Co., and that plaintiff would take that claim in settlement of so much of defendant's indebtedness to him, and release defendant from all liability for that indebtedness, and thereupon Kent did agree to release Cummings, and accepted Chamberlain, Mathers & Co., who thereupon agreed to pay said sum to the plaintiff. That, in pursuance of that agreement, the bills of exchange now sued on were drawn up by the book-keeper of the plaintiff, and signed by the defendant, but that the agreement between the parties was that said papers should be used solely for the purpose of assigning defendant's claim to the plaintiff, and for the purpose of enabling Chamberlain, Mathers & Co. to have a voucher, when they should pay these sums against the defendant on account, but that the defendant was not to be liable on said bills of exchange as drawer." The plaintiff below objected to this testimony. The objection was sustained, and the testimony excluded. The only question before this court for consideration arises upon this action of the trial court. A judgment for the plaintiff was affirmed by the district court on error. To reverse this judgment the present proceeding is prosecuted. John W. Herron, for plaintiff in error. Jordan & Jordan, for defendant in error. OWEN, C. J. If the trial court properly excluded the evidence offered by the defendant below to prove that it was agreed, at the time the bills of exchange in suit were drawn, that he was not to be liable thereon as drawer, the judgment below should be affirmed. The real issue tendered by the answer was that Kent took the bills of exchange in payment of the debt of $3,014.95, which was due from the defendant Cummings to him, and agreed to release the former from all liability for the same. A careful inspection of the answer fails to disclose any averment that Kent agreed to release Cummings from his liability as drawer of the bills, or that there was any agreement that the only purpose in drawing the bills was to effect an assignment of the debt. If we assume the facts alleged in the answer to be proved as fully as averred, they would still fall short of establishing a defense to the action on the bills of exchange. They may have been taken as payment of the account, and Cummings thereby released from all liability thereon; but the action was not upon the account, but upon the bills given for its payment. The evidence offered was properly excluded as being irrelevant to the issues joined. We do not find it necessary, however, to rest our determination of the case solely upon this ground. Assuming, for the purposes of the case, that the issues were broad enough to invite an inquiry into the facts which were sought to be proved by the evidence offered, was it competent to establish such facts by oral testimony? The liability assumed by the drawing of a bill of exchange is clearly recognized by the law. The mere act of drawing a bill imports the most certain and precise contract, for presumed adequate consideration, that the bill shall be accepted and paid, and that if it is not the drawer will pay it. Wood v. Surrells, 89 Ill. 107; Chit. Bills, 147. It is a firmly-settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsement of a bill or note cannot be permitted to vary, qualify, or contradict, to add to or subtract from, the abso lute terms of the contract. Pars. Notes & Bills, 501. The evidence which the court excluded in the case at bar was offered for the purpose of proving that, at the time of drawing and delivery of the bills in suit, it was agreed between the payee and drawer that the latter should not be liable as such drawer. If this was not an attempt to contradict the plain terms of the contract, as the law interprets it, it is not easy to conceive of a case which would present such a question. Morris v. Faurot, 21 Ohio St. 155, is cited to support the view contended for by Cummings. This was a suit by the indorsee against the indorser of a promissory note. The defense was that the indorsement was not made in the regular course of business, but that the plaintiff had agreed with the makers to take up the note, and that "the indorsement was made with the express understanding and agreement that this indorsement was to be used by the plaintiff only as evidence to Cochran & McElroy that he had paid off their indebtedness on the note to the defendants, and that it was made for no other purpose whatever. McILVAINE, J., says: "That parol testimony is inadmissible to contradict or vary the terms of written instruments, and the contract of an indorser of a promissory note, whether the indorsement be in blank or otherwise, is within the meaning of that rule, as general propositions of law are true, may be admitted for the purpose of this case. But the question in the case, as we understand it, was not as to the terms of the contract, or the nature or extent of the indorser's liability, but whether there was any contract at all out of which any liability could arise. " It will be seen that this case expressly recognizes the rule which the trial court, in the case at bar, applied in excluding the evidence offered "as to the terms of the contract, or the nature or extent of the liability" of the drawer. Dye v. Scott, 35 Ohio St. 194, is relied upon as decisive of the case at bar, in that it establishes the admissibility of the evidence which the trial court excluded. The proposition declared by the court in that case is: "Oral testimony is admissible to prove that the indorser, as between himself and the indorsee, at the time of indorsing a note in blank, waived demand and notice." We are not called upon, nor have we any disposition, to question the entire soundness of this proposition; and the language of GILMORE, J., which is relied upon by the plaintiff in error, must be read and construed in the light of the question before the court, and not as declaratory of a rule which was not at all necessary to a solution of that question. The rule established by that case is supported by authorities which rigidly adhere to the principle which guided the trial court. 1 Pars. Notes & Bills, 584; Daniel, Neg. Inst. § 1093; Edw. Notes & Bills, § 861; Boyd v. Cleveland, 4 Pick. 525; Lane v. Steward, 20 Me. 98; Fuller v. McDonald, 8 Greenl. 213. Wood v. Surrells, 89 Ill. 107, is an instructive case, presenting striking analogies to the case at bar. One of several judgment debtors gave a bill of exchange on a third person, whose acceptance was procured in satisfaction of the judgment. It was held that evidence of a parol agreement, at the time of the drawing of the bill, to release the drawer from all liability on the draft, was inadmissible. Here the judgment was paid by the drawing and acceptance of the bill; but evidence of a contemporaneous parol agreement that the drawer was not to be liable as such was excluded. It was further held in that case that the liability of a drawer of an inland bill of exchange is fixed by presenting the draft on the day of its maturity, and notice of its dishonor. It was als held that "the rule is familiar that an agreement cannot exist partly in writing and partly in parol, or that verbal terms or conditions cannot control the rights or liabilities of parties to commercial paper." While there is not entire uniformity in the authorities upon the question, their decided weight will be found to support the principle that evidence is not admissible to prove a contemporaneous parol agreement that the liability of the drawer of a bill of exchange is not to be enforced. 1 Daniel, Neg. Inst. § 80; Martin v. Cole, 104 U. S. 30; Bigelow v. Colton, 13 Gray, 309; Davis v. Randall, 115 Mass. 547; Bartlett v. Lee, 33 Ga. 491; Day v. Thompson, 65 Ala. 269; Barnard v. Gaslin, 23 Minn. 192; Crocker v. Getchell, 23 Me. 392; Fuller v. McDonald, 8 Greenl. 213; Tankersley v. Graham, 8 Ala. 247; Stubbs v. Goodall, 4 Ga. 106; Wilson v. Black, 6 Blackf. 509; Holton v. McCormick, 45 Ind. 411; Stack v. Beach, 74 Ind. 571; Woodward v. Foster, 18 Grat. 200; Barry v. Morse, 3 N. H. 132; Heaverin v. Donnell, 7 Smedes & M. 244; Heath v. Van Cott, 9 Wis. 516. This is also the rule in England. Hoare v. Graham, 3 Camp. 57; Abrey v. Crux, L. R. 5 C. P. 37; Bell v. Ingeste, 12 Q. B. 317. See, also, Forsythe v. Kimball, 91 U. S. 291; Specht v. Howard, 16 Wall. 564. Judgment affirmed. (44 Ohio St. 51) PELTON V. BEMIS. Filed February 23, 1886. 1. TAXES-ACTION TO RECOVER BACK TAX ILLEGALLY ASSESSED-PLEADING, In an action brought under section 5848 of the Revised Statutes, to recover back an assessment that has been collected, on the ground that it was illegally assessed, it is not sufficient to aver that the assessment is illegal and void; such averment being simply a legal conclusion. The facts must be stated, so that the court may judge whether or not the same is illegal and void. 2. SAME-STATUTE OF LIMITATIONS-ASSESSMENT IN INSTALLMENTS. When, for the purpose of collection, an assessment is divided into two or more installments, payable annually or otherwise, the limitation of time in which the action can be brought, as provided in said section, begins to run against such installment from the time of its collection, and not from the collection of the last installment.1 Error to district court, Cuyahoga county. The plaintiff below, Fred. C. Beinis, commenced his action in the court of common pleas under sections 5848 and 5850 of the Revised Statutes, to recover back certain assessments upon his property, that he had paid to the defendant as treasurer of the county. The petition, containing a cause of action for each payment, (four in all,) was filed on June 24, 1879. The averments of the first cause of action are as follows: "The plaintiff alleges (1) that during the years 1876, 1877, and 1878 the defendant, Frederick W. Pelton, was treasurer of Cuyahoga county, and the plaintiff was and still is the owner of sublots 29, 30, and 31 of Nicola and Judson's allotment of a part of original lot 328, all of which lots have a frontage and are situated on Kinsman street, in the city of Cleveland, county and state aforesaid. (2) That on the fifth day of September, A. D. 1876, the city of Cleveland, a municipal corporation under the laws of the state of Ohio, by the passage of a so-called ordinance by the city council of said city, caused a special assessment for the grading, draining, paving, and improving of Kinsman street, in said city of Cleveland, to be made and levied upon all of the aforesaid lots in the total sum of nine hundred and eighty-two dollars and five cents, ($982.05.) payable, in five annual installments, to the treasurer of Cuyahoga county; the first installment payable on or before the twentieth day of December, A. D. 1876, and one installment annually thereafter until all should be paid; and that said city of Cleveland caused and procured said special assessment to be entered upon the general duplicate for the collection of taxes in and for said county of Cuyahoga. And this plaintiff further alleges and avers that said special assessment, so made, levied, and entered upon said general duplicate as aforesaid, was and is wholly illegal and void. (3) This plaintiff further says that on the eighth day of November, A. D. 1876, the defendant, Frederick W. Pelton, then treasurer of Cuyahoga county, at his office, in said city of Cleveland, refused to receive from said plaintiff the state, county, and city taxes, exclusive of said special assessment charged on the duplicate against the aforesaid lots of this plaintiff, and thereby illegally and wrongfully forced and compelled this plaintiff to pay to said defendant, and this plaintiff did then and there, under said force and compulsion, in order to save the aforesaid lots from being returned as delinquent and sold, pay to said defendant the sum of $98.20; the said sum being the first half of the first installment claimed to be due upon said special assessment, so as aforesaid made, levied, and entered upon said duplicate. And this plaintiff further says that, at the time of making the aforesaid payment to said defendant, he entered his solemn protest against the payment of the same. The second cause of action is substantially as the first, except that the payment was made on June 15, 1877. For a full discussion of the question of statute of limitations, and when the statute begins to run, see Perry Co. v. Railroad Co., (Ohio,) 2 N. E. Rep. 854, and note, 857-870; and Wright v. Kleyla, (Ind.) 4 N. E. Rep. 16. The third cause of action was substantially as the first, except that the assessment was for the sum of $1,309.40, and covered an additional lot; and the installment $130.94, sought to be recovered back, was paid on January 18, 1878. The fourth cause was substantially as the last, except that the installment $98.20 was paid on June 24, 1878,-just within the year prior to the commencement of the action. The defendant demurred separately to each cause of action, on the ground that it did not state facts sufficient to constitute a cause of action; and finally, upon the same ground, to the entire petition. The court sustained the demurrer to the first, second, and third, and overruled it as to the fourth, cause of action; and, there being neither amendment. nor further pleading, judgment was rendered for the defendant upon the first three causes of action, and against him for the sum of $98.20 on the last one. On a proceeding in error, the district court of the county affirmed the judgment of the common pleas on each cause of action; and this proceeding is now prosecuted in this court, on the petition of defendant below, to reverse the judgment against him upon the fourth cause of action; and, by the plaintiff below, upon a cross-petition to reverse the judgment against him upon the first three causes of action. The demurrer to the first three causes of action was sustained on the ground that each one was barred by the limitation contained in section 5848 of the Revised Statutes, to-wit, one year from the payment of the assessment; and this is assigned for error by the plaintiff below upon his cross-petition. The plaintiff in error claims that (1) it does not sufficiently appear in the petition that the assessment was illegal, and (2) the petition does not show an involuntary payment; and for these reasons asks that the judgments against him be reversed. Kain, Sherwood & Bunts, for plaintiff in error. James Fitch and John E. Ensign, for defendant in error. MINSHALL, J. For the purpose of convenience we will first consider whether the first, second, or third cause of action, contained in the petition of the plaintiff below, was barred by the limitation contained in the statute, at the commencement of the suit. The language of the statute (section 5848, Rev. St.) is: "No recovery shall be had unless the action be brought within one year after the are collected." * * * assessments It is claimed that an assessment is an entirety, and that the statute does not begin to run, where the assessment is divided into installments, until the payment of the last one. We are of a different opinion. It may be conceded that, as respects the making of an assessment, it is to be regarded as an entirety,—the sum the land should bear as its proportion of the cost of the improvement, according to benefits conferred; but it does not follow that it must be so regarded as respects the mode of collection. When, for the latter purpose, it is divided into installments, one of which is to be paid each successive year until all are paid, each |