(dissenting). I cannot agree with the conclusion reached by the majority, that no reversible error was committed by the trial court in the trial of this cause. It is doubtful to my mind if the court should have permitted the testimony of the habits of •the plaintiff to be given in evidence in this case, for the purpose of showing the improbability of his employment by a man of Kenyon’s character; but certainly the limit was passed when witnesses were allowed to testify as to Kenyon’s declarations concerning this alleged employment. Shepard testified, over the ob*141jection of appellant, that Kenyon had informed him just before the date of the note in suit, which was a note alleged to be for an attorney’s fee, that he had settled with all of the attorneys whom he had employed previous to that time. This was in substance introducing the statement of Kenyon that he did not owe the plaintiff anything at the time the note was given. The witness Whittlesey was allowed to testify as to conversations between himself and Kenyon, the decedent, concerning the collection of rents, and detailed Kenyon’s expressed reason for the employment of Whittlesey, and his expressed opinion as to the ability of the plaintiff, testifying that the decedent had said that the plaintiff was only a “jack-leg lawyer,” and other testimony of like character; all of which was objected to and which the court was moved to take from the jury. These declarations of the decedent are purely and simply declarations of the decedent in his own interest, and they were introduced for that purpose, and no doubt largely influenced the jury in coming to the conclusion that this note was a forgery.
The court, in its opinion, passes this assignment of error with the remark that, “ we have examined the various statements to which objections were made and think that no reversible error was committed in permitting them to be given;” citing Andrews v. Hayden's Admrs., 88 Ky. 455 (11 S. W. 428), which was cited by the respondents in support of the admission of this testimony and in favor of the proposition that the nature of the case required of the trial court that great latitude be allowed counsel in the examination of witnesses, and a wide range in the introduction of testimony. An examination of that case convinces me that it does not touch the case in point. In the first *142place, there was no such testimony admitted in that case, and the main objection was simply as to the order of the proof. The court in its opinion says: “There was no competent testimony offered that was excluded b}' the trial judge, and the mere order of proof could not have prejudiced the appellant.” Again, that case was tried by the judge and not by a jury, and referring to testimony which was not admissible, the supreme court bases its refusal to reverse on this fact, and says: “This testimony could not have controlled the trial judge in his decision of the case* and we are satisfied, with all of the facts before him, he must have refused to consider testimony which was incompetent, and considered alone that which enlightened him on the issue. . ■ . . The experience of every one familiar with the trial of such cases, where the law and facts are submitted to the court, has taught him that much evidence is often introduced that the tidal court would not permit to go to the jury, because of the ability of the judge to take the grain from the chaff and to decide the case alone upon the law and such testimony as is proper to be considered. If the errors committed were such as would likely have controlled the court in its decision, another trial would be granted;” showing conclusively that, even under the facts in that case, if the testimony admitted had gone to a jury, the court would have considered its admission reversible error.
Nor do I think that any case can be found sustaining the introduction of testimony which is so purely hearsay as the testimony introduced in this case. It is a universal rule, and I think without any exception, that the declarations of a decedent in favor of his own interests cannot be admitted, and only those declarations can be .admitted which are against his *143interests. This court has passed squarely upon this proposition in the case of Reese v. Murnan, 5 Wash. 373 (31 Pac. 1027), where the estate of the deceased Murnan was charged by the plaintiff Reese with a resulting trust in real property which Murnan had purchased in his own name, and which Reese claimed to •have furnished him money for. In the course of its opinion the court said: “ The defense sought to show that Murnan had made other declarations to other witnesses that Reese had no interest, but they were not permitted to do so. We know of no rule of law that would admit such declarations;” citing Wilson v. Patrick, 34 Iowa, 362, where the court tersely laid down the rule as follows:
“ Defendants introduced evidence of the statements of Joseph A. Blackburn, to the effect that he owned the land absolutely. This evidence is clearly inadmissible. Declarations made by him in support of his absolute interest in the lands may not be received, while admissions to the contrary effect are competent evidence.”
The statute, in the interests of justice and of fair play, has provided that the plaintiff cannot testify as to any transactions had by him with, or any statements made to him by, the deceased, the theory of the law being that, the mouth of the deceased being closed by death, the law should close the mouth of the claimant. But, under the rule adopted by the court in the trial of this cause, the mouth of the claimant is closed while the deceased is allowed to testify, by the rehearsal of his statements made to others, which is in effect the introduction of testimony that cannot be even subjected to the test of cross-examination.
I think the admission of this testimony and the refusal of the court to take it from the jury was error, and prejudicial error, and that for that reason the judgment ought to be reversed and a new trial granted.