wished to proceed to procure the loan; that [entire term of the loan, yet the plaintiff was plaintiff then informed him that the roads not employed by the borrower, and his sole to the land were bad, and that it was hard duty in the premises was owed to the to get to, and that he had concluded not to lender. He inspected the land offered as semake the loan. The defendant's testimony curity, and his attorney approved the suf as to this conversation with plaintiff is cor- ficiency of the title. He advanced the money roborated by one witness, and is denied by to the borrower and drew upon his principal plaintiff and another witness. No money was to be reimbursed, so that in this transacever paid out upon either of the notes and tion the relation between plaintiff and defendmortgages and after the maturity of the two ants was that of lender and borrower; the $90 notes plaintiff began this action. The plaintiff lending to the defendants the sum of defendants filed an answer and cross-peti- $1,800 at the rate of 8 per cent. per annum, tion, pleading that there was no consideration or practically at that rate, of which interest for the notes sued on, and praying cancella- the plaintiff was to receive 1 per cent. per antion of the mortgage to the Alliance Trust | num, or practically that amount, as his comCompany, and of the mortgage to plaintiff.pensation, the balance of the interest going Defendants had judgment as prayed in their to his principal. Nor can it be said that cross-petition. plaintiff was the agent of both the lender and the borrower, and was therefore entitled to be compensated by the borrower. While it is true that in some cases the law recognizes an agency for both the lender and borrower, or the vendor and purchaser, yet in a case such as this, where the lender depends solely upon the judgment and discretion of the agent, it would be against public policy to permit an agent to act for both lender and borrower. Bell v. Riggs, 34 Okl. 834, at pages 840-842, 127 Pac. 427, 41 L. R. A. (N. S.) 1111; Porter v. Wold, 34 Okl. 253, 127 Pac. 432; Goss v. Sorrell, 33 Okl. 5$6, 127 Pac. 435; Union Central Life Insurance Co. v. Pappan, 36 Okl. 344, 128 Pac. 716; Levy v. Gross, 149 Pac. 237. [1, 2] It is contended by plaintiff that the notes in controversy were executed by defendants for plaintiff's commission in negotiating the loan of $1,800; that plaintiff had approved the real estate as sufficient security; and the loan would have been made, had not defendants' title appeared to be defective. Plaintiff relies upon the rule of law that where one employs a broker to procure a loan, and the broker procures a lender ready, willing, and able to make the loan, but because of a defect in the title to the real estate, offered as security therefor, the loan is not consummated, the broker is entitled to recover his commission from the borrower. This rule is amply supported by the authorities cited in the brief of plaintiff, and also seems to be the settled rule of this court. Plaintiff, therefore, contends that he should have had judgment in the court below, because the only obstacle in the way of mak-out consideration, and the judgment of the ing the loan sought by defendants was the defect in their title to the real estate offered as 'security, and that plaintiff, upon approval of such real estate as sufficient security, had earned his commission. The plaintiff being the agent of the lender in the transaction in controversy, and having lent no money to the defendants upon the notes executed by them, the notes were with trial court was right, and should be affirmed. PER CURIAM. Adopted in whole. DAVIDSON et al. v. BAILEY et al. (No. 4754.) Feb. 8, 1916.) (Syllabus by the Court.) 1. REFORMATION OF INSTRUMENTS 45 DEEDS-PROOF REQUIRED. We do not think the rule of law sought to be enforced by plaintiff is at all applicable to the facts in this case. In the case at bar the court found that plaintiff was the agent (Supreme Court of Oklahoma. of the proposed lender. This finding of the court is not only supported by the evidence, but by the brief of plaintiff. Plaintiff in his statement of the case says that he represented the lender, and later in the brief, in commenting upon plaintiff's method of handling loans for the Alliance Trust Company, says that it constituted agency of the highest class. This being the case, the plaintiff was not a loan broker in the sense that the term was used in the cases relied upon by plaintiff. In the case at bar plaintiff represented the lender to the fullest extent, and while he received his compensation from the borrower in the form of notes in an amount equal to a certain per cent. of the sum loaned, in the instant case amounting to 1 per cent. per annum for the To justify the reformation of a deed, failing to conform to the agreement of the parties thereto through mutual mistake, the proof should be clear, unequivocal, and decisive. Mere preponderance of evidence is not enough; the proof must establish the facts to a moral certainty, and take the case out of the range of reasonable controversy, but need not be so certain as to go beyond any possibility of contro versy. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. 45.] 2. REFORMATION OF INSTRUMENTS 45 DEEDS-MUTUAL MISTAKE-SUFFICIENCY OF EVIDENCE. Evidence examined, and held sufficient to show that the deed given by plaintiffs to defend ant did not conform to the agreement of the parties through mutual mistake justifying its ref ormation. [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. 45.] delivered, accepted, and acted upon, on the ground that it did not correctly express the agreement made by the parties, the proof must be clear and convincing, and until a mistake has been established by such proof as leaves no rational doubt of the fact no Error from District Court, Muskogee Coun- change will be made in the writing sought to ty; R. P. De Graffenried, Judge. Action by John W. Bailey and another against Nettie Drake, and, defendant dying, an order of revivor was made in the names of Rose Drake Davidson, as administratrix of the estate of Nettie Drake, deceased, and others. Judgment for plaintiffs, and defendants bring error. Affirmed. Vernor & Vernor, of Muskogee, for plaintiffs in error. Thea E. Lipscomb and Sumner J. Lipscomb, both of Muskogee, for defendants in error. SHARP, J. This is an action commenced April 29, 1911, to reform a deed given May 13, 1904, by plaintiffs to defendant, which deed described the property conveyed as the "south seventy-five (75) feet of lot seventeen (17) in block No. sixty-one (61)" in the city of Muskogee, Okl., whereas plaintiffs claimed that it should have described it as the north 14 feet of lot 18 and the south 61 feet of lot 17, in block 61 in the city of Muskogee, Okl. In plaintiffs' petition it was alleged that the mistake was mutual, and that after be reformed. Other cases announcing this doctrine are Owen et al. v. City of Tulsa, 27 Okl. 264, 111 Pac. 320; Dockstader v. Gibbs, 34 Okl. 497, 126 Pac. 229; Schafer v. Midland Hotel Co., 41 Okl. 111, 137 Pac. 664; Cleveland v. Rankin, 149 Pac. 1131. As will be seen from the pleadings, the question of fact at the trial was whether the parties intended to convey the south 61 feet of lot 17 and the north 14 feet of lot 18 in block 61, or, on the other hand, the south 75 feet of lot 17, block 61. Plaintiffs testified that the former was their intention and understanding, and that they so informed defendant, and measured the property in her presence; that she built a fence so as to include the former, instead of the latter described property, had constructed a sidewalk in front thereof, and her house located on the property was in part situated on the north 14 feet of lot 18. Defendant's testimony, which was unsupported by other witnesses, or by surrounding facts (except that she paid the taxes on lot seventeen), was that the deed, as given, correctly described the property intended to be conveyed. It is contended by counsel for plaintiffs in error that, there being a conflict in the testimony of plaintiffs and defendant, the court could not say, under the principle announced in the former opinions of this court, there was a clear, unequivocal, and decisive proof of a mutual mistake. We cannot agree with this position, for clear, unequivocal, and decisive evidence does not mean that such evidence may not be conin-troverted or denied. It is sufficient, as said in Hope v. Bourland, supra, that the mistake be shown so as to leave no “rational doubt of the fact." Discussing this same proposition, in Cleveland v. Rankin, supra, it was said in the opinion: discovery thereof, some years subsequent to the execution of the deed, defendant refused to rectify it; wherefore plaintiffs asked that said deed be reformed by the court so as to show the true description of the land sold by plaintiffs to defendant. Defendant answered, denying any mutual mistake in the description of the property, and, on the other hand, alleged that the property described in said deed was the true and identical premises tended to be bought by defendant from plaintiffs. Trial was had to the court September 10, 1912, and judgment rendered in favor of plaintiffs, from which judgment defendant brings error to this court. Subsequent to the docketing of the case in this court plaintiff in error died, and an order of revivor was made in the names of Rose Drake Davidson, administratrix of her estate, and Rose Drake Davidson, Hattie Drake Travis, Pearl Drake Briggs, Sheridan Drake, children, and Dorothy Perry, granddaughter, as sole and only heirs of said deceased. [2] We think the evidence in this case suf[1] The question of the right of parties to ficiently meets the requirements as to the a conveyance to have its terms corrected so degree of proof required to reform a written as to conform to the intention of the parties instrument. That the defendant should at the time of the sale or conveyance has on make lasting improvements, such as fences, several occasions been determined by this house, and sidewalk, upon and around propcourt. In Hope v. Bourland, 21 Okl. 864, 98 erty which she knew all the time to belong Pac. 580, the rule was stated to be that to to another, and that she failed to so improve warrant reformation, in the absence of fraud property adjacent thereto, which she now or imposition, there must be a mutual mis- says she at all times owned, is so different take, that is, a mistake shared by both par- from the ordinary conduct of property ownties; that to justify a reformation of a deeders, whether they be educated or illiterate, as to impress us, as it undoubtedly did the plaintiff represented to defendant that said trial court, with the fact that a mistake was plant would reduce the temperature to 34 without doubt made in the description of the degrees, when in fact it would not reduce property intended to be conveyed by the deed. the temperature under 40 degrees; that It is true that defendant paid the taxes on defendant was not experienced with machinthe property claimed by her, but this can be ery, and relied upon the representations of attributed to the mistake in the deed, rather plaintiff; that the plant was installed April than to any legal claim she may have had to 7, 1910, and, on April 11th thereafter, desuch property. fendant accepted it in writing, and made the The judgment is affirmed. All the Justices first payment of $450; that, by reason of the defective machinery, 1,000 pounds of fresh meat belonging to defendant had spoiled; and prays judgment against plain concur. CREAMERY PACKAGE MFG. CO. v. DELK. tiff for $600 damages and the $450 paid on said contract. The cause was tried to a jury, (No. 5534.) (Supreme Court of Oklahoma. Feb. 8, 1916.) resulting in a verdict in favor of defendant (Syllabus by the Court.) APPEAL AND Error ~773—FAILURE TO FILE Where plaintiff in error has completed his record and filed it in the Supreme Court, and has served and filed a brief in compliance with the rules of the court, and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. 773.] Commissioners' Opinion, Division No. 1. Error from County Court, Caddo County; C. Ross Hume, Judge. Action by the Creamery Package Manufacturing Company against J. M. Delk. Judgment for defendant, and plaintiff brings error. Reversed and remanded. Alfred W. Craven, of Chicago, Ill., and Louie E. McKnight, of Anadarko, for plaintiff in error. for $506.47, and for return and cancellation of the notes sued for by plaintiff. Motion for new trial was filed and overruled, to which plaintiff duly excepted. Judgment was entered on the verdict, to reverse which plaintiff prosecutes this appeal. Plaintiff has completed its record and filed same in this court, and has filed and served a brief in compliance with the rules of this court. Defendant has neither filed his brief, nor offered any excuse for such failure, notwithstanding the questions raised are involved, difficult, and important. We have examined the brief of plaintiff, and find that it appears reasonably to sustain the assignments of error urged. Under this state of the record, this court is not required to search the record to find some theory upon which the judgment may be sustained, but may reverse the judgment in accordance with the prayer of the petition. Phillips v. Rogers, 30 Okl. 99, 118 Pac. 371; Doyle v. School Dist. No. 38, 30 Okl. 81, 118 Pac. 386; Butler v. McSpadden, 25 Okl. 465, 107 Pac. 170; M. K. & T. Ry. Co. v. Long, 27 Okl. 456, 112 Pac. 991. This cause should therefore be reversed and remanded. PER CURIAM. Adopted in whole. (No. 7623.) Feb. 8, 1916.) WYLIE v. SHUTLER. 564-SERVICE OF CASEMADE EXTENSION OF TIME CONDITION PRECEDENT. BREWER, C. Plaintiff in error, plaintiff below, brought this action against defendant in error, defendant below, to recover or three certain promissory notes, with interest at the rate of 6 per cent. per annum from date; said notes being dated June 23, 1910, and due in three and six months from date, and being in the following amounts, respectively, one note for $125, one note for APPEAL AND ERROR $125, and one note for $268. Said notes were given in part payment for the installation by plaintiff of a refrigerating plant for To authorize the making of an order extenddefendant. Plaintiff alleges that said notes tion 5216, Rev. Laws 1910, after the time aling the time for serving a case-made, under secare now due and wholly unpaid, and prays lowed by law, or a former order extending the judgment against defendant for $536, with time, has expired, notice must be given the opinterest at 6 per cent. Defendant filed his posite party of the application for such order, and a showing made to the court or judge, that answer and cross-petition, denying each and the failure to serve the case within the time pre every allegation alleged in plaintiff's peti-viously allowed, and then expired, was because tion, except the execution of the notes. For of "accident or misfortune which could not rea his cross-petition, defendant alleges that he sonably have been avoided." entered into a contract with plaintiff for the installation of a refrigerating plant; that Error, Cent. Dig. §§ 2501-2506, 2555-2559; [Ed. Note.-For other cases, see Appeal and Dec. Dig. 564.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Commissioners' Opinion, Division No. 1. [ record before us, or making further referError from District Court, Kingfisher Coun- ence to the irregularities so obviously apty; W. M. Bowles, Judge. Action between Robert W. Wylie and Robert F. Shutler. From the judgment, Wylie brings error. Dismissed. R. W. Wylie, of Hennessey, for plaintiff in error. Hinch & Bradley, of Kingfisher, for defendant in error. BREWER, C. Defendant in error has filed a motion to dismiss this appeal, and has assigned twelve separate and distinct reasons therefor. We will not undertake to set them all out, except to say that several of them seem to be well taken, and that the cause ought to be dismissed. pearing, for the reason stated above-that the case-made was not served within the time required by law-the appeal should be dismissed. PER CURIAM. Adopted in whole. WEAVER v. WATTS. (No. 7108.) (Supreme Court of Oklahoma. Feb. 8, 1916.) (Syllabus by the Court.) 1. APPEAL AND ERROR 356-PETITION IN ERROR-TIME FOR FILING-DISMISSAL. Where a petition in error, accompanied by two-thirds of the amount required to be depositstatutory period for appeals, by the clerk of this ed for costs, is sent to and received, within the court, who holds but does not file the same and notifies the petitioner's attorney of these facts dent to such filing, which demand, though twice and demands the deficiency as a condition prece not complied with until long thereafter, whereupon the clerk advises said attorney he will file the same as of the date of its receipt, and accordingly indorses it without order of court, this court acquires no jurisdiction of the case, and the appeal will be dismissed. 2. APPEAL AND ERROR 430-DISMISSALJURISDICTION. A trial of this case was had before the court on April 19, 1915, and plaintiff in error allowed 30 days from that date in which to make and serve a case-made. The case made was not served within the time allow-repeated after the expiration of said period, is ed; nor was an order, further extending the time, made before the expiration of the time originally given. Nor is any sufficient showing made, under section 5246, Rev. Laws 1910, of "accident or misfortune, which could not reasonably have been avoided," so [Ed. Note. For other cases, see Appeal and as to justify the making of an order extend-Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. 356.] ing the time, after the expiration of the time allowed in the former order. Nor does it appear from the record that any notice of such an application out of time was given opposing party. The fact of the matter is that all that appears from the record is that, several days before the time given by the original order had expired, plaintiff in error wrote to the trial judge, asking that further time be granted, evidently expecting it to be granted within the limits of the former order. This, however, was not done; and the order made, after the expiration of the time originally granted, without notice, and with out a showing of accident or misfortune, such as is contemplated by law was ineffective to extend the time. Therefore the case-made was not served within the time allowed by law, or a valid order of the court extending such time, and for that reason the appeal should be dismissed. A petition in error will be dismissed on motion, even though the same is filed within the statutory period, where no waiver of issuance for the same is filed, and no summons is issued and service of summons is had, and no præcipe or general appearance made within such time. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2173, 2174, 3126; Dec. Dig. 430.] Error from District Court, Wagoner County; R. C. Allen, Judge. Action by Charles G. Watts against J. D. Weaver. Judgment for plaintiff, and de fendants bring error. Dismissed. M. L. Williams, of Clearwater, Fla., for plaintiffs in error. De Roos Bailey, of Muskogee, for defendant in error. THACKER, J. [1] The defendant in error moves and is entitled to a dismissal of the petition in error in this case upon the ground that the appeal was not "commenced within six months from the rendition of the judgment complained of," as required by section 4452, Stat. 1893 (section 5255, Rev. L. 1910), as amended by act of February 14, 1911 (Laws 1910-11, p. 35). It might be added that all of the errors complained of here, if, indeed, it can be said that any specific errors are clearly alleged and pointed out, would require an examination of the proceedings and matters occurring at the trial. No motion for a new trial was filed, the record showing merely that a motion for new trial would be considered as having been filed and overruled. It is true The judgment was rendered, and the order that, in some supplemental papers filed with overruling the motion for new trial made on us, there is a copy of a formal motion for new February 17, 1914. On August 15, 1914, trial, which the clerk certifies "is now" on which was only two days before the expirafile in his office; but upon such purported tion of the statutory period within which a motion there is no indorsement as to when it proceeding in error might have been comwas filed, or that it was ever filed. With-menced in this court, the petition in error, out going further into the conditions of the accompanied by two-thirds of the amount For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes required to be deposited for costs, had been issues were made in the lower court the cause was tried, and judgment was rendered for the defendants in error denying to the plaintiffs in error the relief sought. Motion for a new trial was filed and overruled, and an appeal was taken to this court. There are only two assignments of error presented by the plaintiffs in error in their brief, viz.: First, that the court erred in granting to the plaintiff in error a new trial; second, that the court erred in admitting incompetent testimony prejudicial to the rights of the plaintiffs in error, and that upon this incompetent testimony the court found that the school board had jurisdiction to call the There was no waiver or issuance and service of summons, or præcipe therefor, or gen-bond election. eral appearance made within the statutory period for commencing a proceeding in error in this court. [2] And, because of these facts, the petition in error would have to be dismissed on the motion made, even if the same had been filed within the statutory period therefor, which was not done. Frazier v. Hocker, 149 Pac. 1181; Simmons v. Belvin, 148 Pac. 989; Braggs Mercantile Co. v. Richardson Dry Goods Co., 147 Pac. 1194; Rackliffe-Gibson | Const. Co. v. Clingenpeel, 43 Okl. 181, 141 Pac. 964; Tupelo Townsite Co. v. Cook, 43 Okl. 199, 141 Pac. 1167; McMurtry v. Byrd, 23 Okl. 597, 101 Pac. 1117. The petition in error is dismissed. All the Justices concurring. By way of explanation it might not be amiss to relate the history of this case. It appears from the record that the case-made was changed by some one between the time that the same was signed and certified to by the trial judge and its filing in the office of the clerk of this court. This change was very detrimental to the rights of the defendants in error; for the very foundation of this suit and the basis of the attack made by the plaintiffs in error is that the school board lacked jurisdiction to call the election, as provided by statute, for the purpose of voting bonds, and the case-made, as it was originally made and signed by the trial judge, contained a correct transcript of the petition, with the names of more than one-third of the qualified electors of the district attached thereto, and, when the same was filed in this court, the transcript showed less WILLIAMS et al. v. SCHOOL DIST. NO. 80 than one-third of the names of said electors. et al. (No. 6467.) Upon proper motion this court permitted the (Supreme Court of Oklahoma. Feb. 8, 1916.) defendants in error to correct this case made so as to show the true state of facts, and the record as it now appears shows that the petition filed with the school board, constituting the basis of their authority to call the election, contains a majority of the qualified electors within said school district. It is apparent that the two errors urged by the plaintiffs in error are based upon the state of the record as the case-made existed when this cause was filed in this court, and, since the record has been amended so as to show that the school board had filed with it the proper petition, sigued by more than onethird of the qualified electors of said school district, the record itself is a full, complete, and a sufficient answer to the contentions of the plaintiffs in error. We therefore hold that the trial court did not commit error in refusing to grant a new trial, nor in admitting the evidence complained of, and the judgment of the lower court should be affirmed. PER CURIAM. Adopted in whole. |