§ 1127. Novation

A novation must be proven by a clear preponderance of the evidence.1

To establish novation by the substitution of a new debtor, the evidence must clearly show that the three parties agreed to the substitution."

$1128. Title

The question as to when title to personal property passes, should be taken from the jury only where there is but one conclusion deducible from the evidence."

Evidence that plaintiff is the consignor and consignee, and also the owner of a shipment of cattle shows that he is the real party in

facie evidence of its negligence. Levy Bros. v. Western Union Telegraph Co., 39 Okl. 416, 135 P. 423.

A prima facie case of negligence is established by showing that hogs were in a field improperly fenced by the defendant railroad company and strayed therefrom onto the tracks and were killed by defendant's train. St. Louis & S. F. R. Co. v. Steele, 133 P. 209, 37 Okl. 536.

The statement at the trial by carrier's attorney that it admitted that it did misroute but denied loss, dispenses with proof that the carrier was in fault, even if it was not liable for misconduct of a connecting carrier. McCullough v. Missouri Pac. Ry. Co., 160 P. 214, 8 Kan. 710.

Evidence in an action for the destruction of a barn and contents by fire held sufficient to sustain a verdict for plaintiff, where it was not strong enough to reasonably convince the jury that the fire originated from sparks emitted from the defendant railroad company's engines. Kansas City Southern Ry. Co. v. Henderson, 54 Okl. 320, 153 P. 872. Recovery cannot be had for the burning of a barn on proof of the mere possibility that the fire was caused by sparks emitted from the defendant railway company's engine. Id.

In a coal miner's action for injury from negligent construction of shower bath, where there was no evidence that operator had failed to do all required by Laws 1913, c. 125, § 1, in its construction, there was no primary negligence shown. Rock Island Coal Mining Co. v. Taylor, 75 Okl. 78, 182 P. 81.

Where a female passenger miscarries two or three days after arrival at her destination, and where, during the journey, the carrier may have been guilty of negligence, but there is no evidence that the miscarriage was caused by such negligence, a verdict partly based on such sickness cannot be sustained. St. Louis & S. F. R. Co. v. Criner, 137 P. 705, 41 Okl. 256.

McFarland v. T. W. Lanier & Bro., 50 Okl. 336, 150 P. 1097.

Gaar, Scott & Co. v. Rogers, 46 Okl. 67, 148 P. 161.

* Mangelsdorf Bros. Co. v. Kolp, 64 Okl. 33, 165 P. 1141.

In a suit by bank claiming ownership of a certain note of defendant secured by a chattel mortgage, and seeking possession of mortgaged property by writ of replevin, evidence held to sustain a judgment for defendant for possession of property, or, if its return could not be had, for its value and for usable value thereof. Union State Bank v. Woodside (Okl.) 178 P. 109.

interest, and the proper party to prosecute an action for their injury.

Inventory of her separate personal property, filed by the wife in the office of the register of deeds in the county of her residence, pursuant to statute, is notice and prima facie evidence of her title to such property.8

To recover in an action of trover, it must be alleged that the plaintiff is entitled to possession."

§ 1129. Payment-Receipts

Receipts are prima facie evidence but not conclusive evidence of payment of money indicated therein, and are always open to explanation, and the party alleged to have executed it may show its allegations to be false, or that it was executed and delivered by mistake or fraud.10

A receipt is not an instrument that the law requires for the protection of, or as notice to, third parties, but is only prima facie evidence of the payment of an obligation.

11

The possession of a note after its maturity is ordinarily prima facie evidence of payment.12

§ 1130. Amount of damages

In arriving at the amount of damages to be awarded the jury may make certain inferences, though there is no proof on that point.13 In personal injury cases the testimony of physicians is not necessary to a recovery of damages.14

7 Midland Valley R. Co. v. Pugh, 126 P. 759, 33 Okl. 648.

8 Bagg v. Shoenfelt (Okl.) 176 P. 511; Rev. L. 1910, § 3356.

9 Shelton v. Jones (Okl.) 167 P. 458, L. R. A. 1918A, 830.

10 Columbian Nat. Life Ins. Co. v. Wirthle (Okl.) 176 P. 406.

11 Kuykendall v. Lambert (Okl.) 173 P. 657.

12 Caulk v. Carlson, 44 Okl. 532, 145 P. 335.

13 Where the injury is objective, and it is plainly apparent from nature of injury that injured person must necessarily undergo future pain and suffering. the jury may infer that fact from proof of such an injury alone. Weatherly v. Manatt (Okl.) 179 P. 470; Shawnee-Tecumseh Traction Co. v. Griggs, 50 Okl. 566, 151 P. 230. Where the injury is subjective, expert testimony that plaintiff with reasonable certainty will experience future suffering is essential to a recovery therefor. Id.

In action for husband's wrongful death, consideration of plaintiff's means in arriving at verdict was error, as her right to recovery is based upon her pecuniary loss. Missouri, O. & G. Ry. Co. v. Lee (Okl.) 175 P. 367.

14 Where plaintiff's right arm, side, and leg were injured and partly para

Mortality tables are not indispensable to assist the jury in estimating the expectancy of life in cases to recover for death by wrongful act.15

§ 1131. Usury

To entitle one to recover under the statutory provisions for usurious interest paid, it must be shown by a preponderance of the evidence that the taking, receiving, or charging of interest greater than allowed was knowingly done.16

§ 1132. Copy of articles of incorporation

"A copy of any articles of incorporation filed in pursuance" of article 1, chapter 15, Rev. Laws 1910, "and certified by the secretary of state, must be received in all courts and other places as prima facie evidence of the facts therein stated, and of the existence of such corporation." 17

§ 1133. Recovery of penalties

To recover penalties as provided by the statute, the facts must be proved by a preponderance of the evidence.18

§ 1134. Abandonment of homestead

Abandonment of a homestead must be established by the most clear, conclusive, and undeniable evidence.19

lyzed, and he stated effect of his injuries as to disabling him from manual labor, jury might judge extent of his permanent disability, and testimony of physicians thereon was not necessary to his recovery therefor. St. Louis, I. M. & S. Ry. Co. v. Cantrell, 63 Okl. 187, 164 P. 110, L. R. A. 1917D, 980. 15 Atchison, T. & S. F. R. Co. v. Hughes, 40 P. 919, 55 Kan. 491.

16 First Nat. Bank of Soper v. Beecher (Okl.) 161 P. 327.

17 Rev. Laws 1910, § 1229.

18 All that is required of the state in civil actions for the recovery of the penalty prescribed by Comp. Laws 1909, § 4191, for letting buildings to be used for violations of the liquor law, is to prove the fact by a preponderance of the evidence. Hammett v. State, 141 P. 419, 42 Okl. 384, Ann. Cas. 1916D 1148.

19 McCammon v. Jenkins, 44 Okl. 612, 145 P. 1163.

Where a person removes from land and continuously lives on other lands five years, and then executed a deed of the former lands, such facts make a prima facie case of abandonment of the lands as a homestead. Perkins v. Cissell, 124 P. 7, 32 Okl. 827.

Proof of abandonment of homestead must be clear and convincing; and, where the only evidence is that of the claimant, and shows a removal without

§ 1135. Financial status

Where a party testifies that he is worth from $12,000 to $15,000, and trespass threatened by him will result in suspension of an extensive oil refinery, a finding that he could not respond in damages if trespass were carried out was warranted.20

§ 1136. Ejectment

In ejectment, proof of possession under claim of title, by the plaintiff's ancestor, entitles the plaintiff to recover, unless the defendant sustains the burden resting on him to show a better title or right of possession.21

The evidence requisite to sustain an action in form in ejectment, but in substance for relief on the ground of fraud, is the same as would be required if the facts of the transaction were pleaded, instead of the conclusion authorized by the statute in actions of ejectment.22

§ 1137. Attachment

In an action for a wrongful levy of an attachment order, proof of dissolution of the attachment does not show want of probable cause in commencing the attachment proceeding.23

§ 1138. Cancellation of instruments

Where there is a gross inadequacy or a total want of consideration slight evidence of fraud or undue influence will justify the cancellation of a deed where its enforcement would shock the conscience.24

any fixed intent to return, a finding of abandonment will not be disturbed. Carter v. Pickett, 39 Okl. 144, 134 P. 440.

Contract by owner of land, including his family homestead, to sell land if buyer performs certain obligations thereunder, is contingent and does not show a fixed and definite intention to abandon the homestead, even though owner and family are in act of moving away from it when contract is made. Elliott v. Bond (Okl.) 176 P. 242.

20 Burnett v. Sapulpa Refining Co., 59 Okl. 276, 159 P. 360. 21 Byrne v. Kernals, 55 Okl. 573, 155 P. 587.

22 New v. Smith, 119 P. 380, 86 Kan. 1.

23 Jones Leather Co. v. Woody (Okl.) 169 P. 878.

24 Marshall v. Grayson (Okl.) 166 P. 86.

In an action for rescission and cancellation, where the evidence shows that plaintiffs were owners of certain land in the state, and defendants were owners of land in Missouri; that, relying on certain false representations by defendants, plaintiffs exchanged said lands; that the lands in Missouri were not as

In an action to cancel a void conveyance it is not necessary to allege and prove that plaintiff is in possession.25

§ 1139. Reformation of instruments

To justify the reformation of an instrument for mutual mistake, the proof must establish the mistake to a moral certainty, beyond reasonable controversy, but not beyond the possibility of controversy.20 It must be clear and convincing.27

§ 1140. Divorce

To entitle a husband to a divorce on the ground of abandonment by his wife, temporarily insane, the evidence of defendant's intention to abandon plaintiff must be clear and uncontradicted.28

To prove adultery by circumstances, two facts must be established, a criminal disposition in minds of both the party accused and the particeps criminis, and an opportunity to commit the crime.29

Where the act of adultery is denied both by the wife and her alleged paramour, a finding of adultery cannot be sustained merely upon the fact of opportunity therefor, when the existence of the opportunity is equally capable of an innocent explanation.30

Though the testimony of plaintiff in divorce is not directly contradicted, the court is not bound to accept the statements as true if the court has reason to doubt his good faith, or if there are discrediting circumstances which develop during the trial.31

The existence of impotency as a ground for a divorce against an accused wife, susceptible as it is, of certain determination by ex

represented, and a part thereof wholly worthless; that thereupon plaintiff's notified defendants and offered to rescind-it was sufficient to establish a prima facie cause of action, and a demurrer to the evidence was erroneously sustained by the trial court. Clark v. O'Toole, 94 P. 547, 20 Okl. 319. 25 Burckhalter v. Vann, 59 Okl. 114, 157 P. 1148.

26 Cleveland v. Rankin, 48 Okl. 99, 149 P. 1131; Davidson v. Bailey, 53 Okl. 91, 155 P. 511.

To justify a reformation of a deed, failing to conform to the agreement of the parties through mutual mistake, the proof must be clear, unequivocal, and decisive. Dockstader v. Gibbs, 126 P. 229, 34 Okl. 497. Evidence held sufficient to show that a deed did not conform to the agreement of the parties through mutual mistake, justifying reformation Id.

27 Schafer v. Midland Hotel Co., 137 P. 664, 41′ Okl. 111.

28 Franklin v. Franklin, 35 P. 1118, 53 Kan. 143.

20 Hartshorn v. Hartshorn (Okl.) 168 P. 822.

30 Burke v. Burke, 44 Kan. 307, 24 P. 466, 21 Am. St. Rep. 283.

31 May v. May, 80 P. 567, 71 Kan. 317.