The question of the introduction of models, casts, etc., rests largely in the discretion of the court. 48 §1085. Experiments and tests Evidence of experiments, offered as an illustration of a fact in issue, made under the same conditions as the facts sought to be illustrated, is admissible. They may be admissible, though made out of court.50 § 1086. Handwriting The genuineness of a writing or signature, which is made the basis of comparison with one in controversy, must be proved by direct or positive evidence and cannot be established by comparison.51 after placed in a building, and there was evidence that the top portion of the pole at the time of trial appeared to be in practically the same condition as at the accident, except that it was some drier, and there was no controversy as to the condition of the remaining portion of the pole, the upper portion including the part from which plaintiff fell, was admissible in evidence after it had been identified. Choctaw Electric Co. v. Clark, 114 P. 730, 28 Okl. 399. 48 In action for injuries received by plaintiff coming in contact with defendant's high-tension wires, held that it was not an abuse of discretion for court to refuse to admit a model of defendant's system of wires and poles. Logan v. Empire District Electric Co., 161 P. 659, 99 Kan. 381, L. R. A. 1917E, 258. 49 Wingfield v. McClintock, 113 P. 394, 85 Kan, 207, judgment affirmed on rehearing 116 P. 488, 85 Kan. 452. Where it is claimed that an intervening bluff along which a railway was built prevented a traveler approaching the crossing from hearing the ordinary signals, it is competent to show, by a witness who has made a test at the place of the injury, and under substantially similar circumstances, how far the signals can be heard. and the effect of the intervening bluff in obscuring the vision, and deadening the sounds made by a passing train. Ry. Co. v. Moffatt, 44 P. 607, 56 Kan. 667. Missouri Pac. In an action for the death of a person at a railroad crossing, it is competent to show by a witness, who has made a test at the same place and under substantially similar circumstances, that the noise of trains is deadened by a cut through which the track passes and by the surroundings to a person on the highway. Johnson v. Chicago, R. I. & P. R. Co., 103 P. 90, 80 Kan. 456. In an action for death at a crossing, it is competent to show by a witness, who has made a test at the same place and under substantially similar circumstances, that the smoke and steam from engines in a cut could not be seen at the crossing. Id. 50 Irby v. State (Okl. Cr. App.) 197 P. 526. 51 Miller v. Thompson, 50 Okl. 643, 151 P. 192. In an action involving the genuineness of a chattel mortgage, an error in DIVISION XI.-ADMISSIONS. § 1087. Judicial admissions An attorney's oral admission of a fact during trial binds his client,52 and may be proved on a subsequent trial. 53 In a civil action for assault, record of a plea of guilty by defendant to a criminal charge for the same assault is admissible as an admission.54 A pleading filed in one case by a party is competent evidence against such party on the trial of another case as a statement or admission.55 Pleadings may be admissible in a subsequent action between the permitting the alleged mortgagor, over defendant's objection, to write his name in the presence of the jury for their inspection and comparison with the signature to the mortgage, becomes harmless where defendant, on crossexamination, adopts the same method of proof by asking the witness to write his name while standing, and introduces such signature in evidence. Allen v. Gardner, 27 P. 982, 47 Kan. 337. 52 A statement of counsel for plaintiff before the jury and in the presence of the court as to the authority of the local agent of the plaintiff is binding upon the plaintiff. Etna Building & Loan Ass'n v. McCarty, 78 Okl. 187, 189 P. 357. An admission by an attorney in opening statement to the jury is binding, but equivocal admission is not binding. Grimmett v. Grimmett, 80 Okl. 176, 195 P. 133. 53 In re Hoover's Estate, 104 Kan. 635, 180 P. 275. 54 Musick v. Enos, 148 P. 624, 95 Kan. 397. 55 Solomon R. Co. v. Jones, 2 P. 657, 30 Kan. 601. Where plaintiff sues on a contract, and defendant admits its execution, and the cause is dismissed without prejudice, in the second action plaintiff may introduce in evidence the admissions in defendant's former pleading, which defendant will not be permitted to contradict. Myers v. First Presbyterian Church of Perry, 69 P. 874, 11 Okl. 544. Where plaintiff filed a petition in an action, to which defendant files an answer and cross-petition, but is afterwards dismissed, the pleading may be used by plaintiff as evidence, if it contains admissions material to plaintiff. Arkansas City v. Payne, 102 P. 781, 80 Kan. 353, 18 Ann. Cas. 82. A petition filed in a previous action by defendant is admissible in evidence in a later action against defendant if it contains statements material to the issue in the nature of admissions or allegations tending to contradict his testimony. Every v. Rains, 115 P. 114, 84 Kan. 560. In the trial of a case for work and labor, it appeared that plaintiff had brought a prior action charging another person for the same services. No judgment was rendered. Held, that the bill of particulars in the former suit, being a quasi admission, was competent as evidence. Chicago, R. I. & P. Ry. Co. v. Mashore, 96 P. 630, 21 Okl. 275, 17 Ann. Cas. 277. pleader and one not a party to the former action as admissions against interest of pleader.56 Allegations in petition, which have been superseded by amended petition complete within itself and not referring to original petition, may be introduced in evidence as admissions against interest subject to plaintiff's denial or explanation.57 It is not necessary to prove facts admitted in a pleading of the opposite party.58 Stipulations by counsel bind the party as a judicial admission, though made before issue joined, and are competent evidence against him even on a second trial,59 56 Kington v. Ewart, 164 P. 141, 100 Kan. 49. A lien statement under oath and a cross-petition filed in one case by a party is competent evidence against him at the trial of another case as admissions. Limerick v. Lee, 87 P. 859, 17 Okl. 165. 57 Letcher v. Maloney (Okl.) 172 P. 972. Where a complete amended petition is filed, the allegations of the original pleading, though no longer absolutely binding on the party pleading, may constitute evidence against him. Reemsnyder v. Reemsnyder, 89 P. 1014, 75 Kan. 565. The exclusion of an original petition offered in evidence by defendant containing statements at variance with an amended petition on which the cause was tried was reversible error. Meek v. Deal, 124 P. 160, 87 Kan. 319. Where an amended petition and exhibits attached thereto materially differ from the allegations contained in the original petition, it is not error to permit defendant to offer the original petition in evidence as the admissions of the plaintiff. Juneau v. Stunkle, 20 P. 473, 40 Kan. 756. While an abandoned pleading does not serve to define the issues, it is in the nature of an admission, and should be received in evidence for what it is worth. Watt v. Missouri, K. & T. Ry. Co., 108 P. 811, 82 Kan. 458. Where plaintiff filed his bill of particulars on April 16th, alleging that defendant was indebted to him in the sum of $75, and on May 19th amended the bill of particulars and asked $200, both pleadings being verified, and at the trial defendant offered the original bill of particulars as evidence, and it was admitted and read to the jury, it was error to instruct that the pleadings in the case form no part of the evidence, as defendant was entitled to have the jury consider the original bill of particulars in connection with the other evidence, as tending to show an admission of plaintiff that on April 16th he claimed only $75 and on May 19th, without having performed any other services, he claimed $200. Leavitt v. Deichmann, 30 Okl. 423, 120 P. 983. 58 Where defendant admits in his pleadings that the lands in controversy were allotted to persons named, and that he claims title through them, it is not necessary for plaintiff to prove such facts. Fish v. Sims, 141 P. 980, 42 Okl. 535. 59 Loman v. Paullin, 51 Okl. 294, 152 P. 73. Solemn or judicial admissions, made for the express purpose of dispens Affidavits, depositions, etc., containing admissions of a party, are admissible in evidence against him.60 § 1088. Offers of compromise Evidence of an unaccepted proposal of a compromise of a claim is inadmissible in evidence in an action on the claim."1 Admissions for the purpose of a compromise, if not accepted, cannot be proved against the party making them, but are admissible when not made in confidence of a compromise.62 ing with the proof of some fact at the trial, in the form of express stipulations, on being filed and becoming part of the record are generally conclusive of all the facts involved, and may be given in evidence on any subsequent trial in the same cause. Consolidated Steel & Wire Co. v. Burnham, 58 P. 654, 8 Okl. 514. 60 The affidavit by plaintiff in replevin is competent evidence against him as to the value of the property, and he will not be heard to object to its competency nor to deny its truthfulness. Stiller v. Atchison, T. & S. F. Ry. Co., 124 P. 595, 34 Okl. 45. It is not error to admit in evidence statements of a witness set out in a motion for continuance, where, to prevent a continuance, the opposite party admits that the witness if present would testify as stated. Grimes v. Wilson, 30 Okl. 322, 120 P. 294. On motion for judgment on stipulation, where defense is that it was not signed by defendants, but by an attorney not authorized, application for continuance of action sworn to by defendants' attorney referring to stipulation as ground for continuance is admissible. Berry v. Dewey, 102 Kan. 392, 170 P. 1000. 61 Chicago, R. I. & P. Ry. Co. v. Forsythe & Templar, 56 Okl. 26, 155 P. 851. 62 City of Anadarko v. Argo, 128 P. 500, 35 Okl. 115. Letters written by the defendant to the plaintiff, asking him to delay suit and proposing to trade him or lease him certain property, and with statements therein tending to show an admission of liability, are not incompetent as being an offer to compromise. Freeman v. Eldridge, 110 P. 1057, 26 Okl. 601. In an action against a carrier for coal delivered to it for shipment, but appropriated by it, evidence was properly admitted, over objection that it merely tended to show an offer to compromise, that, a bill having been presented for the coal, the carrier's fuel agent called and said that he had come to have a talk about the coal bill that the carrier owed, since it tended to show the use of the coal by the carrier and its liability therefor. St. Louis & S. F. R. Co. v. Stone, 97. P. 471, 78 Kan. 505, rehearing denied 104 P. 1067, 78 Kan. 510. HON.PL.& PRAC.-65 (1025) § 1089. Written statements Statements in writing are admissible against the party making them, but written statements of third parties are not admissible.64 § 1090. Conduct 66 A party's conduct indicating a belief in the weakness of his case,65 or a consciousness of liability and a purpose to evade satisfaction thereof, or conduct bearing on some point at issue, may be shown against him as an admission, subject to explanations he may of fer.67 63 It is not error to admit in evidence a statement, signed by the parties, in settlement of the items of their account, where the amount claimed to be due by one of them is subsequently disputed by the other. Miller v. Campbell Commission Co., 74 P. 507, 13 Okl. 75. On cross-examination of plaintiff, in action for injuries sustained in a coal mine, where he identifies written statements showing that he had worked in the mine several weeks after the accident, they were erroneously excluded, though the witness had testified under direct examination that the reports were for work done for him by another person. Home-Riverside Coal Min. Co. v. Fores, 67 P. 445, 64 Kan. 39. 64 The plaintiff, to prove his ownership of a tract of land, introduced in evidence a deed thereto which purported to convey title to himself and another who was not a party in the action. Thereafter the plaintiff offered in evidence a written statement executed by the other grantee by the terms of which such other disclaimed any interest in the land from the date of the deed. Held, that the admission of such disclaimer over the objection of the defendant was material error. Wuester v. Topeka & N. W. R. Co., 118 P. 1054, 85 Kan. 636. Assessor's lists are not admissible as admissions against interest as to value, where the issue as to value is raised in a civil action between the owner and parties other than the state. Bartlesville Interurban Ry. Co. v. Quaid, 51 Okl. 166, 151 P. 891, L. R. A. 1918A, 653. 65 Neece v. Neece, 51 S. E. 739, 104 Va. 343. 66 In action for personal injury from being struck by defendant's automobile, evidence that, shortly after the accident, deeds from defendant to his children were placed on record, was admissible to show consciousness of liability and a purpose to evade satisfaction thereof. Cusick v. Miller, 171 P. 599, 102 Kan. 663, L. R. A. 1918D, 1086. 67 Where a sheriff attaches goods, and appoints appraisers to appraise them, the appraised value of the goods is prima facie evidence of their real value as against the sheriff. Carson v. Golden, 14 P. 166, 36 Kan. 705. Where surety on note made partial payment upon holder's contract that any judgment against maker should be assigned to him to amount of such payment, the holder, by entering satisfaction of judgment against maker, admitted its payment, and in effect admitted his obligation to pay the assignee. Magee v. Snyder, 103 Kan. 558, 175 P. 597. In condemnation proceedings pursuant to Comp. Laws 1909, §§ 948-956, and |