Dissenting. — I am able to concur in the conclusion reached by the majority of the court. This is an action against an administratrix of the estate of a deceased person, and under subd. 3 of see. 5957, Rev. Codes, the plaintiff could not testify in this case as to any matter of fact occurring before the death of the deceased person mentioned in the complaint. All of the material allegations of the complaint were put in issue by the denials in the answer. On the trial the deposition of one Montgomery, or a part of it, was introduced in evidence, and it appears from the evidence in that deposition that said promissory note, which appears to be a joint note on its face, was signed by G. W. Tritthart as surety and C. F. Tritthart as principal, and that C. F. Tritthart failed to pay the same when it became due and that G. W. Tritthart paid it on June 13, 1907. The promissory note was then introduced in evidence with certain indorsements thereon. The evidence does not show by whom said indorsements were made, and plaintiff rested. Thereupon counsel for respondent moved that the court instruct the jury to bring in a verdict in favor of the defendant on several grounds, which motion was granted by the court, or the case was taken from the jury.
The trial court in rendering its decision said: “I find evidence in the deposition that G. W. Tritthart signed the note as surety, and it was paid by G. W. Tritthart. I don’t find evidence in the deposition or the case that C. F. Tritthart has not repaid the note to G. "W. Tritthart and that it is now due and owing to G. W. Tritthart. ’ ’ Counsel for appellant thereupon stated, “There is no evidence except the note itself, which shows on the face of it, on account of Tritthart not being permitted to testify.” The Court: “There is where the mind of counsel and court do not join — -that the note is sufficient. I shall grant, the motion for nonsuit. ’ ’
Conceding that the appellant paid said promissory note on the 13th of June, 1907, there is not a particle of evidence showing or tending to show that the deceased did not furnish the money to pay said indebtedness or that he had not repaid *196plaintiff prior to his death which occurred on July 28, 1911, over four years after G. ~W. Tritthart claimed he had paid said note. There is no evidence whatever to show the amount due on said note, if any, to the plaintiff. His possession of it cannot in this case show the amount due. It is a joint note, and he had the right to the possession of it even though he were surety, and his possession of it does not establish the fact that there was still due him $722.65, the amount claimed in the complaint, or any other sum. Under the provisions of said sec. 5957, Rev. Codes, Tritthart himself is not permitted to testify against the administratrix, and the majority of the court holds that simply because he has possession of the note with certain indorsements thereon, without showing by whom said indorsements were made, that the note and such indorsements established the fact that he had paid said note and also the amount due him because of such payment. The handwriting would indicate that G. W. Tritthart had made at least two of said indorsements himself. Said statute prohibits the plaintiff from testifying, but the majority opinion in effect holds that he or some person for him may make a written statement or indorsement on the back of a note which will be received as evidence to prove that he is not permitted to testify to himself. This, I think, is a clear evasion and nullification of the provisions of said statute. If this rule is established, all that a person need do is to make a statement in writing on the back of a promissory note, and that would be received in evidence to prove the amount due on such note as against the estate of a deceased person.
And again: It is alleged in the complaint that the appellant’s claim in this action was presented to the administratrix for allowance and that she rejected the same. A copy of said claim was attached to the complaint and in part is as follows:
“Estate of Charles F. Tritthart, Deceased.
“To G. W. Tritthart, Dr.
“1912.
“Jan. 6. Balance due on note, with interest to date, $722.63”
*197Under the holding of the majority of the court said claim as presented was not a legal claim against said estate; it was not the balance due on said note that this action was brought to recover, but on an implied contract to repay appellant what he paid for and on behalf of said deceased, and the administratrix was fully justified in rejecting said claim. The majority holds that “a surety who pays a note may sue the maker at law upon an implied promise to indemnify him.” That is the action at bar. Said claim against the estate was therefore' based upon said implied promise and not on said promissory note, and this action, according to the allegations of the complaint, is clearly based on said promissory note and not on an implied promise to pay. The majority opinion states as follows: “In paragraph 2 of the complaint it is alleged that the plaintiff received no consideration for the note, and it is alleged that he signed the same as an accommodation for the said C. F. Tritthart, at his request and upon his promise to pay the note at maturity.....The allegations of the complaint above quoted are not denied in the answer, and the allegations show that the plaintiff’s obligation upon the note was that of suretyship.” Turning to the answer, the second paragraph is as follows: “That as to whether or not the plaintiff received any consideration for said note for signing the same, as an accommodation for the said C. F. Tritthart, at his request and upon his promise to pay the same at maturity, this defendant has no knowledge or information sufficient upon which to base a belief and therefore denies the same. ’ ’ That certainly is a good denial upon information and belief, but the majority holds that it is not a denial.
The third paragraph of the answer is, in part, as follows: “As to whether or not the said C. F. Tritthart did not pay said note at maturity and that plaintiff was thereupon compelled to and did, on the 13th day of June, 1907, pay the sum of $798.95 in discharge of the said note, and that no part of said sum has been paid to plaintiff .... or whether or not there is any sum due as alleged in said paragraph 3 of plaintiff’s complaint, this defendant has no knowledge sufficient upon which to base a belief and therefore denies the *198same.” This also is a good denial, and sufficient to require the plaintiff to prove the .allegation thus denied, and, as I view it, to hold that such allegations are established by the introduction of said promissory note with certain indorsements made thereon is a clear evasion of said section of the statute.
My associates lay stress upon the fact that said promissory note was in the possession of the plaintiff, but I am unable to see why they should do so, as it was a joint note, and G. W. Tritthart was one of the makers and had a right to the possession of it if he had paid it. Nevertheless it was obligatory upon him by competent evidence to show that he was only surety on the note,.also that he had paid it and what was the balance due and unpaid. The note itself does not show the balance due and unpaid. ,
It is stated in the majority opinion that the respondent denied certain allegations of the complaint but that she introduced no evidence in support of her denial. She did not need to do so until there was some evidence introduced to sustain the allegations so denied.
But as I view it, the main objection to the rule laid down by the majority is that an indorsement upon a promissory note may be introduced to establish a fact in a .person’s favor wherein he is not permitted to testify in regard to such fact. There is not a particle of evidence to show the balance due the plaintiff. The judgment ought to be affirmed.