Where witnesses as to the value of property use the words "fair value" as synonymous with "market value" or "real value," the evidence is not incompetent.37

Evidence of the market value of property in the nearest market, with the usual cost of marketing it, is competent to show the value of the property.38

Where a shipping contract provides that in case of loss or damage to goods the amount shall be computed at their value at place of shipment, the admission of evidence as to their value at the place of destination is not proper.39

Where the evidence does not give the market value and the witness is not qualified, or shown to be qualified it should be rejected.1o Evidence of the original cost may be considered in determining the value in some instances.4 41

In an action for breach of warranty, the price is evidence of the value of the property.*2

42

same tract and sold it for a much larger sum, which he retained, was error. Swanson v. Peel, 60 Okl. 124, 158 P. 564.

37 Ft. Scott, W. & W. Ry. Co. v. Jones, 28 P. 978, 48 Kan. 51.

38 Le Roy & W. Ry. Co. v. Butts, 19 P. 625, 40 Kan. 159.

In determining the amount of recovery in an action for triple damages under Gen. St. c. 113, it is not error to receive testimony of the market value of the wood cut and carried away at the place where the trees stood; and, if it had no market value there, then proof of such value at the nearest point where a market existed may be offered. Arn v. Mathews, 18 P. 65, 39 Kan. 272.

The market price of stock cattle at Garden City is largely governed by the price at Kansas City, less the freight, and, in an action to recover damages for failure to purchase and receive such cattle at Garden City, it is competent to show their market price at Garden City at such time; the rule being that the best evidence of which a case is susceptible should be produced. Evans v. Moseley, 114 P. 374, 84 Kan. 322, 50 L. R. A. (N. S.) 889.

39 St. Louis & S. F. R. Co. v. First Nat. Bank (Okl.) 171 P. 467.

40 Midland Valley R. Co. v. Ezell, 129 P. 734, 36 Okl. 517.

41 In an action for the value of a building destroyed by fire, evidence as to the cost of rebuilding is not competent without evidence showing the original cost and the depreciation from age and use. Chicago, R. I. & P. Ry. Co. v. Galvin, 59 Okl. 258, 158 P. 1153, L. R. A. 1917A, 365.

In an action to recover the value of fixtures wrongfully removed by a tenant, it is not error to admit evidence of the original cost to be considered in determining the value at the time of the removal. Kilgore v. Lyle, 30 Okl. 596, 120 P. 626.

42 Gutenberg Mach. Co. v. Husonian Pub. Co., 54 Okl. 369, 154 P. 346.

In an action for price and to enforce a vendor's lien, evidence of the value of the land at the time of purchase is admissible.13

Evidence of the probable yield under proper cultivation and of the value of such yield, when ready for sale, and the probable cost. of maturing and gathering the crop and transporting it to market, may be considered in determining the value of a growing crop.** In an action for injuries to fruit trees upon plaintiff's land by fire started by a locomotive, evidence of the value of the trees while growing on the land is competent to show the amount of damage. 45

Where property sought to be delivered is not the same as should be delivered, evidence as to the difference in value is admissible.*" When the question is the value of the use and occupation of property, the rental price during the time may be shown to help in determining the value of the use."7

Evidence of the value of time and reasonableness of expenses in pursuit of property is necessary in order to recover therefor. 48

43 Whitehead v. Jefferson, 51 Okl. 42, 151 P. 681. 44 De Arman v. Oglesby, 49 Okl. 118, 152 P. 356.

To determine the value of a growing crop, its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and the expense of such cultivation, as well as the cost of its preparation and transportation to market, may be shown. Chicago, R. I. & P. Ry. Co. v. Johnson, 107 P. 662, 25 Okl. 760, 27 L. R. A. (N. S.) 879.

45 Chicago, R. I. & P. Ry. Co. v. Swinney, 60 Okl. 115, 159 P. 484.

46 Plaintiff claimed to have delivered to defendant for storage old corn of a certain grade, under an agreement that corn of the same quality should be returned, and that the corn returned was new corn, from the succeeding crop. Held, that evidence of the value of old corn, and the difference in value between old corn and new, was admissible. Kansas Elevator Co. v. Harris, 49 P. 674, 6 Kan. App. 89.

47 Where a party has obligated himself to pay another the value of the use and occupation of certain real property during a particular period, it is not reversible error to permit the plaintiff to show what the property actually rented for during such period. Such proof is not controlling as to the rental value, but is proper to be considered by the jury, under proper instructions by the court, in determining the reasonable value of the use and occupation of the property. Richardson v. Penny, 61 P. 584, 10 Okl. 32.

48 Fitch v. Green, 39 Okl. 18, 134 P. 34; Rev. Laws 1910, § 2875.

In an action by a passenger for wrongful ejection from a train, plaintiff's loss of time cannot be considered in assessing his damages, in the absence of evidence as to the value of his time. Chicago, R. I. & P. Ry. Co. v. Newburn, 110 P. 1065, 27 Okl. 9, 50 L. R. A. (N. S.) 432.

§ 969. Reasonable compensation

In action for reasonable compensation for services under a contract to buy property the jury may consider testimony of competent witnesses as to the nature of the transaction and the character of services.49

§ 970. Damages

Negligence may be established by proof of other facts and circumstances and the causal connection between the evidence alleged and the injuries received by proof of such facts as logically create the inference that the negligence contributed to the injury; 50 likewise, by the proof of such facts as would create the inference of the lack of negligence, a defense may be established.51 The evidence must have some material bearing on the issues involved.52

In an action for exemplary damages, evidence of the financial condition of the defendant is competent to enable the jury to determine the amount of such exemplary damages.53

49 McEwen v. Vollentine (Okl.) 170 P. 490.

50 Ferris v. Shandy (Okl.) 174 P. 1060.

Evidence of setting of other fires by other locomotives is admissible, where they are practically identical in construction. Missouri, O. & G. Ry. Co. v. Gentry, 122 P. 537, 31 Okl. 579.

51 In a suit against a railroad for negligently injuring an animal, where the proof shows it to have been injured by becoming entangled in a wire fence in the course of construction along defendant's right of way, it was error to exclude evidence that the fence at the time was being constructed by an independent contractor. Missouri, K. & O. R. Co. v. Ferguson, 96 P. 755, 21 Okl. 266.

In an action for damages to an automobile, due to a defective railroad crossing, evidence that there was another safe crossing by which plaintiff could have crossed the tracks without inconvenient interruption to his journey was improperly excluded. Ft. Smith & W. R. Co. v. Seran, 44 Okl. 169, 143 P. 1141, L. K. A. 1915C, 813.

Evidence that other stock had gone over the defendant railroad company's cattle guards was not competent to establish the insufficiency of the cattle guard, in the absence of evidence tending to show the size, length, depth, and construction of the guards. Midland Valley R. Co. v. Bryant, 131 P. 678, 37 Okl. 206.

52 Evidence of a statement by the engineer in response to a question by the conductor after the accident that he was looking back and did not see the wagon until he struck it at the crossing, held immaterial. Missouri, O. & G. Ry. Co. v. Adams, 52 Okl. 557, 153 P. 200.

53 Smith v. Autry (Okl.) 169 P. 623.

In action against constable for a forcible and malicious levy, it was proper

In an action for assault the defendant may be examined as to his financial condition, for the purpose of assessing exemplary damages.54

In an action for slander, alleging that defendant had said that plaintiff was a thief, evidence of dishonest acts of plaintiff is admissible in mitigation of damages, though not a justification.55

Where it is first shown that the premises are in substantially the same condition as at the time of the injury, the condition at a subsequent time may be shown.56

Evidence of the condition of the place a reasonable time before the injury is admissible, as tending to show its condition at the time of the injury, especially where it appears that those conditions have not changed."

Evidence that defendant's factory had been inspected by the state factory inspector, though not conclusive, is admissible as tending to acquit the defendant of negligence resulting in injury to his servant.58

In an action for the nondelivery of a message containing an offer to make a contract, evidence that if the message had been delivered, the offer would have been accepted, is competent.59

to inquire into his financial condition, so that the finding as to punitive damages might be intelligently made. Townsend v. Seefeld, 102 Kan. 302, 169 P. 1157.

54 Willet v. Johnson, 76 P. 174, 13 Okl. 563.

55 Vorhees v. Toney, 122 P. 552, 32 Okl. 570.

56 Evidence of the condition, three weeks after the accident, of the platform from which a brakeman was alleged to have fallen held admissible, where it appeared that no change had been made therein, except the usual wear due to the elements. St. Louis & S. F. Ry. Co. v. Clampitt, 55 Okl. 686, 154 P. 40. It is not error to refuse to permit a witness to testify as to the condition at the scene of an accident several hours after it occurred, where the alleged defect in the instrumentality complained of was such that its correction could have been effected in a few minutes, and when no attempt is made to show that no changes had been made since the accident. Hicks v. Davis, 32 Okl. 195, 120 P. 260.

Admission of evidence of the condition of a crossing eight or nine weeks after an accident, without evidence that it was in substantially the same condition at the time of the accident, held error. St. Louis & S. F. R. Co. v. Hart, 45 Okl. 659, 146 P. 436.

57 Great Western Coal & Coke Co. v. Cunningham, 143 P. 26, 43 Okl. 417. 58 Burk v. Hobart Mill & Elevator Co., 48 Okl. 470, 150 P. 458.

59 Western Union Telegraph Co. v. Sights, 126 P. 234, 34 Okl. 461, 42 L. R. A. (N. S.) 419, Ann. Cas. 1914C, 204.

In a servant's action for master's breach of a common-law duty, evidence of acts amounting to negligence may be shown, although such acts may also show a violation of a statute enacted for the benefit of the public generally, and not for a class of persons to whom the servant belongs."

60

Evidence admissible for a specific purpose only must be limited to that alone.61

Evidence of the relations of the parties may be introduced to show motives."

62

In an action for a wrongful levy, evidence showing good or bad faith is proper.63

In an action by a landlord after his tenant's breach of the lease to recover for rent for the time the building was unoccupied after the tenant's abandonment, evidence as to the landlord's intention in taking possession and reletting the property after the expiration of the lease is admissible."

60 Slick Oil Co. v. Coffey (Okl.) 177 P. 915.

61 In trespass for wrongful eviction, evidence that plaintiff's mother, who lived with him, took cold from exposure, from which she died two weeks later, was inadmissible to increase either actual or exemplary damages, and could only be received to show that defendants chose an unduly cold and disagreeable day for the eviction. Sanders v. Cline, 101 P. 267, 22 Okl. 154.

In an action for breach of marriage promise, any evidence tending to disclose actual relation of the parties is admissible. Baumle v. Verde, 124 P. 1083, 33 Okl. 243, 41 L. R. A. (N. S.) 840, Ann. Cas. 1914B, 317.

In an action against a railway for failing to water cattle before dipping them, though plaintiff contends that the contract for dipping was an independent oral contract, exclusion of the shipping contract set up as a defense is error. Missouri, K. & T. Ry. Co. v. Skinner, 61 Okl. 189, 160 P. 875.

62 Evidence of the previous relations of the parties, which led up to the transaction causing the prosecution to be instituted, is admissible, if it tends to show the motives of the parties. Allison v. Bryan, 50 Okl. 677, 151 P. 610. 63 Defendant, a sheriff, sold under attachment goods which plaintiff claimed to have bought of the debtor, and to have paid for with certain negotiable notes executed to the debtors. The notes were alleged to have been delivered to persons who indorsed for the debtors as collateral security. Held, in an action for damages for such seizure, that defendant might have shown whether the notes were paid, and when and by whom paid, as those facts bore on the question of the good faith of the alleged sale to plaintiff. De Ford v. Orvis, 21 P. 1105, 42 Kan. 302.

64 Higgins v. Street, 92 P. 153, 19 Okl. 45, 13 L. R. A. (N. S.) 398, 14 Ann. Cas. 1086.

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