v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 911, 41 Am. Rep. 41; Kreuziger v. Chicago & N. W. Ry. Co., 73 Wis. 158, 40 N. W. 657; Haverly v. State Line & S. R. Co., 135 Pa. 50, 19 Atl. 1013, 20 Am. St. Rep. 849; Fent v. Toledo, etc., Ry. Co., 59 Ill. 349, 14 Am. Rep. 13; Webb v. Rome, W. & O. R. Co., 49 N. Y. 420, 10 Am. Rep. 389; Cole v. German Savings & Loan Society, 59 C. C. A. 593, 124 Fed. 113, 63 L. R. A. 416; East Tenn., V. & G. R. Co. v. Lockhart, 79 Ala. 315; Winkler v. St. L., I. M. & S. R. Co., 21 Mo.. App. 99; Rawlings v. Wabash R. Co., 97 Mo. App. 511, 71 S. W. 535; Georgia Ry. & E. Co. v. McAllister, 126 Ga. 447, 54 S. E. 957, 7 L. R. A. (N. S.) 1177; Houston & T. C. Ry. Co. v. McKenzie (Tex. Civ. App.) 41 S. W. 831; Larson v. Minneapolis & St. L. R. Co., 85 Minn. 387, 88 N. W. 994; Thompson on Negligence, p. 1286; Shearman & Redfield on Negligence, § 55.

[7] That plaintiff was not afforded a reasonable opportunity in which to alight from the train at Durwood finds support in the testimony of several witnesses, and, while the testimony is conflicting upon that issue, we are concluded by the verdict of the jury. The train stopped at a junction point one mile beyond the station, where plaintiff and the witness Gilbreath got off the train. This was about 3 o'clock in the afternoon on January 28th. There was a raw, chilling wind blowing from the west, which plaintiff was compelled to face on her return walk to the station. There was no habitation at or near the junction, and no accessible means of conveyance. Plaintiff had two large bundles containing shoes and dry goods purchased by her while at Ardmore, each weighing from 10 to 15 pounds. It was shown that plaintiff was a delicate woman, and that the railway track along which she walked was rough, such it was said "as railroads usually are." Plaintiff was accompanied on her return by Mr. Gilbreath, who carried one of the bundles for her. She lived about a mile from the station, and had walked from her home to the station that morning, and, as we gather from the record, walked from the station to her home on her return in the evening. It was claimed by the plaintiff that it was very warm in the car in which she was riding, and that as a result of her walk she contracted a bad cough and a severe cold, and was partially incapacitated for a time from performing her household duties. This testimony was not denied. Where sickness is the natural, direct, and immediate consequence of the wrongful act of a railway company in carrying a passenger past the point of destination, it is a proper element of damages. East Tenn., V. & G. R. Co. v. Lockhart, 79 Ala. 315; L. & N. Railroad Co. v. Dancy, 97 Ala. 338, 11 South. 796; Case v. Delaware, L. & W. Ry. Co., 191 Pa. 450, 43 Atl. 319; Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 911, 41 Am.

When plaintiff got off the train at the first opportunity, no alternative was left her but to get back to the station on foot. To this course she was constrained by the defendant's neglect of duty. That duty attended her, however, and every step taken by her in her effort to reach the station. That plaintiff, when wrongfully carried by the station, would seek to return thereto with ordinary care and caution by the most practical route, was to be expected, and ought to have been foreseen by defendant's employés. It does not appear that defendant company could not have backed its train up to the station as requested by plaintiff. The kind of weather, the lack of means of return transporation or conveyance, were facts known to the carrier's employés, and if there was danger of illness or other misfortune from exposure and exertion rendered necessary by the carrier's culpable acts, it ought to have been foreseen by defendant's employés; and if such illness in fact followed, such injury was the proximate, because the natural, although not the necessary or inevitable, result of the defendant's negligence, and for it the defendant ought to be held responsible. Adams v. Missouri Pacific Ry. Co., 100 Mo. 555, 12 S. W. 637, 13 S. W. 509; Winkler v. St. Louis, I. M. & S. Ry. Co., 21 Mo. App. 99; Kentucky & Ind. Bridge & Railway Co. v. Buckler, 125 Ky. 24, 100 S. W. 328, 30 Ky. Law Rep. 1086, 8 L. R. A. (N. S.) 555, 128 Am. St. Rep. 234; Dawson v. Louisville & N. R. Co., 4 Ky. Law Rep. 801; Kentucky Central Ry. Co. v. Biddle, 34 S. W. 904, 17 Ky. Law Rep. 1363; New York, C. & S. L. Ry. Co. v. Doane, 115 Ind. 435, 17 N. E. 913, 1 L. R. A. 157, 7 Am. St. Rep. 451; Cincinnati, H. & I. R. Co. v. Eaton, 94 Ind. 474, 48 Am. Rep. 179; Case v. Delaware, L. & W. R. Co., 191 Pa. 450, 43 Atl. 319; Southern Ry. Co. v. Hobbs, 118 Ga. 227, 45 S. E. 231, 63 L. R. A. 68; Texas & P. R. Co. v. Cole, 66 Tex. 563, 1 S. W. 629; St. Louis S. W. R. Co. v. Ricketts et al., 96 Tex. 68, 70 S. W. 315; St. Louis, I. M. & S. R. Co. v. Knight, 81 Ark. 429, 99 S. W. 684; Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 911, 41 Am. Rep. 41. In the latter case, upon the particular question, it was observed: "The defendant must therefore be held to have caused the plaintiffs to make the journey as the most prudent thing for them to do under the circumstances, and, we think, under the rules of law, the defendant must be liable for the direct consequences of the journey. Had the defendant wrongfully placed the plaintiffs off the train in the open country, where there was no shelter, in a cold and stormy night, and on account of the state of health of the parties in their attempts to find shelter they had become exhausted and perished, it would seem quite clear that the defendant ought to be liable. The wrongful act of the defendant would be the natural and direct cause of

Legislature. On March 2, 1909 (article 2, c. 14, S. L. 1909), said court was continued, and by express terms was given exclusive appellate jurisdiction in all criminal cases. By section 7 of the latter act it is provided: "The Criminal Court of Appeals, shall have exclusive appellate jurisdiction in all criminal cases appealed from county and district courts in this state, and such other courts as may be established by law." Section 9 is as follows: "The Criminal Court of Appeals shall have exclusive appellate jurisdiction coextensive with the limits of the state in all criminal cases, in the manner, and under such regulations as may be prescribed by law." This court is therefore without jurisdiction to entertain the appeal. Byers v. Territory, 24 Okl. 811, 105 Pac. 998; Ex parte Justus, 26 Okl. 101, 110 Pac. 907; Brown v. State, 6 Okl. Cr. 442, 119 Pac. 447; State ex rel. Eubanks v. Cole, 4 Okl. Cr. 25, 109 Pac. 736.

The appeal should be dismissed.

PER CURIAM.

(37 Okl. 297)

Adopted in whole.

FREY V. FAILES. (Supreme Court of Oklahoma.

To present for appellate review the question of misconduct of counsel in making improper statements to the jury in his argument. there must be an objection seasonably made and an exception properly taken, if it is overruled."

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1500; Dec. Dig. § 207.*]

Commissioners' Opinion, Division No. 1. Error from District Court, Alfalfa County: James W. Steen, Judge.

Action by Robert Failes against Andrew Frey. Judgment for plaintiff, and defendant brings error. Affirmed.

A. C. Beeman, of Cherokee, for plaintiff in error. George W. Partridge, of Cherokee, for defendant in error.

(Syllabus by the Court.) 1. SALES (§ 261*)-"WARRANTY" WHAT CON

STITUTES.

In order to constitute an express warranty, no particular language is necessary. It is not required that it shall be in writing, or be made in specific terms: and it is not at all necessary that the word "warrant" or "warranty" shall be used. Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during the sale negotiations and as a part of the contract, designed by him to induce the action of the purchaser, and actually relied up; on by the latter in making the purchase, will be deemed to be a "warranty."

[Ed. Note. For other cases, see Sales, Cent. Dig. $8 727-735; Dec. Dig. § 261.*

the time of the sale the defendant warranted the carriage to be "new, sound, and in firstclass condition"; that by agreement of the parties the defendant gave to the Alfalfa County National Bank his promissory note for the purchase price of the carriage, which was afterwards paid; that plaintiff, with the defendant's permission, left the carriage at the time of its purchase in the defendant's warehouse, and upon calling for it some time afterwards found that the top was torn, and claimed that there had been a breach of the warranty of quality, and requested the defendant to make good his warranty, which he refused to do; that thereupon defendant,

2. SALES (§ 262*)-WARRANTY-INSPECTION.

The fact that the purchaser had an opportunity to examine the carriage and in fact made a partial inspection, but without discovery of the defect, where the contract of sale is accompanied by an express warranty of quality, does not necessarily do away with the effect of the warranty. He is not bound to exercise his judgment or skill, but may rely on his warranty. [Ed. Note. For other cases, see Sales, Cent. Dig. 88 736-739; Dec. Dig. § 262.*]

3. SALES (§ 284*)-WARRANTY-CONSTRUCTION. A warranty that a carriage is sound and in

first-class condition is sufficient to include a warranty of quality to all its component parts. [Ed. Note. For other cases, see Sales, Cent. Dig. $$ 803-805; Dec. Dig. § 284.*] 4. PLEADING (§ 367*)-APPEAL AND ERROR (§ 960*)—MOTION TO MAKE CERTAIN-DISCRE

TION.

A motion to make more definite and certain is addressed largely to the discretion of the court; and its ruling thereon will not be re

on account, refused to let plaintiff have possession of the carriage. It was contended on the part of the defendant that the only warranty made by him was that the carriage was true to the manufacturer's name. and carried with it the manufacturer's warranty as to workmanship and material used in its construction. The defendant denied that he refused the plaintiff possession of the carriage at the time it was called for.

It is first urged that the court erred in overruling the defendant's demurrer to the plaintiff's testimony. This contention cannot be sustained, as there was abundant evidence on the part of plaintiff that the carriage was not in first-class condition, but that the carriage top was torn at the time of the sale. There was testimony that the defendant warranted the vehicle to be a first-class carriage, all right in every way, and in first

The next objection, that the plaintiff was not permitted to answer a question propounded to him on cross-examination by counsel for defendant, is unworthy of consideration. Either the same, or substantially the same, question had been repeatedly asked and answered by the same witness.

[1, 2] It is next insisted that the court erred in its instructions to the jury. Instruction No. 4 is as follows: "You are instructed that to constitute a warranty or guaranty it is not necessary that the word 'warranty' or 'guaranty,' or any particular word or form of words, should be used, but any representation of the quality or condition of the article, so made by the dealer to the purchaser for the purpose of assuring an intending purchaser of such condition or quality as a fact, and thereby to induce him to make a purchase, will be an express warranty, if accepted and relied upon by the purchaser." A very similar instruction was approved by this court in Woolsey v. Zieglar, 32 Okl. 715, 123 Pac. 164, where it was said: "In order to constitute an express warranty, no particular language is necessary. It is not required that it shall be in writing, or be made in specific terms; and it is not at all necessary that the word 'warrant' or 'warranty' shall be used. Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during the sale negotiations, and as a part of the contract, designed by him to induce the action of the purchaser, and actually, to some extent at least, relied upon by the latter, in making the purchase, will be deemed to be a warranty. Mechem on Sales, § 1235; Tiffany on Sales, p. 162; Beach on Contracts, $259; Parsons on Contracts (9th Ed.) p. 579; Hawkins v. Pemberton, 51 N. Y. 200, 10 Am. Rep. 595; Id., 44 How. Prac. (N. Y.) 102; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753; Reed v. Hastings, 61 Ill. 266; Robinson et al. v. Harvey, 82 Ill. 58; Erskine v. Swanson et al., 45 Neb. 767, 64 N. W. 216; Austin v. Nickerson, 21 Wis. 542; Jack et al. v. D. M. & F. D. R. Co., 53 Iowa, 399, 5 N. W. 537; Henshaw et al. v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Smith v. Borden, 160 Ind. 223, 66 N. E. 683. If, therefore, the defendant made representations to the plaintiff upon which he relied, concerning the quality or character of the cow, intended by him to induce the purchase, and which representations were relied upon by the plaintiff, such direct and positive affirmations in law constitute a warranty. In 30 Am. & Eng. Enc. L. 136 it is said: 'Any distinct assertion or affirmation as to the qual

sale, which it may reasonably be supposed was intended to induce the purchase and was relied on by the purchaser, will be regarded as a warranty, unless accompanied by an express statement that it is not intended as such. If the affirmation was made in good faith, it is still a warranty. If made with a knowledge of its falsity, it is none the less a warranty, though it is also a fraud.'" The plaintiff testified unequivocally that he relied upon the defendant's warranty, and not upon his partial examination of the running gears of the carriage. The defect in the carriage was not known to the plaintiff; and, while it might have been discovered by a careful and thorough examination of the entire parts of the carriage, this, in view of the defendant's express warranty, was unnecessary, as he had a right to rely on the terms of the warranty. Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Tacoma Coal Co. v. Bradley et al., 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890; Barnum Wire & Iron Works v. Seley, 34 Tex. Civ. App. 47, 77 S. W. 827; Brown v. Freeman, 79 Ala. 406.

The authorities cited by counsel for plaintiff in error, discussing the rule that there is no implied warranty in regard to defects which are obvious or discoverable on simple inspection, can have no place where the warranty relied upon is express and not implied.

Instruction No. 3, we think, correctly states the law, and was authorized by the evidence. As we have already seen, there was testimony tending to show that the plaintiff warranted the carriage to be "all right" and "in first-class order." Hurst v. Hill, 32 Okl. 532, 122 Pac. 513; Smith v. Justice, 13 Wis. 600.

[3] Defendant requested the giving of an instruction to the effect that a general warranty that the carriage was new, sound, and in good, first-class condition would not cover the defect complained of, unless there was a special warranty as to the top. The instruc-. tion as worded is subject to many objections, but one of which it is necessary to consider. Why a general warranty that the carriage was sound and in first-class condition would not include the carriage top we are unable to say, and counsel have not attempted to enlighten us. If a special warranty as to the top was required, why not a special warranty as to the tires, axles, bed, springs, and all the component parts of the vehicle? This reasoning extended would mean, first, that there should be a general warranty of the carriage as a whole, and, second, a special warranty of each and every part thereof.

[4] It is further urged that the court erred in overruling defendant's motion to make the petition more definite and certain. A motion to make more definite and certain is one addressed largely to the discretion of the trial court, and its ruling thereon will

ties.

Apart from what has been said concerning

the breach of warranty as to the quality

and condition of the carriage, it was alleged in the petition, and shown by the plaintiff's testimony, that the defendant refused to deliver the carriage purchased and paid for by the plaintiff. The measure of damages in such case is one regulated by statute. Section 2896, Comp. Laws 1909, provides: "The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in the case of a wrongful conversion."

[5] Finally, it is urged that a reversal should be had by reason of the misconduct of counsel for plaintiff. It is charged that the offending attorney informed the jury that they were greater than the President of the United States, or in fact any one, thereby causing them to believe that they could disregard aught but their own personal wishes in determining the cause. This expatiating upon, and possible exaggeration of, the jury's high prerogatives was not complained of at the time of its utterance, but by affidavit attached to motion for new trial made three days after the verdict was returned. But this was too late, for to present the question of the misconduct of counsel in making improper statements in arguing the case to the jury there must be an objection seasonably made and an exception properly taken, if the objection is overruled. Coalgate Co. et al. v. Bross, 25 Okl. 244, 107 Pac. 425, 138 Am. St. Rep. 915; Martin v. Hubbard, 32 Okl. 2, 121 Pac. 620.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1795, 1814-1820, 18221835 Dec. Dig. § 327;* Mortgages, Cent. Dig. § 1650.]

T. T. Clark and E. E. Gore, both of Altus, for plaintiffs in error. Everett Petry, of Altus, for defendants in error.

KANE, J. The question herein arises upon a motion by the defendants in error, R. C. Johnson and S. H. Johnson, partners, to dismiss the appeal, as to them, for the reason that they are not necessary or proper parties thereto. The action originally was one wherein the defendant in error the Oklahoma State Bank was plaintiff and the plaintiffs in error herein were defendants. The movants herein intervened, alleging that they were entitled to judgment against the Millers upon a promissory note and the foreclosure of a mortgage upon the property involved in the suit between the bank and the Millers. Thereafter the Millers answered, claiming affirmative relief against the movants. Upon the cause coming on for trial, the movants dismissed their petition in intervention, and the Millers offered no evidence tending to sustain the allegations upon which they based their claim for affirmative relief, and no judgment was rendered in the cause which in any wise affected the controversy between the Millers and the Johnsons. Under this statement of facts, the Johnsons are neither necessary

PER CURIAM. Adopted in whole.

instituted by the Millers.

Their motion, therefore, to dismiss, must be sustained. All the Justices concur.

(38 Okl. 153)

MILLER et al. v. OKLAHOMA STATE BANK et al. (Supreme Court of Oklahoma. May 13, 1913.)

(Syllabus by the Court.)

APPEAL AND Error (§ 327*)-PARTIES.

In an action between the bank and M. and M., J. and J. intervened praying judgment against M. and M. upon a promissory note and the foreclosure of a mortgage upon the property involved in the action between the bank and M. and M. M. and M. answered praying affirmative relief against J. and J. Upon the cause coming on for trial, J. and J. dismissed their petition in intervention and M. and M. offered no evidence tending to sustain the allegations upon which they based their claim for affirmative relief and no judgment was rendered in the cause which in any wise affected the controversy between M. and M. and J. and J.

HOPE v. PECK.

(Supreme Court of Oklahoma. May 13, 1913.)

(Syllabus by the Court.)

1. EVIDENCE (§ 397*)-PAROL-CONTRACTS. Where a contract rests partly in parol and partly in writing, that part which is in writing is not to be contradicted by parol evidence.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1756-1765; Dec. Dig. § 397.*] 2. SALES (8 426*)-BREACH OF WARRANTY— REMEDY OF BUYER.

Where parties to a contract have stipulated what course shall be pursued by the vendee in the event the warranty fails, such provision must be followed by the vendee in seeking to enforce the guaranty.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 1209; Dec. Dig. § 426.*]