1091. Acquiescence or silence.

1092. Admissions by parties or others interested.
1093. Admissions of former owners or privies.

1094. Admissions by agents.

1095. Admissions by corporate and municipal officers.

DIVISION I.-RELEVANCY AND MATERIALITY

§ 966. Pertinent to issues

Evidence is admissible only when relevant to the facts in issue." Any evidence which does not support any issue made by the pleadings should be excluded, such as entries in books of account where they do not relate to the transaction which is the subject of inquiry, and proof of any fact which does not tend to prove or disprove any matter in controversy.93

90 Waters v. Dore, 50 Okl. 183, 150 P. 885.

91 Indian Land & Trust Co. v. Clement, 109 P. 1089, 22 Okl. 40. Where a wife brought an action to cancel a mortgage executed by herself and husband to defendant, on a homestead owned by her, on the ground that the consideration of $5,000 mentioned therein had wholly failed, because defendant had not paid, advanced, or loaned any part thereof, and defendant, after admitting the execution and recording, denied only generally the allegations of the petition, it was not competent for defendant to show, by written contracts, letters and other testimony between the husband and himself that defendant received such mortgage as collateral security for the payment of debts of the husband, when it appeared from the evidence of defendant that he had never had any conversation with the wife before or after the execution

92 Drumm-Flato Commission Co. v. Edmisson, 87 P. 311, 17 Okl. 344, judgment affirmed 28 S. Ct. 367, 208 U. S. 534, 52 L. Ed. 606.

93 Neosho Valley Inv. Co. v. Hannum, 66 P. 631, 63 Kan. 621.

It is proper for the court to permit to be shown the circumstances surrounding a transaction in controversy and the relations of the parties to the action for the purpose of aiding the jury in judging of the reasonableness of the respective claims of the parties who testify, directly contradictory to each other, with reference thereto.94

Evidence as to the general condition of property at different times is admissible.95

Evidence as to character and general reputation is generally inadmissible."6

Specific acts of misconduct are not ordinarily admissible upon

of the mortgage, and when the husband, as the witness of defendant, testified that, in making all of his arrangements with defendant, he acted for himself alone and not for anybody else. Donaldson v. Everhart, 32 P. 405, 50 Kan. 718.

94 Holman v. Raynesford, 44 P. 910, 3 Kan. App. 676.

95 T. bought 400, and O. 200, sheep out of the same flock, of B. The sheep had, at the time of sale, an infectious disease, though unknown to either party to the sale. They were placed in one flock for the sake of cheapness, and became so commingled that they could not be distinguished. In an action brought by T. against B. for breach of warranty that the sheep sold T. were sound and healthy, held, that testimony showing the general condition of all the sheep after they had been in one flock some time was admissible; the commingling of the flock not being for the purpose of defrauding B., nor of concealing or manufacturing evidence. Broquet v. Tripp, 14 P. 227, 36 Kan. 700. 96 In action for fraud in contract for exchange of real estate, admission of evidence that plaintiff's general reputation for truth and honesty was good was error. Wyrick v. Campbell (Okl.) 170 P. 267.

Evidence of the general reputation of insured for truth and honesty was inadmissible to rebut direct evidence tending to establish the defense of fraud in the procurement of the insurance. Great Western Life Ins. Co. v. Sparks, 38 Okl. 395, 132 P. 1092, 49 L. R. A. (N. S.) 724.

Where the complaint, in an action for a balance alleged to be due as a result of mutual transactions, charges fraud and wrongful neglect by defendant, a judgment for defendant will not be reversed for the admission of evidence tending to show his good standing and character in the community. Allison v. McClun, 20 P. 125, 40 Kan. 525.

Where plaintiff was ejected from a railroad train, and evidence was offered to show that before his ejection he used vile, obscene, and profane language in a car filled with passengers, including many women and children, evidence on his part, by a witness, "that he never heard him use half a dozen oaths in his life," and by another that "he never heard him use obscene language in public, but might have heard him make use of an oath some time, but not frequently," is incompetent. Atchison, T. & S. F. R. Co. v. Gants, 17 P. 54, 38 Kan. 608, 5 Am. St. Rep. 780.

an issue of the character of one of the parties to the action, where

it arises collaterally.97

Evidence of the pecuniary condition of a party is admissible, where such condition becomes material to the issues.98

Where the intent of the party is material and the facts and circumstances shown in evidence leave the question in doubt, the character of the party charged may be shown to aid in the determination of the question.

99

Where, by reason of demanding and receiving a bill of sale in the nature of a chattel mortgage covering the goods involved in the controversy, defendant was estopped to claim ownership thereof under a prior bill of sale from plaintiff's vendor, evidence offered by defendant concerning a state of facts existing prior to plaintiff's purchase of the goods was properly excluded.1

Matters explanatory of facts in evidence are admissible to rebut the presumptions which might otherwise arise.2

Evidence as to facts not directly a part of the subject-matter of the action, which happened either a long time before or a long time after the transaction in question, are inadmissible, as being

too remote.3

97 Lowrey v. Missouri, K. & T. Ry. Co., 133 P. 719, 90 Kan. 180.

98 Where, in an action by a wife to cancel a lease made by her husband of land standing in her name, defendant claims that in fact the land belonged to the husband, and was put in the wife's name to defraud creditors, he may give evidence of judgments against the husband, and of a lease, signed by them and their daughter, of land standing in the daughter's name. Burtiss v. Lanyon Zinc Co., 75 P. 1030, 68 Kan. 827.

99 Sovereign Camp, Woodmen of the World, v. Welch, 83 P. 547, 16 Okl. 188. 1 Ridenour-Baker Grocery Co. v. Perkins, 61 P. 459, 9 Kan. App. 835.

2 In a factory employé's action for injuries, subpoenas issued by plaintiff for witnesses who were present when the employé was hurt, but who failed to appear and testify at the trial, were properly admitted in evidence. Curtis & Gartside v. Pribyl, 38 Okl. 511, 134 P. 71, 49 L. R. A. (N. S.) 471.

Where the bona fides of the vendor was attacked, and it appeared that the vendor told the buyer that he sold because he had had trouble with a girl, it was error to refuse to permit the question what kind of trouble he said he had had. Schuster, Tootle & Co. v. Stout & Wingert, 2 P. 642, 30 Kan. 529.

Evidence of the manner in which engines were inspected two years before the fire, to recover damages for which the action is brought, is not admissible as bearing on the inspection of the locomotive which set the fire. Atchison, T. & S. F. R. Co. v. Briggs, 43 P. 289, 2 Kan. App. 154.

In an action for damages, caused by the laying of a railroad track through an alley to lots abutting, statements of the value of said lots, made by the

Evidence of facts which are relevant to facts in issue and explains facts in issue and relevant facts, and which support or rebut inferences from such facts, is admissible.+

To recover on an account stated, the plaintiff must declare on an account stated, and if he proceeds upon original cause of action, the rules of evidence governing actions on account stated will not apply.

Where the form of the question discloses that the answer would not prove any issue, an objection to the question should be sustained."

Under a general denial the defendant is entitled to introduce any evidence which controverts any fact the plaintiff must prove to establish his case."

Technical abstract phrases defining the rules for the admissibility of evidence will not be applied to hinder and delay justice.

§ 967. Materiality

A fact from which the question in issue may be determined is material.

party whose administrator brings the action, may ordinarily be introduced in evidence by the opposite party; but where such statements are either made a long time before or a long time after the laying of said track, and the values of property in that locality have been fluctuating, they may be rejected. Central Branch U. P. R. Co. v. Andrews, 14 P. 509, 37 Kan. 162, judgment reversed 16 P. 338, 37 Kan. 641.

4 Kaufman v. Christy, 148 P. 617, 95 Kan. 554.

In an action against a sheriff for levy, on the property of a wife, of an attachment against her husband, it is not error to permit proof that the sheriff. required plaintiff to indemnify him against loss and afterwards sold the property. Sale v. Shipp, 58 Okl. 598, 160 P. 502.

In a bank's action on a note, wherein defendant claimed the right to offset the balance remaining in a special escrow account, held, that checks drawn on such account by the cashier, distributing a portion thereof to himself and others, were admissible as showing the amount in the account when the checks were drawn. First State Bank of Indiahoma v. Menasco, 55 Okl. 748, 155 P. 261.

5 Oklahoma Hay & Grain Co. v. T. D. Randall & Co. (Okl.) 168 P. 1012. 6 Turner v. Maxey, 45 Okl. 125, 144 P. 1064.

Turnbaugh v. Husselton (Okl.) 180 P. 368.

8 Rogers v. O. K. Bus & Baggage Co., 46 Okl. 289, 148 P. 837, Ann. Cas. 1917B, 581.

9 In an action on an accident policy, where total inability to work for 52 weeks was alleged, plaintiff's testimony as to continued pain and resulting operations, and that at the end of the period of indemnity his arm had not

Where a town ordinance, requiring brokers to procure a license, was primarily to raise revenue, its exclusion, in an action by a broker for compensation, is not error.10

Evidence of the execution, delivery, and loss of a deed which would supply a missing link in a chain of title in a suit to quiet title, together with evidence of long peaceable possession without adverse claim and payment of taxes, is admissible on the question whether the lost deed ever existed.11

In an action on a life policy evidence that insured was intoxicated at the time of his death is inadmissible to show that he had falsely represented in his application that he had not been intoxicated during five years previous thereto.12

Representations made in the insurance application do not exclude proof that statements made in the application were wilfully false, fraudulent, or misleading by the introduction of the application, even where the policy contains no reference thereto.13

On the issue of fraud any evidence competent by other rules of law and which tends to prove or disprove the issue is admissible.14

recovered so as to be of use, was competent. Continental Casualty Co. v. Wynne, 129 P. 16, 36 Okl. 325.

A letter written by an adjuster more than 60 days after a fire, and tending to prove denial of liability within the 60 days allowed for making proof of loss, held admissible for the purpose of corroboration only. Continental Ins. Co. v. Chance, 48 Okl. 324, 150 P. 114.

Where A. brought suit in replevin to recover chattels seized in attachment against the property of B., and defendants in the replevin action attempted to justify under the writ on the ground that B. had transferred the property to A. to defraud his creditors, evidence tending to show that A. was without any means of her own, prior to such transfer, and that she exchanged real estate which had been given her by B. for the property involved in the replevin action, and that B. was insolvent at the time of such transfer and gift, is proper. Marrinan v. Knight, 54 P. 656, 7 Okl. 419.

In an action on a fire policy containing a three-fourths clause and providing that the insurer should not be liable beyond the actual cash value, it was not error to permit a witness to testify that the cotton destroyed was worth $2 per hundred at the time of loss, and to state on cross-examination that in his judgment it would have brought that amount net after it had been ginned. Scottish Union & National Ins. Co. v. Moore Mill & Gin Co., 143 P. 12, 43 Okl. 370.

10 Campbell v. Thomas, 56 Okl. 779, 156 P. 647.

11 Adkins v. Wright, 131 P. 686, 37 Okl. 771.

12 Mutual Life Ins. Co. v. Johnson, 64 Okl. 222, 166 P. 1074.

13 Continental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084.

14 Hooker v. Wilson (Okl.) 169 P. 1097; Hankins v. Farmers' & Merchants' Bank, 141 P. 272, 42 Okl. 330.

In action for fraud inducing purchase of corporate stock, evidence of state