Opinion of the court by
Burford, C. J.:If the verdict and findings of the jury are to stand in this case, there are but few questions for this court to pass upon. Upon the .trial of the cause a large number of witnesses were examined, and it is evident that much false swearing was indulged in. Both parties to the action were accused of reprehensible conduct in suborning witnesses, procuring the absence of important witnesses, and in attempting to improperly influence those who did testify. A number of ranch men, cowlwys, and persons employed in handling the cattle testified directly contradictorily to each other, and it is doubtful if there were not “sharp practices” and even perjury contributing to aid each side in the controversy. This court is in no position to deal with these conditions. The trial court and the jury had all the parties and witnesses before them; they have passed upon their credibility and upon the weight of the evidence, and unless there is something out of the ordinary to- discredit their action, this court must treat it as conclusive.
The jury passed upon every material fact necessary to *196support their general verdict, and upon every question of fact set up in the defendant’s answer and cross-petition or counter-claim, and not only found a general verdict against the defendant, Snyder, for the value of the Arizona ranch, with interest on said sum, less the value of the shortage found in the amount of corn, cane and hay called for in the contract, and the five thousand dollars balance on the cash payment as claimed by the plaintiff, but they also found every fact against the defendant on the special interrogatories submitted to them.
This court has repeatedly reiterated the doctrine that where there is any evidence tending to support the finding of a jury this court will not disturb the verdict. In order to evade the force and effect of this rule, counsel for plaintiff in error invoke the doctrine announced in the Southern Kansas Railway Company v. O. P. Michaels, 49 Kans. 388, where it was held that:
‘‘‘Where some of the material findings of the jury are against the evidence and others are unsatisfactory, and it appears thereby that the findings have been given under the influence of passion or prejudice, or at least that the jury-have not intelligently or fairly considered the evidence, a new trial must be granted so that the facts -may be submitted to another jury.”
And in Atchison, Topeka & Santa Fe R. R. Co. v. Wells, 56 Kans. 222, the same rule is stated. We do not question the correctness or soundness of the law as contended for by counsel for plaintiff in error. But does the evidence satisfy this court that the jury was influenced by passion or prejudice? There was some evidence bearing upon each question *197submitted to the jury. Upon some of them there was a marked conflict in the testimony; upon others there was but slight evidence upon which to base a finding. The jury could not but have been impressed with the conclusion that some of the witnesses were swearing falsely and that efforts had been or were being made by persons interested in the results to either procure false testimony or suppress the truth. It was within their province to determine who were the truthful witnesses and to determine which testimony they would treat as reliable and which they would disregard. This would necessarily result in making it appear that some of their answers were against the apparent weight of the evidence. With this mass of conflicts, inconsistencies and contradictions, this court is in no position to say that the jury was unfair and controlled by passion and prejudice, unless there is an absence of reasonable proof tending to support some of the findings returned by the jury. A number of the answers returned by the jury are pointed out in the brief, of counsel for plaintiff in error as being of this character, and we are asked to examine them. We have reviewed these findings and the evidence relating to each of them and we find that the jury are not without support in each and every one of them. Of course, we shall not attempt to- weigh the evidence and sáy that the conclusions reached by the jury-are correct; they might have answered many of them to the contrary of what they did and there would be sufficient evidence to warrant their finding.
One of the special questions complained of as a very marked evidence of the bias of the jury, is interrogatory No. 59, .submitted by defendant, as follows:
*198“Was there a shortage of IMS acres of corn?”
To which the jury returned the following answer:
“Evidence not sufficient to determine the exact acreage.”
It is argued that only one witness testified upon the subject of the exact acreage of the corn land, and that he testified that he had measured the corn ground and found the acreage to be 1352. While it is true that no witness directly contradicted the testimony of this surveyor, his own evidence showed that he made the measurements in January after the contract was made in September; that he measured the ground from the stubble be found and that he was unacquainted with the farms or the fields where the corn was grown, and that he only measured such fields as were pointed out to him by another person; that he had no personal knowledge of whether the lands he measured were all the lands upon which Stribling had corn the season before. It appeared from his testimony that he made the measurements at the solicitation of a representative of Snyder, and that Stribling was not represented. From this testimony and the other evidence before the jury relating to the peculiar conduct of the parties to the suit and the actions of certain of their agents and representatives in relation to counting and handling the cattle, and the class and character of witnesses produced by them, we can readily believe that the jury could conscientiously say:
“Evidence not sufficient to determine exact acreage.”
While the evidence as a whole is conflicting, contradictory and unsatisfactory, there is some evidence tending to *199support every finding made by tbe jury, and ample evidence to sustain the general verdict. This being the case, and it not appearing that the verdict of the jury was influenced by bias or prejudice, we are not warranted in setting aside the verdict upon the weight of the evidence, and it cannot be consistently contended that the special findings do not amply support the general verdict.
The plaintiff in error complains of some of the instructions given by the court. It is contended by counsel for defendant in error that no proper exceptions were saved at the time of the trial, and a number of authorities are cited in support of a proposition that a general exception to a number or series of instructions will not be sufficient, if any of the instructions are correct. The exception in the ease at bar is as follows:
“Defendant excepts because they are not the law, to the following instructions given by the court and each and every one thereof,” and then follows instructions numbered 5, 6, 7, 9, 10, 11, 12, 13, 16, 17, 18, 19, 28, 41, 43, and 44, signed by counsel for the defendant and allowed and signed by the trial judge. This exception properly saves for review the instructions enumerated therein and is sufficient. Rhea v. U. S. 6 Okla. 349, 50 Pac. 992; Murkly v. Kirby, 6 Kans. App. 494, 50 Pac. 953; Lorie v. Adams, 51 Kans. 698, 33 Pac. 599; Railway Co. v. Nichols & Co. 9 Kans. 256; Bard v. Elston, 31 Kans. 274: Railroad C. v. Retford, 18 Kans. 245; Dunham, et al. v. Holloway, 3 Okla. 244, 41 Pac. 140¡
Instruction numbered 5 submits the proposition that if one promises another to perform that which he is already' *200obligated to perform, that such promise of itself is not a sufficient consideration and the promise cannot be enforced. As an abstract proposition the instruction correctly states the law, and it was not error to give it.
Instruction numbered 6 relates to the supplemental contract of October 1, 1900, and charges the jury that if they find that said contract was based upon no consideration independent of what was to be performed in the contract of September 1st, between the same parties, that the last contract is void «for want of consideration. We see nothing objectionable in this instruction. If it were held to have been unnecessary, yet it was not prejudicial.
Insiructions numbered 7 and 9 relate to the questions of duress and undue influence in the execution of the contract of October 1st, and state the effect upon a contract made without consideration or under duress or undue influence. These questions are regulated by our statutory provisions, and the authorities cited have but little application and are not controlling.
The instruction defining duress and undue influence in the execution of contracts is copied from the provisions of the statute. Wilson’s stat. 1903, vol. 1, chap. 15, art. 1, and while such instruction embodies some propositions that have no application to the case, in our judgment the inapplicable provisions were so palpably foreign that they could in no event have been misleading, and hence, not prejudicial.
Appellate courts should see that causes are tried and justice administered according to the forms and requirements of the law, and not hesitate to set aside the verdict of a *201jury or reverse the judgment of a court where there has been such a departure from settled forms or requirements as have apparently endangered and prejudiced the rights of any litigant. Upon tbe other hand, such courts should, for the purpose of upholding the verdicts of juries and the judgments of trial courts, as unhesitatingly disregard all technical errors, or acts or omissions which are so obviously inapplicable as to make it clearly apparent that no injustice was done by reason of such errors. Appellate courts have been too prone to set aside judgments for mere technical and unsubstantial errors or defects in the proceedings without regard to the substantial rights of the parties. This is one of the tendencies that such courts may well abandon, and adopt the safer and more reasonable rule of affirming the judgment of the trial court in every instance where an examination of the whole record makes it apparent that a correct conclusion has been reached and a just judgment rendered, although errors may have occurred in the course of the trial. This is more in harmony with the spirit of our laws and progress.
Instruction numbered 9 complained of, is as follows:
“The jury are instructed that the contract of October 1st, 1900 must govern as to the count of the unbranded cattle, unless you find that said contract is void for having been made without consideration, duress or undue influence.”
This instruction is couched in very unfortunate language; the learned trial judge is made to say something that he did not intend. It is apparent that he intended to charge the jury, that, unless the contract of October 1, 1900, was void for having been made without consideration, or *202under duress or undue influence, that it must govern as to the count oi the unbranded cattle; but he is technically made to say that a contract made without duress or undue influence is void. The instruction is subject to the further criticism that a contract made under duress or undue influence is treated as void, whereas such a contract is only voidable. Standing alone the instruction is objectionable, but when construed in connection with instruction 8, just preceding it, it is clear that no prejudice could have resulted. In instruction 8 the jury are told that if Stribling, after October 1st, ratified the contract of .that date or recognized the validity thereof in the subsequent count of the cattle or in the authorization of payment of money to his creditors or in the receipt of money by him thereunder, then anjr duress or undue influence was waived, and the contract could not be avoided on account thereof. This cured the mere verbal error in the other instruction, and when the two are read together, as they must be, and considered in the light of the whole record, it is a]Dparent that no injustice could have resulted from the defects in instruction No. 9.
We have carefully examined each of the other instructions given in the case and excepted to by the plaintiff in error, and considered each of them in connection with the issues made by the pleadings and the evidence taken on the trial, and we think they fairly state the law applicable to the issues and evidence; are fair to the complaining party, and we see no reasonable ground for criticism. The testimony covered a very wide range, was conflicting in the extreme, and presented many subordinate and collateral issues, some of which were material and others not- The court *203in the lengthy and comprehensive charge attempted to advise the jury as to the law upon all the propositions presented by the pleadings and evidence.
In the light of the findings made by the jury, many of the questions raised by the instructions and contended for by the plaintiff in error, become unimportant. He is concluded by the facts found against him on practically every important issue. •
The plaintiff in error earnestly insists and argues at length that the trial court committed reversible error in refusing certain requests for instructions made by the defendant, Snyder, upon the trial of the cause. Request numbered 6 and refused, is as follows:
“If the jury believe from the evidence that the plaintiff did not count out to the defendant 12,500 cattle within fifteen days after the making of the contract, plaintiff cannot recover."
This request was properly refused. The contract and the place of its performance were governed by the laws of Oklahoma. It is provided in see. 809* chap. 15, art 3, Wilson's Statutes, 1903, as follows:
“'Time is never considered as of the essence of a contract unless by its terms expressly so provided."
At common law time was always considered of the essence of a contract but equity followed a different rule. In Porkin v. Thorold, 16 Beaver, 59; 22 L. J., C. P. Div., the master of the rolls, Lord Romily, said:
“Upon the first question, whether time was of the essence of the contract, there is no great difficulty in stating the rule, although there may be considerable in applying it to *204the facts of the individual cases. At law time is always of the essence of the contract- When any time is fixed for the completion of it, the contract must be completed on the day specified, or an action will lie for the breach of it. This is not a doctrine of a court of equity; and although the dictum of Lord Thurlow, that time could not be made of the essence of the contract in equity, has long been exploded, yet time is held to be of the essence of the contract in equity only in cases of direct stipulation or of necessary implication. The cases of direct stipulation are, where the parties to the contract introduce a clause expressly stating that time is to be of the essence of the contract. The implication that time was of the essence of the contract is derived from the circumstances of the case, such as where the property sold is required for some immediate purpose such as trade or manufacture; or where the property is of determinable character, as an estate for life. It is needless to refer to the authorities, which are numerous, to support these propositions.”
This rule has been approved and followed by the English courts in a large number of cases. 6 Eng. Ruling Cases, pp. 536 to 539. And the American courts and text writers have generally adopted this doctrine, except where modified by statutory provisions.
We must assume that the legislature in adopting our statute on this subject, had in contemplation the existing law as it was administered both in courts of law and in courts of equity, and that they intended to abolish the common law rule and to adopt the equity rule in a modified form. In equity, according to the established doctrine of the courts, time was held to be of the essence of the contract only in cases of direct stipulation, or of necessary implication, and Lord Romily said: "The cases of direct stipulation are *205where the parties to the contract introduce a clause expressly stating that time is to be of the essence of the contract.” Our statute adopts this one branch of the equitable doctrine as the law of this territory, and declares that “Time is never considered as of the essence of a contract unless by its terms expressly so provided.” No room is left for cases of necessary implication. 'The extreme difficulty of applying the equitable rule and of determining what class of contracts make time as of the essence of the contract by necessity or implication, has given the courts much perplexity and has furnished a fruitful field for litigation. Under our statutory rule all doubt is banished, and if the contracting parties desire to make time as of the essence of the contract, they must so expressly stipulate in the contract, otherwise time will not be so considered.
There is nothing in the case at bar that shows that time was intended to be treated as of the essence of the contract, and there was no error in refusing the request of defendants for the instruction numbered 6.
We are aware that there is a decision of this court which is apparently in conflict with the rule here announced. In the ease of Powers v. Rude, 14 Okla. 381, 79 Pac. 89, this court correctly stated the rule as defined by the American courts, but inadvertently the statute upon the subject was overlooked by the court when the decision was announced, and it was not referred to by counsel in the case, either in argument or brief. In so far as the rule announced in the case of Poioers v. Rude is in conflict with the statutory provision and of the.interpretation of the statute herein announced, said cause is overruled.
*206The request numbered 8, and refused, embraces statements of fact which make it improper and an encroachment upon the province of the jury. There was no error in refusing it.
Request No. 10, refused, is so manifestly erroneous as a proposition of law that it requires but a suggestion to make it apparent. The effect of the instruction asked was that unless Stribling actually owned 12,500 head of cattle at the time Hibler made the inspection for Snyder, that Snyder was not bound by any such inspection. In the light of the evidence that Hibler was, at the time of the inspection, shown cattle which Stribling afterwards became the owner of and put in his contract with Snyder, this request could not have been given; and in any event, .Snyder was bound by the inspection made by Hibler of the cattle, which it was conceded that Snyder, through his agents, sold and marketed. The request was too broad and general to be applicable to the facts before the jury/
Request No. 35, offered by the defendant, is as follows:
“The jury are .instructed that there is no evidence 'of duress in the making of the contract of October 1, 1900, set forth in the answer, and said defense of duress must be disregarded.”
One of the acts which, under our statute, may constitute duress is, the unlawful detention, of the property of the person executing the contract Consent to a contract induced by duress occasioned by the unlawful detention of the person’s property is not voluntary and will render such a contract voidable. There was some evidence before the jury tending to prove that at the time the contract of October 1, 1900, was executed, Snyder had taken possession of all of *207Stribling’s property and was detaining it from him and refusing to make the payments provided for in the contract and theatening to ruin Stribling and break him up financially, unless he signed the supplemental contract- This was some evidence of duress, and when there is any evidence tending to support an issue, it is not error to submit the question to the jury. However, in view of the special findings made by the jury, the question of the effect of the contract of October 1, 1900, becomes immaterial. The jury found that before the contract was entered into, Snyder sent his representatives to the Osage Nation and that they made an inspection of the cattle, horses, ranch property, corn, cane, millet, hay and all property which was afterwards included in the contract of September 1, 1900. They further found specially that Stribling or his agents made no false or fraudulent statements or representations to Snyder or his agents as tó the kind,-number or quality of the cattle or as to the other property and that Snyder relied upon the report of his own-agents, in making the contract and not anything that he was told by Stribling or his men. 'They also found that Snyder sent his representatives to the Osage reservation to count, receive and accept the property described in the contract, and that the entire property mentioned in the contract, except a shortage in the acreage of feed, was actually delivered to Snyder’s agents and accepted by them on or prior to September 26, 1900, and that at the time the supplemental contract was executed Snyder had undisputed possession and uninterrupted control of all the property described in the contract, except the shortage in feed. It was also specially found that no artifice was resorted to by Stribling or his as*208sistants to cause a wrong count of the cattle; that none of them were recounted or counted twice, and that nothing was done by Stribling to delay or impede the delivery of the cattle. It was also found that the delay in procuring an actual and accurate count of the cattle was occasioned by Snyder and his representatives. It was found that there was a shortage in the acreage of feed, but that there was no intention to deceive; that the fields had been measured and that Stribling gave estimates in good faith. The jury found the value of such shortage to be $9,000, and they gave Snyder credit for this amount. They further found against him upon each specific element of damage claimed by him, and found in favor of Stribling in the sum of $5,200 balance of the $350,000 cash considered unpaid, and the value of the Arizona ranch and property in the sum of $150,000. Upon these findings they found a balance in favor of Stribling of $146,200, with interest on said sum from October 1, 1900, at 7 per cent per annum, and for this aggregate they returned a general verdict in favor of Stribling, and the court rendered judgment on the verdict.
Upon the special findings of the jury and the instructions of the court and requests for instructions refused, we find no reversible error. That the jury may have made mistakes in some of Jieir findings is probable, but the general conclusion reached upon the entire findings is, no doubt, correct.
Counsel are entitled to commendation for the able and exhaustive manner in which this cause has been prepared and presented upon both sides. Owing to the volume of the record and the vast number of authorities cited by coun*209sel, and the length to which this opinion would necessarily have been drawn out, we have refrained from going into every question presented in detail. We have examined the whole ease and each alleged error complained of, and while each is not specifically referred to, we have given to each such time and consideration as brings us to the general conclusion that the judgment should not be disturbed.
One of the' complaints made by counsel for plaintiff in error .is well founded; too many special questions not relating to material facts were submitted to the jury. Questions relating to the character, conduct and credibility of witnesses and to the conduct of parties to the suit should not be presented to the jury for special findings. Many of the questions submitted were not answered, or insufficiently answered, but as no request was made to remand the questions to the jury for fuller or more definite answers before the discharge of the jury, we think the parties should not now be heard to complain of such defects.
If the judgment is wrong, it is because the jury and trial court made the mistake of believing the wrong witnesses and if such mistake was made we cannot remedy it.
The judgment of the district court of Pawnee county is affirmed at the costs- of the plaintiff in error.
Hainer, J., who presided in the court below, not sitting; all the other Justices concurring. .