delivered the opinion of the court.
1. It was in issue before the jury whether the mare suited the defendant. This involved the state of his mind on that subject and the question is whether the declarations of the defendant to the witness Kelliker are competent for the proof of that matter. The plaintiff cites in support of his attack upon the ruling of the court Sullivan v. Oregon B. & N. Co., 12 Or. 392 (7 Pac. 508, 53 Am. Rep. 364), and Fredenthal v. Brown, 52 Or. 33 (95 Pac. 1114). In the Sullivan Case the plaintiff sued to recover damages for a hurt received by him when ejected from one of the defendant’s trains. After having testified to the matter in question himself he called a witness who stated in substance that two or three minutes after the train in question had passed he heard someone call out and on going to the spot he found the plaintiff who said in effect, answering an inquiry of the witness about what was the matter, that the conductor pushed him off or threw him off the train. This court rejected that testimony as not being part of the res gestae. In the Fredenthal Case the plaintiff was hurt by the fall of a sling-load of lumber during the loading of a ship upon which he was working as a stevedore. As imputing blame to the defendant, the plaintiff offered the statement of the engineer in charge of the donkey engine used in handling the lumber in purport that he could not hold the load with the machine then in use. In both these cases the effort was to prove the principal fact in dispute by testimony which was not part of the res gestae. An act apparent to the senses and capable of description was the subject of inquiry in each of those cases. The subsequent declarations were not part of that act and lacked the spontaneity *641necessary to make them so. Here the fact sought to be established, although vital to the defendant’s case, is the state of mind of the defendant, whether of satisfaction or dissatisfaction with the mare alleged to have been sold to him. The phenomena by which mental conditions are usually ascertained are the words and actions of the individual whose mind is under consideration. Indeed there is but little else available primary proof in such a case. If what he says is spontaneous and devoid’of malingery, it is received as original evidence to aid the jury in ascertaining the ultimate fact in dispute which, in this instance, was the state of Bodley’s mind, whether satisfied or not with the quality of the animal. Much depends on the circumstances of each case. The trial judge is vested with discretion in the premises to reject as self-serving those expressions uttered so remotely as to give them the flavor of being manufactured for the occasion and to receive those manifestly spontaneous as indicative of the true mental situation under scrutiny.
The matter of the admissibility of the declarations of one whose attitude of mind at the time is being considered was exhaustively treated by Mr. Justice Harris, a writer of one of the majority opinions in State v. Farnum, 82 Or. 211 (161 Pac. 417). The defendant there was accused of murdering Edna Morgan. It was necessary to prove that she met him and went with him to a barn where her dead body was afterwards found. Witnesses were permitted to state that during the afternoon before her disappearance she refused to go home with them because, as she said, “she could not as she thought Eoy [meaning the defendant] was coming down.” This testimony was assailed by the defendant on the ground that it was *642hearsay, not part of the res gestae, and that the declaration of the girl was made not in his presence. After an extended review of the authorities on that side of the question the discussion is summed up thus:
“If the doing of an act is a material question, then the existence of a design or plan to do that specific act is relevant to show that the act was probably done; and, considering the plan or design as a condition of the mind, a person’s own statements of a present existing state of mind, .when made in a natural manner and under circumstances dispelling suspicion and containing no suggestion of sinister motives, only reflect the mental state, and therefore are competent to prove the condition of the mind, or, in other words, the plan or design.”
In the instant case the talk between Kelliker and the defendant was virtually a continuance of the conversation begun in the presence of the plaintiff although at the moment he had left the scene. There is nothing to show that it was other than a perfectly natural and spontaneous expression on the part of the defendant indicating the state of his mind on the subject of whether he was satisfied with the animal. On the hypothesis that the doctrine elucidated by Mr. Justice Harris is sound law in a case where the lifelong liberty of the defendant was involved, it is controlling in a horse trade where the plaintiff still has the horse and the defendant retains the purchase money. The judgment is affirmed. Affirmed.