No. 4327. Geo. M. Swift v. McAlester Trust Co. Error from Superior Court, Pittsburg County. Affirmed. Opinion by Thacker, C.

S. and C., stockholders and officers in the Alderson Coal Co., entered into an escrow contract in writing that S. would sell and C. would purchase and pay $3,000.00 for all of S.'s stock in said company when and upon condition that the Indian Coal & Mining Co., as original lessee, should give consent to C.'s prior assignment to the Alderson Coal Co. of a ten-year leasehold estate in certain segregated coal lands of the Choctaw and Chickasaw Indians in Oklahoma; and a letter from S., addressed to N., a major stockholder in said Indian Coal & Mining Co., which was attached to and made a part of said escrow contract, recited that it was understood that "The Alderson Coal Co. will execute a good and sufficient bond to pay all royalties and carry out the general terms of the lease," which the latter wholly failed to execute; Held, said contract must be construed as contemplating, as a condition precedent to C.'s absolute obligation to purchase and pay, that the Alderson Coal Co. should give such bond; Held, further, that, the contingency upon which C.'s obligation to purchase said stock depended having never happened, S. was not entitled to demand and recover said $3,000, nor to an injunction restraining the return of same to C. by the scrow holder.

No. 4744. Levindale Lead and Zinc Co. v. R. D. Fluke. Error grom District Court Delaware County. Affirmed. Opinion by Collier, C.

1. Section 6121, Comp. Laws, 1909 (Sec. 4927, Rev. Laws, 1910) does not take away any of the previously existing equitable remedies, and one who holds the legal title to land, though not in possession, may independently of the statute, maintain a suit in equity to remove a cloud from the title to said land, when the same is not in the actual possession of anyone,

2. Where an Indian allotment has been illegally sold by the allottee prior to the removal of restrictions as to alienation of said land, one who, after the removal of such restrictions, and where the lands conveyed are not in the actual possession of any one, does not violate section 2215, Comp. Laws, 1909 (Sec. 2260, Rev. Laws, 1910) by taking a valid deed from such allottee to said allotment.

No. 5707. Virgil R. Coss et al. v. T. A. Sterritt. Error from District Court Murray County. Dismissed. Opinion by Collier, C.

1. Where a judgment is joint, all persons against whom it is rendered and would necessarily be affected by a reversal must be served with the case-made, unless the same be waived, and given notice of the time and place of settling and signing the case-made, unless the same be waived, or they appear, and must be made parties to the appeal; and when such presentation is not made and such notice is not given, nor the same waived, nor an appearance made, and such parties are not made parties to the appeal, this court is without jurisdiction to hear such attempted appeal.

2. After a case-made has been settled and signed, and the time in which an appeal to this court may be taken has expired, a necessary party to the appeal, who was not presented with the case-made within the time fixed by the trial court and was not given notice of the time and place for settling and signing such case-made, cannot waive such failure to serve case-made and notice of settling and signing same, so as to give this court jurisdiction of such attempted appeal.

Commission No. 2.

No. 4588. E. L. Halsell v. First National Bank, Muskogee. Error from District Court, Muskogee county. Reversed. Opinion by Devereux, C.

1. A vendee has a right to act on the positive representations of existing, matèrial facts, mdae by a vendor, even though the means of ascertaining their falseness is open to him. The real question in such case is, was the vendee in fact deceived by the false representations, for it is as much an actionable fraud to deceive a credulous person, with an improbable story, as it is to deceive a cautious person with a plausible one.

2. A director of a corporation is chargeable with knowledge of such affairs of the corporation as it is his duty to keep informed of in the conduct of the business, but such implied knowledge does not excuse a co-director in making false representations as to the title of the corporation to lands, and the value of its assets, when such representations are false, and are made for the purpose of inducing a purchase of the stock held by the director making them.

3. A director of a corporation cannot practice a fraud upon a co-director by false statements as to the affairs of the corporation, and when sued for the deceit, defend successfully on the ground that the defrauded director is presumed to have knowledge of the affairs of the corporation..

4. In order for a party to avail himself of the doctrine of estoppel as constituting a part of his cause of action or defense, he must plead the facts constituting the estoppel.

4. Where a material issue is presented by the pleadings, and there is evidence tending to support it, a serious misdirection in the charge cannot be held harmless error.

4553. Wm. Virgelius etc., v. Joseph Marcus et al. Error from County Court, Seminole County. Reversed. Opinion by Devereux, C.

On the institution of an action in a justice's court, a garnishment was obtained, and the garnishee ad

mitted funds in his hands sufficient to pay the debt. On the trial before the justice judgment was rendered for a sum very much less than the plaintiffs claimed, and the defendant at once paid the judgment and the justice released the garnishee, over the protest of the plaintiff, who gave notice of appeal, and also notified the garnishee not to pay the funds in his hands to the defendant, but regardless of such notice, the garnishee did so. On appeal, the plaintiff recovered a much larger judgment; Held, that the plaintiff was entitled to an order in the county court, directing the garnishee to pay over the money which was in his hands when the garnishment was served, and which, by his answer, he admits was sufficient to pay the debt.

No. 4606. Chas. L. Campbell, Etc. v. S. L. Newman, Etc. Error from Superior Court of Grady county. Rev. and Remanded with directions. braith, C.

Gal

1. A mere mistake of law, not accompanied with other circumstances demanding equitable relief, constitutes no grounds for recission, cancellation or reformation of a deed to lands based upon such mistake.

2. The father and mother, members of the Chickasaw Nation, of less than one-half blood, for a valuable consideration, joined in executing a warranty deed conveying to their minor son a part of the allotment of their deceased daughter, who died intestate, unmarried and without issue, believing that they owned only a life estate in the allotment, when under the law of descent the father owned the fee therein. Held, that after the father discovers that he was mistaken in the law of descent, under which the allotment of the deceased daughter was cast, he cannot maintain an action to cancel the deed to his son and to quiet title to the land conveyed on the ground of "mistake of law."

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.