Expert and opinion testimony as to genuineness of handwriting is competent; the weight to be given it being for the jury.37

While the jury cannot wholly disregard the admissible opinions of experts, they may disregard such evidence as they deem unreasonable or not entitled to belief because contradicted by positive testimony.38

§ 1111. Effect of admissions

Testimony cannot be introduced to contradict admissions made in the pleadings.

39

Admissions contained in a pleading in other litigation while admissible in another action between the party making them and a stranger are not conclusive of the facts alleged, but are open to explanation or rebuttal.1o

Where a party makes in his pleading solemn admissions against interest, in the absence of mistake, a court, in passing on the sufficiency of a subsequently amended pleading filed by him, should consider such admissions and treat them as admitted facts.11

Statements of a cause of an injury in a notice by an employé of

87 Baird v. Shaffer, 101 Kan. 585, 168 P. 836, L. R. A. 1918D, 638.

38 Producers' Oil Co. v. Eaton, 44 Okl. 55, 143 P. 9; Baird v. Shaffer, 101 Kan, 585, 168 P. 836, L. R. A. 1918D, 638.

The weight of the opinion of a witness as to the value or damage to cattle by rough handling during transportation, or his statement as to the price the cattle would bring in the market, was for the jury. St. Louis & S. F. R. Co. v. Bilby, 130 P. 1089, 35 Okl. 589.

Testimony in action for personal injuries in crossing accident that noise made in coupling cars, etc., was louder than usual, which was merely the conclusion of nonexpert witnesses, as against positive testimony of expert trainmen to contrary, did not make an issue of fact for jury. Lusk v. Pugh (Okl.) 176 P. 80.

39 Southwestern Broom & Warehouse Co. v. City Nat. Bank, 52 Okl. 422, 153 P. 204.

Where it appeared from the proof and amended answer of defendant in replevin that he was not in possession at commencement of the suit, held, that the court properly directed a verdict for defendant though the original answer admitted possession. Byers v. Sharp, 49 Okl. 456, 153 P. 127.

40 Kington v. Ewart, 164 P. 141, 100 Kan. 49; Solomon R. Co. v. Jones, 2 P. 657, 30 Kan. 601; Murphy v. Hindman, 48 P. 850, 58 Kan. 184.

A lien statement under oath and a cross-petition filed in one case by a party, while competent evidence against him at the trial of another case as admissions, are not conclusive, and carry nothing of estoppel in favor of a stranger to the proceedings in which they were filed. Limerick v. Lee, 87 P. 859, 17 Okl. 165.

41 Page v. Geiser Mfg. Co., S7 P. 851, 17 Okl. 110.

a railroad company may be considered as affecting the credibility of plaintiff as a witness, as may also his statement taken soon after the injury, which should be considered in connection with his condition at the time as affecting his understanding, but neither the notice nor the statement can be held as a matter of law to bar his claim.42

The fact that a railroad company settled a claim against it for damages resulting from a fire alleged to have been set through its negligence by sparks from a locomotive, is not conclusive evidence of its liability to the owner of the premises injured, in an action against it by an insurance company which had issued a policy on said premises, and paid the loss resulting from said fire.43

§ 1112. Testimony of party

In determining the weight to be given to the evidence of a party to the action, the jury may take into consideration his manner, the probability of his story, and his self-contradictions," and where there is evidence tending to show that his mind is impaired the jury may consider this in connection with his evidence, and give it such weight as it is entitled to receive.15

42 Atchison, T. & S. F. Ry. Co. v. Hastings, 100 P. 68, 79 Kan. 499. 43 Home Ins. Co. v. Atchison, T. & S. F. R. Co., 46 P. 179, 4 Kan. App. 60. 44 Where an action is brought upon a note by an innocent holder thereof for value, and the note offered in evidence is regular and without any interlineations or any evidence of alterations, the maker testifying to an alteration need not be credited, as a matter of law, although no other evidence than the note is offered to impeach or contradict him. His manner, the improbability of his story, and his self-contradictions may justify the jury in wholly rejecting his testimony. Lowden v. Schoharie County Nat. Bank, 16 P. 748, 38 Kan. 533.

45 Defendant objected to plaintiff's testifying in her own behalf, on the ground that she was of unsound mind. Evidence was introduced tending to show her mental condition. The objection was made by defendant, and a part of such testimony taken in the presence and hearing of the jury. The jury were instructed that there was testimony tending to show that, since the injury complained of, plaintiff's mind was somewhat impaired, and that, in determining the weight to be given to her testimony, they should take into consideration the testimony tending to show her mental condition, and from such testimony, together with her own evidence as to how the accident occurred, give her testimony the weight to which it was entitled. Held, that the instruction correctly stated the law. City of Guthrie v. Shaffer, 54 P.. 698, 7 Okl. 459.

Where a fact is relevant, the plaintiff is not concluded by the defendant's testimony, given upon the plaintiff's examination.1o

§ 1113. Party bound by his own evidence

A party to an action is bound by his evidence with like effect as by an admission in his pleading.* 47

Where a party voluntarily offers in evidence the record, pleadings, instructions, and journal entry showing adjudication of a former action between himself and another to establish his defense, he vouches for the authenticity and correctness of the record, and is estopped to impeach the validity or correctness thereof.*

48

Any insufficiency in the proof offered by a plaintiff of defendant's corporate existence is immaterial where the defendant has supplied such proof by filing a copy of its charter.1o

In an action to recover for services rendered, an instruction asked. by defendant, which implied that plaintiff could prove the contract

46 Flynn v. Crimmins, 17 N. Y. St. Rep. 987. Where plaintiff placed defendant on the witness stand, and he admitted the purchase of some of the items, for which suit was brought, but he declared he paid for the same and denied the correctness of the account and all the items thereof, and any indebtedness therefor, all the testimony save that which might be construed into an admission could not be disregarded. Ensign v. Hart, 61 P. 823, 10 Kan. App. 32.

47 Holmes v. Leadbetter, 69 S. W. 23, 95 Mo. App. 419.

Where shippers contracted with an agent in the employ of two railroad companies, and the contract was composed of a letter and telegrams in which there was no disclosure for which company the agent was acting, and in an action against one of the companies for negligently transporting stock the shippers used the testimony of the agent, and he testified that he was not acting for the defendant company, but for another company, a demurrer to plaintiff's evidence was rightly sustained. Walter v. Missouri Pac. Ry. Co., 79 P. 1089, 71 Kan. 164.

In an action for breach of covenant of warranty, defendant can offer in evidence an instrument waiving all right of action on account of the covenant of warranty contained in a deed executed on a certain date, though a part of the instrument states that such deed was "an attempt to convey a good and sufficient title to the N. E. quarter" of a certain section, though the warranty deed was also for the northwest quarter, which was in dispute; the defendant not being absolutely bound by the terms of the instrument so as to prevent him from introducing other testimony which might be necessary to show its connection with the matter in dispute. Hoffman v. Henricks, 96 P. 589, 21 Okl. 479, 17 Ann. Cas. 379.

48 Richardson v. Southwestern Cotton Seed Oil Co., 81 P. 781, 15 Okl. 263. 49 Federal Betterment Co. v. Reeves, 93 P. 627, 77 Kan. 111, 15 Ann. Cas.

796.

by his own evidence only and that none of the defendant's evidence could be taken into consideration for that purpose, was properly refused.50

It is bad practice, but, where no objection is made on this ground, the party who has the burden of the issues may introduce all the evidence for and against every issue in the case; but, if he introduces evidence which, unrebutted, defeats his cause of action, he does so at his peril.51

§ 1114. Contracts

The party who alleges a contract, either as a cause of action or defense, has the burden of proving it, and must prove every fact essential to the cause of action or defense, whether the contract is express or implied.52

50 Haak v. Struve, 16 P. 686, 38 Kan. 326.

51 Kibby v. Gibson, 83 P. 968, 72 Kan. 375.

Where a party to sustain his defense introduces letters containing statements as to the matter in issue, and no reply to such letters denying such statements is introduced, the statements are evidence tending to show that they are true, and his silence is evidence tending to show such fact. Richardson v. Southwestern Cotton Seed Oil Co., 81 P. 781, 15 Okl. 263.

52 National Surety Co. v. Board of Education of City of Hugo, 129 P. 25, 36 Okl. 569.

Where the petition on a builder's bond charged that the building had not been constructed according to the contract, but the contract was not pleaded, nor was it charged that it was lost or beyond the reach of plaintiff, nor were its contents proved, the plaintiff was not entitled to recover. National Surety Co. v. Board of Education of City of Hugo, 129 P. 25, 36 Okl. 569.

In an action for damages for failure to complete a contract to bore a well, the evidence was conflicting, it was error to direct a verdict for plaintiff. Kendall v. Day, 123 P. 1066, 32 Okl. 790.

In action for specific performance of oral contract by husband and wife to raise plaintiff as their own child, and that on their death she should inherit, as if they died intestate, there must be facts and circumstances sufficient to raise a convincing implication that contract was made, and to satisfy court of its terms. Pantel v. Bower, 104 Kan. 18, 178 P. 241.

Defendant, who had carried on a millinery business in a town for 10 years, and built up a large trade, sold it to plaintiff, agreeing that she would "never enter into, or be interested in any manner in, the millinery business in that city." In less than two years, however, a millinery business was opened under the name of defendant's husband, with money obtained from the sale of their homestead, the title of which was in his name. Defendant had the principal supervision of the business, and it was advertised in her name. Held sufficient to sustain a finding that defendant violated her contract, and to justify an injunction against her. Richardson v. Emmert, 24 P. 478, 44. Kan. 262.

Where warranty that mule traded was "sound and well" was relied upon

In an action for breach of warranty on sale of personalty, the purchase price is prima facie the value of property as warranted, in the absence of other evidence.53

§ 1115. Notès

The possession of the note on which suit is brought is prima facie evidence of title.54

In an action on a note, where defendant sets up fraud and is shown to be the principal party in perpetrating it, and the proof is doubtful as to the other party having knowledge thereof, the defense will not be sustained.55

§ 1116. Conveyances

The acknowledgment of a deed is prima facie evidence of its execution.56

A recital in a deed of payment of consideration, though prima

and mule was accepted and died the following day, court or jury might find that there was a breach of warranty. Jackson v. Bates (Okl.) 170 P. 897.

In a suit by a creditor of a corporation to recover a stockholder's liability assigned to the creditor, where the subscription is denied, it is sufficient to prove the subscription and assignment to plaintiff, and he need not prove nonpayment thereof. Hargadine-McKittrick Dry Goods Co. v. Breedlove, 130 . 267, 36 Okl. 768.

53 Burgess v. Felix, 140 P. 1180, 42 Okl. 193.

54 In action against maker of unindorsed note brought by other than payee, plaintiff's duty of establishing ownership of instrument is sufficiently discharged by introduction of instrument, the possession thereof being prima facie evidence of title in plaintiff. Southwest General Electric Co. v. Riddle (Okl.) 168 P. 436.

Plaintiff, in an action on a negotiable note, by introducing in evidence the note and indorsement of the payee in blank, prima facie establishes his case. Gillespie v. First Nat. Bank, 95 P. 220, 20 Okl. 768.

Sufficiency of proof.-Where a petition declares on five promissory notes, purporting to be signed by a mark and not attested by a witness, and defendant denies the execution of the notes by a duly verified answer, and the plaintiff testifies that the maker's name was signed to the notes by him at the maker's request, and that no other person was present, the evidence was insufficient to sustain a cause of action. Sivils v. aylor, 69 P. 867, 12 Okl. 47. In an action on a note tried to the court, where execution was denied, and a comparison of the contested signature with signatures admittedly genuine admitted, a finding that the note was that of defendant was supported by evidence. McMinn v. Johnson County Savings Bank, 60 Okl. 236, 159 P. 921. 55 Price v. Winnebago Nat. Bank, 79 P. 105, 14 Okl. 268.

56 Dyal v. Norton, 47 Okl. 794, 150 P. 703.