v. N. Y. C. R. R. Co., 24 N. Y. 485; Schenec- | Snyder's Const.) provides that "the executive tady Observatory v. Allen, 42 N. Y. 404." authority of the state shall be vested in an *** Attorney General * * who shall perform such duties as may be designated in this Constitution or prescribed by law." The Constitution did not undertake to designate his duties in this regard; but they were prescribed by law, and we held in that case, in consonance with our holding in the one at bar: That the Attorney General of the state had just such powers and authority to appear in a district court as he had under the statutes of the territory, which provides, as set forth in the opinion, that the Attorney General should, "when requested by the Governor or either branch of the Legislature, appear and prosecute, or defend any action or proceedings, civil or criminal, in which the state should be interested or a party," and that "it was not the intention of the lawmakers that the Attorney General should have control of litigation in which the state was interested or a party, either civil or criminal, in the district courts of the state, except when requested by the Governor or either branch of the Legislature."

Counsel for both parties rely upon the definitions given the word "regent" by both literary and law dictionaries to sustain their several contentions herein; one insisting that the word should receive at our hands its ordinary signification which it is contended would exclude the power which the board of agriculture has sought to exercise, and the other contending, even though it be given its ordinary meaning, the board would yet have the power claimed for it. We do not find it necessary to pass on this question, however, for to our minds our statute and the language of the Constitution settles the issue if there be one. In section 42 of chapter 2, Mr. Murfee, in his work on Sheriffs, as quoted in the Dahnke Case, supra, says the name and office of sheriff implies the possession by that functionary of all the powers and the obligation to perform all the duties of a common-law sheriff, except so far as those powers and duties may have been modified by state Constitutions or constitutional statutes. Now, in the case at bar, if the Constitution in the first instance had provided for an agricultural and mechanical college, or had provided that the Legislature should establish such a college, and then that the board of agriculture should be the board of regents of such college without in any other way delimiting or defining its duties,. we are inclined to think that they would have been just such as were legally inherent in such a board at common law or as generally understood by the people on the adoption of the Constitution, just as duties of a sheriff, when his office was provided for by the Constitution, were such as appertained to it at common law with the exception as we have noted where the same were modified by the Constitution or constitutional statutes. In this case the specific duties of the board of regents were in no wise set out or enumerated by the Constitution; but they were defined by the statutes of the territory, which are and were constitutional, and which in our judgment were the duties referred to by the convention and the people when they provided that the board of agriculture should be such board of regents, and made mention of the "other" duties which we have noticed.

We have had our attention called to the case of State ex rel. Haskell v. Huston, Judge, et al., 21 Okl. 782, 97 Pac. 982; but this case to our minds is not in conflict, but in harmony, with the reasoning and conclusion reached in the case at bar. In that case there was involved the question of the authority and power of the Attorney General to file and prosecute a case in the name of the state in a district court without a request from the Governor or Legislature. Section 1 of article 6 of the Constitution (page 188,

The judgment of the lower court is, accordingly, affirmed.

KANE, C. J., and TURNER, WILLIAMS, and HAYES, JJ., concur.

INSURANCE CO. OF NORTH AMERICA v.
GISH, BROOK & CO.

(Supreme Court of Oklahoma. Nov. 9, 1909.)
APPEAL AND ERROR (§ 696*)-RECORD-STATE-
MENT AS TO EVIDENCE-REVIEW.

Where the case-made upon appeal does not dence presented upon the trial, no error assigned contain a statement that it contains all the eviwhich requires an examination and review of the evidence can be reviewed by this court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2916, 2917; Dec. Dig. 8 696.*]

(Syllabus by the Court.)

Motion to set aside order of dismissal and reinstate case. Writ of error dismissed. For former opinion, see 102 Pac. 713.

HAYES, J. This case was before us on motion to dismiss at the May term of court, at which time a judgment of dismissal was entered. Insurance Company of North America v. Gish, Brook & Co., 102 Pac. 713. Subsequently a motion to set aside the order of dismissal and reinstate the case was filed by plaintiff in error, and showing made to the court that the defects in the record on account of which the order of dismissal was made could be cured by amendment. An order was made permitting plaintiff in error to amend the record so as to obviate the oh

jections in the motion to dismiss. Such amendments were made and the case, after having been reset, was argued and submitted at the October term on its merits. The assignments of error urged require a review of the evidence. But a review of the evidence is objected to by defendant in error upon the ground that the case-made contains no recital or statement that it contains all the evidence introduced at the trial, and an examination of the same discloses that it does not contain such statement. Where the record upon appeal to this court does not contain an averment that it contains all the evidence presented at the trial court, it presents no error that can be reviewed by this court when the assignments made require an examination and review of the evidence. Wagner v. Sattley Mfg. Co., 99 Pac. 643; Schriber v. Buckner, 18 Okl. 298, 90 Pac. 10. A certificate of the stenographer that his transcript contains all the evidence is insufficient. Sawyer & Austin Lbr. Co. v. Champlain Lbr. Co., 16 Okl. 90, 84 Pac. 1093; Wagner v. Sattley Mfg. Co., supra.

which requires an examination of the evidence can be reviewed by this court.

Error, Cent. Dig. §§ 2916-2917; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 696.*1

(Syllabus by the Court.)

Error from District Court, Caddo County; Frank M. Bailey, Judge.

Action by Gish, Brook & Co. against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error. Motion to reinstate dismissal denied, and writ of error dismissed.

William Thompson and Fulton, Stringer & Grant, for plaintiff in error. A. J. Morris, for defendant in error.

HAYES, J. The status of this case is the same as that of Insurance Company of North America v. Gish, Brook & Co. (decided at this term of the court, but not yet officially reported) 105 Pac. 672. The reasoning and conclusions of the court in that case must follow in this.

The appeal is accordingly dismissed.

KANE, C. J., and WILLIAMS, DUNN, and TURNER, JJ., concur.

LONDON & L. FIRE INS. CO. v. GISH,
BROOK & CO.

APPEAL AND ERROR ($ 696*)-RECORD-STATE-
MENT AS TO EVIDENCE-REVIEW.

It is probable that, under section 1 of the act of the Legislature of 1905, entitled "An act for the correction of court records on appeal (Sess. Laws, 1905, p. 322, c. 28), this appeal should be neither dismissed nor the judgment of the trial court affirmed without giving plaintiff in error an opportunity to correct (Supreme Court of Oklahoma. Nov. 9, 1909.) its case-made by supplying the omitted statement under the direction of the trial judge if such right had not been waived. Plaintiff in error has heretofore been granted permission to correct its case-made, and the last correction was made under a written agreement of counsel filed in the cause stipulating that no further amendments of the record in the case, except as to such matters as appear of record in the trial court, shall be made. From this agreement it appears that counsel have stipulated that the case should be submitted and determined upon the record as it now exists, except as to such amendments as could be made from the record in the trial

court.

Since none of the errors urged for reversal

Where the case-made upon appeal does not contain a statement that it contains all the eviwhich requires an examination of the evidence dence presented upon the trial, no error assigned can be reviewed by this court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2916, 2917; Dec. Dig. § 696.*]

(Syllabus by the Court.)

Error from District Court, Caddo County; Frank M. Bailey, Judge.

Action by Gish, Brook & Co. against the London & Lancashire Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Motion to dismiss granted.

can be reviewed upon the record in its pres- Thompson, for plaintiff in error.

Fulton, Stringer & Grant and William
A. J. Mor-

ent condition, the cause will be dismissed.

KANE, C. J., and WILLIAMS, DUNN, and TURNER, JJ., concur.

ris, for defendant in error.

HAYES, J. The status of this case is the same as that of Insurance Company of North America v. Gish, Brook & Co. (decided at this term of court, but not yet officially reported) 105 Pac. 672, except that no order of dismissal has heretofore been made herein.

SPRINGFIELD FIRE & MARINE INS. CO. But otherwise the condition of the record is

v. GISH, BROOK & CO.

(Supreme Court of Oklahoma. Nov. 9, 1909.) APPEAL AND ERROR (§ 696*)-RECORD-STATEMENT AS TO EVIDENCE-REVIEW.

Where the case-made upon appeal does not contain a statement that it contains all the evidence presented upon the trial, no error assigned

the same as in that case, and the reasoning and conclusions of the court in that case must follow in this.

The appeal is accordingly dismissed.

KANE, C. J., and WILLIAMS, DUNN, and TURNER, JJ., concur.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

F. M. Cowgill, for plaintiff in error. Snod- tract, and to pay for the premises, but that dy & Son, for defendant in error.

contract was, in effect, that defendant should pay $5 per month rent for the property if he did not decide to purchase it at the price offered to him in the contract by the time stipulated, in which event his rents would be remitted. It was a continuing offer by plaintiff until October 1, 1906, to defendant to sell to him the store building and two acres of land in controversy for the sum of $300, and by the acceptance of said offer the character of the contract as a contract of tenancy would be destroyed. The provision as to the purchase or sale was unilateral, binding upon one party only, but the provision as to rent was binding from the beginning upon both parties, from which defendant could relieve himself only by acceptance of the offer to sell within the time; and until that time and thereafter, upon his failure to accept the option, the relation between the parties was that of landlord and tenant.

then this action would not lie and that their | the property the sum of $5 per month. The verdict should be for defendant, but that, until he exercised his right of option to purchase the premises, he was holding as a tenant, and was liable for rent. Upon the hearing of the motion for a new trial, the trial court seemed, however, to have taken the view that merely the contention or the interposition as a defense by defendant that he was in possession of the premises under a contract of purchase was sufficient to oust the court of jurisdiction. Section 5086, Wilson's Rev. & Ann. St. 1903, provides: "Any justice, within his proper county, shall have power to inquire, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having lawful and peaceable entry into land or tenements, unlawfully and by force hold the same; and if it be found, upon such inquiry, that an unlawful and forcible entry has been made, and that the same lands and tenements are held by force, or that the same, after a lawful entry, are held unlawfully, then said justice shall cause the party complaining to have restitution thereof." By section 5087 it is provided that landlords may dispossess tenants holding over their terms by the proceeding provided for in the foregoing section. These sections of the statutes were held in Smith et al. v. Kirchner, 7 Okl. 166, 54 Pac. 439, not to authorize a proceeding thereunder by the vendor of real estate to recover the possession of the same from one to whom he had made a contract of sale and who had gone into possession thereunder, but had made default in the payment of the purchase price. The doctrine of that case is sound, and is supported by the weight of authorities under similar statutes; but we think the facts in this case distinguish it from that case, and render the decision of the court therein inapplicable. In that case plaintiffs had executed to defendant a contract by which they bargained, sold, and conveyed to him certain real estate for a consideration of $250, a portion of which was paid in cash and the remainder to be paid at a stipulated time, with the provision that, if the balance unpaid was paid when due, the grantors, plaintiffs in that case, would execute to defendant their quitclaim deed conveying the property described. The contract in the case at bar upon its face does not bargain and sell the property in controversy to defendant, but does give to him the option to purchase it by a stipulated time. It is a contract for option to purchase, and is not one of sale and purchase. If, within the fixed time, plaintiff had accepted the option to purchase, the contract would have ripened into a contract of purchase, or, more accurately speaking, a contract of purchase would have thereby been formed. Unless defendant decided to accept the option, which he was at liberty to do or

That

Whether the option was accepted by plaintiff was a question of fact, to establish which defendant had a right to introduce evidence to show that his possession at the time this action was begun had changed from that of a tenant to that of an owner, and the introduction of such evidence did not divest the court of jurisdiction. It is true that if such contract had been admitted, or if it had been established by uncontroverted evidence, or if the jury had found upon conflicting evidence that such contract existed, the court would not have had jurisdiction in this summary proceeding to have determined the equities of the parties under it, or who had the superior title thereunder. The evidence of its existence was competent only for the purpose of showing the character of defendant's possession, and to disprove plaintiff's right of possession. Hall v. Jackson, 77 Iowa, 201, 41 N. W. 620, is a case in point. case was an action of forcible detainer where defendant had taken possession under a lease which had expired. Defendant set up as a defense that he continued to hold possession under a written contract with plaintiff for the purchase of the land. The court held that such a defense did not question the title of plaintiff, nor seek to try title with him. In that case, as in this, it appears that the evidence as to whether the defendant elected to purchase was conflicting. See, also, Oleson v. Hendrickson, 12 Iowa, 222. In Mason v. Delancy, 44 Ark. 444, the court, in discussing the question now. before us, said: "But, if the defendant shows that he is in under a contract to purchase, he rebuts the idea of a tenancy, and a different agreement cannot be inferred from that the parties have deliberately entered into. The fact that the agreement to purchase is by parol and the action at law can make no difference. Carpenter v. U. S., 17 Wall. 489, 21 L. Ed. 680. The agreement is proved, not for the purpose of enforc

The judgment of the trial court is reversed, and the cause remanded, with direction to enter judgment in accordance with the verdict.

KANE, C. J., and WILLIAMS and TURNER, JJ., concur. DUNN, J., disqualified, and not sitting.

CUNNINGHAM COMMISSION CO. v. ROR-
ER MILL & ELEVATOR CO.

but only to rebut the idea of a tenancy. The the general verdict returned this issue was defendant's relation to the plaintiff is the found against defendant. No determination material fact to be ascertained, and the agree of the rights of the parties under any conment between the parties about the possession tract of purchase was made, or was required may determine that question. People v. How-to be made, by the issues or evidence tenderlett, 76 N. Y. 574." (Italics are ours.) In ed. The jury found that there was no conDawson v. Dawson et al., 17 Neb. 671, 24 tract of purchase, and, under the state of the N. W. 339, and Worthington v. Woods, 22 evidence, it was a question of fact for them Neb. 230, 34 N. W. 368, it was held that, to determine. where the testimony shows that a party is in possession of real estate under a contract to purchase, an action of forcible entry and detainer will not lie to oust him from such possession, but neither of these cases goes so far as to hold that a mere contention of defendant that he is holding the premises under a contract of purchase, or the introduction of evidence to that effect, which is controverted by plaintiff, is sufficient to oust the court of jurisdiction. Unquestionably, where it is established that a defendant in an unlawful detainer action occupies the premises under a contract of purchase under which (Supreme Court of Oklahoma. Nov. 9, 1909.) he has, or may have, an equitable title or interest in the property, the court cannot in such proceeding determine the rights of the parties under the contract, but must dismiss the action and leave them to resort to some other form of action to litigate their rights; but it is held by some courts that, even where it is shown that the defendant occupies the premises under a contract to purchase, if it is stipulated that in the event the defendant fails to make the payments under the contract he shall forfeit his rights thereunder and the amounts paid by him shall be applied as rents, he may be dispossessed by the summary proceeding of forcible detainer upon default of payments due. Dineen v. Olson, 73 Kan. 379, 85 Pae. 538; Ish v. Morgan, McRae & Co., 48 Ark. 413, 3 S. W. 440.

For plaintiff in error to recover in the action at bar, it was necessary for him to establish, in addition to service of the notice required by the statute, about which there is no conflict in the evidence, first, that defendant occupies the premises as his tenant; second, that he is holding over after his term. In support of these issues, he introduced the written contract and parol testimony. To overcome this proof, defendant introduced evidence to establish that the contract of tenancy had been terminated by his accepting the option to purchase, and that he occupied said premises, not as a tenant, but as a purchaser. Whether or not he had ever accepted the option given him by the written contract was a question of fact which, under the conflicting evidence, was properly submitted to the jury. The court could have required the jury to return a special finding upon this question. He did not do so, but did properly instruct the jury that, if they found that defendant had accepted the option to purchase, plaintiff could not recover, and by

CORPORATIONS (§ 507*)-ACTIONS- PROCESS-
SUMMONS-ERROR-SERVICE ON SECRETARY.

Section 70, art. 6, c. 66, par. 4268, Wilson's Rev. & Ann. St. 1903, provides, in substance, that service of a summons against a corporation may be made upon its secretary only in the event its president, etc., or other chief officer is not found in the county. A summons in error was served upon the secretary of a corporation de-. president, etc., or other chief officer was not to fendant in error without a showing that the be found in the county, and when the president was in fact within the county. Held, a motion to quash the service of summons in error should be sustained.

[Ed. Note.-For other cases, see Corporations, Cent Dig. § 1996; Dec. Dig. § 507.*1

(Syllabus by the Court.)

Error from District Court, Pottawatomie County; A. H. Huston, Judge.

Action between the Cunningham Commission Company and the Rorer Mill & Elevator Company. From a judgment for the latter, the former brings error. On motion to dismiss. Granted.

Biggers & Lydick, for plaintiff in error. B. B. Blakeney, for defendant in error.

DUNN, J. The motion for new trial in the above-entitled cause was overruled and judgment entered on the verdict on June 17, 1908. June 16, 1909, the petition in error and case-made were filed in this court along with a præcipe for summons. Summons was issued and served upon the secretary of the Rorer Mill & Elevator Company, a corporation, which appears as defendant in error herein. September 16, 1909, counsel for defendant in error entered their special appearance and filed a motion to set aside the service and quash the summons issued, for the reason that C. L. Rorer, on whom the same was served, was the secretary of the corporation defendant in error, and not the president, chairman of the board