charter (St. 1913, p. 1652 et seq.), which relate Rex B. Goodcell and Robt. M. McHargue, to the same subject-matter and are in conflict. both of San Bernardino, for appellant. T. [Ed. Note. For other cases, see Counties, W. Duckworth, of San Bernardino, for reCent. Dig. § 2; Dec. Dig. 3.] spondents.

3. COUNTIES 3-AMENDMENT OF CHARTERREPEAL BY IMPLICATION.

There is no inconsistency between the amendment, providing that all county officers, other than supervisors, shall be elected at each general election, and article 2, sections 1 and 2, of the original charter (St. 1913, p. 1652 et seq.), designating the county officers, repealing sections 1 and 2 by implication.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 2; Dec. Dig. 3.]

4. COUNTIES 3-COUNTY OFFICERS-"SHER

IFF"-"CORONER"--STATUTE.

CONREY, P. J. In this proceeding the plaintiff applied for a writ of mandamus, requiring the defendants to appoint some fit and proper person to the office of county coroner of the county of San Bernardino, the plaintiff claiming that there is a vacancy in that office. From a judgment in favor of the defendants, plaintiff appeals.

Pursuant to the provisions of section 72, art. 11, of the Constitution of California, the charter for the county was adopted at the general election of 1912, and thereafter ap

The "sheriff" of San Bernardino county, under County Charter, art. 2, § 1, (St. 1913, p. 1652 et seq.), providing that the sheriff shall be ex officio coroner, by virtue of his appoint-proved by the Legislature. Stats. 1913, p. ment as sheriff, becomes coroner of the county, and, when performing the duties of a coroner, he is, in contemplation of law, the coroner of the county as distinctly and completely as any other duly appointed or elected person would be, when lawfully performing those duties, the office of "coroner" being separate from that of sheriff, with separate duties provided by law. [Ed. Note. For other cases, see Counties, Cent. Dig. § 2; Dec. Dig. 3.

1652 et seq. That charter consists of seven articles. Six of those articles contained sections numbered 4, 5, and 6. Section 4 of article 1 made it the duty of the board of supervisors, at its first regular meeting after noon of the first Monday after the 1st day of January, 1915, to appoint each and all of the county officers provided for by the charter or by general law for a term of four years. Sections 5 and 6 of that article relate to the ap5. COUNTIES 3-AMENDMENT TO CHARTER-pointment and duties of deputies in the sev

For other definitions, see Words and Phrases, First and Second Series, Coroner; Sheriff.]

EFFECT-STATUTE.

Under Pol. Code, § 4013, providing for certain county officers and such other officers as may be provided by law, the amendment to the charter of San Bernardino county (St. 1915, p. 1727), providing that all county officers, other than supervisors, shall be elected, as provided by general law, and that their powers and duties shall be such as provided by general law, did not abolish the offices of county purchasing agent and county highway commissioner, created by articles 4 and 6 of the original charter (St. 1913, p. 1652 et seq.), the charter still having effect as to what county offices exist and their powers and duties.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 2; Dec. Dig. 3.]

6. COUNTIES 3 CHARTER PROVISIONS SUPERSESSION BY POLITICAL CODE-CONSTI

TUTION.

In view of Const. art. 11, § 72, authorizing the framing of charters by counties, subdivision 4, providing that county charters shall provide for the powers and duties of boards of supervisors and for the consolidation and segregation of county offices, the provisions of the charter of San Bernardino county (St. 1913, p. 1652 et seq.), as amended by St. 1915, p. 1727, providing that all county officers, other than supervisors, shall be elected at each general election, with respect to the consolidation of county offices, are not superseded by Pol. Code, §§ 4017, 4018, providing that boards of supervisors of counties may, by ordinance, consolidate the duties of certain officers.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 2; Dec. Dig. 3.]

Appeal from Superior Court, San Bernardino County; H. T. Dewhirst and J. W. Curtis, Judges.

Application for writ of mandamus by Hiram H. More against the Board of Supervisors of the County of San Bernardino and others. From a judgment for defendants, plaintiff appeals. Affirmed.

eral county offices.

At the general election held in November, 1914, the electors of San Bernardino county approved an amendment to the county charter, which amendment was duly approved by the Legislature by resolution which was filed with the secretary of state January 30, 1915. Stats. 1915, p. 1727. That amendment, without naming any article of the charter, purported to strike from the charter "sections 4, 5, and 6 of said charter," and insert in lieu thereof the following amendment, to be known as section 4 thereof, to wit:

"Section four (4): All county officers other than supervisors of said county shall be elected at each general election by the qualified electors of said county as is now or may be hereafter provided by general law, and all deputies and assistants to such county officers shall be appointed as is now or may be hereafter provided by general law; and the powers and duties of such officers, deputies and assistants shall be such as are now or may be hereafter provided by general law, and any part of this charter in conflict herewith is hereby repealed."

Section 1 of article 2 of the charter provides for certain county officers, including a sheriff and a coroner. Section 2 of the same article provides that:

"The following county officers are hereby consolidated: (b) The sheriff shall be ex officio coroner." Stats. 1913, p. 1656.

Section 4 of article 2 provides that: "Each county officer shall have the powers and perform the duties now or hereafter prescribed by general law as to such officer, except as otherwise provided by this charter; and shall have and perform such other powers and duties as are or shall be prescribed by this charter."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1-4] As an attempted direct repeal of any and county highway commissioner are abolsections of the original charter, the amend- ished by this amendment. The general law of ment is fatally defective because it is impos- the state provides for certain county officers, sible to determine what sections of the char- among whom are a sheriff and a coroner, and ter are intended to be repealed. But the "such other officers as may be provided by amendment is effective in that it adds to the law." Pol. Code, § 4013. The charter of San charter a new section, and by so doing im- Bernardino county is a law. If by general pliedly repeals those provisions contained in law the Legislature shall hereafter prescribe the original charter which relate to the same the duties of a county purchasing agent or subject-matter as the new section and are in of a county highway commissioner, such desconflict therewith. The county officers ap- ignation of the duties of the office will (under pointed in January, 1915, will continue to the above-quoted amendment of 1915) superhold their offices until the time regularly ap- sede the description of those duties as now pointed by general law for the election of contained in the charter. In the meantime county officers, at which time their succes- the designation of those duties as contained sors will be elected the same as if the present in the charter is not in conflict with any officers had been elected under the general general law, since the general law has not law. The charter amendment does not state spoken upon the subject. For these reasons what county officers shall exist in San Ber- we do not agree with counsel for plaintiff nardino county. Those officers are designated in their contention that the charter is no by sections 1 and 2 of article 2, and there is longer of any effect either as to what county no inconsistency between the amendment and offices exist or as to how they shall be filled these two sections which would require us to or as to what shall be their powers and duhold that the latter are repealed by implica- ties. tion. The office of coroner is a separate office from that of sheriff, with separate duties and powers as provided by law. The sheriff by virtue of his appointment as sheriff becomes coroner of the county; he is "ex officio coroner." When performing the duties of a coroner he is in contemplation of law the coroner of the county as distinctly and completely as any other duly appointed or elected person would be when lawfully performing those duties. Upon the facts of this case we think that there is no sound reason for holding that the office of coroner of San Bernardino county is at this time vacant.

[6] Our attention is directed to the fact that in sections 4017 and 4018 of the Political Code it has been enacted that boards of supervisors of counties may, by ordinance, consolidate the duties of certain officers named in section 4017, and that the consolidation of the duties of sheriff and coroner is not included therein. So it is urged that the effect of the provision of the charter that the sheriff shall be ex officio coroner is to impose upon him duties not imposed upon him by general law, and that under the very terms of the 1915 amendment the powers and duties of sheriff are limited to those provided by general law. Some light may be thrown upon this matter by referring to section 7%, art. 11, of the state Constitution, which authorizes the framing of charters by counties for their own government. It is therein provided (subdivision 4) that county charters shall provide

"for the powers and duties of boards of supervisors and all other county officers, for their removal and for the consolidation and segregation of county offices, and for the manner of filling all vacancies occurring therein; provided, that the provisions of such charters relating to the powers and duties of boards of supervisors and all other county officers shall be subject to and controlled by general laws."

[5] Counsel for plaintiff insist that the amendment, in providing that all county officers other than supervisors shall be elected as is now or may be hereafter provided by general law, and that the powers and duties of such officers shall be such as are now or may be hereafter provided for by general law, intended to refer only to those officers provided for by general law; and that thereby the amendment eliminated some county officers provided for by the charter. Article 4 of the charter provides for a county purchasing agent and article 6 for a county highway commissioner, defining their powers and duties. It is contended that since the general law does not provide any powers or duties for either of these officers, the offices no longer exist. From this it is argued that the provisions of the charter as to consolidation of certain county offices are no longer effective because such consolidation affects directly and materially the powers and duties of the officer. But we think that the consequences fore it is the Constitution rather than the charthus contended for do not follow. As we ter which constitutes the effective declarahave above suggested, the powers and duties tion of law upon the subject; a declaration pertaining to the office of coroner are not af- which in the same paragraph, above quoted, fected by providing that the person appoint- of the Constitution authorizes county chared as sheriff shall also be the coroner. Nei- ters to provide for the consolidation of counther do we see any reason for holding here ty offices. Having in view these provisions of

Thus it is seen that when the 1915 amend

ment of the San Bernardino county charter states that the powers and duties of the county officers shall be such as are or may be provided by general law, it merely repeats in substantially the same words the terms of the Constitution on the same subject. There

the charter amendment there is no valid court duly rendered on May 7, 1915, the court ground for holding that the charter provisions with respect to the consolidation of county offices are now superseded by the terms of section 4017 of the Political Code upon the same subject.

The judgment is affirmed.

We concur: JAMES, J.; SHAW, J.

(61 Okl. 206)

RENDER v. LILLARD.

(No. 7455.)

(Supreme Court of Oklahoma. July 25, 1916. Rehearing Denied Oct. 3, 1916. Leave to File Second Petition Denied Oct. 31, 1916.)

having previously heard, duly considered and overruled the defendant's motion for a new trial. The petition of the plaintiff, omitting caption and formal parts, reads as follows:

"The plaintiff, Ross N. Lillard, for his cause of action herein, says that he is a regular licensed practicing attorney at law of the state of Oklahoma and county of Oklahoma, and has been for the last past three years, with his office in the city of Oklahoma City; that on or about the 1st day of October, 1913, he was employed by one Minnie Bond and Julian R. Bond to institute suit in the district court of Oklahoma county, state of Oklahoma in the sum of $50,000 against one T. P. Gore for assault, and that on or about December 1, 1913, this plaintiff notified the said Minnie Bond and Julian R. Bond that he would not remain in said case any longer, unless ar153-PLEADING-rangements were made for a fee for his services in said cause, and that he then and there notified said parties that he would withdraw from the case unless the same was done, and thereupon, on or about the 1st day of December, 1913, the defendant, S. P. Render, came to this plaintiff and said to him that if this plaintiff would continue his services in said cause and not withdraw

(Syllabus by the Court.)

1. FRAUDS, STATUTE OF ISSUES AND PROOF.

A general denial raises the question of the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 367; Dec. Dig. 153.] 2. APPEAL AND ERROR 173(6)-PRESENTING QUESTIONS IN TRIAL COURT-NECESSITY. The question of the statute of frauds was not presented nor urged in the trial court, neither was it mentioned therein in any manner, nor was it relied upon in said court by the defendant for a defense. This court, therefore, will not consider this question when presented and urged by the defendant upon this court for the first time on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1101; Dec. Dig. 173(6).] Commissioners' Opinion, Division No. 4. Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

therefrom, he, the said S. P. Render, would pay a fee for plaintiff's services in said cause, and requested this plaintiff not to withdraw from said cause, but to continue his services therein, that he would pay plaintiff's fee in said cause, and acting upon the defendant's representations this plaintiff did continue in said case and did not withdraw therefrom; that from the 1st trial of said cause, which was in February, 1914, of December, 1913, up and to and including the this plaintiff devoted all of his time and attention to the preparation of said case, and spent and consulting with witnesses and other parties much time from his office in taking depositions necessary for a trial of said cause, and upon the trial thereof, participated therein; that the servwhich the defendant agreed and promised to pay, were reasonably worth the sum of $1,500, and that no part thereof has been paid to this plaintiff, save and except the sum of $175; that said defendant frequently, from December 1st up to the time of the trial and during the trial, stated to this plaintiff that he would pay him for his services in said cause, and this plaintiff rendered ant's promise and agreement to pay him therefor. and performed the same relying upon the defendWherefore, premises considered, the plaintiff prays judgment against the defendant, S. P. Render, for the sum of $1,325, with interest from this date, for costs and all proper relief."

Action by Ross N. Lillard against S. P. Render. Judgment for plaintiff, and defend-ices rendered by this plaintiff in said cause, for ant brings error. Affirmed.

Ames, Chambers, Lowe & Richardson, of Oklahoma City, for plaintiff in error. Sam Hooker and E. L. Fulton, both of Oklahoma City, for defendant in error.

The defendant to this petition filed the following verified answer:

named, and, for answer to the petition of said "Comes now S. P. Render, defendant above plaintiff denies each and every allegation therein contained."

DAVIS, C. The parties will be spoken of throughout this opinion as in the court below. The plaintiff, Ross N. Lillard, sued the defendant, S. P. Render, in the district court of Oklahoma county, Okl., on a verbal contract of employment alleged to have been made by the defendant with the plaintiff as an attorney and counselor at law to prose cute an action for $50,000 damages on behalf of the plaintiff, one Minnie Bond, in what is known as the case of Bond v. Gore, in the district court of Oklahoma county, Okl. Plaintiff averred in his petition that his services were well worth the sum of $1,500, proved said averment by competent testimony, which was not controverted on the part of defendant, admitted a credit on same of $175, and recovered by verdict of a jury the balance of $1,325 on February 11, 1915, for which sum, together with 6 per cent. interest per annum from February 11, 1915, until paid and for costs, judgment was by the trial The defendant requested no instructions and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 160 P.-45

The defendant in the court below defended against this action on the theory, and the sole and only theory, that he did not make the promise or enter into the contract as alleged and set forth in plaintiff's petition, and as proven by plaintiff. The sole question presented to the court below upon the trial of this case, and submitted by the trial court to the jury, was whether or not the defendant made and entered into the contract with the plaintiff as alleged and proven by him.

saved no exceptions to any of the instruc- | verbal contract, nor move to strike the same tions given by the court to the jury in his out on any ground or for any reason. After charge-none. For the first time in this the evidence was all in and established, as lawsuit and in his printed brief the defend- now claimed, by defendant, that the conant raises and urges upon this court the sole tract was within the statute, he did not deand single proposition that this was a verbal mur thereto or move the court for a directed contract, made by the defendant with the verdict. He requested no instructions on any plaintiff in the nature of a special promise to ground, and took no exceptions to the inanswer for the debt, default, or miscarriage structions given by the court, which preof another, and that it does not fall under sented to the jury but the one question, and the article of our statutes on guaranty, and that was whether or not the plaintiff entered that hence, under section 941, Rev. Laws of into the contract alleged. And he did not Oklahoma 1910, the same is expressly in- even raise the question in his motion for a hibited and invalid, the plaintiff having first new trial. That all this constituted a plain been employed by one Minnie Bond and Ju- waiver of the statute and the rights, if any, lian R. Bond to institute and prosecute the he had thereunder, we think, is plain. The $50,000 damage suit against T. P. Gore for Supreme Court of South Dakota passed on assault, and upon their failure to arrange this question in the case of Prior v. Sanborn for or pay the plaintiff his fee for said serv- County, 12 S. D. 86, 80 N. W. 169, wherein ices, conceding that the defendant contracted it held: to pay same as alleged and proven by plaintiff in this action in the trial court, still the said contract clearly falls under the statute of frauds of our state.

Conceding but not deciding that this contract falls within the statute of frauds, has defendant waived this point by his failure to raise and urge it, obtain a ruling thereon, and when decided adversely to him, save the proper exception in the trial court? We think so. A verbal promise to answer for the debt of another is not illegal, unlawful, or immoral. It is not, strictly speaking, void, but merely voidable. The statute is solely for the benefit of a person sought to be bound by such a promise. He may avail himself of the statute, or not, as seems best to him. It is a question in which he and no one else is interested. If he fails to take advantage of the statute, the contract, under all the authorities, is valid and enforceable. While there may be a conflict in the authorities as to what will constitute a waiver of the statute, yet we know of no authority which holds that the statute cannot be waived. This court in the case of Altoona Portland Cement Co. v. Burbank, 44 Okl. 76, 143 Pac. 845, in passing on this question held as follows:

"Such contracts are not positively illegal in any particular, but are negatively invalid, although only as against one who has not subscribed a note or memorandum thereof in writing, and only to the limited extent that no enforceable demand against him can be predicated thereon in the absence of at least his tacit consent, as by waiver of that point, in the action or of an equitable estoppel to deny liability." (Italics ours.)

Defendant did not demur to the petition of plaintiff on the ground that the contract was within the statute or on any other ground. He did not plead the statute of frauds in his answer. He did not object to the introduction of evidence under the petition of the plaintiff on the ground that no cause of action was stated, or on the ground that the contract was within the statute of frauds. He did not object to the testimony

"Failure to urge an objection that a contract is within the statute of frauds, in the trial court,

is a waiver thereof."

Defendant, as the record affirmatively shows, at no time and in no manner even attempted to raise the question of the statute of frauds in the trial court, and he therefore brought himself squarely within the rule laid down by this court in the Altoona Portland Cement Co. Case, supra. Not having raised this question in the trial court, he cannot raise it for the first time in this court. That a party cannot, for the first time on appeal, raise the question that the contract sued on is within the statute of frauds we think is settled by all the authorities. The general rule in this regard is laid down in 2 Cyc. 665, as follows: instrument must be made in the court below, and "An objection to the validity of a contract or cannot be urged for the first time on appeal. * * Thus it cannot be first objected to that a contract is void under the Sunday laws; that a contract or deed is tainted with fraud or usuthe statute of frauds. ry; that it is champertous; that it is void under

The Supreme Court of the state of Illinois passed on this question in the case of Highley v. Metzger, 187 Ill. 237, 58 N. E. 407, as follows:

"The objection that defendant was sued on an oral promise to answer for the debt of another, which has not been raised by the pleadings, nor by objections to evidence, nor by exceptions to the instructions, cannot be taken advantage of for the first time on appeal."

The Supreme Court of South Dakota upheld the same rule in the case of Prior v.

Sanborn County, 12 S. D. 86, 80 N. W. 169,

as follows:

take the agreement out of the statute need not "Whether the foregoing record is sufficient to be determined, because the failure to raise the point in the trial court constitutes a waiver, and it is now too late to urge the objection for the first time."

The Supreme Court of Iowa also followed this rule in the case of Holt v. Brown, 63 Iowa, 319, 19 N. W. 235, from which case we

"Where the statute of frauds is not pleaded, I him by the statute of frauds, and unless he sets nor objection made to evidence on the trial, because the contract was within the statute, but the objection is first made in the argument of counsel on appeal, it comes too late."