his coconspirator, the party offering same must make out a prima facie case of conspiracy aliunde.*

§ 1101. Mode of proof

Evidence of prior statements of a party in interest can be proven by a witness who heard the statements. Statements made in court may be proven by the court stenographer."

§ 1102. Explanation

Where declarations are offered in evidence as admissions against a party, and are calculated to show a claim inconsistent with the one made at the trial, explanation by such party is competent." § 1103. Construction

An admission by a party must be taken according to its terms. No presumption of fact can be drawn from it, where the fact is expressly denied."

Statement of one to a third person, indicating that he had forfeited a deposit he had made to be delivered as a first payment on the purchase price of land, may be regarded as his opinion of the law, rather than a statement of fact.8

An admission that a tax deed was issued implies, in the absence of showing to the contrary, that it was regularly issued and valid in all respects.9

4 Campbell v. Newton & Driskill, 52 Okl. 518, 152 P. 841.

In action for damages for assault and battery, alleging defendants' conspiracy, admission of declarations by one defendant before proof of conspiracy was not prejudicial to defendants, where it was followed by sufficient evidence to show conspiracy. Drysdale v. Wetz, 171 P. 653, 102 Kan. 680. Whitehead v. Jefferson, 51 Okl. 42, 151 P. 681. Chamberlain v. Iba, 74 N. E. 481, 181 N. Y. 486.

In an action for failure to deliver corn under an alleged contract, defendant may explain that an admission of a sale to plaintiff referred to a contract other than the one on which plaintiff relied. Davis v. McCrocklin, 8 P. 196, 34 Kan. 218.

7 Clarendon v. Weston, 16 Vt. 332.

In a shipper's action for damages to stock in transportation, an instruction that, defendant's counsel having admitted in open court that certain rates offered to plaintiffs at the starting point were tariffs of the defendant, he thereby admitted that defendant was the initial carrier held erroneous. Ray v. Missouri, K. & T. Ry. Co., 133 P. 847, 90 Kan. 244.

8 Monger v. Effland, 125 P. 46, 87 Kan. 710.

Buckner v. Wingard, 115 P. 636, 84 Kan. 682. An admission by a party claiming under a tax deed that his adversary is the owner of the original government title does not imply that the original title has not been extinguished by the tax deed. Id.

Sections

ARTICLE VI

QUANTUM, WEIGHT, AND SUFFICIENCY

1104. Consideration of testimony in general.
1105.

Uncontradicted evidence.

1106. Quantum of proof in general.

1107.

1108.

1109.

Prima facie evidence.

Circumstantial evidence.

Affirmative and negative evidence-Conclusions.

1110. Effect of opinion evidence.

1111. Effect of admissions.

1112. Testimony of party.

1113. Party bound by his own evidence,

1114.

Contracts.

1115. Notes.

§ 1104. Consideration of testimony in general

A witness may be discredited by his manner of testifying.10 The trial court or jury must consider the appearance and demeanor of witnesses, their candor and opportunity for knowing the facts

10 National Union v. Kelley, 140 P. 1157, 42 Okl. 98.

and must weigh their motives and interest, and on consideration of all the circumstances must find for the party producing the more credible and preponderating evidence.11

§ 1105. Uncontradicted evidence

While the jury are the exclusive judges of the credibility of witnesses they cannot arbitrarily or from partiality or caprice disregard unimpeached testimony; 12 but where the credibility of a witness is impeached, the jury may disregard his testimony, though it is undisputed.1a

A jury is not bound by testimony simply because it is uncontradicted. They may discredit the witness for apparent prejudice against or sympathy for the parties, for apparent interest in the result, or on circumstances which in their judgment contradict his testimony.14

§ 1106. Quantum of proof in general

It is sufficient for plaintiff in a civil cause to establish his case by a preponderance of evidence.15

11 Wideman v. Faivre, 163 P. 619, 100 Kan. 102, Ann. Cas. 1918B, 1168. An inadvertent misstatement of fact by a witness in essential testimony held not to support assignment of error that the evidence was insufficient, where the witness' true meaning was apparent from his entire testimony. Aldred v. Ray, 54 Okl. 154, 153 P. 664, 7 A. L. R. 1.

12 Sundgren v. Stevens, 119 P. 322, 86 Kan. 154, 39 L. R. A. (N. S.) 487. 18 First Nat. Bank v. Brewer (Okl.) 174 P. 1077.

A jury is not warranted in arbitrarily or capriciously rejecting the testimony of a witness, but neither is it required to accept and give effect to testimony which it finds to be unreliable, although it may be uncontradicted. State v. Woods, 102 Kan. 499, 170 P. 986, L. R. A. 1918C, 889.

14 Missouri, K. & T. Ry. Co. v. Murphy, 52 P. 863, 59 Kan. 774; Cobe v. Coughlin Hardware Co., 112 P. 115, 83 Kan. 522, 31 L. R. A. (N. S.) 1126; Healer v. Inkman, 131 P. 611, 89 Kan. 398.

In a trial without a jury, where judgment is rendered against party having burden of proof, that evidence in support of his claim is not directly contradicted otherwise than by testimony attacked as incompetent does not affirmatively show that decision was influenced by such challenged testimony. Collins v. Hayden, 104 Kan. 351, 179 P. 308; Howell v. Harper, 121 P. 362, 86 Kan. 396.

15 Weleetka Cotton Oil Co. v. Brookshire (Okl.) 166 P. 408.

Plaintiff in a civil action is not required to prove his cause beyond any reasonable doubt, and if he shows it to be more probable that injury resulted in whole or in part from the negligence alleged, rather than from any other cause, it is sufficient. St. Louis, I. M. & S. Ry. Co. v. True (Okl.) 176 P. 758. In a civil action, where a party relies on a deed, a preponderance of the

A verdict must reasonably be supported by the evidence. When based on mere conjecture, it is not based on sufficient evidence.1o Evidence is sufficient to sustain a judgment if there is any whatever reasonably tending to prove the essential facts, either directly or by permissible inference.18

17

A preponderance of the evidence means that kind and quality of evidence which is more satisfactory, satisfying, and convincing to the minds of the jurors.19

evidence is sufficient to establish that the deed is forged. Redden v. Tefft, 29 P. 157, 48 Kan. 302; Roediger v. Union Pac. R. Co., 147 P. 837, 95 Kan. 146.

16 Ingram v. Dunning, 60 Okl. 233, 159 P. 927.

Evidence held insufficient to sustain a finding that the actual value of a span of horses was $400. Caulk v. Carlson, 44 Okl. 532, 145 P. 335.

Evidence that an unknown person had written the name of a station on a freight car of a train, and that destinations were sometimes so indicated, was of insufficient probative force to warrant a finding that the car was then being moved to such station. Barker v. Kansas City, M. & O. Ry. Co., 129 P. 1151, 88 Kan. 767, 43 L. R. A. (N. S.) 1121.

A finding of fact that certain cattle were included in a mortgage, including 1 and 2 year old steers, is not supported by evidence that such cattle were bulls and cows. Wyman v. Herard, 59 P. 1009, 9 Okl. 35.

17 Great Western Coal & Coke Co. v. Serbantas, 50 Okl. 118, 150 P. 1042. 18 Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12, 155 P. 233. 19 Murphy v. Estle, 75 Okl. 75, 182 P. 83.

Under Act Cong. May 27, 1908, the enrollment record of a Creek freedwoman, showing that she was 18 years old in 1908, does not conclusively show that she was a minor when she made conveyances that year. Jackson v. Lair, 48 Okl. 269, 150 P. 162.

In an action to cancel a deed by a minor Creek freedman, evidence held to show that at the date of its execution the grantor was not 18 years of age. Stevens v. Elliott, 30 Okl. 41, 118 P. 407.

Evidence in an action by attorneys for compensation held to sustain a verdict for plaintiffs for $6,750. Turner v. Maxey, 45 Okl. 125, 144 P. 1064. Evidence held to show execution of bond of guardian by defendant surety company. Donnell v. Dansby, 58 Okl. 165, 159 P. 317.

In suit against former guardian and his bondsmen to set aside orders approving guardian's account, evidence held to support findings of false representations to county court that full and fair settlement had been made, and that all property coming into guardian's hands had been delivered to the wards. Francis v. Sperry (Okl.) 176 P. 732.

In suit against former guardian and his bondsmen to set aside orders approving guardian's account, evidence held to support finding of guardian's undue influence in securing final receipts and settlements from wards. Francis v. Sperry (Okl.) 176 P. 732.

In action to recover attorney's fees under oral contract making amount contingent on success, evidence held not to show that a judgment for plaintiff

The proof required to establish the affirmative of an issue depends upon the nature of the case. It must go to every essential

for $2,000 was so excessive as to require its vacation, and the ordering of a new trial. Cornelius v. Smith (Okl.) 175 P. 754, 9 A. L. R. 233.

In a will contest by one claiming to be the widow of testator, evidence held not sufficient to show that relation between plaintiff and testator were meretricious and not matrimonial. Coleman v. James (Okl.) 169 P. 1064.

Evidence held not to support a conclusion that investment company loaning upon a mortgage had such knowledge of facts as should have put it upon inquiry, which, if followed, would have informed it of fraud in former sale of property by a minor's guardian. F. B. Collins Inv. Co. v. Waide (Okl.) 173 P. 835; Id., 175 P. 229.

Evidence on application for dissolution of a corporation after a resolution to that effect, held, over objection, sufficient to sustain a judgment dissolving the corporation. In re Northrop-Bell Oil & Gas Co. (Okl.) 171 P. 1116.

Evidence establishing title and possession.-Evidence, in an action to quiet title, held sufficient to warrant a finding that plaintiff was in the peaceable possession of the real estate, claiming title, and that defendants never acquired any title themselves. Cramer v. McCann, 112 P. 832, 83 Kan. 719, 37 L. R. A. (N. S.) 108.

In an action to quiet title, evidence held to establish title in plaintiff. Fish v. Sims, 141 P. 980, 42 Okl. 535.

Evidence in an action to quiet title held to plaintiff as against the claims of defendant. 93 Kan. 189.

show a sufficient possession in Pierce v. Shelton, 144 P. 219,

In an action to quiet title and to cancel a contract for exchange of land on the ground that defendant had incumbered his property before the exchange and had leased the same, evidence held to sustain judgment for plaintiff. Snyder v. Wheeler, 106 P. 462, 81 Kan. 508.

In an action to quiet title, evidence held sufficient to sustain a judgment for plaintiff on the theory that a deed to defendant was subsequent to an oral agreement of the grantors to convey the property to plaintiff in pursuance of an arrangement by which he was already in possession and had made improvements thereon, of which defendant had notice. Crane v. Cheney, 91 P. 67, 77 Kan. 815.

In an action to quiet title, it appeared that plaintiffs purchased the land of the agents of the owner on the 6th day of June, and defendants bought the same land, and the landlord's interest in the lease, of the owner, without previous knowledge of the sale, on the 8th, taking a bond for a deed, which was properly acknowledged and duly recorded on the 18th of the same month. Defendants entered on the land about the same time, with the consent of the tenant, to dig coal, and afterwards, on hearing of the sale by the agents, the owner made a deed for the same land to plaintiffs, which recited the fact that it was given subject to a certain mortgage, and the bond for a deed, given to defendants. Plaintiffs purchased the interest of the tenant in the premises, but permitted him to remain in possession. There was no other evidence of possession on the part of plaintiffs. Held that, as against plaintiffs, defendants were entitled to a decree quieting the title to the land. Pilcher v. Brown, 25 P. 565, 45 Kan. 192.

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