§ 1122. Partnership A prima facie case of partnership is made out by evidence that persons are sharing profits, pursuant to agreement, that they have described themselves as partners, or that they are the common proprietors of a business conducted for mutual profit. However, the fact that the books of a partnership show a person to be a partner is not conclusive of the fact, against such person.$5 § 1123 Agency and official capacity 86 84 Agency may be proved by the agent's testimony, as may also the extent of his authority.87 The general rule is that declarations of an alleged agent, standing alone, are incompetent to establish agency; 88 but an exception 84 Cobb v. Martin, 123 P. 422, 32 Okl. 588. In action against alleged partners, evidence of written agreement of partnership is prima facie proof of partnership. Moning Dry Goods Co. v. Wiseman, 60 Okl. 94, 159 P. 259. Partnership is prima facie proved by evidence that defendants share in profits pursuant to agreement, that they have described themselves as partners in a writing, or by evidence of common man. agement and profit. Id. Where plaintiff, in an action for commissions on sales of lumber, testified that he informed defendant H. concerning his agreement with defendant B. to sell lumber on commission, that H. told him that the arrangement was satisfactory, and to go ahead, and promised to pay him something on account of sales already made, the proof was sufficient to establish a prima facie case of partnership between defendants H. and B. Bashor v. Hayes, 111 P. 487, 83 Kan. 444. 85 Manspeaker v. Thomas (Kan.) 44 P. 683. Agency cannot be proved against another by evidence of the declarations of an agent, and, where one purports to act as agent for another, that fact of itself is not sufficient evidence upon which to submit the question of agency to the jury. Oklahoma Automobile Co. v. Benner (Okl.) 174 P. 567. Statement by principal in guaranty contract that he was acting as agent of creditor, made at time of securing signature of trustees, will not establish that fact, so as to charge creditor with notice of his fraud in obtaining signatures. J. R. Watkins Medical Co. of Winona, Minn., v. Coombes (Okl.) 166 P. 1072. In a suit to cancel a mortgage executed to an insurance company because the agents failed to pay over the money, plaintiffs were not bound by a provision of the application that the agents were the agents of the applicant, but the court could from all the evidence determine whether they were the agents for the mortgagors or the mortgagee. Union Cent. Life Ins. Co. v. Pappan, 128 P. 716, 36 Okl. 344. to this rule is that, where the suit by the principal is based upon a contract entered into by an assumed agent, his declarations in making the contract are competent testimony.89 To constitute color of office rendering an officer's sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity." Where the mortgagee's oral consent to a sale of mortgaged property by mortgagor as his agent is relied upon as a defense to action for conversion of mortgaged property, the evidence as to such consent must be clear, positive, and unequivocal."1 The range of time within which specific instances to show a continuing agency are admissible to prove a continuing agency, is within the trial court's discretion.92 § 1124. Sales The fact that merchandise was charged on the books of the vendor to the person to whom it was delivered is evidence to show that the sale was made on its credit, but is not conclusive.93 When the language of a written contract of sale of personalty is ambiguous, and the intent of the parties as to passing of title is material and the evidence is conflicting, the question is for the jury.94 On the trial of the issue of fact whether a sale was made at a certain price, either party may show the value of the property involved.95 That personal property was sold for too high a price is not per se prima facie evidence of fraud by the seller.96 Where the evidence tended to show that lumber was sold to a contractor, and that the seller notified the owner of the sale, it showed the seller's status as a subcontractor.97 Iowa Dairy Separator Co. v. Sanders, 140 P. 406, 40 Okl. 656. ** Hughes v. Board of Com'rs of Oklahoma County, 50 Okl. 410, 150 P. 1029. *1 Phelan v. Barnhart Bros. & Spindler, 75 Okl. 49, 181 P. 718. 92 Brownell v. Moorehead (Okl.) 165 P. 408. 93 Kesler v. Cheadle, 72 P. 367, 12 Okl. 489. 94 Kirkham v. B. F. Fullerton & Son, 122 P. 652, 32 Okl. 461. 95 Carpenter v. Roach, 55 Okl. 103, 155 P. 237. 9 Campbell v. Newton & Driskill, 52 Okl. 518, 152 P. 841. 97 Neves v. Mills (Okl.) 176 P. 509. 1125. Fraud Circumstances altogether inconclusive, separately considered, may by their number and joint operation, especially when corroborated by moral coincidences, constitute conclusive proof of fraud; but fraud must ordinarily be established by clear and convincing preponderance of the evidence."" 98 Wingate v. Render, 58 Okl. 656, 160 P. 614. In an action by a client against her former attorney, evidence held insufficient to sustain a finding that she had not been induced to assign her claim against the estate of her deceased guardian by fraudulent representations as to the value of the estate by the attorney. Mohr v. Sands, 44 Okl. 330, 133 P. 238. In an action against an administrator to recover real estate belonging to the heirs fraudulently purchased by him at his own sale, the petition and order setting aside the final settlement of such administrator in the probate court are properly introduced in evidence, though defendant's counsel have admitted in open court the granting of such order. Branner v. Nichols, 59 P. 633, 61 Kan. 356. In a personal injury action by a passenger, who signed release, evidence held to warrant verdict in her favor. Chicago, R. I. & P. Ry. Co. v. Cotton, 62 Okl. 168, 162 P. 763. 99 Where a release is attacked on the ground of fraud, the party alleging fraud is bound to establish it by clear and convincing proof. St. Louis & S. F. R. Co. v. Bruner, 52 Okl. 349, 152 P. 1103. Where fraud is alleged in procuring execution of a deed, proof must sustain allegations by a preponderance of evidence. Adams v. Porter, 58 Okl. 225, 158 P. 899. In action for possession of land on ground of fraud in including it in description in deed, evidence held insufficient to sustain allegations of petition. Id. Where fraud in the procurement of a written instrument is alleged, such allegation must be proved by a preponderance of evidence so great as to overcome all opposing evidence and repel all opposing presumptions of good faith. Owen v. United States Surety Co., 38 Okl. 123, 131 P. 1091. In a suit attacking a conveyance of land as in fraud of creditors, the inquiry extends to all circumstances bearing on the question. Wimberly v. Winstock, 46 Okl. 645, 149 P. 238. Where fraud is alleged in the procuring of the execution of written instruments or deeds, the proof must sustain the allegations by a preponderance of evidence so great as to overcome all opposing evidence, and repel the opposing presumptions, and should be of such weight and exigency as to satisfactorily establish the wrongful conduct charged; honesty and fair dealing as a rule being presumed. Moore v. Adams, 108 P. 392, 26 Okl, 48. Where in a suit to quiet title, fraud in procuring written instruments or deeds is relied on, the proof to sustain this contention must be clear and satisfactory. Elliott v. Merriman, 47 Okl. 717, 150 P. 695. § 1126. Negligence and cause Negligence, like any other fact, may be found from circumstantial evidence when facts and circumstances proved are sufficient to warrant a reasonable inference of the negligence alleged. 1 Lusk v. Phelps (Okl.) 175 P. 756. The Where an accident has occurred resulting in the death of all the persons immediately connected therewith, and there is no direct proof as to how the accident occurred, the manner of its occurrence may be shown by circumstantial evidence from which the jury may infer the manner and cause of the accident if the inference is reasonable, although not a necessary resulting fact. Waters-Pierce Oil Co. v. Deselms, 89 P. 212, 18 Okl. 107, judgment affirmed (1909) 29 S. Ct. 270, 212 U. S. 159, 53 L. Ed. 453. Cause of action for negligence may be established by circumstantial evidence. Weleetka Cotton Oil Co. v. Brookshire (Okl.) 166 P. 408. In an action by an employé for injuries from alleged negligence of a master, the causal connection between the accident and the alleged negligence may be established by circumstantial evidence. Petroleum Iron Works Co. v. Wantland, 114 P. 717, 28 Okl. 481. Proof that switch tracks in railroad yard were located so closely together as not to afford sufficient space for hostler's helper to properly discharge bis duties, resulting in his death, sufficiently shows primary negligence of conipany. Missouri, O. & G. Ry. Co. v. Overmyre, 58 Okl. 723, 160 P. 933. That an animal has been killed by a train may be proved by circumstantial evidence. Missouri, K. & T. Co. v. Simerly (Okl.) 180 P. 551. Where a shipment of goods is delivered to a carrier in good condition and delivered by it to the consignee in a damaged state, the carrier is prima facie liable. Armstrong, Byrd & Co. v. Illinois Cent. R. Co., 109 P. 216, 26 Okl. 352, 29 L. R. A. (N. S.) 671. Evidence that a car left the track while in transit, and turned over, causing injury to the shipment, made out a prima facie case of negligence. Missouri, O. & G. Ry. Co. v. French, 52 Okl. 222, 152 P. 591. Where the evidence showed that the track was straight for miles, so that a reasonable inference of negligence arose, and defendant's servants who saw the killing did not testify, judgment for plaintiff will not be reversed. St. Louis & S. F. R. Co. v. Smith, 127 P. 479, 36 Okl. 28. In action for damages for property destroyed by sparks from a locomotive, circumstantial evidence, or reasoning and conjecture from known facts, is competent; but the process is defective if the circumstances depend also on conjecture and speculation. St. Louis & S. F. R. Co. v. Mobley (Okl.) 174 P. 510. Evidence, showing that a fire originated from sparks of a passing engine, is prima facie proof of negligence of the railroad company. Missouri, O. & G. Ry. Co. v. Gentry, 52 Okl. 374, 152 P. 1076; Wichita Falls & N. W. Ry. Co. v. Arnold, 56 Okl. 352, 156 P. 296; Same v. Gant, 56 Okl. 727, 156 P. 672. One injured while riding as a passenger on platform of caboose of a freight train makes out a prima facie case when he shows injury was caused by au unusually sudden stop which was unnecessary, and surrounding circumstances indicate negligence. Chicago, R. I. & P. Ry. Co. v. Grace, 61 Okl. 12, 159 P. 1011. In an action against a mining company for the death of a shot firer from question of proximate cause, also, may be determined from circumstantial evidence.2 In a civil case, it is not necessary to prove beyond a doubt, but only to make it appear more probable that the injury came in whole or in part from defendant's negligence rather than from any other cause.3 gases from a windy shot caused by the reversal of an air fan on account of its not having been suitably adjusted, evidence tending to show that the omitted appliances were reasonably necessary would support a verdict for plaintiff, based on the assumption that the omission to suitably adjust the fan with the additional appliance was the proximate cause of the injury. Coalgate Co. v. Hurst, 107 P. 657, 25 Okl. 588, writ of error dismissed (1912) 32 S. Ct. 838, 225 U. S. 697, 56 L. Ed. 1262. The proximate cause of the death may be established by circumstantial evidence. Id. Proof that a master is using machinery of a certain kind and that an acci dent happens in its use does not tend to show negligence without some evidence that it is not properly performing its function. Phoenix Printing Co. v. Dur ham, 122 P. 708, 32 Okl. 575, 38 L. R. A. (N. S.) 1191. Where a servant with 12 years' experience as a carpenter was injured by boring a hole with an auger bit, the cutting points of which had become dulled from use, and no other defect was shown, the evidence failed to show negligence of the master, and judgment for plaintiff was not sustained. St. Louis & S. F. R. Co. v. Mayne, 127 P. 474, 36 Okl. 48, 42 L. R. A. (N. S.) 645. 2 St. Louis & S. F. R. Co. v. Darnell, 141 P. 785, 42 Okl. 394. To sustain verdict for causing death, plaintiff must not only prove negligence, but also that negligence was proximate cause of death. Clinton & 0. W. Ry. Co. v. Dunlap, 56 Okl. 755, 156 P. 654. Generally it is impossible to prove that negligence was proximate cause of death by direct evidence, and it is sufficient to show circumstances and surroundings if inference therefrom is reasonable one. Id. Evidence to justify a finding that a master was negligent must show a breach of duty, such that a reasonable person should have foreseen would naturally cause injury; a mere possibility of injury being insufficient, where a reasonable man would not consider the injury likely to result. Chicago, K. 1. & P. Ry. Co. v. Nagle, 55 Okl. 235, 154 P. 667. 8 St. Louis & S. F. R. Co. v. Rushing, 31 Okl. 231, 120 P. 973; St. Louis & S. F. R. Co. v. Hart, 45 Okl. 659, 146 P. 436. Where plaintiff sues carrier for loss of an eye, he need not prove by expert that infection causing removal was caused by the injury, where there was other evidence justifying such inference. Missouri, K. & T. Ry. Co. v. Edmonds (Okl.) 174 P. 1052. In an action for death of a shot firer in a mine from gases from a windy shot, resulting from the reversing of an air fan, evidence from which it might be inferred that the master in constructing or operating the fan had omitted the care which a careful man would ordinarily bestow to prevent the occur. rence of accidents held to support a verdict for plaintiff. Coalgate Co. V. Hurst, 107 P. 657, 25 Okl. 588, writ of error dismissed 32 S. Ct. 838, 225 U. S. 697, 56 L. Ed. 1262. Proof that a telegraph company incorrectly transmitted a message is prima |