It was error for the court to sustain the motion for judgment on the pleadings and opening statement of counsel if the allegations of defendant's answer constituted a defense. Mascho et al. v. Johnson, 49 Okla. 646, 153 P. 630. The sole question briefed by counsel for both sides is whether the allegations of defendant's answer presented any defense to the plaintiffs' action.
"Where the petition states a cause of action, it is error to sustain a motion to dismiss the cause and render judgment against the plaintiff upon the opening statement of his counsel." See Mascho et al. v. Johnson, 49 Okla. 646, 153 P. 630; Patterson et al. v. Morgan, 53 Okla. 95, 155 P. 694; Mackey v. Boswell et al., 63 Okla. 20, 162 P. 193; King v. Lane, 66 Okla. 304, 169 P. 901. If counsel in the case at bar desired to present to the court the action of counsel for the intervener in not filing a copy of the petition as required by rules of the court, he should have made a motion to require counsel to return the petition and file copy.
"A motion for a peremptory instruction of a verdict upon the opening statement of defendant should, of course, be denied unless such statement contains a distinct and unequivocal admission of fact absolutely entitling plaintiff to judgment" — citing cases. And in Oklahoma-Moline Plow Co. v. Smith, 41 Okla. 498, 139 P. 285, consideration was given to an admission in an adversary's pleading, and it was held that such admission, to be available, must be taken with all the qualifying clauses and limitations which the pleader has included in it; that it must be taken as a whole; and, where facts are alleged in connection with the admission which nullify it, its effect as an admission is destroyed. See, also, Sullivan v. Williamson, 21 Okla. 844, 98 P. 1001; Mascho v. Johnson, 49 Okla. 616, 153 P. 630. In view of our conclusions, it will not be necessary to consider the other assignments of error.