Company, is not liable, and your verdict instructions, read in connection with the should be for the defendant.

"Gentlemen of the jury, you are charged in this case that if you find and believe from the evidence that the plaintiff, Effie Wund, attempted to alight from the said car on which she was a passenger before said car had come to a full stop and while said car was in motion, and that the defendant company was in no way negligent in operating and managing said car, then you are charged that the plaintiff is not entitled to recover in this action, and your verdict should be for the defendant.

balance of the court's charge, to our mind, fully saved the defendant from harm, and in fact, inferentially at least, informed the jury as to what acts of plaintiff would bar her recovery; and when we consider the fact that defendant requested no more specific charge on the defense of contributory negligence we are forced to the conclusion that it is without right to complain. The third, fourth, and fifth instructions given, standing alone, were objectionable, but taken in connection with the other paragraphs of the charge we cannot say that the giving of "Gentlemen of the jury, you are charged the same, under the facts of the case, conin this case that if you believe and find from stituted such error as would warrant an inthe evidence that the plaintiff, Effie Wund, terference with the judgment. The only attempted to alight from the said car on question wherein the defense of contributory which she was a passenger while same was negligence could in any manner arise in this in motion, or if she alighted from said car, case was as to plaintiff's manner of getting after same had stopped, in such manner as off the car, and as is shown by defendant's to cause her alleged injury, without any three requested instructions, supra, that fault or negligence on the part of the defend-phase of the case was fairly covered. ant company, then you are charged that your verdict should be for the defendant."

There being no error of sufficient magnitude in the record to authorize a reversal, the judgment should be affirmed.

PER CURIAM. Adopted in whole.

(37 Okl. 587)

FLESHER et al. v. HUBBARD.
(Supreme Court of Oklahoma. June 11, 1913.)
(Syllabus by the Court.)

MORTGAGES (§§ 105, 398*)—Right TO FORE-
CLOSE-DEFAULT-INSTRUMENTS CONSTRUED

TOGETHER.

The

We do not pretend to say that these constitute a good instruction covering' the defense of contributory negligence, yet in the light of the foregoing, in connection with the instructions complained of, we do not see how defendant can complain. It was its duty, at the trial below, in case the instructions given by the court were unsatisfactory, to offer such as, in its opinion, would correctly state the law applicable to the case. It did present some, and these were given; but none was offered or requested specifically defining contributory negligence, yet the jury, in con- Flesher borrowed $800 from Hubbard, givsidering those offered (defendant's first, sec-ing his note for the principal sum due in five years, with interest at 7 per cent. per annum, ond, and third, supra), was, in effect, told payable annually, with interest at 10 per cent. what constituted contributory negligence; after maturity; the interest at 7 per cent. benor could they have found, under those in- ing evidenced by coupon notes attached to the structions, for the plaintiff, had she contrib-vision that, "if said sum or sums of money or principal note. The mortgage contained a prouted by her negligence to her injury; nor any part thereof is not paid when due, could they have returned a verdict in her the holder of said note and this mortgage may behalf, had they not found that the duty elect to declare the whole sum or sums and inowed her by the defendant had been reached.terest thereon due and payable at once. Thus she alleges in her petition that as she attempted to alight from the car it gave a sudden jerk and threw her down. Defendant's instruction No. 1, supra, told the jury that if she was alighting from the car while it was in motion, and there was no sudden jerk, she could not recover. In defendant's instruction No. 2, supra, the jury was told that if plaintiff attempted to alight from the car before it had come to a full stop, and if the defendant company was in no way negligent in operating and managing said car, she could not recover; while in its instruction No. 3, supra, the jury was told that if plaintiff attempted to alight from the car while it was in motion, or if she had alighted from the car, after the same had stopped, in such manner as to cause her alleged injury, without any fault or negligence on the part of the defendant, she could not recover. These

maker defaulted in the payment of the first coupon note; the payee commenced foreclosure proceedings; the payor contended that the terms of the mortgage had not been broken, although he admitted the default in the payment of the interest coupon as aforesaid. Held, that the note and mortgage, being a single contract, must be construed so as to give effect to all its parts; that the clause providing for interest at 10 per cent. after maturity was inserted for the benefit of the mortgagee, and did not operate to extend the time of payment of the entire sums of interest until the final maturity of the principal interest was a breach of the conditions of the note, and that the failure to pay the annual mortgage sufficient to warrant foreclosure.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 214, 215, 1163; Dec. Dig. §§ 105, 398.*]

Commissioners' Opinion, Division No. 1.. Error from District Court, Okfuskee County; John Caruthers, Judge.

Action by Alice D. Hubbard against Marion B. Flesher and others to foreclose real

estate mortgage. Judgment for plaintiff, and est at the rate of 7 per cent. per annum undefendants bring error. Affirmed.

The principal note sued on reads as fol- to the plaintiff according to the mortgage laws:

If the mortgagor owed the mortgagee on June 5, 1910, the sum of $56 for interest, which according to the above conclusion he undoubtedly did, then the terms of the mortgage, as hereinabove quoted, were breached, and the mortgagee was entitled to declare the whole sum due and payable and to foreclose the same. In these views we are amply sustained by Phillips v. William et ux., 33 Okl. 766, 127 Pac. 1072; McClelland v. Bishop, 42 Ohio St. 124; Core v. Smith, 23 Okl. 909, 102 Pac. 114; Darrow v. Scanlin, 19 Kan. 57; Muzzy v. Knight, 8 Kan. 456; Meyer v. Graeber, 19 Kan. 166; Bank v. Peck, 8 Kan. 660; Grand Island, etc., v. Moore et al., 40 Neb. 686, 59 N. W. 115; 2 Jones on Mortgages (6th Ed.) § 1179A; Castor v. Muramoto, 69 Wash. 145, 125 Pac. 153, 42 L. R. A. (N. S.)

and interest coupon attached to said note. [ both note and mortgage that the interest Plaintiff further states that by reason of the should be payable annually. premises and by the default of the defendant Marion B. Flesher to pay said interest of $56 on the 5th day of May, 1910, at the time it matured, according to said mortgage and coupon the conditions of the said mortgage have been broken and the whole of the indebtedness thereby secured has matured, and is now due and payable, together with all the interest thereon agreed to be paid by said defendant as well as an attorney's fee of $80 which is due and payable upon the filing of this suit as stipulated and specified in said mortgage; that said plaintiff has and does now elect to declare the entire debt and all interest thereon specified due and payable as provided in the said mortgage, and because of the default of the said defendant Marion B. Flesher failing and refusing to pay the said interest coupon No. 1 due the 5th day of June, 1910; that, therefore, plaintiff is entitled to foreclosure of the said mortgage on said premises and to have the same sold to satisfy said indebtedness."

* *

108.

It therefore follows that there is no merit in the various contentions of plaintiffs in error, and the judgment of the district court of Okfuskee county should be affirmed.

PER CURIAM. Adopted in whole.

(37 Okl. 592)

JONES et al. v. HUBBARD.

(Supreme Court of Oklahoma. June 11, 1913.) Commissioners' Opinion, Division No. 1. Error from District Court, Okfuskee County; John Caruthers, Judge.

Jones and others. Judgment for plaintiff, and Action by Charles J. Hubbard against John defendants bring error. Affirmed.

ROBERTSON, C. This case involves the consideration of the identical question decided by this court in the case of Flesher v. Hubbard (No. 2,768) 132 Pac. 1080, this day decided, not yet officially reported. The decision of that case is conclusive as to the issue herein, and we hereby adopt and promulgate the opinion of that case as and for the opinion in this case. For the reasons assigned, the judgment of the district court of Okfuskee county should be affirmed.

It is contended by defendant that the foregoing allegations are not sufficient to warrant the court in granting the relief prayed for. If the default in the payment of the interest coupon as charged in the petition is a breach of the conditions of the mortgage sufficient to warrant a foreclosure, then the judgment of the trial court should be affirmed, otherwise it should be reversed. The terms of the principal note require the interest to be paid annually. The interest on the principal for one year at 7 per cent. per C. B. Conner, of Okemah, for plaintiffs in annum amounted to $56, which sum was error. C. T. Huddleston, of Okemah, for deagreed to and evidenced by a coupon note fendant in error. attached to the principal note. On June 5, 1910, there became due according to "the terms and tenor of said note the sum of $56." It is provided in the mortgage that: "If said sum or sums of money or any part thereof is not paid when due the holder of said note and this mortgage may elect to declare the whole sum or sums and interest thereon due and payable at once," etc. These notes and the mortgage constitute a single contract, and must be construed so as to give effect to all its parts. While it is true that the notes provide for interest after maturity at the rate of 10 per cent. per annum, that fact will not warrant us in holding that such provision is an option in favor of the payor giving him the right to retain the entire loan until the principal sum becomes due, with all interest to be com- 1. EVIDENCE (§§ 448, 459*)-PAROL — CONputed at 10 per cent. instead of 7 per cent. per annum. This latter clause was inserted in the note for the benefit of the payee, and was not inserted for the purpose of extending the time for the payment of the interest until the principal became due. To hold otherwise would destroy the plain provisions of

PER CURIAM. Adopted in whole.

(37 Okl. 778) COHEE et al. v. TURNER & WIGGINS. (Supreme Court of Oklahoma. May 20, 1913. Rehearing Denied June 30, 1913.)

TRACTS.

(Syllabus by the Court.)

written obligation as to whether the signers When the question arises in a suit on a executed the same in a representative capacity or as individuals, and anything appears on the face of the instrument which suggests a doubt as to the party bound, or as to the character in which the signers acted, parol evidence is competent, as between the original

2. PLEADING (236*)-APPEAL AND ERROR (the premises, do hereby as such, warrant and

existence, and these men had authority to bind it, they did so. But it is further clear that they went further than this, and, by the very letter of the bond, bound themselves, as individuals, in specific language, in addition to attempting to bind the so-called association and the members thereof. Bad grammar does not necessarily render the meaning of a writing ambiguous or doubtful.

gust, 1908, the defendants filed verified answers, denying that they constitute an executive committee or that they made the contract, and that if their names appeared on it they had been fraudulently placed thereon. Without withdrawing the averments of their former answer, in which it was denied that they constituted or acted as an executive committee, or that they made the conThis association was composed of a numer- tract, defendants on May 18, 1910, filed a ous and widely scattered class of colored second verified answer, in which it was people; the individuals were unacquainted specifically admitted that they did execute with each other in the main, but had a com- the contract in suit, but that they executed mon legal status relative to certain rights the same in their official capacity as memand claims of interest in the property of bers of the executive committee. This secthese Indian tribes. The association, so call- ond answer was in direct contradiction of ed, does not appear to have had any corpo- the first, both being verified. The request to rate or other legal status. The 12 individ- amend does not indicate the matter which uals who signed the contract evidently en- they wished to assert, except fraud generaltered into the same in their own interest and ly stated; but, in examining the testimony in the interest of those persons similarly situ- preceding the offer, it appears the defendated. And when the contract was reduced to ants wanted to prove that they did not unwriting and executed by these individuals it derstand what they were signing and that seems entirely clear and free from doubt, con- the terms of what they signed had been missidering only the language used, that they represented to them. This would have been particularly intended to individually and per- to again contradict their sworn answers, and sonally guarantee the payment of the amount would, of course, have necessitated a misagreed upon to the attorneys employed. A trial and the continuance of the case. From careful study of the language used, we think, a careful perusal of the record it is doubtmakes this conclusion manifest. It is ear- ed if the offer was made upon any substannestly urged that it would be unreasonable tial basis, or that any proof would have been to think that they intended to bind them- forthcoming in substantial support of the selves to pay a sum equal to $1 per capita proposed amendment had it been allowed. of the freedmen enrolled. But this argument It has been decided many times that the has no application, if they did by this writ- question of allowing amendments is addressing bind themselves. But if it had applica-ed to the sound judicial discretion of the tion, we are not so sure that it would be court, and that the action of the court in aleither unreasonable or absurd to suppose they intended it. Nor would we be compelled to ascribe to them motives of pure benevolence or philanthropy. In assuming the relations they did, a rare field of speculation and possibility of exploitation was opened In their guaranty of $1 -per capita, they had excuse, and perhaps could justly have collected a much more substantial sum from the many interested but less active parties.

up to these leaders.

[2] 2. The point is urged that the court abused its discretion in refusing to permit

lowing or refusing same will not be disturbed except where this discretion has been abused. Kuchler v. Weaver, 23 Okl. 420, 100 Pac. 915, 18 Ann. Cas. 462; Swope v. Burnham, 6 Okl. 736, 52 Pac. 924; Consolidated, etc., Co. v. Burnham, 8 Okl. 514, 58 Pac. 654; Tecumseh, etc., Bank v. Maddox, 4 Okl. 583, 46 Pac. 563.

While our statutes and policy favor very liberal rules relative to amendments of pleadings, in furtherance of justice, yet these far as to work injustice to the other side of rules were never intended to be extended so the case, or to make of court proceedings a

farce.

an amendment near the close of the trial. The request and refusal appears in the recThe court did not abuse its discretion. ord as follows: "At this stage of the proceedings, the counsel for the defendant mov-ered. The instructions complained of were The other objections need not be consided the court to permit them to amend their not objected to. Neither was objection takpleadings so as to show proper and necessary en to the refusal to give certain other inallegations of fraud of all of the defendants, structions. which motion the court denies because of cussed in the briefs and are therefore treatThe other points are not disthe status of the case at this particular ed as abandoned. time, as made by pleadings long pending in the court."

This suit was filed in June, 1908. In Au

The cause should be affirmed.
PER CURIAM. Adopted in whole.