§ 371. Nature and use of stipulations as regards evidence. A stipulation is an agreement between counsel usually required by statute to be in writing1 and to be entered upon the minutes of the court, respecting the carrying on of a case which is in litigation in court. When a stipulation, voluntarily entered into by the parties or by their counsel, is committed to writing and filed with the clerk of the court, it becomes a part of the record, is irrevocable, and both parties are conclusively bound thereby to the same extent and on the same principles as by any other matter constituting an estoppel of record. But a stipulation is not binding on persons who became parties to the action after it was entered into by the original parties,* nor will the stipulation be held to estop infant parties unless it is ratified by the court upon affirmative proof that it is not prejudicial to them."

Very frequently, for the purpose of saving time and expense, when a witness is ill or out of the jurisdiction so that his evidence can only be obtained by a commission, or where the point to be proved is collateral, immaterial or uncontradicted, a stipulation is entered into that the witness will testify to certain facts set forth therein, or that the point in question shall be admitted as proved. In the former case the fact that the absent witness appears in court after the party's case is closed,' or the fact that the deposition of the witness subsequently procured is inconsistent with the statement of his evidence. contained in the stipulation, does not give the adverse party

Taylor v. Chicago, etc. Co., 80 Iowa, 431; Gulf, C. & S. F. Ry. Co. v. King (Tex., 1891), 16 S. W. Rep. 641.

Idaho, 1174. A stipulation as to evidence which is filed in one action is admissible as evidence in a subsequent action between the same par

2 Garrigan v. Dickey (Ind. App., ties, though not specially pleaded 1891), 27 N. E. Rep. 713.

3 Kenton Ins. Co. v. First Nat. Bank (Ky., 1892), 19 S. W. Rep. 841; City of Chicago v. Drexel (Ill., 1892), 30 N. E. Rep. 774; Whalen v. Brennan, 34 Neb. 129; 51 N. W. Rep. 759; Worsham v. McLeod (Miss., 1832), 11 S. Rep. 107; Dilworth v. Curts, 29 N. E. Rep. 861; 139 Ill. 508; Amer. Bank Note Co. v. Man. Ry. Co., 66 Hun, 627; Mahoney v. Marshall, 2

by the party who offers it. Coubrough v. Adams, 70 Cal. 374; 11 Pac. Rep. 634.

4 Kneeland v. Luce, 141 U. S. 487; Midland R. Co. v. Island Coal Co., 126 Ind. 384.

5 Eidam v. Finnegan, 48 Minn. 53; 50 N. W. Rep. 933.

6 Harris v. McArthur (Ga., 1893), 15 S. E. Rep. 758.

a right to claim that the latter shall be disregarded,' or deprive the party in whose behalf the evidence is offered of his right to use it. Though it has sometimes been laid down as a rule that a stipulation ought to be construed most strictly against the party for whose benefit it was made, yet such an agreement should receive a liberal and reasonable construction by the court, so as to bring about the apparent intention of the parties and to aid in the expeditious administration of justice. So it has been held that parol evidence is inadmissible to vary the terms of a stipulation, but that the court should gather its meaning from the whole instrument viewed in the light of all the circumstances in the case.*

Where a party has entered into a stipulation that evidence which has been given in a prior proceeding by witnesses who may be unable to attend shall be used in a pending trial, he does not waive his rights under it, in case any witness is subsequently unable to attend, by calling one of these witnesses who may be in court.5 Where documentary evidence has been lost and the parties enter into a stipulation that a certain mode of proof shall be adopted in lieu thereof, a substantial compliance with the mode agreed on is all that can be required, and proof as made will not be rejected because not precisely identical in time, place or manner with that which has been stipulated for. Any stipulation entered into by

1 Dickerson v. Mathewson, 50 Fed. Rep. 73.

4 Schroeder v. Fry, 12 N. Y. S. 625. 5 Foster's Ex'r v. Dickinson, 64 Vt.

2 Heller v. Petterson, 3 N. Y. S. 257; 233; 24 Atl. Rep. 253. A stipulation 18 N. Y. State Rep. 928.

3 Lally v. Rossman, 82 Wis. 147; 51 N. W. Rep. 1132; People v. Cooper, 139 Ill. 461; 29 N. E. Rep. 872; Mackay v. Armstrong (Tex., 1892), 19 S. W. Rep. 463; Keator v. Colo. Coal & Iron Co. (Colo., 1893), 32 Pac. Rep. 857; Davidson v. Felder (Tex., 1893), 21 S. W. Rep. 714; Schroeder v. Frey, 114 N. Y. 266; Blossom v. Griffin, 13 N. Y. 569; Field v. Munson, 47 id. 221; Springsteen v. Sampson, 32 id. 703; Calkins v. Falk, 39 Barb. 620; Otis v. Conway, 114 N. Y. 113; Rogers v. Kneeland, 10 Wend. 219.

that evidence given in one case may be read "on the trial" of another case means on any trial, whether first or second (Herbst v. Vacuum Oil Co., 68 Hun, 222); though by signing such a stipulation the party does not waive his right to object to evidence which, though competent in the early trial, is not competent in the later. Bridgham's Appeal, 82 Me. 323. Contra, Thompson v. Thompson (Ala., 1891), 8 S. Rep. 419.

6 Crow v. Gleason, 20 N. Y. S. 590; 65 Hun, 625. But cf. Keator v. Colorado, etc. Co. (Colo., 1893), 32 Pac. Rep. 857.

the parties which is equitable and fair to both, which is reasonable in itself and does not contravene public policy or good morals, will be binding on the court. If a stipulation is tainted with fraud, or if it has been entered into by counsel without his client's consent, or improvidently or unadvisedly, as when, for example, by mistaking the legal effect of the agreement, the counsel admits as true material facts which are not so, and this would prevent a trial of the case on its merits, it will be disregarded. So if the stipulation is framed in such a manner that the interest of a party is likely to suffer because of the fraud, collusion or unfairness which has been practiced, it is within the discretion of the court to cause it to be set aside.1

$372. Demurrer to evidence. The defendant, by demurring to the evidence of the plaintiff, is considered to admit its truth. So the plaintiff is then entitled to all favorable inferences which may reasonably and fairly be drawn from the evidence, whether the facts which constitute his evidence were elicited by direct or by cross-examination." But a demurrer serves rather as an objection to the competency of the evidence than to its sufficiency and weight; and if, in the opinion of the court, there is evidence sufficient to go to the jury, it is its duty to overrule the demurrer."

1 Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447; Hong Kong & Shanghai Banking Co. v. Cooper, 114 N. Y. 388.

strongly against him; and such conclusions as a jury may justifiably draw the court ought to draw." Pawling v. United States, 4 Cranch,

2 Sperb v. Railroad Co., 57 Hun, 221. See, also, Nuzum v. Pitts588. burgh, C. & St. L. R. Co., 30 W. Va. 228.

3 Ward v. Clay, 82 Cal. 502.

4 Stonesifer v. Kilburn, 94 Cal. 33; Powell v. Turner, 139 Mass. 97.

5 Hawley v. Dawson, 16 Oreg. 344; Hopkins v. Bowers, 111 N. C. 175; City of St. Louis v. Missouri Pac. R. Co. (Mo., 1893), 21 S. W. Rep. 202; Healey v. Simpson (Mo., 1893), 20 S. W. Rep. 881 (in equity). "The demurrant admits the truth of the testimony, and such conclusions as the jury may fairly draw, but not forced and violent inferences. The testimony is to be taken most

6 Shaw v. County Court, 30 W. Va. 488; 4 S. E. Rep. 430; Hartman v. Cin. etc. Co. (Ind., 1893), 30 N. E. Rep. 930; Pitt v. Texas Storage Co. (Tex., 1893), 18 S. W. Rep. 465; Benninghof v. Cubbison, 45 Kan. 621. "A demurrer to plaintiff's evidence admits the facts the evidence tends to prove. The court is to make every inference of fact in favor of the plaintiff which a jury might infer. If then the evidence is insufficient to support a verdict in his

In a criminal prosecution, where the accused has once pleaded not guilty, the state may hold him to his election of a jury trial and refuse to permit a demurrer to the evidence; and even if it shall join issue on the demurrer, the matter is wholly in the discretion of the court, who may refuse to entertain the plea.1

§ 373. Surprise. By surprise is meant the introduction of evidence at the trial which causes such a variance between the allegations and the proofs that the adverse party is misled in maintaining his action or defense on the merits. A party who has thus been surprised must move for a new trial, which should be granted if the variance was material and the party was unjustly treated. To warrant a court in setting aside judicial proceedings, which are prima facie fair and regular, upon the ground of surprise, it must have been a legal surprise, and the party alleging it must himself have been wholly without fault.

The fact that relevant evidence is introduced at the trial which a party did not expect would be introduced, or which he is for any reason unprepared to rebut, does not constitute surprise in its technical sense. If the evidence does not give rise to a material variance between the allegation and the proof, so that a new cause of action or a new defense is substituted for the original cause or defense, there is no surprise for which a new trial will be granted. Where the party goes to trial without sufficient preparation, or fails to examine witnesses, or is unable to produce evidence upon some point entirely within and relevant to the issue, to meet the unexpected evidence of his adversary, he must abide the conse

favor, the demurrer should be sustained." Donohue v. St. Louis, etc. R. Co., 91 Mo. 360.

29 Pac. Rep. 1044; Tittman v. Thornton, 107 Mo. 500; Griffin v. O'Neill, 47 Kan. 116. A new trial will not

1 Duncan v. State (Fla., 1892), 10 be granted because the successful

S. Rep. 815.

2 Nash v. Town, 5 Wall. 698; Anderson's Law Dict. See ante, §§ 22-24. 3 Kenezleber v. Wahl, 92 Cal. 202; Texas, etc. Co. v. Barron, 78 Tex. 421; 14 S. W. Rep. 698.

4 Lockwood v. Rose, 125 Ind. 588; O'Donnell v. Bennett (Mont., 1892),

party perjured himself on a material point if his adversary, knowing the true facts, was unprepared to prove them. Randall v. Packard, 20 N. Y. S. 718.

5 Bingham v. Walk, 128 Ind. 164; Shotwell v. McElhenny, 101 Mo. 677.

quences of his own laches; and though in its discretion the court may grant delay, he cannot claim a new trial because he has been surprised.' So the mere absence of material witnesses does not give the party a right to claim that he is surprised so as to obtain a new trial, particularly if their absence is the fault of the party, or if he has failed to ask for delay to procure their attendance.2

§ 374. Rebutting evidence Nature and use of. The primary significance of the word "rebut" is to contradict or oppose. From this word is derived "rebuttal," which is frequently used as equivalent to the order and time in which evidence that is intended to contradict other evidence is to be introduced. Thus we speak of evidence "on" or "in" rebuttal.3

"Rebutting evidence" sometimes signifies any evidence which is conclusive, which will overcome a presumption or outweigh other evidence. Again, the expression may mean only evidence which contradicts. In the one case the effect of the rebutting evidence is to avoid the operation of a presumption of law or of fact. In the other the result is to destroy by explanation or denial the effect of affirmative evidence already adduced. What evidence shall be received in rebuttal is, as we have seen, largely discretionary with the court." If the evidence which is offered is such that a party should have properly introduced it in making out his original cause of action or his defense, it is not error for the court to reject it if he seeks to introduce it under the guise of rebutting evidence. But this principle should not be pushed too far;

1 Davidson v. Wheeler, 17 R. I. 433; Hartman v. Journal, 19 N. Y. S. 401; Dillingham v. Flack, 63 Hun, 629; Jinks v. Lewis, 89 Ga. 787; Crowell v. Harvey, 30 Neb. 570; Francisco v. Benepe, 6 Mont. 243; Smith & Keating Implement Co. v. Wheeler, 27 Mo. App. 16.

2 Brady v. Valentine, 21 N. Y. S. 776; 3 Misc. Rep. 19; Cassiano v. Straus, 23 N. Y. S. 1036; Leonard v. German F. Ins. Co., 23 id. 684. 3 See Anderson's Law Dict 4 Anderson's Law Dict., citing

Fain v. Cornett, 25 Ga. 188; People
v. Page, 1 Idaho, 194; Butterfield v.
Gilchrist, 63 Minn. 155: State v.
Claire, 41 La. Ann. 1067; Collins v.
Glass, 46 Mo. App. 297.

5 See § 375.

6 Young v. Brady, 94 Cal. 128; 29 Pac. Rep. 489; Belden v. Allen, 61 Conn. 173; Shearer v. Middleton, 88 Mich. 621; 50 N. W. Rep. 737; Chateaugay Ore & Iron Co. v. Blake, 144 U. S. 476; O'Connell v. People, 87 N. Y. 377.