RAINEY, J. This is a mandamus proceeding, instituted in the district court of Tillman county, Okl., by Floyd M. Thompson, defendant in error, against C. M. Hunter, plaintiff in error, to require the plaintiff in error to surrender possession of and deliver to the defendant in error the books, records, funds, and paraphernalia of the office of town treasurer of the town of Grandfield. A peremptory writ was issued by the district court, and from said judgment the plaintiff in error has appealed to this court. It appears that the said C. M. Hunter was the duly elected treasurer of said town, but on account of his absence from the town, due to his enlisting in the military service of the United States, the board of trustees of said town declared his office vacant and appointed Floyd M. Thompson as treasurer for the unexpired term. At the time of the trial, and when the case was submitted at the June term of this court, Mr. Hunter was located at Ft. Sill, Okl. After the cause was submitted, and on, to wit, July 29, 1918, defendant in error filed the following motion to dismiss the appeal: "Comes now the above-named defendant in error and moves the court to dismiss the appeal of plaintiff in error herein for the following good and lawful reasons, to wit: "(1) Because the plaintiff in error is no longer town treasurer of the town of Grandfield, Okl.; that said C. M. Hunter did, on the 13th day of July; 1918, tender his resignation as treasurer of the town of Grandfield, Okl., and ordered any suits to be withdrawn which were instituted in his behalf, and also ordered the First National Bank of Grandfield, Okl., to turn over to his regularly and lawfully appointed successor any and all funds to his credit as such treasurer, and further requesting that his accounts be audited, which said resignation was, on the 15th day of July, 1918, duly presented to the board of trustees of said town in regular session assembled, and by them accepted. A true and correct certified copy of the minutes of the said board of trustees of said meeting or session of July 15, 1918, showing said resignation and the action of said board thereon, is hereto attached, marked for identification Exhibit A, and made a part hereof. (2) That since said resignation, and the acceptance thereof, all questions raised by said appeal have become moot. "(3) That defendant in error is now the duly appointed and qualified treasurer of said town, having on file good and sufficient bond, which has been duly approved, and also having on file his oath of office in due form of law, and is now being recognized as the lawful treasurer of said town by the board of trustees thereof. "Wherefore the defendant in error prays the court that the appeal herein be dismissed." There is attached to the motion a certified copy of the resignation, and the proceedings of the board of trustees accepting the same. In response to the motion to dismiss it is urged that the resignation filed by Mr. Hunter has been withdrawn, and that he desires to proceed with the case. In support of the allegations in the response there is attached thereto Mr. Hunter's affidavit, in which he states that his letter of resignation was written after he had been informed that he would be assigned to overseas duty within a short time, that soon thereafter, having learned that he would remain at Ft. Sill, he had written a letter withdrawing his resig: nation, and that he desired to continue in said office until the expiration of the term for which he was elected. In the reply to the answer to the motion to dismiss the appeal it is shown that on the 15th day of July, 1918, the board of trustees in regular session accepted Mr. Hunter's resignation, at which time they had not received any letter from him withdrawing his resignation, and that such letter had never been presented to them. The resignation having been filed and accepted before the board of trustees was advised of its attempted withdrawal, Mr. Hunter is no longer treasurer of said town, and therefore not entitled to the custody of the funds, records, and paraphernalia of the office. For the reasons stated, the motion, to dismiss the appeal is sustained. All the Jus tices concur. FARWELL v. WILCOX. (No. 9131.) (Supreme Court of Oklahoma. Oct. 22, 1918.) (Syllabus by the Court.j 1. PARTNERSHIP 105-WRONGFUL DISSOLUTION-ASSUMPSIT FOR DAMAGES. Where a partner breaks the covenants of a partnership and thereby wrongfully by force and fear, causes its dissolution, the other may maintain an action of assumpsit against him for the damages resulting. 2. PARTNERSHIP 1221⁄2-WRONGFUL DISSOLUTION-MEASURE OF DAMAGES. The damages in such cases are the profits which would have accrued to the plaintiff from a continuation of the partnership business and which was a loss to him by the unauthorized dissolution. Farwell. Judgment for plaintiff, and de- other on a cause of action arising from partfendant brings error. Affirmed. W. A. Briggs, of Oklahoma City, for plaintiff in error. Adams & Smith, of Taloga, for defendant in error. HOOKER, C. Wilcox sued Farwell to recover damages alleged to have been caused to him by Farwell ousting him by force and fear from a partnership which he contends they had made and operated in Dewey county from August, 1915, to April, 1916. Wilcox contends that one M. owned certain property in the city of Seiling and also a Ford agency which he wanted to sell for the sum of $3,000, and that he wanted to buy it, but did not have the money, so he (Wilcox) interested Farwell in the deal, and Farwell refused to pay over $2,500 for same, and in order to consummate the transaction he paid to M. $500 and Farwell paid to him $2,500, and the deed was made to Farwell to the property and the Ford agency was taken in the name of Farwell, and he and Farwell operated the business as a partnership, agreeing to share equally in the business until his part of the profits was sufficient to pay to Farwell the entire sum of money advanced by him for the real estate and for the business in the purchase of cars, and then the real estate was to be conveyed to him and the Ford agency assigned to him; that about April 1, 1916, Farwell forcibly ousted him from the business and threatened to do him personal violence if he attempted to enter the place of business again, and this, notwithstanding the partnership had made large profits on the sale of cars and accessories, etc., which amounted to about $10,000, one-half of which he claims was his and all of which Farwell had appropriated to his own use, and, if the same had been applied as contemplated, the money due by him to Farwell would have been repaid and the real estate should have been conveyed to him and the Ford agency transferred to him; and that when Farwell forced him out of the partnership he was thereby damaged to the extent of his profits. Farwell asserts that Wilcox was to furnish certain sums of money to be used in this enterprise by a certain time, and that he was not to have that interest unless he paid the money, and that Wilcox failed to procure the money, although the time was extended for him frequently, and, when he ascertained that Wilcox could not make the payment, he forfeited his right to participate in the business. These theories were submitted to the jury under proper instructions, and a verdict was returned for the defendant in error, and the plaintiff in error has appealed here and urges several reasons why the judgment of the lower court should be reversed: nership transactions, there must be an accounting and dissolution and the partnership affairs must be settled so it may be ascertained if any sum be due to the partners after its debts are paid. (2) That the transactions involved here were oral and within the statute of frauds. (3) That instruction No. 5 was wrong. [1, 2] The Supreme Court of the United States, in Karrick v. Hannaman, 168 U. S. 328, 18 Sup. Ct. 135, 42 L. Ed. 484, said: "A partner who assumes to dissolve the partnership, before the end of the term agreed on tion at law against him by his copartner for in the partnership articles, is liable, in an acthe breach of the agreement, to respond in damages for the value of, the profits which the plaintiff would otherwise have received." And in Bagley v. Smith, 10 N. Y. 489, 61 Am. Dec. 756, the court held: "One partner may maintain an action at law against another for a breach of the copartnership articles in dissolving before the period therein limited." And in Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415, Masterton v. Brooklyn, 7 Hill (N. Y.) 61, 42 Am. Dec. 38, Savery v. Ingersoll, 46 Hun (N. Y.) 179, and Wakeman v. Wheeler, 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676, the rule is announced that the damages in such cases are the profits which would have accrued to the plaintiff from a continuation of the partnership business and which are lost by the unauthorized dissolution. And in 20 R. C. L. 928, it is said: As has already been seen when a partner breaks the covenants of a partnership and thereby wrongfully causes its dissolution, the other may maintain an action, of assumpsit against him for the damages resulting. Most authorities agree that the damages recoverable by one partner for his copartner's wrongful acts in disprofits for the residue of the term fixed by the solving the copartnership include anticipated articles, and that a partner wrongfully excluded from the business is entitled to his share of the profits on the completion of the venture." And in 30 Cyc. 466, it is said: "In this country it (meaning an action) will the firm or for the wrongful dissolution of the lie also for the wrongful ouster of a party from firm before the expiration of the agreed term of its existence." Newsom v. Pitman, 98 Ala. 526, 12 South. 412; Hunter v. Land, 81 Pa. 296; Dunham v. Gillis, 8 Mass. 462; Ross v. Henderson, 77 N. C. 170; McCollum v. Carlucci, 206 Pa. 312, 55 Atl. 979, 98 Am. St. Rep. 780; Karrick v. Hannaman, supra-support the text quoted. And in Webster v. Beau, 77 Wash. 444, 137 Pac. 1013, 51 L. R. A. (N. S.) 84, it is stated: "In most of the cases upon breach of a partnership contract, the breach is the exclusion of the wronged partner from the business, or the refusal to go with him in business. The measure of his damages in such case is his loss by the breach, which, apart from the question of misappropriation of contributed property, etc., is the amount of profits which he would have made, had the contract been carried out accord "The question of the recovery of profits by a wronged partner may be divided into the recovery of actual profits or estimated prospective profits. Where the term has expired before the suit or before the trial, and the business from which the plaintiff has been excluded has made profits, these may afford a definite basis of his loss." [3] Under the authority of this court in Powell v. Adler, 172 Pac. 55, and the authorities there cited, the statute of frauds does not apply here. In Case of J. I. Case Thresh. Mach. Co. v. Walton Trust Co. et al., 39 Okl. 748, 136 Pac. 769, this court said: 2. GARNISHMENT DENCE. 235(1)-PAYMENT-EVI Where E sued a railway company for certain sums alleged to be due, and the railway company, in defense of such action, offered to show that previous thereto a suit had been filed against E. in another county, and garnishment summons issued and served upon the railway company, and that E. had entered a special appearance in that action, and moved to set aside the summons and the service thereof, on the ground that E. was a resident of another county, and that said motion was overruled and judgment rendered against E., and that the railway company, in compliance with an order of said court, paid the amount of the judgment against E. into that court and was discharged. and that no appeal was prosecuted from said judgment and order, which offer of testimony was refused, held error. "Resulting trusts are those which arise where the legal estate in property is disposed of, conIveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that the beneficial interest is not to go to or bety; J. W. Bolen, Judge. enjoyed with the legal title. In such a case, a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems Error from District Court, Pontotoc Coun to be the real owner. "Resulting trusts are not within the statute of frauds, and may therefore be established by parol evidence, where not otherwise incompetent." See, also, Boyd v. Winte et al., 164 Pac. 781; Hayden v. Dannenberg, 42 Okl. 776, 143 Pac. 859, Ann. Cas. 1916D, 1191; McCoy v. McCoy, 30 Okl. 379, 121 Pac. 176, Ann. Cas. 1913C, 146. And Flesner v. Cooper, 39 Okl. 133, 134 Pac. 379, and Turner v. Turner, 34 Okl. 284, 125 Pac. 730, support the rule announced in Walton Trust Co. TACK ON JUDGMENT. Where an action was commenced against E., in a justice court in McClain county, and garnishment summons was issued and served upon a railway company, which answered and admitted an indebtedness to E., and where E. entered a special appearance in said action, and moved to set aside the summons and service thereof on the ground that E. was a resident of Pontotoc county, which motion was overruled, and judgment rendered in plaintiff's favor, and the garnishee, in compliance with the order of the court, paid the amount of the judgment into court and was discharged, from which judgment and order no appeal was prosecuted, held, that the judgment was not void upon collateral at tack. Suit by George W. Edwards against the Atchison, Topeka & Santa Fé Railway Company. There was judgment for plaintiff in justice court, and on appeal there was judgment in the district court in his favor, and defendant brings error. Reversed, and cause remanded. Cottingham & Hayes and Geo. M. Green, all of Oklahoma City, for plaintiff in error. B. C. Wadlington and A. W. Wadlington, both of Ada, for defendant in error. HARDY, J. George W. Edwards sued the the Atchison, Topeka & Santa Fé Railway Company in a justice court at Ada, in Pontotoc county, and secured a judgment in his to the district court, where judgment was favor, from which an appeal was prosecuted again rendered in his favor for $43.43. At the trial defendant offered to prove that prior thereto one Mrs. S. S. Claire had brought an action against plaintiff in McClain county upon a board bill, and caused a writ of garnishment to be issued and served upon defendant; that judgment was rendered in said action in favor of the plaintiff, Claire, for $17.50 and costs of suit, and defendant, as garnishee in said action, was ordered to pay the amount of said judgment into court, which it did and was accordingly discharged. This offer was refused, and exceptions saved. [1, 2] The evidence offered should have been admitted. The judgment in the garnishment proceedings was not void, nor subject to collateral attack, as contended by plaintiff. The record shows, and it is admitted, that plaintiff, by his attorney, filed a special appearance and motion to quash the summons and service thereof in the garnishment case, on the ground that same was not issued, served, and returned as required by law. Counsel for plaintiff state in their brief that this motion was based upon the fact that plaintiff, at the time the garnishment suit was pending, was a resident of Pontotoe county, and therefore the justice of the peace in McClain county had no jurisdiction of the action. This motion was overruled, and no appeal was prosecuted from the ruling thereon. By entering his special appearance in the garnishment action the plaintiff submitted himself to the jurisdiction of the justice court, for the purpose of determining his residence and deciding upon its jurisdiction of that action. The motion presented a question of fact which controlled the venue of the action, which fact is not apparent upon the face of the record in the garnishment suit, and when the justice court determined that fact adversely to plaintiff's contention, its judgment was binding upon plaintiff, unless reversed or set aside in some manner provided by law. When plaintiff appeared specially in the proceedings in McClain county, he conferred jurisdiction of his person upon that court for the purpose of determining the questions presented by his motion and special appearance. 15 R. C. L. Title "Judgments," §§ 337, 474; 1 Freeman on Judgments, § 120a; 1 Black on Judgments, §§ 274, 522; Oliver v. Kinney, 173 Ala. 593, 56 South. 203. And that court having determined that it possess ed jurisdiction, and having found the requisite facts necessary to confer jurisdiction, and that finding remaining unreversed and unappealed from, its conclusion must be held final and binding in all collateral inquiries. The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion. HARDY, J. Amanda E. Pendergrass recovered judgment against Albert Kenworthy for damages on account of injuries resulting from an assault and battery committed upon her by defendant, from which judgment this appeal is prosecuted. The petition alleged that plaintiff had received permanent injuries as a result of said assault and battery, and there was evidence from which the jury might reasonably infer that some of the injuries received by her were permanent; hence there was no error in submitting this issue to the jury. [1, 2] Error was assigned upon certain rulings of the court with reference to the argument of counsel and upon certain instructions given. Plaintiff was 29 years of age, in good health, and previous to the assault was earning from $4.50 to $10 per week. After the assault, which occurred on or about the 9th day of March, 1915, she was unable to do any work until the following February. From February to the time of the trial, which was in November, 1916, she was unable to work about one-third of the time. From her testimony, which the jury must have believed, defendant hit her in the mouth with his fist, struck her in the right side and on the left shoulder with a spade, and then struck her in the face and threw her on the ground and got on her abdomen with his knees and commenced pounding and striking her and called for his son, Lloyd Kenworthy, who ran up and stuck a pitchfork in her knee. As soon as the difficulty was over, she immediately went to Coweta and was treated by a physician, who took four stitches in her knee and bandaged her side, putting her under the influence of ether in order to perform the operation. At the time of trial there was a scar on her knee and marks of the assault were on her face and head. The doctor came to see her often for about eight weeks, treating her for the injuries, and afterwards visited her off and on, all summer. From the blow in her side, a lump was formed, and she suffered pain therefrom and from her limb; the pain being so severe for three weeks after the assault that she was unable to walk, and at times it was necessary to administer opiates to relieve her suffering. The physician's bill amounted to between $250 and $300. The court refused to permit the jury to consider the amount of Wagoner this bill in estimating the damages. The KENWORTHY v. PENDERGRASS et al. (No. 9111.) (Supreme Court of Oklahoma. Oct. 8, 1918. Rehearing Denied Nov. 26, 1918.) (Syllabus by the Court.) 1. APPEAL AND ERROR 1171(1)—SUBSTANRecord examined, and, it appearing that substantial justice has been done, the judgment of the trial court is affirmed. (Additional Syllabus by Editorial Staff.) 2. ASSAULT AND BATTERY DAMAGES EVIDENCE. 38-ACTION FOR In an action for an assault and battery, the amount of physician's bill to plaintiff was a proper item to be considered by jury in estimating damages. Error from District Court, County; Preston S. Davis, Judge. Action by Amanda E. Pendergrass against Albert Kenworthy and another. Judgment for plaintiff against defendant Kenworthy, and he brings error. Affirmed. Hughes & Milburne, of Coweta, and Rutherford & Cosgrove, of Muskogee, for plaintiff in error. W. J. Crump and P. L. Newton, both of Muskogee, and J. S. Dickey, of Wagoner, for defendants in error. reason therefor is not apparent, and we think this was a proper item and may be considered by us in determining whether the verdict was excessive. M. O. & G. Ry. Co. v. Collins, 47 Okl. 761, 150 Pac. 142. Plaintiff also expended over $30 for medicine. In view of the character of the assault and the nature and extent of the injuries received, the verdict was small, and, upon an examination of the entire record, we think substantial justice has been done, and under section 6005, Rev. L. 1910, we are precluded | for usury, and after the delivery of said infrom reversing this case because of any of strument was violently assaulted by one A. the errors complained of. The judgment is affirmed. MCCARTHY v. LIBERTY NAT. BANK. (No. 9017.) (Supreme Court of Oklahoma. Aug. 13, 1918. Rehearing Denied Nov. 26, 1918.) (Syllabus by the Court.) 1. BANKS AND BANKING 262-COMMISSION CHARGED BY PRESIDENT OF BANK-LIABIL ITY. Where the president of a bank, having full power to make loans for the bank, takes more than the legal rate of interest, the bank is liable for usury, although the president charges the excess over the legal rate as commission and retains it as his individual property. 2. BANKS AND BANKING 237-LIABILITY REORGANIZED BANK-USURY. Where a state bank is reincorporated as a national bank under a new name, but the personnel, officers, management, and business remains the same, the new bank is liable for usury charged and collected by the old bank. Commissioners' Opinion, Division No. 2. Error from District Court, Tulsa County. Action by John S. McCarthy against the Liberty National Bank. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with instructions to enter judgment for plaintiff. H. B. Martin, L. M. Lane, and A. F. Moss, all of Tulsa, for plaintiff in error. Davidson & Williams, of Tulsa, for defend ant in error. POPE, C. John S. McCarthy, plaintiff in this action in the court below, desiring a loan of $6,000, went to the Tulsa State Bank and negotiated the loan through the medium of its president. The transaction assumed in outward form the guise of a loan of $8,000 for one year. This amount was placed to the credit of McCarthy in said bank, who immediately, as a part of the agreed transaction, paid the president of the bank, from said sum, the sum of $2,000, of which $800 was to be the interest on the loan and $1,200 commission to the president of the bank for making the loan-a consideration of 25 per cent. paid by McCarthy for the use of the money. McCarthy paid the note in full, and thereafter demanded the payment to him of $4,000; his claim being that the said sum was double the amount of the usury paid. In the verified petition in the record, one of the allegations, which are nowhere denied under oath, is that, after the giving of the notice above mentioned, McCarthy was inveigled into the private room of the bank, which had by that time changed its name to the Liberty National Bank, was locked in said room, forced by threats of being killed to sign an instrument renouncing all claim E. Lewis, who honors the bank by acting as its president. Thereafter McCarthy brought this action against the Liberty National Bank to recover $4,000 usury. On the trial it was shown by uncontradicted evidence that the Tulsa State Bank had reincorporated as the Liberty National Bank; the latter bank being organized by the officers and stockholders of the former, taking over its assets, continuing its business, and being conducted by the same officers. Judgment was rendered for the bank, and McCarthy brings error. The bank sought to avoid liability under two theories. The one was that the $2,000 consideration received for the loan of $6,000 for a year was not interest; the contention being that only $800 was interest, and the remaining $1,200 a commission charged by the president in his individual capacity and retained by him as a commission for making the loan. The other theory was that the Liberty National Bank, as distinguished from the Tulsa State Bank, was not liable by reason of the change of incorporation and name. These contentions will be considered in their order. [1] We cannot agree with the contention of the bank that a part of the 25 per cent. charged the plaintiff for this loan was a comand not interest. The man Lewis, president mission going to the president of the bank of both of the banks, or rather the one bank under both names and both corporations, had full charge of making loans for the bank. "I loan the bank's money to who I want to," he says, and that he kept the $1,200, as his commission without the knowledge or consent of the stockholders or the directors. "Certainly, I make a commission on loans every now and then; I reserve that right." The uncontroverted testimony shows that Lewis had and exercised the right of making loans for the bank; he was clearly a general agent for that purpose. The funds of the bank were in his possession to be loaned. His official position was such that his knowledge would be the knowledge of the corporation. The authorities amply sustain the position that compensation received for a loan under such conditions cannot be called a commission, and the pains of usury thus avoided. Bean v. Rumrill, 172 Pac. 453; 46 L. R. A. (N. S.) 1157, note; 19 L. R. A. (N. S.) 391, note. It may be that the man Lewis was guilty of a fraud on his bank, and was secretly appropriating part of the compensation which he received for loans without the knowledge of the stockholders and directors. the bank has its remedy against Lewis; but it cannot deny that his knowledge was its knowledge, or escape liability to third persons for the acts of Lewis within the scope If so, |