tions was the agent of the plaintiff, and made the proposition for and on behalf of the plaintiff, and of the Santa Fé Railway, and misrepresented the facts in order to raise the subscriptions, and that no one would have subscribed said bonus if it had been known that it was a Santa Fé scheme, and, knowing this, the agent of the plaintiff carefully cultivated the impression that it was not a Santa Fé, but a Rock Island, project; that the defendant gave the note in suit solely upon such representation; and that there was no other consideration, save the proposition to get the Rock Island Railroad into Guthrie. Defendant further alleges that said Brooks never subscribed $500. For a third defense, defendant substantially alleges that the plaintiff and its agent fraudulently represented that the proposed bonus, to which the defendant subscribed, was for the purpose of inducing the Rock Island Railway to build into Guthrie, when in fact the bonus was to be used to build a branch for the Santa Fé, and that the defendant executed the note sued upon, believing that it was to induce the Rock Island road to build into Guthrie. The fourth defense alleges a conspiracy to induce the defendant and others to subscribe by making bogus subscriptions. The fifth defense was that subscriptions largely in excess of $15,000 were obtained, but there was no evidence offered under this defense. The sixth defense is that the note was void, because under the charter the road would have been built from Guthrie, and not from Seward.

To this answer, and each paragraph thereof, except the general denial, the plaintiff demurred on the ground that the facts stated did not constitute a defense. This demurrer was overruled, to which exceptions were saved. Thereupon the plaintiff replied by a general denial, and the case was tried on these issues. Verdict was returned in favor of the defendant. Motion for new trial was filed and overruled, exceptions saved, and the case is brought here for review.

Green, Martin & Tibbetts and Devereux & Hildreth, for plaintiff in error. Cotteral & Hornor, for defendant in error.

IRWIN, J. (after stating the facts as above). In this case the plaintiff in error relies upon six assignments of error. think it will only be necessary to consider three: First, the overruling of the plaintiff's demurrer to the amended answer; second, error in admitting testimony for the defendant over the objection of the plaintiff; sixth, that the court erred in overruling plaintiff's motion for a new trial. It will be observed, from a perusal of this record, that the entire subject-matter of the defendant's defense to this note is based upon statements made of promises at a meeting of citizens held in Guthrie, prior to the execution of this note, which meeting was held 91 P.-71

for the purpose of raising a bonus to secure a line of railroad from Kingfisher, on the Rock Island, to Guthrie. There is nothing in the record, so far as the proof shows, to indicate that any of the parties making these statements at said meeting were acting for, or authorized to act for, or pretended to be acting for, the holder of this note; and, even if they were, such statements made prior to, or contemporaneous with, the execution of this note, and, being statements which were in direct conflict and contradiction with the plain, unequivocal terms of the note, would not be sufficient to constitute a defense to the note under the plain provisions of our statute. St. Okl. 1893, § 822, reads as follows: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument." This provision of the statute was no doubt designed by the Legislature to preclude the admission of oral testimony to vary, contradiet, or change the terms of a written contract, and was in strict accord with the spirit and principles of the common law on this subject. This note, by its terms, sets forth in clear, distinct, and unmistakable language all the terms, qualifications, and conditions attached thereto, and no person of ordinary understanding could read such a note and have any doubt as to its intention, purport, and meaning. The allegations of the answer amount only to a statement that at a public meeting held, not in the name of the payee of this note, not purporting to be held by the authority of the Guthrie & Western Railway Company, but held by the citizens for the purpose of securing a public expression from the resident property owners of Guthrie as to whether it was advisable to raise the bonus necessary to secure this connecting line of road or not, certain representations and statements amounting to promises were made by certain persons in certain public speeches, and in our judgment amount only to expressions of opinion as to the benefits to be derived from securing this line of road.

An examination into the evidence will show that the recollections of the defendant in error as to what took place in that meeting, the expressions that were used, and the promises that were made are very uncertain and indefinite. On page 61 of the record the following appears in the testimony of the defendant in error: "Q. Who made that statement? A. Judge Green, if my memory serves me right. Q. Geo. S. Green? A. Geo. S. Green; yes, sir. Q. You may state what he said. (Objected to, for the reason it is hearsay and irrelevant, which objection was by the court overruled.) Q. Go ahead and state what he said. A. Wel!Q. Did he get up on his feet and talk? A. 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. I remember 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, if 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. In support 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 mere expression of opinion that such representation is not fraudulent or actionable if it relates to a future event, and is of the opinion that a railroad will be built and operated by a certain well-known railroad corporation. The rule is laid down in Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166, by Mr. Justice Field, that an expression of opinion, however fallacious, in regard to property, the value of which depended upon contingencies, is not sufficient to predicate fraud upon. In the case of Warner v. Eenjamin, 89 Wis. 290, 62 N. W. 179, representations made by a vendor of mining stock that the vendee could not lose upon his investment and that the mines would pay a dividend in the near future, being a mere expression of opinion, or a promise of a future condition of things, will not form a ground of recovery by the vendee on the ground of false representations. In the case of Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161, it was held that a representation by a defendant that the plaintiff could have possession of a certain building on property leased to plaintiff on a certain date, several months after the making of such representation, is not actionable, though such event did not occur, in that it relates to a future, and not to a past or present, event. In the case at bar the defendant seeks to avoid the payment of this note by setting up certain facts or representations with reference to what would take place in the future, and upon these alleged frauds, which he says were practiced upon him, he seeks to avoid the payment of the note which he acknowledged he signed. It is well settled in principle, as well as by authority, that no statement as to what would be done or was intended to be done in the future constitutes a fraud. It was so expressly held in the case of Milwaukee Brick & Cement Company v. Schoknecht, 108 Wis. 457, 84 N. W. 838. The Wisconsin Supreme Court said: "But no statement as to what would be done or intended to be done in the future constitutes a fraud. To be such it must relate to a present or past state of facts." See, also, Patterson v. Wright, 64 Wis. 289, 25 N. W. 10; Field v. Siegel, 99 Wis. 609, 75 N. W. 397, 47 L. R. A. 433. In McAlister v. Indianapolis & C. R. Co., 15 Ind. 11, it was held: "A citizen of a certain town made unconditional subscription to the stock of a railroad company; the company promising that the branch of the road should be made to the town in which the subscriber resided. Held, that such subscriber could not recover the money paid on the ground of fraud in failing to build the road to the town; the promise being no more than the expression of an existing intent to make such branch."

It seems to us there is another essential element lacking in this answer, and that is, there is no allegation as to any damages having been sustained. According to the allega

tions of this answer the railroad was to have been built and operated in a certain way. Now, if it is conceded, for the purpose of argument, that this is true, it does not appear wherein or in what manner the defendant has been damaged. It is conceded that this line of railroad, connecting the two great trunk lines in the territory, has been built. But it is claimed that, because it is not operated by a certain company, or as originally built by a certain company, or in a certain way to suit the ideas and notions of the defendant, that in that way he has been injured, and relieved of his obligation. In the case of Parker v. Jewett, 52 Minn. 514, 55 N. W. 56, it was held: "An answer setting up fraud or deceit as defense to a promissory note should show damage and the extent thereof. The action is upon a promissory note. The answer sets up as a defense that the note was given for mining stock, and that the defendant purchased the same, relying upon certain representations, which he alleges were false and fraudulent.

*

The answer winds up by stating generally that the defendant had derived no benefit in any way, and had received no consideration whatever for the note." The court observed: "It does not appear that the mine in question has not some value, or that the stock is worthless, or of how much less value it was, than the amount paid for it; in other words, it does not show what, or how much, damage defendant had suffered. When the basis of the defense to a promissory note given upon the purchase of property-as, in this case, stock-is fraud and deceit, through which the defendant was induced to purchase that which proves to be of no value, or of less value than contracted to be paid therefor, it is obvious that the facts should be pleaded, whether the defense attempted to be made is complete or partial." In the case of Godding v. Colorado Springs Live Stock Company, 4 Colo. App. 14, 34 Pac. 944, it was held that mere expressions of opinion are not false representations. A misstatement, to be actionable, must relate to existing facts peculiarly within the knowledge of the party, and they there cite Stimson v. Helps, 9 Colo. 33, 10 Pac. 209; Adams v. Schiffer, 11 Colo. 29, 17 Pac. 21, 7 Am. St. Rep. 202: Cooley on Torts, 474-486. The rule was stated by Chancellor Kent, in his Commentaries, vol. 2, *485: "The common law affords to every one reasonable protection against fraud in dealing;' but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or an indifference to the ordinary and accessible means of information."

In this case the note is couched in clear, distinct, and unmistakable language. It is explicit as to all its terms and conditions. There is no evidence that the party signing the same was incapable of reading, or that any artifice or deceit was practiced upon

him to prevent his reading it. The only excuse for not reading it and understanding its terms is that he signed it hastily, presuming it contained all the conditions indicated by the representations made at the public meeting mentioned in his evidence. We take it the rule is well established that in the absence of any evidence of incapacity to read, or any trick or artifice resorted to to prevent his reading it, a party signing a written instrument that is plain and unequivocal in its terms is bound by its express terms and conditions therein contained, and that he cannot set up his own carelessness and his own indolence as a defense, and, because he failed to make use of the faculties possessed by him for determining its conditions, be heard to say that its terms or conditions should be other or different from what they are. In Mullen v. Beach Grove Park, 64 Ind. 202, the Indiana Supreme Court say: "An answer admitting the execution of the subscription sued upon, but alleging that the person procuring his signature had misrepresented the contents of the subscription and the extent of liability the defendant would incur by signing it, is insufficient." And we think this is peculiarly true where the evidence fails to show that the party is incapable of reading it, and where it does show that he had full and ample opportunities to investigate and determine its conditions, if he had so desired. In Fox v. Allenville Co., 46 Ind. 31, it is said: "Statements by one procuring subscriptions for a creamery that the profits would be large are mere matters of opinion, and, even if false, do not constitute a defense to an action for the subscription." In Davis v. Campbell, 93 Iowa, 524, 61 N. W. 1053, the Iowa Supreme Court say: "A statement, by persons taking a subscription to a railroad, that the road would be completed to a certain point by a certain day, are mere expressions of opinion, which, although not fulfilled, will not defeat a recovery on the subscription." Sawyer. v. Pickett, 19 Wall. 146, 22 L. Ed. 105, the the Supreme Court of the the United States say: "A representation as to the prospects of the railroad, and its probable effect on the value of property through or past which it runs, are matters of opinion, and will not constitute such fraud as will defeat a subscription to the stock of the road."

Nor do we think it can be contended that the evidence of these statements made at this public meeting by the various parties making the speeches there is admissible as statements made by the agents of the company, or that the railroad company to whom this note is payable can be bound by their declarations, because an examination of the testimony of the defendant in error, on pages 90 and 91, will show that he is uncertain as to just who drew these notes, and in fact his final conclusion is that they were drawn by young Geo. Green, and there is nothing in the record or evidence to show that young

Geo. Green made any statement of any kind or character as to who would build this road, or any of the representations which the defendant now claims he relies on as a defense. There is not the slightest, evidence in the record to show that this meeting was ever called at the instance of the railroad company; but there is evidence, and all the evidence is, to show that this meeting was called by the citizens themselves to secure a benefit to the town, and we are at a loss to see under what principle of law a written contract, plain upon its face, clear and unmistakable in its terms, and which clearly discloses all its conditions, can be changed, varied, or set aside by proof of statements made by parties which the evidence fails to show had any authority to bind the payee of the note, and when such statements were made, according to the evidence, prior to the signing of such note.

Now, under this condition of the record, we think it was plainly the duty of the court to have sustained the demurrer of the plaintiff in error. It is true that the answer in this case contains a general denial, but this general denial does not constitute a defense to this action for two reasons, at least: First. This is an action upon a promissory note, purported to be signed by the defendant in the court below. The general denial is unverified. This, under our statute, does not place or put in question the signature to the note. The note was competent evidence, without further proof, under such a pleading. Second. While the general denial, if sworn to, would have put the execution of this note in issue, yet the second cause of action alleged is inconsistent with a general denial, in so far as it admits the execution of the note, for the second cause of action expressly admits the execution of the note, and in our judgment the allegations of the answer are not sufficient to constitute a defense in this case, and for this reason the court should have sustained the demurrer filed by the plaintiff in error in the court below. But, having failed to sustain this demurrer, and having submitted the question to a jury, and the jury having found in favor of the defendant, under the record and evidence in this case we think it was clearly the duty of the court to have set aside the verdict and granted a new trial. But, as all the defense is clearly set up in the answer and evidence, we think there is no necessity for a rehearing of the case, and under the law as we understand it the plaintiff in this case should have judgment for the face of the note and interest, and the attorney's fees therein mentioned.

For these reasons, the case is reversed, at the costs of the defendant in error, with instructions to the district court to enter judgment for the plaintiff in accordance with this opinion. All the Justices concurring, except BURFORD, C. J., who, having tried the cause below, took no part in this decision.

(19 Okl. 92)

Rehearing Denied Oct. 12, 1907.)

1. TAXATION-CERTIFICATES OF ERROR-POW,ERS OF COUNTY COMMISSIONERS.

By section 1, art. 1. c. 31, p. 341, of the Session Laws of 1905, boards of county commissioners of the various counties of Oklahoma are authorized to issue certificates of error to taxpayers upon a proper showing in three classes of cases: First, where the same property has been assessed more than once for taxes of the same year; second, where the property has been assessed in the county for the year to which the same was not subject; third, where the property has been destroyed by flood or tornado to the extent of at least 50 per cent. of its cash value. In no other case or class of cases is there any provision for issuing certificates of error for taxes on property erroneously assessed.

2. SAME-ACTS OF BOARD OF EQUALIZATION.

Where an assessment of property is made, and the board of equalization of the city within which such property is located raises the valuation of such property for the purpose of taxation, the board of county commissioners have no authority under the law to issue to the owner of such property a certificate of error upon the theory or because of the fact that the action of the board of equalization was unwarranted and without authority of law.

3. SAME-REVIEW BY DISTRICT COURT.

Upon an appeal from the board of county commissioners. the district court takes appellate jurisdiction only, which is the jurisdiction that the inferior tribunal had, and none other; and in such case, the district court cannot convert such action into an action of equity, and assume a jurisdiction of equity that the inferior tribunal did not have.

(Syllabus by the Court.)

Error from District Court, Noble County: before Justice Bayard T. Hainer.

Appeal by Charles R. Bostick, county attorney of Noble county, from a decision of the county commissioners of Noble county in relation to the taxation of property of the Perry Mill Company. Judgment for the county commissioners, and the county attorney brings error. Reversed.

Charles R. Bostick, in pro. per. S. H. Harris and L. L. Cowley, for defendant in

error.

PANCOAST, J. On the 3d day of January, 1906, the Perry Mill Company filed a petition before the board of county commissioners of Noble county, asking for a certificate of error in the amount of $1,594.62 on the ground that the tax levy for the year 1905 was erroneous and excessive, by reason of a mistake made by the board of equalization of the city of Perry. The petition is as follows:

"Application of the Perry Mill Company for Certificate of Error.

"Comes now the Perry Milling Company. by D. R. McKinstry, and complains to the honorable board of county commissioners that the taxes assessed against him for the year 1905 are erroneous and excessive; that

the city board, as evidenced by Exhibit A, hereto attached and made a part hereof. Your complainant therefore prays that a certificate of error in the sum of $1,594.62 be issued to said Perry Milling Company by said board of county commissioners: Amount charged on tax rolls: Real estate, value $16,718.00,

taxes

Personal, value $11,000.00, taxes

Amount as per schedule and Exhibit A:

Real estate and personal, $10,000.00

$1,504 62

990 00 $2,494 62

900 00

"Perry, Okla., Dec. 7, 1905. "To the Honorable Board of County Commissioners-Gentlemen: Upon reflection, and reviewing the matter, we feel that the assessment made against the Perry Mill Company last spring was a mistake, and by making comparison with other institutions of this city, we feel that an assessment on real estate and personal property for $10,000.00 is fair and just, and ask that you please give this matter your consideration and make the correction above stated. "Very respectfully,

"C. S. Minor, Assessor.
"F. M. Busch, Clerk.
"A. E. Smyser, Mayor.

"To Whom It may Concern: This is to certify that to the best of my knowledge and belief our elevator, situated in the city of Perry, Oklahoma, did not contain to exceed ten thousand bushels of wheat on the 1st of March, 1905.

"[Signed] D. McKinstry. "Subscribed and sworn to before me, a notary public, this 7th day of December, 1905. C. L. Ritter, Notary Public. [Seal.] My commission expires May 25th, 1909."