the plaintiff, and that it contained the follow- I was sufficient evidence to sustain the verdict ing provision: as to the amount of damages.

"It is understood and agreed that the Gutenberg Machine Company guarantees the above described linotype to have been carefully repaired and to be capable of doing as good work as can be done with a new machine of the same kind, when in the hands of a competent work-plained of is as follows:

[2] 2. As to the second proposition the plaintiff in error contends that the trial court misdirected the jury as to the measure of damages. A portion of the instruction com

man.

Also that there were a number of defective parts, and that a considerable sum of money was soon expended on it for repairs and new parts, and that it was capable of doing about 50 or 60 per cent. as much work as a new machine of the kind would do. That the purchase price agreed to be paid was $2,250, and witnesses testified that its value in the condition in which it was received was

"Unless you should further find that at the time the mortgage and notes were given there certain property, and that under the terms of was a contract entered into for the purchase of that contract this plaintiff warranted that property to be of certain character and certain quality, and that there has been a breach of said warranty in that it was not of that quality, and that breach is sufficient to reduce the value of that property to the extent that there is not due now over the sum of $250, then in that event it would be your duty to find for the defendant. In other words, where a contract is entered into and express warranty in the contract that the property will be of certain char

from $500 to $1,200, the jury evidently finding that it was of the value of $1,000. Section 2865, Revised Laws 1910, is as fol- acter, the party who makes these warranties lows:

"The detriment caused by the breach of a warranty of the quality of personal property,, is deemed to be the excess, if any, of the value which the property would have had, at the time to which the warranty referred, if it had been complied with, over its ⚫ value at that time."

must live up to them, and, if the property proves to be of a character different to thatranted-and by reason of that the property is of that is, defective, and not of the quality warless value that it would have been if it had been of the character and quality warranted in the contract, then the party sued would only have to pay what the property was actually worth if he retained it."

And the rule in this state, as well as the As an abstract proposition of law, this ingreat weight of authority of the other states, struction is clearly erroneous. It is tantais that the measure of damages for the breach mount to saying that the measure of damof a warranty of the quality of personal prop-ages would be the difference between the purerty is the difference between the value of the chase price and the actual value of the propproperty if it had been as warranted and its erty as received, and we have held the rule actual value with the defects. Wiggins v. to be that the measure of damages is the Jackson, 31 Okl. 292, 121 Pac. 662, 43 L. R. difference between the value of the property A. (N. S.) 153; Spaulding Mfg. Co. v. Holi- if it had been as warranted and its actual day, 32 Okl. 823, 124 Pac. 35; Spaulding Mfg. value as received; but in this case the only Co. v. Cooksey, 34 Okl. 790, 127 Pac. 414; evidence of the value of the machine, if it Burgess et al. v. Felix, 42 Okl. 193, 140 Pac. had been as it was warranted to be, is the 1180; 35 Cyc. 468, and authorities there cit-purchase price. The jury must have found ed. But the purchase price is competent evidence of the value of the article purchased as warranted. Burgess et al. v. Felix, supra; 35 Cyc. 468-471, and authorities cited.

In Burgess et al. v. Felix, supra, it is said: "Proof of the purchase price of the mares by the plaintiff, and that proof not being controverted in any manner, is strong and convincing proof of the value of the mares as warranted, and, in the absence of other evidence as to the value of said mares, the purchase price is prima facie their value as warranted."

that the purchase price was its value if it had been as warranted. Therefore there is no distinction in this case between the purchase price and the value of the machine if it had been as warranted, and, so far as the evidence here goes, there is no difference between the two rules for the measure of damages. We therefore hold that while, as an abstract proposition of law, the instruction was erroneous, as applied to the evidence in this case, it did not prejudice the rights of the plaintiff. See authorities above cited. The plaintiff requested an instruction which gave the true measure of damages, but the court refused to give it, and gave the one above quoted instead, but we hold in this case that it was not prejudicial error.

In the instant case there was no evidence of the value of the machine as warranted, except the purchase price of $2,250, and under the rule announced in the last-cited case that was prima facie the value of the machine if it had been as warranted in the contract of sale. See, also, J. I. Case Plow Co. v. Niles [3] 3. On the proposition that the court & Scott Company, 90 Wis. 590, 63 N. W. 1013; admitted incompetent evidence over the obAsk v. Beck (Tex. Civ. App.) 68 S. W. 53;jection of the plaintiff, it seems that the conBeard v. Miller (Tex. App.) 16 S. W. 655; tract of sale included the following warTatum v. Mohr, 21 Ark. 349; C. Aultman & ranty: Co. v. Ginn, 1 N. D. 402, 48 N. W. 336.

So we hold that in this case there was sufficient evidence for the jury to find the value of the machine as warranted, and, there being proof of the breach of warranty and the value of the machine with its defects, there

"It is understood and agreed that the Gutenberg Machine Company guarantees the abovedescribed linotype to have been carefully repaired and to be capable of doing as good work as kind when in the hands of a competent workman."

can be done with a new machine of the same

Evidence was admitted to the effect that [ The letter was dated May 13, 1909, and the machine was defective, and in the hands the contract of sale was made on June 10, of a competent operator it would not do sub-1909. We do not think the letter was comstantially as much work as a new machine. petent evidence in the case. When the same The plaintiff contends that evidence as to the was offered and objection properly made, the quantity of work that this machine would do record shows that the court asked this queswas incompetent under this warranty. While tion: the terms of the warranty are not as precise as they could have been made, yet we be lieve that they were intended to mean that this machine would do as efficient work as a new one, and certainly the efficiency of the machine would cover the amount of work that could be done on it or the speed with which it would do its work. We think that no error was committed by the court in per-purported to be complete within itself, and mitting this evidence to be introduced.

The plaintiff further contends that the court committed error in allowing the defendant to introduce in evidence the following letter:

"Chicago, Ill., May 13, 1909. "Mr. R. G. Hardy, The Husonian, Hugo, Okl. -Dear Sir: In accordance with our promise, we give you herewith proposition on our rebuilt linotype machines.

"We have a number of model 1 two-letter linotypes that we are thoroughly rebuilding. These machines when received in our shop are completely taken apart and immersed in a chemical solution, which removes the paint and grease, enabling us to see the true condition of the machine. The parts of the machines are then assembled in exactly the same manner as they were when being built originally. All worn parts are thrown away and are replaced by new

ones.

"The model 1 machine will carry all matrices from 5 pt to 11 pt, inclusive. The Universal mold is exactly the same mold that is sent out at this time with new machines. It can be adjusted by the means of liners from 5 pt to 14 pt in body and to any measure up to and including 30 ems pica in length.

"We inclose herewith, a list showing the new and improved parts added to all rebuilt machines.

"We can furnish a heater for either gas, gasoline or coal oil.

"We also have a model 3 two-letter linotype machine that will be in first-class condition. This machine will carry all matrices from 5 pt to 14 pt, inclusive. We will thoroughly overhaul it and sell it, with new matrices, new spacebands, one magazine and Universal mold, for $2,600.00 f. o. b. Chicago, taking part cash and the balance on time.

"All rebuilt machines are guaranteed to do as much work and as good work, in the hands of a competent workman, as can be had from a new machine.

"We can make shipment of a rebuilt machine at this time within two or three days from receipt of order.

"Hoping to hear further from you and to be favored with your order for one of our machines, which will have our best attention, we are, yours very truly, Gutenberg Machine Company, Will S. Menamin, President. S-ES Enc.'

"Do you introduce this as being part of the contract? Mr. Stewart: This shows the relathe company explaining this transaction.” tionship of the parties; that's a letter from

tion and allowed it to be introduced. Whereupon the court overruled the objecIt seems to us that the only purpose of introducing it was to use it to supplement the written contract of purchase. The contract

could not be varied by extraneous evidence. But, after a careful reading of the letter, we cannot see anything in it which could have prejudiced the plaintiff in the minds of the jury. It seems only to inform the purchaser as to how these secondhand machines were taken apart, repaired, and put together, and the terms of sale, etc., and contains nothing which could tend to enlarge or extend the warranty in the contract of sale, except the following:

"All rebuilt machines are guaranteed to do of a competent workman, as can be had from as much work and as good work, in the hands

a new machine."

Having held that the warranty in the contract of sale that this machine is "capable of doing as good work as can be done with a new machine" means also "as much work," we do not think the statement in the letter was different in effect from the warranty in the contract. Therefore the admission of the letter in evidence, while error, was not prejudicial to the substantial rights of the plaintiff, and therefore not reversible error.

Having arrived at the above conclusions, we recommend that the judgment of the trial court be affirmed.

PER CURIAM. Adopted in whole.

Where a lessor agrees orally to make certain repairs and improvements on a building in the future, and the lessor and lessee enter into a lease contract in writing which makes no mention of such repairs, and the evidence shows a failure to comply with such oral agreement, that does not constitute fraud sufficient to set aside the written instrument, in the absence of evidence that the lessor at the time he made such agreement did not intend to carry it out, or that he made it with intent to deceive the lessee.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 82-84; Dec. Dig. 28.]

349

2. EVIDENCE 442 PAROL WRITTEN | evidence at the time of its introduction, LEASE ORAL AGREEMENT FOR REPAIRS. Parol evidence that, several days prior to but the court permitted it to be introduced, the execution of a written lease, the lessor then at the close of the evidence, upon moorally agreed to make certain repairs and im- tion, struck the same out, and rendered judgprovements on the building is not competent in ment for the plaintiff for $150 and costs, and a suit brought on the written lease contract for rent, where the written lease purports to be the defendant has appealed to this court. a complete contract and does not include any agreement to make such repairs.

There are two contentions presented: First, that the evidence ruled out showed that the contract was procured by fraud; and, second, that it showed a failure or partial failure of consideration.

[1] Some authorities held that a promise

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. 442.] 8. EVIDENCE 443 PAROL WRITTEN LEASE-CONSIDERATION-ORAL AGREEMENT. Although such an agreement to make repairs may have been a part of the consideration, or expression of intention, when there is no it was a contractual act, and parol evidence thereof was not competent, for if it were permitted it would add by parol another term to the contract as written.

present intent to carry out same, and it is made with intent to deceive, will amount to fraud; but it is not necessary for us to pass see Evidence, on that question. There is no evidence in this record that the deceased did not intend to make the repairs at the time he said he would do so, or that he promised to do so in order to deceive or mislead the defendant. The promise was made several days before the contract was executed, and the deceased died some time after the contract was made; and if fraud can be predicated upon a false representation of intention as to a future act, the evidence here is not sufficient to show such a false representation.

[Ed. Note.-For other cases, Cent. Dig. §8 2048-2051; Dec. Dig. 443.] 4. EVIDENCE 443-PAROL-WRITTEN LEASE -CONSIDERATION-ORAL AGREEMENT. A ruling of the trial court striking out such evidence, which was introduced over the objection of the opposing party, is not error. [Ed. Note.-For other cases, Cent. Dig. §§ 2u48-2051; Dec. Dig. Commissioners' Opinion, Division No. 6. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.

see Evidence,
443.]

Action by Carrie A. Moore, administratrix of the estate of John J. Moore, against R. E. Reed. Judgment for plaintiff, and defendant brings error. Affirmed.

Bailey, Wyand & Moon, of Muskogee, for plaintiff in error. Jay A. Anderson, of Muskogee, for defendant in error.

[2] We pass to the second question, as to whether the evidence which was stricken out was competent to show a failure or a partial failure of consideration. The general rule is well established that, where a contract has been reduced to writing, parol evidence is not admissible to vary the terms of the writHATCHETT, C. Carrie A. Moore, as ad- ing. It is equally well established that where ministratrix of the estate of John J. Moore, a recital of the consideration received is put deceased, as plaintiff, sued R. E. Reed, as de- in a written contract, and amounts only to fendant, in the justice of the peace court in an acknowledgment of the payment thereof, Muskogee to recover $100 for rent on a cer- parol evidence as to the true consideration is tain building which the deceased, John J. admissible, although it may tend to vary the Moore, had by written contract rented to writing in that respect. But when the stateReed for a term of one year for $50 per ment of the consideration is "itself an opermonth. The defendant answered by general ative part of a contractual act-as when in denial, and further that the deceased repre- the same writing the parties set out their sented to him orally that if he would sign mutual promises as consideration for each the rental contract deceased would make cer- other-here the word 'consideration' signifies tain repairs and improvements on the build- a term of the contract," and parol evidence ing; that said repairs and improvements is not admissible to alter or contradict it. were never made, and the contract was there- Wigmore, Ev. § 2433; Alsterberg v. Bennett, fore procured by fraud and was without consideration. Judgment was rendered in the justice of the peace court for the defendant, and the plaintiff appealed.

14 N. D. 596, 106 N. W. 49; Neville v.
Hughes, 104 Mo. App. 455, 79 S. W. 735;
Howe v. Walker, 4 Gray (70 Mass.) 318; Mc-
Ninch v. N. W. Thresher Co., 23 Okl. 391, 100
Pac. 524, 138 Am. St. Rep. 803.

Thereafter the cause was tried in the superior court of Muskogee county without a [3, 4] In the case at bar the defendant conjury. The defendant introduced evidence to tends that the deceased agreed orally to imthe effect that, several days prior to the date prove and repair the building, and that was on which the contract was executed, the de-a part of the consideration for the written ceased agreed with the defendant that he rental contract; that the agreement to rewould repair and improve the building in a substantial way; that up to that time the defendant had been paying $25 per month rent, and by the written contract the monthly rent was doubled. The plaintiff objected to this

pair was not performed, and the consideration failed to that extent. The plaintiff contends that the written contract was complete in itself, and parol evidence was not competent to vary its terms. The authorities seem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Re

to hold that a written lease cannot be altered | fendants, and plaintiff brings error.
by proving by parol that the lessor agreed to versed and remanded.
make repairs and improvements. Johnson v.
Witte (Tex. Civ. App.) 32 S. W. 426; McLean
v. Nical, 43 Minn. 169, 45 N. W. 15; Hall v.
Beston, 16 Misc. Rep. 528, 38 N. Y. Supp. 979.
We are of the opinion that parol evidence
that the deceased agreed to repair and im-
prove the building was incompetent, for that
it would tend to vary the terms of the writ-
ten contract of lease, and the fact that such
promise may have been a part of the consid-
eration did not take it without the rule, be-
cause it was a contractual act, and to prove
it by parol would be adding another term to

J. B. Lucas and Britton H. Tabor, both of
Checotah, for plaintiff in error. Claude A.
Niles, of Checotah, for defendants in error.

the written contract.

The plaintiff in her bill of particulars sues for only $100, and the judgment is for $150. In her brief she offers to remit $50. We therefore recommend that the remittitur be accepted, and the judgment be reduced to $100, and the judgment affirmed.

PER CURIAM. Adopted in whole.

(54 Okl. 377)

DEERE v. NEUMEYER et al. (No. 5062.) (Supreme Court of Oklahoma. Jan. 4, 1916.)

(Syllabus by the Court.)

1. INDIANS 15-INDIAN LANDS-REMOVAL
OF RESTRICTIONS-ORDER OF SECRETARY.
An order of the Secretary of the Interior |
removing the restrictions upon the alienation of
Indian lands, which order provides that same
shall not become effective until 30 days after
date, does not have the effect of removing re-
strictions until the 30 days have expired.

[Ed. Note.-For other cases, see Indians, Cent.
Dig. §§ 17, 29, 34, 37-44; Dec. Dig. 15.]
2. INDIANS 15-SURPLUS ALLOTMENT-RE-
MOVAL OF RESTRICTIONS SUSPENSION OF
ORDER-OPERATION OF STATUTE.

Where the Secretary of the Interior made such order as to the surplus allotment of a full-blood Creek Indian on April 21, 1906, same had not taken effect on April 26, 1906, and the act of Congress of the latter date, extending restrictions upon the alienation of the allotments of full-blood Indians for a period of 25 years, superseded the order of the Secretary of the Interior, and such order was indefinitely suspended and never took effect.

[Ed. Note. For other cases, see Indians, Cent. Dig. §§ 17, 19, 34, 37-44; Dec. Dig. 15.] 3. INDIANS 15 - SURPLUS ALLOTMENT

ALIENATION-VALIDITY.

A deed made on July 31, 1906, by a fullblood Creek Indian after the Secretary of the Interior had made such an order on April 21, 1906, is absolutely void because of the act of Congress of April 26, 1906; and a subsequent deed executed by the Indian's vendee, as well as a mortgage taken by such vendee to secure a part of the purchase price of the land, are also void.

[Ed. Note. For other cases, see Indians, Cent. Dig. §§ 17, 19, 34, 37-44; Dec. Dig. 15.] Commissioners' Opinion, Division No. 6. Error from District Court, McIntosh County; R. C. Allen, Judge.

Action by Nancy Deere against Mary A. Neumeyer and another. Judgment for de

HATCHETT, C. The plaintiff in error, Nancy Deere, née James, brought this suit in the district court of McIntosh county against Mary A. Neumeyer, and Mary A. Neumeyer as executrix of the estate of John G. Neumeyer, deceased, and Frank Britton, for the recovery of 80 acres of land, the same being a portion of the surplus allotment of the plaintiff, and for the cancellation of a deed from the plaintiff to John G. Neumeyer, a deed from said Neumeyer to Britton, and a mortgage from Britton back to Neumeyer to secure the balance of the purchase price which remained unpaid, and for rents on the land during the time it had been in the possession of the defendants.

The defendants in the trial court set up and relied upon a warranty deed executed by the plaintiff to John G. Neumeyer on July 31, 1906. A demurrer was sustained to the reply filed by the plaintiff, and by agreement the cause was submitted on the petition and the answer, and judgment was rendered thereon for the defendants.

It appears that the plaintiff is a full-blood Creek Indian; that the 80 acres of land sued for is a portion of her surplus allotment; that of the Interior made an order removing the on the 21st day of April, 1906, the Secretary restrictions on the surplus lands of the plaintiff, to become effective 30 days from that date. On April 26, 1906, Congress passed an act relative to the Indian Territory, in which is the following provision (section 19): "That no full-blood Indian of the Choctaw, Chickasaw, Cherokee, Creek or Seminole Tribes shall have power to alienate, sell, dispose of, or incumber in any way, any of the lands allotted to him for a period of twenty-five years from and after the passage and approval of this act, unless such restrictions shall, prior to the expiration of said period, be removed by act of Congress." 34 Stat. 144, c. 1876.

On July 31, 1906, the plaintiff, under the name of Nancy Robeson, joined by her husband, executed a warranty deed to the land sued for to John G. Neumeyer, for a purported consideration of $800. While the petition alleges that the plaintiff signed the deed under the belief that it was a lease, and had never received the consideration mentioned therein, still the principal question, and the one which under our view disposes of this appeal, is whether the land in controversy was restricted at the time the plaintiff executed the deed on July 31, 1906.

[1] That the provision in the order of the Secretary of the Interior that the same should not become effective until 30 days after its date (April 21, 1906) was valid is no longer an open question, as this court has heretofore decided that the Secretary had

[Ed. Note.-For other cases, see Appeal and Dec. Dig. 970, 1071.] Error, Cent. Dig. §§ 3849-3851, 4234-4239;

3. APPEAL AND ERROR 1005-VERDICT-EVIDENCE.

Where the evidence reasonably tends to sustain the verdict, and when the jury has been properly instructed as to the law, and a motion for new trial has been denied, and the verdict of the jury approved by the trial court, this court will not invade the province of the jury to weigh the evidence and disturb the verdict.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. 1005.]

Commissioners' Opinion, Division No. 4. Error from District Court, Comanche County; J. G. Johnson, Judge.

Action by E. O. Gillam against George Marker, and, defendant dying, Albert Marker, administrator of his estate, was substituted. Judgment for plaintiff, and defendant brings error. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes