No. 4559. St. L. I. M. & S. Ry. Co. v. C. J. Gibson Etc. Error from District Court, Muskogee county, Reversed. Opinion by Brett, C. Where plaintiff's evidence shows that deceased was standing to one side of the railroad track, in a place of safety, and knew that the train was approaching, and had waited to see the train pass, and suddenly attempted to run across the track, immediately in front of, and in full view of a moving train, and was struck by the train before he could run across the track, the company could not be liable, and a demurrer to the evidence should have been sustained. The employees of a railroad company seeing a person standing to one side of the track, in a place of safety are not negligent in assuming that he will remain in that place of safety, and not heedlessly run upon the track, in front of moving cars. And if he does so, and it is impossible to stop the train, in time to avoid killing him, the company can not be held liable for his death. Where the employees of a railroad company on approaching a crossing fail to ring the bell and sound the whistle; if the evidence leaves a doubt, as to whether the deceased saw the train, or knew that it was approaching, then the failure of defendant to ring the bell and sound the whistle, would raise a question to be submitted to the jury, as to whether or not that failure, was the cause of his going upon the track, and thereby losing his life. But when plaintiff's own evidence is, that deceased had waited to see the train pass, knew it was approaching, and ran upon the track immediately in front of and in full view of the moving cars, it could not be said the failure to ring the bell and sound the whistle, was in any manner responsible for his going upon the track and there is no question, on that phase of the case, to submit to the jury. Division No. 3. No. 4659. City of Edmond v. J. G. Tyler. Error from District Court of Oklahoma county. Reversed and Remanded. Opinion by Rittenhouse. 1. There is no municipal liability for injuries from defective highways or bridges located outside of the boundaries of the municipality. 2. The power conferred by statute upon a city to expend, under direction of the city council, the road taxes collected in an incorporated city, in the improvement of the streets or bridges of the city and roads approaching thereto, in so far as it pertains to roads approaching thereto, in so far as it pertains to approaching such city, is a mere license, and does not make the city responsible for the manner in which the work is done or for a failure to keep the same in repair. No. 4716. Nettie E. Jones, Administratrix, Etc. v. Hattie Woodward, Error from County Court of Oklahoma county. Reversed. Opinion by Bleakmore, C. 1. A cause of action on account of the alleged fraud of an intestate is not one arising out of contract, and claim therefor need not be presented to the administrator before suit may be maintained thereon. 2. By reading and accepting a quit-claim deed, in statutory form, the grantee acquired express information of the fact that the words employed therein were the very ones which the statute provides shall, when used in a conveyance, constitute it a quit-claim and distinguish it in quality and effect from a warranty deed; and such knowledge was actual notice of its character. If the execution and delivery of a quit-claim instead of a warranty deed, under the circumstances in this case, constituted actionable fraud, held, that as to the cause of action arising therefrom the statute of limitations was set in motion when the deed was delivered to, and read and accepted by the grantee. No. 4539. S. F. Palmer v. T. D. Noe. 1. A promissory note, made, executed and delivered at Salem, Ark., and payable in that state, in the absence of other proof, is an Arkansas contract and is governed by the laws of Arkansas; but, in an action upon the same in this state, where the laws of Arkansas are not pleaded or proven the presumption is that the laws of Arkansas are the same as the laws of this state. 2. Under Sec. 4694 Rev. L. 1910, the payee of a promissory note may at his option, sue one of the sureties, without joining the maker and the other sureties as parties defendant; and his failure to sue the maker and other sureties does not operate as a release of the surety sued. The failure of the payee of a promissory note to sue the principal, upon the oral request of the surety sued, made long after the maturity of the note to the attorney of the payee, who had the note for collection does not operate as a release of the surety sued, even though the principal, at the time the request was made, was solvent and amply able to pay the note, and, in the meantime, he and the other sureties thereon become insolvent, it being the duty of the surety, upon the failure of the principal to pay the note when due, to pay the same and pursue his remedy against the principal and his co-sureties. Commission No. 4. No. 4681. Farmers Produce Co. V. McAlester Storage, Etc. Co. et al. Er. from Superior Ct., Pittsburg county. Affirmed. Opinion by Robberts, C. 1. A complete contract, binding under the statute of frauds, may be made through the medium of letters writings, and telegrams, signed by and passing between the parties, when such writings are so related to the subject-matter, and are so connected with each other, that it may be fairly said they constitute one paper relating to the contract. 2. An offer of sale of personal property, and its acceptance must receive a reasonable construction, and the proposer is bound by its acceptance in that sense. Immaterial variances between the offer and its acceptance will be disregarded. 3. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer. 4. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted. 5. Where there is no direction as to the mode of communicating the accepance of a proposed contract, the acceptance may be reasonably inferred from the offer, or other prior communications, that some other means is expected, and that would be a question of fact to be determined by the jury, and in such case, the contract is completed as soon as the acceptance is delivered in the Post Office in the usual way for transmission. No. 4732. Isaac Cohn v. I. G. Clark, Error from County Court Rogers county. Affirmed. Opinion by Matthews, C. 1. Where no valid service of process is had upon. the defendant in the justice of the peace court and a motion to quash service filed by him in this court is overruled and judgment goes against him, and he files a bond for appeal to the county or district court, which is duly approved, by taking the appeal and filing the appeal bond, he waives all defects in the service of process in the justice court and a motion made by him. in the appellate court to quash the service of process is properly overruled. Defendant made a motion for continuance 2. upon the ground that the defendant was sick and unable to attend trial. It appears from the motion that the defendant had been sick in a distant state for about a year. Held, that in the absence of a showing that there was a probability of defendant being able to attend court in a reasonable time, it was not error to refuse the continuance. 3. An oil lease provided that the lessee should commense operation in drilling for oil by January 1st, 1910, or thereafter pay to the lessor one dollar per acre, per annum until a well is drilled, or the lease thereafter was null and void. Held, that upon a failure to begin operations by drilling for oil, the lessor was entitled to the stipulated rental until a well is drilled or until the lease is terminated, or cancelled, under the surrender clause in the contract. 4. A provision forfeiting a lease on failure of the lessee to fulfil the terms of the contract is for the benefit of the lessor only and he alone can take advantage of the same, unless there is an expressed stipulation in the contract, that the lease shall become nuli and void unless the lessee shall either drill within a certain time or pay the rental, or words of similar import. 5. Evidence examined and held to support the verdict. No. A-2240. Comanche county. Mike Markeson v. State. From |