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The other questions involved in this case have already been decided adversely to the contentions of counsel for appellant in the case of Fred Hunter v. State, decided at the present term.

The father who is too lazy and trifling to support his own chid will look in vain to this court for sympathy and assistance. We think the verdict of the jury is just and the punishment inflicted merited. It may be possible that a husband would be justified in leaving his wife; but we can not understand how it is possible that a father, who is in enjoyment of good health, could fail and neglect to do anything for the support of his child.

Judgment of the lower court affirmed.



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L. P. GAMBLE, Plaintiff in Error,

No. 2825 CHILION RILEY, et al., Defendants in Error.

(Rendered September 23, 1913.) Error from County Court of Stephens County. W. E. Admire, trial Judge.

Reversed and Remanded.

1. A promissory note may be delivered conditionally, and this may be accomplished by delivery to the payos himself, with proper instructions in relation to the condition. 2. It is elementary that parol evidence is inadmissible to contradict or vary the terms of a valid written instru: ment. But the rule is almost equally well settled that parol evidence may be given to prove the existence of any separate agreement constituting a condition precedent to the attaching of any obligation under the written instrument; this is not to vary the terms of a written instrument, but to prove that no contract was ever made; that its obligation never commenced.

3. Where issues of fact are presented by the pleading and supported by evidence and the facts are disputed or the crediblity of witnesses is drawn in question or a material fact is left in doubt, or there are inferences to be drawn from the facts proven, the case, under proper instructions, should be submitted to the jury, and it is reversible error in such caeo to sustain a motion to direct & verdiot.

(Syllabus by the Court.)

Robert Burns, Attorney for plaintiff in error.
Womack & Brown, Attorneys for defendants in error.

Opinion by ROBERTSON, C.


LEVY BROTHERS, a Partnership consisting of
Sam Levy and Leon Levy, Plaintiffs in Error,

No. 2861 WESTERN UNION TELEGRAPH CO., a Corporation, Defendant in Error.

(Rendered September 23, 1913.) Error from the Superior Court of Oklahoma County. E. D. Oldfield, trial Judge.

Reversed and Remanded.

1. L. Brothers, real estate agents, wired W. the owner of real estate, for his best sale terms on same; W, replied as follows: "$10.000.00, not one-half down, balance 8 per cent annually,"eto. The telegraph company in the transmission of the message omitted the word "net" therefrom. L. Brothers on receipt of the telegram sold the property to E. and endeavored to collect their commission from W. During the negotiations but, prior to the consumation of the sale, the omission was discovered. Having made a price to the purchaser L. Brothers could not refuse to complete the deal; while W. having named a "net" price was not liable. Held, under the facts the telegraph company was liable in damages to the sendee for the actual value of their services up to the time they discovered the omission of the word from the telegram.

2. In order to render the telegraph company liable for damages in such case it is not necessary that it have notice of the details of the transaction mentioned in the telegram, or of the particular damage likely to follow from an improper transmission or delivery of a message. It is sufficient if the damages claimed are such as might reasonably be expected to result from the ciroumstances.

3. When a telegraph company fails to properly and correctly transmit a message the proof of that fact is primafacie evidence of its negligence.

4. Such an action, by the sendee against the telegraph company, is one sounding in tort and is not one for breach of contract.

5. The measure of damages in such case is the actual damage which the sendee suffers up to the time of notice of the omission of the word from the telegram. 6. Instructions examined and Held erroneous.

(Syllabus by the Court.)

W. F. Wilson, John Tomerlin and H. E Elder for plaintiffs in Error. Shartel, Keaton and Wells, and Geo. H. Fearons for Defendant in Error.



COMPANY, Plaintiff in Error,

No. 2875 FOREST MALONE, Defendant in Error.

(Rendered September 23, 1913.) Error from District Court of Latimer County. M. E. Rooser, trial Judge.


1. It frequently happens that a witness is qualifled to testify as an expert because of his experience and obser.


vation with reference to the matter under investigation.

Evidence of witnesses examined and held compe. tent under the foregoing rule.

2. It is not error to refuse a requested instruction where it has already been given in substance by the court in another instruction.

3. It is the duty of the master to furnish his servant with a reasonably safe place to work and with reasonably safe tools and appliances with which to work, taking into consideration the nature and character of the work to be performed, and the dangers thereform, and this duty cannot be delegated by him so as to relieve him of liability for injuries resulting from its violation.

4. Various instructions examined and Held not er. roneous under the facts of this case.

Syllabus by the court.)

Stuart, Gordon & Leidke and Jones & Lester, for Plain. tiff in Error. Andrews & Day, for Defendant in Error.

ELLEN SANGO, et al., Plaintiff in Error,

No. 2852 LAURA PARKS, et al., Defendants in Error.

(Rendered September 23, 1913.) Error from the District Court of Muskogee County. Charles Bagg, trial Judge.


1. Voluntary settlements are so favored that if a doubt or dispute exists between parties with reepect to their rights, and all have the same knowledge, or means of obtaining knowledge, concerning the circumstances involv. ing these rights, and there is no fraud, misrepresentation, concealment, or other misleading incident a com. promise into which they thus voluntarily enter must stand and be enforced, although the final issue may be differ. ent from that which was anticipated, and although the disposition made by the parties in their agreement may

not be that which the court would have decreed had the controversy been brought before it for decision.

2. Where a causo is tried to the court without the aid of a jury, the court's finding of fact will be given the same weight as the verdict of a jury and will not be set aside if there is any evidence reasonably tending to sup•

port it.

(Syllabus by the Court.)

P. C. West, & Horace Speed, for Plaintiffs in Error.
Baily, Wyand & Moon, for Defendants in Error.

nors, Plaintiffs in Error,

No. 2851 E. A. WATT, Defendant in Error.

(Rendered September 23, 1913.) Error from County Court of Grant County. J. W. Bird, trial Judge.

1. The defendant, in an attachment proceeding may, at anytime before judgment, upon reasonable notice to plaintiff, move to discharge the attachment, as to the whole or part of the properly attached. 2. The proceeding to discharge an attachment by motion is a proper practice. 3. The issue thus presented is triable to the court and the parties are not entitled to a jury. 4. In this case the issue to be determined was whether or not the attachment had been levied on exempt property, and this question had to be determined from the evidence in support of, or opposed to, the motion, and the court, upon hearing the motion, was not required to inquire into the merits of the action.

(Syllabus by the court.) Sam P. Riding, for Plaintiffs in error. J. B. Drenen, for Defendant in error.

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