which you would be allowed on your part to prove in 'evidence; if it have such a connection with the issue that you would be allowed to give it in evidence, then it is a matter on which you may contradict him.” In People v. Devine, 44 Cal. 452, the court stated that the rule is subject to the qualification that contradictory evidence may be received if it is relevant to the issue to be tried; and reversed the judgment of the lower court for its error in excluding certain evidence offered for the purpose of contradicting the answer of a witness given upon her crossexamination upon a collateral subject, on the ground that it was upon a matter relevant to the issue then upon trial; and in People v. Chin Mook Sow, 51 Cal. 597, after stating the rule, the court said: “But when the question asked on cross-examination calls for a response in respect to a matter which the party asking the question would have the right to prove as an independent fact, the rule does not apply."

Evidence is at all times to be confined to the issue, but “It is not necessary that it should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it." (Greenleaf on Evidence, sec. 52a.) Section 1870 (15) of the Code of Civil Procedure authorizes evidence to be given, upon the trial of a fact, of any other facts from which the facts in issue are “logically inferable." An "inference" is "a deduction which the reason of the jury makes from the facts proved” (Code Civ. Proc., sec. 1958), and is founded upon such a deduction from those facts as is warranted by a considera. tion of the course of business or the particular propensities of the person whose act is in question” (Section 1960 (2]). Section 1868, Code of Civil Procedure, declares: “Evidence must correspond with the substance of the material allegations and be relevant to the question in dispute. Collateral questions must 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 in dispute and is essential to its proper determination, or when it affects the credibility of a witness." The direction in this section that collateral questions are to be "avoided” indicates that they are not absolutely excluded from consid

4 Cal. App.-27

eration. Whether the collateral fact upon which the evidence is offered is directly connected with the matter in dispute and is essential to its proper determination is by the concluding portion of the section placed within the discretion of the trial court for primary determination. Unless it can be seen that the evidence is without any weight whatever in determining the issue the action of the court in receiving it will not be reversed.

The tendency of modern decisions is to admit any evidence which may have a tendency to illustrate or throw any light on the transaction in controversy, or give any weight in determining the issue, leaving the strength of such tendency or the amount of such weight to be determined by the jury; and in determining the relevancy of evidence that may be offered upon an issue of fact much depends upon the nature of the issue to sustain which or against which it is offered, and a wide discretion is left to the trial judge in determining whether it is admissible or not. Mr. Thayer, in the introduction to his “Cases on Evidence,

Cases on Evidence,” says: “No precise or universal test of relevancy is furnished by the law. The question must be determined in each case according to the teachings of reason and judicial experience”; and Mr. Stephen, in his Digest of the Law of Evidence, says (chapter I): “The word 'relevant' means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or nonexistence of the other.”

Under these principles it cannot be said that the testimony of either Myall or Main was utterly irrelevant to the issue before the court, or that it was not entitled to any weight in the determination of that issue or of the credibility of the defendant as a witness. The issue to be determined was whether the defendant had warranted the wheat which he sold to the plaintiff to be “White Australian”; and the court was required to determine the credibility and weight to be given to his testimony denying that he had so warranted it.

. Evidence of any collateral fact which had a legal bearing in determining these questions was relevant and admissible, and entitled to consideration.

The defendant had only one quality of seed wheat for sale. IIe had received that upon an order given by him for “White Australian" seed wheat, and had been told by the party from whom he purchased it that it was "White Australian" wheat, and he so stated to the plaintiff and to other purchasers. The plaintiff testified that he warranted it to him to be “White Australian" wheat. The defendant denied that he made such warranty. If now, under this state of the evidence, it could be shown that in all his other sales from this lot of wheat defendant had warranted to the respective purchasers that it was “White Australian" wheat, such testimony would be relevant for the purpose of showing his course of business in selling the wheat, and it would tend to create a probability that he had made the same warranty iu his sale to the plaintiff. The number and frequency of the sales in which the warranty had been made, and their proximity in time to the sale made to the plaintiff, would be circumstances addressed to the discretion of the court in determining the relevancy of the testimony; and unless it should clearly appear therefrom that the court had abused its discretion its action in admitting the evidence could not be regarded as error. These circumstances would also be addressed to the jury in determining the inference to be drawn from the testimony, or the strength of the probability in support of which it was introduced. The weight or conclusiveness to be given by the jury is entirely distinct from the question of the relevancy of the testimony. If the fact of. fered to be shown was proper for their consideration in determining the issue the court was justified in submitting it to them. (See People v. Arnold, 15 Cal. 476.) No personal element, such as the skill, ability, capacity or financial responsibility of the respective purchasers, entered into the consideration for the respective transactions; and as the defendant testified that he made the sales to Myall and Main upon the same condition as that made by him to the plaintiff, the evidence offered would at the same time have a bearing upon the weight to be given to his testimony in contradiction of that of the plaintiff in reference to making a warranty. As such testimony would have some relevancy to the issue it would in the discretion of the court be admissible, either upon cross-examination of the defendant or in

rebuttal; and it would also be admissible as direct evidence of the plaintiff's cause of action. In Lowenstein v. Lombard, 164 N. Y. 324, (58 N. E. 44), upon the issue whether & steamship agent had authority to make a contract for the transportation of merchandise without requiring a declaration of its value, evidence that he had made contracts with other parties, dispensing with such declaration, was held to be properly admitted on the ground that it was “competent as direct evidence for the purpose of defining the contract which was actually made."

Probability is an element which addresses itself to the reason, and is frequently invoked in matters of human conduct and experience for determining the existence or nonexistence of a fact. In civil cases a jury is authorized to determine an issue of fact as its probability or improbability may appear to them from the evidence before them. Hence any evidence tending to show either of these conditions is relevant to the issue to be determined by them. “If the evidence of. fered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy it should go to the jury." (Insurance Co. v. Weide, 11 Wall. 438.) Swain v. Cherry, 41 N. H. 232, was an action upon a verbal contract between the parties for hauling certain lumber, an: the issue before the court was the price for which it was agreed to be hauled. The trial court rejected certain testimony offered by the plaintiff to prove what the defendant paid to other persons for hauling a portion of the same lumber between the same points. Upon appeal the supreme court held that the evidence so offered was competent as tending to show whether it was probable that the price agreed to be paid was that paid by the plaintiff, and should have been received, leaving its weight to be determined by the jury. In an action for damages for fright caused to the plaintiff's horse by the blowing of a locomotive whistle, evidence that the whistle had produced the same effect upon other horses was held admissible in Hill v. Portland etc. R. R. Co., 55 Me. 438, [92 Am. Dec. 601). In an action for damages from fire caused by sparks thrown from a locomotive, evidence of other fires in that vicinity similarly caused is admissible "to show the probability" of the fire in question having been so caused. (Shelton v. Hudson River

a

R. R. Co., 14 N. Y. 218, [67 Am. Dec. 155) ; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454; Bulcher v. Vaca Valley etc. R. R. Co., 67 Cal. 518, [8 Pac. 174]; Steele v. Pacific Coast Ry. Co. 74 Cal. 323, (15 Pac. 851].) In an action against the defendant upon his promissory note, which the plaintiff claimed to have purchased at a heavy discount, and which the defendant denied having sold, evidence that the defendant had sold other notes about that time at a discount was held ad. missible. (Turner v. Luning, 105 Cal. 124, (38 Pac. 687].) In Lexington Ry. Co. v. Lyons, 104 Ky. 23, (46 S. W. 209), upon the issue whether a railroad ticket agent made certain representations respecting a ticket purchased by the plaintiff, testimony of a witness that on the same occasion he purchased similar tickets and that the agent made the same representation as testified by the plaintiff was held admissible. In this case the agent had testified in cross-examination that he did not make such representation to the witness, and it was held that the testimony could be received as well upon rebuttal as in chief. In Schmidt v. Packard, 132 Ind. 398, (31 N. E. 944), where the issue was whether notes in suit had been delivered after their indorsement, evidence that other notes of the same series were similarly indorsed on the same day, and were not delivered to the indorsees, was held admissible upon the ground that the transactions were so connected in time and in language as to indicate that they were the effect of the same cause.

Under the foregoing considerations we are of the opinion that the evidence objected to by the defendant was not irrelevant to the issue before the court, and that in receiving it the court did not unwarrantably exercise its discretion.

The judgment and order are affirmed.

Cooper, J., and Hall, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 17, 1907.