delivered the opinion of the court.
The defendant contends that the court erred: (1) In overruling the motion for a judgment of nonsuit, made by the defendant at the close of plaintiff’s evidence; and (2) in overruling the motion for a directed verdict in favor of the defendant, made at the close of all the evidence. These assignments may be considered together.
1. We take up the final consideration of this case after the suit of Gray v. Beard, ante, p. 59 (133 Pac. 791). The history of the relations of the parties is contained in the opinion in the latter case to which reference may be made, and which need not be repeated here. The jury came to the same conclusion in the case at bar as we did in the equity suit, and upon much the same facts. There was a direct conflict in the evidence. Article VII, Section 3 of the Constitution, as amended (see Laws 1911, p. 7), provides that no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. However, we cannot so declare in this case. There was no error in submitting the cause to the jury.
It was the plaintiff’s theory of the case, and the evidence tended to show, that in 1893 S. M. Beard, fearing that his property would be wrongfully taken from him,'carefully planned and executed a transfer of the 10 shares of stock to the defendant in such a manner as to thoroughly conceal the true nature of the transaction; that in carrying out the plan, on June 15, 1903, he borrowed $5,000 from the Commercial Bank of Vancouver, giving his note therefor; that on June 22, 1903, a note for $5,000 in favor of defendant was signed by him, and purported to be secured by the 10 shares of capital stock of the Beard Fruit Company; that this note was never delivered, but that soon after its execu*531tion it was turned over by S. M. Beard to bis niece, Mary B. Gray, in whom be bad implicit confidence, wbo retained it until sbe produced it at tbe trial of tbis case; tbat to make tbe transaction more plausible, certificates of deposit were turned over by tbe defendant to tbe decedent, and tbe money used to pay tbe note of June 15, 1903. In tbis connection it is claimed by tbe plaintiff tbat on June 22,1903, $3,000 of tbe $5,000 was deposited by A. Edgar Beard to tbe credit of W. L. Gray, Mrs. Gray’s husband, during bis absence; tbat upon Gray’s return to tbe city be was apprised of what bad been done, and told tbat it was to cover up some transaction of S. M. Beard. It appeared from a conversation between S. M. Beard and A. Edgar Beard at tbe time, as testified to by ~W. L. Gray, tbat tbe money belonged to S. M. Beard. Tbe defendant objected and excepted to tbe introduction of evidence in regard to tbis transaction, and requested tbe court to instruct tbe jury to disregard it, wbicb request was refused. Tbe defendant assigns tbe admission and consideration of tbe same as errors.
2. Tbe particular transaction in regard to tbe 10 shares of stock in question appears to have been a part of a general scheme of decedent to place tbis property in tbe name of other parties. Tbe evidence relates to tbe very $5,000 matter by wbicb tbe defendant claims ownership to tbe stock, and we think it is germane to tbe issues. Tbe jury was entitled to tbe whole history of tbe deal under proper instructions. There was no error in admitting tbe evidence complained of. Section 725, L. O. L., provides tbat it is within tbe discretion of tbe court to permit inquiry into a collateral fact, when such fact is directly connected with tbe question in dispute, and is essential to its proper determination, or when it affects tbe credibility of a witness. It should be stated tbat it does *532not appear and it is not claimed that S. M. Beard, deceased, transferred any of his property for the purpose of defeating any just claim against him.
3. The defendant objected and saved exceptions to the evidence of the declarations of S. M. Beard, tending to show a reason for placing the shares of stock in the names of other persons, and also to the introduction of an inventory in the handwriting of S. M. Beard, in which the Beard Fruit Company property was listed as S. M. Beard’s property, with the valuation thereof. This evidence was admissible under Section 732, subdivision 2, L. O. L., providing that when a party to an action, suit or proceeding, by or against an executor or administrator, appears as a witness in his own behalf or offers evidence of statements made by deceased against the interest of the deceased, statements of the deceased concerning the same subject matter in his own favor may also be proven: See Jones v. Hill, 62 Or. 53 (124 Pac. 206).
’ 4. This evidence, taken in connection with the other testimony and circumstances of the case, was material. It is objected that the same was introduced by the plaintiff as a part of his case in chief, before the defendant appeared as a witness. The deposition of the defendant had been taken in the case, and it was evidently understood that he would take the witness-stand in his own behalf, which he did. The admission of testimony in chief, which is properly admissible in rebuttal, is a matter of the order of proof. At most it was a harmless irreg’ularity, and does not call for a reversal of the judgment: Cashman v. Harrison, 90 Cal. 297 (27 Pac. 283); Nuckolls v. College of Physicians & Surgeons, etc., 7 Cal. App. 233 (94 Pac. 81).
5. The defendant complains because the plaintiff took the deposition of the defendant before the time of trial. Section 837, L. O. L., authorizes the testimony *533of the adverse party to be taken by deposition at any time after tbe service of tbe summons or tbe appearance of defendant: Wheeler v. Burckhardt, 34 Or. 504 (56 Pac. 644).
We find no prejudicial error in the record. Tbe judgment of tbe lower court is therefore affirmed.
Affirmed: Rehearing Denied.
Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.