Where anything appears upon the face of a negotiable instrument which suggests a doubt or ambiguity as to the party bound, or the character in which any of the persons who signed the instrument acted, parol testimony is admissible as between the original parties for the purpose of showing the true intent and meaning of the parties. But a signer of a note who describes himself therein merely as a director or trustee or agent for a person or corporation cannot, in the absence of anything in the body of the note to show that it is the obligation of his principal, show, by parol, that he signed merely as agent.84

83

83 Janes v. Citizens' Bank of North Enid, 60 P. 290, 9 Okl. 546. Parol testimony is admissible to show that one who signed a note, adding "Sec'y Enid Town Co." to his name, signed the note in his official capacity as secretary, and that it was understood between the parties at the time that he was to bind the corporation, and not himself individually. Id.

"Jan.

Where a promissory note is signed by individuals with a representative description it is not error to admit parol evidence that the intention of the parties was to obligate themselves personally to its payment. Wiers v. Treese, 117 P. 182, 27 Okl. 774. In an action brought on the following note: 1st, 1904, after date, the G. Co. promise to pay S. or bearer, forty dollars, at the T. Bank. Value received with interest at 10 per cent. per annum. No. 3, due Jan. 1st, 1904, M. A. Wiers, Pres. of Company; W. A. Moore, Sec."—it was not error to admit evidence that the signers executed it with the intention of personally obligating themselves to pay it, and that it was not intended by the parties to be an obligation of the G. Co. Id.

A note made by an association in the name of the association by A., president, B., as secretary, and C. as treasurer in favor of a bank was thereafter renewed by another note of the association signed by A., president, B., secretary, and C., and the bank, after maturity, sued the association and C. as an individual, and he pleaded that it was the intent of all parties that he should sign as treasurer only, but through mistake he omitted after his name the words, "as treasurer." Held that, by way of equitable defense, such mutual mistake might be proven by parol evidence. Farmers' & Merchants' Nat. Bank v. Hoyt, 120 P. 264, 29 Okl. 772.

Where a bond is signed, "H. H. Gardner, Cashier," the word "Cashier" is prima facie descriptive only, and extrinsic evidence is admissible to show how the word was understood, as determining the character in which he contracted. Gardner v. Cooper, 58 P. 230, 9 Kan. App. 587, judgment affirmed on rehearing 60 P. 540, 9 Kan. App. 587.

84 Keokuk Falls Imp. Co. v. Kingsland & Douglas Mfg. Co., 47 P. 484, 5 Okl. 32.

Where a number of persons signed a note in their individual names and nothing appears to show that they executed it in a representative capacity, in a suit on the note it was error to admit evidence that they executed it as directors of a corporation. Weagant v. Camden, 132 P. 487, 37 Okl. 50S.

Where, in an action on a written instrument, there is anything on its face

Parol evidence is competent, as between the original parties to a written instrument, to show whether the signers executed it in a representative or individual capacity, and to show the parties bound. 85

In invoking an equitable defense, where a written instrument by mistake does not express the intent of the parties, parol evidence is admissible; but a deed cannot be impeached by the grantor's testimony as to his intention.$7

86

Oral testimony may be introduced to show that a written instrument was executed for a purpose wholly different from that alleged in the petition.88

Evidence of purposes for which a note was given may be shown without violating rule that oral evidence is inadmissible to vary or contradict terms of a written contract.8

89

§ 1039. Evidence showing performance or discharge

The purpose and effect of evidence of an executed parol agreement to annul a written contract is not to vary the terms of such written contract, but to show that by mutual consent it was re

which suggests a doubt as to the party bound, or as to the character in which the signers acted, parol evidence is admissible, between the original parties, to show their true intent in executing the instrument. Cohee v. Turner & Wiggins, 132 P. 1082, 37 Okl. 778.

An agent may prove by parol evidence that his principal was the real party in interest in a written contract made in the name of the agent. Schmucker V. Higgins-Roberts Grain Co., 116 P. 184, 28 Okl. 721.

85 W. C. Dean Jewelry Co. v. Storm, 64 Okl. 234, 166 P. 1046.

A note held so ambiguous as to authorize admission of parol evidence to show that the directors and president of a corporation signed with intention to bind themselves as individuals. Denman v. Brennamen, 48 Okl. 566, 149 P. 1105, L. R. A. 1915E, 1047; Kenner v. Decatur County Rochdale Co-Op. Ass'n, 123 P. 739, 87 Kan. 293.

6 Farmers' & Merchants' Nat. Bank v. Hoyt, 120 P. 264, 29 Okl. 772.

87 Miller v. Miller, 136 P. 953, 91 Kan. 1, L. R. A. 1915A, 671, Ann. Cas. 1917A, 918.

88 Humphrey v. Timken Carriage Co., 75 P. 528, 12 Okl. 413.

89 First Nat. Bank of Garden City v. Stroup (Kan.) 177 P. 836. In an action against a decedent's estate on a note, parol evidence is admissible to show that the note executed by decedent to plaintiff, her father, and made payable on demand, was in fact executed by the daughter and received by plaintiff as a mere receipt or memorandum of an advancement, and that a mutual understanding was had at the time of its execution and delivery that payment thereof would never be demanded or enforced. Brook v. Latimer, 24 P. 946, 44 Kan. 431, 21 Am. St. Rep. 292, 11 L. R. A. 805.

scinded or annulled; " but a written contract cannot be altered to abrogation by a subsequent unexecuted parol agreement.91

Testimony showing a waiver of performance of a written contract is admissible, 92 except where the contract forbids waiver of its provisions, except in writing.

93

DIVISION VI.-OPINION EVIDENCE

Subdivision I.-Nonexpert Testimony

§ 1040. Conclusions and opinions in general

94

Opinion evidence may be received, where it is the best that can be had, or where the circumstances cannot be reproduced or described to the jury; but where the facts and circumstances can be adequately described to the jury, and their bearing on the issues can be estimated by all men without special knowledge, experience, or training, opinion evidence is inadmissible.

Where one of the parties to a cause is an attorney at law and testifies in his own behalf, he should not be allowed to give opinions and conclusions.""

Generally, a witness should not be permitted to state his opinions or conclusions from facts, whether such facts are known personally to him or brought to his notice by testimony of other witnesses, and the exceptions to such rule relate to questions of science, trade, and those of a similar nature.97

Opinions of well-informed bankers and business men as to financial reliability of persons of their community may be of some evi

90 Hart v. Frost (Okl.) 175 P. 257.

91 Maisen v. Cartwright, 144 P. 375, 43 Okl. 737.

92 Hull v. Allen, 113 P. 1050, 84 Kan. 207.

93 Home Ins. Co. of New York v. Ballard, 124 P. 316, 32 Okl. 723. 94 Missouri & K. Telephone Co. v. Vandevort, 72 P. 771, 67 Kan. 269. Witnesses not shown to be experts may nevertheless testify to facts, although such facts appear to be opinions or conclusions of facts, if the subject-matter to which their testimony relates cannot be reproduced or described to the jury as it appeared to the witnesses at the time of its occurrence, and such opinions are founded upon facts such as men in general are capable of compre hending and understanding. Atchison, T. & S. F. R. Co. v. Miller, 18 P. 486, 39 Kan. 419.

95 Hicks v. Davis, 32 Okl. 195, 120 P. 260.

96 Bilby v. Owen (Okl.) 181 P. 724.

97 Tefft v. Wilcox, 6 Kan. 46; Miller v. National Council of Knights and Ladies of Security, 103 Kan. 579, 175 P. 397.

In an action for commissions for selling land the purchaser cannot testify

dentiary value to the jury in determining the worth of such persons' notes as assets of a bank.98

Testimony by witnesses as to what they thought, at the time of a transaction which is material in the case is improper."

99

The ordinary presumption is that a witness who uses the expression "I think" means that his observation is indistinct or his recollection uncertain regarding the matter testified to, rather than that he is without personal information on the subject.1

It is not error to exclude any statement or answer which is merely a supposed conclusion of the witness drawn from a given state of facts. In other words witnesses must state facts, and not opin

ions.

who induced him to make the purchase, this being but a mere conclusion. Jenkins v. Beachy, 80 P. 947, 71 Kan. 857.

In an action for a broker's compensation, a question asked the purchaser held objectionable as calling for a conclusion as to the procuring cause of the sale. Schlegel v. Fuller, 48 Okl. 134, 149 P. 1118.

In an action against an executor to recover money due for nursing and care of deceased, the defense being that decedent made payment to plaintiff in his lifetime, released mortgages on her property, and transferred property to her; where defendant introduces testimony showing that decedent paid a mortgage on plaintiff's property with his personal check, it is error to allow plaintiff to answer a question of her counsel, "Now, whose money actually paid off that loan?" the answer being a mere conclusion. Moyer v. Knapp, 59 P. 674, 9 Kan. App. 226.

In an action for breach of contract, it is not error to refuse to allow defendants to ask a witness, who is also a defendant, whether he ever accepted a certain proposition, since the question calls for the mere conclusion of the witness. Cogshall v. Pittsburgh Roller Milling Co., 29 P. 591, 48 Kan. 480.

Notes.-A question whether there was "a sort of an understanding" that a note was to run another six months, or "any understanding as to whether" the note was to be allowed to run, held objectionable as calling for a mere conclusion of the witness. Carr v. Chapman, 139 P. 487, 91 Kan. 869.

Affirmative responses of a witness to leading questions as to whether he bought the note in suit for valuable consideration before maturity and without notice of defenses held properly stricken. Brice v. Hawk, 154 P. 273, 97 Kan. 82.

98 Bushey v. Coffman, 173 P. 341, 103 Kan. 209.

** McKnight v. Strasburger Bldg. Co., 150 P. 542, 96 Kan. 118.

1 Losey v. Atchison, T. & S. F. Ry. Co., 114 P. 198, 84 Kan. 224, 33 L. R. A. (N. S.) 414.

2 Chicago, R. I. & P. Ry. Co. v. Stibbs, 87 P. 293, 17 Okl. 97.

In an action for the price of gin machinery, where defendant pleads breach

3 Marshall v. Weir Plow Co., 45 P. 621, 4 Kan. App. 615.

Request that witness state fact as to a certain choice or election did not call for conclusions. Beckman v. Ash, 103 Kan. 437, 173 P. 920.

Witnesses whose competency has been shown may state the result of their actual knowledge and observation.*

Opinions of witnesses are inadmissible on questions which can be decided by the jury on the facts."

It is error to permit a witness who has heard the testimony of another witness upon another trial as to a matter in issue to give his opinion as to the truth of such matter derived from hearing. such testimony."

Witnesses should not ordinarily be permitted to testify to their impression from conversations, but should, as far as possible, be required to give the exact language used or its substance.î

of warranty, though defendant may show every fact which would support his claim that the machinery did not fulfill the warranty, he must show the same by facts, and not by the statement of mere conclusions. Bilby v. Thomas Gin Compress Co., 124 P. 1093, 33 Okl. 254. In an action for damages from fire caused by a locomotive, a question asked a witness whether anybody could not ride along there and throw a match down, was properly excluded as calling for a conclusion. St. Louis, I. M. & S. Ry. Co. v. Weldon, 39 Okl. 369, 135 P. 8. Testimony that a party to the action could not convey title to land, unaccom-panied by a statement of the facts upon which the assertion was based, was a mere conclusion. Jones v. Citizens' State Bank, 39 Okl. 393, 135 P. 373.

+ Where plaintiff, seeking damages for an interruption of the business of his skating rink, showed that he was in personal charge of the business, and knew its details, and what his receipts and expenses were, and had his bank books in court, he was qualified to testify directly as to amounts, and his summaries were not objectionable as conclusions. Mensing v. Wright, 119 P. 374, 86 Kan. 98.

5 Kansas Pac. R. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; Maris v. Lawrence Ry. & Light Co., 158 P. 6, 98 Kan. 205.

A witness who admits that he does not know the amount of certain checks should not be allowed to give his estimate. Haines v. Goodlander, 84 P. 986, 73 Kan. 183.

In an action for the price of gin machinery, where defendant pleaded breach of warranty, testimony of a witness that the machinery was exactly as represented was inadmissible as being a determination of the specific issues then on trial. Bilby v. Thomas Gin-Compress Co., 124 P. 1093, 33 Okl. 254.

In an action to recover commissions for the sale of a farm, the seller defended on the ground that another agent induced the purchase. The purchaser was asked as a witness who as agent induced him to enter into the negotiations.. Held, that an objection to the question was properly sustained. as calling for an inference by the witness from his own mental process and as not relating to an existing fact. Johnson v. Dysert, 79 P. 652, 70 Kan. 730. 6 Wright v. Wright, 50 P. 444, 58 Kan. 525.

7 Continental Ins. Co. v. Chance, 48 Okl. 324, 150 P. 114.