ELECTIONS. posite name of candidate of another political party must as to that office be rejected; there See Evidence, 217, 317; Intoxicating Liq- being a candidate for that office in party coluors, 32; Mandamus,, 74. III. ELECTION DISTRICTS OR PRE CINCTS AND OFFICERS. 53 (Cal.App.) Election officers cannot recover more than $10 for services at an election either from the county or the supervisors, under Pol. Code, § 1072, even though the precincts contained more than 200 voters in violation of Pol. Code, § 1127, and the work required four days and nights.-Jones v. Manning, 169 P. 912. VII. BALLOTS. 180(1) (Ariz.) Under Civ. Code 1913, pars. 2940, 2941, 2943, 2955, and in view of paragraph 2958, voter must express his choice substantially in manner provided by statute or his ballot cannot be considered.-Hunt v. Campbell, 169 P. 596. Ballots marked with word "Yes" at top of party column or with word "Yes" after name of candidate should not be counted for such candidate, not being marked with cross in square as required.-Id. a 180(2) (Ariz.) Under Civ. Code 1913, pars. 2929, 2940, 2941, 2943, ballot marked so that it was apparent voter intended to make cross should be considered as expressive of voter's choice, although cross was not perfect.Hunt v. Campbell, 169 P. 596. Where ballot was marked with intersecting lines which would have been in form of X had lines been prolonged, and there was the faintest intersection of lines, such ballot should be counted for the indicated candidate, showing an honest effort to mark cross.-Id. Ballots marked with vertical lines in voting squares or with diagonal lines where there was only one line and no showing of attempt to make cross should not be counted.-Id. Where ballot in voting square at top of party column was marked with cross, it will be count ed for indicated candidate, although lines of · cross extended somewhat below lower lines of square.-Id. Where crosses with which ballots were marked showing that voters were suffering from palsy or unsteady hands, but indicated an attempt to make proper cross, they should be counted for indicated candidate.-Id. Ballot marked with check mark in voting square instead of a cross cannot be counted. -Id. Ballot marked with figure 1 in voting square cannot be counted for candidate, particularly where elector made excellent crosses in other parts of ballot.-Id. Ballot marked with proper cross should be counted for indicated candidate, although elector made more lines than necessary.-Id. 180(4) (Ariz.) Under Civ. Code 1913, pars. 2932. 2940, 2941, 2943, ballots should not be counted for Republican candidate for Governor where voter had marked an X on Prohibition ticket, although there was no candidate for Governor on that ticket, and name of Republican candidate was nearest.-Hunt v. Camp bell, 169 P. 596. Ballot marked with cross in square opposite space left vacant beneath name of candidate, where voters could fill in names desired, should not be counted as vote for candidate.-Id. 180(5) (Ariz.) Under Civ. Code 1913, pars. 2940, 2941, 2959, 2979, ballot should be counted for party candidate for Governor where it was marked with X in party column, though separate crosses were marked in front of names of all other party candidates than that for Governor.-Hunt v. Campbell, 169 P. 596. Under Civ. Code 1913, pars. 2959, 2979, ballots marked with X in square at top of party column and also marked with X in square op umn marked.-Id. Where ballots were marked with X in square of one party column and an X in square at top of another party column, but one of parties so voted for had no candidate for Governor, ballots should be counted for other party candidate for that office.-Id. Ballots having cross in square at top of one party column, and which were marked with cross in square opposite name of candidate of another party for governor, may be counted for such candidate where party whose column was marked with an X submitted no candidate for that office.-Id. 181 (Ariz.) Under Civ. Code 1913, par. 2932, ballot in which name of candidate was written in cannot be counted for him, where square opposite place where name was written in was not marked with X.-Hunt v. Campbell, 169 P. 596. 194(1) (Ariz.) Under Civ. Code 1913, par. 2982, ballot should be rejected as bearing distinguishing mark where voter drew line from square for voting on initiative petition, and then wrote, "I vote Yes."-Hunt v. Campbell, 169 P. 596. 194(3) (Ariz.) Where voter wrote word "Yes" in voting square opposite candidate's name and over word marked cross, and it not appearing that he intended to place distinguishing mark on his ballot but merely wished to emphasize his choice, ballot should be counted. -Hunt v. Campbell, 169 P. 596. Where there was no evidence that voter who marked his ballot with cross and wrote in word "Yes" on dotted line after name of candidate intended to place distinguishing mark thereon, it appearing that he merely wished to emphasize his choice, ballot should be counted.-Id. 2982, ballot should be rejected where voter 194(8) (Ariz.) Under Civ. Code 1913, par. after making cross in democratic column wrote in word "Wilson" on line drawn in front of names of candidates for presidential electors.Hunt v. Campbell, 169 P. 596. VIII. CONDUCT OF ELECTION.. 198 (Ariz.) Where point was not raised uncials to be residents of precinct in which they til after election, statute requiring election offiact will be construed as directory.-Hunt v. Campbell, 169 P. 596. X. CONTESTS. 292 (Ariz.) Fraud is never presumed, but must be alleged; therefore party seeking to overcome prima facie case made by election returns on ground that certain ballots had been fraudulently changed and counted must_produce sufficient proof to establish charge.-Hunt v. Campbell, 169 P. 596. 293(5) (Ariz.) Where ballots of precinct were not preserved as required by law, and were certified by board of supervisors as missing, ballots found by county treasurer in his office, having been placed there by parties unknown, though purporting to be those of the precinct, cannot be considered.-Hunt v. Campbell, 169 P. 596. Where ballots are preserved in strict accordance with statutory requirements, they are admissible in evidence without further proof. -Id. 294 (Ariz.) Mere fact that ballots were found mutilated and altered will not warrant impeachment of official returns.-Hunt v. Campbell, 169 P. 596. 295(1) (Ariz.) Election fraud like any other fact may be proven by circumstantial evi dence, but quantum of proof must be sufficient to establish fraud.-Hunt v. Campbell, 169 P. 596. In election contest evidence held insufficient to show that election officials changed ballots from one candidate to another, and to warrant court in taking votes from contestant and giving them to contestee.-Id. EMBEZZLEMENT. 14 (Wash.) In determining whether rela tionship is an agency so as to support conviction for larceny by embezzlement, the duration, or scope of the agency, is not important.-State v. Campbell, 169 P. 968. One to whom note and mortgage were delivered for collection is an agent of the payee within the statute against larceny by embezzlement. 295(2) (Ariz.) Under Civ. Code 1913, pars. 3003, 3004, held, that returns of precinct can-Id. vassed by board of supervisors within time pre-23 (Wash.) Attempt of embezzler to repay scribed should not have been augmented by counting ballots, notwithstanding board had his principal does not bar or impede prosecution by the state.-State v. Campbell, 169 P. 968. previously improperly adjourned.-Hunt V. Campbell, 169 P. 596. 298(1) (Ariz.) In election contests courts will reject votes of entire precinct, and disfranchise whole of electors only when imperative public necessity requires, and it is impossible to compute wrong requiring rejection of some of ballots.-Hunt v. Campbell, 169 P. 596. Under Civ. Code 1913, pars. 2982, 2983, 2984, 2985, ballots should not be rejected in election contest, after having been counted by election officials, on theory of distinguishing marks, where officials made no notations as to marks, and it did not appear who placed marks thereor that they indicated knowledge as to voter.-Id. on, ~305(2) (Ariz.) Judgment in election contest case is appealable one.-Hunt v. Campbell, P. 596. 30 (N.M.) Under Code 1915, § 1543, indictment for embezzlement alleging ownership of property in "African Methodist Episcopal Church of Santa Fé" does not allege its capacity to own property, and is fatally defective.State v. Parsons, 169 P. 475. 44 (2) (Wash.) While on trial for larceny of money collected for the prosecuting witness and converted intention was a necessary ingredient, it was to be inferred from all the facts and circumstances.-State v. Hatupin, 169 P. 966. 44 (2) (Wash.) Intent to deprive owner of his note and mortgage is sufficiently shown by act of one with whom they were left for collection in selling them and converting the proceeds to his own use.-State v. Campbell 169 P. 968. 16944 (3) (Wash.) Though evidence showed receipt of $29 belonging to prosecuting witness, verdict of guilty of petit larceny held warranted where there was evidence that defendant claimed $5 as fee for making collection.-State v. Hatupin, 169 P. 966. 305(6) (Ariz.) Where rejection or retention of votes from particular precinct could not affect result of election, question whether such precinct should or should not have been counted need not be determined on appeal in election contest.-Hunt v. Campbell, 169 P. 596. Conditional assignments by contestee urging rejection of vote of certain precincts in case vote of other precinct was rejected should not be considered; question of rejection of such precinct not having been determined by appellate court, on ground that it would not affect result.-Id. 52 (Wash.) Fine of $300 and imprisonment for one year for larceny of $24 collected for prosecuting witness held within court's discretion, and not excessive.-State v. Hatupin, 169 P. 966. EMINENT DOMAIN. 87. See Taxation, I. NATURE, EXTENT, AND DELEGA-. 307 (Ariz.) As court cannot give judgment for costs in election contest unless authorized by statute, it is restricted to costs allowed by 2(1) (Cal.) Neither by Const. art. 12, § 23, Cig. Code 1913, par. 3069, allowing cost of in- nor St. 1913, p. 657, can the state subject prispection of ballots to be taxed.-Hunt v. Camp-vate property to public use or confer authoribell, 169 P. 596. ty upon Railroad Commission to assume conJudgment in election contest being appeala-trol of private pipe lines.-Producers' Transp. ble, costs of appeal may be allowed to successCo. v. Railroad Commission of California, 169 P. 59. ful party.-Id. ELECTRICITY. 2(1) (Cal.) Subjecting property of a pipe line company to the use of the public in the common carriage of oil constitutes a "taking" thereof and requires just compensation.-Associated Pipe Line Co. v. Railroad Commission of California, 169 P. 62. 19(5) (Kan.) In action for death of plaintiff's son, resulting from contact of loose wire with defendant's electric wire, a finding that defendant's wires were not maintained by proper insulation, held supported by the evidence.2 Storm v. Leavenworth Light, Heat & Power Co., 169 P. 556. Finding that loose wire had been in contact with wires of an electric light company so long that it ought to have been discovered before an accident, held not supported by evidence.-Id. St. 1913, p. 657, § 1, subsec. "d," and section declaring every individual association or corporation using, operating, owning, managing, or controlling any oil pipe line a common carrier, is void and unconstitutional, and in violation of Const. U. S. Amend. 14, as taking private property without compensation.-Id. ~47(1) (Wash.) Rem. Code 1915, § 6828, authorizing state land commissioners to grant 19(7) (Kan.) Whether company transmit-right of flooding state lands for power purposes, ting high voltage electricity along city streets etc., precludes condemning right to overflow on uninsulated wires ought to anticipate that state lands by one whose application to comloose wires, or other conductors, might come in missioners had been rejected, and right granted contact with its lines, so as to endanger per- to another, especially where both parties are sons on street, is a question of fact for court seeking to make same use of land.-State v. or jury trying_case.-Storm v. Leavenworth Superior Court for Mason County, 169 P. 994. Light, Heat & Power Co., 169 P. 556. II. COMPENSATION. (C) Measure and Amount. 19(13) (Kan.) Finding that defendant's wires would not have injured any one using the streets in ordinary way, or way reasonably to have been foreseen, held not to mean that throwing of loose wire across them could not have been anticipated in exercise of ordinary caution.-Storm v. Leavenworth Light, Heat & 148 (Wyo.) Under Const. art. 1. § 33, and Comp. St. 1910, §§ 3847-3849, 3854, held, in condemnation proceedings where award was not paid, interest should be allowed from filing of report of commissioners making award, and thereto, in view of section 3358, as to interest. III. PROCEEDINGS TO TAKE PROP- ENTRY, WRIT OF. See Ejectment. EQUALIZATION. See Taxation, ~450. EQUITABLE ASSIGNMENTS. 167(2) (N.M.) Code 1915, 88 5739-5743, providing for condemnation of right of way for acequia purposes, held unconstitutional.Janes v. West Puerto de Luna Community See Assignments, 48. Ditch, 169 P. 309. 243(1) (Wash.) A judgment in eminent domain proceeding is final and conclusive until reversed on appeal or vacated by the court granting it, in the manner provided by statute.Spokane Valley Power Co. v. Northern Pac. Ry. Co., 169 P. 991. Since procedure to set aside judgment for extrinsic fraud after one year from rendition is by separate suit, the court has no jurisdiction to entertain motion to set aside order of necessity, after one year from its date.-Id. 251 (Mont.) In railroad's proceedings io condemn land, right to appeal is purely statutory, and may be granted to or withheld from either party or both, in discretion of Legislature, if no constitutional provision is infringed. -Great Northern Ry. Co. v. Fiske, 169 P. 44. 253(2) (Mont.) In view of Rev. Codes. $$ 7342, 7343, 7346, and 7349, under section 7344, in railroad's proceedings to condemn strip of land, road could not appeal from portions of award it was dissatisfied with, but only from total assessment of damages made pursuant to section 7341.-Great Northern Ry. Co. v. Fiske, 169 P. 44. 257 (Kan.) Where landowners appealed from award of damages in condemnation and joined in one bond, binding them to pay all expenses of appeal, refusal of leave to amend by filing proper bonds, after motion to dismiss, held error.-Wood v. Syracuse School Dist. No. 1, Hamilton County, 169 P. 555. IV. REMEDIES OF OWNERS OF EQUITABLE ESTOPPEL. See Estoppel, 58. EQUITY. See Cancellation of Instruments; Creditors' Suit; Fraudulent Conveyances; Injunction; Judgment, 412-461; Marshaling Assets and Securities; Nuisance, 77; Partition; Quieting Title; Receivers; Reformation of Instruments; Specific Performance; States, 201; Subrogation; Trusts. MAXIMS. I. JURISDICTION, PRINCIPLES, AND (A) Nature, Grounds, Subjects, and Ex tent of Jurisdiction in General. 39 (3) (Or.) Right to recover damages in suit or cross-suit in equity must depend on some equity which enables court to secure and retain jurisdiction of subject-matter, and, as R. & Nav. Co. v. Reed, 169 P. 342. incident, award damages.-Oregon-Washington 41 (Or.) Where it is found, at hearing of cause, that equity on which it was predicated does not exist, suit is terminated, and cannot be tried to ascertain any legal right.-OregonWashington R. & Nav. Co. v. Reed, 169 P. 342. (C) Principles and Maxims of Equity. 57 (Cal.App.) By Civ. Code, § 3529, the presumption that a thing which ought to have been done will be regarded as done may be indulged only in favor of him to whom and against him from whom performance is due.-Mills v. Board of Trustees of City of Watts, 169 P. 1052. V. EVIDENCE. 271 (Cal.) A property owner of a corner lot where a street railway track is laid close to the curb along the line of his property is entitled to damages, under Const. art. 1, § 14, granting a recovery for the damage as well 344 (Or.) An admission in the answer of as the taking of property for public use.- one defendant is not conclusive upon other deFairchild v. Oakland & B. S. Ry. Co., 169 P. fendants.-Murphy v. Bjelik, 169 P. 520. 388. 293(4) (Cal.) Where an abutting lot is ERROR, WRIT OF. shown to be entitled to damages from a street See Appeal and Error. railway, it is immaterial, as far as the company is concerned, that plaintiffs, who really own the lot, have not shown the kind of ownership pleaded in their complaint.-Fairchild v. Oak-12 (Kan.) Where deeds of realty are deland & B. S. Ry. Co., 169 P. 388. 298 (Cal.) In an action by a corner lot owner for special damages on account of a street railway track constructed close to the curb along the line of the lot, it was improper to admit evidence of the jar occasioned by passing street cars; such inconvenience being common to all.-Fairchild v. Oakland & B. S. Ry. Co., 169 P. 388. EMPLOYERS AND EMPLOYÉS. See Master and Servant. EMPLOYERS' LIABILITY ACTS. See Master and Servant, 86, 348-419. ENCROACHMENT. See Constitutional Law, 52, 70. ENTRY. See Judgment, 273, 286. ESCROWS. posited in escrow to be delivered to grantee upon completion of payment therefor, title to property does not pass unless full payment is made.-Harbor Business Blocks Co. v. Gregory, 169 P. 191. ESTATES. See Descent and Distribution; Executors and ESTOPPEL. See Appeal and Error, 882; Boundaries, 48; Corporations, 425; Criminal Law, 1137; Frauds, Statute of, ~63; Judgment, 663-746; Mortgages, 183, 408; Pleading, 180. III. EQUITABLE ESTOPPEL. (A) Nature and Essentials in General. 58 (Idaho) To establish waiver, intention will not be presumed contrary to intention of party whose rights would be injuriously affected thereby, unless by his conduct opposite party is misled to his prejudice into honest belief that | law was in effect in the county where injury waiver was intended.-City of Coeur d'Alene v. to stock was inflicted.-Lusk v. Skelton, 169 P. Spokane & I. E. R. Co., 169 P. 930. 892. A necessary element of an equitable estoppel is that party relying upon it must have been misled to his injury by conduct or representations of one against whom it is invoked.-Id. (B) Grounds of Estoppel. 72 (Wash.) Where one of two innocent parties must suffer, the one whose neglect is responsible should bear the burden.-Morris v. Hillman Inv. Co., 169 P. 837. II. PRESUMPTIONS. 56 (Okl.) Supreme Court will not presume that minor Creek Indian is of such degree of Indian blood as to render his conveyance of lands inherited by him subject to Act Cong. May 27, 1908, § 9, removing certain restrictions on alienation and requiring conveyance of interest of full-blood Indian heir, to be approved by court.-Moffer v. Jones, 169 P. 652. 72 (Wash.) Between two innocent persons, 65 (Or.) Law imputes to bank which lent one of whom must suffer, he who is least in money to contractor with state to install fault should prevail.-Ellis v. McCoy, 169 P. plumbing, knowledge of contractor's bond con973. taining statutory condition contractor should make payments to persons supplying labor or materials.-Derby v. United States Fidelity & Guaranty Co., 169 P. 500. 78(1) (Cal.App.) Under Civ. Code, § 1698, where buyers, by written contract, orally agreed to extension, at request of sellers, in buyers' action for breach, sellers are not estopped from asserting they are not bound by oral agreement.-Donlon v. Meyer, 169 P. 447. 95 (Idaho) Mere silence will not work ar estoppel, but the circumstances must be such that there is both a specific opportunity and a real or apparent duty to speak.-Seat v. Quarles, 169 P. 1167. (E) Pleading, Evidence, Trial, and Review. (Idaho) Defense of estoppel in pais must be pleaded with certainty, and the facts must be set forth with great particularity, leaving nothing to intendment.-Seat v. Quarles, 169 P. 1167. Bank which lent money to contractor with state to install plumbing was charged with notice of right of contractor's surety to perform contract and to be subrogated to rights of state, including application of reserve percentages.-Id. Notice was imparted to bank, which lent money to contractor with state to install plumbing, of what was required by statute as to contractor's giving bond, and of what it might have learned by inquiring of state's officers.-Id. 82 (Cal.App.) Presumption is that superior court will do what law demands in relation to compelling clerk properly to file, number, and index petition for probate of decedent's estate. 118 (Or.) Conduct amounting to estoppel-Wolf v. Mulerevy, 169 P. 259. should be clearly established by a preponder-83(1) (Ariz.) There is a presumption that ance of the evidence.-McKinney v. Hindman, public officials acted in good faith.-Hunt v. 169 P. 93. Campbell, 169 P. 596. EVIDENCE. See Criminal Law, 311-564; Witnesses. For evidence as to particular facts or issues or in particular actions or proceedings, see also the various specific topics. For review of rulings relating to evidence, see Appeal and Error. Reception at trial, see Criminal Law, 1153; Trial, 62-105. I. JUDICIAL NOTICE. 83(1) (Kan.) Without allegation or proof that the Kansas board of review acted arbitrarily or dishonestly in disapproving a motion picture film, it must be presumed that it acted in good faith and in the honest exercise of its best judgment.-Mid-West Photo-Play Corp. v. Miller, 169 P. 1154. 670,83(1) (Or.) There is presumption that official duty has been regularly performed.-Derby v. United States Fidelity & Guaranty Co., 169 P. 500. 18 (Utah) Judicial notice will be taken that coal lands secured from United States were not purchased at uniform price, and that those purchased from state are not of uniform value. -Ririe v. Randolph, 169 P. 941. 25(2) (Or.) In a proceeding under L. O. L. $$ 3276 and 3284, to vacate streets and alleys, where the petition does not state that the addition is without the boundaries of the city, the court, where the limits of the city are fixed by legislative charter, may take judicial notice thereof, and likewise of the public survey of a donation land claim named upon a plat and mentioned in the petition.-City of Eugene v. Garrett. 169 P. 649. 31 (Or.) Under Laws 1917, p. 514, courts are required to take judicial notice of a city charter after a duly certified copy thereof has been filed with the librarian of the Supreme Court.-Crowe v. Albee, 169 P. 785. 33 (Or.) The court can take judicial notice of public documents throwing light on act of Congress, and also of journals of Congress and congressional records showing steps which finally led to its enactment.-Byers v. Wa-wane. 169 P. 121. IV. RELEVANCY, MATERIALITY, AND COMPETENCY IN GENERAL. (A) Facts in Issue and Relevant to Issues, I (Cal.) In action against warehouseman for burning of goods, testimony regarding defendant's customary answers to prospective customers held inadmissible when not connected with plaintiff.-Laux v. Bekins Van & Storage Co., 169 P. 1012. 113 (2) (Or.) Where value of personal property is in issue, if it has a market value, the evidence is usually confined to its value at time and place in question, or at a reasonable time before and after that time.-Stillwell v. Hill, 169 P. 1174. Where value of personal property is in issue, if it has no market value at the time in question, the market value at some other time, before or after, may be shown.-Id. In action for failure to deliver hay, where no difficulty appeared in proving its market value at or about the time it was contracted to be delivered, evidence of its market value several months thereafter, when market conditions were entirely different, was inadmissible.-Id. 117 (Wash.) Where household goods, kept for use and not for sale, have been wrongfully converted, it is not necessary to prove that such goods have no market value as a condition con-precedeat to the right to introduce proof of ac 46 (Okl.) Without evidence to the (A) Nature, Form, and Incidents in General. 208(6) (Cal.) A pleading which has been superseded by an amendment can no longer perform any office as a pleading, and cannot be used on the trial as admissions to contradict an allegation in a subsequent amendment.Schuh v. R. H. Herron Co., 169 P. 682. 213(1) (Cal.App.) Conduct of plaintiffs, for purpose of amicable settlement, in seeking deed from defendant obstructing highway, held not admission of no right over road.-Sherwood v. Ahart, 169 P. 240. he changed only one ballot, is inadmissible, being hearsay, in so far as official described acts of his fellow official.-Hunt v. Campbell, 169 P. 596. X. DOCUMENTARY EVIDENCE. (A) Public or Official Acts, Proceedings, Records, and Certificates. 333(4) (Cal.) Where assessment under St. 1909, p. 167, was illegal on its face, the assessment roll was not admissible in evidence.City Securities Co. v. Harvey, 169 P. 380. (C) Private Writings and Publications. 354 (18) (Cal.) In action against warehouseman for burning of goods, excluding evidence of entries by defendant alleged to be inconsistent with fireproof storage agreement was not erroneous, where plaintiff did not claim' agreement was made until after, and without knowledge of, such entries.-Laux v. Bekins Van & Storage Co., 169 P. 1012. 359(4) (Cal.) In a personal injury action, introduction in evidence of an X-ray picture of a normal foot to compare with plaintiff's foot after the injury held not error.-Bruce v. Western Pipe & Steel Co., 169 P. 660. XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WRITINGS. (A) Contradicting, Varying, or Adding to Terms of Written Instrument. 213(2) (Colo.) In action for killing a cow, evidence that defendant's claim agent offered to pay in settlement a sum less than one-half of amount claimed is inadmissible as an acknowl-385 (Cal.App.) Parol evidence was not adedgment of liability, for offer must be deemed to missible to vary terms of written instruments have been one of a compromise.-Chicago, B. set up by way of defense.-Minor v. Carpenter, & Q. R. Co. v. Peppard, 169 P. 282. 169 P. 434. 217 (Ariz.) Testimony that election official told third person that another official fraudulently changed numerous ballots, and that he changed only one ballot, is admissible as admission with respect to his own misdeed.-Hunt v. Campbell, 196 P. 596. (B) Invalidating Written Instrument, 434 (1) (Okl.) Where an instrument is attacked for fraud, all the circumstances leading up to its execution, as well as makers' motives and intentions, may be shown by parol.-American Bankers' Ins. Co. v. Hopkins, 169 P. 489. 220(5) (Cal.) In suit by attorney for services rendered in proceeding to restore defendant in-434 (8) (Okl.) A party cannot hide behind competent to capacity, evidence of declarations of defendant, while being cross-examined in such proceeding, to effect that a Mr. T. was his only lawyer, were inadmissible, though plaintiff was present, and did not deny statement.Henshall v. Coburn, 169 P. 1014. (C) By Grantors, Former Owners, or Privies. 236(1) (Cal.App.) In action for death, deceased's declarations as to circumstances of injury held not admissible to defeat the action, as declarations against his pecuniary interest, or that of his successor in interest, under Code Civ. Proc. § 1853.-Marks v. Reissinger, 169 P. 243. VIII. DECLARATIONS. (A) Nature, Form, and Incidents in General. 271(4) (Cal.App.) In action for balance due on note, defendant's testimony as to payments on the note before the original payee's death, held not objectionable as self-serving statements under Code Civ. Proc. § 1850-1853, 1870.Bailey v. Moshier, 169 P. 913. 271 (18) (Or.) In consignee's action for damages to shipment of tomatoes, its bills and ledger account offered to show the amount charged by it to purchaser, on account of their damaged condition, were properly excluded.— United Brokers' Co. v. Southern Pac. Co., 169 P. 114. IX. HEARSAY. 317(13) (Ariz.) Testimony that election of ficial told third person that another official fraudulently changed numerous ballots, and that the contract procured in general scheme of his misconduct by asserting that all misrepresentations, whether false or otherwise made, previous to a written contract merged therein.Hooker v. Wilson, 169 P. 1097. 434(13) (Okl.) Where life policy is contested for fraud, parol testimony as to statements inducing the contract is not inadmissible as tending to vary terms of written application and medical examinations signed by insured.-American Bankers' Ins. Co. v. Hopkins, 169 P. 489. (C) Separate or Subsequent Oral Agree ment. 441(1) (Kan.) In action on a written con tract for payment of money, an oral agreement contrary to terms of the written contract set up by answer was properly disregarded.-Lesem v. Harris, 169 P. 959. 441 (11) (Idaho) Without proof of imposi tion, fraud, or undue influence, fostered by misrepresentation, payor of note cannot prove an exception to contract by parol evidence varying its legal effect.-Jensen v. McConnell Bros., 169 P. 292. 443 (1) (Okl.) Though parol testimony is inadmissible to change terms of written contract, a parol contract may be made contemporaneous with execution of written agreements if it be independent and not in conflict therewith. -Mackin v. Darrow Music Co., 169 P. 497. Where plaintiff by written agreement sold defendant a piano payable in installments, defendant in action for balance might show a parol contemporaneous agreement for payment by hauling for the plaintiff and the breach of such agreement.-Id. |