law questions raised by the assignments of error were based upon and determined adversely to the plaintiff in error in the former appeal. The remaining question of the correctness of the account in suit was properly submitted to the jury. Its verdict and finding thereon, being reasonably supported by the evidence, is conclusive upon this court, and the judgment appealed from should therefore be affirmed. PER CURIAM. Adopted in whole. OKLAHOMA STATE BANK OF CUSHING et al. v. BUZZARD. (No. 9300.) (Supreme Court of Oklahoma. Sept. 24, 1918. Rehearing Denied Oct. 22, 1918.) Syllabus by the Court.) 1. VENUE 22(1)-RESIDENCE-PARTIES. The action of the trial court in the instant case, in overruling the special appearance motion of the defendant Oklahoma State Bank, was not error, as said bank was a proper party defendant. 2. DEPOSITIONS 95-PARTIAL ADMISSION. It is not error for the court to permit a party to an action to offer in evidence part of a deposition, without offering all of the deposition, where the adverse party is permitted to use all or any part of said deposition as evidence. 3. APPEAL AND ERROR 1043(6)-DEPOSITIONS 107(3)-HARMLESS ERROR QUESTION TO WITNESS-OBJECTION. It is error for the court to permit objections to be interposed at the trial of a cause to questions propounded to a witness at the taking of the deposition, when both parties were represented at the taking of said deposition, and no objection was interposed when the questions were asked and answered. But when the evi dence thus rejected at the trial is incompetent and irrelevant, the action of the court in permitting said objections to be interposed at the trial constitutes harmless error. (Additional Syllabus by Editorial Staff.) 4. VENUE 22(3)-PARTIES DEFENDANT. In an action to recover money deposited by plaintiff to secure his performance of a contract, brought on the ground of its conversion by defendant bank and a promoter, the latter, who had joined the bank in the scheme to turn over the money to another, though he had no interest in the money, was properly made a party defendant. Commissioners' Opinion, Division No. 2. Error from District Court, Garfield County; James B. Cullison, Judge. Action by F. B. Buzzard against the Oklahoma State Bank of Cushing and E. H. Howell. Judgment for plaintiff, motion for new trial overruled, and defendants bring error. Affirmed. The transactions out of which this litigation grows are as follows: On the 23d day of October, 1913, the plaintiff entered into a written contract with the Jones Oil & Gas Company, a corporation, A. E. Mascho, Milton Thompson, and E. A. Smith, designated as parties of the first part, E. H. Howell, who appears in this case as one of the defendants, joined with the plaintiff in said contract as one of the parties thereto. The avowed purpose of said contract was to secure the services of Mr. F. B. Buzzard in drilling a well on an oil and gas lease owned by the parties of the first part to said contract in Creek county, Okl. The lease in question covered 19.78 acres of land, and, as a consideration for the services to be render ed by Mr. Buzzard in drilling said well, the owners of the lease agreed to convey to Mr. Buzzard a one-half interest in said oil lease. Mr. Howell appears to be the party who promoted the deal, and for the services rendered in consummating this contract, was to This appears to be receive a commission. the only interest that Mr. Howell had in Said transaction. The particular part of the contract thus entered into out of which the litigation arose is as follows: "The second parties have this day deposited in the Oklahoma State Bank of Cushing, Oklahoma, the sum of one thousand dollars ($1,.000.00) as a forfeit, and it is agreed that if said second parties fail to comply with the terms of this contract the said one thousand ($1,000.00) |