In action by bank to recover an overdraft, entries in books of the bank, made in regular course of business, are competent.32

A book which contains but one entry made by the party producing it, and that simply and solely a memorandum of the transaction testified to by said witness, is inadmissible.33

In an action to recover usury paid, the exclusion of evidence of a statement of plaintiff's account at a bank is not error, where the bank was not a party to the suit, had no interest in the controversy, and such statement could not be binding upon defendant.31 § 1016. Memoranda

Memoranda prepared by a witness at the request of a party, who is unable to prepare it himself, are as admissible as if they had been prepared by the party; the circumstances being fully explained to the jury.35

Written computations, based on matters not contained in the records from which the computation is made, are not admissible.30 § 1017. Letters

Declarations of a husband, included in letters written by him while he was in possession of the land jointly deeded to himself and wife, may be admissible in evidence, when explanatory of the possession and the rights claimed in the land, though it is not clearly shown whether the letters were received by the one to whom they were addressed.37

Where the contents of a letter written by a party to the action to a third party and of a letter of the third party to him are each entirely irrelevant to any issue in the case on trial except that they tend to prove that the party to the suit was negotiating a trade which was afterwards consummated, the letters are competent for that purpose.

38

32 Severy State Bank v. Gragg, 158 P. 41, 98 Kan. 318.

33 Metzger v. Burnett, 48 P. 599, 5 Kan. App. 374.

34 Gault v. Thurmond, 136 P. 742, 39 Okl. 673.

35 Dighera v. Wheat, 116 P. 616, 85 Kan. 458.

36 Kelley v. Stevens, 50 P. 595, 58 Kan. 569.

37 Hubbard v. Cheney, 91 P. 793, 76 Kan. 222, 123 Am. St. Rep. 129. 38 Gulliford v. McQuillen, 89 P. 927, 75 Kan. 454,

(922)

§ 1018. Maps and photographs

In an action against a railroad company for appropriating plaintiff's land, the admission of a map of the locus in quo, made by the county surveyor from actual measurements, is not error, especially where the jury viewed the premises.3

39

Accuracy of photographs must be shown by extrinsic evidence as to faithful representation of place as it existed at time involved.1o Where photographs are proven to be true representations of whatever they purport to reproduce, they are admissible to aid the jury to understand the evidence.11

The weight to be given photographs of premises is not of conclusive effect, but depends upon the skill, accuracy, and manner in which they were taken.*

42

Photographs intended to illustrate hypothetical situations are incompetent.43

Before X-ray plates are admissible in evidence, they must be identified and their accuracy established.**

39 Chicago, K. & N. Ry. Co. v. Davidson, 31 P. 131, 49 Kan. 589.

40 Colonial Refining Co. v. Lathrop, 64 Okl. 47, 166 P. 747, L. R. A. 1917F, $90.

41 Smith v. Territory, 69 P. 805, 11 Okl. 669.

Photographs duly verified are admissible in evidence as to the situation of objects or premises relevant to the issue. St. Louis & S. F. R. Co. v. Dale, 128 P. 137, 36 Okl. 114. That photographs were taken one or two years after dates of the respective injuries does not render them incompetent, where offered to show the topography of the country and other permanent conditions. Id. Photographs purporting to be of the bank in a shale pit where the injury occurred, identified by the photographer, were properly admitted in evidence. Griffin v. Fredonia Brick Co., 133 P. 574, 90 Kan. 375.

In a passenger's action for injuries from a train wreck, photographs of the wreck taken on the day of the accident while the conditions remained unchanged were properly admitted in evidence. St. Louis & S. F. Ry. Co. v. Nichols, 136 P. 159, 39 Okl. 522.

Admission in evidence of a photograph of the land, the value of which was in controversy, held not an abuse of discretion. Hamilton v. Atchison, T. & S. F. Ry. Co., 148 P. 648, 95 Kan. 353.

On an issue of paternity, a photograph of the deceased putative father, proven to be a good likeness of him, was admissible for the purpose of comparison with the child in court. Shorten v. Judd, 42 P. 337, 56 Kan. 43, 54 Am. St. Rep. 587.

42 St. Louis & S. F. R. Co. v. Dale, 128 P. 137, 36 Okl. 114.

43 Colonial Refining Co. v. Lathrop, 64 Okl. 47, 166 P. 747, L. R. A. 1917F, 890.

44 Bartlesville Zinc Co. v. Fisher, 60 Okl. 139, 159 P. 476.

The use of an X-ray photograph of a child's breast to illustrate the witness'

§ 1019. Identification and authenticity

In an action on a promissory note, a document purporting to be a typewritten transcript of the testimony of a witness given at former trial of the cause is not admissible, without same being properly authenticated.45

An original marriage license, issued in another state, identified by a witness who knows of the fact, is not inadmissible because produced by one who is not its legal custodian and does not account for his possession.**

Testimony of a witness that he saw an instrument signed will authorize its introduction in evidence over the objection that it had not been identified.47

A deed regular upon its face purporting to be a valid conveyance for a sufficient consideration and which is duly acknowledged and recorded by the force of the statute is admissible without further proof of execution.48

In an action of conversion, passbooks of several banks without identification by the party making the entries are admissible to show defendant's possession.49

On a petition for divorce for adultery, the admission of a page

criticism of an X-ray photograph of an adult held not error. Boddington v. Kansas City, 148 P. 252, 95 Kan. 189.

45 Kuykendall v. Caldwell (Okl.) 179 P. 463. Rev. Laws 1910, § 1792.

46 State v. Pendleton, 72 P. 527, 67 Kan. 180.

47 Crowder State Bank v. American Powder Mills, 46 Okl. 105, 148 P. 698. 48 Brockman v. Rees (Okl.) 173 P. 525.

Under the statute providing that written instruments affecting real estate which are duly acknowledged or proved and certified may be read in evidence without further proof, a mortgage was properly admitted in evidence without proof of its execution. Stout v. Crosby, 63 P. 661, 10 Kan. App. 580.

Under Gen. St. 1909, § 1685, providing that when any instrument of writing shall have been on record with the register of deeds for 10 years, and such instrument is not acknowledged, it shall thereafter be valid as though it had been duly acknowledged in the first instance, and the instrument or record thereof or a duly authenticated copy thereof shall be received in evidence without requiring the original to be produced or accounted for, the record of an instrument purporting to be a receiver's final receipt which has been of record in the office of the register of deeds for 10 years may be read as evidence of title in ejectment, though the instrument lacks an acknowledgment, and though the original is not accounted for. Van Hall v. Rea, 118 P. 693, 85 Kan. 675.

49 Manning v. Maytubby, 141 P. 781, 42 Okl. 414.

from a hotel register, inscribed "S. and wife, Room 50," is not permissible, unless identified as that used on the date mentioned, or shown to be in the same condition as on that date.50

A lithographic receipt, providing on its face that to be valid it must be countersigned by an authorized agent, not so countersigned, is not admissible until a due and valid execution thereof or its genuineness have been established.51

An instrument purporting to be a lease executed by the guardian of a minor Indian, but not shown to have been executed on an order of court, is not admissible.52

A circular purporting to be put out by a certain railroad company as an advertisement of its route, and containing a map of its route, leased lines, and connections, and a list of its agents, but not shown to have been issued by such company, is not admissible for purpose of showing the company was the lessee of a certain railroad.53

A contract executed by the president and cashier of a national bank, sealed with the bank's seal, and relating to the regular business of the bank, is prima facie evidence that it was executed with authority, and is admissible without proof of the officers' authority to execute it.54

Where the defendant in a case has testified, and the plaintiff, who had previously taken defendant's deposition, introduces and reads a portion of the same relating to a certain transaction with a view of contradicting the testimony given by defendant on the trial, it is not error for the court to permit defendant to read other parts of the deposition which related to the same subject or transaction.55 The law concerning ancient records relates to their admission as evidence rather than to their construction after being admitted, and cannot be made to apply to tax proceedings placed in evidence,

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

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

52 Fisher v. McKeemie, 143 P. 850, 43 Okl. 577, Ann. Cas. 1917C, 1039.

53 Atchison, T. & S. F. R. Co. Cruzen, 3 P. 520, 31 Kan. 718.

54 National Bank of Commerce v. Atchison, 54 P. 8, 8 Kan. App. 30.

The authority of officers of a railroad company to execute a note having been put in issue by the sworn answer of the company, some preliminary proof of their authority should have been given before the note was read in evidence. St. Louis, F. S. & W. R. Co. v. Tiernan, 15 P. 544, 37 Kan. 606.

55 Storch v. Harvey, 25 P. 220, 45 Kan. 39.

and the rules of construction applicable to them are the same as those applying to other instruments and statutory provisions.5 When the execution of a written instrument is denied under oath, before a witness can be permitted to testify to the genuineness of the signature thereto it must be shown: First, that the witness was present and saw the instrument executed; or, second, that he is acquainted with the writing or signature of the party; or, third, that such witness is competent to testify as an expert by a comparison of the disputed signature with other writings or signatures admitted or proven to be genuine.57

Entries in books of account may be admitted when shown by person who made them to be correct and made at or near time of transaction, or on proof of handwriting of person who made them in case of death or absence from county, or on proof they were made in usual course of business.58

56 Salter v. Corbett, 102 P. 452, 80 Kan. 327.

57 Archer v. United States, 60 P. 268, 9 Okl. 569.

In an action on a life insurance policy, an application purporting to be signed by insured by mark held properly excluded from evidence, where the person signing the application as "witness" testified that he did not sign the insured's name, nor witness her mark, nor see any one sign her name, especially where insured was an educated woman who always signed her name in *full Eminent Household of Columbian Woodmen v. Prater, 133 P. 48, 37

Okl. 568.

Where a memorandum of sales was made by each salesman, and each day, in the usual course of business, credit entered by the bookkeeper in a daybook, which was a book of original entry, held, that such daybook was admissible in evidence upon the bookkeeper's testimony alone, under Rev. Laws 1910, § 5114, Navarre v. Honea, 139 P. 310, 41 Okl. 480.

58 Seneca Co. v. Doss, 59 Okl. 149, 158 P. 575; St. Louis & S. F. R. Co. v. Zickafoose, 39 Okl. 302, 135 P. 406; Muskogee Electric Traction Co. v. McIntire, 133 P. 213, 37 Okl. 684, L. R. A. 1916C, 351; Jackson v. Moore, 39 Okl. 234, 134 P. 1114; Blackert v. Lankford (Okl.) 176 P. 532; St. Louis & S. F. R. Co. v. Thirlwell, 88 Kan. 275, 128 P. 199; Missouri, K. & T. Ry. Co. v. Walker, 113 P. 907, 27 Okl. 849.

Entries in a book made in the ordinary course of business at or near the time of the transaction to which relating, when sworn to be correct by the person making them, are admissible, but when not verified by the person who made them, and it is not shown that he is dead or absent from the county, they are inadmissible. Missouri, K. & T. Ry. Co. v. Davis, 104 P. 34, 24 Okl. 677, 24 L. R. A. (N. S.) 866.

A book of the bank on which a check was drawn, containing a list of depositors, is admissible, on identification by the cashier, to show that defendant was not a depositor, without further proof that it is correct. State v. McCormick, 46 P. 777, 57 Kan. 440, 57 Am. St. Rep. 341,