tine v. Atchison, etc., R. Co., 55 Kan. 730, 41, vision and government of one board of educaPac. 946, 30 L. R. A. 255. tion; such districts not being within any exception of section 18. From Circuit Court, Hopkins County. [6] 6. Subsection 16, section 3058, Kentucky Statutes, confers upon the general council of cities of the second class, and hence upon the board of commissioners where the comSuit for injunction by J. S. Shadrack mission form of government has been adopt-against the Board of Trustees of the Madied, the power "to purchase, rent or lease, within the limits of the city or elsewhere, any real or personal property for the use of the city, and to control, manage, improve, sell, lease or otherwise dispose of the same, for such purposes and considerations as they may deem proper for the public welfare." sonville Graded Common School District. Injunction refused, and plaintiff moves in Court of Appeals to grant the injunction. Motion sustained. H. F. S. Bailey, of Madisonville, for plaintiff. Laffoon & Waddill, of Madisonville, for defendants. CARROLL, C. J. Madisonville is a city of the fourth class, and many years ago there was established, under the general law found in sections 4464-4500 of the Kentucky Statutes, a white graded school district, embracing all of the city, as well as some contiguous outlying territory, and from that time until now there has been conducted, under the gen Clearly the power to purchase and improve real estate for such purposes and considerations as the board of commissioners may deem proper for the public welfare is very broad and comprehensive, and carried with it full authority to purchase a site and erect thereon a suitable building to house the municipal offices, and for use as a commodious and convenient auditorium in which the citizens may exercise their right of as-eral law, a white graded common school dissembling and discussing public affairs, and this power carries with it as a necessary incident the further power to incur indebtedness and levy taxes for such purpose. Wheelock v. City of Lowell, 196 Mass. 220, 81 N. E. 977, 124 Am. St. Rep. 543, 12 Ann. Cas. 1109; Bates v. Bassett, 60 Vt. 530, 15 Atl. 200, 1 L. R. A. 166; Greeley v. People, 60 Ill. 19; Bell v. Platteville, 71 Wis. 139, 36 N. W. 831; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Jones v. Sanford, 66 Me. 585; Clarke v. Brookfield, 81 Mo. 503, 51 Am. Rep. 243; 1 Dillon on Municipal Corporations, § 30. On the whole, we perceive no reason why the chancellor's ruling in each case should not be sustained. Judgment affirmed in each case. SHADRACK v. BOARD OF TRUSTEES OF (Court of Appeals of Kentucky. June 4, 1920.) Schools and school districts 46-School districts embracing Madisonville subject to act for consolidation of government. The white graded school district embracing Madisonville and some contiguous territory, and the colored common school district, embracing the same, and certain other territory, held subject to act 1920 relative to school districts embracing cities of the fourth class and any contiguous territory, whereby, though the white and colored schools may be separately maintained, they are to be under the super trict under the control of a board of trustees. Many years ago there was also created a colored common school district, embracing the city of Madisonville and contiguous outlying territory, exceeding the limits of the white graded school district. This colored common school district has for some years been under the control of the board of edu cation of Hopkins county, conducted under the general laws of the state in the same manner as other common school districts. It will thus be seen that these two districts, all embracing the same territory, except to the extent that the colored district outside of the city takes in more territory than the white district, have been and are being conducted under the general laws of the state by separate boards; the white school being supported by a tax on the property of the white people within the graded school district, supplemented by state aid, and the colored school being supported by a tax on the property of the colored people within the colored district, supplemented by state aid, as well as funds appropriated for the use of the school by the county board of education. In 1920 the Legislature passed an act (Acts 1920, c. 14), the title of which reads: "An act defining boundaries for school districts embracing cities of the fourth class, and providing systems of schools in such districts, and creating boards of education for such districts, providing for election thereof, defining their powers and duties, and repealing all laws in conflict therewith." The first section of this act provides that: "Each city of the fourth class in this state, together with the territory now within its (222 S.W.) class, and managed and controlled by the board of education, and has, by ordinance, passed by its general council, separated said systems of graded free schools into graded, free, white common school for the white people of said district and into a graded, free, colored common school for the colored people of said district; or where such separate schools have existed under the general laws of the state of Kentucky or special acts under separate boards, or where the board of council of any district embracing a fourth class city shall, by ordi limits, including any territory which has here, and colored children of said cities under and tofore been added for school purposes outside by virtue of the charter of cities of the fourth the limits of said city and any territory which may be in the future included by any change in the limits of such cities, or such territory as may be added in the manner as hereinafter set out in section 31, shall be and constitute a single school district, and the supervision and government of common schools and common school property therein shall be vested in a board of six trustees to be called and known as the board of education of —, Kentucky. Such board of education shall be a body corporate and shall have power, by and in said name, to sue and be sued, contract and benance, provide for a separate system of schools contracted with, purchase, receive, hold and sell property, issue its bonds, and do all things necessary to accomplish the purpose for the attainment of which said school district is organized, and succeed to all the property, property rights and privileges of whatever kind or nature granted and belonging to any previous corporation, board of education, or school district in said city or in which said city was embraced, or officers thereof authorized or empowered by any enactment of the General Assembly of the state to do anything in reference to the public education provided that all pending suits to which any such previous corporation, board of education, or school district or officers thereof, as a party may be prosecuted to an end in the name of such party. The titles to property previously granted to such city by the United States or this state for common school purposes and the title to all school lands and other property of every kind shall be vested in the board of education created by this act." Section 2 provides in part that: "Every such board of education shall have general and supervising control, government and management of the public schools, including kindergartens, night and normal schools, vocational and high schools as hereinafter provided, and public school property in such city, with the right to use said property to promote public education in such ways as it may deem necessary and proper; shall exercise generally all powers in the administration of the public school system therein, appoint such officers, agents and employés as it may deem necessary and proper and fix their compensation and term of office." Sections 3 to 17, inclusive, and sections 19 to 31, inclusive, relate to matters not pertinent in the consideration of the questions raised in this case. Section 18 reads: "The board of education shall provide, maintain and support separate schools and provide for the education of all colored children who are bona fide residents of said district and entitled to free tuition in the common schools. Said colored schools or children shall be entitled to the same benefits, be governed and controlled by the same rules and regulations and be subject to the same restrictions as the school herein provided for white children: Provided, however, that where any city of the fourth class has heretofore organized a system of free graded schools for the education of both white under this law under different boards said schools shall be governed and controlled-the white schools by a white board of education, and the colored school by a colored board of education, to be elected on separate ballots as provided under section seven of this act. But where such provision is not made by ordinance of the board of council, or where such separate boards have not heretofore existed, both of said systems of schools shall be under one board of education. In cities or districts coming under the provisions of this act, where two boards of education, white and colored, have been maintained, the board of council of the city embraced in such districts may by ordinance abolish one of said boards and by its ordinance provide for one board of education, to be elected and qualified as is herein provided, and in that event there shall be but one board of education in such district." Section 32 reads: "The general school laws of this state and all laws and parts of laws applicable to the general system of public schools in cities of the fourth class not inconsistent herewith shall be and remain in full force and effect in such city or district, and all laws in conflict with the provisions of this act are hereby repealed." This act of 1920, by virtue of an emergency clause, went into effect on March 13, 1920, and on May 12, 1920, the plaintiff, Shadrack, brought this suit in the Hopkins circuit court against the defendants, the board of trustees of the Madisonville graded common school district, alleging in his petition that he was a citizen and taxpayer in the city of Madisonville; that the Madisonville graded common school district was established by a vote of the white voters of the city, and thereafter enlarged so as to take in contiguous outlying territory; that the city did not establish or maintain a graded school or any school under the provisions of its charter, either for white or colored people; that the colored school is in a colored district embracing the city and contiguous territory larger than the white district, and is a common school district under the control of the county board of education; that there are in the white district 865 children within school years and in the colored district 412 colored children within school years; that the value of the taxable property of the colored people | that, as the lines of the districts outside of in the colored district is $71,693, and the value the city do not coincide, it would create much of the taxable property of the white people confusion if the two districts were combined in the white district is $2,434,867; that the into one and put in charge of one board; but white school district has erected, by means we do not regard as serious the circumstance of a bonded indebtedness, a school building, that the lines of the colored district outside which bonded indebtedness is yet unpaid. He of the city take in more territory than is further averred that the trustees of the embraced in the white school district, bewhite school are refusing to recognize or act cause the lines of the colored district outside under the act of 1920, and are ignoring the of the city can be reduced to correspond with provisions of this act by levying and col- the lines of the white district, or the lines lecting taxes and conducting the white school of the white district can be extended to coinin the same manner that it was conducted be- cide with the lines of the colored district, and fore the act of 1920 went into effect. He either one of these plans may be under the prayed that they be compelled, by injunction, act and should be adopted. to recognize the validity of the act of 1920, and proceed thereunder. The lower court refused to grant the injunction prayed for, upon the ground that the act of 1920 was not applicable to either of these districts, and the case comes before me on a motion to grant the injunction refused by the judge of the lower court. It was the manifest purpose of the act of 1920 to place the school system, both white and colored in cities of the fourth class, under the control of the board of education provided for in section 1 of the act. The result of this change would be to put the white graded school, now under the control of the board of trustees, under the control of the new board of education, and to put the colored common school now under the control of the county board of education under the control of the new board of education. If these two school districts were made into one, as provided in the act of 1920, the further result would be that all the taxes collected in the district would be appropriated to the maintenance of both the white and colored schools in proportion to the number of white and colored school children, except that the tax levy for the purpose of paying the bonded indebtedness of the white graded school district would be appropriated to that purpose. In the cities of the first, second, and third class, the scheme set forth in the act of 1920 has been in operation for some years, and it was the purpose of the Legislature in this new act to place the school systems in cities of the fourth class on the same general basis as the school system in the cities of first, second, and third class. This brings me to a consideration of the question whether the act of 1920 is applicable to the conditions existing in the city of Madisonville. The act, with the exception of section 18, which is somewhat obscure, seems to afford a practicable and workable scheme under which colored and white schools may be separately maintained, yet be under the control and management of one board, al- ́ though it is likely that when certain sections or provisions of the act are attempted to be applied to states of fact that may come upon, difference of opinion as to their meaning may arise. But this is a conditon that comes up frequently and must be dealt with as it appears. It seems to have been the purpose of section 18 to except from the operation of this act certain cities of the fourth class in which the conditions described in the section exist, or rather to leave it optional with certain cities to accept the provisions of the act, or to continue schools under the system in force before this act was adopted. We doubt very much if it would be competent for the Legislature, in an act dealing with any class of cities, or the conditions existing in any class, to arbitrarily except from the operation of the act some cities in the class dealt with, although it has been held that it may be left to the people in the cities of a class to put in effect or not, as they think proper, the legislation applicable to all the cities of the class. An example of this kind of legislation is found in the act providing for a commission form of government. This act was upheld in Bryan v. Voss, 143 Ky. 422, 136 S. W. 884, the court saying in effect that it was permissible for the Legislature to enact a law applicable to a class of cities, but leave to each city in the class the option of determining for itself whether it would adopt the act or continue to manage its affairs under the laws in force previous to the adoption of the act. With the wisdom of this legislation we have nothing to do, although we might say in passing that the plan proposed to be applied to cities of the fourth class has worked well in cities of the first, second, and third class, in which the number of colored school children as compared to the number of white school children, and the value of the property Under the authority of this case, it seems owned by the colored people in proportion to that it would be competent for the Legisthe value of that owned by the white people, lature to enact a law applicable to all the is about the same as it is in the city of cities in a named class, giving to each city, Madisonville. however, the right to elect for itself whether (222 S.W.) the act, and this apparently is what was attempted to be done in section 18. It is provided in this section: "That where any city of the fourth class has heretofore organized a system of free graded schools for the education of both white and colored children of said cities under and by virtue of the charter of cities of the fourth class, and managed and controlled by the board of education, and has, by ordinance, passed by its general council, separated said system of graded free schools into graded, free, white common school for the white people of said district and into a graded, free, colored common school for the colored people of said dis* said schools shall be governed triet; and controlled-the white schools by a white board of education, and the colored school by a colored board of education, to be elected on separate ballots as provided under section 7 of this act." It is manifest that this exception does not apply to Madisonville, because neither the white nor colored schools in that city were organized under or have operated under the charter of the city or ordinances adopted by the board of council. The third exception mentioned in the section exists: "Where the board of council of any district embracing a fourth class city shall, by ordinance, provide for a separate system of schools under this law under different boards." But this exception is plainly not applicable, because the board of council of the city of Madisonville has never undertaken by ordinance or otherwise to organize, regulate, or control either the white or colored schools. The third exception in this section relates to "such separate schools [as] have existed under the general laws of the state of Kentucky or special acts under separate boards." But this exception is not applicable because, as shown in other parts of section 18, it contemplates the existence of separate schools under separate boards, either of which boards the council might abolish and make provision for one board to have charge of was absent, considered this matter with me, and concur in what has been written and the conclusion reached. WHITE SEWING MACH. Co. v. SMITH et al. (Court of Appeals of Kentucky. June 4, 1920.) 1. Contracts 94(5)-Persons signing contract cannot rely blindly upon the statements of the other party. Persons signing contract cannot rely upon the statements of the other party as to its contents and, failing to read the papers, void the contract, unless representations of the other party were not only untrue, but made under such circumstances as would be reason ably calculated to deceive one while exercising ordinary care for his own protection. 2. Evidence 442(1)-Parol evidence admissible when written contract is incomplete. Where agreement is one and entire, and a part only is reduced to writing, resort to parol evidence may be had to prove the residue, providing the writing only purports to express part of the contract, or is expressed in such incomplete terms as renders parol evidence necessary to explain what is per se unintelligible, and such evidence is not inconsistent with the terms of the writing. both schools. We think this exception must QUIN, J. By its petition in this action appellant sought judgment in the sum of $190.50, as the balance due on 10 sewing machines sold to the appellee Smith. The other appellees were made parties by reason of the execution by them of a bond to appellant, to the effect that Smith would perform the obligations of his contract incident to the purchase of these machines. I am therefore of the opinion that the act of 1920 is applicable to these districts, and that the board of trustees of the white graded school must operate under it. There- After denying the allegations of the petifore the motion to grant the injunction re- tion, it was alleged in the answer as amendfused by Judge Henderson is sustained. The ed: (a) That the machines were purchased whole court, except Judge CLARKE, who on the representation they were superior in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes workmanship, material, and quality to another make of machine; (b) the writing sued on was intended as an order merely, and not as a contract, and he did not know the contents thereof at the time he signed the paper; he was almost blind, could not read, and relied on the statement of the agent as to its contents, which were misrepresented to him; (c) the machines were purchased under a verbal agreement subsequently entered into, by the terms of which he was given the privilege of returning the machines if they failed to give satisfaction. Under this agreement the shipment was billed to Kermit, W. Va. There was a verdict for $9.50 by a jury in favor of appellee, being the full amount of his counterclaim, less the amount sued for. By the counterclaim Smith asked judgment in the sum of $200, which he says he would have made had the machines been as represented. The proof as to the alleged verbal contract is not convincing, nor is the fact that the consignment was delivered at Kermit instead of Peach Orchard, as provided in the contract, satisfactorily explained by appellant. The allegation as to the condition of appellee's eyes is not borne out by the testimony. Smith admits he can read. He says the agent misread what he calls the "fine print" in the contract. Just what this consists of is not made clear by the record; the contract is not filed; a typewritten copy only appears; and the so-called fine print is not indicated. The contract is very simple, with no warranties or representations and contains the following clause: "This order is given subject to approval of White Sewing Machine Co., and if accepted or filled in full or in part, to be settled for at the prices and terms above set forth. There is no understanding or agreement of any nature whatsoever between your company and the undersigned as to these machines except such as is embraced in this order which contains all the terms and conditions upon which the same is given." The alleged misrepresentation is not made clear in Smith's testimony. If misleading, it must have been in its exclusions rather than its contents. Smith says the contract under which the machines were shipped was made at a subsequent date. [1] As said by the Supreme Court in Upton v. Tribilcock, 91 U. S. 45, 23 L. E. 203: "It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is re The court, however, recognizes that a different rule prevails when the party was misled as to the nature of the paper, and signed it under circumstances amounting to fraud and deceit. The same rule has been affirmed in many decisions of this court. For example in United Talking Machine Co. v. Metcalfe, 174 Ky. 132, 191 S. W. 883, we said: "One sui juris and in possession of his faculties, contracting at arm's length, and who is able to read and write, is not permitted by the law to rely exclusively upon the statements of the other contracting party as to the contents of a writing which the former signs. There must be something said or done by the party charged with the fraud which would be reasonably calculated to disarm or deceive one of ordinary prudence and to prevent him from using such diligence as an ordinarily prudent man would use in the execution of a contract under the same or similar circumstances. When, therefore, the law speaks of misrepresentations by the party charged with the fraud, it means that the representations must have been, not only untrue, but also made under such circumstances as would be reasonably calculated to deceive one while exercising ordinary care for his own protection." To same effect, see Western Mfg. Co. v. Cotton & Long, 126 Ky. 749, 104 S. W. 758, 31 Ky. Law Rep. 1130, 12 L. R. A. (N. S.) 427; Rice v. Pulliam, 141 Ky. 10, 131 S. W. 1053; J. I. Case Threshing Mach. Co. v. Mattingly, 142 Ky. 581, 134 S. W. 1131; Crawford & Gatlin v. M. Livingston & Co., 153 Ky. 58, 154 S. W. 407, 44 L. R. A. (N. S.) 640; CastlemanBlakemore Co. v. Pickrell & Craig Co., 163 Ky. 750, 174 S. W. 749; Fairbanks-Morse Co. v. Manning & Combs, 164 Ky. 478, 175 S. W. 1000; United Talking Machine Co. v. Metcalf, 164 Ky. 258, 175 S. W. 357. [2] Where the agreement is one and entire and a part only is reduced to writing, resort to parol evidence may be had to prove the residue. This rule, however, is restricted in its application to cases where the writing only purports to express part of the contract, or is expressed in such incomplete terms as renders parol evidence necessary to explain what is per se unintelligible, and said evidence is not inconsistent with the terms of the writing. Parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. Greenleaf on Evidence, § 275. [3] Smith asks that, in the event the writing referred to is held to be the contract, it be reformed so as to express the agreement according to his version. To entitle one to this relief the evidence by which the alleged mistake is sought to be established must be clear and convincing. There is no such evidence here. Appellees failed by their testimony to manifest such fraud or misrepresentation on the part of appellant's agents as to relieve them |