Whether the pleading objected to is to be ceedings which does not affect the substantial, and is in the language of the Oklahoma statrights of the adverse party, and no judgment ute. shall be reversed or affected by reason of such error or defect.' Here the court below saw that the substantial rights of both parties were pre-treated as an amendment or as a supple. sented by the pleadings in the action, and that they could proceed to a trial of the action without injury to either; and, in compliance with the directions of the statute, the court could not do otherwise than to proceed to try this action, instead of putting both parties to the expense and delays incident to the filing of a new cause.' In Jenkins v. Int. Bank, 127 U. S. 484, 8 Sup. Ct. 1196, 32 L. Ed. 189, Justice Matthews says: "In support of this proposition it is argued on behalf of the plaintiff in error that the supplemental bill set out and sought a recovery upon a cause of action distinct from that stated in the original bill. The original bill prayed for a decree against Walker upon his notes held by the bank, and for the satisfaction thereof a sale of the property held as security therefor. During the pendency of that bill precisely the same matters were put in issue in the Wilshire suit between Walker and the bank, and in that suit a decree was rendered finding the amount due. That decree in the Wilshire suits stands unreversed, and operated as an estoppel by way of res adjudicata between the parties. By way of proof or in pleading it would be good as a bar in any subsequent suit between the same parties upon the same issues. Having been rendered after the institution of the present suit, it was competent for the complainant to bring it forward by a supplemental bill as conclusive evidence of the amount due for which it was entitled to take a decree and as a complete answer to the defense set up by the plaintiff in error as the assignee of the bankrupt to the relief prayed for in the original bill, and to the relief sought by the cross-bill. It was strictly new matter arising after the filing of the bill, properly set up by way of supplemental bill, in support of the relief originally prayed for. It can in no sense be considered as a new cause of action. It was not a bill to enforce the decree, nor was the complainant obliged to rely upon it as the sole ground of recovery, on the ground that the original cause of action had become merged in it. If the notes were merged in the decree, it was simply a change in the nature of the evidence to support the complainant's title to relief; the indebtedness remained the same, and the equity of the complainant to a foreclo sure and sale of the securities remained unchanged." This question has frequently been passed upon by this court, and the matter seems to be fully determined against the contentions of counsel for defendant. In the case of Fort Produce Co. v. Grain & Produce Co., 26 Okl. 15, 108 Pac. 407, Justice Hays quotes with approval from Supreme Court of Kansas in the case of Culp v. Steere, 47 Kan. 746, 28 Pac. 987, wherein that court held that an amendment which even changes the cause of action might be permitted, provided it did not substantially change the plaintiff's claim. In the case of Trower v. Roberts, 30 Okl. 215, 120 Pac. 617, the court permitted an amendment which set up a new cause of action, on the theory that it did not change the plaintiff's claim. The authorities referred to in that case distinctly announce that an amendment which sets up a new cause of action may be permitted, provided it does not change substantially the plaintiff's claim, mental petition, or whether it is to be governed by statutes of Oklahoma or Arkansas as to amendment of pleadings, the facts set up in the amendment to the petition were not a substantial departure from the matters set up in the original petition. In both instances the plaintiff sought to recover upon the same claim; the only difference being that in the amended or supplemental petition the plaintiff sought to show that the amount of his claim against defendant had been settled and fixed by arbitration since the commencement of the suit. The only possible effect this amendment could have would be upon the testimony necessary to establish the claim, but it could in no sense change the cause of action or the nature of the plaintiff's demand against the defendant. He must recover in both instances, if at all, upon his claim for damages for fail ure to furnish feed for his cattle. In Simpson v. Vose, 31 Kan. 227, 1 Pac. 601, the Supreme Court of Kansas lays down the following rule: "Supplemental pleadings, like amended pleadings are largely within the discretion of the trial court, and error will lie only when an abuse in that discretion is shown; but supplemental pleadings embracing subsequent facts are generally permitted by the courts." There was no abuse of discretion in allowing the amendment, but, on the other hand, a ruling plainly in furtherance of jus tice. From the foregoing it is plain that the statutes governing the rules for amendment of pleadings are substantially the same in Kansas, Arkansas, and Oklahoma, and it is also settled, according to all the decisions of these states, that the court did not err in overruling the motion of defendant to strike the amended and supplemental petition. The second assignment submitted in defendant's brief, that "the decision of the court is not supported by the weight of the testimony and is contrary to law," is untenable, for the reason that the facts were passed upon by the lower court, and under the rule will not be disturbed by this court. We may add, however, that we have read the evidence and fully approve the findings of the court in that particular. The third contention of counsel, that "the court erred in fixing interest at the rate of 6 per cent. per annum in the absence of all proof relative to interest," cannot be sustained, for the reason that counsel cites no authority and gives no reason in his argument why plaintiff should not be allowed interest. The presumption is that the law is and was the same in the Indian Territory as it is in Oklahoma, and, under the laws of the territory and state of Oklahoma, it county on the 27th day of January, 1912, by the defendants in error, as plaintiffs, against the plaintiff in error, as defendant. The parties will be referred to as they appeared in the trial court. would not be reversible error to allow inter- BLEAKMORE, C. This is an action for est at 6 per cent. accounting and specific performance, comThe fourth assignment, that the court err-menced in the district court of Oklahoma ed in overruling the defendant's motion for new trial, presents the same questions hereinbefore disposed of, and no authorities are cited nor additional argument suggested by counsel on that assignment. From a general view of the case, as shown by the evidence and sustained by the authorities, we fully approve the action of the court in overruling the motion for new trial and in rendering judgment for the plaintiff. By the petition it is alleged, in substance, that on March 31, 1904, the plaintiff, Joseph G. Street, the owner of a certain tract of land embracing 46 acres (12.9 acres of which lay immediately east, and the remainder Section 6005, Rev. Stat. Okl. 1910, Ann., south, of the Fairlawn Cemetery), conveyed provides: "No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.". Upon a careful examination of the entire record, we are unable to find that the court committed error, but, on the contrary, do find that the case was tried in an able and careful manner, and should be affirmed. PER CURIAM. Adopted in whole. (54 Okl. 136) the same by warranty deed to the defendant, Fairlawn Cemetery Association, the consideration for such conveyance being the payment to him of one-half of the proceeds arising from the sale of cemetery lots therein, as expressed in a contemporaneous written contract between the parties, made a part of the same transaction, by the terms of which it was provided that defendant should render an account of all such sales at least once every three months; that it was agreed in said contract that, if defendant should at any time make default in accounting and paying to the said Joseph G. Street such share of the money realized from the sale of said lots, he might either declare the contract at an end, and require a reconveyance of said land to any cemetery association he might organize, or proceed to foreclose the contract and charge the entire tract remain FAIRLAWN CEMETERY ASS'N v. STREET ing unsold with one-half of the appraised et al. (No. 4671.) (Supreme Court of Oklahoma. July 13, 1915. (Syllabus by the Court.) 1. CEMETERIES 5-AFFAIRS OF ASSOCIATION -RIGHT TO CONDUCT FOR PROFIT. It is the declared policy of the law in this jurisdiction that the affairs of a cemetery association shall not be conducted for the purpose of profit to the corporation or its members. [Ed. Note. For other cases, see Cemeteries, Cent. Dig. §§ 4-8; Dec. Dig. 5.] 2. SPECIFIC PERFORMANCE TRACT-PUBLIC POLICY. 55-VOID CON The courts of this state will not lend their aid to the enforcement of contracts violative of its statutes or established public policy. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 173-176; Dec. Dig. 55.] Commissioners' Opinion, Division No. 3. Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Joseph G. Street and another against the Fairlawn Cemetery Association. Judgment for plaintiffs, and defendant brings error Reversed, with directions to dismiss with prejudice. James R. Lewis and Everest & Campbell all of Oklahoma City, for plaintiff in error. Keaton, Wells & Johnston, of Oklahoma City, for defendants in error. value thereof as and for the purchase price months of all sales of lots included within It is not deemed necessary to advert to the contents of the answer or reply. The following is a summary of only those facts For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes disclosed by the evidence necessary, in our, placed on any play [plat] or subdivision of said opinion, to a determination of the cause: cemetery grounds below an average price of $20.For a number of years prior to April 25,00 per lot for all lots platted." In January, 1905, about one year after the making of said deed and contract, the plaintiff Street became the secretary and one of the then three directors of the defendant association, and he and his coplaintiff, the president, constituted a majority of its board until about July, 1909, when the directorate was increased to five members. Both of the plaintiffs continued as directors until about July, 1911. Some time in the year 1907. plaintiff Street executed to his coplaintiff, Kirkpatrick, a deed conveying or evidencing his interest in the property in question. 1903, defendant had been organized and ex- This contract was signed and acknowledg isting as a cemetery association under the ed by plaintiff Street in his individual capaclaws of the territory of Oklahoma, and own-ity and by the plaintiff Kirkpatrick for and ed certain lands dedicated to cemetery pur- as president of the cemetery association. poses. The 12.9-acre tract above referred to lying immediately on the east of the cemetery was desired to enlarge its grounds, and considered necessary to meet the contemplated needs of the association. At that time the directorate of the association was composed of three members, A. J. Kirkpatrick, one of the plaintiffs herein, president, J. M. Owen, secretary, and S. C. Heyman. There was also a superintendent, A. B. Hammer, and a sexton, Bert Drake. On said day the two directors, Kirkpatrick and Heyman, and Hammer and Drake, the superintendent and sexton, purchased the 46 acres, comprising the 12.9-acre tract just east and the 33.1acre tract immediately south of the cemetery; the title being taken in the name of Heyman. Whether it was their purpose to devote any part of it to the use of the cemetery is not clear. However, the portion lying south of the cemetery was soon thereafter platted as an addition to Oklahoma City, but no steps were taken looking to the disposition of the 12.9-acre tract. In January, 1904, the plaintiff J. G. Street purchased from Heyman and Hammer their undivided interest in the 46 acres, paying therefor $4,600, and taking a deed to the whole. Some time thereafter plaintiff Kirkpatrick purchased the interest of the sexton, Drake, and thereby became the owner of an undivided one-half interest in the entire tract; and this was the condition of the title on March 31, 1904, when plaintiff Street had the transactions with the cemetery association set forth in the petition, the plaintiffs each owning an undivided one-half interest in the property, the record title being in Street. Kirkpatrick, Owen, and Heyman then composed the board of directors of defendant association. Kirkpatrick owned a one-half interest in the property, Street holding the title in trust for him, which fact was probably known to the other two directors. In any event, this board of directors accepted a deed for the entire 46 acres from Street, and entered into a contract by which it was agreed to pay him one-half of the proceeds derived from the sale of the lots therein. The contract provided: That the 12.9-acre tract should be immediately platted for cemetery purposes (which was done), and "that the cemetery lots contained in said tract and all tracts hereafter surveyed shall, before sold, be appraised by the party of the second part, and the appraisement submitted to the party of the first part for his approval, and when approved by him shall be sold by the party of the second part at not less than such appraised value, and out of the proceeds of such sales one-half of the same shall be paid to the party of the first part as and for the purchase price of the property conveyed in said mortgage deed: Provided, further, that no appraisement shall be On August 1, 1907, the defendant associa tion reconveyed to plaintiff Street all that portion of the land conveyed to it by his deed of March 31, 1907, exclusive of the 12.9 acres embraced in the cemetery, pursuant to the following resolution: "It appearing that an injunction suit is pending against the Fairlawn Cemetery Association lands purchased from J. G. Street, and more prohibiting them from the use of the part of the particularly described in the conveyance and contract made between said J. G. Street and the Fairlawn Cemetery Association as a cemetery: "For the purpose, therefore, of adjusting said difference between the association and the said J. G. Street, it was resolved that a reconveyance of all that part of said land purchased, conveyCity, be made to the said J. G. Street, and that ed by the Pleasant View addition to Oklahoma he be released from the obligation and covenants contained in said deed and contract, and that said reconveyance shall operate as a cancellation of the deed heretofore referred to and the contract accompanying same, and the president and secretary are hereby authorized to make said reconveyance as required by law." The 12.9-acre tract was platted into 1,079 lots, certain of which were donated to special uses, leaving 1,061 to be sold. Practically one-half of these were appraised; the highest price fixed upon any lot by the original appraisement being $50. Reappraisements were had, with the approval of the plaintiffs, by the last of which the lot values ranged from $250 for the highest to $100 for the lowest; and 133% of such lots were sold. As their moiety of the proceeds, and from the sale of a small portion of said tract as right of way for a street railway, plaintiffs received $12,442.50. The market value of the entire 46 acres at the time of its acquisition by the plaintiffs, in 1904, was about $200 per acre. All but the 12.9 acres actually devoted to cemetery purposes was reconveyed to them in 1907, without consideration, thus leaving the amount of their investment in the cemetery property approximately $2,600. There was judgment for plaintiffs, the court finding that the contract should be enforced, and that they were entitled to receive one-half of the proceeds from the sale of the lots included within the 12.9-acre tract, and that after a full accounting there was due and payable to them up to the time of the trial the sum of $626.79. by the law are largely public. These public characteristics of a cemetery association are recognized in every legislative enactment The fourth assignment of error in the brief with reference thereto. Such an association is that: has power to take and hold real property "for the sole use and purpose of a burial ground." All its property and that of the individual lot owners in its cemetery is ex "The trial court erred in refusing to hold that the contract of March 31, 1904, between J. G. Street, one of the defendants in error, and the plaintiff, was void because the same was unconscionable and unlawful, contrary to public poli-empt from taxation, assessment, lien, attachcy, in violation of good morals, and against the laws of the state of Oklahoma." ment, levy and sale by execution, appropriation for streets and roads, etc., and, when its In support of this assignment defendant lots are acquired by individuals and the dead urges, among other things, that in the trans- buried therein, they are forever inalienable. actions involved plaintiffs, stockholders and The association is impowered to make byofficers acting for the corporation, dealt with laws "to the end that all the appliances and themselves as individuals, to their personal conveniences and benefits of a public and priadvantage, and to the detriment of the asso-vate cemetery may be obtained and secured." ciation, and that the contract sought to be Section 387, R. L. 1910, in force in the terenforced and the acts of the parties thereun-ritory and state of Oklahoma since 1890, proder are in direct contravention of the statute vides: and against public policy. On the other hand, "The proceeds arising from the sale of lots, plaintiffs contend that the contract sued on after deducting all expenses of purchasing, inand their entire course of dealing with the closing, laying out and improving the ground, association was lawful, open, fair, and pro-and of erecting buildings, shall be exclusively applied, appropriated and used in protecting, preductive of good results to the defendant, as serving, improving and embellishing the cemewell as themselves. At the time of the execution of the deed and contract of March 31, 1904, plaintiff Street was not a member or officer of the defendant association, but his coplaintiff, Kirkpatrick, for whom he held in trust the legal title to one-half the property involved, and whose beneficial interest in the contract was equal to his own, was then its president; and, if in such transactions Kirkpatrick was acting in a double or antagonistic capacity, so as to affect the validity thereof, Street was equally chargeable and responsible. tery and its appurtenances, and to paying the necessary expenses of the corporation, and must not be appropriated to any purpose of profit to the corporation or its members." Under the contract in question, by virtue of successive appraisements made while plaintiffs constituted a majority of the board of directors of the defendant association, the price of cemetery lots included within the 12.9-acre tract was increased at least five fold; and from the proceeds paid to them from the sales of such lots plaintiffs profited to the extent of nearly $10,000. If this conIn regard to the duty and good faith re-tract, under the specific terms of which the quired of directors in dealing with corpora- cemetery association is powerless to sell lots tions, it is said in Thompson on Corporations (2d Ed.) § 1220: "Directors, in dealing with the corporation, must not only give to the corporation the benefit of their best care and judgment, but they must exercise the highest and most scrupulous good faith, and self-interest must be sacrificed for the corporate good. Anything less than this is disloyalty to the corporation. "Any contract, engagement, or undertaking by a director or other officer of a corporation, by which he agrees to do a thing which is or may become injurious to the stockholders, is contrary to the duty involved in his trust and is voidable." It is also said by the same author (section 1246): within the 12.9-acre tract, save at prices fixed by appraisement approved by plaintiffs, be enforced, and if the increase following the series of appraisements of such lots in the past is any criterion to future action in this regard, the prices which may be exacted of purchasers hereafter will depend entirely upon the avarice of the plaintiffs and financial ability of those who must bury their dead in this part of the cemetery. All who by necessity are required to purchase lots in a cemetery by virtue of the law become members of the association. Incentive to their exploitation for private gain is denounced by the statute, and its existence in contracts controlling the actions of the corporation will not be tolerated by the courts. "Courts hold the directors of a corporation to the strictest accountability. Conduct inconsistent with any duty is condemned. The fiduciary relation is so vital that directors are not only It is now and has been at all times the deprohibited from making profit out of corporate contract, and from dealing with the corporation clared policy of the law in this jurisdiction except upon the most open and on the fairest that the affairs of a cemetery association terms, but the rule of accountability is so strict shall not be conducted for the purpose of that they are not permitted to anticipate the corporation in the acquisition of property rea-profit to the corporation or its members. sonably necessary for carrying out the corporate Conceding the fact to be that the association purposes or conducting the corporate business." in the instant case was at the time without [1] While the defendant association is a private corporation, yet the purposes for which its incorporation was authorized and the uses to which its property is dedicated means to purchase this land, which was regarded as necessary to its purposes, and that the contract entered into with plaintiffs afforded a way of accomplishing the purpose to enlarge its grounds, and apparently pro- stantially, that it was the lessee of a certain vided future benefits without present expen- tract of land, upon which was situated cerditures, yet the entire transaction was con- tain buildings, improvements, and machinery, trary to the plain provisions of the statute. and, among other things, certain machines [2] In whatever light this contract may be used for the crushing of rock; that the conviewed, it provided profit for a member of tract under which it held was in writing, and the association. By its terms a 12.9-acre was entered into on the 21st day of October, tract of land costing $200 an acre was im- 1911; that under its terms plaintiff was enmediately platted into 1,060 lots, to be sold titled to possession of the land and the manot "below an average price of $20.00 per lot | chinery for a term and period of three years, for all lots platted," and one-half of the pro- to wit, until October 21, 1914; that defendceeds thereof paid to the president of the ants had entered upon the lands and were corporation and his associates; thus at the about to remove one of the rock crushers time clearly contemplating an ultimate profit therefrom without right; and that therefore to them of at least $8,000. they ought to be enjoined from so doing. A temporary restraining order was issued, and the case set for hearing a few days thereafter as to whether or not a temporary injunction should be ordered. Before the hearing, defendants filed an answer, denying generally and specifically the averments of the petition, and also pleading title, as to the rock crusher being removed, in one of defendants; that they had a right to remove the same, as was being done. At the hearing considerable evidence was taken, and the court refused to grant a temporary injunction. From this or Suffice it to say without further comment that this court will decline to lend its aid to the enforcement of any contract violative of a statute or the established public policy of the state. The judgment should therefore be reversed, with directions to dismiss the action with prejudice. PER CURIAM. Adopted in whole (52 Okl. 595) STANDARD STONE CO. v. GREER et al. der this appeal is prosecuted. (No. 5543.) [1] Defendants in error have filed a motion (Supreme Court of Oklahoma. Nov. 30, 1915.) to dismiss the appeal; one of the grounds (Syllabus by the Court.) 1. APPEAL AND ERROR 781 - DISMISSALSETTLEMENT OF ISSUES. An examination of the record in this case discloses the fact that the issues involved have ceased to exist; that the question presented is merely hypothetical; and that a reversal of the judgment would afford no actual relief, nor would it be followed by any practical results. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. 781.] 2. APPEAL ANd Error 362 — ASSIGNMENT OF ERROR-REFUSAL OF TEMPORARY INJUNC TION. being that an inspection of the record in this case discloses the fact that the issues involved have ceased to exist; that the questions presented are merely hypothetical and moot; and that a reversal of the judgment would afford no actual relief and be followed by no practical results. We have examined the record, and believe the motion to dismiss is well taken. Appellant's rights in the premises were merely those of a lessee or tenant, and, according to its own averments and the contract under which it claims, its rights in the property no longer exist; its tenancy having expired October 21, 1914. It is evi An assignment in the petition in error that "said court erred in refusing to grant a temporary injunction" is insufficient to present any-dent that appellant would not now be entitled thing for review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1960, 1961, 3282-3284; Dec. Dig. 362.] Commissioners' Opinion, Division No. 1. Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by the Standard Stone Company, a corporation, against Clarence Greer and others. Judgment for defendants, and plaintiff brings error. Dismissed. Ralsa F. Morley and Randolph, Haver & Shirk, all of Tulsa, for plaintiff in error. Rice & Lyons, of Tulsa, for defendants in error. BREWER, C. Appellant, Standard Stone Company, a corporation, brought this suit, in the superior court of Tulsa county, for the purpose of obtaining an injunction against defendants in error. Appellant alleged, sub to an injunction to prevent owners or others from going on property in which it was no longer interested. Bryan v. Sullivan, 29 Okl. 686, 119 Pac. 124; McCullough v. Gilcrease, 40 Okl. 741, 141 Pac. 5; Canadian Trading Co. v. Ralls et al., 42 Okl. 759, 142 Pac. 1033; Ham v. McNeil, 27 Okl. 773, 117 Pac. 207; Edwards v. Welch, 29 Okl. 335, 116 Pac. 791; Sneed v. State ex rel. Yoeman, 27 Okl. 259, 111 Pac. 203; Freeman v. Bd. Med. Examn'rs, 20 Okl. 610, 95 Pac. 229. Appellant does not deny but what this would be ordinarily a proper application of the law; but he says that this case presents an exceptional circumstance, which not only makes it proper, but requires that it be decided on its merits. This argument is founded on the claim that when it obtained the original restraining order, which lasted only until the matter could come up for hearing, he gave a bond, and that this fact causes a dismissal here to aid |