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it is no longer open to discussion. There is
no dissent in the adjudged cases, and it is
unnecessary to do more than cite the author-
ities." Then follows a long line of cases
which seem to sustain the principal case.
[4] Having decided that a turf exchange

on the part of the plaintiffs in error that and uniformly been held by the courts that the making of bets and wagers in these turf exchanges does not constitute gambling, or that the exchanges themselves are not public nuisances. If we understand counsel correctly, their contention is that, notwithstanding a turf exchange may be a common nuisance, which may be abated by injunction, is a public nuisance, there is little more to before such a course can be followed it is incumbent upon the plaintiff, seeking such redress, to present to the court sufficient grounds of an equitable nature before that remedy is available. They say in their brief: "We concede that, if the defendants in error had shown in their petition, for a writ of injunction in this case, that they had exhausted or resorted to the criminal law with out effect, then in that event the defendants in error might have had some cause to ask for the extraordinary remedy by injunction." [3] In our opinion, keeping a turf exchange, where persons daily congregate for the purpose of making bets and wagers on horse races run in other states or countries, is, under our statute, a public nuisance. Reaves v. Territory of Oklahoma, 13 Okl. 396, 74 Pac. 951; James et al. v. State, 4 Okl. Cr. 587, 112 Pac. 944, 34 L. R. A. (N. S.) 515, 140 Am. St. Rep. 693; 14 Am. & Eng. Enc. of L. 702. The text of the Encyclopedia reads as follows: "One who maintains a room at or near a race course, or elsewhere, at which the business of book-making on horse races or other similar events is carried on, and to which persons resort for such purpose, is guilty of maintaining a nuisance." A great many cases are cited in support of the text.

In State v. Nease, 46 Or. 433, 80 Pac. 897, the question decided was very similar to the one involved herein. The court says: "The evidence shows that he was the keeper and proprietor of what is called a 'turf exchange,' or poolroom, on one of the principal thoroughfares in the city, at which persons daily congregated for the purpose of betting upon horse races run in other states, and reported to him by telegraph. The odds on every horse in any race of importance about to be run, as made at the race course, were reported to the defendant before the race, and posted for the information of the public on a blackboard in the room used by him. A person desiring to bet would select a horse, pay the amount of his bet, according to the odds appearing on the blackboard, and receive from the defendant a ticket showing the sum to which he would be entitled in case the horse selected by him won. As soon as the race was run, the result would be immediately telegraphed to the defendant, and he would pay the amount coming to the holders of tickets on the winning horse, less a certain per cent. as commission. That such a house is a gaming or gambling house, and punishable as a nuisance at common law, whether betting on a

be said. The statute (section 5771, Comp. Laws 1909) provides that an injunction may be granted to enjoin and suppress the keeping and maintaining of a common nuisance, and we can think of no good reason, and none has been suggested by counsel, why this remedy is not available, notwithstanding the criminal laws of the state, to which the keepers of such places are also answerable, have not first been resorted to. As was said by Judge Richardson in James v. State, supra: "There is no doubt but that the making of bets and wagers in these exchanges constitutes gambling, and the exchanges themselves are common gambling houses, and are therefore nuisances per se. Rex v. Rogier, 1 B. & C. 272, 8 E. C. L. 117, 2 Dowl. & R. 431; U. S. v. Dixon, 4 Cranch, C. C. 107 [Fed. Cas. No. 14,970]; Vanderworker v. State, 13 Ark. 700; State v. Layman, 5 Har. (Del.) 510; State v. Black, 94 N. C. 809; People v. Weithoff, 51 Mich. 203 [16 N. W. 442], 47 Am. Rep. 557; Anderson v. State (Tex. App.) 12 S. W. 868. See, also, 14 Am. & Eng. Enc. L., page 694, and cases there cited. They are such under our statutes. Under section 5771 of Snyder's Comp. L Okla., their operation may be enjoined; they may be abated as provided in chapter 71 of said laws; and under section 2465 of said laws their operation constitutes a misde meanor, and those who conduct them may be prosecuted criminally and have inflicted upon them the punishment prescribed by section 2032."

Counsel for plaintiffs in error cite State ex rel. West, Attorney General, v. State Capital Co., 24 Okl. 252, 103 Pac. 1021, as sustaining their contention. We do not believe that case is in point. It was not contended in that case, nor could it be, with any show of reason, that the offense sought to be enjoined constitutes a public nuisance. The offense there, publishing whisky advertisements, was an ordinary misdemeanor, and the court very properly held: "To determine that the advertising or soliciting the sale or purchase of intoxicating liquors to be made without the state was a nuisance, within the purview of the foregoing statutes, would be tantamount to holding that every crime was a nuisance, and unless such act constitutes a nuisance, in the light of the case In re Allison [48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684], cited and relied upon by counsel for the state, injunction would not be a proper remedy."

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(37 Okl. 322)

MISSOURI, K. & T. RY. CO. v. LAWSON. (Supreme Court of Oklahoma. May 6, 1913.) (Syllabus by the Court.)

1. JUSTICES OF THE PEACE (§ 97*)-ACTION ON ACCOUNT STATED-VERIFICATION.

To avoid the necessity of proving an account sued on in the justice court, it is not sufficient to verify the bill of particulars generally. The statute (Comp. Laws 1909, § 6348) contemplates an account stated, duly verified by affidavit and attached to the bill of particulars, and an allegation of the bill of particulars of the correctness of the account. Buchanan v. Statler & Herndon, 32 Okl. 206, 120 Pac. 658.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 333; Dec. Dig. § 97.*] 2. JUSTICES OF THE PEACE (§ 103*)-ACTION ON ACCOUNT-JUDGMENT ON THE PLEADINGS.

When there is no sufficient verification of the account, and no sufficient allegation of its correctness, it is error to sustain a motion for judgment on the pleadings. Buchanan v. Statler & Herndon, 32 Okl. 206, 120 Pac. 658.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 344; Dec. Dig. § 103.*] Commissioners' Opinion, Division No. 1. Error from Coal County Court; R. H. Wells, Judge.

Action by M. A. Lawson against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Clifford L. Jackson, W. R. Allen, and M. D. Green, all of Muskogee, for plaintiff in error. P. E. Wilhelm, of Coalgate, for defendant in error.

ROBERTSON, C. This action was originally begun in the justice of the peace court of Coal county, where, after trial on the merits, judgment was entered in favor of the plaintiff. Defendant took an appeal to the county court.

The bill of particulars, omitting caption, is in words and figures as follows:

judgment against said defendant for the sum
of $59.90, and for a reasonable attorney's fee
of $15, and for his cost herein expended, and
with interest on the sum of $59.90, at the
rate of 6 per cent. from the 10th day of
March, 1910.
"[Signed] P. E. Wilhelm,

"Atty. for Plaintiff. "State of Oklahoma, Coal County.

"M. A. Lawson states that he is the plaintiff, and that he is over 20 years of age, and that the facts set forth in the above foregoing petition are true.

"[Signed] M. A. Lawson. "Subscribed and sworn to before me this the 10th day of March, 1910.

"R. B. Davidson,

"Justice of the Peace."

No answer was filed in the justice court, nor was any demanded by the plaintiff or ordered by the justice. In the county court, before trial, plaintiff filed a motion for judgment on the pleadings. Defendant opposed this motion for the reason that no answer was required under the law, unless demanded by the plaintiff, or ordered by the court. The motion for judgment on the pleadings was sustained and judgment entered in accordance with the prayer of the bill of particulars. Thereafter the defendant moved to set aside the judgment, which motion was denied by the court, and defendant brings this appeal and assigns as error: "First, the court erred in sustaining defendant in error's motion for judgment on the pleadings; second, the court erred in rendering judgment in favor of the defendant in error and against the plaintiff in error; third, the court erred in overruling plaintiff in error's motion to set aside the judgment on the pleadings."

[1, 2] The identical question involved herein was considered by this court in Buchanan, V. Statler & Herndon, 32 Okl. 206, 120 Pac. 658, wherein it was specifically held that a bill of particulars, verified such as the one hereinabove set out, would not authorize or sustain a judgment on the pleadings. It was there pointed out that section 6348, Comp. Laws 1909, which reads as follows: "In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or any appointment or authority, or the correctness of an account duly verified by the affidavit or affirmation of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the opposite party, his agent or attorney"-did not warrant the court in rendering a judgment on the pleadings where the only pleading in the case was a bill of particulars, verified in general terms.

"First, that the defendant is a corporation duly organized under the laws of Missouri and is operating a line of its railroad in Coal county, Okl., and has an office and an agent in Coalgate, Coal county, Okl., upon whom service may be had; second, that the defendant is indebted to him in the sum of $59.90 for work and labor performed by plaintiff at the instance and request of said defendant as a coal miner in defendant's mine at No. 17 in Coal county, Okl.; third, that the said sum of $59.90, due plaintiff by defendant, is for wages, and that the same is due plaintiff and is payable at the company's office in Coalgate, Coal county, Okl.; fourth, that the said sum of $59.90, due plaintiff, is wrongfully held by defendant, the M., K. & T. Ry. Company, that the same is exempt from attachment or garnishment, and for labor performed within three months last past; fifth, that the said debt is just, due, and unpaid, and there are no offsets or It was said by the court in Myers v. First credits thereon. Wherefore plaintiff prays Presbyterian Church, 11 Okl. 544, 69 Pac.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 132 P.-21

Sam V. O'Hare, of Muskogee, for plaintiff in error. Benj. Martin, Jr., of Muskogee, for defendant in error.

874: "To avoid the necessity of proof of an | plaintiff, and defendant brings error. Disaccount declared on the petition and denied missed. by the answer, it is not sufficient to verify the petition generally. The statute contemplates an account stated, duly verified as to its correctness and attached to the petition, and the petition should especially allege the correctness of the verified account so at

tached."

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ROBERTSON, C. Defendant in error is here insisting that this appeal should be dismissed, for the reason that this court has no

jurisdiction, for that the case-made was not prepared, served, and signed within the extension of time allowed by the trial court.

The record shows that the motion for a

new trial was overruled November 28, 1910, and on the same day an order was entered extending the time in which to make and serve a case-made for 60 days. This is the only order ever entered extending the time. This extension expired January 28, 1911. The case was served February 20, 1911. There is what purports to be a stipulation between the parties on file, wherein they agree to an extension; but this stipulation was not presented to nor acted upon by the court. It is the province of the court to make orders extending the time in which to make and serve a case-made. Hence it necessarily follows, from the disclosure of the record as above set out, that the case-made was not prepared or served within the time fixed by law, or the order of the court, and the same is wholly insufficient to confer jurisdiction upon this court. Foulds v. Hubbard, 128 Pac. 108; Heath v. Tanner, 30 Okl. 598, 120 Pac. 636; Carr v. Thompson, 27 Okl. 7, 110 Pac. 667; Cowan v. Maxwell, 27 Okl. 87, 111 Pac. 388; McCoy v. McCoy, 27 Okl. 371, 112 Pac. 1040.

For this reason the appeal should be dismissed.

PER CURIAM. Adopted in whole.

(37 Okl. 368)

(37 Okl. 363)

CHESTNUTT v. PATTERSON MERCAN-
TILE CO.

(Supreme Court of Oklahoma.

May 6, 1913.)
(Syllabus by the Court.)
APPEAL AND ERROR (§ 564*)- DISMISSAL-
FAILURE TO SERVE CASE-MADE.

A party desiring to appeal has three days, by statute, in which to serve a case-made, after the overruling of the motion for a new trial has been entered; and unless such case-made is served within such time, or within the extension properly allowed by the court, the appeal will be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2501-2506, 2555-2559; Dec. Dig. 564.*]

Commissioners' Opinion, Division No. 1. Error from District Court, Muskogee County; John H. King, Judge.

Action by the Patterson Mercantile Company against H. M. Chestnutt. Judgment for

REYNOLDS v. ANDERSON. (Supreme Court of Oklahoma. May 6, 1913.) (Syllabus by the Court.)

1. BROKERS (§ 54*)-REAL ESTATE BROKERSRIGHT TO COMMISSION.

A real estate agent in order to recover commission for the sale of real estate must produce a purchaser, who is ready, willing, and able to buy, upon the terms and conditions agreed upon.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]

2. BROKERS (§ 54*)-SALE OF REALTY-RIGHT
TO COMMISSION.
The only legal evidence of his intent to
comply with those conditions is his written
agreement to do so. Hence a real estate agent
is not entitled to recover a commission for the
sale of real .estate, unless he has also (in addi-
tion to the foregoing requirements) procured
who is ready, willing, and able to buy, an en-
and presented to the seller, from the purchaser,
forceable contract in writing, binding him to

take the land according to the terms and condi- [in Oklahoma City in trade and $6,500 in adtions agreed upon.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]

Commissioners' Opinion, Division No. 1. Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by C. S. Anderson against H. C. Reynolds. Judgment for plaintiff, and defendant brings error. Reversed.

Harry White and Phillip E. Mann, both of Oklahoma City (S. A. Horton, of Oklahoma City, of counsel), for plaintiff in error. H. M. Carr, of Pauls Valley, for defendant in error.

dition, $5,000 of which was to be in cash secured by a first mortgage on the farm, and the balance of $1,500 to be secured to Reynolds by second mortgage on the farm.

It also appears that while Reynolds was in Stratford, about this time, he called on Anderson and talked the matter over with him, and Anderson drew up a deed for the land, and Reynolds signed the same and put the deed in his pocket with the evident intention of taking it to his wife and securing her signature. Reynolds and his wife were living apart during this time. The wife refused to sign the deed, leastwise Reynolds never delivered it to Kandt, and Kandt, after waitROBERTSON, C. This is an action by C. ing for two months, or more, notified ReynS. Anderson against H. C. Reynolds to re- olds that on account of his failure to decover commission alleged to be due for the liver the deed with his wife's signature that sale of real estate. The petition charges that the deal was off. The evidence further Anderson was a real estate agent living at shows that Anderson had nothing whatever Stratford, Okl.; that Reynolds owned a to do with the trade; that he never saw farm in Garvin county that he wanted to Kandt and never had any correspondence sell; that he listed the same with Anderson with him; that Witt & Grubb negotiated the at $65 per acre, or a total of $12,350, and deal. Anderson claims his commission solewas to pay Anderson 5 per cent. of the ly by reason of his oral contract to sell the amount realized from the sale of the land farm; he does not claim to have made the when a sale had been made. Anderson charg- sale, or to have produced the purchaser, ales that immediately upon the listing of the though he insists that he had the exclusive farm with him, he proceeded to advertise agency for the sale of the farm. It is furththe same in newspapers and by circulars; er shown that after this Reynolds sold the that in a few months he secured a buyer for land himself to another party. There was the land at the agreed price, drew a deed for no contract in writing of any kind or charthe same which was signed by defendant, acter between the prospective purchaser, but not by his wife, she refusing to sign it; | Kandt, and the owner, Reynolds. The that the prospective purchaser waited for amended petition was not challenged by motwo months for the wife to sign the deed, but that defendant failed and refused to deliver the deed with his wife's signature, but that he (Reynolds) subsequently sold the farm to another person; that by reason of his failure to complete the sale he became liable to plaintiff in the sum of $617.50 as commission. To this petition defendant filed a general denial. The case was tried to a jury and resulted in a verdict for the plaintiff for the full amount sued for. The evidence shows that the defendant listed his farm by oral contract with the plaintiff as alleged in the petition, and that the plaintiff advertised the same and endeavored to secure a purchaser; that during the early fall of 1909 a real estate firm in Oklahoma City, Many alleged errors are raised and urged by the name of Witt & Grubb, wrote to An- by counsel in their petition in error and derson, the plaintiff, that they had a buyer brief, and each specification has been given for the farm and asked him to divide the careful consideration, and aside from one commission with them in case they furnished assignment, which will be noted hereafter, a purchaser, to which he agreed; that he we do not think it necessary to give them also received a letter from the defendant any consideration, inasmuch as the disposiabout this time in which he stated that he tion of the one referred to will effectually could sell the farm if Anderson would divide dispose of the case. The alleged error to the commission with Witt & Grubb; that which reference has been made may be conthe purchase was to be made by a man nam-sidered under the first, second, third, fourth, ed W. C. Kandt, who was negotiating for the or eighth assignment of error, and relates farm through the firm of Witt & Grubb; that to the insufficiency of the allegations of the defendant was to take a house and lot the petition to state a cause of action, and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

tion or demurrer; no objection was made to the introduction of testimony thereunder, nor was there any request for an instructed verdict. The petition is barren of any allegation with reference to a written contract of purchase from Kandt, nor is it anywhere claimed by plaintiff that any such contract was entered into between Kandt and Reynolds, or that Kandt ever offered such a contract to Reynolds for his signature, or that any act of his (Kandt's) would excuse him from the provisions or requirements of the statute of frauds, or give Reynolds an opportunity to compel specific performance from him in case a deed had been offered to him for the farm.

was not conclusive evidence as to Reynolds' intention at that time, inasmuch as the deed was never delivered, and Kandt refused to accept the same without the signature of Reynolds' wife. Under the authority of Gilliland v. Jaynes, supra, and the caser therein cited, there never was a complete consummation of the proposed contract between Reynolds and Kandt, and, of course, Anderson had no cause of action at the time this suit was instituted, even conceding that it was through his efforts that the parties were brought together. Kandt did nothing that would take his proposed agreement out of the statute of frauds, or give to Reynolds a cause of action for specific performance against him. Before a cause of action existed in Anderson's favor and against Reynolds, it was the duty of Anderson, under the terms of his contract, to have secured a binding and enforceable contract in writing from Kandt and to have presented the same to Reynolds, when, if he refused to accept such offer, a cause of action would have accrued, and Reynolds would have been liable for the commission. We need but refer to the most excellent reasons, given by Judge Ames, in Gilliland v. Jaynes, supra, for the necessity of these requirements, and the present case is but an emphasis for the rule there announced. Under Anderson's claims in the present case he insists on a commission for the sale of the farm when he had, so far as we are able to see, absolutely nothing to do with procuring the prospective purchaser; his contract with Reynolds was oral, and its terms cannot be ascertained, for Anderson claimed it gave to him the exclusive right to sell the farm, while Reyn

the total failure of proof on the question | office ostensibly to secure his wife's signaof the existence of a binding or enforcea- ture thereto; but the signing of the deed ble contract of sale between Reynolds, the owner, and Kandt, the alleged prospective purchaser. In fairness to the lower court it may be said that while this question was not presented at the trial, except inferentially, yet it is urged here by plaintiff in error. [1] The law on this point in this state had not then been determined; but, since the trial of this cause in the district court, this question has been presented to, considered, and passed upon by this court, and the law on this question settled, as may be seen by reference to the case of Gilliland v. Jaynes, 129 Pac. 8. In that case, the facts of which are not wholly dissimilar to those in this, the court says: "We are inclined to believe that the weight of authority, as well as the better reason, supports the rule that, in order to recover his commission, the real estate agent must produce a purchaser who is ready, willing, and able to buy, and that the evidence of this fact must be such as would be recognized in a court of justice. The sale of real estate is an important step, which the law requires to be taken in writing, and it is explicitly provided that no contract or agreement for the sale of real estate shall be valid unless it is in writing. These safeguards are designed to prevent fraud, and we are inclined to believe that the rule we adopt will have a tendency to prevent fraud, and will not work any hardship in a just case. If the real estate agent has a purchaser who is ready, willing, and able to buy, it will not be difficult for him to have such a purchaser sign an agreement to buy, which will become a valid, binding, and enforceable contract as against the purchaser. On the other hand, if the real estate agent merely procures a man who says he is will-olds claimed the very opposite. This quesing to buy, his statement does not bind him, and within legal contemplation he has done nothing which the law recognizes. The best evidence of his being willing to buy is his written agreement to do so. In fact, his written agreement is the only thing which can be enforced against him, and his mere word of mouth that he is willing to buy would not be recognized in an action against him to compel specific performance. It would not even be competent evidence tending to show that he had agreed to buy."

It must not be forgotten that the record in this case shows that Witt & Grubb procured Kandt to make the offer of purchase; Anderson never saw or talked to Kandt; the contract between Anderson and Reynolds was for the sale of the premises, while the prospective purchaser furnished by Witt & Grubb depended on a trade for the same. To be sure it seems as though Reynolds was willing to make the trade, and as an incident showing such intent may be cited the fact that Anderson drew a deed from him to Kandt, which Reynolds signed, put it in his

tion was not decided by the general verdict of the jury; it was not an issue in the case, was not alleged in the petition, or treated in any manner by the court's instructions. So, too, there is a diversity of opinion between Reynolds and the other parties as to the terms of the proposed trade with Kandt. Were it not for the law as announced in the case above, we might very properly leave all these collateral questions for the determination of the jury; but when it is the law that these contracts shall be in writing in order, among other things, that the intent of the parties may be ascertained without doubt or speculation for the very purpose of preventing misunderstandings and attendant lawsuits, and no compliance with such law has been attempted by the parties, it is, and should be, the policy of the courts to refuse to interfere in their quarrel, but to leave them where they were before this action was begun. It would impose no hardship on any one to comply with the requirements of the law as hereinabove announced, and, as is evidenced by the instant case, it would pre

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