element, though in civil cases it need not ordinarily overcome every reasonable doubt.20

20 In action on note given in part for purchase c2 silo, defendant showing by way of defense that live stock fed on ensilage taken from silo were damaged, was required to go further and trace improper condition of ensilage and damages to some defect in silo itself. Maston v. Glen Lumber Co. (Okl.) 163 P. 128.

Attorney suing to enforce liability for contingent fee imposed by Laws 1909, c. 4, p. 117, against adverse party who had compromised with his client must establish client's meritorious cause of action and amount client would have been entitled to recover. Culver v. Diamond, 64 Okl. 271, 167 P. 223.

To be held liable as joint tort-feasors, there must be both allegation and proof of actual participation by the defendants in the commission of the tort. Preston v. Lewis, 50 Okl. 754, 151 P. 485.

In action upon an account, if jury on the evidence is unable to say that defendant is indebted to plaintiff for a definite sum, they should find for defendant. Cain v. King (Okl.) 168 P. 799.

Where property is to be delivered at the place where it is located when sold, the seller, before he can recover the price, is bound to prove delivery at that place. Lodwick Lumber Co. v. E. A. Butt Lumber Co., 131 P. 917, 35 Okl. 797.

To recover for libel under Rev. Laws 1910, § 4959, it is sufficient for plaintiff to establish defamatory matter, that it was published of plaintiff, and general or special damages. Dawkins v. Billingsley (Okl.) 172 P. 69, 12 A. L. R. 144.

One who would attack a patent of the interior department for mistake of fact must plead and prove the evidence before the department from which the mistake resulted, the particular mistake, the way in which it occurred, and the fact that, but for mistake, the decision would have been otherwise, before the court can consider the original issue of fact determined by the department. Ross v. Wright, 116 P. 949, 29 Okl. 186. While a decision of the Land Department on matters of law is not binding on the courts, it should not be annulled unless clearly erroneous. Id.

Nuisance. Where obstruction of public streets may or may not become a nuisance, depending on its location, use, or condition, determination of question by municipality having power to declare what shall be a nuisance is conclusive on courts. Duncan Electric & Ice Co. v. City of Duncan, 64 Okl. 211, 166 P. 1048; Ex parte Jones, 109 P. 570, 4 Okl. Cr. 74, 31 L. R. A. (N. S.) 548, 140 Am. St. Rep. 655; In re Huling, 109 P. 576, 4 Okl. Cr. 89. Injunction-Taxes.-In a suit to restrain the collection of taxes levied in 1905 as excessive, plaintiff must allege and prove that the property was assessed at more than its fair cash value. Brockhaus v. Baysinger, 126 P. 34 Okl. 483.

992

A property owner, seeking to enjoin the collection of a tax for lack of uniformity in the action of the county board of equalization in raising the returned valuation, must prove that his property was listed and returned for assessment at its fair cash value as required by Williams' Const. art. 10, § 8, and by the Enabling Act. Williams v. Garfield Exchange Bank of Enid, 38 Okl. 539, 134 P. 863.

Disbarment.—In disbarment proceedings, the guilt of the accused should be

It is frequently sufficient to prove the ultimate fact.21

Where the defendant, without denying execution of a note, pleads limitations, and plaintiff introduces a note showing on its face that it is barred by limitations, the defendant may rest his case on the evidence introduced by plaintiff.22

To reform a written contract for mutual mistake by parol evi

proved by a clear preponderance of the evidence, but not necessarily beyond a reasonable doubt. State Bar Commission v. Sullivan, 131 P. 703, 35 Okl. 745, L. R. A. 1915D, 1218.

Realty. Actual possession of property at time of conversion is sufficient evidence of title to enable purchaser to maintain action for damages for conversion against a mere stranger. United States Supply Co. v. Gillespie (Okl.) 166 P. 139.

A party interpleading in condemnation proceedings held required to recover on the strength of his own title. Phillips v. Byrd, 143 P. 684, 43 Okl. 556. In an Indian allottee's action to cancel conveyances executed prior to Act Cong. May 27, 1908, § 3, his age was a question of fact, to be established by competent testimony. Freeman v. First Nat. Bank of Boynton, 44 Okl. 146, 143 P. 1165, Ann. Cas. 1918A, 259.

21 Action on foreign judgment.-In order to recover on a foreign judgment of a court of general jurisdiction, it is not ordinarily necessary to introduce copies of any part of the record, except that showing the rendition of the judgment. McLain v. Parker, 129 P. 1140, 88 Kan. 717, judgment affirmed on rehearing 131 P. 153, 88 Kan. 873.

Attachment.—Where a foreign corporation was indebted to plaintiff upon a contract, and an attachment sued out was not questioned at the trial, it was not necessary for plaintiff to prove the issue and levy of the attachment. Municipal Paving Co. v. Herring, 50 Okl. 470, 150 P. 1067.

Where a mortgagor absconds, and, on attachment against his land, a mortgagee impleads, and asks to have the description in his mortgage corrected, so as to include the land attached, the testimony of the mortgagor is not necessary, and it may be shown by other evidence that he seemed to believe and acted as though the description in the mortgage was that of the land attached. Bodwell v. Heaton, 18 P. 901, 40 Kan. 36.

Conspiracy. In action for conspiracy, it is not necessary to show that parties actually entered into formal agreement to do the things complained of, but such understanding may be shown by circumstantial evidence. Felt v. Westlake (Okl.) 174 P. 1041. Upon a charge of conspiracy, great latitude is allowed in the admission of circumstantial evidence; the limitations resting in the trial court's sound discretion. Id.

In action on the case in nature of a conspiracy, it is not necessary to show by direct evidence that parties entered into a formal agreement to do things complained of, but that may be shown by facts and circumstances from which a conspiracy may be inferred. Democrat Printing Co. v. Johnson (Okl.) 175 P. 737. In the admission of circumstantial evidence upon a charge of conspiracy, great latitude is allowed, and the limit to which such evidence is admissible rests in trial court's sound discretion. Id.

22 Bradford v. Brennan, 12 Okl, 333, 71 P. 655.

dence, the evidence must be convincing beyond a reasonable doubt.28

It is not within the power of the Legislature to declare that a particular item of evidence shall preclude a party from establishing his rights in opposition to it except in those cases which fall within the established doctrine of estoppel at the common law, since in judicial investigations the law of the land requires an opportunity for a trial and there can be no trial if only one party is suffered to produce his proofs.24

"Prima facie evidence" of a fact is such evidence as in the judg ment of the law is sufficient to establish the fact, and, if not rebutted remains sufficient for that purpose.25

The residence of a man having a family which he maintains is prima facie where the family dwells.20

§ 1108. Circumstantial evidence

In a civil case, facts may be proved by circumstantial evidence the same as by direct evidence, and the circumstantial evidence, in order to be sufficient to sustain a verdict, need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury.27

23 Schaefer v. Mills, 76 P. 436, 69 Kan, 25.

Before a mortgage can be reformed on parol testimony alone, the court must be satisfied beyond a reasonable doubt of a mutual mistake, and that both parties intended to and believed they had correctly described the land in the mortgage. Bodwell v. Heaton, 18 P. 901, 40 Kan. 36.

In an action to modify a written contract for fraud, mere preponderance of the evidence is not enough. The facts must appear beyond reasonable controversy. McCormick Harvesting Mach. Co. v. Hayes, 53 P. 70, 7 Kan. App. 141.

24 Wilson v. Wood, 61 P. 1045, 10 Okl. 279.

25 Meadors v. Johnson, 112 P. 1121, 27 Okl. 544.

Plaintiff did not make out a prima facie case by showing that defendant owned automobile which struck him when used in business of borrowers and not under owner's direction. Halverson v. Blosser, 101 Kan, 683, 168 P. 863, L. R. A. 1918B, 498.

26 Jones v. Reser, 61 Okl. 46, 160 P. 58.

27 Barker v. Creek Coal & Mining Co., 80 Okl. 86, 194 P. 195; Missouri, K. & T. Ry. Co. v. Simerly (Okl.) 180 P. 551; Hashman v. Wyandotte Gas Co., 111 P. 468, 83 Kan. 328; Chicago, R. I. & P. Ry. Co. v. Wood, 72 P. 215, 66 Kan. 613.

To establish a theory by circumstantial evidence, the known facts relied on

The court or a jury may accept circumstantial evidence upon one side, and reject positive testimony presented on the same point by the other side. 28

An inference from testimonial evidence is permissible only when it is a probable explanation of such evidence and when other explanations are either less probable, or at least not exceedingly more probable. An inference from uncertain testimonial evidence or from a prior inference is not ordinarily, if at all, permitted to be drawn by the jury. A legitimate inference must have for its immediate basis testimonial evidence certain in nature.29

§ 1109. Affirmative and negative evidence-Conclusions

The testimony of one who was in position to know and can testify positively to a fact is of more weight than the testimony of one who was not in such position and cannot state positively that the fact does not exist.30

A statement in the nature of a conclusion does not rise to the rank of testimony.31

must be so related to each other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established. Chicago, R. I. & P. Ry. Co. v. Rhoades, 68 P. 58, 64 Kan. 553.

28 Reed v. Scott, 50 Okl. 757, 151 P. 484.

The court has the right to believe circumstantial evidence and disbelieve the direct evidence. Bank of Wilber v. Freeburg, 114 P. 207, 84 Kan. 235. A fact in a civil case may be established by circumstantial evidence, and a jury may accept such evidence and base a verdict thereon, though opposed to the direct and positive evidence of witnesses. Atchison, T. & S. F. Ry. Co. v. Colliati, 88 P. 534, 75 Kan. 56.

2 St. Louis & S. F. R. Co. v. Model Laundry, 141 P. 970, 42 Okl. 501. A witness testifying to the "value" of chattels presumably means their market value, unless a different meaning appears. Rogers v. 0. K. Bus & Baggage Co., 46 Okl. 289, 148 P. 837, Ann. Cas. 1917B, 581.

30 On the issue whether plaintiff and another were half-sisters and daughters of the same mother, E., testimony of defendant's witnesses that they never heard that plaintiff was the daughter of E. was purely negative and of no weight whatever. Lauderdale v. O'Neill (Okl.) 177 P. 113.

The testimony of one who was in a position to know, and who can swear positively, that the locomotive whistle was sounded at and before reaching a crossing of a public road, is of much greater weight than a statement of a witness who was not in such a position as to be able to state positively that a0 whistle was sounded. Kansas City, Ft. S. & G. R. Co. v. Lane, 7 P. 587, 33 Kan. 702; Missouri Pac. Ry. Co. v. Pierce, 18 P. 305, 39 Kan. 391. 31 Howard v. Eddy, 43 P. 1133, 56 Kan. 498.

The statement of a witness that a transaction testified to by him consti

§ 1110. Effect of opinion evidence

The value of expert evidence is for the jury.32 It is to be considered like any other testimony, and the jury must give such testimony the weight they deem it entitled to when viewed in connection with all the other circumstances.33

Expert testimony on scientific matters, though admissible to advise the jury, is never legally necessary, and is not binding upon them.34

The opinion of witnesses as to the value of services of attorneys is not conclusive on the jury,35

In an action for damages for an assault and battery, it was not necessary that any witness should express an opinion as to the amount of the damages.

36

tuted a loan was a conclusion by which the trial court, sitting without a jury, was not bound. Wass v. Tennent-Stribbling Shoe Co., 41 P. 339, 3 Okl. 152.

32 Fire Ass'n of Philadelphia v. Farmers' Gin Co., 39 Okl. 162, 134 P. 443. 33 Atchison, T. & S. F. R. Co. v. Thul, 4 P. 352, 32 Kan. 255, 49 Am. Rep. 484; Yates v. Garrett, 92 P. 142, 19 Okl. 449.

In an action for seduction and breach of promise of marriage, followed by pregnancy, miscarriage, and sickness, defendant's expert testimony of physicians was not necessarily conclusive. Bowes v. Sly, 152 P. 17, 96 Kan. 388.

Expert testimony held not to conclusively show that the injuries com. 'plained of did not result from arsenical and strychnine poisoning. Daniels v. Dick, 147 P. 845, 95 Kan. 72.

Uncontradicted testimony of a Missouri lawyer of 15 years' experience and of a Missouri abstracter of 20 years' experience held to sustain a judgment that a title to a tract of Missouri land was merchantable and vested in the record owner free of incumbrances. Spaeth v. Kouns, 148 P. 651, 95 Kan. 320, L. R. A. 1915E, 271.

Opinions of witnesses, practicing lawyers of Nebraska, that a contract executed in Nebraska and specifying the part that the surviving husband or wife should take in the other's estate was invalid, held not conclusive in the absence of controlling decisions of Nebraska. Eberhart v. Rath, 131 P. 604, 89 Kan. 329, Ann. Cas. 1915A, 268.

34 Chicago, R. I. & P. Ry. Co. v. Gilmore, 52 Okl. 296, 152 P. 1096, Testimony of experts that it is not good practice to insulate wires carrying over 2,500 volts crossing highway on poles 20 feet high is not conclusive where wires were insulated when placed in position, but insulation had worn off. Wade v. Empire Dist. Electric Co., 158 P. 28, 98 Kan. 366, rehearing denied 158 P. 1110.

35 Colley v. Sapp, 44 Okl. 16, 142 P. 989, judgment affirmed on rebearing, 142 P. 1193; Epp v. Hinton, 102 Kan. 435, 170 P. 987; Bentley v. Brown, 14 P. 434, 37 Kan. 14.

36 Drysdale v. Wetz, 171 P. 653, 102 Kan. 680.