Where the single question is whether the property delivered is or is not that or of the value of that contracted for, the good faith of the purchaser cannot be sustained by proof of conversations, which upon any other theory would be inadmissible as mere hearsay. Good faith is presumed, and need not be proved. Only bad faith requires evidence.47

In an action to recover purchase money paid, evidence of a conversation between defendant and his alleged agent, in the absence of plaintiff, is not inadmissible as hearsay, where it showed a purchase from such agent, and payment.48

§ 1066. Statements of others than parties or witnesses

The statements of third persons, which are not made in the party's presence, are hearsay and inadmissible.1o

the goods levied on, was not objectionable as hearsay. Beckman v. Ash, 103 Kan. 437, 173 P. 920.

47 Weybrich & Co. v. Harris, 1 P. 271, 31 Kan. 92.

48 Teague v. Adams, 52 Okl. 107, 152 P. 826.

49 Holman v. Raynesford, 44 P. 910, 3 Kan. App. 676.

Statements which are hearsay.-In a joint action against an electric light company and a city for wrongful death caused by coming in contact with a live guy wire, it was error to admit in evidence as against the light company a resolution of the city council reciting that the electric company was negligently permitting its wires to be in a dangerous condition. Shawnee Gas & Electric Co. v. Motesenbocker, 138 P. 790, 41 Okl. 454.

In an action by a depositor to charge defendant as a partner in an insolvent banking firm, a newspaper article relating to the consolidation of a bank of which defendant had previously been president with another, and stating that defendant was one of the directors of the new bank, was improperly admitted in evidence to show that defendant held himself out as such director; it appearing that the article was written and published without his knowledge, and that the statement was incorrect. Richardson v. Evans, 50 P. 85, 5 Okl. 803.

In an action against the obligor and sureties on an attachment bond, evidence of a conversation between plaintiff and a deputy sheriff when the goods were removed by the sheriff, in the absence of the obligor and the sureties, was inadmissible as hearsay. Bash v. Howald, 112 P. 1125, 27 Okl. 462. Where the issue was whether defendant had either expressly or impliedly agreed to the appointment of a certain committee to represent all the lot occupants, he being one whose duties were to appraise such lots, determine who the occupants were, and make certificates thereof, upon which the trustee, holding the legal title to such lots should convey such title to the occupants presenting the certificates and the amounts assessed to their lots, statements made by persons at a mass meeting of the lot occupants where it did not appear that defendant was present or had knowledge of the calling of the meet

Where the testimony of a witness as to a conversation with a party is otherwise competent, it is not made incompetent by the fact

ing and the purpose thereof, with an express or implied assent thereto, were inadmissible as hearsay. Moore v. O'Dell, 111 P. 308, 27 Okl. 194.

In action for burning meadow, it is error to permit section foreman to testify that parties had told him that defendant's engine set out the fire. St. Louis & S. F. R. Co. v. Murray, 50 Okl. 64, 150 P. 884.

A witness' testimony as to a statement made by one of defendant's employés four or five hours after the accident held hearsay and inadmissible. Chicago, R. I. & P. Ry. Co. v. Foltz, 54 Okl. 556, 154 P. 519.

A conversation had in the absence of the defendant tending to show that he was endeavoring to influence improperly the witness should be excluded. McGuirk v. Johnson, 65 P. 654, 63 Kan. 884.

Declarations of a physician, who was not a party to the action, as to an injury or ailment of a patient are not admissible to show the patient's physical condition. Sly v. Powell, 87 Kan. 142, 123 P. 881.

In an action by a widow for the death of her husband, caused by the alleged negligent sale by a druggist to him of wood alcohol in place of grain alcohol, which he drank, causing his death, the testimony of witnesses, to whom the stomach of deceased and a sample of the liquid were sent for examination and analysis, as to statements by the person delivering them as to whence they came was hearsay and incompetent. Campbell v. Brown, 117 P. 1010, 85 Kan. 527.

A father gave each of two sons a tract of land, on one of which tracts was a mortgage, and to equalize the gifts it was claimed it was agreed each son should pay one-half the mortgage. Before the debt was paid the son whose land was free from the mortgage died, and the other son sued the decedent's administrator to recover half the mortgage debt. Held, that a statement of plaintiff's father, not made in connection with the conveyance of the land, or with any agreement with reference to the mortgage debt, and repeated by a witness, being hearsay evidence, was not admissible. Miller v. McDowell, 64 P. 980, 63 Kan. 75.

In a contest of a will directing that stated amounts be deducted from bequests to testatrix's sons on account of debts due her from the sons, held that declarations of a stranger to the will, and to the action, made after death of testatrix, tending to show that he had procured insertion of the claim of indebtedness in the will, were inadmissible as hearsay. Hopper v. Sellers, 139 P. 365, 91 Kan. 876.

In an action against a telegraph company for delay in delivering a message, resulting in plaintiff's failure to secure his debt by attachment, the fact of the indebtedness, or of the time it became due, or that the debtor had attachable property, could not be proved by declarations of the debtor made to plaintiff. Western Union Tel. Co. v. Getto-McClung Boot & Shoe Co., 43 P. 849, 3 Kan. App. 561.

Statements which are not hearsay.-Where one defense was that the property was conveyed to plaintiff by her husband in fraud of creditors, it was error to admit evidence of statements by plaintiff's minor son, in her absence, that his father owned the property. Rauh v. Morris, 137 P. 1174, 40 Okl. 288. Testimony as to conversation between deceased servant and master's fore

that in repeating his own language he is incidentally required to repeat statements which he then made as to what other persons had told him, 30

An affidavit, the larger part of which is hearsay, is not admissible, where there is no offer to omit the objectionable part.51

A witness may not testify from hearsay as to the age of another.52

In an action to set aside a compromise of disputed claim as fraudulent the defendant may show statements to him by other persons which tend to show his own good faith.53

On the trial of a contested election, evidence of what others said. to the witnesses after election, of what they did at and before the election, is hearsay, and incompetent.54

man to effect that servant and his fellow servants were inexperienced in handling dynamite, and that foreman promised to furnish competent man as soon as possible, was admissible. Lusk v. Phelps (Okl.) 175 P. 756.

Evidence that one who has loaned money to a firm had heard that one partner was financially responsible is not hearsay, when offered to establish the fact that he relied on what he heard. Mills v. Riggle, 112 P. 617, 83 Kan. 703, Ann. Cas. 1912A, 616.

The admission of the statements of strangers to the action, not made in the presence of the party against whom they were offered, in respect to attempts made to prevent adverse witnesses from testifying in the action against such party, and to improperly influence other witnesses to testify in his favor, is prejudicial error. Ehrhard v. McKee, 25 P. 193, 44 Kan. 715.

Where defendant gave plaintiff a verbal order on H., stating that H. was indebted to him, evidence that, on demand of the amount of the order, H. told plaintiff he did not owe defendant anything, is not hearsay. Kaufman v. Springer, 17 P. 475, 38 Kan. 730.

Where witnesses testify as to the value of ear corn for seed purposes, it is not error to permit them to testify why shelled corn is of less value, even if in so testifying they state the reasons farmers give for refusing to purchase shelled corn for such purposes. Missouri Pac. Ry. Co. v. Nevin, 2 P. 795, 31 Kan. 385.

Refusal to permit defendant purchaser to testify to the destination weights of car loads of coal bought held not error, where his information was secured from his consignee. Wilkes v. S. V. Clark Coal & Grain Co., 148 P. 768, 95 Kan. 493.

50 Fitzpatrick v. Tucker, 78 P. 828, 70 Kan. 338.

51 City of Ft. Scott v. Elliott, 74 P. 609, 68 Kan. 805.

52 Freeman v. First Nat. Bank of Boynton, 44 Okl. 146, 143 P. 1165, Ann. Cas. 1918A, 259.

53 Matthews v. McNeill, 157 P. 387, 98 Kan. 5.

54 Blue v. Peter, 20 P. 442, 40 Kan. 701.

The statements of witnesses of what others, not parties to the record, told them subsequent to an election, in regard to voting without right, is incompe

A certified copy of the enrollment records, offered to prove the age of an Indian allottee at the time he executed a deed, are incompetent as hearsay where living witnesses testify to the allottee's age.

53

A report on the action of officers of a corporation as to its management and financial condition and expressing opinions as to its future management, by attorneys who are not examined as witnesses, is not admissible.50

The value of an animal cannot be enhanced by evidence from a merely private book, issued by persons having animals for sale, purporting to contain his pedigree; such evidence, at best, being mere hearsay.57

§ 1067. Evidence based on hearsay

58

59

A witness may testify from hearsay as to his own age." A declaration of intention of testator made subsequent to the execution of his will is inadmissible as hearsay for any purpose.5 While title to land cannot be established by reputation, such evidence is admissible to show notoriety of claim of title.60

Proof of rumors that certain persons who have been resident electors of a precinct had moved away is hearsay and inadmissible.61

In state's action to abate a nuisance, evidence as to general reputation for lewdness of persons frequenting place charged to be a house of prostitution, and also evidence of the general reputation of such house as a place of prostitution was admissible.62

In a personal injury suit, evidence that plaintiff's hearing was

tent to establish the charge of illegal voting. Tarbox v. Sughrue, 12 P. 935, 36 Kan. 225.

55 Perkins v. Baker, 137 P. 661, 41 Okl. 288.

In cases involving validity of conveyance of lands allotted to Creek freedman made before Act Cong. May 27, 1908, where living witnesses testify to allottee's age, enrollment records of Commission to Five Civilized Tribes as to his age are hearsay. Marks v. Foreman (Okl.) 168 P. 237.

56 Lash v. Ten Eyck, 59 Okl. 82, 157 P. 924.

57 Maier v. Randolph, 6 P. 625, 33 Kan. 340.

58 Freeman v. First Nat. Bank of Boynton, 44 Okl. 146, 143 P. 1165, Ann. Cas. 1918A, 259.

59 O'Donnell v. Murphy, 120 P. 1076, 17 Cal. App. 625.

60 Kruse v. Fredlum, 152 P. 617, 96 Kan. 456.

61 Blue v. Peter, 20 P. 442, 40 Kan. 701.

62 Balch v. State (Okl.) 164 P. 776.

not a subject of general discussion in the neighborhood where plaintiff resided is inadmissible.63

A person who accompanied cattle to market may testify, from information received that day from commission men and from reading the market reports, as to the state of the market on the previous day, where he has had experience in shipping and selling cattle.64 It is permissible where a question of damage in condemnation proceedings is being tried, to reject evidence of offers to purchase other property in the neighborhood about the time condemnation proceedings were instituted.65

The insolvency of a bank issuing worthless paper is provable by hearsay,66

§ 1068. Intent

DIVISION VIII.-DECLARATIONS

Declarations are admissible in some cases to show the state of mind of the person making them. Thus, in an action by a wife against her father-in-law for alienation of her husband's affections, declarations of the husband, though not a party, as to his estrangement, are competent to show the effect of the wrongful interference of the defendant and the attempt to induce a separation; and in an action to set aside instruments, evidence of declarations of the maker bearing on the question of undue influence, is admissible to show her state of mind.68

67

The admission of such evidence constitutes an exception to the hearsay rule. Further illustrating this exception, testimony as to statements made by a deceased servant of his intention to contribute to the support of his parents in future is admissible, and declarations of either the grantor or grantee as to matters within the

63 Union Pac. Ry. Co. v. Hammerlund, 79 P. 152, 70 Kan. 888. 64 Midland Valley R. Co. v. Adkins, 127 P. 867, 36 Okl. 15.

69

In a shipper's action for damages, a market report was properly admitted in evidence to show loss in price from the delay in transportation. Ray v. Missouri, K. & T. Ry. Co., 133 P. 847, 90 Kan. 244.

Blincoe v. Choctaw, O. & W. R. Co., 83 P. 903, 16 Okl. 286, 4 L. R. A. (N. S.) 890, 8 Ann. Cas. 689.

ee Mathews v. State (Okl. Cr. App.) 198 P. 112.

67 Nevins v. Nevins, 75 P. 492, 68 Kan. 410.

68 Fairbank v. Fairbank, 139 P. 1011, 92 Kan. 45, rehearing denied 141 P 297, 92 Kan. 492.

** Lusk v. Phelps (Okl.) 175 P. 756.