"You are further instructed that, in the case the plaintiff is entitled to recover the face of the policy of insurance, unless it appears from all the circumstances that R. W. Peard, at the time he made his application for insurance here given, together with statements he made in said application were false, and that said statements, if they were false, materially affected the risk sought to be insured."

To the giving of said instruction defendant duly excepted. The jury returned a verdict for plaintiff in the sum of $3,000, to which defendant duly excepted. Timely motion was made for a new trial, which was overruled and excepted to, and error brought to this court.

[1] It is insisted by the plaintiff that at the time the policy was written, May 20, 1912, the insurance law found in article 2, c. 38, Revised Laws, was not in force, and this contention is an error, from the fact that the said law became effective March 25, 1909, and was enacted subsequent to the cases of Springfield Fire & Marine Insurance Co. v. Homewood, 32 Okl. 521, 122 Pac. 196, and Farmers' Mutual Ind. Association v. McCorkle, 21 Okl. 606, 97 Pac. 270, which decisions are not now the law, as they were changed by the act effective March 25, 1909 (Laws 1909, c. 21, art. 2), and said act now being incorporated in the Revised Laws as sections 3481 and 3482.

Section 3481, Revised Laws, provides that: "No fire insurance company shall issue fire insurance policies on property in this state other than those of the standard form herein set forth, except as follows: [The exceptions noted do not apply to the instant case.]"

Section 3482, Revised Laws, provides a standard form of policy, and provides therein that:

"The company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same in material of like kind and quality."

"Any provision in the contract of fire insurance on property in this state, written since the 25th day of March, 1909, in conflict with the provision of said standard form of policy, cannot be enforced." Fidelity-Phenix Insurance Co., a Corporation, v. School District 62 of Jackson County, a Corporation, 174 Pac. 513, decided by this court July 10, 1918, and not yet officially reported.

[2, 3] It is also insisted by the plaintiff that, if the property be wholly destroyed, its actual value is not to be determined by evidence, agreement, or arbitration; that the damages are liquidated, and a measure of recovery already ascertained-citing in support thereof Springfield Fire & Marine Insurance Co. v. Homewood, supra, and Farmers' Mutual Ind. Association v. McCorkle,

25th of March, 1909, cannot be fixed by the policy, but must be determined by the actual value of the property destroyed at the time of its destruction.

We are of the opinion that, if the plaintiff was entitled to recover in the action, which we do not decide, the measure of its recovery was the value of the automobile at the time of its destruction, and, the evidence being in conflict as to its value, the question of its value should have been submitted to the jury, and the court committed reversible error in giving said instruction hereinbefore set out.

"It is error for the court to peremptorily instruct a verdict in favor of plaintiff for a specific sum in a case tried by a jury where the evidence is conflicting, and upon which the jury might reasonably find against the defendant a less sum than that instructed by the court to be found for the plaintiff." Miller et al. v. Oklahoma State Bank of Altus et al., 53 Okl. 616, 157 Pac. 767.

"In an action at law, where there are contronation of the case, it is error to direct a ververted questions of fact necessary for a determidict." Burke v. Smith, 157 Pac. 51.

"Where the evidence presents an issue of fact, whether clear or obscure, it is the duty of the court to submit such issue to the jury for its determination." Blair v. Lewis et al., 157 Pac.

905.

As the error pointed out must work a reversal of this cause, we deem it unnecessary to consider the very many other errors assigned.

This cause is reversed and remanded.
PER CURIAM. Adopted in whole.

BROWN v. THOMPSON. (No. 9340.) (Supreme Court of Oklahoma. Oct. 29, 1918.) (Syllabus by the Court.)

1. GUARDIAN AND WARD 105(1)-SALE OF LAND-MOTION' TO VACATE.

A notice to the purchaser of land at a guardian's sale that a motion has been filed by the guardian to vacate the order confirming the sale, which described the land, the date of sale, the name of the purchaser, the amount of the bid, and the day, hour, and place, when said motion will be heard, signed by the court clerk who has charge of the records of said proceeding, and authenticated by his seal, is a sufficient compliance with section 6388, Rev. Laws 1910. 2. GUARDIAN AND WARD 101-SALE OF LAND RECOVERY OF PURCHASE MONEY EVIDENCE.

The rule of caveat emptor applies to sales of land made by a guardian pursuant to an order of the court, and, in an action to recover damages resulting by reason of the purchaser refusing to pay the purchase money therefor, made by the guardian at the sale as to the title evidence of statements and misrepresentations of said land, for the purpose of defeating a recovery in said action, are inadmissible.

Commissioners' Opinion, Division No. 2.. Error from District Court, Okfuskee County; George C. Crump, Judge.

Action by McKinley Brown, a minor, by his guardian, T. J. Brown, against W. S. Thompson. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with directions.

Frank L. Warren, of Holdenville, for plaintiff in error. C. T. Huddleston and Logan Stephenson, both of Okemah, for defendant

in error.

DAVIS, C. The plaintiff in error, hereinafter referred to as plaintiff, is a minor, and was the owner of certain real estate located in Okfuskee county, Okl. Through his duly appointed guardian an application was made through the probate court of Hughes county, Okl., for permission to sell an 80-acre tract of land in Okfuskee county, Okl. An order was entered authorizing the guardian to sell at public outcry said land, and at the sale the land was struck off to W. S. Thompson, defendant in error, hereinafter referred to as defendant, for the sum of $2,250. The sale was duly confirmed, but defendant refused to pay the purchase price therefor. Under and by virtue of section 6388, R. L. 1910, the probate court had the land resold, and at the subsequent sale it brought the sum of $1,000. The above section provides that a party making a purchase of land, and refusing to complete the same after confirmation, shall be liable in damages for such refusal for the difference of his bid and the amount realized for said land at a subsequent sale.

This action was instituted to recover the sum of $1,250 from the defendant, same being the difference between the amount bid by defendant at the first sale and the amount realized at the second sale. The defense interposed by defendant was that at the time said bid was made, and prior to the time that same was filed, the duly appointed and acting guar. dian of said minor appeared at the sale and stated to defendant that certain tax deeds then on record against the land to be sold would be released and discharged, and the title thereto cleared, before the defendant would be required to pay for the land thus sold. Defendant states that he relied on said statements and representation so made by the guardian of said minor as to the clouds then appearing on the title of said land, but that at the time of the confirmation of the sale so made the said guardian had neglected and refused to procure a release and discharge of said tax deeds, and for that reason he refused to accept the land in question. It was further alleged that there was not sufficient notice served on defendant, as required by section 6388, R. L. 1910. Prior to the date on which the order confirm ing sale was vacated by the probate court, and that by reason of a failure to serve a legal notice on defendant, as provided by law, no liability was fixed on defendant. It

was also pleaded that no tender was ever made defendant of any deed to the land prior to the institution of this action.

A jury was waived and the cause submitted to the court. After hearing the evidence, a judgment was rendered in favor of de fendant and against the plaintiff. From the action of the court, in overruling a motion for a new trial, an appeal is prosecuted to this court, to have said judgment reviewed.

There is but one proposition presented here for review: Was the notice served on defendant prior to the date on which the probate court of Hughes county, Okl., vacated the sale made to defendant, sufficient to fix liability on defendant? It seems to be conceded by counsel for plaintiff and defendant that this was the controlling question in the case. The trial court held the notice insufficient and rendered judgment for defendant.

pre

Section 6388, R. L. 1910, reads as follows: "If it appear to the court that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the increased bid mentioned in the * * ceding section be made and accepted by the the sale, and directing conveyances to be excourt, the court must make an order confirming ecuted. The sale from that time is confirmed and valid, and a certified copy of the order confirming it and directing conveyances to be executed must be recorded in the office of the register of deeds of the county within which the land sold is situated. If after the confirmation the purchaser neglects or refuses to comply with the terms of sale the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and the expenses of the previous sale, such purchaser is liable for the deficiency to the estate."

The foregoing provision is made applicable to the sale of guardians by section 6565, R. L. 1910. Morris et al. v. Sweeney et al., 53 Okl. 163, 155 Pac. 537.

On the 23d day of July, 1915, a proper motion was filed in the probate court of Hughes county by T. J. Brown, guardian of McKinley Brown, a minor, to have the order confirming the sale made to defendant set aside, for the reason that defendant had refused to pay the purchase price therefor. When this motion was filed, the following notice was issued and served on defendant:

"Notice of Application for Resale. "To W. S. Thompson: You are hereby notifiea that T. J. Brown, guardian of McKinley Brown, a minor, has filed in this court his motion for an order setting aside order of confirmation and for resale of the following described lands of said ward, situated in Okfuskee county, Oklahoma, to-wit: The north half of the northwest quarter of section seventeen (17), township thirteen (13) north, range seven (7) east, purOklahoma, on the 28th day of May, 1915, for chased by you at guardian's sale in Okemah, the sum of $2,250.00, and the court will on Monday, the 2d day of August, 1915, in the county judge's office in the courthouse at Holdenville, Oklahoma, at the hour of ten o'clock a. m., or as soon thereafter as the said motion may be reached, take up and act on the

matter of setting aside confirmation and ordering a resale of said above described lands. You will govern yourself accordingly. "E. M. Washington,

"Court Clerk of Hughes County, Okla." The foregoing notice was personally serv ed on defendant by the sheriff of Okfuskee

county, Okl., on the 24th day of July, 1915. [1] Did the foregoing notice meet the requirements of section 6388, R. L. 1910? We think that it did. The foregoing provision

is silent as to the form of notice. It does not even specify that it shall be in writing; does not specify by whom it shall be served; does not state by whom it shall be signed.

Yet we are asked to hold insufficient a no

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tice that meets every requirement that is necessary to bring to the knowledge of the defendant the proceedings that are to be taken in the matter of the sale of the land purchased by him. The land, the place, the hour, the nature of the proceedings, are all distinctly set out in this notice, and the authenticity of the notice is made evident by the seal of the court clerk who has charge of the records of the case. It was served by the sheriff of defendant's own county. say that this notice did not meet the purpose and fulfill the object of the provisions of section 6388, R. L. 1910, is too absurd to need argument to sustain it. The evident purpose of this section was to prevent an undue advantage being taken of a purchaser at a guardian's sale, and give him an opportunity to be heard before any action is taken for the purpose of fixing liability on him for his delinquency in refusing to comply with his bid. When this purpose has been subserved, the object and purpose of the statute has been complied with.

Defendant ignored this notice completely, when called upon to make good the deficiency resulting from his failure to keep his contract. The insufficiency of this notice is that it was not signed by the guardian. Such requirement is not made by the statute, and to hold that the validity of this notice is made dependent upon the signature of the guardian is to read something into the statute that the Legislature in its wisdom did not see fit to incorporate therein. If defendant had any valid reasons to urge why the sale should not be vacated, and a resale ordered, it was his duty to present them to the probate court and there have their validity passed upon.

"The act of assembly prescribes that the forththe execution on which it is taken, but gives no coming bond shall recite the material parts of other direction respecting the notice than that it shall be served ten days before the motion. Its sole purpose is to inform the party that the show that the money has been paid, or that motion is to be made, thereby enabling him to for any other reasons execution ought not to be awarded. If it gives him the information which enables him to do this, it effects all the of the execution would be fatal, because it might substantial purposes of justice. A false recital mislead the obligor; but in this case the execution was against William B. Alexander, though the case in which the motion was to be made, not against him alone. He could not mistake because it is admitted that this was the execution on which the bond was taken, and the only execution in which the said William B. Alexrendered, an execution issued thereon and levied. ander was a party. After judgment has been the property restored to the debtor, on his bond to produce it on the day of sale, and his failure to do so, we do not think that nice and technical objections to the notice, where every purpose of substantial justice is effected, ought to be favored. The law only requires notice, and where the notice is sufficiently explicit, to render mistake impossible, we think it justifies the

award of execution."

The reasoning in the foregoing case is peculiarly applicable to the facts in the instant case. Was the notice to defendant sufficiently explicit to render mistake impossible? We think it was. There is no pretense here that defendant was misled by the notice, or that it did not impart to him every fact essential to make known the purpose of the court to act on the motion to vacate the order confirming the sale.

[2] There remains but one other question to be considered. The trial court excluded all the testimony offered by defendant to substantiate his defense, on the theory that the guardian made representations at the sale that he would pay all back taxes on the land and would remove from the records a certain tax deed from A. Thomas, county treasurer, to R. G. Davenport, on said land, and the special warranty deed from R. G. Davenport to R. J. Burrows.

The evidence offered in support of this defense was properly excluded, for the reason that the rule of caveat emptor applies to the instant case, and for that reason alone the

evidence was not admissible as a defense. Estate of Toady Standwaite (No. 8753) 175 Pac. 542, not yet officially reported; King v. Gunnison, 5 Pa. St. 171; Lewark v. Carter, 117 Ind. 206, 20 N. E. 119, 3 L. R. A. 440, 10 Am. St. Rep. 40; Stonerook v. Wisner, L. R. A. 1915E, 834, note.

plication to withdraw a motion to dismiss and to correct it, etc., defendants, other than D. M. Wilson, bring error. Dismissed.

W. F. Harn and Everest, Vaught & Brewer, all of Oklahoma City, for plaintiffs in error. Wilson, Tomerlin & Buckholts, of Oklahoma City, for defendants in error.

in case No. 2514 in the superior court of Oklahoma county, and sought to inforce an execution and sale of certain real property. On the 20th day of March, 1915, there was entered an order by the district court of Oklahoma county sustaining a demurrer to the petition filed by Mr. Patterson, and leave was granted to Mr. Patterson, plaintiff, to amend said petition within ten days after the entry of said order sustaining the same. The plaintiff did not file any amended petition until the 30th day of April, 1915. On the 14th day of August, 1916, L. E. Pat

(Syllabus by the Court.)

1. APPEAL AND ERROR 68-INTERMEDIATE OR INTERLOCUTORY ORDERS.

An appeal does not lie to this court from an intermediate or interlocutory order made during the pendency of an action, which intermediate or interlocutory order leaves the parties in court to have the issues tried on the merits, unless the appeal sought to be taken comes within some one of the special orders from which an appeal is authorized by statute prior to final judgment in the main action.

2. APPEAL AND ERROR 93—“FINAL ORDER" -STATUTE

A "final order" is one ending the particular action in which it is entered, leaving nothing further for the court pronouncing it to do in order to determine the rights of the parties.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Final Order.]

3. APPEAL AND ERROR 93 – ORDERS APPEALABLE-FINAL ORDERS-STATUTE.

Orders complained of in the instant case examined and held not to be "final orders" as defined by section 5237, Rev. Laws 1910, from which an appeal lies.

(Additional Syllabus by Editorial Staff.) 4. DISMISSAL AND NONSUIT 37-MOTIONPAYMENT OF COSTS.

Before a motion by plaintiff to dismiss the cause can become effective, it is necessary that all costs accumulated up to the time of the filing of the motion must be paid.

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by L. E. Patterson and the Interstate Building & Loan Company, substituted as plaintiff for L. E. Patterson, against D.

the judgment which he was seeking to enforce in this action to the Interstate Building & Loan Company. On the 16th day of August, 1916, there was a motion filed by the attorneys for L. E. Patterson, plaintiff, to dismiss said cause with prejudice. It seems from the record and finding of the court that it was the intention of the attorneys for L. E. Patterson to enter a dismissal without prejudice to his further action, but that inadvertently said motion so

filed stated that said cause was dismissed with prejudice. Subsequent to this action, there was a suit commenced by the Interstate Building & Loan Company for the purpose of enforcing the judgment that had been assigned to it by Mr. Patterson against the plaintiffs in error in this case. In December, 1916, it was discovered by the attorneys for L. E. Patterson that the motion of dismissal provided that said cause should be dismissed with prejudice to any other action against defendants. Upon discovery that an error had been made in preparing said motion, an application was filed in said court requesting that plaintiff L. E. Patterson be permitted to withdraw said motion and correct the same so that it might speak the real intent of the plaintiff in said matter. A hearing was had on this application, and at the conclusion thereof the court made the following orders, which may be summarized as follows:

(1) That the amended petition that was filed after a demurrer was sustained to the