sive improvements made, the boundaries so was not easily ascertained. Most of the generally accepted and recognized for many original marks and monuments had disap years, lends some support to the survey. peared, but there were some recognized mon50-Owner of build-uments found by the surveyor. One of these surveyors stated that

4. Adverse possession

ing projecting on land of another held pre'cluded by recognition from claiming by adverse possession.

In boundary dispute, evidence that, when an earlier survey of lots in question was made. one of the parties recognized that some of her improvements were upon the adjoining lot and that she tried to purchase the strip from the owner thereof, precludes title by adverse possession.

Appeal from District Court, Butler Coun- of success." ty; Allison T. Ayres, Judge.

As he states, some old stakes were found in such a state of preservation as to furnish identification, and also stakes set many years ago which had been set by a railroad company that had purchased lots and was inAugus-terested in finding established lot lines. All of these tended to confirm the boundary line

Proceeding by Minnie Ralston against Grover Dwiggins in the matter of a survey of J. Homer Austin, County Engineer. From the survey made, plaintiff appeals. Affirmed. N. A. Yeager and R. A. Cox, both of ta, for appellant.

C. W. McVickers, of Wichita, for appellee. fixed in the survey in question. It was also

JOHNSTON, C. J. This is an appeal from the survey of a line between 11 and 12, in block 27, of the city of Augusta, lot 11 being owned by Grover Dwiggins and lot 12 by Minnie Ralston, and the controversy involves a strip of ground about 6 feet wide. On the plat the lot of Dwiggins appears to be 50 feet wide, while that of Ralston, which was on the north side of the town site, was shown to be 40 feet wide. The survey in question as made established the line so as to give Dwiggins a full 50-foot lot, while it left a shortage in lot 12 owned by Ralston In her appeal she contends that the survey which was made by the county engineer, Austin, was incorrectly made. A great deal of testimony was taken in the district court on the hearing of the appeal, and at the close of the trial the case was taken under advisement. Later the court ordered that another survey be made as a test of the former one, and this was made by Barnes, the successor of Austin, who in the interim had resigned his office, and the survey made by Barnes was confirmatory of that made by Austin. Appellant still contended that the surveys were incorrect, and the trial court ordered that there should be a further survey by a surveyor from another county, and one was made by Ruggles, the county surveyor of Cowley county, with the result that his findings and report supported those made by Austin and Barnes. On these findings and other testimony, some of which was conflicting, the trial court reached a decision in favor of Dwiggins.

[1] The question of the boundary line between the city lots is one of fact. The original survey was made many years ago, when Augusta was organized. How the plat was placed on the ground by the original survey

confirmed by a recognized and recorded monument near the center of the city, according to which many substantial buildings had been erected and improvemeents in streets and alleys had been made. These stakes and original monuments cannot be ignored. It has been said that

"The primary rules for locating city plats upon the ground are, in order of precedence in application, as follow: (1) Find the lines actually run and the corners and monuments actually established by the original survey. (2) Run lines from known, established or acknowledged corners and monuments of the original survey. (3) Run lines according to In re Richardson, 74 Kan. 557, 87 Pac, 678. courses and distances marked on the plat."

[2] It is urged that the section line was the proper base line which the surveyors should have ascertained and from which his measurements and calculations should have been made. That leaves out of consideration the original survey as actually located upon the ground. A certain hedge fence is spoken of as having been used as a base line in early days, but time has erased that mark. The monuments and marks found by the surveyor furnished, reasonably good evidence in locating the original survey. In Ayers v. Watson, 137 U. S. 584, 11 Sup. Ct. 201, 34 L. Ed. 803, it was held in effect that, in ascertaining the lines of lands, the tracks of the surveyor, so far as discoverable on the ground with reasonable certainty, should be followed, and marked trees designating corners or lines on the ground should control both parties, and that, where the survey of land has been actually run and measured and ascertained, monuments are referred to in it, the footsteps of the surveyor may be traced backward as well as forward, and any ascertained monument in the survey may be

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(225 P.)

adopted as a starting point where difficulty exists in ascertaining the lines actually run. The court remarked that

"The beginning corner does not control more than any other corner actually well ascertained, and that we are not constrained to follow the calls of the grant in the order [they] stand in the field notes, but are permitted to reverse [them] and trace the lines the other way, * * whenever by so doing the land embraced would most nearly harmonize all the calls and the objects of the grant."

See, also, Hord v. Olivari (Tex.) 5 S. W. 57; Ocean Beach Ass'n v. Yard, 48 N. J. Eq. 72, 20 Atl. 763.

[3] The survey approved appears to conform with the recognized boundary line of lots in the city upon which buildings have been erected and expensive improvements made. The boundaries so generally accepted and recognized for many years lends some support to the survey approved by the court. Tarpenning v. Cannon, 28 Kan. 665. The surveyor testified that, if appellant's theory was adopted, "it would move every exist ing improvement in town six feet." A consideration of all the evidence leads us to the view that the decision of the trial court as to the boundary line of the lots should be sustained.

[4] There is a further contention that the appellant was entitled to the strip in question through adverse possession because a small building and some other improvements projected beyond the boundary line as fixed by the court. Such possession as existed cannot be regarded as adverse between the parties. Appellee was claiming the full extent of his lot, and an essential consideration is the intent with which possession is taken and held. There is testimony that when an earlier survey was made showing the boundary line, appellant recognized that some of her improvements were upon appellee's lot, and that time she tried to purchase the strip from appellee's grantor. In no view can it be held that appellant is entitled to the strip upon the ground of adverse possession. The judgment is affirmed.

All the Justices concurring.

RIGHT WAY LAUNDRY v. DAVIS. (No. 12928.)

(Supreme Court of Oklahoma. April 8, 1924.)

(Syllabus by the Court.)

1. Bailment 31(1)-Burden on bailor to establish negligence of bailee in failure to redeliver goods; showing of delivery of property and refusal of bailee to redeliver casts burden of explanation on bailee.

In an action by the bailor against the bailee for hire to recover the value of a suit

Where it was made to appear by the evidence of the defendant that the suit of clothes was injured and destroyed for all practical purposes by fire caused by an explosion in the tumbler, where it was in the process of drying, it was a question for the jury, under proper instructions, to say whether the loss was caused by the negligence of the defendant. 3. Partnership 200, 218(2)—Action of tort maintainable against one member of partner. ship without joining other; instruction that partner liable for obligations of partnership held not reversible error.

An action of tort may be maintained against one member of a partnership without joining the loss of a suit of clothes brought against the other; and, in an action to recover for one member of a partnership engaged in the cleaning and pressing business, where it was made to appear by the evidence that the suit was delivered to the defendant and received by him and delivered to the partnership to be cleaned and pressed, it was not reversible error to instruct the jury that, if they "found by a preponderance of the evidence that either the defendant or the partnership was liable, then, and in that event, the defendant would be liable for the obligations of the partnership."

Commissioners' Opinion, Division No. 1. Appeal from County Court, Tulsa County; Z. I. J. Holt, Judge.

Action by Earl Davis against the Right Way Laundry. From judgment for plaintiff, defendant appeals. Affirmed.

Nelson & Blair, of Tulsa, for plaintiff in

error.

S. E. Dunn, of Tulsa, for defendant in error.

RAY, C. Plaintiff alleged in his bill of particulars that he delivered to the defendant one suit of clothes of the value of $50 for the purpose of having it cleaned and pressed, and the defendant received it for that purpose, and had failed and refused to return it, although demand had been made therefor. Plaintiff testified that he delivered the suit in the morning to a young lady in the front of the building, where they received laundry packages; that he went back that afternoon to get the suit, and was informed that it had been burned up during the day; the gas tank had exploded and caught fire and burned up the suit.

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The statement by plaintiff that he was informed that it had been destroyed by fire was not evidence that it had been so destroyed. It was merely a statement of the excuse given for not making delivery.

In the body of the opinion in Smith v. Maher, 84 Okl. 49, 202 Pac. 324, 23 A. L. R. 270, Justice Kennamer said:

It is contended that the plaintiff's evidence | hire is only required to exercise ordinary showed that the damage to the suit was care, and that, when it was disclosed by the caused by fire, and the plaintiff having fail- evidence that the bailed property had been ed to show any negligence on the part of the destroyed by fire, the burden was on the defendant which caused the fire, the court plaintiff to show negligence on the part of should have sustained defendant's demurrer the defendant. The court so instructed the to the evidence. jury, and no question is raised as to the instruction. It was a question for the jury to decide under the court's instructions whether or not the defendant had exercised ordinary care, and we think the jury reached a correct conclusion. It was not shown that any other property was destroyed but this particular suit of clothes. "It was badly burned. It was ruined for practical purposes." It was destroyed while in the tumbler, a machine used by cleaners to expedite the process of drying which required expert knowledge to operate. The tumbler being in a steel and concrete room with fire extinguishers, and steam to fight the fire in case of an explosion, which meet with the approval of the fire marshal, no doubt tend to make the building reasonably secure from destruction by fire, but there was no evidence to show that such appliances could prevent the loss of the clothes at the time in the tumbler where the explosion occurred. In fact, the contrary was made to appear. The witness, Cheatham, testified that he handled the suit after the fire, and "I usually look all that stuff over," and "usually if it doesn't burn them it singes them and they just wad up." An explosion is sudden, and it cannot be presumed that fire-fighting appliances could be put in operation in time to prevent the singeing of the clothes which were in the tumbler where the explosion occurred. In such case the burden is on the bailee to show that ordinary care was exercised to avoid an explosion.

"The rule seems to be supported by the great weight of modern authority that proof of the delivery of chattels by bailor to bailee in good condition and the failure of the bailee to make a redelivery of the property where he has been in the exclusive possession of the same or a return of it in a damaged condition is prima facie evidence of negligence sufficient to cast upon the bailee the burden of accounting for nondelivery or the injury. This rule does not conflict with the rule that burden is upon the plaintiff to establish negligence, but this burden has been met when the bailor establishes the delivery of the property to the bailee and the nondelivery on the part of the bailee at the time a redelivery is due the bailor. The plaintiff in an action of this kind has established his cause of action when he proves the delivery of the property to the bailee and a failure or refusal of redelivery by the bailee. 6 C. J. (Bailments) § 160; Stone v. Case, 34 Okl. 5, 124 Pac. 960, 43 L. R. A. (N. S.) 1168; Beck v. Wilkins-Ricks Co., 179 N. C. 231, 102 S. E. 313, 9 A. L. R. 554; Ware Cattle Co. v. Anderson et al., 107 Iowa, 231, 77 N. W. 1026, 3 C. J. § 79; Crawford v. Cashman & Son, 82 Mo. App. 554; Nutt v. Davison, 54 Colo. 586, 131 Pac. 390, 44 L. R. A. (N. S.) 1170."

It is contended that the court erred in giving the following instruction:

"You are instructed that, if you find from the evidence that the defendant is a general partner in the Right Way Cleaners, and you find by a preponderance of the evidence that either the defendant or the Right Way Cleaners are liable to the plaintiff in this cause, then and in that event you are instructed that the Right Way Laundry would be liable for the obliga. tions of the partnership."

The defendant's evidence showed that the suit was in the tumbler, where it was being dried, when an explosion from some unknown cause caused a fire in the tumbler, which so burned it that it was destroyed for all practical purposes. The only way that defendant's witnesses could account for the explosion was that a match in some garment had escaped the detection of the cleaner, or that it was caused by two garments rubbing together. Evidence also showed that the tumbler was in a steel and concrete room The defendant filed no answer, and its dewith doors and windows that passed the in-fense was first disclosed by the introduction spection of the fire marshal, and fire extin- of its evidence. The evidence of the defendguishers were maintained by which they ant showed that the defendant, the Right could turn a 2-inch line of steam into any machine, and that steam is the best extinguisher for gasoline fires. No evidence was offered as to who was actually in control of the tumbler at the time, or that any one had actually examined all the garments in the tumbler at the time for matches, but defendant relied on the evidence that they had a man for that purpose.

Way Laundry, was a corporation engaged in the laundry business, and occupied the front portion of the building; that at the time the suit was delivered the Right Way Cleaners, a partnership composed of two individuals and the Right Way Laundry, and in which the Right Way Laundry had a one-half interest, conducted a cleaning and pressing business in the rear of the laundry building; [1, 2] It is contended that the bailor for that packages for the laundry were received

(225 P.)

eral, as well as joint, the party injured may, at his election, either sue all the partners, or any one or more of them for the tort; and it will constitute no objection that his partners were also concerned in it. This is a rule by no means peculiar to partnerships; but it extends to all cases of joint torts and trespasses at the common law, whether positive or constructive."

in the front end of the building, and for, follows that they must all be sued. On the cleaning and pressing at the back door, ex- contrary, as the law treats all torts as sevcept in the mornings before any one had arrived at the cleaning establishment, packages were received by the laundry at the front of the building and delivered to the cleaners when they arrived, and that a book was kept by the laundry for recording the receipt of such packages. The undisputed evidence was that plaintiff delivered this particular suit of clothes to the girl in the cage in the front of the building who was receiving packages for the laundry. At the time of the trial the partnership had ceased to exist, and the defendant owned the Right Way Cleaners.

"While each partner is liable in solido for all debts of the firm, one partner cannot be sued alone, unless he has by some act rendered himself severally liable; and each partner has a right to require all who are jointly liable with him to be made parties to a suit upon any partnership liability."

[3] This is a correct statement of the law as applied to the facts in that case. That was an action dealing with a contract of a partnership. The action here is for tort, and an entirely different rule applies. It was so held by this court in Holden v. Lynn, 30 Okl. 663, 120 Pac. 246, 38 L. R. A. (N. S.) 239,

where it was said in the syllabus:

"An action of tort may be brought against one member of a partnership without joining the others."

We think the judgment should be affirmed.

NEGIM & CO. v. HARP et al. (No. 13415.) (Supreme Court of Oklahoma. April 8, 1924.)

(Syllabus by the Court.)

Corporations 426(10)—Corporation held estopped to deny authority of secretary to contract for legal services.

Plaintiffs performed legal services for defendant corporation at the instance and request of its secretary, then in charge of its business. Plaintiffs procured the approval of the president of the corporation, who was in another state, not of their employment, but of things they were doing in the course of such employment. Defendant corporation received the benefits of the services rendered without

objection. Held, such corporation was estopped to deny the agency or authority of such

secretary in employing plaintiffs.

Commissioners' Opinion, Division No. 2. Appeal from County Court, Ottawa County; Q. P. McGhee, Judge.

Action by Jesse A. Harp and another

In the body of the opinion, Ames, C., against Negim & Co., for legal services on

speaking for the court, said:

"It is next urged that the cattle in question belonged to the firm of Halton & Holden, and that Holden could not be sued alone, and in support of this proposition Cox v. Gille Hardware, etc., Co., 8 Okl. 483, 58 Pac. 645; King v. Timmons, 23 Okl. 407, 100 Pac. 536; and section 5008, Comp. Laws 1909, are cited. Both of the cases, however, deal with con

tracts of partnerships, and hold that, in an action on contract, one member of the firm cannot be sued without joining the others; and in Cox v. Gille Hardware, etc., Co., the statute referred to is construed as merely declaratory of the common law. While the rule contended for by counsel applies in the case of contracts, we do not think it is applicable in case of torts. Story on Partnership (7th Ed.) par. 167; 1 Bates on Partnership, par. 471; 1 Lindley on Partnership (2d Am. Ed.) p. 667, star page 283."

implied contract. Judgment for plaintiffs, and defendant appeals. Affirmed.

Geo. T. Webster, of Miami, for plaintiff in

error.

Jesse A. Harp, of Baxter Springs, Kan., for defendants in error.

ESTES, C. Defendants in error sued plaintiff in error. Parties will be referred to as they thus appeared in the trial court. Plaintiffs allege that they were practicing attorneys; that defendant was a mercantile corporation doing business at Picher, Okl.; that at the special request of Mrs. Mittie Negim, who was then in charge of said business, plaintiffs rendered legal services for defendant in and about the matter of a threatened receivership proceeding against defendant; that they effected a compromise agreement with the creditors of defendant,

Story on Partnership, p. 167, supra, lays and rendered other services; that said serv

down the rule as follows:

ices were reasonably worth the sum of $1,"Torts Several as Well as Joint. But in all 000. Defendant answered by verified gencases of this sort, although the partners are eral denial, specifically denying the authorjointly liable as wrongdoers, it by no means ity of the said Mrs. Mittie Negim to employ

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plaintiffs for defendant corporation. On verdict of the jury, judgment was for plaintiffs for $350. The numerous errors assigned by the defendant will be disposed of under the main contention that the employment of plaintiff's was without authority.

Mrs. Mittie Negim owned practically all of the stock of defendant corporation, was its secretary, and was in charge of its business at the time of the alleged employment of plaintiffs. Her husband, Mr. Negim, was the owner of one share of the stock, was president and manager, and, at the time of the alleged employment, was in jail in Kansas. Said wife came to plaintiffs for advice on the company being threatened with receivership by one large creditor. Plaintiffs advised her, prepared a contract for temporary receivership, went to Kansas and interviewed said husband in jail, obtained his approval of the contract, thereby effecting a settlement with this creditor. The jury found these services to be of the value of $350, and defendant raises no contention on this behalf.

The following rule from 14a C. J., 368, is applicable to the foregoing facts:

"It is a general rule that where a corporation by any acts or conduct knowingly causes or permits a person to act as its agent either generally or for a particular purpose, or a particular officer or agent, to act in excess of his actual authority, it will be estopped to deny such agency or authority to the injury of a third person who, in good faith and in the exercise of reasonable prudence, deals with such officer or agent on the faith of such appearances, although there is no actual fraud on the part of the corporation, and although the facts are not sufficient to constitute a ratification. Sapulpa County v. State ex rel. etc., 64 Okl. 68, 166 Pac. 119; Jack v. Wichita National Bank, 17 Okl. 430, 89 Pac. 219.

*

It is further laid down that in such cases

a corporation will be estopped on the ground of acquiescence to deny such authority, where it has knowledge of things so done and does not promptly object thereto.

ESTES, C. The Acme Drilling Company, under contract, was drilling an oil and gas well for defendants in error near Okmulgee. Plaintiff in error, Bourland, sued defendants in error for $352 for transporting a pumper, Hunt, to and from said well. Plaintiff alleged that one Bowser was the agent of defendants in charge of drilling and supervising said well; that said Bowser employed plaintiff to haul said Hunt at $4 per trip from the city of Okmulgee. Defendants, by verified answer, denied that they ever thus employed plaintiff, and denied the agency of Bowser to employ plaintiff. Judgment was for defendants on demurrer to plaintiff's evidence.

Did the court err in sustaining such demurrer? There is some evidence tending to show that Bowser acted for some of defendants in certain matters in and about the drilling. Plaintiff testified that Hunt em

Defendant contends that the court committed error in permitting witnesses to testify to conclusions. This contention is purely technical and without merit. Such conclusions as were admitted were cured by subse quent testimony and were harmless. Defendant further contends that there was er-ployed plaintiff to haul the latter. On crossror in the instructions given, and in refusal to give those requested by the defendant. This seems to be due to the belief of counsel that the instant suit is one on a specific contract. The action is on an implied contract for the reasonable value of services.

The

record discloses that the cause was fairly

tried, and that there were no errors prejudicial to the rights of the defendant.

examination Hunt testified:

"Q. What was the conversation when Bowser employed you? A. Well, he just asked me did I think I could run the pump, and I told him, 'Yes,' and he asked me did I have a way to get out, and I told him, 'No,' I could get the

jitney driver to haul me out, and he said all

right.

"Q. As a matter of fact you were supposed to furnish your own conveyance-you were doIt is recommended that the judgment of ing the work for four and a half a day-that the county court herein be affirmed.

was your pay to pump that water, for four and

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