the same, the contract must stand and be enforceable according to its terms, regardless of the parol evidence, and the parol contradiction cannot be weighed as evidence against the provisions of the written contract; 162 also that it has been held that the rule permitting parol evidence to show that a written instrument was induced by raised by a plea verified by affidavit. See C. Aultman & Co. v. Henderson (1889) 32 Ill. App. 331.

Under a statute expressly permitting written instruments to be impeached for illegality or fraud, the fact that the genuineness and due execution of a written instrument relied on by the plaintiff is not denied under oath by the defendant has been held not to preclude him from showing fraud which induced its execution, although another statute provides that, when an action is brought upon a written instrument, the genuineness and due execution of the instrument shall be deemed admitted unless specifically denied under oath in the answer. See, for example, Bough v. Cantiveros (1919) 40 Philippine, 209. This line of cases is illustrated also by Moore v. Copp (1897) 119 Cal. 429, 51 Pac. 630, and Brooks v. Johnson (1898) 122 Cal. 569, 55 Pac. 423, on which the court in the Bough Case relies.

162 Blumer v. Schmidt (1914) 164 Iowa, 682, 146 N. W. 752; Galva First Nat. Bank v. Reed (1927) — Iowa, 215 N. W. 732.

163 Koffman v. Southwest Missouri Electric R. Co. (1902) 95 Mo. App. 459, 68 S. W. 202. It was said: "In their cognizance of actions and defenses involving fraud, courts of law often override a document purporting to be a contract, on proof that its execution was induced by some trick or deceit which misled the complaining party in regard to its terms, so that he did not know the legal effect of what he was signing; but do not, on such proof, give effect to the agreement as orally made, or, in other words, reform the instrument, as courts of equity do.

. . It must be borne in mind, in considering this subject, that the common law adheres more rigidly to the rule against varying or contradicting written instruments by parol evidence than does equity. That rule was originally a part of the common-law procedure, and not of equity, and exceptions are admitted in equity practice

fraud does not allow a party to recover in a legal action on a verbal contract relative to the same subject-matter contained in a written one signed by him, on proving that he was misled as to the contents of the latter, without reformation of the contract.163 And in this connection attention is called to a which the law will not admit. The reception of parol testimony to show a party's disability to contract, or that he was led to sign a document by circumvention or trickery, is not thought to infringe the rule, because the effect of such testimony is not to vary or contradict the writing, but merely to show the subscribing party never assented to its terms. . .. The plea of non est factum at common law, by which the extent of the legal remedy against written instruments obtained by fraud is to be measured, let in oral testimony to avoid the instrument by showing it was not in any true sense executed by one of the parties, but did not permit a defrauded party to set up a verbal contract as the one actually made, in lieu of the one contained in the avoided writing, and recover for breach of it. If it is asked why a person should be allowed to defend against a written agreement fraudulently procured, or to overcome it when interposed as an accord and satisfaction to a previous cause of action unconnected with it or the negotiations leading to its execution, and not allowed to ignore a complete memorandum when he sues on the agreement which it ought to have but did not express, the answer must be that it is, and for centuries has been, the policy of the law to exclude parol evidence to establish agreements in order to make them the basis of a legal action, when the parties have signed a writing for the purpose of setting out their agreement. It may be as logical to admit parol proof in one case as in the other, but this positive rule of law intervenes in one case, and not in the other, and legal rules and precedents are not always uncompromisingly logical. . When a suit is to be brought on an agreement as made, but not written, the writing must be rectified by a proceeding in equity, and the reason of this procedure is that equity long since began to grant relief in such cases because the law granted none."

class of decisions on the question as to whether parol evidence, in case of contracts within the Statute of Frauds,

That a party to a written contract who claims that it does not correctly state the terms of the agreement, and that he was led to sign the same by the fraudulent representations of the other party thereto, cannot recover upon the oral agreement, but must first have the written agreement reformed, see also, for example, Biering v. Ringling (1927) 78 Mont. 145, 252 Pac. 872.

In Woolam v. Hearn (1802) 7 Ves. Jr. 211, 32 Eng. Reprint, 86, where the holder of a lease subleased the premises by a written memorandum specifying a certain rent, and the sublessee, in a suit by him for specific performance of the contract, contended that the agreement between the parties was intended to be for the same rent which the defendant was to pay to his lessor, and sought to show by parol evidence that the specified rent was inserted by fraud or mistake, the court held that the evidence was inadmissible, although it would have been otherwise had the evidence been offered merely by way of defense. It was said: "By the rule of law, independent of the statute, parol evidence cannot be received to contradict a written agreement. To admit it for the purpose of proving that the written instrument does not contain the real agreement would be the same as receiving it for every purpose. It was for the purpose of shutting out that inquiry that the rule of law was adopted. Though the written instrument does not contain the terms, it must in contemplation of law be taken to contain the agree

is admissible to show fraud and so enable a party to enforce the contract established by parol.164

ment, as furnishing better evidence than any parol can supply. Thus stands the rule of law. But when equity is called upon to exercise its peculiar jurisdiction by decreeing a specific performance, the party to be charged is let in to show that under the circumstances the plaintiff is not entitled to have the agreement specifically performed; and there are many cases in which parol evidence of such circumstances has been admitted. . . If this had been a bill brought by this defendant for a specific performance, I should have been bound by the decisions to admit the parol evidence, and to refuse a specific performance. But this evidence is offered not for the purpose of resisting, but of obtaining, a decree, first, to falsify the written agreement, and then to substitute in its place a parol agreement, to be executed by the court. Thinking, as I do, that the statute has been already too much broken in upon by supposed equitable exceptions, I shall not go farther in receiving and giving effect. to parol evidence, than I am forced by precedent. There is no case in which the court has gone the length now desired."

164 See, for example, Davis v. Ely (1889) 104 N. C. 16, 5 L.R.A. 810, 17 Am. St. Rep. 667, 10 S. E. 138, holding that parol evidence that a part of the land which it was agreed to include in a written contract was omitted therefrom fraudulently was inadmissible when offered solely for the purpose of reforming the contract.

R. E. H.

Schools, §§ 23, 24

Headnote by BENNETT, P. C.

The facts are stated in the opinion Messrs. Randolph, Haver, Shirk, & Bridges, for appellants:

In the absence of statute imposing such liability, school districts are not liable in tort.

School Dist. v. Zediker, 4 Okla. 599, 47 Pac. 482; James v. Wellston Twp. 18 Okla. 56, 13 L.R.A. (N.S.) 1219, 90 Pac. 100, 11 Ann. Cas. 938; Whiteneck v. Woods County, 89 Okla. 52, 213 Pac. 865; Board of Education v. State, 26 Okla. 366, 109 Pac. 563; Lawton v. Harkins, 34 Okla. 545, 42 L.R.A. (N.S.) 69, 126 Pac. 727; Cummings v. Lobsitz, 42 Okla. 704, L.R.A.1915B, 415, 142 Pac. 993; 24 R. C. L. § 60, p. 604; 35 Cyc. p. 971; Krueger v. Board of Education, 40 A.L.R. 1091, note; Howard v. Tacoma School Dist. 88 Wash. 167, 152 Pac. 1004, Ann. Cas. 1917D, 792; Columbia Finance & T. Co. v. Louisville, 25 L.R.A. (N.S.) 88, note; Freel v. Crawfordsville, 37 L.R.A. 301 and note, 142 Ind. 27, 41 N. E. 312; Stovall v. Toppenish School Dist. 9 A.L.R. 911, note; Gold v. Baltimore, 14 A.L.R. 1392 and note, 137 Md. 335, 112 Atl. 588; Dick v. Board of Education, 21 A.L.R. 1328 and note, Mo. 238 S. W. 1073; Herman v. Board of Education, 24 A.L.R. 1070, note; Krutili v. Board of Education, 99 W. Va. 466, 129 S. E. 486, 24 N. C. C. A. 896; McGraw v. Rural High School Dist. 120 Kan. 413, 243 Pac. 1038; 4 Dill. Mun. Corp. 5th ed. § 1640; School Dist. v. Rivera, Ariz. - 45 A.L.R. 762, 243 Pac. 609; State v. Hill, 54 Ala. 67; Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610; Nabell v. Atlanta, 33 Ga. App. 545, 126 S. E. 905; Kinnare v. Chicago, 171 Ill. 332, 49 N. E. 536; Kincaid v. Hardin County, 53 Iowa, 430, 36 Am. Rep. 236, 5 N. W. 589; Ernst v. West Covington, 116 Ky. 850, 63 L.R.A. 652, 105 Am. St. Rep. 241, 76 S. W. 1089, 3 Ann. Cas. 882; Clark v. Nicholasville, 27 Ky. L. Rep. 974, 87

of the court.

S. W. 300; Wiest v. School Dist. 68 Or. 474, 49 L.R.A. (N.S.) 1027, 137 Pac. 749; State use of Weddle v. County School Comrs. 94 Md. 334, 51 Atl. 289; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Cochran v. Wilson, 287 Mo. 210, 229 S. W. 1050; McClure Bros. v. School Dist. 79 Mo. App. 80; Bank v. Brainerd School Dist. 49 Minn. 106, 51 N. W. 814; Harris v. Salem School Dist. 72 N. H. 424, 57 Atl. 332, 16 Am. Neg. Rep. 119; Anderson v. Board of Education, 49 N. D. 181, 190 N. W. 807; Spencer v. School Dist. 121 Or. 511, 254 Pac. 357; Board of Education v. McHenry, 106 Ohio St. 357, 140 N. E. 169; Finch v. Board of Education, 30 Ohio St. 37, 27 Am. Rep. 414; Ford v. Kendall School Dist. 121 Pa. 543, 1 L.R.A. 607, 15 Atl. 812; Wixon v. Newport, 13 R. I. 454, 43 Am. Rep. 35; McVey v. Houston, Tex. Civ. App. —, 273 S. W. 313; Woodcock v. Board of Education, 55 Utah, 458, 10 A.L.R. 181, 187 Pac. 181; Juul v. School Dist. 168 Wis. 111, 9 A.L.R. 904, 169 N. W. 309.

The members of a board are not liable in tort as individuals, for an act done by them as a board.

McConnell v. Dewey, 5 Neb. 385; McDaniel v. Tebbetts, 60 N. H. 497; Odiorne v. Rand, 59 N. H. 504; 23 Am. & Eng. Enc. Law, p. 377; 1 Dill. Mun. Corp. 5th ed. § 442; Daniels v. Board of Education, 191 Mich. 339, L.R.A. 1916F, 468, 158 N. W. 23; Monnier v. Godbold, 116 La. 165, 5 L.R.A. (N.S.) 468, 40 So. 604, 7 Ann. Cas. 768; Mott v. Hull, 51 Okla. 602, L.R.A.1916B, 1184, 152 Pac. 92; Blanchard v. Burns, 110 Ark. 515, 49 L.R.A. (N.S.) 1201, 162 S. W. 63.

There could be no individual liability, even in New York.

Herman v. Board of Education, 234 N. Y. 196, 24 A.L.R. 1065, 137 N. E. 24; Bassett v. Fish, 75 N. Y. 303.

Messrs. Harry E. Stege and Moss, Searcy, Montgomery, & Young for appellee.

Mr. Edwin Dabney, Attorney General, amicus curiæ.

ants, and later motions to direct verdict, and the same were overruled, with exceptions. There was a verdict of a jury and a judgment thereon for $50,000 against all the de

On November 4, 1925, Rilda Wright, plaintiff, aged fourteen, a resident of and a pupil in consolidated school district No. 1, in Tulsa county, Oklahoma, was permanently and seriously injured in an accident to a school bus. The bus was being driven by one H. L. Mayfield, the regular driver, who was also a teacher in the school. Parties will be referred to as they were designated in the trial court.

The school was in the village of Turley. As the bus, loaded with school children, was being driven about 8 o'clock in the morning toward the village, the two right wheels went off the pavement, which was wet from mist and rain. This was at a point near a culvert, and the road was slightly down grade. The driver succeeded in getting the front wheel back on the pavement, but when the rear wheel came back on the pavement the bus, on account of the heavy load, the grade, and wet pavement, skidded around, and the rear end struck the abutment of the culvert and overturned, and plaintiff was injured.

Brady Taylor, L. J. Garnett, and William Robinson comprised the board of said school district. Mayfield was not made a party. The negligence alleged is that Mayfield was an inexperienced and incompetent driver; that the defendants, the school district and the individual members thereof, were negligent, in that they knew or should have known that the said driver was incompetent and inexperienced, and that he had had a number of accidents, and that he was an unsuitable and improper person to have charge of the transportation of said pupils, by reason whereof the plaintiff was injured.

There was a general demurrer filed by each and all of the defend

this appeal is lodged here. There are 11 assignments of error, but in the argument three questions are presented:

(1) Are school districts in Oklahoma liable in tort?

(2) Are the members of the school board liable in tort as individuals for an act done by them as a board?

(3) Erroneous instructions.

This case has been skillfully tried, and there are exceptional briefs filed on the part of each party. The clear-cut and candid announcement of law applicable to this case in the respective briefs is of the greatest aid to the court in determining the law questions involved. For example, with respect to a proper answer to questions Nos. 1 and 2 (which points we now hold to be finally determinative of this case), the plaintiff, on page 11 of the brief, uses the following language: "In the first place, we believe that the rule is this: If a municipal corporation is in the exercise of a purely governmental function, then neither the corporation nor its governing officers are liable in tort for injury resulting from the exercise of such strict and purely governmental function. On the other hand, it is equally true that, if the tort is committed in the exercise of a corporate or proprietary function, as distinguished from a purely governmental function, then such municipal corporation is liable in tort for such injury."

Further: "Our next proposition is that, where the power exercised is intended for the private advantage and benefit of the corporation or its inhabitants, or for the benefit of a limited number of its inhabitants, then such municipal corporation is subject to the same liability as an individual would be, exercising the same powers for purposes essen