the protection of all concerned. But it does not appear that Stone & Fairfax delivered any of the money claimed by them as commissions. It seems, though the record is not clear on the point, that they only delivered the balance after deducting their commissions and probably some other charges and expenses paid in arranging the transactions.

"Under these circumstances the final decree ordering payment of the funds to the parties entitled thereto could not dispose of such of the fund as may have been retained by Stone & Fairfax. To do this it must be made a party. When so made the final decree could be so molded as to settle every matter involved. In this view, the court was right; but we are of the opinion that it should have suspended the hearing and directed that it be made a party defendant. This would have entailed delay, especially if the new party should demand, as it would have the right to do, time to take testimony on the issues in which it is involved.

"Ordinarily the matter of amendment of pleadings in equity, at the time of the hearing, is one of discretion, the exercise of which will not be disturbed without very strong reasons therefor, At the same time it is not unusual to permit an amendment after the cause shall have been taken to an appellate court. Owing to the principle of equity that a cause shall not be finally disposed of without having all parties whose interests might be affected before the court, leave to amend by making new parties is more liberally granted, especially where the necessity therefor has not been suggested, and does not become manifest, before the hearing. We are of the opinion, therefore, that the leave to amend should have been granted in this case when applied for.

"The decree will be reversed, and the cause remanded, with directions to grant the leave to make Stone & Fairfax a party, and for further hearing and a final decree not inconsistent with this opinion, making a disposition of the fund in the possession of the receivers, as well as that which may have remained in the possession of Stone & Fairfax."

In the case of Fidelity & Deposit Co., of Maryland, v. Rankin, 33 Okla. 7, 124 Pac. 71, the Supreme Court of this state said:

"(1) A depositor, having an account with a bank in which he deposited trust funds. drew his check as trustee thereon to pay his private debt to the banker. The banker, with knowledge of the trust, concurred with the depositor in the appropriation by the depositor of the trust in order to pay an individual claim held against him by the bank. Held, that the bank acquires 110 title to said funds as against the true owner.

purpose foreign to the trust, the bank cannot hold the money as against the true owner.

"(a) An action to recover same will lie in favor of the true owner as against the party to whom the trust fund was transferred contrary to the trust."

The judgment of the lower court is affirmed.

1

By the Court: It is so ordered.

KANSAS CITY SOUTHERN R. CO. v.
HURLEY.

No. 8045-Opinion Filed Oct. 31, 1916.
Rehearing Denied Nov. 14, 1916.
(160 Pac. 910.)

Waters and Water Courses-Flowage--
Care Required.

Where a railway company attempts to al ter the course of the natural drainage of a tract of land, it must provide sufficient means for the escape of the flow of such water, and where it attempts to gather up the water into ditches, it must care for it so that it will not do injury to an abutting landowner greater than would have resulted had it not interrupted the natural drainage. 2. Evidence Opinion Evidence-Damages. In an action for damages against a railobjections. the court, over way company. permitted witnesses to testify as to the amount of damages the plaintiff had sustained. Held, error; that the witness should have been required to state the facts, and not conclusions as to the amount of such damage.

Measure

Destruction of

3. Damages
Property-Market Value.

The measure of damages for the destruc tion of property is its reasonable market value at the time and place of its destruction. but if the property had no market value at the time and place, then its value in view of the use to which it was to be put may be recovered.

(Syllabus by Galbraith, C.)

Error from District Court, Sequoyah County: John H. Pitchford, Judge.

Action by W. E. Hurley against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant brings for new and remanded error. Reversed, trial.

Jas. B. McDonough, for plaintiff in error. Jos. I. Pitchford, for defendant in error

Opinion by GALBRAITH, C. The defendant in error, W. E. Hurley, sued the Kansas City Southern Railway Company for damages charged to have been caused by the overflow of surface water. It was charged in the petition that the plaintiff owned lot 3, block 25, in the town of Gans, Sequoyah county, Okla., that he built his home there, made the improvements, and resided there for a number of years, and that the railway company changed the natural drainage of the lot without making proper provision for the escape of the surface water, and thereby caused the same to overflow to the plaintiff's property, to his damage in the sum of $878. The jury returned a verdict for $600, and a judgment was rendered thereon.

There are 52 assignments of error in the petition in error. It will not be necessary to consider these in detail. It is sufficient to say that, although the company denied responsibility for the damage, there was competent evidence tending to show that it was liable. But there was no competent evidence to show the amount of the injury sustained by reason of the overflow. The controlling rule of law has been announced as follows:

"If a railroad attempts to alter the course of a natural drainage of a tract of land, it must provide sufficient means for the escape of the overflow of such water. If the railroad company attempts to gather up the water in the ditches, it is bound to care for it so that it will not do an injury to the abutting owner." Kelly et al. v. Kansas City Southern Railway Co., 92 Ark. 465, 123 S. W. 664.

This rule has been approved by this court in the following cases: C., R. I. & P. R. Co. v. Groves, 20 Okla. 101, 93 Pac. 755, 22 L. R. A. (N. S.) 802, 16 Ann. Cas. 56; Town of Jefferson v. Hicks, 23 Okla. 688, 102 Pac. 79, 24 L. R. A. (N. S.) 214; C., R. I. & P. R. Co. v. Johnson, 25 Okla. 762, 107 Pac. 662, 27 L. R. A. (N. S.) 879; C., R. I. & P. R. Co. v. Davis, 26 Okla. 434, 109 Pac. 214; Gulf, Colorado & S. F. R. Co. v. Richardson, 42 Okla. 457, 141 Pac. 1107; Wichita Falls & N. W. R. Co. v. Stacey, 46 Okla. 8, 147 Pac. 1194.

The character of the evidence given in support of the claim for damages is illustrat ed by the following:

swer the question. A. Well, I hardly knowwithout itemizing it. The Court: That is the way to reach it; itemize it. Witness: Well $250 for the house, $100 for the cellar, $100 for the well, and the potatoes I had were ruined. Q. How much were you damaged by reason of the loss of your potatoes? A. I had a market price on that day of $87.50 on the potatoes that were ruined. They were in the cellar, and they rotted. Then I had $25 worth of canned fruit in there that was broken. Q. Were there any outhouses that were damaged? A. Yes, sir; I had a barn and outhouse. Q. What do you figure the damage was on the outhouse? A. Well, something like $25 on the other place.

*

Q. Were you damaged in any other respect by reason of this overflow? A. Yes, sir: Q. What manner? A. Well, the inconvenience we have been out. We have had to carry water ever since this happened for one block.

* Q. Mr. Hurley, outside of the cellar and well and outhouse, has your lot been damaged in any manner? A. Yes, sir; dam aged for this year; we were unable to have a garden. Q. What do you consider the reasonable damage done to your lot, aside from the cellar and the well and the outhouse, because of this overflow? *** A. I would say $50. Q. Of what does that consist? A. It consists of being without a garden and the stench that was left on my lot. Q. Were you compelled to do anything to keep down the stench? A. Yes, sir. Q. What did you do? A. I used lime there for two or three weeks; I used two barrels under the house and on the lot."

In Tootle et al. v. Kent et al., 12 Okla. 674, 685, 73 Pac. 310, 313, the court, in considering this character of testimony, said:

"This method of proving damages was clearly erroneous. The witness should have been required to state the facts, and not his conclusions, as to the amount of damages he had sustained. He should have been permitted to state the condition, quality, and value of the goods. If any of the goods were destroyed or injured in any respect, that should have been shown. The jury

should have been allowed to draw the conclusion from these facts as to the amount of damages that the plaintiff had sustained in that respect."

In C., R. I. & P. R. Co. v. Teese, 42 Okla. 188, 140 Pac. 1166, 52 L. R. A. (N. S.) 167, the court said in regard to this character of testimony:

"It is apparent that this testimony was not as to a fact, but as to a conclusion. In an action of this character, the plaintiff would be allowed to state facts showing the extent of the damages and other pertinent matters, but it was error for the court to allow the plaintiff to measure his damages in dollars and cents. Such testimony could only be conclusions of the witness and an invasion of the duties belonging to the jury."

A large number of authorities to the same point are collated in this opinion.

In Wichita Falls & N. W. R. Co. v. Gant, 56 Okla. 727, 156 Pac. 672, the third paragraph of the syllabus reads:

"The measure of damages for the destruction of property is the reasonable market value of the same at the time it was destroyed; but, if it has no market value, then its value in view of the use to which it was to be put may be recovered."

See, also, Chicago, R. I. & P. R. Co. v. Quigley, 57 Okla. 260, 156 Pac. 669.

It is apparent from the record that the plaintiff below sustained damages by reason of this overflow. It is equally apparent that no proper evidence was offered to the jury to enable them to estimate and determine the amount of such damages. They were given the conclusion of the witness whose tes timony is set out above, and of one or two other witnesses who gave the same character of testimony. These witnesses were not qualified as experts, and did not pretend to give expert testimony. They simply gave their conclusions as to the amount of damages. This was a matter entirely within the province of the jury to determine. The witness should have testified as to the facts, the particular kind of property that the plaintiff owned, and how it was injured by this overflow. The fact that none of the injured property except the potatoes had a market value at Gans was no reason why each item of the property. could not have been describ ed and its use given, and how its usable value had been lessened by reason of the water. If the witnesses had described the property and its use and had related in what way each item had been injuriously affected by reason of the water, the jury would have had some reasonable basis upon which to form a judgment as to the extent of the injury and proper means of estimating the amount of damage. Under the character of evidence given the jury was compelled to guess that the conclusion of the witnesses as to the amount of damage was correct. There is too much hazard and want of accuracy in this method of reaching a judgment to allow property to be taken from one and given to another by means of it.

On account of the character of the testimony admitted in support of the claim for damages, the judgment appealed from is r versed, and the cause remanded, with direc tions to the trial court to grant a new trial. By the Court: It is so ordered.

EDWARDS v. SOVEREIGN CAMP, WOOD

MEN OF THE WORLD.

No. 8015 Opinion Filed Nov. 14, 1916. (161 Pac. 170.)

Insurance Actions on Policies-PleadingWaiver of Conditions.

A waiver of the conditions of an insurance policy, in order to be available to the beneficiary in an action thereon, must be specifically and distinctly pleaded; and, if not so pleaded, evidence thereof is not admissible at the trial.

(Syllabus by Burford, C.)

Error from District Court, Bryan County; Jesse M. Hatchett, Judge.

Action by Carrie Edwards (nee Holland) against the Sovereign Camp, Woodmen of the World, on an insurance certificate. From a judgment for defendant, plaintiff appeals. Affirmed.

Porter Newman plaintiff in error. Maxey & Brown, for defendant in error.

and V. C. Phillips, for

Opinion by BURFORD, C. Plaintiff sued upon a benefit insurance certificate issued to her former husband, in which she was named as beneficiary. The petition alleged compliance with the terms and conditions of the certificate. Defendant answered, de. nying generally the allegations of the petition, and further alleging certain breaches of the certificate and of the laws of the order applicable thereto. Plaintiff replied by a general denial of new matter. At the trial it clearly appeared that deceased was in default of dues upon the certificate for such a period that, by the constitution and laws of the order, made a part of the certificate by its terms, the certificate had lapsed. It also clearly appeared that under the applicable laws of the order reinstatement could be had only upon payment of the amount due and the delivery to the clerk of the camp of a written statement and warranty signed by the member, to the effect that he was then in good health and not addicted to the excessive use of narcotics or intoxi cants. These matters were undisputed. There was dispute as to whether deceased had, subsequent to his suspension, paid his dues, but there was no dispute that he had not furnished the certificate as to health, etc. Plaintiff offered evidence tending to establish a waiver of this requirement by the local officers, acquiesced in by the Sovereign Camp. This was excluded, and a verdict for defendant directed. From the judg ment rendered pursuant to such verdict, plaintiff appeals.

It does not seem to be necessary to pass upon the power of the officers to waive the delivery of the health certificate, inasmuch as plaintiff pleaded no waiver. It has been so often decided by this court that it should now be familiar law that a waiver must be pleaded by the party relying thereon, and, if not so pleaded, evidence to establish it is inadmissible. A few of such decisions by this court are: Hartford Fire Ins. Co. v. Mathis, 57 Okla. 332, 157 Pac. 134; Fidelity Mut. Life Ins. Co. v. Dean, 57 Okla. 84, 156 Pac. 304; A., T. & S. F. R. Co. v. Lynn, 54 Okla. 701, 154 Pac. 658; Modern Woodmen v. Weekly, 42 Okla. 25, 139 Pac. 1138; Nance v. Okla. Fire Ins. Co., 31 Okla. 208, 120 Pac. 984, 38 L. R. A. (N. S.) 426; Blakemore v. Johnson, 24 Okla. 544, 103 Pac. 554; Cooper v. Flesner, 24 Okla. 47, 103 Pac. 1016, 23 L. R. A. (N. S.) 1180, 20 Am. Cas. 29; Tonkawa Milling Co. v. Tonkawa, 15 Okla. 672, 83 Pac. 915. Under these decisions the trial court was correct in excluding the evidence of waiver and without it, there being no dispute as to a breach of the terms of the certificate, he was also correct in directing a verdict.

Plaintiff also complains of the overruling of her motion for new trial, upon the ground of newly discovered evidence. Without reviewing the motion in detail, it suffices to say that it does not show any diligence exer cised in securing the evidence said to be newly discovered, nor does it appear, in view of Exhibit B of the record, that it would vail plaintiff anything if introduced upon new trial.

5.

Appeal and Error-Review-Harmless
Error-Exclusion of Evidence.

Error in the exclusion of the testimony of a witness is harmless, where such witness has already testified to the facts upon which his testimony is again offered, or where he is af terwards permitted to testify fully with reference to such facts.

6. Admission and Exclusion of TestimonyNonprejudicial Error.

Record examined, and held, that in this case there is no prejudicial error in the admission and exclusion of testimony objected to, and that the verdict is supported by the evidence.

(Syllabus by Johnson, C.)

Error from District Court, Blaine County; James B. Cullison. Judge.

Action by the Farmers' Product & Supply Company against Albert Bond. Judgment for defendant, and plaintiff brings error. Affirmed.

Wm. O. Woolman, for plaintiff in error. Foose & Brown, for defendant in error.

Opinion by JOHNSON, C. This was a suit by the Farmers' Product & Supply Company, a corporation, plaintiff in error, against Albert Bond. defendant in error, to recover the sum of $974.32, damages for breach of a partly executed oral contract to sell wheat. Plaintiff alleged that or July 11, 1914, Ge fendant orally agreed to sell to plaintiff, and plaintiff agreed to buy of defendant, 4,000 bushels of wheat, at the price of 64 cents

per bushel, to be delivered on or before August 15, 1914; that the time of delivery was extended by agreement until September 1, 1915; and that defendant failed to deliver 2,564 bushels of the wheat. Plaintiff sued for the difference between the contract price of the undelivered wheat, and its value at the time of the alleged breach of the contract. Defendant contended: (1) That after he had delivered a part of the wheat, and prior to the final date for delivery under the contract, plaintiff refused to take any more wheat from defendant and rescinded the contract, which was acquiesced in by defendant; and (2) that at the time of the making of the contract it was understood between the parties that he (defendant), in the sale of some 933 bushels of the contract ed wheat, was not acting for himself, but as the agent of a third party; and that, if the court should find that the contract had not been abandoned by plaintiff, judgment should not be rendered against him for damages for a failure to deliver that part of the wheat in reference to the sale of which he was acting only as an agent. The jury returned a general verdict for defendant, judgment was rendered accordingly, motion for new trial was overruled, and plaintiff appeals. The agency feature of defendant's contention was not included in the original answer, but was inserted with leave of court by amendment during the progress of the trial.

defendant as to any of the wheat; and the dissection of the contract into two parts, one pertaining to wheat sold by defendant in his own behalf and another to wheat sold by him as agent, was a province which it was not necessary or proper for the jury to invade. The acts of the lower court, complained of, and pertaining to the agency issue. therefore were without harm to the rights of the plaintiff; and if, in this connection, there be errors, they are without prejudice. Dunham v. Holloway, 3 Okla. 244, 41 Pac. 140; Wertz v. Barnard, 32 Okla. 426, 122 Pac. 649; Howard v. Rose Township, 37 Okla. 153, 131 Pac. 683: Martin v. C., R. I. & P. R.. 7 Okla. 452, 54 Pac. 696; Eddy v. La Fayette. 163 U. S. 456, 16 Sup. Ct. 1082, 41 L. Ed. 225.

Plaintiff in error contends that there was misconduct in defendant and his counsel in the manner of asking certain questions of one Thom, a witness for plaifff; that the questions so asked were insinuating and in sulting to the witness, and tended unduly to discredit him before the jury; and that the court erred in its control of this examination.

It seems that, at the institution of the suit, the witness Thom had procured an attachment to be issued against the property of defendant and had sworn to the attachment affidavit, which was upon one of the printed forms in use in the state in such cases, which when not altered to fit the particular occasion, contains various charges of fraud, misdemeanor, and felony. In executing the af fidavit the witness made no change in its form; and the affidavit, as sworn to by the witness, charged that the defendant was a foreign corporation, was converting his property in fraud of his creditors, had absconded with the intention to defraud his creditors, had committed a felony, had committed a misdemeanor and various acts of fraud, and that the suit was brought for damages aris ing from the seduction of a female. The su't was about wheat, and the defendant evidently resented his miscellaneous arraignment. Apparently this objection had some foundation The witness was not as careful in his oath to the affidavit as the circumstances evidently required. The grounds of attach ment and the testimonial conservativeness and scruple of the witness were issues in the case. The various blanket charges of the attachment affidavit were evidently too broad. and stated facts not true. Full cross-examination of the witness with reference to the grounds of attachment was unquestionably permissible. The court exercised a control over the cross-examination, which was more