Opinion of the Court. 35 Okla., at page 843 of 130 Pac., the following expression, "and that the estimates here filed sufficiently comply therewith," held that the estimates so filed were competent evidence of the amount of revenue required by the school district. We cannot agree with counsel for plantiiff as to the effect of the case cited. It is apparent that the court in determining the case cited treated the estimates relied upon as having been filed with the county clerk, as will appear from the following language used by the court: "On the other hand, it is contended that no such estimate is required; that those filed with the county clerk are brutum fulmen; and the levy, being within the constitutional limit, must stand." We do not think the case cited determines the question here considered, nor that it is authority for the contention of plaintiff that the reports filed with the county superintendent are competent evidence, as the admissibility of the estimates does not seem to have been considered, but only their sufficiency as estimates. It is, however, further contended by plaintiff that, inasmuch as it had shown that no estimates were on file with the county clerk, the estimates offered in evidence were admissible as secondary evidence, and, not being rebutted by any evidence for the defendants, must stand and be considered by the court in rendering judgment. In this, we think, counsel for plaintiff are in error. They have overlooked the primary source of evidence as to what estimates of revenue required were made by the respective school districts. The minutes of the clerks of the respective districts of what occurred at the annual meeting would be the best evidence of the estimate of expenses made by the respective districts as a basis for levying the taxes complained of, in absence of a statute requiring such estimates to be Chicago, R. I. & P. Ry. Co. v. Forsythe & Templar et al. filed in any public office as a basis for the tax levy. Marlow v. School Dist. No. 4, 29 Okla. 304, 116 Pac. 797. The minutes of the clerks of the respective school districts were not produced, nor was there any evidence to show that they could not be procured, nor were they accounted for in any way. We conclude that the trial court was right in holding that the estimates offered in evidence by plaintiff were incompetent as primary evidence, and in the absence of any showing that the best evidence could not be obtained they were incompetent as secondary evidence. Dyal v. Norton, 47 Okla. 794, 150 Pac. 703-705; Farmers' Hardware, etc., Co. v. Thacker, 54 Okla. 425, 153 Pac. 1144. That being so, plaintiff failed in its proof of the illegality of the taxes complained of, and the judgment of the court below dissolving the temporary injunction was right, and should be affirmed. By the Court: It is so ordered. CHICAGO, R. I. & P. RY. CO. v. FORSYTHE & No. 5506. Opinion Filed February 29, 1916. (155 Pac. 851.) EVIDENCE—Admissibility-Offer to Compromise. Evidence of a proposed compromise and settlement of a claim, which was not accepted, cannot be legally admitted in evidence in a trial in which the claim offered to be compromised is the subject-matter of the suit. (Syllabus by Collier, C.) Opinion of the Court. Error from County Court, Stephens County; Action by Forsythe & Templar and others against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiffs, and defendant Railway Company brings error. Reversed and remanded. C. O. Blake, R. J. Roberts, W. H. Moore, J. G. Gamble, K. W. Shartel, and Bond & Sandlin, for plaintiff in error. Robert Burns and Womack & Brown, for defendants in error. Opinion by COLLIER, C. This is an action by Forsythe & Templar, a copartnership, hereinafter called plaintiffs, against the Chicago, Rock Island & Pacific Railway Company and various other parties, hereinafter called defendants, for the loss of 23 hogs under an interstate shipment from Comanche, Okla., to Ft. Worth, Tex. For reasons not disclosed by the record, an amended petition was filed by plaintiffs, and in said amended petition all of said defendants, other than the railway company, were eliminated from said cause. The material evidence shows that said hogs were delivered by plaintiffs in the stock pens of defendant at Comanche in the early part of the day, and there held until evening, when they were loaded into a car, which was sealed and forwarded to Ft. Worth; that upon arrival at the stockyards in Ft. Worth the car containing said hogs was still sealed, and 23 of said hogs were missing; that plaintiffs identified 19 of said missing hogs in another shipment of hogs made from Comanche that day by another party; that after said hogs had been loaded into Chicago, R. I. & P. Ry. Co. v. Forsythe & Templar et al. the car plaintiffs signed a shipping contract for such shipment; that plaintiffs had not been told of any other contract of shipment, other than the one they signed. There was also evidence showing the market value of said hogs. Plaintiffs, against the objection and exception of defendant, were permitted to introduce in evidence a letter from the attorney for plaintiffs notifying defendant of the claim herein sued upon and a reply thereto by one Henry Lucas, as auditor, offering a compromise and settlement of said claim, but did not offer evidence showing that said Lucas was an agent, authorized to act for defendant, or that he was an officer of defendant. Defendant moved for an instructed verdict, which was overruled and excepted to. The jury returned a verdict for plaintiffs in the sum of $372.48, and interest. Defendant moved for a new trial, which motion was overruled, and judgment entered on the verdict, to which defendant duly excepted, and prosecutes this appeal to re verse same. The letter of said Henry Lucas, in reply to the letter of attorneys for plaintiffs, which was admitted in evidence, being an offer of compromise, evidently prejudiced the defendant's cause; and, admitting, which we do not hold, that Lucas was shown to be the duly authorized agent of defendant, the admission of said letter in evidence was prejudicial error, and must work a reversal of this cause. In Jones' Commentaries on Evidence, vol. 2, p. 599, it is said: "The general rule excluding offers of compromise applies with the same force to letters as to verbal communications. Said Sir John Romilly: 'Such communications Clapp v. Miller. made with a view to an amicable arrangement ought to be held very sacred, for, if parties were to be afterward prejudiced by their efforts to compromise, it would be impossible to attempt any amicable arrangement of differences'-citing Kierstead v. Brown, 23 Neb. 595, 37 N. W. 471; Phillips v. United States Ben. Soc., 120 Mich. 142, 79 N. W. 1; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 527, 23 L. Ed. 868; Houghton v. Houghton, 15 Beav. 278." The other grounds urged for the granting of a new trial we deem unnecessary to review. This case should be reversed and remanded. By the Court: It is so ordered. 1. 2. 3. CLAPP v. MILLER. No. 5508. Opinion Filed February 29, 1916. (156 Pac. 210.) ACKNOWLEDGMENT-Notaries Public Officer"-Ministerial Act. A notary public is a "public officer," and his act in taking an acknowledgment to a deed or mortgage and certifying to the same is a ministerial act, and not a judicial one. SAME-Negligence of Notary-Liability. And in so doing, it is the duty of such notary public to exercise reasonable care and prudence to ascertain the truthfulness of that to which he certifies, and if he fails so to do he is liable to any one damaged, if his negligent act is the proximate cause of the damage. SAME False Certificate-Pleading-Burden of Proof. A petition which charges that a mortgage was a forgery and the certificate of the notary thereto acknowledging the same was false and untrue, states a cause of action against the notary, and if established by the evidence, it then becomes the notary's duty to show he used reasonable care and skill in certifying to the same. |