« PreviousContinue »
tions was the agent of the plaintiff, and for the purpose of raising a bonus to secure made the proposition for and on behalf of a line of railroad from Kingfisher, on the the plaintiff, and of the Santa Fé Railway, Rock Island, to Guthrie. There is nothing and misrepresented the facts in order to raise in the record, so far as the proof shows, to the subscriptions, and that no one would indicate that any of the parties making these have subscribed said bonus if it had been statements at said meeting were acting for, known that it was a Santa Fé scheme, and, or authorized to act for, or pretended to be knowing this, the agent of the plaintiff care- acting for, the holder of this note; and, fully cultivated the impression that it was eren if they were, such statements made prior not a Santa Fé, but a Rock Island, project; to, or contemporaneous with, the execution that the defendant gave the note in suit of this note, and, being statements which solely upon such representation; and that were in direct conflict and contradiction there was no other consideration, save the with the plain, unequivocal terms of the proposition to get the Rock Island Railroad note, would not be sufficient to constitute a into Guthrie. Defendant further alleges that defense to the note under the plain prosaid Brooks nerer subscribed $500. For a visions of our statute. St. Okl. 1893, 8 third defense, defendant substantially al- 822, reads as follows: "The execution of a leges that the plaintiff and its agent fraud- contract in writing, whether the law reulently represented that the proposed bonus, quires it to be written or not, supersedes all to which the defendant subscribed, was for the oral negotiations or stipulations concernthe purpose of inducing the Rock Island Rail- ing its matter, which preceded or accomway to build into Guthrie, when in fact the panied the execution of the instrument.' bonus was to be used to build a branch for This provision of the statute was no doubt the Santa Fé, and that the defendant ex- designed by the Legislature to preclude the ecutel the note sued upon, believing that it admission of oral testimony to vary, contrawas to induce the Rock Island road to build dict, or change the terms of a written coninto Guthrie. The fourth defense alleges a tract, and was in strict accord with the conspiracy to induce the defendant and oth- spirit and principles of the common law on ers to subscribe by making bogus subscrip- this subject. This note, by its terms, sets tions. The fifth defense was that subscrip- forth in clear, distinct, and unmistakable tions largely in excess of $15,000 were ob- language all the terms, qualifications, and tained, but there was no evidence offered un- conditions attached thereto, and no person der this defense. The sixth defense is that of ordinary understanding could read such the note was void, because under the char- a note and have any doubt as to its intenter the road would have been built from tion, purport, and meaning. The allegations Guthrie, and not from Seward.
of the answer amount only to a statement To this answer, and each paragraph there- that at a public meeting held, not in the name of, except the general denial, the plaintiff of the payee of this note, not purporting to demurred on the ground that the facts stat- be held by the authority of the Guthrie & ed did not constitute a defense. This de- Western Railway Company, but held by the murrer was overruled, to which exceptions citizens for the purpose of securing a public were saved. Thereupon the plaintiff replied expression from the resident property owners by a general denial, and the case was tried of Guthrie as to whether it was advisable to on these issues. Verdict was returned in raise the bonus necessary to secure this confavor of the defendant. Motion for new trial necting line of road or not, certain represenwas filed and overruled, exceptions saved, tations and statements amounting to promand the case is brought here for review. ises were made by certain persons in certain
public speeches, and in our judgment amount Green, Martin & Tibbetts and Devereux & Hildreth, for plaintiff in error. Cotteral
only to expressions of opinion as to the bene
fits to be derived from securing this line of & Hornor, for defendant in error.
An examination into the evidence will IRWIN, J. (after stating the facts as show that the recollections of the defendabove). In this case the plaintiff in error ant in error as to what took place in that relies upon six assignments of error. We meeting, the expressions that were used, and think it will only be necessary to consider the promises that were made are very uncerthree: First, the overruling of the plain- tain and indefinite. On page 61 of the rectiff's demurrer to the amended answer; sec- ord the following appears in the testimony ond, error in admitting testimony for the of the defendant in error: "Q. Who made defendant over the objection of the plaintiff : that statement? A. Judge Green, if my memsixth, that the court erred in overruling i ory serves me right.
ory serves me right. Q. Geo. S. Green? A. plaintiff's motion for a new trial. It will be doo, S. Groen; res, sir. Q. You may state observed, from a perusal of this record, what he said. (Objected to, for the reason that the entire subject-matter of the defend- it is hearsay and irrelevant, which objecant's defense to this note is based upon tion was by the court overruled.) Q. Go statements made of promises at a meeting aheail and state what he said. d. Wellof citizens held in Guthrie, prior to the exe- Q. Did he get up on his feet and talk? cution of this note, which meeting was held He did. Q. Go ahead and state what he
said. A. He said this meeting was for the purpose of securing a bonus of $15,000 to secure the Rock Island Railroad for Guthrie. Q. Is that all he said? A. Well, I couldn't tell you. It has been quite a while-four or five years.
I can't remember all that he said in regard to it. He made quite an address there, and enthused every one so much as to say, Q. What was the subject of his address? (Objected to, as not binding on the plaintiff company and tending to contradict the terms of the written contract made subsequent to it, which objection was by the court overruled, to which the plaintiff excepted.) A. I don't remember now. Q. You can't undertake to say every word he said, but I want you to undertake to outline his address. A. Judge Green's address? Q. Yes, sir. A. Well, I don't remember all of itbut very little of it-it has been so long. I don't suppose I have thought of it since that time, only just that meeting run through my mind, and who got up there and spoke, but I can't - (Objected to, as to the competency of the witness, which objection was by the court overruled.) A. I think I have given you about all I remember of it, about him making the statement that it would be the Rock Island road, and by securing this $15,000 they would run the Rock Island road into Guthrie, and by that means secure one of the great trunk lines of the United States. member that part of it-great trunk line." On page 90, in Mr. Rhodes' testimony, the following appears: "Q. You have stated, after you came off the stand, that you weren't certain about one proposition, about Lou Beadles, did you? Do you wish to make any other statement in regard to that? (Objected to, as assuming a statement not in evidence, which objection was by the court overruled, to which the plaintiff excepted.) Q. Go ahead. A. Well, now, I stated I thought it was Lou Beadles writing the notes, but since I went off the stand it kind of run through my mind that it was young Geo. Green. Q. You wouldn't be certain about either one? A. No; I wouldn't. It is five years, and I ain't got a very good memory anyway."
Now, in our judgment, these statements and this kind of evidence is not sufficient to warrant the court in receiving it for the purpose of ingrafting a new condition into a written contract. We think, under the authorities and under the plain letter of this statute, parol evidence was not admissible to add a condition to this note, especially when the note itself on its face distinctly informs the defendant that he was to pay the $500 upon the completion of the railroads mentioned in the note. A contract of this kind is legal and enforceable, as decided by our Supreme Court in the case of Piper v. Choctaw Northern Townsite & Improvement Company, reported in 16 Okl. 436, 85 Pac. 965. It will be ascertained from an examination of the evidence that the recollection of the defendant in error as to what
took place at that meeting is somewhat indistinct, from the fact that he says his understanding was he was not to sign this note unless one J. M. Brooks should have first subscribed $500, that at that meeting Brooks distinctly refused to subscribe, and that he did not know afterwards whether Brooks subscribed or not. This seems to us like a very singular statement, that a man would base his promise to subscribe upon the promise of another, and that he was not to sign the note or pay the bonus except in the event that the other party paid a similar amount, and that he then should sign a note which contained the plain, unequivocal conditions of this note, without first ascertaining whether the other had complied on his part or not. Furthermore, it seems to us that these representations, it any were made at that meeting, were representations as to mere matters of opinion, and as to something that was to transpire in the future. The representations do not refer to past or existing facts, but relate wholly to what may transpire in the future. The most that can be contended for the defendant is an expression of opinion as to what may transpire in the future. While the note in question, it is true, is based upon conditions, yet, as shown by the allegations of the plaintiff and the proof in the case, all of those conditions which were contained in the note had been complied with in both letter and spirit at the time of the commencing of this suit. We take it that the rule is elementary that, to constitute a representation which amounts to a fraud, as the term "fraud" is understood in the law, there must be a statement or representation as to a fact, and must be as to a fact existing in the present or the past. Now, according to the claim of the defendant, it was alleged in that meeting that a certain railroad corporation would build and operate this road. There is nothing to show that any person at that meeting possessed any superior knowledge concerning this matter, or that the representations were made upon any authority of the Guthrie & Western Railway Company, to whom this written obligation was made payable. The most that can be claimed is that it was an expression of opinion as to what would take place in the future, and we think the answer is wanting in all the essential elements which constitute a fraud. It is elementary that the representations made must relate to a present or past state of facts, and that relief as for deceit cannot be obtained for the nonperformance of a promise or other statements looking to the future. port of this doctrine, see Bigelow on Frauds, 11, 12; Maltby v. Austin, 65 Wis. 527, 27 N. W'. 162; Prince v. Overholser, 75 Wis. 646, 44 N. W. 775.
The rule has been repeatedly held that the defendant cannot be relieved on the ground of fraud unless an action can be maintained for deceit, and it has been held in respect to
representations relating to a future fact as a , tions of this answer the railroad was to mere expression of opinion that such repre- have been built and operated in a certain sentation is not fraudulent or actionable if way. Now, if it is conceded, for the purpose it relates to a future event, and is of the of argument, that this is true, it does not opinion that a railroad will be built and op appear wherein or in what manner the deerated by a certain well-known railroad cor- fendant has been damaged. It is conceded poration. The rule is laid down in Gordon that this line of railroad, connecting the two V. Butler, 105 U. S. 533, 26 L. Ed. 1166, by great trunk lines in the territory, has been Mr. Justice Field, that an expression of opin- built. But it is claimed that, because it is ion, liowever fallacious, in regard to proper- not operated by a certain company, or as ty, the value of which depended upon con- originally built by a certain company, or in tingencies, is not sufficient to predicate a certain way to suit the ideas and notions fraud upon. In the case of Warner v. Ben- of the defendant, that in that way he has jamin, 89 Wis. 290, 62 N. W. 179, represen- been injured, and relieved of his obligation. tations made by a vendor of mining stock In the case of Parker v. Jewett, 52 Minn, that the vendee coull not lose upon his in- 514, 55 N. W. 56, it was held: "An answer vestment and that the mines would pay a setting up fraud or deceit as defense to a dividend in the near future, being a mere promissory note should show damage and expression of opinion, or a promise of a fu- the extent thereof. The action is upon a ture condition of things, will not form a promissory note. The answer sets up as a ground of recovery by the vendee on the defense that the note was given for mining ground of false representations. In the stock, and that the defendant purchased the case of Sheldon v. Davidson, 83 Wis. 138, 53 sarne, relying upon certain representations, N. W. 161, it was held that a representation which he alleges were false and fraudulent. by a defendant that the plaintiff could have * * * The answer winds up by stating possession of a certa iu building on property generally that the defendant had derived no leased to plaintiff on a certain date, several benefit in any way, and had received no conmonths after the making of such representa- sideration whatever for the note.” The tion, is not actionable, though such event court observed: “It does not appear that the did not occur, in that it relates to a future, mine in question has not some value, or that and not to a past or present, event. In the the stock is worthless, or of how much less case at bar the defendant seeks to avoid the value it was than the amount paid for it; payment of this note by setting up certain in other words, it does not show what, or facts or representations with reference to how much, damage defendant had suffered. what would take place in the future, and When the basis of the defense to a promisupon these alleged frauds, which he says sory note given upon the purchase of propwere practiced upon him, he seeks to avoid erty-as, in this case, stock-is fraud and the payment of the note which he acknowl- deceit, through which the defendant was inedged he signed. It is well settled in principle, duced to purchase that which proves to be as well as by authority, that no statement of no value, or of less value than contracted as to what would be done or was intended to be paid therefor, it is obvious that the to be done in the future constitutes a fraud. facts should be pleaded, whether the defense It was so expressly held in the case of Mil- attempted to be made is complete or parwaukee Brick & Cement Company v. Schok- tial.” In the case of Godding v. Colorado necht, 108 Wis. 457, 84 N. W. 838. The Wiy- Springs Live Stock Company, 4 Colo. App. consin Supreme Court said: "But no state- 14, 31 Pac. 944, it was held that mere exment as to what would be done or intended pressions of opinion are not false representato be done in the future constitutes a fraud. tions. A misstatement, to be actionable, To be such it must relate to a present or must relate to existing facts peculiarly withpast state of facts.” See, also, Patterson v. in the knowledge of the party, and they there Wright, 61 Wis. 289, 25 N. W. 10; Field v. cite Stimson v. Helps, 9 Colo. 33, 10 Pac. Siegel, 99 Wis. 609, 75 N. W. 397, 17 L. R. 209; Adams v. Schiffer, 11 Colo. 29, 17 Pac. A. 133. In McAlister v. Indianapolis & C. 21, 7 Am. St. Rep. 202; Cooley on Torts, R. Co., 15 Ind. 11, it was held: "A citizen of 474-486. The rule was stated by Chancellor a certain town made unconditional subscrip- Kent, in his Commentaries, vol. 2, *485: tion to the stock of a railroad company; the “The common law affords to every one reacompany promising that the branch of the sonable protection against fraud in dealing; road should be made to the town in which but it does not go to the romantic length the subscriber residel. Held, that such sub- of giving indemnity against the consequences scriber could not recover the money paid of indolence anl folly, or an indifference to on the ground of fraud in failing to build the the ordinary and accessible means of inforroad to the town; the promise being no mation." more than the expression of an existing in- In this case the note is couched in clear, tent to make such branch."
distinct, and unmistakable language, It is It seems to us there is another essential explicit as to all its terms and conditions. element lacking in this answer, and that is, There is no evidence that the party signing there is no allegation as to any damages hav. the same was incapable of reading, or that ing been sustained. According to the allega- | any artifice or deceit was practiced upon him to prevent his reading it. The only Geo. Green made any statement of any kind excuse for not reading it and understanding or character as to who would build this its terms is that he signed it hastily, presum- road, or any of the representations which ing it contained all the conditions indicated the defendant now claims he relies on as a by the representations made at the public defense. There is not the slightest evidence meeting mentioned in his evidence. We take in the record to show that this meeting it the rule is well established that in the ab- was ever called at the instance of the railsence of any evidence of incapacity to read, road company; but there is evidence, and all or any trick or artifice resorted to to prevent the evidence is, to show that this meeting his reading it, a party signing a written in- was called by the citizens themselves to sestrument that is plain and unequivocal in its cure a benefit to the town, and we are at a terms is bound by its express terms and loss to see under what principle of law a conditions therein contained, and that he written contract, plain upon its face, clear cannot set up his own carelessness and his and unmistakable in its terms, and which own indolence as a defense, and, because he clearly discloses all its conditions, can be failed to make use of the faculties possess- changed, variell, or set aside by proof of ed by him for determining its conditions, be statements made by parties which the eviheard to say that its terms or conditions dence fails to show had any authority to should be other or different from what they bind the payee of the note, and when such are. In Mullen v. Beach Grove Park, 61 statements were made, according to the eviInd, 202, the Indiana Supreme Court say: dence, prior to the signing of such note. "An answer admitting the execution of the Now, under this condition of the record, subscription sued upon, but alleging that the we think it was plainly the duty of the court person procuring his signature had misrep- to have sustained the demurrer of the plainresented the contents of the subscription and tiff in error. It is true that the answer the extent of liability the defendant would in this case contains a general denial, but incur by signing it, is insufficient." And this general denial does not constitute a dewe think this is peculiarly true where the fense to this action for two reasons, at least: evidence fails to show that the party is in- First. This is an action upon a promissory capable of reading it, and where it does note, purported to be signed by the defendshow that he had full and ample opportu- ant in the court below. The general denial nities to investigate and determine its con- is unveritied. This, under our statute, does ditions, if he had so desired. In Fox v. Al- not place or put in question the signature lenville Co., 46 Ind. 31, it is said: "State- to the note. The note was competent eviments by one procuring subscriptions for a dence, without further proof, under such creamery that the profits would be large are
a pleading. Second. While the general de mere matters of opinion, and, even if false, nial, if sworn to, would have put the exdo not constitute a defense to an action for ecution of this note in issue, yet the second the subscription.” In Davis v. Campbell, 93 cause of action alleged is inconsistent with Iowa, 524, 61 N. W. 1053, the Iowa Supreme a general denial, in so far as it admits the Court say: "A statement, by persons taking execution of the note, for the second cause a subscription to a railroad, that the road of action expressly admits the execution of would be completed to a certain point by a the note, and in our judgment the allegations certain day, are mere expressions of opin- of the answer are not sufficient to constitute ion, which, although not fulfilled, will not a defense in this case, and for this reason the defeat a recovery on the subscription." In court should have sustained the demurrer Sawyer. v. Pickett, 19 Wall. 116, 2) L. Ed. filed by the plaintiff in error in the court be105, the Supreme Court of the United low. But, having failed to sustain this de. States say: "A representation as to the murrer, and having submitted the question prospects of the railroad, and its probable to a jury, and the jury having found in effect on the value of property through or favor of the defendant, under the record and past which it runs, are matters of opinion, evidence in this case we think it was clearand will not constitute such fraud as will ly the duty of the court to have set aside defeat a subscription to the stock of the the verdict and granted a new trial. But, as road."
all the defense is clearly set up in the anNor do we think it can be contended that swer and evidence, we think there is no nethe evidence of these statements made at cessity for a rehearing of the case, and under this public meeting by the various parties the law as we understand it the plaintiff in making the speeches there is admissible as this case should have judgment for the face statements made by the agents of the com- of the note and interest, and the attorney's pany, or that the railroad company to whom fees therein mentioned. this note is payable can be bound by their For these reasons, the case is reversed, declarations, because an examination of the at the costs of the defendant in error, with testimony of the defendant in error, on pages instructions to the district court to enter 90 and 91, will show that he is uncertain judgment for the plaintiff in accordance as to just who drew these notes, and in fact with this opinion. All the Justices concurhis final conclusion is that they were drawn ring, except BURFORD, C. J., who, having by young Geo. Green, and there is nothing tried the cause below, took no part in this in the record or evidence to show that young | decision.
(19 Okl. 92)
the original assessment made by the assessor BOSTICK, Co. Atty., v. BOARD OF COM'RS was raised beyond all reason by the city. OF NOBLE COUNTY.
board of equalization, without authority of (Supreme Court of Oklahoma. Sept. 4, 1907.
. Sept. 4, 1907. | law and by reason of a mistake made by Rehearing Denied Oct. 12, 1907.)
the city board, as 'evidenced by Exhibit A, 1. TAXATION-CERTIFICATES OF ERROR-Pow:
hereto attached and made a part hereof. ERS OF COUNTY COMMISSIONERS.
Your complainant therefore prays that a cerBy section 1, art. 1, c. 31, p. 341, of the tificate of error in the sum of $1,594.62 be Session Laws of 1903, boards of county com- issued to said Perry Milling Company by missioners of the various counties of Oklahoma are authorized to issue certificates of error to
said board of county commissioners: taxpayers upon a proper showing in three classes
Amount charged on tax rolls: of cases: l'irst, where the same property has
Real estate, value $16,718.00, been assess::d more than once for taxes of the
$1,504 62 same year; second, where the property has been
990 00 assessed in the county for the year to which the
Personal, value $11,000.00, taxes same was not subject"; third, where the property has been destroyed by flood or tornado to the
$2,494 62 extent of at least 50 per cent. of its cash value.
Amount as per schedule and Ex
Real estate and personal, $10,-
900 00 taxes on property erroneously assessed. 2. SAME-Acts of BOARD OF EQUALIZATION.
Taxes erroneously charged... $1,594 62 Where an assessment of property is made,
“[Signed] Perry Mill Company, and the board of equalization of the city within
"Per D. McKinstry. which such property is located raises the valuation of such property for the purpose of taxa- “Subscribed and sworn to before me this tion, the board of county commissioners have no authority under the law to issue to the owner of
2d day of January, 1906. C. L. Ritter, Nosuch property a certificate of error upon the tary Pubiic. [ Seal.] My commission extheory or because of the fact that the action of pires May 23, 1909. the board of equalization was unwarranted and without authority of law.
"H. L. Boyes, being duly sworn, deposes 3. SAME-REVIEW BY DISTRICT COURT.
and says that he has read the foregoing peUpon an appeal from the board of county tition, and upon his oath states that the matcommissioners, the district court takes appellate ters and things therein alleged are true as jurisdiction only, which is the jurisdiction that
he verily believes. the inferior tribunal had, and none other; and in such case, the district court cannot convert
"[Signed] H. L. Boyes. such action into an action of equity, and as- "Subscribed and sworn to before me this sume a jurisdiction of equity that the inferior
2d day of January, 1906. Jas. M. Taylor, Notribunal did not have. (Syllabus by the Court.)
tary Public. My commission expires Sept.
26, 1909. Error from District Court, Noble County: "Filed Jan. 3, 1906. Joseph E. Dolezal, before Justice Bayard T. Hainer.
County Clerk. Appeal by Charles R. Bostick, county at
"Exhibit A. torney of Noble county, from a decision of the county commissioners of Noble county in
“Perry, Okla., Dec. 7, 1905. relation to the taxation of property of the "To the Honorable Board of County ComPerry Mill Company. Judgment for the missioners—Gentlemen: Upon reflection, county com:nissioners, and the county attor- and reviewing the matter, we feel that the ney brings error. Reversed.
assessment made against the Perry Mill
Company last spring was a mistake, and by Charles R. Bostick, in pro. per. S. H.
, Harris and L. L. Cowley, for defendant in
making comparison with other institutions
of this city, we feel that an assessment on error.
real estate and personal property for $10,
000.00 is fair and just, and ask that you PANCOAST, J. On the 3d day of Janu- please give this matter your consideration ary, 1906, the Perry Mill Company filed a
and make the correction above stated. petition before the board of county commis- "Very respectfully, sioners of Noble county, asking for a certifi
“C. S. Minor, Assessor. cate of error in the amount of $1,594.62 on
"F. M. Busch, Clerk. the ground that the tax levy for the year
"A. E. Smyser, Mayor. 1905 was erroneous and excessive, by rea
“To Whom It may Concern: This is to son of a mistake made by the board of
certify that to the best of my knowledge and equalization of the city of Perry. The peti
belief our elevator, situated in the city of tion is as follows:
Perry, Oklahoma, did not contain to exceed “Application of the Perry Mill Company ten thousand bushels of wheat on the 1st of for Certificate of Error.
March, 1903. “Comes now the Perry Milling Company,
“[Signed] D. McKinstry. by D. R. McKinstry, and complains to the "Subscribed and sworn to before me, a honorable board of county commissioners notary public, this 7th day of December, that the taxes assessed against him for the 1905. C. L. Ritter, Notary Public. [ Seal.] year 190) are erroneous and excessive; that My commission expires May 23th, 1909."