On Petition for Rehearing.
McMahan, J.Appellee on petition for rehearing contends that we erred in holding that he was not a competent witness to testify concerning the conversation he had with the deceased partner wherein he made a demand for the market price of the wheat, and says that our decision is contrary to Dodds v. Rogers (1879), 68 Ind. 110, which it is claimed is a ruling precedent.
In this we think appellee is in error. In that case the action was founded on a promissory note signed “Snodgrass & Dodds” and alleged to have been executed by Snodgrass and Dodds as partners. Snodgrass having died, the action was prosecuted against his administrator and Dodds. Dodds answered, (1) Denying *549under oath the execution of the note, and (2) denying the execution of the note by Snodgrass within the scope of the partnership. The liability against the estate of Snodgrass seems to have been conceded. The real controversy was not as to the liability of his estate, but whether Dodds was liable. Dodds was defending on the theory that the note was not given for the partnership obligation. The plaintiff was permitted to testify relative to a conversation with Snodgrass at the time Snodgrass signed the note, in which Snodgrass said the money for which the note had been given was for the use of the firm. He also testified that he had talked to Dodds about the note both before' and after the death of Snodgrass in which he told Dodds what Snodgrass had said, and that in the conversation after Snodgrass’ death Dodds said he would pay the note. The purpose of this evidence was not to support a judgment against the estate of Snodgrass, but to fix the liability of Dodds. As said by the court: “Under the issue presented by the administrator, the introduction of the note in evidence would fix the liability against the estate he represented, and the subsequent testimony of the payee against Dodds would tend to relieve rather than burden the estate of Snodgrass.” It was not a case where the living was testifying against the dead, but where the testimony of the living was in fact favorable to the dead.
Our attention is also called to the case of Hess v. Lowrey (1890), 122 Ind. 225, 23 N. E. 156, 7 L. R. A. 90, 17 Am. St. 355, but that was a case where no judgment could be rendered that would in any manner affect the estate of the deceased partner. That was an action ex delicto, and in so far as the deceased partner was concerned did not survive. It had for that reason been dismissed as to the administrator of the dead partner’s estate and was prosecuted against the surviving part*550ner alone, and in case of- judgment being rendered against him, he could not recover any part of it against the estate of the deceased partner, nor would he be entitled to a credit for any part of it in his settlement as surviving partner with the legal representatives of the latter’s estate.
The instant case is an action on a contract, where the cause of action survives the death and if a judgment is rendered against the appellant or the surviving partner, the liability of the estate of the dead partner is fixed and established by the testimony of appellee. This is clearly prohibited by the letter and spirit of the statute. See, Bay View Brewing Co. v. Grubb (1903), 31 Wash. 43, 71 Pac. 553; Gage v. Phillips (1891), 21 Nev. 150, 26 Pac. 60, 37 Am. St. 494; Green v. Ediek (1874), 56 N. Y. 613; Clift v. Moses (1889), 112 N. Y. 426, 29 N. E. 392; Edwards v. Parker (1889), 88 Ala. 356, 6 South. 684; Alexander’s Exrs. v. Alford (1883), 89 Ky. 105, 20 S. W. 164; Standbridge v. Catanach (1877), 83 Pa. St. 368; Hanna v. Wray (1874), 77 Pa. St. 27; Stuart Bros. v. Altman (1894), 8 Tex. Civ. App. 657, 288 S. W. 461.
Rehearing denied.