After quoting the statute, which is identical with ours, it was said: "We regard this section and section 467 of the Code, as only declarations of the previous common-law rule; and, like that rule, they were adopted to protect third persons purchasing under the authority of a judgment or decree. They apply to strangers to the judgment, who have purchased under the honest belief that the judgment is valid. If the judgment is afterward reversed, or opened up, the defendant who has lost his property must look to the plaintiff for redress." In the case of Guiteau v. Wisely, 47 Ill. 433, it was held: "The rights of third parties, acquired under an erroneous judgment, cannot be divested by a subsequent reversal." In that case the purchaser acquired his rights after the judgment became final and prior to the institution of the proceedings to have the judgment vacated. To the same effect are the cases of McJilton v. Love, 13 Ill. 486, 54 Am. Dec. 449; Hubbell v. Broadwell, 8 Ohio, 120; Goodwin v. Mix, 38 Ill. 115. In the case of Taylor v. Boyd, 3 Ohio, 338, 17 Am. Dec. 603, it was held : "A party having title to land under decree in chancery, conveys in good faith, before citation on error is served, a reversal of the decree does not divest the purchaser's title." ble in installments, it being provided upon a complete payment of the purchase price, the vendor would furnish a good and sufficient warranty deed, held, that the vendor could maintain stallments of the purchase price as they be a suit at law to compel the payment of the inlater paragraph in said contract provided that came due, and this, notwithstanding that a the vendor would execute and deliver to any part or subdivision of the property sold a good and sufficient warranty deed any time during the pendency of the contract, upon the payment of such amount of said sale in cash, the amount so paid not to be less than the proportional part of the unpaid balance due under the contract. This clause being for the benefit of the vendee, so that he might sell any lot, block, or subdivision of said tract upon paying for that part in full, would not qualify or limit the right of the vendor to compel payments of installments of the purchase price as they be came due under the first paragraph of the con tract. Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by A. R. Gourley against H. C. Lookabaugh. Judgment for plaintiff, and defendant brings error. Affirmed. A. Warren K. Snyder and J. T. Dortch, both of Oklahoma City, for plaintiff in error. R. Gourley and S. A. Horton, both of Okla homa City, for defendant in error. WEST, C. The petition in cause No. 8047 was filed in the district court of Oklahoma defendant in error, seeking to recover three installments alleged to be due upon a contract for the purchase of real estate situated in Cleveland county, state of Oklahoma. The contract calls for the payment of $2,000 to be paid in installments of $200 each. Cause No. 8046 involves the same proposition, being a suit to recover another installment claimed under said contract, and we will consider both causes together, as a disposition of one disposes of the other. Under the procedure there, suing out the writ of error was held to be in the nature of a new and original suit, and for that reason rights of persons acquired after the judg-county, on the 7th day of October, 1911, by ment became final, and before the institution of the new proceedings to vacate would be protected. In the instant case the proceedings to vacate the judgment was an independent action, and an entirely different case, taking a different number on the docket from the case in which the decree quieting title in Jackson had been rendered. Original process issued to bring Jackson into court in that action. The relative character of the parties to that action was exactly the reverse of the former action, and judgment rendered in the new action, although it operated upon the original cause, is nevertheless a termination of the new suit, and did not deprive Van Noy of the rights acquired in good faith and for value under the judgment rendered in the action between Jackson and Vandiver, in which title was quieted in Jackson. A part of the said contract is as follows: "Contract of Deed. "This is an agreement made this 21st day of February, 1910, by and between A. R. Gourley of Oklahoma City, Okl., party of the first part, and H. C. Lookabaugh of Blaine county, Okl., party of the second part. Witnesseth: That for and in consideration of $250, two hunThe judgment of the lower court is revers-ty of the first part by the party of the second dred and fifty dollars, in hand paid to the pared, and the cause remanded, with directions to enter judgment quieting title in the plaintiffs in error. All the Justices concur, except RAINEY, J., not participating. LOOKABAUGH v. GOURLEY. part, the receipt of which is hereby acknowledged, and for and in consideration of the mutual covenants and agreements herein entered into and upon the complete payment to the party of the first part of the sum of money hereinunder specified party of the first part does hereby agree to furnish a good and sufficient warranty deed to the party of the second part the following described tract or parcel of land situated in Cleveland county, Oklahoma, to wit: [Description of certain blocks of land in Elm (Supreme Court of Oklahoma. March 5, 1918.) wood addition to Oklahoma City.] And the said party of the second part does hereby agree in addition to the payment of the above-specified sum of money to pay to the said party the further sum of two thousand dollars ($2,000.00) to be paid in installments of two hundred dollars ($200.00) each six months until the full sum of ($2,000.00) shall have been paid the first payment to be due August the 21st, 1910, and like sum each six months thereafter. no offer to perform is made, defendant says that under the said contract and the law applicable thereto he is not liable to the plaintiff for any damages or sum in addition to the two hundred and fifty ($250.00) dollars heretofore paid, receipt of which is acknowledged by the contract. "First party agrees to execute and deliver to any part or subdivision of the property a good and sufficient warranty deed any time dur ing the pendency of this contract upon payment to the said first party of the full amount of the "Fourth. Defendant for further answer says said sale in cash: Provided, however, the that in this case the plaintiff heretofore filed amount so paid shall not be less than a pro- an amended petition, which is entitled a second portional part of unpaid balance due under this amended petition, in which the plaintiff alleged contract. It is further agreed and stipulated that the said property and real estate being the by and between the parties that time is the real estate and property referred to has depreessence of this agreement, and upon default up-ciated in value and is not worth at the time on the party of the second part in payment of said amended petition was filed to exceed the two or more payments the said second party sum of eight hundred and forty ($840.00) dolshall forfeit to the party of the first part as lars, and that the plaintiff has been damaged liquidated damages any such sum or sums as by reason of the failure to carry out said conmay have been paid under this agreement and tract the difference between the two thousand all other rights and interests accruing to said ($2,000.00) dollars and interest thereon; second party hereinunder." copy of which said second amended petition with a copy of the contract for deed attached which was filed on the 2d day of March, 1910, together with all indorsements thereon, is here referred to and made a part hereof. The petition alleged the receipt of the first payment, and that said installments sued on, not including the final payment provided for in said above contract, were due and judgment was prayed for the amount of installments due at the time of filing this suit. Defendant's answer is as follows: "Answer of Defendant to Third Amended Petition. "Now comes the defendant, H. C. Lookabaugh, and for his answer to the plaintiff's third amended petition filed in the above-entitled cause a "Fifth. Defendant says that it is provided by section 2859 of the statutes of the state of Oklahoma, Revised Laws of Oklahoma Annotated 1910, otherwise known as the Harris-Day Code, plaintiff's measure of damage, if any he has, is as follows: "2859. Breach of Agreement to Buy.-The detriment of an agreement to purchase an estate in real property, is deemed to be the excess, if any, of the amount which should have been due to the seller under the contract, over the value of the property to him.' "Defendant says that the property at the time said suit was brought by the plaintiff was and is worth the price agreed to be paid therefor; that the property has not depreciated in value, and that in no event is the property worth less than what the defendant agreed to pay for the same, and that the said property was worth to the seller, the plaintiff herein, at the time said action was brought and the market value of the same was and is worth the price agreed to be paid therefor, and that this defendant should not be held to do other than forfeit the two hundred and fifty ($250.00) dollars. "Sixth. That there is another action pending between plaintiff and defendant wherein A. R. Gourley is plaintiff and H. C. Lookabaugh is defendant; that the case is pending in the district court of Oklahoma county against H. C. Lookabaugh, and the case is No. 16138, and it involves this same contract sued on in this case. "Wherefore, this answering defendant prays that upon the final hearing hereof that the plaintiff may be adjudged to take nothing by said action; that the contract set out and pleaded by plaintiff may be reformed by the court to express the agreement and contract of the parties, and that the defendant may recover judgment for his costs, and plaintiff's petition may be dismissed, and that plaintiff may recover nothing thereby, and for such other relief to which the defendant may show himself entitled to in the premises." "Second. Defendant admits that he made and entered into an agreement with the plaintiff for the purchase of certain real estate described, and says that the contract that was signed up a substantial copy of the same is attached to plaintiff's petition; that at the time he made the contract for the purchase of said real estate that it was specifically understood and agreed and talked over with the defendant that the defendant was to pay two hundred fifty ($250.00) dollars, and that if he did not make any further payments, that that was to be the measure of damages and he was to only lose said two hundred and fifty ($250.00) dollars, or accept the title and pay out the real estate, and that that was to be the measure of damage and no further or additional damage other than the payments made by him which was to be in full; that by mutual mistake of the parties and because of the ignorance of this defendant as to the language used, it being represented to the defendant at the time he signed said contract that that was the force and effect of the contract, and that it was expressed the agreement of the parties to the contract that that was to be the sole damage, this defendant signed the said contract. Defendant says that the said contract does not express the contract made between plaintiff and defendant, and, Upon the filing of answer by defendant, a therefore, that the same should be reformed in motion for judgment upon the pleadings was that particular so that the said contract should made by the plaintiff, and sustained by the read that in the event defendant should not make the full payments that the measure of court. To review this action, defendant perdamage and all thereof was to be and should be fected his appeal, and this court in an opinthe forfeiture of the payments made as liqui- ion by Commissioner Burford, filed October dated damages. Third. The defendant says that the plain- 24, 1916, reversed the lower court on one tiff has no title to said real estate, and the proposition, namely, that the petition did not plaintiff never has at any time tendered to this state a cause of action in favor of plaintiff defendant any deed or title of any kind, and has never offered in any way or manner to perform the contract on his part, and by reason of the fact that no title has been tendered and 171 P.-30 and against defendant. This question is now being considered upon the petition for rehearing filed by plaintiff in error, and the in the payments, W. might keep all money paid, not as a penalty for the breach of the contract, but as liquidated damages for the use of the premises. S. decided to repudiate the contract, and refused to make payment of installments. W. sued on the past-due notes in justice court. "(a) That such an action would lie in W.'s favor. Held: only question to be determined. That is to, fect that, in case of default on the part of S. say, could the plaintiff maintain a suit at law to recover the installments as they fell due under this contract without tendering to the defendant a deed to the proportionate part of the premises that the installment bore to the entire deferred part of the purchase price? It will be noted that the contract in the first paragraph thereof provided that in consideration of $250 cash in hand paid, the receipt of which is acknowledged, and in consideration of the further covenants and agreements contained in the contract and upon the complete payment to the party of the first part of the purchase price, the plaintiff would furnish a good and sufficient warranty deed to the land described in the contract. It was agreed that the balance of $2,000 was to be paid in installments of $200 each six months, beginning on August 21, 1910, until the full $2,000 was paid. It was stipulated in the fourth paragraph, or the next to the last paragraph, that the plaintiff would execute, and deliver to any part or subdivision of the property a good and sufficient warranty deed any time during the pendency of the contract upon the payment to plaintiff the full amount of said sale in cash, provided, however, the amount so paid would not be less than the proportional part of the unpaid balance due under this con tract. Upon the consideration of the entire contract it seems perfectly plain that it was intended by the purchaser to subdivide said tract of land into lots, blocks, and tracts, and as we understand the last above men "(b) That such contract could not be rescinded except by consent of both partics. "(c) That W., in addition, might have specific performance as against S., but that he was not compelled to resort to that remedy before enforcing payment, in a court of law, of the unpaid installment notes. "(d) That W. is not confined to one action for damages for breach of contract, but that that part of the contract providing for the installment notes was an independent and not a could be enforced in an independent action" dependent or concurrent covenant, and, as such, and Ames v. Milam, 157 Pac. 941, the fourth paragraph of the syllabus being as follows: "A tender of a deed is not a condition precedent to an action to enforce a vendor's lien" the plaintiff could maintain a suit at law for the installments of the purchase price as they became due, and would not be required to execute a deed, and would therefore not be required to tender a deed until the entire purchase price was paid, or until a suit was instituted for the final installment due under said contract. These suits involved installments maturing prior to the final installment. Plaintiff would not therefore be required to make a tender of a deed to the premises or any part thereof in order to maintain a suit at law for installments of the purchase price as they became due under the contract prior to suing for the final installment due. We are therefore constrained to hold that tioned paragraph, it was intended by it to provide that after said tract had been so subdivided, and the defendant found a pur- the proposition announced in the first parachaser for a lot, block or subdivision thereof, and desired to have executed a good and court in this case, and that part of the main graph of the syllabus handed down by the sufficient deed to said purchaser therefor, it opinion reaching the conclusion announced in was agreed that the plaintiff, after the de- said paragraph, is incorrect and misinterfendant paid him the amount of said sale in preted the contract in this, to wit, that the cash, the same not to be less than the pro- court construed the contract to mean that portional part of the unpaid balance due up- the plaintiff should execute a deed to that on the contract, then plaintiff would execute part of the land as the installments were a good and sufficient deed to the part of the paid; that is, that proportional part of the property so sold. This being true, then un-land which the installment paid for in full. der the contract the plaintiff was not bound to furnish a deed to any part of the property purchased until the entire purchase price had been paid, unless the defendant, the purchaser, should demand a deed under the fourth paragraph of the contract, and this contingency is not now before us. If this is true, then under the authority of Shelton v. Wallace, 41 Okl. 325, 137 Pac. 694, the syl-action of the plaintiff. Under said opinion labus being as follows: "W. sold S. some city lots; they entered into a written contract in which S. agreed to pay for the lots on the installment plan, he giving his promissory notes, due monthly, for the deferred payments, he also going into possession, W. agreed to convey when all payments should be completed. The contract contained many oth We therefore hold that said opinion meretofore fed in this cause should be modified in accordance with this opinion. In the former opinion it was held, and we concur therein, being propositions announced in second and third paragraphs of the syllabus, that the answer filed by defendant did not present an issue which was a defense to the cause of ・ as modified by this opinion we hold that the court was correct in sustaining the motion for judgment upon the pleadings. Finding no error in the judgment of the lower court, the same is affirmed. (68 Okl. 68) (Additional Syllabus by Editorial Staff.) ST. LOUIS & S. F. R. CO. v. FIRST NAT. 4. CARRIERS 177(4) · INTERSTATE TRANSBANK OF ELK CITY et al. (Nos. 6229, 6230.) (Supreme Court of Oklahoma. Dec. 11, 1917. Rehearing Denied March 19, 1918.) (Syllabus by the Court.) 1. CARRIERS 189- FREIGHT RATES-MINI MUM CARLOAD RATE. PORTATION-CARMACK AMENDMENT-RECOV- shipper. Error from District Court, Beckham County; G. A. Brown, Judge. The words "required to pay," as used in Carmack Amendment (Act Feb. 4, 1887, c. 104, $20, 24 Stat. 386, as amended by Act June 29, 1906, c. 3591, § 7, par. 12, 34 Stat. 595 [U. S. Comp. St. 1916, § 8604aa]), authorizing recovery by the initial carrier against the connecting carrier of damages it may be required A carload of broom corn moved out of Elk to pay the shipper for loss or injury occurring City over the Wichita Falls & Northwestern on the line of the connecting carrier, mean askRailway Company to Altus, where it was trans- ed to pay, or asked of right and by authority of ferred to the St. Louis & San Francisco Rail- law to pay and do not require as a condition road Company to be shipped to Wichita, Kan., precedent to recovery that it shall have actualwhere the same arrived in due time. S. was ly paid a judgment recovered against it by the both the consignor and consignee, but instructions were noted on the bill of lading to notify the Western Warehouse Company upon its arrival. The bill of lading, with draft attached, was transferred by S. to the plaintiff, Action by the First National Bank of Elk who sent the same to a bank at Wichita for collection, which refused to honor the draft on City against the Wichita Falls & Northwestpresentation. Thereupon the Western Ware- ern Railway Company and the St. Louis & house Company sued S. and the St. Louis & San Francisco Railroad Company, in which San Francisco Railroad Company in replevin the Wichita Falls & Northwestern Railway and recovered 57 bales of said corn, weighing 16.820 pounds, whereupon upon payment of freight on a minimum carload of 25.560 pounds at the rate of 47 cents per hundredweight as noted on the bill of lading issued by the Wichita Falls & Northwestern Railway Co., said 57 bales were delivered to the sheriff and turned over to the Western Warehouse Company. Thereafter S. offered to pay freight on the balance of said shipment of 34 bales in excess of the minimum carload rate already paid, at the rate of 47 cents per hundredweight, and requested that the same be delivered to the Ralls Commission Company, which the St. Louis & San Francisco Railroad Company refused to do, and demanded freight on said 34 bales at the minimum carload rate of 25,560 pounds, on the ground that the shipment belonged to S. and another and was governed by the proviso to rule 6 of the Western Classification, which S. rcfused to pay, whereupon the St. Louis & San Francisco Railroad Company advertised and sold to the highest bidder said 34 bales, de ducting from the proceeds thereof as freight thereon the minimum carload rate of 25,560 pounds, and for other charges, and tendered the balance to S. Held that the proviso to rule 6 did not apply; that the carrier had no right to make the ownership of the goods the test by which its charges for carriage is to be measured, and was guilty of a conversion of the 34 bales. 2. CARRIERS 177(4)- INTERSTATE CARRIERS -LIABILITY. on Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906, c. 3591, 34 Stat. 584, 595 (U. S. Comp. St. Supp. 1909, pp. 1149. 1166; Comp. St. 1916, §§ 8604a, 8604aa), imposes up an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state liability to the holder of a bill of lading for loss anywhere en route with a right, when sued with a connecting carrier for loss occurring upon its line, by cross-petition to recover over against the connecting carrier for the amount of such loss or damage evidenced by the judgment against it. 3. CARRIERS 133 CONTRACT GOODS-VALUATION-EVIDENCE. Company filed cross-petition against the St. Louis & San Francisco Railroad Company, asking a judgment over. Verdict directed for plaintiff against the Wichita Falls & Northwestern Railway Company and in favor of it over against the St. Louis & San Francisco Railroad Company, and the defendant the St. Louis & San Francisco Railroad Company brings error as against plaintiff and its codefendant, and defendant the Wichita Falls & Northwestern Railway Company brings error as against plaintiff and its co-defendant, which cases were by order of the court consolidated. Reversed and remanded for assessment of damages. W. F. Evans, of St. Louis, Mo., and R. A. Kleinschmidt and Fred E. Suits, both of Oklahoma City, for plaintiff in error. C. C. Huff, of Dallas, Tex., and Echols & Merrill, of Elk City, for defendant in error Wichita Falls & N. W. Ry. Co. Ledbetter, Stuart & Bell, of Oklahoma City, for defendant in error First Nat. Bank of Elk City. TURNER, J. This is an action to recover damages for the conversion of 34 bales of broom corn, brought in the district court of Beckham county by defendant in error First National Bank of Elk City, against defendant in error Wichita Falls & Northwestern Railway Company, and plaintiff in error, St. Louis & San Francisco Railroad Company. The facts are substantially: That one J. H. Seright delivered a carload of broom corn to defendant Wichita Falls & Northwestern Railway Company at Elk City, Okl., for shipment to Wichita, Kan. He was both the conLoss of signor and consignee of the car, and gave Where the shipping contract provides that instructions, which were noted on the bill in case of loss of, or damage to, the goods, the of lading, to notify the Western Warehouse amount of loss or damage shall be computed at Company, of Wichita, upon its arrival. The the value of the goods at the place of shipment, freight rate upon said shipment, as noted and evidence is admitted, in proof of loss, over objection as to the value of the goods at the on the bill of lading, was 47 cents per hunplace of destination, held error. dred pounds. The bill of lading issued by - For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes its appeal against plaintiff and defendant Wichita Falls & Northwestern Railway Company, being cause No. 6229, and defendant Wichita Falls & Northwestern Railway Company has perfected its appeal against plaintiff and defendant St. Louis & San Francisco Railroad Company, No. 6230, which cases have been, by order of this court, consolidated. said defendant was what is commonly known | joined the connecting carrier, St. Louis & as the standard or uniform bill of lading. San Francisco Railroad Company as defendThe shipment moved out of Elk City over the ant, and prayed for judgment against both. line of the Wichita Falls & Northwestern Defendants answered and admitted the bill Railway Company to Altus, Okl., at which of lading, and defended the action of the point the shipment was delivered to defend- agent of defendant St. Louis & San Franant St. Louis & San Francisco Railroad Com- cisco Railroad Company in refusing to depany for transportation to Wichita. There liver the shipment to the Ralls Commission was apparently no delay in the shipment, Company, and the amount of $59.84 was tenand the same arrived in due time in perfect dered in court to plaintiff. Defendant Wiorder to its destination, and the warehouse chita Falls & Northwestern Railway Comcompany was notified of its arrival. In the pany also filed a cross-petition against the meantime Seright had drawn a draft on St. Louis & San Francisco Railroad Comthe Western Warehouse Company for the pany, asking the court, in the event plaintiff value of said broom corn, attached to which recovered judgment against it, for judgment was the bill of lading, which was indorsed over against the St. Louis & San Francisco by him to the plaintiff, First National Bank Railroad Company for the amount thereof. of Elk City, and was transmitted for collec- At the close of the trial, the court directed a tion to a bank in Wichita. The warehouse verdict in favor of plaintiff against the company refused to honor the draft on pres- Wichita Falls & Northwestern Railway Comentation, but instituted replevin in the dis- pany for $928.50, with interest thereon at 6 trict court of Sedgwick county, Kan., and per cent. from October 17, 1911, and in favor under said writ the sheriff of said county of the Wichita Falls & Northwestern Railremoved from the car 57 bales of broom way Company over against the St. Louis & corn, weighing 16,820 pounds. Mr. Seright San Francisco Railroad Company for a like ⚫ was promptly notified of the replevin action. amount. The defendant St. Louis & San Later that suit went to judgment, and in a Francisco Railroad Company has perfected telegram to the agent of defendant St. Louis & San Francisco Railroad Company Seright instructed said company to deliver the remaining 34 bales, weighing 9,740 pounds, to the Ralls Commission Company, of Wichita, which the agent refused to do, for the reason, he says, the rate of 47 cents quoted by the agent of defendant Wichita Falls & Northwestern Railway Company and noted on the bill of lading did not apply, but that the shipment was governed by rule 6 of the Western Classification, which, under the construction given it by said agent of the St. Louis & San Francisco Railroad Company, would make that portion delivered to the sheriff under the writ of replevin one shipment, and the portion remaining another shipment. At the time the Frisco delivered part of this shipment to the sheriff, it collected the freight upon a minimum carload of broom corn of 25,560 pounds. Mr. Seright, as agent of plaintiff, went to Wichita and offered to pay said agent the proportionate amount of the excess of the minimum carload on the basis of 47 cents, as originally noted on the bill of lading issued to him by the Wichita Falls & Northwestern Railway Company, which the agent of the Frisco declined to accept, whereupon, Seright declining to pay more, the agent of the Frisco advertised and sold the remaining 34 bales, and, after deducting the freight, according to his construction of the rules of the Western Classification, together with demurrage and other charges, he tendered Seright the remainder, or $59.84, which he declined to accept, and brought this suit. Plaintiff contended that the Wichita Falls & Northwestern Railway Company was liable, under the Carmack Amendment to the [1] It is contended by defendant Wichita Falls & Northwestern Railway Company that the court erred in failing to instruct the jury to return a verdict in its favor, and in peremptorily instructing the jury to return a verdict against it. Both defendants contend that, as it ultimately turned out that this shipment was to be delivered to two consignees, under two expense bills, that rule 6 of the Western Classification applied, and that defendant St. Louis & San Francisco Railroad Company was entitled to demand freight upon the basis of two consignees, or for two minimum carload shipments. Section 6 of the Western Classification provides, in part, as follows: "Carload freight will be rated and charged according to current rules governing the maximum and minimum weights of merchandise as authorized by companies adopting this classification: * *Provided, however, the carload rate contained in this classification will apply only upon shipments received in one day from one consignor under one bill of lading, delivered under one expense bill to one consignee. Carriers' agents will not than carload shipments in order to effect the apdeliver less plication of carload rates thereon; less than carload rates will apply on such shipments." * * * It is admitted that this shipment was received by defendant Wichita Falls & Northwestern Railway Company "in one day from one consignor under one bill of lading." The Frisco, upon its arrival, demanded freight |