over to the fund created by the act, to be repaid by the money derived from the bonds, is mandatory, notwithstanding a provision giving the board power to reject all bids. This latter is a power to be used to effectuate, not defeat, the legislative will: People v. Supervisors, 50 Id. 563. The legislature cannot, by special enact- Oct. 11, 1862, Ø 686. § 696. [686.] For the proper construction of an in- Oct. 11, 1862, strument, the circumstances under which it was made, Construction including the situation of the subject of the instrument, of instrument. and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret. Construction of instruments is for the court: Johnson v. Shiveley, 9 Or. 333. Contracts, like statutes, by reason of which a forfeiture is claimed to have accrued, should be construed strictly: Von Schmidt v. Huntington, 1 Cal. 71; Sprague v. Edwards, 48 Id. 248; conditions made by common carriers are to be strictly interpreted: Hooper v. W., F., & Co., 27 Id. 27. If the habendum of a deed is irreconcilable with the premises, the latter must prevail: Eldridge v. See Yup Co., 17 Cal. 50. Deeds are to be construed most strongly against the grantor if there is any ambiguity: Muller v. Boggs, 25 Id. 182; Dodge v. Walley, 22 Id. 227; Salmon v. Wilson, 41 Id. 485. will be received to show from sur- Parol evidence is admissible to 18 Or. 137. Circumstances, etc. The principle of this section was affirmed in Brannan v. Mesick, 10 Cal. 105; Jenny Lind Co. v. Bower, 11 Id. 195; Brewster v. Baxter, 2 West Coast Rep. 791 (Wash.); Stanley v. Green, 12 Cal. 162; Pierce v. Robinson, 13 Id. 116; Hancock v. Watson, 18 Id. 140; Mulford v. Le Franc, 26 Id. 88; Saunders v. Clarke, 29 Id. 304; Pio Pico v. Coleman, 47 Id. 67. It was applied in the case of a will: Moreland v. Brady, 8 Or. 303. Parol testimony § 697. [687.] The terms of a writing are presumed Oct. 11, 1862, to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they writing taken have a technical, local, or otherwise peculiar signification, acceptation. and were so used and understood in the particular instance, in which case the agreement shall be construed accordingly. 687. Terms of in general Oct. 11, 1862, $ 688. § 698. [688.] When an instrument consists partly of Written words written words and partly of a printed form, and the two are inconsistent, the former controls the latter. control those printed. Oct. 11, 1862, $689. Experts Oct. 11, 1862, $630. Two constructions of instrument. 19 Or. 23. Oct. 11, 1862, $ 691. Written notice, how construed. § 699. [689.] When the characters in which an instrument is written are difficult to be deciphered, or the language of the instrument is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. See post, § 706 [696], note. § 700. [690.] When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail, against either party, in which he supposed the other understood it; and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made. § 701. [691.] A written notice is to be construed according to the ordinary acceptation of its terms. Thus a notice to the drawers or indorsers of a bill of exchange or promissory note that it has been protested for want of acceptance or payment shall be held to import that the same has been duly presented for acceptance or payment, and the same refused, and that the holder looks for payment to the person to whom the notice is given. § 702. [692.] Where a statute is equally susceptible of two interpretations, one in favor of natural right, and natural right. the other against it, the former is to prevail. Id., § 692. Statute construed in favor of Id., § 693. Material allegation only need be proved. Oct. 11, 1862. § 694. Evidence confined to material allegations. § 703. [693.] None but a material allegation need be proved. § 704. [694] Evidence shall correspond with the substance of the material allegations, and be relevant to the questions in dispute. Collateral questions shall therefore be avoided. It is, however, within the discretion of the court to permit inquiry into a collateral fact, when such fact is directly connected with the question § 694. in dispute, and is essential to its proper determination, Oct. 11, 1862, or when it affects the credibility of a witness. Evidence confined to material when counsel make an offer of eviallegations: See note to § 96 [94], dence they must offer to prove all ante, pp. 236 et seq., as to variance facts which, taken in connection with and correspondence between allega- facts proved, are necessary to render tion and proof. the offered evidence relevant: Chamberlain v. Vance, 51 Cal. 75. Where the objection to the introduction of evidence is in general terms that it is irrelevant, without stating the particular reason why it is irrelevant, and the objection could have been cured by the party offering the evidence, if the reason for it had been given, the supreme court will not notice the objection: People v. Apple, 7 Id. 289; Kiler v. Kimbal, 10 Id. 268; Martin v. Travers, 12 Id. 245; Owen v. Frink, 24 Id. 171; Satterlee v. Bliss, 36 Id. 489; Winans v. Hassey, 48 Id. 634; Thompson v. Thornton, 50 Id. 142; Henry v. S. P. R. R. Co., 50 Id. 176. The court may of its own motion prevent the introduction of irrelevant testimony, although the opposite side make no objection: People v. Turcott, 2 West Coast Rep. 490. The meaning of the word "relevant" as applied to testimony is that it directly touches upon the issues which the parties have made by their pleadings, so as to assist in getting at the truth of it: Platner v. Platner, 78 N. Y. 95; Moran v. Abbey, 58 Cal. 163. Offer of proof must be distinctly directed to some material fact, and if vague in this particular, may be rejected: Smith v. East Branch M. Co., 54 Cal. 164. Instances of immaterial evidence properly rejected: Lachman v. Barnett, 18 Nev. 269; People v. Iams, 57 Cal. 115; Sweetser v. Dobbins, 2 West Coast Rep. 145; Corkins v. Prichard, 3 Id. 82 (N. M.); of evidence possibly material properly admitted in an action on a policy of insurance: Roberts v. Etna Ins. Co., 58 Cal. 83; of the admission of immaterial evidence not injuring the beaten party: Phipps v. Hully, 18 Nev. 133; of the rejection of proper testimony not being ground for reversal, the losing party not being prejudiced thereby: Kelley v. Fitzell, 2 West Coast Rep. 132; People v. Moan, 3 Id. 632; Leitensdorfer v. King, 7 Col. 436. Evidence as to what witness said he expected another witness would testify to is wholly inadmissible: Weidekind v. Tuolumne County Water Co., 2 West Coast Rep. 376. Evidence must be relevant, and $695. only to be § 705. [695.] Each party shall prove his own affirma- Oct. 11, 1862, tive allegations. Evidence need not be given in support Affirmative of a negative allegation, except when such negative alle- allegations gation is an essential part of the statement of the right proved. or title on which the cause of action or defense is founded, nor even in such case when the allegation is the denial of the existence of a document the custody of which belongs to the adverse party. Affirmative allegations to be proved. The burden of proof lies on the party having the affirmative of the issue: Costigan v. Mohawk etc. R. R., 2 Denio, 609; Gilson v. Price, 18 Nev. 109. It is not necessary to prove admitted facts, and it is not error to reject testimony thereon: Hurlburt v. Jones, 25 Cal. 225; Tully v. Harloe, 35 Id. 306; Tevis v. Hicks, 41 Id. 127; Patterson v. Sharp, 41 Id. 133; Jones v. Spears, Oct. 11, 1862, $695. Oct. 11, 1862, $ 696. Evidence of facts which may be given on trial. 19 Or. 25. been rendered in his favor: Rogers v. woman as sole trader has cast on him the burden of proving that the defendant was a sole trader when she made the note and mortgage: Reading v. Mullen, 31 Id. 104. Where party has to prove a negative, the law does not demand plenary proof, but he must produce some evidence: Kohler v. Wells, Fargo, & Co., 26 Cal. 611. When negative allegations are the basis of the plaintiff's suit, it is incumbent upon him to show that they are at least prima facie true: United States v. Southern Col. C. & T. Co., 1 West Coast Rep. 11 (Col). See this case generally for a discussion of the amount of evidence in support of a negative allegation necessary to shift the burden of proof. § 706. [696.] In conformity with the preceding provisions, evidence may be given on the trial, of the following facts: 1. The precise fact in dispute; 2. The declaration, act, or omission of a party as evidence against such party; 3. A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto; 4. The declaration or act, verbal or written, of a deceased person, in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person; the declaration or act of a deceased person, made or done against his interest in respect to his real property; and also in criminal actions, the declaration or act of a dying person, made or done under a sense of impending death, respecting the cause of his death. 5. After proof of a partnership or agency, the declaration or act of a partner or agent of the party, within the scope of the partnership or agency, and during its existence; the same rule applies to the declaration or act of a joint owner, joint debtor, or other person jointly interested with the party; 6. After proof of a conspiracy, the declaration or act $696. of a conspirator against his co-conspirator, and relating Oct. 11, 1862, to the conspiracy; Evidence of 7. The declaration, act, or omission forming part of facts which the transaction, as explained in section 686 [676]. 8. The testimony of a witness, deceased or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter; may be 9. The opinion of a witness respecting the identity or 18 Or. 829. handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein; 11 Or. 421. 10. The opinion of a subscribing witness to a writing, 60r. 111. the validity of which is in dispute, respecting the mental sanity of the signer, and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given; 11. Common reputation, existing previous to the con- 10 Or. 107. troversy, respecting facts of a public or general interest, more than thirty years old, and in cases of pedigree and boundary; 12. Usage, to explain the true character of an act, contract, or instrument, where such true character is not otherwise plain; but usage is never admissible except as a means of interpretation: 13. Monuments and inscriptions in public places as evidence of common reputation, and entries in family Bibles or other family books or charts, engravings on rings, family portraits, and the like, as evidence of pedi gree; 14. The contents of a writing when oral evidence thereof is admissible; 15. Any other facts from which the facts in issue are presumed or are logically inferable; 16. Such facts as serve to show the credibility of a witness, as explained in section 683 [673]. Declarations, acts, or omissions which are part of the transaction: See § 686 [676], ante, and note. Admissions as to which evi- Ad |