BEARD, C. J. This suit was commenced [ upon the piece or parcel of land, situate, lying in the district court of Fremont county by and being in the county of Fremont, state of the plaintiff in error against the defendant Wyoming, and more particularly known and in error to recover the amount alleged to be described as follows, to wit: Northeast quardue on a certain written contract for water ter of southeast quarter of section thirty-four; north half of southwest quarter and northwest rights for certain lands of defendant situ- quarter of southeast quarter of section thirtyated in said county, and for the foreclosure five, all in township one north of range four, of said contract. The defendant filed a east of Wind River meridian, containing one cross-petition or counterclaim claiming dam- hundred and sixty acres." ages for alleged failures of plaintiff to furnish defendant with sufficient water, as re a quired by the contract, during the years To sell to the defendant "four perpetual wa- The consideration to be paid for each of said water rights was $1,000, payable in installments; the first payment on each right to be $200, and the balance to be paid in five annual payments thereafter, of $160 each. The time for making the first payment, according to the printed contract, was when notice was given by plaintiff to defendant that it was ready to deliver water. That date was changed in writing upon the margin of the contract before the contract was executed, so that the first payment on one of said water rights was to be made October 1, 1907, and on the other three October 1, 1908. It was provided, among the numerous terms and conditions in said contract: "If from hostile diversion or obstruction, forcible entry, temporary damage by flood, or other accident, or any other cause beyond the control of said party of the first part, its successors or assigns, the full amount of water herein contracted for cannot be furnished as herein provided, the said party of the first part, its successors or assigns, shall not be in any way liable because of any such shortness or deficiency of water supply occasioned by any of said causes." The contract was executed May 8, 1907. It is very long, but we think the foregoing statement covers all of the terms thereof which are involved in this action. On the trial the court instructed the jury, in substance, that under the pleadings and evidence there was due and owing to the plaintiff from the defendant under the contract the sum of $5,671.64, and that it should render a verdict for that amount in favor of plaintiff and against defendant on the causes of action set out in plaintiff's petition. The jury returned its verdict as directed on plaintiff's causes of action. On the causes of action set up in defendant's cross-petition or counterclaim, the jury returned its verdict in favor of the defendant and against the plaintiff in the sum of $12,556.89. The (2) jury also by direction of the court returned special finding from which it appears that, of said last-mentioned verdict, $8,312.55 was principal, and $4,244.34 was interest. court set off the amount of the verdict in favor of plaintiff against the amount of the verdict in favor of defendant and gave judgment in favor of defendant and against plaintiff for the difference, to wit, $6,885.25, party of the first part, its successors or assigns, in accordance with such rules as its board of trustees shall from time to time determine. (3) Said water shall be used for domestic and irrigation purposes only and only and costs. The At the close of defendant's evidence, plaintiff orally moved the court to direct a verdict in favor of plaintiff and against defend (182 P.) ant on the cross-petition or counterclaim on the ground of insufficiency of evidence to sustain the same. The motion was denied, and that ruling is assigned as error. Also, at the conclusion of the evidence, plaintiff filed a motion to dismiss the cross-petition and to strike out all evidence taken thereunder for the reason that under the terms of the contract plaintiff was not required to furnish defendant water until the first payment was made, and that it was admitted that the first payment was not made until May 15, 1911. Also, a motion for judgment in favor of plaintiff and against defendant on the cross-petition, on the ground that neither the cross-petition nor the facts therein alleged nor the evidence were sufficient to support any claim for damages. Said motions being denied, the rulings thereon are assigned as error. ing the irrigation season of that year, to the defendant's damage, it was not in a position to complain that defendant did not make the payment October 1, 1907. The damages for that year, if any, were sustained before anything was due. [2] It is contended that the cross-petition fails to allege a breach of the contract, in that it does not allege a failure to deliver water within three miles of defendant's land. It is alleged in the cross-petition, in substance, that under the terms of the contract plaintiff agreed to deliver sufficient water to irrigate the lands described to the amount of one-half cubic foot per second of time for each of said water rights during the irrigation seasons of 1907 and 1908, and that it failed to do so. In its answers to said crosspetition, and to each count thereof, plaintiff says: "It admits that, under the terms of said water contract, the plaintiff contracted and agreed to deliver, at the point of delivery determined upon by the plaintiff, the amount of water in said water contract provided for." [1] There was no error in either of those rulings. By the express terms of the contract, the first payment on one of the water rights was not to be made until October 1, 1907, and on the other three October 1, 1908; and the evidence was to the effect that the irrigation season in each year ended about October 1st. The motions covered the entire claims and were not good for that reason, and also for the reason that there was evidence which required the court to submit the questions of fact to the jury. The time when plaintiff was to commence the furnish-breaks were repaired as speedily as possible. ing of water was not definitely fixed by the contract, nor was the point of delivery defl nitely stated, but it was to be at some point within three miles of the land, which point of delivery was to be determined by plaintiff. The undisputed evidence of the manager of plaintiff is that at or about the time the contract was signed he told defendant that plaintiff would build a lateral to her place. He testified as follows: "Q. I ask you the question if you didn't tell Mrs. Laporte in 1907 that, if she would sign the contract, you would bring the lateral to the corner of her fence free of cost? A. I don't know that I told her if she would sign the contract I would do that. I told her I would build the lateral to her place. Q. Free of cost? A. Free of cost." Plaintiff constructed the lateral accordingly, and commenced the delivery of water in the latter part of May or forepart of June, 1907. By so doing the point of delivery was determined by the plaintiff, and the lateral so constructed was a part of its irrigation system and under its control. The lateral and the right of way for the same were the property of plaintiff, and the claim that this was not done under the contract is without merit. No other time or point of delivery is shown by the evidence. Plaintiff having determined and stated to defendant at what point it would deliver the water, and having commenced to do so in the spring of 1907, if, as defendant alleged, it failed to do so dur And it also avers that, if at any time during said irrigation season it failed to deliver the full amount of water contracted for, it was through its inability so to do by reason of breaks in its canal caused by floods and other causes beyond its control, which If there was any defect in the cross-petition, it was cured by plaintiff's answer thereto. [3] It is further contended that the court erred in refusing to submit to the jury 29 special findings requested by plaintiff. The court at plaintiff's request submitted to the jury eight other special findings by which the jury was required to find the amount of damages, if any, sustained by defendant to each kind of crops, and for each of the years 1907 and 1908. The court fully instructed the jury as to the measure of damages and what it should consider in arriving at the amount, as follows: "You are further instructed that should you find for the defendant on her cross-petition, in assessing the defendant's damages you will find for her the difference between the market value of the crops when matured that they would have made (if there be any difference), and that they did make (if there was any difif any you find, such sums of money that the ference), and you will deduct from this amount, defendant would have had to expend that she did not expend, in harvesting, maturing, threshing, and placing said crops on the market." The jury found specially the amount of damages it awarded defendant on each kind of crops for each of the years 1907 and 1908; and it must be assumed that in fixing the several amounts that it followed the instructions; and we think the questions' submitted to the jury and its answers thereto sufficiently show that it did so. The submission of special findings to the jury is a matter largely within the sound discretion [ court having refused to grant a new trial, of the trial court. "Much latitude within general rule govern ing the practice must be accorded to the trial court, and only when there appears to have been a clear abuse of judicial discretion prejudicial to the complaining party will the action of the court in the premises justify a reversal of the judgment." Wallace v. Skinner, 15 Wyo. 233, 256, 88 Pac. 221, 226. Applying that rule to the case at bar, it does not appear that the court abused its discretion in refusing to submit the special findings complained of. and there appearing in the record sufficient substantial evidence to support the verdict and judgment, under the well-settled rule, this court will not reverse a judgment on that ground. Furthermore, several witnesses testified by referring to two maps, only one of which was put in evidence, and in describing the location of lands, canals, laterals, and headgates evidently pointed out those places on the maps using such expressions as: "This land here. There was a division box here that put water into this ditch. The land on the west side of the railroad would be irrigated from this here," etc. (No railroad being shown on the map in the record.) Those are but samples of the testimony of several witnesses, which the jury could understand and apply, but which are unintelligible to one reading the testimony. [6, 7] There is but one other question in the case which we deem necessary to consid [4] Plaintiff objected and excepted to the admission in evidence of the deposition of the witness Richards on the ground that it had not been reduced to writing until the day it was offered to be read to the jury, and plaintiff had had no opportunity to file objections under the statute to the deposition. The deposition of this witness was taken by agreement by a stenographer in shorthand, and it was agreed that it should be tran-er, and that is the question of interest on the amount of damages the jury found the scribed; that it should not be read in evidefendant had sustained. Those damages dence until so transcribed; that the stenogwere entirely unliquidated, and the general rapher should not be called as a witness, rule is that interest is not allowed on unliq"and when transcribed by him may be used uidated damages. To that rule there are in evidence in the above-entitled cause, sub- certain recognized exceptions, viz., demands ject to all objections to such evidence, which based on market values, susceptible of easy shall be passed upon by the court before such proof, and in cases where the amount is cadeposition is read in evidence." It may be pable of being ascertained by mere computaconceded that the parties intended to have tion. Kuhn v. McKay, 7 Wyo. 65, 49 Pac. the court rule upon the objections before the 473, 51 Pac. 205; City of Rawlins v. Murphy deposition was read; but it appears that et al., 19 Wyo. 238-253, 115 Pac. 436. In the each objection was ruled upon as the ques- present case the amount of damages was not tions were read, and we are unable to see susceptible of easy proof, nor could it be ashow the plaintiff was in any way prejudiced certained by mere computation. Many witby that method. It does not appear that the nesses were called to testify to the facts necanswer to any question to which the objec-essary to a determination of the amount of tion was sustained was read to the jury. Very many objections were made and exceptions taken to the rulings of the court in admitting and excluding offered testimony; the motion for a new trial containing more than 40 pages of typewritten questions, objections, rulings thereon, and the answers when the evidence was admitted. It would serve no useful purpose, and would require a volume of the reports, to discuss them separately. Very many of the objections go to the weight rather than to the competency, relevancy, or materiality of the testimony. A careful reading of the entire evidence in the record satisfies us that no such prejudicial error, if error at all, was committed in that respect as would justify a reversal of the judgment on that ground. [5] It is argued at great length in the brief that the verdict and judgment are not sustained by the evidence. On that question it should be sufficient to say that the evidence is conflicting, and the jury having passed its judgment upon it, and the trial the damages, and there was a substantial conflict in their testimony. We think the case is one clearly within the general rule and that it was error to allow interest. But, as the jury by its special findings stated the amount of interest it allowed, the judgment should not be reversed on that ground, but should be modified by deducting the amount allowed as interest from the amount of the judgment. The judgment being for $6,885.25, of which amount $4,244.34 is interest, the latter sum will be deducted from the former, leaving a balance of $2.640.91, for which amount the judgment is affirmed, and the cause remanded to the district court, with directions to modify the judgment ac cordingly. Each party to pay one-half of the costs in this court, except that no costs will be taxed to either party for briefs. Modified and remanded. POTTER and BLYDENBURGH, JJ., concur. (182 P.) (75 Okl, 250) (Syllabus by the Court.) 1. APPEAL AND ERROR 1061(1)-HARMLESS ERROR-TRIAL BY COURT-DEMURRER TO EVIDENCE. for new trial was overruled, and he brings error. Affirmed. W. H. Kornegay, of Vinita, and W. A. Chase, of Nowata, for plaintiff in error. W. P. Thompson, of Vinita, Tillotson & Elliott, of Nowata, and Ames, Chambers, Lowe & Richardson, of Oklahoma City, for defendant in error. Chas. D. Welch, of Coffeyville, Kan., and Thos. J. Flannelly, of Independence, Kan., for defendant in error Prairie Oil & Gas Co. In the trial of a law action, all of the issues, both of fact and law, were submitted to the court without the intervention of a jury. At the conclusion of the plaintiff's testimony, JOHNSON, J. This is an appeal from the and after he had rested his case, defendants district court of Nowata county, and this demurred to the evidence, and at the same time requested the court to render judgment in their action was commenced by E. M. Lowrance, favor as prayed for in their answers. The plaintiff in error, as plaintiff below, against court sustained the demurrer, made special Wade S. Standfield and D. W. Henry, defindings of fact, and rendered a decree in fa- fendants in error, who were defendants bevor of the defendants. Held, that while the low, on the 4th day of October, 1912, and on judgment of the court sustained the demurrer, the 7th day of May, 1913, the plaintiff, by yet, having made special findings of fact, it permission of the court, filed an amended was obvious that the court weighed the plain-petition making the Prairie Oil & Gas Comtiff's testimony for the purpose of determining the rights of the respective parties, and the whole case being before the court, and there being evidence reasonably tending to support the court's findings, no reversible error committed. 2. TRIAL 383 was TRIAL WITHOUT JURY out a jury, the court must eventually weigh 3. APPEAL AND ERROR TECHNICAL Error. This court is required by statute to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. pany, a corporation, a party defendant. The amended petition, upon which the case was tried, alleged that in 1904 plaintiff resided in what is now Nowata county, Okl., and had under his control a considerable body of land thought to be valuable for oil and gas, and was well acquainted with persons in that neighborhood owning and con trolling similar lands; that in that year it was agreed between the plaintiff and defendants Henry and Standfield that they would form a partnership for the purpose of procuring and operating oil and gas leases in the neighborhood of Alluwe, Okl.; that it was agreed that the plaintiff and defendant Standfield should each contribute his time and services to procuring land and oil leases on land, that the defendant Henry should 1170(1)-REVIEW- pay the expenses for procuring the leases, and that after the leases were procured they should belong to all three of the parties jointly and should be operated by them jointly under the name of the Terre Haute Oil & Gas Company; that pursuant to the said agreement all three of the parties contributed some means and some time to procuring oil and gas leases, and as a result of their joint labors a large amount of leases and the fee to some land were secured, some in the name of D. W. Henry and some in the name of Wade S. Standfield. The lands upon which it is alleged that leases were procured are then described, and it is alleged that in the operation of such leases and the profits derived therefrom the parties were to share equally. Then follows a Action by E. M. Lowrance against D. W. description of certain lands alleged to have Henry and Wade S. Standfield to establish been purchased in fee. It is alleged that it plaintiff's interest in an alleged partnership, was the agreement that plaintiff should go and against the Prairie Oil & Gas Company on the land and operate the same, that defor an accounting. Demurrers by defendants fendant Henry should have charge of the sustained, and on their motion there was a books of the partnership and the handling judgment in their favor, plaintiff's motion of the finances thereof, and that all operaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (Additional Syllabus by Editorial Staff.) 4. APPEAL AND ERROR 994(3) WITHOUT A JURY-EVIDENCE. TRIAL In cases triable to the court, where it makes findings, it is the sole judge of credibility of witnesses and the weight and value to be given their testimony, and must ultimately determine the facts proved. Error from District County. Court, Nowata tions should be carried on in the name of the Terre Haute Oil & Gas Company. It is further alleged that the defendants have received $100,000 more than was necessary to pay the expenses of operation, and have refused to account to the plaintiff for any part thereof, or to recognize him as a partner or as having any right or interest in the alleged partnership. And the plaintiff prayed a decree declaring him a partner with the defendants and defining the extent of his interest in said partnership and for an accounting. The separate answers of the defendants Henry and Standfield denied that in 1904, or at any other time, the plaintiff had under his control a considerable body of land, or any body of land whatever, thought to be valuable for oil and gas. They alleged that the plaintiff was a white man, not entitled to an allotment, and that it was contrary to public policy and in violation of the laws and treaties governing for the plaintiff to have under his control any land except the individual allotments of his minor children, Edith Lowrance, Addie L. Lowrance, and Arthur Lowrance, of whom he was the natural guardian, and of whose land he had control, if at all, solely as trustee of the said children, and with which he was precluded from dealing for his own profit, and on which he was forbidden by law to take or give any oil or gas lease for himself or in which he was personally beneficially interested, and on which he had no power to execute an oil and gas lease at all, or to contract to do so. The defendants denied that in the year 1904, or at any other time, any contract or agreement was made or entered into with the plaintiff to the effect that they would form a partnership for the purpose of securing and operating oil and gas leases in the neighborhood of Alluwe, Okl., or at any other place, or for any other purpose whatever, and the defendants denied that any partnership between them and the plaintiff was ever entered into and that they ever sustained a partnership relation with the plaintiff. The defendants further specifically denied all and singular the other allegations in plaintiff's amended petition. representing that he would be appointed legal guardian of said minors, and would execute to the said Henry a departmental lease upon the said lands for oil and gas purposes upon the customary terms, but there was no agreement or understanding that plaintiff was or was to become a partner of the said Henry with respect to said lands or leases, or any other lands or leases, or that the plaintiff was to have any interest therein whatever; that if there had been any such agreement or understanding, the same would have been a contract for the violation of a trust to be assumed, a contract to do a thing forbidden by law, and that said agreement and any contract into which the same entered would have been and would be illegal, contrary to public policy, and void. The defendants further allege that thereafter the plaintiff was duly appointed by the United States Court for the Northern District of the Indian Territory as the legal guardian of the persons and estates of his said two minor children, Addie L. Lowrance and Arthur Lowrance; that he accepted said appointment and duly qualified thereunder, and thereafter on or about the 23d day of March, 1907, that plaintiff as such legal guardian filed in the United States Court for the Northern District of the Indian Territory at Vinita, where said guardianship causes were pending, an application for an order of said court authorizing and directing plaintiff, as the legal guardian of said two minor children, to execute to the defendant Henry oil and gas mining leases upon the lands of said two minor children during the period of their minority, on the forms and under the rules and regulations prescribed by the Secretary of the Interior; that said application was duly heard and granted by the court, and thereupon the court made and entered its order authorizing the plaintiff, as the legal guardian of said two minors, to lease to the defendant Henry for oil and gas purposes, during the minority of said minors, their said lands, said leases to be made upon the forms and under the rules and regulations prescribed by the Secretary of the Interior, and further requiring that the plaintiff, as such guardian, enter into a good and sufficient bond in the sum of $500 for each minor, payable to the United States of America in trust for said minors, conditioned that said plaintiff should execute such leas The defendants alleged that certain lands in said answers described, upon which plaintiff in his amended petition alleged that oil and gas leases were procured for a partner-es with fidelity to the interests of his said ship consisting of plaintiff and these defend- wards, and well and faithfully account and ants, were the tribal allotments of plaintiff's turn over for the use of said minors all mondaughter Addie L. Lowrance and his son eys, rents, profits, or other things of value Arthur Lowrance; that they were each mi- that he might receive from the leasing of nors in 1904, and continued to be so until said lands; that pursuant to said order of June 28, 1911; that in the year 1904 the said court the plaintiff, in his fiduciary caplaintiff solicited the defendant Henry to pacity as the legal guardian of the persons take a lease upon the said allotments of said and estates of said two minors, executed and children and to advance him some money delivered to the defendant Henry, upon the thereon as a bonus for the use and benefit of forms and under the rules and regulations said minors, which Henry did, the plaintiff | prescribed by the Secretary of the Interior, |